Decision delivered orally – November 20, 2023, and in writing December 4, 2023
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
Mario Mouamer
Accused
Timothy Kavanagh, for the Crown
Laura Joy, for the Accused
HEARD: February 10, 11, 12, 13, 14, 18, 19, 20, 21, 25, 26, 27, 28; October 20; November 2; and December 7, 2020 August 12, 13, and November 8, 12, 2021 August 9, 10, 11, 12; September 7, 8, 9, 12, 13, 14 and 15; and November 3, 2022 January 4, 26, February 4, and March 15, 2023 written submissions
reasons for judgment
KING j.:
Introduction
1Mario Mouamer is charged on a 17-count indictment as follows:
- That he, between the 1st day of September 2013, and the 31st day of October in the year 2013, at the City of Windsor in the said Southwest Region did commit a sexual assault on G.L.
CONTRARY TO SECTION 271 OF THE CRIMINAL CODE OF CANADA.
- And further that he, between the 1st day of September 2013, and the 30th day of October in the year 2013, at the City of Windsor in the said Southwest Region did commit a sexual assault on G.L.
CONTRARY TO SECTION 271 OF THE CRIMINAL CODE OF CANADA.
- And further that he, between the 1st day of January 2017, and the 31st day of January in the year 2017, at the City of Windsor in the said Southwest Region did commit a sexual assault on T.F.
CONTRARY TO SECTION 271 OF THE CRIMINAL CODE OF CANADA.
- And further that he, between the 1st day of February 2017, and the 28th day of February in the year 2017, at the City of Windsor in the said Southwest Region did commit a sexual assault on T.F.
CONTRARY TO SECTION 271 OF THE CRIMINAL CODE OF CANADA.
- And further that he, between the 1st day of January 2013, and the 31st day of December in the year 2014, at the City of Windsor in the said Southwest Region did commit a sexual assault on J.B.
CONTRARY TO SECTION 271 OF THE CRIMINAL CODE OF CANADA.
- And further that he, between the 1st day of June 2016, and the 30th day of June in the year 2016, at the City of Windsor in the said Southwest Region did commit a sexual assault on C.G. [#1]
CONTRARY TO SECTION 271 OF THE CRIMINAL CODE OF CANADA
- And further that he, between the 1st day of July 2016, and the 31st day of July in the year 2016, at the City of Windsor in the said Southwest Region did commit a sexual assault on C.G. [#1]
CONTRARY TO SECTION 271 OF THE CRIMINAL CODE OF CANADA
- And further that he, on or about the 19th day of June in the year 2017, at the City of Windsor in the said Southwest Region did commit a sexual assault on B.P.
CONTRARY TO SECTION 271 OF THE CRIMINAL CODE OF CANADA
- And further that he, on or about the 23rd day of March in the year 2015, at the City of Windsor in the said Southwest Region did commit a sexual assault on A.P.
CONTRARY TO SECTION 271 OF THE CRIMINAL CODE OF CANADA
- And further that he, between the 1st day of January 2016, and the 31st day of January in the year 2016, at the City of Windsor in the said Southwest Region did commit a sexual assault on S.V.
CONTRARY TO SECTION 271 OF THE CRIMINAL CODE OF CANADA
- And further that he, between the 1st day of August 2016, and the 31st day of August in the year 2016, at the City of Windsor in the said Southwest Region did commit a sexual assault on M.B.
CONTRARY TO SECTION 271 OF THE CRIMINAL CODE OF CANADA
- And further that he, between the 1st day of April 2014, and the 7th day of July in the year 2014, at the City of Windsor in the said Southwest Region did commit a sexual assault on K.C.
CONTRARY TO SECTION 271 OF THE CRIMINAL CODE OF CANADA
- And further that he, between the 1st day of September 2016, and the 31st day of October in the year 2016, at the City of Windsor in the said Southwest Region did commit a sexual assault on A.F.
CONTRARY TO SECTION 271 OF THE CRIMINAL CODE OF CANADA
- And further that he, on or about the 18th day of February in the year 2015, at the City of Windsor in the said Southwest Region did commit a sexual assault on R.C.
CONTRARY TO SECTION 271 OF THE CRIMINAL CODE OF CANADA
- And further that he, on or about the 23rd day of March in the year 2017, at the City of Windsor in the said Southwest Region did commit a sexual assault on C.G. [#2]
CONTRARY TO SECTION 271 OF THE CRIMINAL CODE OF CANADA
- And further that he, between the 1st day of September 2015, and the 30th day of September in the year 2015, at the City of Windsor in the said Southwest Region did commit a sexual assault on J.M.
CONTRARY TO SECTION 271 OF THE CRIMINAL CODE OF CANADA
- And further that he, between the 1st day of October 2015, and the 31st day of October in the year 2015, at the City of Windsor in the said Southwest Region did commit a sexual assault on J.M.
CONTRARY TO SECTION 271 OF THE CRIMINAL CODE OF CANADA
Overview
2Mario Mouamer is a denturist licensed in the Province of Ontario by the College of Denturists of Ontario (“the College”).
3The individual complainants were all patients of the accused. The Crown alleges that on various dates between 2013 and 2017, Mr. Mouamer intentionally rubbed his penis up against the buttocks of these various female patients in his office while performing denturist services. These actions were done intentionally for a sexual purpose and none of the patients consented to this activity.
Conduct of the Trial
Trial Dates
4This trial commenced in person on February 10, 2020. This was just over a month before the onset of the COVID-19 pandemic. Given the interruption that the pandemic caused to this matter, I think it is important that I provide an overview of the conduct of the trial that was originally scheduled for three weeks.
5The trial commenced on February 10, 2020, and continued for 13 days to February 28, 2020. Dates were set following an adjustment of my sitting schedule for the trial to continue on March 16, 2020, for two weeks and a further two weeks commencing on June 8, 2020.
6The return of the trial on March 16, 2020, coincided with the date Morawetz C.J.S.C. ordered the Superior Court closed until June 2020 due to the COVID-19 pandemic. The trial was adjourned to the previously scheduled date of June 8, 2020. Due to persisting COVID-19 restrictions in June 2020, the trial was unable to continue on the previously set dates.
7As well, during the trial, the accused brought a Charter application under s. 24(1) of the Canadian Charter of Rights and Freedoms, Constitution Act, 1982, Sched. B. to the Canada Act 1982 (UK), 1982, c. 11 (“the Charter”), due to an in-trial discovery issue. The College had provided letters to the Crown for distribution to the various complainants. Those letters advised the complainants that they were eligible to receive funds to reimburse them for counselling. Particulars were not disclosed by the Crown until the trial was underway.
8On September 11, 2020, the parties appeared in Assignment Court and the trial was scheduled to continue with the evidence for the two weeks of March 8, 2021, and March 15, 2021.
9The parties made submissions regarding the Charter s. 24(1) application relating to the disclosure issue by Zoom on October 20, 2020, and were to continue on November 2, 2020. However, as counsel for the accused was unavailable on November 2, 2020, the submissions were completed by Zoom on December 7, 2020. My decision regarding the application was provided by Zoom on March 8, 2021. However, the trial proper could not otherwise proceed due to COVID-19 restrictions which prohibited in-person hearings.
10The March 2021 dates were vacated due to ongoing COVID restrictions.
11The trial then continued in person on dates during the weeks of August 9, 2022, September 5, 2022, and September 12, 2022.
12The viva voce evidence was completed on September 15, 2022. Given the difficulty in scheduling additional dates for submissions, counsel for the accused suggested that the parties provide written submissions. The Crown agreed with this suggestion. A schedule for the parties to provide written submissions was set as directed by the court. That process unfolded as set out below.
13On September 15, 2022, I set the timetable for submissions as follows:
i) Defence – October 21, 2022;
ii) Crown – November 25, 2022;
iii) Defence Reply – December 16, 2022; and,
iv) January 4, 2023 was set for the parties to respond to any questions from the court regarding their written submissions.
14On November 3, 2022, the parties re-attended. As Ms. Joy had been ill, it was necessary to extend the timelines as follows:
Defence – November 10, 2022;
Crown – December 15, 2022; and,
Reply – January 3, 2023.
15The January 4, 2023, date was retained only as a speak-to date. On January 4, 2023, the parties attended before me by Zoom. Ms. Joy had submitted a brief reply on January 3, 2023, but indicated she would have oral submissions to be made at a later date. This was in error as she had originally suggested and obtained the consent of the Crown and ultimately an order from the court that submissions would be completed in writing.
16In these circumstances, I granted Ms. Joy until January 25, 2023, to file a further and more complete response. The matter was set for a speak to on January 26, 2023, with February 9, 2023, set for any questions from the court regarding the written submissions.
17Ms. Joy did not appear on January 26, 2023, at 10:00 a.m. Eventually, F. Lyons appeared as her agent. He advised the court Ms. Joy’s office had not diarized January 26, 2023, as they erroneously believed the written reply was not due until February 9, 2023. Ms. Joy was given a further extension to February 9, 2023, to provide her reply. March 15, 2023 was set for questions from the court.
18Ms. Joy did not appear on March 15, 2023, due to illness. The matter was adjourned to March 30, 2023. Oral responses to questions for the court were completed that day.
Disposition of Certain Counts
19From the outset, I note the following with respect to counts 1, 2, 10 and 15.
20The Crown presented no evidence with respect to counts 1 and 2. The complainant with respect to those counts was G.L. As a result, the Crown invited the court to dismiss those two counts. Counts 1 and 2 were dismissed on February 10, 2020.
21As well, during the trial, the Crown called the complainant S.V. as a witness on February 25, 2020. That person commenced her testimony with respect to count 10. However, it was obvious to the court and both counsel that the witness was not in good health on that date. Accordingly, that complainant was temporarily excused for the day. However, she never returned as a witness. Accordingly, the Crown invited the court to dismiss count 10. Count 10 was dismissed on August 13, 2021.
22C.G. #2 was a complainant in this matter. She attended at this trial and testified commencing on February 13, 2020. On March 8, 2021, I made a ruling that certain witnesses could be recalled at the request of the accused to answer questions limited to a letter the complainants received from the College regarding the availability of funding for counselling services. When the witnesses were being recalled, the Crown had not issued a subpoena to C.G. #2 and she could not be located. As a result, the Crown elected to invite the court to dismiss count #15 relating to that complainant, C.G. #2. I dismissed count 15 on September 12, 2022.
23In his submissions, Crown counsel submitted I could still rely on the other evidence of C.G. #2 in my deliberations.
24I have not reviewed or considered the evidence of this witness in my deliberations. While it might be an interesting question of law whether it would be permissible for the court to consider the evidence of this complainant received by the court in this matter, I have not done so even though her testimony was complete with respect to the evidence of the alleged offence. While she was only to be recalled on an issue of receiving a letter offering counselling, C.G. did not complete her evidence. I make no negative inference from this fact in the context of assessing the Crown’s case. However, I am of the opinion that the fair trial interests of Mr. Mouamer require that the court not assess or consider the partial evidence of this witness, and I have not done so.
25The trial continued to completion with respect to the remaining 13 counts, pertaining to 10 complainants.
Similar Fact Application
26I also note from the outset that the Crown made an application for a Similar Fact Evidence Finding pursuant to r. 30.01 (b) of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), S.I./2012-7 (“Criminal Proceedings Rules”).
27The Crown did not make this application until February 7, 2020. That was the last workday before the trial commenced on February 10, 2020.
28The Crown confirmed that they had not complied with the 30-day notice requirement prescribed in r. 30.04(1) of the Criminal Proceedings Rules. Defence counsel took issue with the application.
29On February 10, 2020, I made an oral ruling in this regard. That oral decision was provided in writing on March 16, 2020. At that time, I made the following order:
The Crown is given leave to make a r. 30.01(b) application notwithstanding the failure of the Crown to meet the 30-day notice requirement prescribed in rule 30.04(1) of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario).
The Crown is granted leave to amend and must file an application record pursuant to rule 30.05.
The Crown may wish to provide counsel for the accused with a general overview of the following information, in writing, forthwith:
i) what are the similar facts;
ii) what issues are the similar facts to be used with; and
iii) the inferences the evidence is tendered to support.
Should the Crown elect not to provide any further information referenced in 3 above prior to the calling of their evidence, or should the accused challenge the sufficiency of the evidence following the Crown’s evidence case, the court will rule on same taking all of this into consideration.
Should the accused raise a bona fide issue during the testimony of any Crown witness that allegedly impacts on the ability of the accused to properly address the similar fact application, the court will give generous consideration to such an adjournment as may be necessary.
30During the trial, the Crown made a formal application for a similar fact ruling. The parties made full submissions in this respect.
31On September 12, 2022, I issued a preliminary ruling that the similar fact application was granted with reasons to follow. I will provide those reasons in this decision.
General Principles
32At the outset, I will note certain fundamental principles.
33As in any criminal case, Mr. Mouamer is presumed to be innocent. This presumption is a cornerstone of our criminal justice system. This presumption of innocence stays with the accused throughout his trial and can only be defeated if the Crown satisfies the court that the accused is guilty of the charge by proving each and every essential element of the offence beyond a reasonable doubt.
34This heavy burden of proof never shifts; it always lies with the Crown. It is always the Crown who must prove the essential elements beyond a reasonable doubt.
35I find it instructive to explain the concept by reciting the model jury charge regarding the requisite standard of proof as suggested by the Supreme Court of Canada in its seminal decision in R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, at para. 39:
The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the Crown has on the evidence put before [the court] satisfied [the court] beyond a reasonable doubt that the accused is guilty.
What does the expression “beyond a reasonable doubt” mean?
The term “beyond a reasonable doubt” has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning.
A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.
Even if [the court] believe[s] the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances, [the court] must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy [the court] of the guilt of the accused beyond a reasonable doubt.
On the other hand, [the court] must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.
In short if, based upon the evidence before the court, [the court is] sure that the accused committed the offence [the court] should convict since this demonstrates that [the court is] satisfied of his guilt beyond a reasonable doubt.
36I have considered the whole of the evidence in this case. I have followed the analytical steps required by R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, when an accused testifies, as he did here. I have asked myself whether Mr. Mouamer’s version of events should be accepted or, alternatively, whether I am still left with a reasonable doubt even if I do not believe Mr. Mouamer, or whether the evidence as a whole nonetheless raises a reasonable doubt as to guilt.
37In this decision, I will refer to the evidence most germane to the issues in this trial. As noted by the Ontario Court of Appeal, I am not required to refer to every piece of evidence in making my credibility and reliability findings: see R. v. F.L., 2017 ONCA 472, at para. 21. I do not propose to set out an exhaustive review of all the evidence. If I do not mention a specific item of evidence, it does not mean that I have not considered that evidence.
Evidence of Mario Mouamer
38Mr. Mouamer is a Canadian citizen and was born in Montréal, Québec. He indicated that, while he was born here, his parents are from Syria – they emigrated to Canada. He has a brother and a sister.
39Mr. Mouamer graduated as a denturist from George Brown College in 2009. He initially worked in London upon qualifying as denturist for four and a half years. Following that, he took an opportunity to return to Windsor and open a practice. His practice was regulated by the College of Denturists of Ontario.
40He set up in conjunction with a dental practice operated by a dentist, Dr. Walter Friedl. The term was for three years until Friedl’s son graduated from dental school. His business was called “Precision Bite Denturists”.
41He was charged in 2017. Dr. Friedl took the space back for his son in 2019.
42When he was arrested, there was a significant amount of information about the charge in the media. Mr. Mouamer indicated coverage by the Windsor Star newspaper, Facebook, CTV News, and other social medial platforms and radio stations. His name and the name of the clinic were published.
43Mr. Mouamer was arrested a total of three times as different complainants came forward. On reading the various comments on social media, he stated he was “disgusted, disheartened, basically victimized.”
44He stated as follows:
I am a Canadian citizen. And also, no person should be able to be told to be deported, regardless of your race. And I think it, the racism and the prejudice that I seen through a lot of these comments was very disheartening and it was hurtful, very hurtful.
45The newspaper articles referenced “inappropriate touching.”
46He worked alone as a denturist in his clinic. The only other person working there was his sister, Marie Marcuzzi (“Ms. Marcuzzi”). She worked as a receptionist and bookkeeper. During the relevant period, she worked for Mr. Mouamer part-time, taking care of his financial records at the clinic. It was her second job. She also worked regularly at Caesars Windsor and would perform duties for her brother at other times. She also testified in these proceedings.
47Mr. Mouamer described his treatment room as having an open-door space. In that way, his patients could see others walking in and out. Those persons waiting could see in and determine what type of services were being provided. As there was no door, the room could never be completely closed off. He always wore a lab coat that had large pockets. He would keep his large and small denturists tools in these pockets. He described them as waxing tools, a buffalo knife, a spatula, a light and nose pliers. He brought them to the witness stand. A picture of the tools was entered as exhibit 26. He provided specific evidence with respect to each of the complainants. In some respects, he looked at his business records to confirm dates of visits and other information regarding the services provided. He provided a general denial that he ever pushed his penis or groin area into any of the complainants’ buttocks.
T.F.
48T.F. came in for the last time after he had been charged. When she came for this visit, Mr. Mouamer was not aware that she had gone to the police. According to Mr. Mouamer, T.F. came to his clinic approximately seven times. At no point did she express any discomfort about anything going on with her. He never rubbed his groin against her buttocks.
49He also indicated he felt victimized when T.F. stated in her evidence he as not Italian, but rather was Arabic in nature. And when she said it is different than if he was a Catholic or Christian or Protestant. Mr. Mouamer volunteered he is Orthodox Christian and this prejudice made him feel victimized.
50He denied ever being behind T.F. (or any client) while they looked at their teeth in the mirror. He would be at their side. Any contact might have been on the client’s leg, but not buttocks.
51He demonstrated that from the side, both of his hands could never have reached their mouths. He never pinned her against the sink.
J.B.
52He denied her version of events that while he was beside her having her look in the mirror, she could see him take his glove hand and adjust his penis. He denied that he never wore scrubs. He denied rubbing his erect penis against her buttocks.
53He asserted that she asked him to make her a second denture. He declined because he considered her unruly and had aggressive behaviour.
C.G. #1
54C.G. attended at his clinic 10-15 times. What Mr. Mouamer remembered most distinctly about this complainant is that she tried to set him up with her daughter. It was in relation to playing volleyball.
55This discussion took place before the alleged sexual assault occurred. However, the volleyball season occurs between June and August. The indictment alleges the sexual assault on this complainant occurred between June 1 and June 30, 2016.
56Mr. Mouamer disagreed.
M.B.
57M.B. came in unannounced needing a repair. His sister was present. Mr. Mouamer was late for an appointment. He took a quick look at her partial denture. He did not have time to fix the partial right then. He glued it as a temporary fix for aesthetics and gave it back to her. He told her she could not chew on it until it was properly fixed.
58She went on her own to the mirror and began asking about implants. She pointed to her teeth, and he told her that she needed to talk to a dentist because he only did prosthetics. She was only in his clinic for five or six minutes.
59He denied bending her over in front of the mirror, putting his fingers in her mouth and dry humping her. He also indicated that he could not physically have been able to stand behind her with his fingers in her mouth and dry hump her. He denied doing any of this.
K.C.
60K.C. was a referral. She required a repair on a partial denture. She needed an immediate denture for the top and a new lower partial.
61The estimated cost for this work was going to be between $2,200 and $2,400. K.C. had insurance. Mr. Mouamer’s sister dealt with these matters. She sent in the forms.
62The work was performed over one and a half years. K.C. alleged his office had not sent in the forms in a timely way. This resulted in her losing her coverage for his work. She had reported this to the police during her interview where she complained about the alleged sexual assault.
63K.C. was not happy, as she had to pay out of pocket for this work. Mr. Mouamer agreed that because she was receiving immediate dentures, she would have had to go in front of the mirror a few times. However, he denied that he ever touched her sexually while he did this work by rubbing his penis against her buttocks.
A.F.
64A.F. was a client that came for four to five visits. A.F. had compromised teeth that were in poor shape and discoloured. They needed a significant amount of restoration work.
65While doing work for her, Mr. Mouamer had her go before the mirror. A.F. had indicated she had been directed to go before the mirror on the second visit. Mr. Mouamer stated it would have been on the first visit. He would not have done that one the second visit because there would have been no need to do so. He denied rubbing up against her.
66He denied that she pushed her arms back and moved to the side. He denies that she told him to “get away.”
R.C.
67R.C. was a client in 2015. She needed a repair to a partial denture. She came in just once. Mr. Mouamer thought she was with her boyfriend. He never saw her again. However, she called the office after his first arrest asking for information about the dates when she had attended his office.
68Mr. Mouamer denied pushing up against her.
J.M.
69Mr. Mouamer made a full, complete upper denture fabrication for J.M. over eight to ten visits. This occurred over a period of three to four months.
70J.M.’s husband attended on some of the visits. Mr. Mouamer’s sister was present on at least one of the occasions. J.M. cancelled a number of appointments. Mr. Mouamer denied thrusting her from behind on the third visit. He denied pulling his penis out. He also denied putting his hands on her shoulders and sometimes on her backside near his groin area. He did agree that he would have had the client look at her dentures in the mirror to make sure the dentures fit and the bite was proper. He denied that when he had her biting on the articulating paper he asked her if that “felt good.”
B.P.
71Mr. Mouamer also testified that the person posting online as “Cindy Higgins” actually was the person who attended at his clinic with the first complainant, B.P. B.P. testified the person with her was Etta. However, Mr. Mouamer concluded it was Cindy Higgins based on the small picture accompanying the name Cindy Higgins on the social media posts.
72He unsuccessfully tried to enlarge Cindy Higgins’s social media profile picture. He was unable to provide any further information to support his claim that the person identified in the social media postings as Cindy Higgins is the person who came to his office with B.P. He did not agree with the suggestion of Crown counsel that the nature of the complaint made by A.P. to the police in 2015 and the complaint of B.P. in 2017 were very similar:
Q. It’s a very simple question. The question is, AP makes a complaint in 2015 …
A. Okay.
Q. … saying almost the same, saying your actions are almost the same of the actions that B.P. said occurred in 2017. Do you agree that those two women are saying basically the same thing about your actions, or not?
A. I do not.
73He based this on the different service he was providing (i.e. one was for an overbite). He later conceded that while the nature of the complaints were similar, he did not find that they were similar because nothing occurred.
74He testified that the person who attended with B.P. was Cindy Higgins and her behaviour in his office was erratic because she was looking around. He believed in that instance he was being “set up”:
Q. You believe you were set-up?
A. I believe in that instance I was, yes.
75He was then asked if the other complainants were also part of the set up, and what he believed. His response was as follows:
A. I believe because in my opinion this all occurred in the height of the “Me Too” movement. You know, fueled by the social media driven accusations and the – in the comments which then, and then every single report after the first alleged incident then just fueled the rest of them saying – saying there could be more, there could be more. Call Crimestoppers. And on the same article, I believe in the Windsor Star, it says three times that there could be more, there could be more. The, I mean, that’s like fueling and I believe that itself can fuel people to come forward. I mean it’s just – it’s just – it’s cynical. I don’t believe that that even occurred, and I believe it’s, to me, I believe the reason why they’re coming forward is that’s one of the fueled by media-driven. And I believe there’s a monetary compensation they’re looking for. I believe there’s racism and prejudice. Are they looking for attention, or empowerment? I don’t know why this is, why this occurred. I’m telling you, that’s why I believe this was all something not to my, I don’t know why this occurred.
76There was no evidence from either Cindy Higgins or Etta Ferragatto called in this matter.
General Questions on Cross-Examination of Mr. Mouamer
77In cross-examination, Mr. Mouamer acknowledged that he agreed with literature from the College as follows:
If a practitioner is going to be touching a patient, the practitioner should describe what the patient should expect.
The practitioner/patient relationship is based on trust.
The practitioner/patient relationship involves a power imbalance in favour of the denturist.
The patient comes to the practitioner in a position of need.
78He was also referred to this statement from the College:
The practitioner will usually have to touch the patient’s body which involves intimacy and vulnerability.
79He responded that he was not familiar with that statement in the handbook and expressed a lack of understanding of the context of that statement.
80He also agreed with the following statement:
The power of the patient to control their body and their health care requires that the patient provide informed consent for all care decisions. This includes the practitioner asking questions and touching of a patient.
81He also agreed it is the practitioner’s responsibility to keep professional boundaries and the patient is not responsible for that.
82He also agreed all clinical touching must be explained first and the patient should always give their consent before touching begins. There must be informed consent.
83He was asked if he touched all of his patients in the mouth. He responded that he could not give a precise answer. He mentioned that he did not touch complainant M.B. in the mouth.
84He was asked if he took all of the patients to the mirror at his request other than M.B. and B.P. He stated, “I cannot recall. It’s been so long ago, I – I don’t recall ….”
85He also indicated he did not write anything down about these interactions after he was charged. He did look at his patient’s record charts after the charges were laid.
86He denied ever being behind any of the complainants when they stood at the mirror. He stated he was always beside them. He was then asked the following question:
Q. Can you tell us which women you were beside while at the, while the woman faced the mirror?
A. I can’t give you that answer. It could be a number of them, it could be a few. I can’t give you that answer.
87He was also asked about details of the alleged incidents being set out in the media. He was asked if there were details in the media that were not in the various reports before the court.
88More specifically, he was asked the following series of questions:
Mr. Kavanaugh: Q. But my question was are there details included in the media reports that are not included in the media reports that are before this court as exhibits? Are you aware of media reports with other details than what we have looked at in this trial?
A. Yes.
Q. Have you yourself viewed such media reports?
A. I, to my recollection, yes.
Q. And what are the details that you say are in those media reports that are not in the reports before the court?
A. I cannot tell you that.
Q. Pardon me?
A. I can’t give you that. I don’t recall what those details are. I – I, that’s been some time ago and when you’re going through trauma like this, these are – these are things that are, that you’ve read, but you don’t remember all the details. But I do know for a fact that I did read others.
Evidence of Marie Marcuzzi
89As I indicated, Ms. Marcuzzi is the sister of the accused and worked part-time in his clinic. C.G. #1 had received permission to leave her business cards on the reception counter in the waiting room of Mr. Mouamer’s office. There were cards for other businesses there as well. Ms. Marcuzzi took copies of cards from the complainant, C.G. #1. These cards were for products sold by “Scentsy” fragrances.
90After attending the preliminary hearing in this matter, Mr. Marcuzzi recognized K.G. as one of the complainants and brought this information to the attention of defence counsel. She also confirmed that in 2015, she never received a call from the Windsor Police regarding A.P. She did return money to A.P. but did not have any information other than she did not like her dentures. That occurred on April 21, 2015.
91A.P.’s daughter came to pick up the cheque. She noticed the name of the daughter (L.P.) in the social media comments in 2017.
92When the cheque was picked up, the daughter made no comment regarding her brother’s behaviour towards the mother of L.P.
93Mr. Mouamer continued to receive referrals from dentists after being charged. Indeed, prior to shutting down his practice in 2019 because the landlord dentist needed the space for his son, he had his best financial year ever. Ms. Marcuzzi also discussed interactions she had with some of the complainants as follows:
M.B. – She came in near closing and Mr. Mouamer fixed her denture for no charge.
J.M. – Present for at least one of her visits. There were no complaints.
K.C. – She had an issue with insurance not being sent in on time. Ms. Marcuzzi stated that could not have happened because she never held back paperwork. When asked if it was possible that she did not send out the paperwork, she indicated she did not recall.
Evidence of the Complainants
i) Evidence of T.F. (Count 3 and 4)
94T.F. visited Mr. Mouamer seven times in 2017 – one time per month – for his services as a denturist. T.F.’s teeth had rotted as a result of chemotherapy treatment for cancer. Consequently, she needed inserts to be able to chew.
95She acknowledged that she knew the denturist as “Mario” but did not know his last name, or the name of the clinic.
96During the first visit, as she was explaining what she needed, Mr. Mouamer asked her to get up from the chair and go to the mirror. He put on purple gloves, stood up behind her, adjusted her position, and pushed her forward. T.F. noted that Mr. Mouamer placed one hand on her stomach and the other on her lower back to adjust her position forward on the sink. After he pushed her forward, he stood behind her, moved his head above her right shoulder, and was grinding on her backside, her butt. When asked to explain what grinding meant, T.F. noted his crotch area was on her behind as he was opening up her mouth and he was rubbing that up against her behind.
97During the second visit, instead of using his hands to position T.F. in front of the mirror, Mr. Mouamer weighed his body in to push her to the sink and the vanity. In referencing his body, she explained he used his chest and his stomach, which were against her back, and his groin area, which was against her buttocks. T.F. noted that before he placed his fingers into her mouth, she felt his hands come down between his crotch area and he adjusted his penis and so forth and put it between the cheeks of her butt and then rubbed himself. He, then, proceeded to use his hip area to grind into her.
98She testified that the actions of Mr. Mouamer physically hurt her because of her size, frailty and health.
99When T.F. tried to move away, he applied more pressure, brought her back to the sink, squeezed her there, and proceeded to grind with pressure. She felt pain in her hip bone and pelvic bone, but he stuck his hands into her mouth and was discussing her teeth. After leaving the office, she informed her sister that she thought she had just been violated.
100During the remaining visits, T.F.’s sister accompanied her inside the examination room, as opposed to staying in the waiting room like she did in the second visit. During those visits, Mr. Mouamer used a handheld mirror as opposed to the vanity mirror, near the sink and counter, to explain his services.
101T.F. heard about the allegations against Mr. Mouamer on the radio. The next day, she went to the police station and gave a statement.
102T.F. was questioned extensively regarding the fact that after she reported her situation to the Windsor Police, she disobeyed the police instructions to her to no longer associate with Mr. Mouamer. She attended at his office to pay for, and pick up, her dentures. She took advantage of his vulnerable position by paying less than full price for the work he performed.
103It was suggested to her that if she was actually hurting she could have spoken up.
104As well, she changed her story in a number of respects. She never told the police she was in pain. She shortened the time he was grinding into her from five to seven minutes at the preliminary hearing to four minutes at trial.
105In cross-examination, T.F. confirmed that after her first visit she brought her sister because she needed a ride. With respect to the grinding on the first visit, she stated as follows:
…because of the first visit when he initially grinded up against me, I didn’t, I thought it was weird but I thought because of his height and so forth, having to come over, put his hands over my shoulders to open up my mouth.
106She was questioned at length regarding the sink. In the end, it was put to her she was confused about that because the incident did not occur. She responded as follows:
A. Oh, okay, respond okay. Any which way you look at it, the incident happened. The sink, there is a sink. It’s not like there isn’t a sink, but yes, I was pressed up against the counter, forced in, to look into that mirror while his penis was in between my butt. I am not – that happened. Just because the sink is maybe a little bit further off to the right, the sink’s still there. The mirror’s there and the counter’s there.
ii) Evidence of M.B. (Count 11)
107In 2016, M.B. broke her denture in half, and she needed it repaired as soon as possible. After arriving at the office and waiting for Mr. Mouamer to finish up with a patient, M.B. entered the patient room and sat in the chair. She explained to Mr. Mouamer that her denture broke in half. She asked for implants instead of a new denture. Mr. Mouamer stated that he could do a bridge. In his response to M.B.’s inquiry on what a bridge was, he asked her to proceed to the mirror to explain. As she stood in front of the mirror, Mr. Mouamer bent her in front of the mirror and placed his two fingers to her mouth and pulled sideways to show her what a bridge was. She noted that he tried to dry hump her from behind.
108When asked to explain what dry humping meant, M.B. replied that it meant thrusting his penis into her bottom. When asked, she noted that there was a force to the thrusting motion. When asked about the condition of the accused’s penis, and how she could feel it, she replied that it felt like it was getting erect. She testified when it started to feel uncomfortable with his penis in her buttocks, she stood upright but he returned her to the position and continued to grind into her with his finger in her mouth.
109She broke away again after less than a minute and eventually left his office.
110M.B. had told her parents and brother about the incident. She stated that she did not report the incident to the police in 2016 because she was apprehensive and a bit nervous about going because she did not know if she had enough evidence against him for what happened.
111In cross-examination, she testified that she was having some memory problems at the time she testified because of a medication called Citalopram but that her memory of the incident has not been affected.
112She could not recall whether she learned that Mr. Mouamer had been charged or her mother told her that fact. She agreed she had left her phone number with Mr. Mouamer for a follow-up appointment but never heard from him again.
iii) Evidence of R.C. (Count #14)
113In 2015, R.C. needed the services of a denturist because she broke her tooth on the partial denture she wears. Her dentist, Dr. Paonessa, made a referral to two denturists, but only Mr. Mouamer replied. R.C. went to Mr. Mouamer’s office twice. She went once to drop off her partial denture and then returned to pick it up. When she dropped off her partial, she was sitting in the chair in the examination room, and Mr. Mouamer touched her shoulder. Because she felt uncomfortable, she asked her boyfriend to accompany her when she picked up her partials.
114When she picked up her partials, she proceeded to the examination room and sat down in the chair. They then proceeded to the mirror to adjust the partial and to see if it fit. Then, Mr. Mouamer pressed his penis on her lower back. She explained that she just felt like this pressure against my back and it was like a lump. This lasted a few minutes.
115She remembered that she dropped off her partial denture for repair on February 12, 2015, at approximately 11:00 a.m. She went back at approximately 5:00 p.m. to pick it up. She was told by Mr. Mouamer to return then. She paid for the work, but received the same amount ($120) via a claim with Green Shield, her provider.
116She kept telling him the fit was fine because she wanted to get out of there because she felt uncomfortable. Her boyfriend was in the lobby out of view.
117R.C. did not report the incident right away. She noted that she was under a lot of pressure at the time, as she had just buried her mother. R.C. heard about the allegations against Mr. Mouamer on the radio and read it in the Windsor Star. A week later, she decided to go to the police. She waited a week because she had had surgery a day after hearing the news on the radio.
118In cross-examination, it is suggested to her that she could not remember the specifics of the date of the visit because she initially indicated it was a sunny summer day but her receipt is from February 2015. She provided fewer details at the trial than at the preliminary hearing with respect to the nature of the touching that occurred when she attended in the morning. She could not recall who placed the dentures in her mouth and her description of the room differed from the photographs in exhibit at the trial.
119It was suggested she was “presuming” it was Mr. Mouamer’s penis due to the location of the touching.
120Finally, she acknowledged she read some of the online comments before she went to the police but made no postings herself.
iv) Evidence of K.C. (Count #12)
121K.C. required the services of a denturist in January of 2014 for a denture repair. She attended at Precision Bite – Mr. Mouamer’s denturist clinic. She had been referred by her dentist. She returned in March of 2014 for new dentures.
122She described the office space, including the counter behind the dental chair in what she described was the fitting room.
123The complainant brought bank records with her. After she testified at the preliminary hearing, she was not sure of the dates she attended the clinic so she asked her bank for her payment records. On the first visit Mr. Mouamer made an impression of her dentures. She then returned for a fitting.
124He asked her to get up and out of the chair to go to the mirror to see how they looked. She faced the mirror on the wall. Mr. Mouamer was standing behind her. He was putting his fingers into her mouth to lift her lips to show the dentures.
125She could feel him pushing himself up her backside. She indicated it made her feel uncomfortable. She described further as Mr. Mouamer pushing his penis into her backside.
126He would make her lean forward to be closer to the mirror with his fingers in her mouth and push forward. At that time, her hands were on the counter. This occurred when he checked for the colour of the dentures and again for the fitting. The incidents lasted for five minutes, or perhaps a bit longer. It ended when he was done with his examination. He said nothing to her during these incidents.
127There was no incident when she went for the repair. The conduct only started when she went to have dentures made. She returned to see him even though the incidents occurred because she had already paid for the dentures. She indicated she wanted it done because she hated going there. She testified she mentioned what happened to a friend. However, she did not come forward until she saw the news in the paper on her phone. She went to the police about a week later. She had called the police first.
128On cross-examination, she confirmed that she only read about the incident in the paper after a friend told her that it had been reported. She was cross-examined extensively regarding her inability to collect reimbursement for the second portion of her payments to Mr. Mouamer because she had turned 65 when the last service was performed. K.C. alleged that it was tardiness in submitting her claim that resulted in her not being compensated. However, she did not produce any documentation from her insurance company in this respect.
129She questioned herself as to whether she had been sexually assaulted. She estimated at the preliminary hearing that the pushing of his groin into her buttocks lasted ten minutes but at trial reduced this estimate to five minutes. She also acknowledged that while she had been sexually assaulted when she attended for impressions, that would not have occurred then because she would have been seated in the chair for that function. She confirmed that notwithstanding that she had been sexually assaulted, she repeatedly returned for further services because, as she stated, “because I had paid out of pocket for this – for this to be done and I just wanted it done and then I would never bother him or go back again.”
v) Evidence of A.F. (Count #13)
130In 2017, A.F. visited Mr. Mouamer three times relating to her “overbite” problem. The first visit was short – approximately 20 minutes to go over the procedure.
131On the second visit, Mr. Mouamer asked A.F. to move from the chair to the mirror to explain to her the procedure to get her teeth repaired. Mr. Mouamer was standing behind her, with his chest to her back, and he was touching her mouth. A.F. noted that Mr. Mouamer was moving from side to side and rubbing his penis on her buttocks. When she felt uncomfortable, she moved away and walked back to the chair. However, Mr. Mouamer kept explaining the procedure. She left the office and called her mom because she felt “violated and scared.”
132On the third visit, A.F. and her mom went to the office. Her mother remained in the waiting room. There was no door into the room where A.F. and Mr. Mouamer were situated. He explained the metal plates on the dentures.
133A.F. only reported the incident after she read the news asking for others with similar experiences. She explained she did not report before because she felt ashamed. She was scared. She just wanted to forget about what occurred and she did not want to remember.
134Mr. Mouamer places significant weight on the fact that A.F. learned he had been charged, she then went to his office to obtain a refund. She then went to the police to report that she had been sexually assaulted by Mr. Mouamer.
vi) Evidence of C.G. #1 (Counts #6 and #7)
135I start by noting that the names of C.G. #1 and C.G. #2 are not the same, nor are they related. They are two complainants with names having the same first two letters on both their given names and surnames. As noted earlier, I have not considered the evidence of C.G. #2.
136In 2015, C.G. #1 needed the services of a denturist because she was missing teeth in the front and back. She needed work on her top plate and then her bottom plate.
137She attended at Mr. Mouamer’s office for denturist services. One day she was there for two and a half hours trying to get a plate to fit. Her son was waiting for her outside in the car.
138While this was occurring, she was standing at the mirror in the room because Mr. Mouamer told her to do so. She is 5’ 10” and is taller than Mr. Mouamer. He was standing behind her and working on getting the bite correct.
139He lifted her skirt an inch or two and she could feel his “manhood”. She said to herself, “No, this – no.” She did not want to think that is what it was. That is, his penis on her buttocks. His penis was erect.
140While this was occurring, her hands were on the counter. He had articulating paper in her mouth taking bites. The checking of her dentures went on so long her mouth got very sore.
141She came back two to three weeks later. This time she was wearing a floor length dress. Again, he rubbed his penis up against her buttocks but for a shorter time. She told him her mouth was sore.
142She paid him $1,000 and left. She never went back. He did not lift her dress on the second instance. She tried hard to believe these incidents did not happen. She also added as follows: “I was embarrassed that I – that it had happened, and I didn’t want to tell anybody about it at the moment. I was just very nervous and very scared.”
143She did not report the incidents until 2017. She was at work on a break and was scrolling Facebook on her phone when she saw a posting on either the Windsor Star or the Windsor Police site about Mr. Mouamer. She dropped her phone when she read this. She decided she had to call the police. She told her family at that time as well.
144Invoices for her at Precision Bite Dental dated December 31, 2015, February 20, 2016, and May 11, 2016, were entered into exhibit.
145In cross-examination, it was put to her that she visited Mr. Mouamer’s clinic on 13 occasions over an 18-month period. She modified the time she said her son waited in the car for her on the first incident from two and a half hours to one hour. She provided Scentsy calling cards and brochures that were from her daughter and get Mr. Mouamer’s permission to leave them on the counter in his office with business cards for other clients. At one point, she also gave her daughter’s phone number to Mr. Mouamer as they both played volleyball.
146In her testimony, she changed the estimate of the length of his lab coat went nowhere near his knees. She also modified her description of his movements while behind her. At the preliminary hearing she stated they were neither fast nor slow but “medium”. At trial, she said they were slow but then her preliminary hearing testimony was put to her she ultimately accepted that the movements were medium.
vii) Evidence of JM (Counts #16 and #17)
147In 2015, J.M. had a broken tooth on her dentures, so she looked in the phonebook for a denturist in the Windsor area. At the end of July 2015, she visited Mr. Mouamer at his aforementioned office at the intersection of Tecumseh Road and Pillette Road in Windsor, ON. She visited the office five times.
148J.M. was having a mold for her teeth made. Mr. Mouamer was checking her bite to see how it fit. He asked her to stand in front of the mirror at the counter, as he stood behind her. He asked her to lean into the mirror. He was holding what she described was bite paper. She described it was like an ink paper that you bite down on and it shows what your bite it. He asked her to bite down.
149As she was biting down on the paper, which he was holding in her mouth, the accused was thrusting into her with his hands placed on her shoulders. When asked to explain “thrusting,” J.M. noted that as he was asking her to learn forward towards the mirror, the bottom half of his body was pressed, thrusting into her – his groin was making contact with her rear side.
150She testified the accused had exhibited similar behaviour with her on two other occasions. J.M. saw a post about similar allegations against Mr. Mouamer on a Facebook post by the Windsor Star. She noted that she made a comment only expressing that she knew what the complainant felt like because she had experienced a similar incident with Mr. Mouamer.
151J.M. testified that she did not initially believe that she had been sexually assaulted when Mr. Mouamer’s groin area came into contact with her buttocks. She acknowledged that she did not come forward until she read the media reports.
152In cross-examination, she agreed that notwithstanding his actions, she came back on six occasions for further denturist services. Her evidence did change with respect to whether or not his penis was erect. She testified at the preliminary hearing that his penis was out of his pants but did not state that at trial.
153In cross-examination, she was questioned repeatedly about the actus reus of the incident. While the time she estimated the incident of what she called “thrusting/grinding” with his penis was five to ten minutes when she testified at the preliminary hearing, at trial she estimated the time to be two to three minutes. She testified to this occurring on two occasions.
viii) Evidence of A.P. (Count #9)
154A.P. commenced her testimony on February 25, 2020. Towards the end of her examination-in-chief, defence counsel suggested that perhaps an interpreter would be useful. After just a few questions in cross-examination, defence counsel suggested again that an interpreter would be required. A Croatian/Serbian/Bosnian interpreter was present when she continued cross-examination on February 26, 27 and 28, 2020.
155In late 2014 and into early 2015, A.P. needed the services of a denturist to repair a hook on her bottom denture that was broken – it moved up and down when she talked. She found her way to the office of the accused. She lived near his office and had noticed the sign. She visited him a number of times. He built her a new partial denture. Her last visit was on March 23, 2015.
156On the afternoon of March 22, 2015, A.P. called Mr. Mouamer’s office to tell him she was having difficulty with the partial. He told her to come in the next day. When she attended on March 23, 2015, he took her partial denture and went into what she called the “other room.” He was wearing scrubs and a short sleeve shirt.
157He brought her the partial again, but it was still moving when she talked – she told him that. She was seated then. He then told her to get up and go to the mirror and to face it. He then put the black paper in her mouth and told her to “tap” her teeth repeatedly. As he was doing this, he got closer to her, behind her back. He got so close he was touching her behind. He then asked her to “bend a little bit.” She did that and then he put his penis between her bum. When this was happening, her hands were on the counter in front of the mirror. When she saw what was happening, she took the paper from her mouth, turned around and said, “Mario, what you doing? You sexually assaulting me?” He replied, “No, that’s not what I’m doing.” She stated “So, what’s that look like, the, what you doing? You touching me, my bum, between my bum.” She described it as him touching her all the way and pushing his penis in her ass. This did not last long because she turned around shortly after his penis came into contact with her buttocks.
158Once she accused him of sexually assaulting her, he backed away from her. She left and never returned to his office. She sent her husband and her friend to get her denture back. She initially only told her husband and daughters about what happened. One daughter had the same last name. Her initials are L.P. She also used the name with the initials L.B. around that time. The other daughter’s name had the initials C.P.
159After speaking to her family, she contacted the police the next day. She ended up speaking with a detective a few days later.
160In 2017, she heard on the radio (AM800 (CKLW)) that Mr. Mouamer had been charged with sexual assault. As a result, her daughter, C.P., called the police. Eventually she met with, and gave a statement to, the police.
161A.P. was cross-examined thoroughly and extensively on a number of points. At times, there was confusion. Some of the confusion was caused by issues with the interpretation from English to Croatian. Some of the confusion was the product of the defence asking compound questions. While many of those questions would have been proper if they had been asked and answered in English by a witness who fully understood and spoke English, this witness did not.
162A number of areas were thoroughly explored. It was put to the witness that, contrary to her evidence in-chief that she never returned to Mr. Mouamer’s office after she was sexually assaulted on March 23, 2015, she did in fact return on April 7, 2015. She denied this. She insisted her husband and her friend attended to get her dentures back.
163There was considerable questioning that she was more concerned about getting her dentures back and then getting a refund than she was about complaining about the sexual assault. It was also put to her repeatedly that she was advised by the police that they could not help her get her money back, but she could report Mr. Mouamer to the College. She acknowledged that she had been given this advice, but she did not file a complaint.
164After the 2015 incident, she did not pursue the complaint because in her mind she asked herself, “who would believe me, older lady, that young man would do something like that?” Other than getting her dentures back and eventually a money order for her refund, she made no other complaint after she initially spoke to the police in 2015 until she heard via social media that Mr. Mouamer had been charged.
165She denied that she had been in front of the mirror before the date she was allegedly sexually assaulted. She did change some portions of her story. In one instance, she stated her hand was on the sink contained within the counter. At trial, she indicated her hand was on the counter.
166She was cross-examined at great length about the alleged incident. At the preliminary hearing, she stated the incident of him rubbing his penis against her lasted five minutes. At trial it was two to three minutes. She indicated she turned around and accused him of sexual assault when his penis was into her ass. She was challenged how the incident could have lasted two to three minutes if she turned around and had what A.P. termed the “black” paper removed immediately and accused him of sexual assault. She eventually explained that while he was behind her with one hand on her hip and the other holding the paper in her mouth, it was not until his penis went into her bum that she recoiled.
167There was also an issue with respect to whether she told Mr. Mouamer when she called him following the alleged incident on March 23, 2015, that she had reported him to the police for sexual assault. A.P. initially did not state she did this, but then testified that is what happened.
168A.P. was questioned about whether she observed the mirror in the examining room. Pictures of the room from 2017 were put to the witness. She denied the suggestion from defence counsel that he was never behind her, only to her side.
169She replied that he moved closer and closer to her starting from her left side. He moved little by little behind her back. She denied the suggestion that she never used the words “sexual assault.”
170She was also questioned about why she contacted Mr. Mouamer after Detective Cribley instructed her not to do so in 2015. Her response was that she needed another pair of dentures. She did not know if Green Shield would help, and she needed the refund.
171She was questioned why, if she was afraid of him, she would have contacted him after being told not to by the police. Her response was that she was not afraid of him in the beginning but was after the incident. He suggested it never happened and if it had, she would have reported him to the College at a minimum.
ix) Evidence of B.P. (Count #8)
172B.P. has required the use of a denturist at points in her life. She had her dentures made by a denturist in Belle River. She had also attended another denturist in South Windsor because of a crack in the bottom denture and required denturist services. In the instance giving rise to these charges, she required a repair to a cracked upper denture.
173At the time she testified, she was 58 years of age. She attended at the office of Mr. Mouamer on June 18, 2017. She remembered the date specifically because it is her brother’s birthday.
174She was required to work later that day. She called her friend, Etta Ferragatto, to ask if she knew the name of a denturist. She was recommended to the office of the accused. It was the first time she attended his office.
175B.P. drove to Etta’s and picked her up and then attended Mr. Mouamer’s office at the intersection of Tecumseh Road and Pillette Road around 11:30 a.m. When she entered, he was behind the receptionist’s desk. She spoke with Mr. Mouamer. She had some difficulty saying his name accurately but was able to identify him in court. She inquired if she could get the denture fixed because she had to be at work in Belle River by 4:00 p.m. – she worked at a community living facility. She hoped to get the repaired denture by 3:00 p.m.
176She was with him for five to six minutes. He indicated to her that he had two house calls and was very busy. He took down her phone number and told her he would do his best to fix it. He asked her for her cell number and inquired if she could call and advise she would be 15 minutes late.
177She returned to his office at 3:00 p.m. She returned alone because her friend had to go to work. When she arrived at 3:00 p.m., there was another woman present. She was elderly and was in the treatment area. B.P. sat in the waiting area. There was no one else present.
178When Mr. Mouamer was finished with the older woman and that person had left, Mr. Mouamer directed B.P. to go into the room and onto the dentist chair. While she was waiting there, Mr. Mouamer was in the other room, and she could hear grinding and drilling noises. She assumed he was working on her denture.
179When he came into the room, he asked her to stand up and he put the denture in her mouth. It did not fit right. He told her it was because of her overbite. He then asked her to stand up. He put the plate in her mouth while wearing gloves and asked her to go over to the mirror at the counter. He told her he wanted her to look in the mirror because of her overbite.
180Once at the mirror, he told her to lean forward and to open and close her mouth while facing the mirror. The accused was standing behind her. She believed her hands were on the counter.
181He kept telling her to get closer to the mirror. While this occurred, he was standing right against her from behind. While he was telling her to open and close her mouth, he was rubbing his erect penis against her buttocks.
182She froze at first thinking “this is not happening.” She did not move. He was moving. His hands did not touch her. He was repeating “open, close, see the overbite.” It seemed like it took forever but it was about 20 times he said “open/close.”
183When it ended, he indicated he could do a whole new plate for her. They went to the front desk where he gave her a checklist. He told her she looked good for her age.
184She was presented with, and identified, a receipt for the services. She then left the office. It was 3:20 p.m.
185She went right to work in Belle River. While at work, she spoke to a co-worker about what occurred and then spoke to the police at around 4:20 p.m. She then left work at approximately 5:00 p.m. after a staff person came into work to replace her.
186Eventually, the police showed up at her residence and she was interviewed. She remembers that there was a detective and two officers.
187In addition to giving a statement that evening, she also stayed at her friend Etta’s because she was scared. She took a week off work. She attended at the police station and gave a second statement three days later. That was a recorded statement under oath given on June 22, 2017. At no time did she consent to Mr. Mouamer touching her as he did.
188In cross-examination, she was asked extensively about Etta Ferragatto and a person named Cindy Higgins. It was put to her that Cindy Higgins was one of her best friends. She denied that, and stated Cindy Higgins was an acquaintance. Cindy Higgins was a friend of hers on Facebook. It was put to B.P. that between the time she made her initial complaint to the police and when she went to give a recorded statement under oath at the police station, she had looked at Facebook. She responded that her daughter had told her there were comments on Facebook. She confirmed that she had seen information in the media on June 21, 2017, relating to Cindy Higgins. Specifically, what she was referred to was as follows:
Cindy Higgins: “He is a denturist.”
Chang Cappo: “I know Mario very well and for him to actually force himself onto a woman is not something he would do.”
Cindy Higgins: “You obviously do not know your sexual predator friend very well, then. The police arrest him just on the details my friend provided.”
Cindy Higgins also stated:
Cindy Higgins: “Katie it was girlfriend on Monday that was assaulted. He is a creep. It doesn’t matter that you are high or drunk, he has no right. I hope you and others have the courage and strength to report the abuse to the authorities so as to make sure he cannot practice anymore and damage our citizens. I think he isn’t a Canadian citizen. So if there is enough complaints, he would be deported.”
189B.P. acknowledged reading this but stated she was not in communication with Cindy Higgins and had no control over what people say on Facebook.
190It was suggested to her that she or her daughter had spoken to Cindy Higgins because of the detail relating to Monday, June 19, 2017.
191It was put to her that while her brother’s birthday may be June 18, her attendance at Mr. Mouamer’s office and her initial statement that evening occurred on Monday, June 19, 2017.
192It was also put to her that she had an argument at work before she left on June 19, 2017. That co-worker was named Selena. She was an acquaintance of Mr. Mouamer.
193She also told the police on June 22, 2017, that Mr. Mouamer had dark skin.
194With respect to Facebook, she told the police, as follows: “Yeah, because those girls put on Facebook, they’re so glad that this woman come forward and how she gave them strength.”
195The police officer praised her and confirmed she gave the others the strength to come forward. The officer told her it was best that she “lay off” social media. She also confirmed that she received a letter indicating she could be eligible for financial reimbursement for therapy. She never followed up with counselling.
196It was strongly suggested to her in cross-examination that she actually attended at Mr. Mouamer’s office at 2:45 p.m., not 3:00 p.m. as she had testified in-chief.
197It was also confirmed that after the sexual assault occurred, she remained in the office completing the necessary Green Shield paperwork. It was put to her that during that time she had a discussion with him about a baby in her family sphere that had Down Syndrome. She was also asked to clarify if he was “humping” her or “grinding” her. She stated that to her, they were the same thing.
198She was also questioned whether she involved her friend Etta in the Facebook dialogue that was ongoing before June 22, 2017.
199She confirmed that there was never any sex talk by Mr. Mouamer, nor did he ever ask her for a photograph. However, she insisted he complemented her on her looks.
200She could not estimate the amount of time he was in contact with her because she was in shock. She took no reflexive action to move away or tell him she was uncomfortable. She denied that Mr. Mouamer was by her side when she was looking in the mirror and he was telling her to open and close her mouth repeatedly.
201She was questioned as to how she knew his penis was erect and whether it could have been one of the tools he kept in his lab pocket. She answered as follows:
Q. Okay. Fair enough. So what – best you can say is that you felt – you didn’t see it, but you felt something hard and you believe that now to be an erection after you left?
A. Yes, because it wasn’t hard at the first when he was behind me, telling me to open and close.
x) Evidence of J.B. (Count #5)
202J.B. first needed the services of a denturist in 2014 or 2015. She visited Mr. Mouamer in his office on a number of occasions – more than five. She was referred by her dentist, Dr. Paonessa.
203She had an issue with a tooth and he made her a partial denture. Getting that made took several visits and she had a good experience.
204Eventually, she needed a repair to her partial denture. However, she lost the partial before she got it repaired.
205At that time, she was in receipt of Ontario Disability Benefits. She had to apply for funding but was denied. She was prepared to get money from her family to pay for a new partial.
206J.B. went to Mr. Mouamer’s office. It was approximately 2015. She attended all occasions by herself. He was the only person in the office. It was always that way. She was in the same room whenever she visited the office. It was the room depicted in the photographs (Exhibits 1a, 1b and 1c). The room looked mostly familiar to her from the pictures.
207At the time she visited, she was not in a good state of mental health. She was struggling with depression and mental health issues. She had just lost her grandfather and her grandmother was not well. Her grandmother passed away sometime after that.
208At the time of her visit, she described herself as manic, distraught, and emotional. She was under the care of a psychiatrist and had to check in with him daily.
209On the day in issue, she went into the examining room. She started to sit in the dental chair, but he asked her to stand.
210He then had her turn around and face the mirror on the wall. The mirror was above a ledge. She could put her arms on the ledge and lean over.
211Then something she described as unusual happened. He started asking her to open and close her mouth several times. He stood behind her, put one finger from each hand into her mouth and asked her to open and close her mouth. She had never been examined in this manner before. Next, she felt his penis behind her on her bottom. He used one hand to adjust his penis. She could see the outline of his penis through his medical scrub pants. She could clearly feel his erect penis over top of her clothing. He was rubbing on her. She was watching in the mirror and could see him behind her. She described it more specifically as follows:
A. And I seen him take his hand down, adjust his penis, pull his penis in an upwards position and then he rubbed it right into my bottom and he was bumping into my bottom with his penis.
212His penis remained in his pants. He adjusted his penis by his hands outside his loose scrub pants. At all other times, a finger from each hand was in the corners of her mouth. She wondered why she was leaning over the counter while this occurred because in her mind that had nothing to do with the examination.
213Of her various visits, this was the only time she was not in the dental chair.
214He “dry humped” like this for five or six minutes. She did not say anything. She never consented to this activity.
215After this incident, she never returned. A family member found her another denturist to obtain the partial denture and paid for it.
216Following the incident, she spoke to a community worker about what happened. The community worker encouraged her to report it, but she did not at that time. Part of the reason she did not was because she was very upset and angry with the Windsor Police Services at that time.
217A couple of years later she became aware of the fact that he had been charged through the Windsor Star online on her cell phone.
218When she read about the situation in the Windsor Star, she thought karma had happened. When she read the articles from the Windsor Star and CTV News, it confirmed for her that she had been sexually assaulted even though she had not characterized it at that time as sexual assault. She felt victimized.
219She had not labelled it as anything before reading the news. She was embarrassed and humiliated. Once she read about the situation, she made some comments on social media for the first time. One of the comments praised the person who came forward. The second criticized Mr. Mouamer by stating “what goes around comes around ha ha.”
220Within ten minutes of learning about this, J.B. contacted her community worker, Emily D’Alimonte. Within a week or so, she went to the police. Ms. D’Alimonte offered to go to the police station with her. It was convenient for her to go to the police station because she had an ongoing family court matter in the same building.
221On the date in question, J.B. walked into the Windsor Police headquarters to tell him what happened. Eventually she provided a video statement under oath.
222On cross-examination, she confirmed that if she had not read about Mr. Mouamer on social media, she would not have ever come forward. She used a different name on social media. The initials for that name were J.W. (her maiden name). Her account actually listed her as J.W.(B).
223The Windsor Star article made her come forward. While she read all of the comments, those did not make her come forward.
224She agreed with defence counsel that she was pleased with the quality of the work he performed. She told the police she wanted Mr. Mouamer to “rot in hell.” She had many things going on in her life at that time.
225It was suggested to J.B. that she was never sexually assaulted by Mr. Mouamer. She denied this and stated it did happen.
226In her police interview, J.B. referred to Mr. Mouamer as a “monster”. She never saw a receptionist on any of her visits. She agreed with defence counsel that she was an outspoken and difficult person. However, notwithstanding that, she did not say anything the entire time he was rubbing his penis against her rear; and adjusting his crotch.
227J.B. had some issues with exhibits 1a, 1b and 1c. She indicated what they depicted is different than she remembered. J.B. also disagreed on the clothes Mr. Mouamer was wearing. She insisted he was wearing a V-neck t-shirt without a lab coat. She also stated he was wearing scrubs. She persisted in these answers notwithstanding the fact that defence counsel put to her that he never wore either of those items at his office.
228She acknowledged he wore a lab coat on previous visits. In further cross-examination, she acknowledged that she told the police officer that she wanted to “blow up” his clinic. She indicated that at the time she gave her statement to the police, she was vulnerable and in the worst state of her life. She reemphasized the issues with the poor health of her grandparents. She was homicidal and she wanted to kill someone. She is not like that anymore.
229Following her postings on Facebook, she did get messages from someone named Panack. It was put to her that at the preliminary hearing the dry humping went on for 15 minutes but at trial she stated this occurred over approximately 10 minutes.
230J.B. confirmed that she received funding that she used for counselling. She went to two different counsellors on Roseville Drive, in Windsor. However, she asserted that while this money was paid, she did not get any effective counselling sessions.
Evidence of Officer Peter Tsuchiya
231The investigation in this matter commenced on June 19, 2017. Officer Tsuchiya was working on uniform patrol some time after 20:00 (8:00 p.m.), he and his partner, Constable McLaughlin, were dispatched to attend at a residence in the City of Windsor to meet with an individual named B.P. A third officer, Sergeant Polachuk, was also dispatched as per operating protocol for sex assault allegations.
232During that attendance, the officers took a statement from the witness alleging she had been sexually assaulted by Mr. Mario Mouamer. That statement was taken at approximately 20:31 (8:31 p.m.) that day. The officer formed the opinion there were reasonable grounds to arrest Mr. Mouamer for the offence of sexual assault.
233The officers determined that Mr. Mouamer was on a call at his place of business located at 4742 Tecumseh Road East. He operated a denturist business in a plaza there. They attended at that location at approximately 10:46 p.m.
234They went inside the office after initially speaking with Mr. Mouamer. Officer Tsuchiya described the general layout of the office. He took three photographs of the treatment room. Specifically, the photos were taken of the room, the dental chair, and a counter behind the dental chair. [Exhibits 1a, 1b, and 1c.]
235On cross-examination, Officer Tsuchiya acknowledged that Mr. Mouamer appeared shocked when he was told he was being arrested for an alleged sexual assault.
236He also acknowledged that he had not spoken to Mr. Mouamer on the phone to learn of his whereabouts. After refreshing his memory, he remembered that he and his partner had attended at Mr. Mouamer’s personal residence at 10:32 p.m. and were advised by Mr. Mouamer’s mother that he was at his business.
237He confirmed that he made no notation in his notes that the complainant indicated that the accused was “dry humping” her for four to five minutes.
238I will now summarize some evidence that applies to all of the complainants.
Evidence Regarding Funding Offered to Various Complainants for Therapists
239During the course of this trial, it was disclosed through letter dated January 9, 2019, that the College had written to the Crown Attorney’s office in Windsor, enclosing a letter to be provided to the complainants. The letter advised that there was an investigation underway regarding Mr. Mouamer but that it was on hold pending completion of this criminal trial. The complainants were advised that there was a program available to allow them to receive up to $16,000 in funding for therapy related to the alleged actions of Mr. Mouamer.
240As the College was not aware of the identities of the complainants, the Crown was asked to distribute the letter to them. The letter also included the forms necessary to make a claim.
241The existence of those letters was not disclosed by the Crown to defence counsel until March 4, 2020. This was after several complainants had completed their testimony.
242As a result of this late disclosure, the accused brought a Charter s. 24(1) application due to the late disclosure of these letters seeking a stay of proceedings. As indicated, I ordered that the complainants could be questioned regarding this letter. Those complainants who had previously completed their testimony could be recalled at the option of the accused to be questioned in that respect. The accused exercised that option and required all complainants to return and testify in that regard.
243Two of the complainants availed themselves of the opportunity to receive up to $16,000 for counselling. Both had little or no success receiving effective services. No complainant received any compensation or other monies directly in this respect. None of the complainants were aware of this offer at the time they contacted the Windsor Police Service about this matter.
Pictures
244None of the complainants testified about Mr. Mouamer taking their picture.
Reporting Incident to Dentist
245Some of the complainants were referred by their personal dentist to Mr. Mouamer for denturist services. None of the complainants reported to their dentist that they had been sexually assaulted by Mr. Mouamer.
Criminal Injuries Compensation Fund
246Many of the complainants received written correspondence advising them that they had the ability to apply for relief from the Criminal Injuries Compensation Fund (“the Fund”).
247Only one complainant, J.M., took advantage of the potential to make a claim for criminal injuries compensation. That complainant had moved to Manitoba when she filed her complaint that led to counts #16 and #17 on the indictment. She applied for and received just over $9,000 from the Fund.
248No other complainant applied for, or received, any money from the Fund.
Online Media
249A number of social media communications were put into evidence by the accused.
250A review of the media and social media exhibits in this trial provides the following. The Windsor Star online published an article dated June 21, 2017, entitled, “Police charge denture clinic employee with sex assault”. The headline also indicated the police thought there may be more victims. With respect to the details, the article states, as follows:
A woman called police after visiting Precision Bite Denture Clinic in the 4700 block of Tecumseh Road East earlier that day. She alleged one of the men who works at the clinic touched her inappropriately.
251All of the subsequent media reports in exhibit at this trial referenced the name of the accused, and the name and location of the denturist clinic. With respect to the alleged offences, it was reported that Mr. Mouamer had allegedly “touched a woman inappropriately.”
252There were no further specific factual details provided regarding the nature of the alleged sexual assault.
253The various media outlets that reported on this matter began referencing Crime Stoppers, provided the Crime Stoppers number to call, and invited persons to come forward.
254By June 27, 2019, it was reported that eight additional complainants had come forward.
Social Media
255There were numerous online comments made in respect of this article on June 21 and June 22, 2017. None of the posts specified or explained exactly what the accused allegedly did except to reference sexual assault. There is no reference to the accused positioning clients facing the mirror towards the wall or rubbing his groin area against them.
256Some of the comments debated whether he was a dentist or a denturist. Someone posting as “Jackie Francis” said anyone who has been “assaulted by anyone, and if by this dentist to call crime stoppers or the police.”
257On June 21, 2017, at 9:28 p.m., a person who was referred to as “Chang Cappo” stated as follows: “I know Mario very well and for him to actually FORCE himself onto a woman is not something he would do.”
258A person referenced as Cindy Higgins posted the following on June 21, 2017, at 4:46 a.m.: “You obviously do not know your sexual predator friend very well then! The police arrested him on just cause from the details my friend provided!”
259Then, on June 21, 2017, at 2:54 p.m. Cindy Higgins posted:
Katie, it was my girlfriend on monday that was assaulted. He is a creep! It doesnt matter that you were high or drunk, he has no right! I hope you & the others have the courage & strength to report your abuse to the authorities, so as to make sure he cannot practice any more and damage our citizens! I think that he isnt a Canadian citizen, so if there is enough complaints he would be deported!
260Cindy Higgins posted a third time on June 22, 2017, at 4:47 a.m.: “I know what happened! It was my friend that was assaulted!”
261Some of the postings were made by persons who later went to the police to file complaints and were witnesses at this trial.
262J.M. posted the following the next day: “You don’t know him at all then Chang!” She later went to the police and became one of the complainants.
263At 2:31 p.m. on June 21, 2017, someone posting as L.P. (with the same last name as complainant A.P.) posted the following: “He did this to someone I know also. Finally maybe something will be done.”
264In the questioning of the complainant, A.P., she acknowledged that L.P. was her daughter. Having said that, at no time in the online comments did L.P. specify what allegedly occurred.
265J.B. (aka J.W.) posted once on June 21, 2017, and stated: “Thank you karma! Ha Ha.”
Complainants’ Knowledge of Each Other
266With the exception of the first complainant witness, J.M., each of the other complainants was asked, on a question-by-question basis, whether they knew any of the other complainants. Individually, they each testified that they did not know any of the other complainants. Since J.M. was not asked those specific questions, I do note that each of the other complainants testified they did not know J.M.
Similar Fact Application
267Rule 30.01(b) of the Criminal Proceedings Rules states as follows:
30.01 This rule applies where a party to a proceeding seeks to have evidence admitted that a common law rule or other rule of admissibility renders presumptively inadmissible, including but not only:
(b) evidence of similar acts, whether included as other counts or not;
268Rule 30.02(1) goes on to state:
30.02 (1) An application to admit evidence that a common law or other rule of admissibility renders presumptively inadmissible shall be made to the judge who is scheduled to preside or is presiding in the proceedings in which the evidence is tendered for admission.
General Legal Principles Regarding Similar Fact Application
269At the outset of this trial, the Crown advised the court it intended to make application for a finding of similar fact evidence.
270I will now deal with the Crown’s application to have the evidence of the complainants used as similar fact evidence with respect to each other. The Crown sought a count-to-count application of similar fact evidence. The Crown did not seek to include in the similar fact evidence any extrinsic evidence that is not founded in a complaint charged on the indictment.
271The Crown alleges the description of the alleged sexual assault by the accused with respect to several unconnected women is strikingly similar. As a result, the Crown submits it is objectively improbable and there is no evidence of any collusion by the complainants. The accused submits the application should be dismissed for a number of reasons. Of particular note is the assertion by Mr. Mouamer that there was collusion by various complainants, particularly through social media.
272The general principles are explained in R. v. Nolan, 2019 ONCA 969, 150 O.R. (3d) 647, at para. 35:
The general rule is one of presumptive inadmissibility: evidence of the accused's discreditable conduct is inadmissible, unless that conduct is the subject matter of the charge in question. In multi-count indictments, already admissible evidence can be used only on the count to which it relates. Before that evidence can be used to prove guilt on another count, the Crown should bring an application and the trial judge conduct an admissibility inquiry. In this way, the defence has a meaningful opportunity to respond to the use of the evidence across counts and no prejudice will have occurred (Tsigirlash, at paras. 23-27). [Page references omitted].
273Evidence of general propensity or disposition in a criminal trial is presumptively inadmissible. The rule recognizes that such evidence, although potentially relevant to the ultimate issue of guilt or innocence, poses grave dangers to a fair trial. In R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, the Supreme Court said, at para. 31:
Nobody is charged with having a “general” disposition or propensity for theft or violence or whatever. The exclusion thus generally prohibits character evidence to be used as circumstantial proof of conduct, i.e., to allow an inference from the “similar facts” that the accused has the propensity or disposition to do the type of acts charged and is therefore guilty of the offence.
274Nonetheless, courts have recognized that evidence of prior discreditable conduct “may be so highly relevant and cogent that its probative value in the search for truth outweighs any potential for misuse”: see Handy, para. 41. In order to be admissible, the similarities between the matter in issue in the proposed similar fact evidence must be such that “absent collaboration, it would be an affront to common sense to suggest that the similarities are due to coincidence”: see Handy, para. 41.
275For the evidence to be admissible, the onus is on the Crown to satisfy the trial judge on a balance of probabilities that:
a) the probative value of the similar fact evidence in relation to a particular issue outweighs its potential prejudice and therefore justifies its admission;
b) the similarities or common characteristics between the conduct charged and the similar fact evidence are such that, absent collusion, it would be an affront to common sense to suggest that the similarities were due to coincidence;
c) the strength of the similar fact evidence must outweigh the reasoning prejudice and moral prejudice;
d) the probative value will exceed prejudicial effect where the force of similar circumstances defies coincidence or other innocent explanation; and
e) the inferences sought to be drawn must accord with common sense, intuitive notions of probability and the unlikeliness of coincidence: see Handy, at paras. 41, 42, 47, 50, 51 and 64.
276The probative value of similar fact evidence relates to the proof of a triable issue. The prejudicial effect relates to trial fairness. Probative value and prejudice pull in opposite directions on the issue of whether the similar fact evidence ought to be admitted: see R. v. Gordon, 2018 ONSC 6155.
277To have probative value, similar fact evidence must advance or refute a disputed relevant trial issue derived from the facts alleged and/or a defence that is reasonably anticipated: see Handy, at paras. 73 and 74. The issue of credibility on its own may be too broad a gateway for the admission of similar fact evidence. “Credibility is an issue that pervades most trials, and at its broadest may amount to a decision on guilt or innocence”: see Handy at para. 115. The Supreme Court cautioned that “[i]dentification of credibility as the issue in question may, unless circumscribed, risk the admission of evidence of nothing more than general disposition (“bad personhood”): see Handy, at para. 116. Credibility is an issue in most trials. The question is which of the constituent elements of the offence charged does the credibility issue relate to for which the Crown seeks to introduce similar fact evidence: see Handy, at paras. 115-120; Gordon, at para. 28.
278An issue at trial to which the similar fact evidence may be relevant and probative includes whether the complainant’s account of the abuse is credible and whether the actus reus of the offence charged in fact occurred. In R. v. J.W., 2013 ONCA 89, 302 O.A.C. 205, the Crown appealed the respondent’s acquittal on one count of sexual assault and one count of indecent assault. The question was whether the trial judge erred in excluding similar fact evidence tendered by the Crown. At para. 41, Weiler J.A., speaking for the Court of Appeal, said:
To be admissible, similar fact evidence must be probative of a live issue in the trial. Similar fact evidence will generally be probative where a trier of fact is able to legitimately infer, on the basis of the respondent’s past sexual conduct in closely comparable circumstances, the coincidence is objectively improbable. Thus, in this case, the trial judge correctly found that C.K.’s testimony at the voir dire was relevant to two live issues in this trial: whether J.C.’s account of the abuse was credible, and whether the actus reus of the offences charged had, in fact, occurred.
279In R. v. R.B. (2005), 2005 30693 (ON CA), 77 O.R. (3d) 171 (C.A.), leave to appeal dismissed, 2006 4730 (SCC), the accused appealed from his conviction on 10 counts of sexual abuse of adolescent boys in his care while he ran a foster home with his wife. One of the main issues on the conviction appeal was whether the trial judge erred in admitting the evidence of each complainant as similar fact evidence. On the issue of relevance to a triable issue, the trial judge identified credibility as the issue for which the similar fact evidence was relevant. The trial judge did not have the benefit of the Supreme Court’s decision in Handy. The Court of Appeal found no error and said:
The question to be decided was whether the sexual assaults occurred. The similar fact evidence was probative of the actus reus of the offences, which in turn depended on the credibility of the complainants’ evidence about the assaults. [citations omitted].
280The Crown has argued that the similar fact evidence is relevant to the actus reus of the offences, namely, whether there was sexual contact between the accused and the complainants.
281In assessing the probative value of the similar fact evidence, the issue of collusion must be examined. In Handy, the Supreme Court held that where there is an air of reality to the allegation of collusion, the trial judge, in assessing the admissibility of the similar fact evidence, must be satisfied on a balance of probabilities that the evidence is not the product of concoction.
Similar Fact Analysis
Issue One: Materiality
282The Crown has established that the similar fact evidence relates to relevant trial issues, namely:
(a) credibility of each of the complainants as to whether the events charged occurred; and
(b) the actus reus of the alleged offences.
Issue Two: Probative Value
283The purpose for which the evidence is being adduced is to prove the actus reus of the offence. The probative value of the similar fact evidence depends upon similarities. Rosenberg J., in his article on similar fact evidence said, at p. 10, “the degree of similarity required to give the evidence sufficient probative value to outweigh the prejudicial effect depends on the purpose for which the evidence is adduced”: “Evidence of Similar Acts and Other Extrinsic Misconduct”, in National Criminal Law Program, Criminal Evidence, Vol. 1 (1994). In R. v. Arp, 1998 769 (SCC), [1998] 3 S.C.R. 339, Cory J. said that in the case where the issue is whether a crime was committed, the issue can be put thus:
As a matter of common sense is it against all probability that in light of what the prosecution can show the accused did on other occasions it is a mere coincidence that the complainant is not telling the truth when he or she describes what the accused did on this occasion.
284It is important to note as well that the degree of connection must rise above generic similarities between the proposed count to count similar acts. In R. v. Blake (2003), 2003 13682 (ON CA), 68 O.R. (3d) 75 (C.A.), at paras. 61 and 64, Simmons J.A. held:
In describing the similarities as generic, I mean that the identified similarities describe general, rather than specific, aspects of the conduct and contain limited detail, with the result that the identified similarities are likely to be present in most incidents of sexual touching involving children.
The risk in relying primarily on generic similarities to support an inference that the actus reus occurred is twofold. One, the initial inference arising from the prior conduct becomes so general, that it approaches bad personhood. Two, because of their non-specific character, generic similarities may mask underlying dissimilarities that could be important in a particular case.
285More specifically, the following non-exhaustive list is set out in Handy at paras. 82 and 84. It serves as a helpful guide to the required analysis:
Factors connecting the similar facts to the circumstances set out in the charge include:
(1) proximity in time of the similar acts;
(2) extent to which the other acts are similar in detail to the charged conduct;
(3) number of occurrences of the similar acts;
(4) circumstances surrounding or relating to the similar acts;
(5) any distinctive feature(s) unifying the incidents;
(6) intervening events;
(7) any other factor which would tend to support or rebut the underlying unity of the similar acts.
286With respect to the evidence of each complainant, I note the following similarities:
The alleged acts occurred over a period of four years.
The complainants were clients of the accused seeking either to have dentures made or replaced.
The alleged incidents occurred in the treatment room.
All ten complainants whose evidence I have considered testified that Mr. Mouamer directed them to stand in front of the mirror that was located on the wall above the counter behind the dental chair. He then rubbed or otherwise made sexual contact with his penis/groin to their buttocks.
Eight of these complainants stated there was no one else present in the business when the incidents occurred.
Seven of the complainants provided evidence that their hands were on the counter during the time they were sexually assaulted.
Seven of the complainants indicated they were told to lean forward over the counter as Mr. Mouamer was positioned behind them before he made contact with his penis/groin area and their buttocks.
As well, seven complainants stated Mr. Mouamer had his hand or hands in their mouth during the period relevant to the sexual assault.
Some of the complainants testified they believed that his penis was erect.
287After reviewing the evidence of the complainants. I am satisfied on a balance of probabilities that this evidence is not the product of concoction.
288In R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 43, the Supreme Court held that the following facts did not constitute collusion:
There was evidence of some communication among the complainants. With respect to the G sisters, this was almost inevitable. They had also kept in touch with JV. Other complainants were in touch with each other prior to trial. Civil proceedings had been commenced by the G sisters for compensation and to close down the Kabalarians. KWG expressed the hope that the appellant would “rot in Hell”.
289Was there evidence of some opportunity for collusion between the complainants in this case? In my opinion, there was no evidence to support a finding that the similar fact evidence was concocted.
290There is no evidence of any connection between the complainants. The Crown asked each complainant if they knew any of the other complainants by name. None of the complainants knew each other. While the complainants all attended to testify at the preliminary hearing with respect to this matter, they did not speak to each other during their time giving evidence.
291Mr. Mouamer submits that the collusion occurred through media articles and social media. He testified that he remembered reading that the media was reporting very specific evidence of what he allegedly did to each complainant.
292He could not locate any such media reports. On the evidence before the court, the only description of the alleged acts stated that Mr. Mouamer engaged in “inappropriate touching.” There is no reference to Mr. Mouamer positioning clients to face the mirror and then rubbing his penis against their buttocks. There is no such specific or even general reference to that type of alleged conduct in any of the social media postings introduced into evidence at this trial.
293The acts alleged by each complainant were remarkably similar.
294Reasoning prejudice is not a factor on this application. There are 10 complainants. There were no similar facts outside of those relevant to the indictment. This is a trial by judge alone.
Issue Three: Prejudicial Effect
295The prejudicial effect of similar fact evidence is as described in Handy. It is one of moral prejudice and reasoning prejudice. It includes the possibility of an inference from the similar facts that the accused has the propensity to do the type of acts charged and is therefore guilty of the offence. It includes the danger of collusion by the multiplicity of incidents.
296I am mindful of the principle of moral prejudice. Similar fact evidence cannot be used to infer guilt from general disposition. The similar fact evidence in this case is raised to respond to the issue of whether the alleged sexual acts occurred. Similar fact evidence involves a double inference – first one infers from conduct on occasions other than the occasion in issue that a person has a certain disposition. Second, one infers from the existence of that disposition that a person acted in a certain way on the occasion in issue. The evidence of the accused’s discreditable conduct is a form of circumstantial evidence.
297Factors relevant to assessing moral and reasoning prejudice include the inflammatory nature of the similar facts; whether the Crown can prove its point with less prejudicial evidence; the potential distraction away from the facts charged; and the potential for undue consumption of time.
298However, the prejudicial effect is reduced significantly in the case of a trial judge sitting alone, without a jury. In R v. MacCormack, 2009 ONCA 72, 241 C.C.C. (3d) 516, Watt J.A., speaking for the Court of Appeal, said at para. 69:
In large measure, the practical realities of a trial by judge sitting alone in a case in which the allegedly similar acts do not extend beyond the counts of a multi-count indictment reduced significantly, if not to the vanishing point, the virus of reasoning prejudice. The judge is less likely than a jury to be distracted by a focus on similar acts. No additional time is required to adduce the evidence of similar acts because they are co-extensive with the evidence that is relevant, material and properly admissible on the individual counts. The only additional time required is that needed for the argument on admissibility at the end of the trial. …
299Given the lack of a jury in this case, the prejudicial effect is, in my view, low.
Issue Four: Balancing
300I then turned to the exercise of balancing the probative value against the prejudicial effect. The burden is on the Crown to prove that the probative value exceeds the prejudicial effect.
Conclusion Regarding Similar Fact Application
301I have concluded that the probative value of the similar fact evidence is significantly higher than its prejudicial effect and it should be admitted.
302I find there was a persuasive degree of connection between the similar fact evidence of all complainants. I draw an inference from this evidence that Mr. Mouamer had a specific propensity to have these complainants stand and face the mirror in his examination room while they tried on new dentures or dentures he had repaired. The complainants would be situated in the space behind the dental chair and the counter running along the wall. They would face the mirror. Mr. Mouamer would place his gloved finger or fingers in their mouths and have them open and close their mouths. He would sometimes place an articulating paper in the mouth and ask them to “tap, tap, tap.” While this was occurring, he would position himself behind their buttocks. Most of the complainants’ hands would be on the counter. Mr. Mouamer would then push his penis into the buttocks of the complainant. This action was described by the complainants as grinding, or thrusting or humping. Some of the complainants reported that they could ascertain that Mr. Mouamer’s penis was erect. I find the evidence of the complainants to have been consistent and acts alleged by each complainant were remarkably similar.
303For these reasons, I granted the similar fact application of the Crown.
The Law
Sexual Assault
304In a case of alleged sexual assault of a complainant, the trier of fact must find the accused not guilty unless the Crown has proved beyond a reasonable doubt:
that the accused intentionally touched the complainant directly or indirectly;
that the touching by the accused took place in circumstances of a sexual nature;
that the complainant did not consent to the sexual touching; and,
that the accused knew that the complainant did not consent to the sexual touching.
Credibility and Reliability
305When assessing the evidence, the court must consider both the credibility of the witnesses and the reliability of their evidence. These two concepts are not identical. Credibility refers to the honesty of the witness. Reliability refers to the accuracy of the witness’ evidence. A witness may be honest but wrong, and, therefore, the evidence would be unreliable. Both concepts must be considered by the trier of fact.
306In this respect, I rely on the explanation provided by my colleague Howard J. in R. v. Roy, 2019 ONSC 6828 (unreported), at para. 80, where he stated:
Credibility and reliability are not identical concepts. Credibility refers to the honesty of the witness. Was the witness telling the truth when he or she gave their evidence? Reliability refers to the accuracy of the witness’s evidence. Did the witness accurately receive the information, accurately remember the information, and accurately relate the information in their testimony? Was the witness accurate, was the witness correct, when the witness related past events in their testimony? A witness may be honest – i.e., credible – but simply wrong, simply incorrect, in relating past events – i.e., not reliable. I have considered both concepts in my assessment of the evidence.
307Where there are significant inconsistencies or contradictions within a complainant’s testimony, or when considered against conflicting evidence in the case, the court must carefully assess the evidence before concluding that guilt has been established beyond a reasonable doubt.
W.(D.)
308The accused testified in this matter and presented the court with a competing version of the critical events in question. Since credibility is the central issue, the well-known principles in W.(D.) are integral to the court’s analysis of the case. I have remained mindful of W.(D.) throughout this trial. That is, in order for the Crown to obtain a conviction on one or more of the remaining counts, I am required to do more than ask myself whether I believe the accused’s evidence, and that it is more than a question of choosing between the evidence of the Crown witnesses and that of the accused.
309As alluded to earlier, in W.(D.), the majority for the Supreme Court held that a jury should be instructed on the issue of credibility in accordance with a three-step analysis, as follows, at p. 758:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
310I have also reviewed the commentary on the W.(D.) principles as set out in R. v. Thomas, 2012 ONSC 6653. In that case, Code J. held as follows at paras. 23-24:
[W.(D.)] does not describe three sequential analytical steps that a trier-of-fact must pass through, one at a time. Rather, it describes three distinct findings of fact that a trier of fact can arrive at, when considering all the evidence at the end of the case, namely, complete acceptance of the accused’s exculpatory account (“step 1”), complete acceptance of the Crown witnesses’ inculpatory account (“step 3”), or uncertainty as to which account to believe (“step 2”).
A trier of fact must look at all the evidence, when deciding whether to accept the accused’s evidence and when deciding whether it raises a reasonable doubt. It is at that same point in time that the trier of fact will also determine whether the Crown’s witnesses prove guilt beyond reasonable doubt and whether the accused’s contrary exculpatory account must necessarily be rejected. In other words, these decisions are all made at the same time on the basis of the same total body of evidence. The so‑called “three steps” in W.(D.) are simply different results, or alternative findings of fact, arrived at by the trier-of-fact at the end of the case when considering the totality of the evidence.
311That said, I recognize that the determination of an accused’s guilt or innocence must not be a mere credibility contest between the complainant and the accused. Specifically, it is an error for the trier of fact to render a decision based on which witness is preferred. Such an approach erodes the operation of the presumption of innocence and the continual assignment of the burden of proof beyond a reasonable doubt to the prosecution.
312In R. v. Esquivel-Benitez, 2020 ONCA 160, 61 C.R. (7th) 326, the Court of Appeal ordered a new trial where the trial judge concluded that she preferred the testimony of the complainant to that of the accused and indicated she was “left with a significant doubt as regards [the appellant’s] evidence on the occurrences that evening”: at para. 6. The Court of Appeal explained at para. 13:
This was an error. Undoubtedly it was open to the trial judge to accept the complainant’s evidence that she did not consent to sexual activity and that her response to her husband’s questioning was due to a myriad of factors that had nothing to do with fabrication. However, in the circumstances of this case, the trial judge was also obliged to consider whether the events gave rise to a motive to fabricate and, if so, how that reflected on her assessment of the complainant’s credibility.
313In a proper application of W.(D.), the evidence of the accused should not be considered in isolation, but rather, along with all of the evidence, including that given by the complainant: see R. v. Lake, 2005 NSCA 162, 240 N.S.R. (2d) 40.
Analysis
1) Sexual Assault, s. 271 of the Criminal Code
314In many cases where the only relevant evidence with respect to the alleged offence comes from the complainant and the accused, it can be difficult for the trier of fact to know with any certainty what actually occurred during the relevant timeframe.
315As required, I have considered all of the evidence, including the strengths and weaknesses of the evidence in the context of the evidence as a whole. In conducting that analysis, I have been alive to the fact that it is possible that the complainant’s version is true, that the accused’s different versions are true, that neither are true, or that either or both are partially true.
316As the trial judge, it is my duty to assess all of the evidence before the court to determine whether the Crown has proven the offence beyond a reasonable doubt. In R. v. Morin, 1988 8 (SCC), [1988] 2 S.C.R. 345, the Supreme Court held as follows, at pp. 354 and 359:
It is misdirection to instruct the jury to apply the standard of reasonable doubt to individual pieces of evidence.
[T]he jury is not to examine the evidence piecemeal by reference to the criminal standard.
317As outlined previously, the decision in W.(D.) does not describe three sequential analytical steps, but rather three distinct finding of facts which the trier of fact can arrive at when considering all of the evidence at the end of the case.
318In more analytical terms, the application of W.(D.) is not an “either/or” analysis: see R. v. O.M., 2014 ONCA 503, 318 O.A.C. 390, at para. 42. Rather, the issue is whether or not the Crown has proved beyond a reasonable doubt the offences with which Mr. Mouamer has been charged. In making that assessment, the end must be accomplished by considering the record as a whole, not by viewing each piece of evidence separately: see R. v. White, 1998 789 (SCC), [1998] 2 S.C.R. 72, at para. 39.
Analysis of Mr. Mouamer’s Testimony
W.(D.) Step #1
319The defence highlighted a number of portions of Mr. Mouamer’s testimony and suggested that on the totality of evidence in this case in support of the submission that I should accept his version of events. For the reasons that follow, I do not accept the evidence of Mario Mouamer pursuant to step number one in the W.(D.) analysis.
320It was the evidence of Mr. Mouamer that none of the alleged incidents occurred. He raised a number of issues in this respect. I will address them as follows.
- The sexual touching DID NOT occur
321Mr. Mouamer testified that at no time did he touch any of the complainants with his penis or groin area.
322While he testified that it was appropriate to have patients stand and look in a wall mirror so they could see their dentures, he denied ever placing himself behind them. He was always to the side. The defence brought his denturist tools to court and presented them as evidence. The defence submitted, particularly in cross-examination of the complainants, that Mr. Mouamer always kept his tools in the long pockets of the lab coat he always wore. The defence’s suggestion was that may have been what the patients felt when they were looking in the mirror.
323Mr. Mouamer’s testimony contained many details regarding the dates, times and number of visits each complainant made. He had something negative to say on each issue regarding each complainant.
- He was the victim of a set up
324His evidence strongly suggested that he was the victim in this situation; that he was set up, by the complainant B.P. in particular. She came to his office once in an emergency situation needing her dentures fixed immediately before she started work in Belle River. She had another woman with her. She identified that woman in her testimony as Etta Ferragatto.
325He testified that Etta was very active. She looked around and studied the office. He believes from his memory of the individual and a tiny picture on social media that the person accompanying B.P. at his office was not Etta Ferragatto, but the person posting on social media as Cindy Higgins.
326There is no mistaking the fact that there are unsavoury and racist undertones in the post by Cindy Higgins on June 21, 2017, at 2:54 p.m. I will repeat what she states as follows:
Cindy Higgins
Katie, it was my girlfriend on monday that was assaulted. He is a creep! It doesnt matter that you were high or drunk, he has no right! I hope you & others have the courage & strength to report your abuse to the authorities, so as to make sure he cannot practice any more and damage our citizens! I think that he isnt a Canadian Citizen, so if there is enough complaints he would be deported!
327It is regrettable, unfortunate and reprehensible that there were comments with a racial overtone used in some of the social media comments following the publication of the various articles referring to the initial and subsequent charges and as the additional complainants came forward.
328Mr. Mouamer (and by extension his family) have every right to be hurt and upset by same. However, in the context of the evidence in this case, these comments in no way cause me to conclude any of the following:
i) that there was collusion among the complainants;
ii) that the evidence of one or more of the complainants was not credible or reliable; or
iii) that the sexual assaults as alleged did not occur.
329In his evidence, Mr. Mouamer clearly attempted to make himself out as the victim. I strongly reject that suggestion on a review of the totality of the evidence in the context of the charges he was facing.
- General observations regarding his evidence
330I am troubled by Mr. Mouamer’s evidence. He had no difficulty answering the questions when asked by his counsel. He was not as straightforward in his cross-examination. His recollection of specific events was mostly based on information he obtained from his records, such as dates, number of visits and billing issues.
331He had a recollection that there was some type of issue with the complainants as patients. The inference from his evidence is that these issues were the motivation for these individuals to have colluded to falsely accuse him of this behaviour.
332Crown counsel put to Mr. Mouamer in cross-examination that the facts reported to the police independently by two women approximately two years apart (A.P. and R.B.) were ironically similar. Mr. Mouamer could not, or would not, acknowledge those similarities.
333At first, he attempted to deflect the real and obvious starkness of these similarities by indicating the circumstances of treatment were different. Those facts are irrelevant to the evidence that Mr. Mouamer was allegedly grinding his penis into their buttocks while having them look at their dentures while they tried them on while looking at the mirror.
334When he was finally pushed to acknowledge the similarities in the facts, he then pivoted to an illogical and unfounded allegation that he was set up. I specifically conclude that there is no evidence before this court that would even remotely suggest or amount to a finding that there was any collusion between A.P. and B.P.
335There is no evidence to support that these two complainants knew each other and fabricated their stories. Mr. Mouamer suggests that a person that attended his office with B.P. was not Etta Ferragatto as she testified, but rather was a person named Cindy Higgins. There is no evidence to support such a conclusion.
336I do not accept his evidence.
W.(D.) Step #2
337Even though I have not accepted the evidence of the accused, I must consider whether it, or the evidence I do accept, nevertheless leaves me with a reasonable doubt as to Mr. Mouamer’s guilt. I am not satisfied that even though I have not accepted the evidence of Mr. Mouamer, I am still left with a reasonable doubt.
W.(D.) Step #3
338Notwithstanding my conclusions with respect to W.(D.) steps 1 and 2, I am required to assess the evidence in this case as a whole and determine whether the Crown has failed to prove the guilt of Mr. Mouamer beyond a reasonable doubt.
339It was a significant component of Mr. Mouamer’s evidence that the complainants colluded through social media. As indicated, I have concluded that there was no collusion in this matter.
340Firstly, none of the complainants knew each other. Two of the complainants and the daughter of one complainant made comments on social media. However, it is significant to note that neither in the media reports regarding the charges, nor the social media evidence before the court, is there any reference to the specific nature of the alleged sexual misconduct that occurred. None.
341From the information in evidence with respect to the media reporting, or the social media, there is no way a person could or would know that it was being alleged that Mr. Mouamer was rubbing his penis/groin area against the rear end/buttocks of his patients while they were standing facing the mirror having the fit of their dentures checked by the accused.
342I find that there is no evidence to support the suggestion of Mr. Mouamer that the various complainants colluded with respect to their evidence and effectively “set up” Mr. Mouamer. Having reached that conclusion, the chances that this number of complainants could have coincidentally concocted similar but false narratives of how they were sexually assaulted while standing before the mirror in the office of the accused while he rubbed his penis/groin area into their buttocks, is, quite frankly, infinitesimal in the extreme.
343In addition to my ruling regarding similar fact evidence, I have accepted the evidence of each of the remaining complainants with respect to the essential elements the facts alleged by them on a stand-alone basis. In other words, while I have granted the similar fact application of the Crown on a count-to-count basis, it is not necessary for me to do so in order to conclude that the Crown has proven each of the charges beyond a reasonable doubt.
344I will make some general observations about the complainants collectively, and then address specific evidence with respect to each complainant.
345I start by noting that all of the complainants were cross-examined extensively, many of them for multiple dates. It is significant to note that while there were occasional inconsistencies in the testimony of each complainant, these inconsistencies did not relate to the core allegations with respect to the alleged offences. That is, they each maintained the following explanation of what happened. That is:
Mr. Mouamer operated a denturist clinic at the intersection of Tecumseh Road and Pillette Road in Windsor, Ontario.
They were patients of Mr. Mouamer.
They each required the services of Mr. Mouamer for either a repair or making of a denture product, or both.
At the time of the alleged offences, they were situated in Mr. Mouamer’s main examining room.
The room had an opening to the reception area and there was no door in the opening.
They were alone in the examining room with Mr. Mouamer when the incidents occurred.
While some of them observed Mr. Mouamer’s sister there working in different instances, Ms. Marcuzzi was never present when they were sexually assaulted.
There was a counter behind the dental chair situated on the wall.
There was a mirror affixed to the wall.
At some point Mr. Mouamer had them stand facing the mirror.
He had them try on their dentures and look in the mirror to see the dentures and check the fit and/or bite.
Mr. Mouamer positioned himself behind the complainants and used his gloved hand (or hands) to reach from behind inside their mouth to check the fit or bite of the denture. This occurred with respect to most of the complainants.
While this was occurring, he would place his penis against their buttocks and thrust, grind, push or rotate his groin against them.
346None of the complainants resiled from their evidence despite withering cross-examination.
347As indicated, there were inconsistencies from time to time. Some of them were not certain how many times they attended the clinic. Many of them changed the estimate of how long the grinding up against them by Mr. Mouamer continued. Many of them estimated the incident of Mr. Mouamer rubbing his penis against their buttocks for shorter periods at trial from what they had estimated in their testimony at the preliminary hearing. Some of the complainants had difficulty specifying exactly which day or dates the incident occurred.
348None of these changes in the evidence by any of the complainants causes me to doubt the credibility of the witnesses or the reliability of their testimony. These persons attended a denturist for services. Whether a witness remembers the exact day, time or duration of something that is supposed to be routine takes is debatable. We all partake in a myriad of daily activities for which exact details of time, objects in the room and duration fade into the patina of everyday living. What changed that routine was the unexpected and uninvited actions of the accused in rubbing his genitals against their buttocks while providing denturist services. In that respect, the evidence of each of the witnesses was credible and reliable.
349I have reviewed a number of cases, including R. v. J.J.R.D. (2006), 2006 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.). In that case, the Court of Appeal upheld a conviction even though the complainant acknowledged the inconsistencies in her testimony and at one point stated, “I’m sorry because I’m kind of changing my store, but because I’m remembering things differently…now than before”.
350At para. 46 of J.J.R.D., the Court of Appeal stated:
The trial judge carefully assessed the evidence of [the complainant]. He was alive to the potential frailties in her evidence, particularly the fact that she had provided many details of the alleged assault in her evidence that she had not given in her earlier statements and testimony. The trial judge expressly alluded to many of the inconsistencies between her testimony and her earlier statements. He also took into consideration the circumstances surrounding her testimony. The trial judge ultimately determined that [the complainant] was a credible witness. He gave reasons for this conclusion. The basis upon which the trial judge found [the complainant] credible is readily apparent on the entirety of the record, including his reasons. His assessment of [the complainant]’s credibility is readily reviewable on appeal by this court.
351All of these give rise to contextual considerations. They are not, however, in and of themselves dispositive of the issue of whether the Crown has failed to prove the elements of the offences charged beyond a reasonable doubt. While there were some changes in testimony, there were no changes to the essential elements of the offence.
Engaging the Twin Myths
352In many respects, the explanation as to what happened or Mr. Mouamer’s submissions that the complainants were neither credible or reliable involved the twin myths. For example, at para. 78 of the written submissions, it is the defence’s position that A.F. took advantage of the circumstances to secure a refund. According to A.F., she attended Mr. Mouamer’s clinic to retrieve her refund with her newborn child and her mother. This clearly signals she had no fear towards an individual that she claims sexually assaulted her on a previous visit. Furthermore, she testified that her mother remained in the car as she attended the clinic on that visit.
353A.F. only contacted the police once the news articles regarding Mr. Mouamer came to her attention and after receiving a refund.
354These submissions repeatedly and improperly engaged the twin myths about the impact of sexual assault on victims.
355Dr. Lori Haskell and Dr. Melanie Randall, in a report to the Department of Justice Canada entitled “The Impact of Trauma on Adult Sexual Assault Victims” (2019) stated, inter alia:
Social expectations to conform to the stereotype of what real or “ideal” victims (Randall, 2010) look like mean that women who are sexually assaulted are expected to do the following:
offer physical and/or verbal resistance to unwanted sex;
express clear and explicit non-consent to unwanted sexual contact;
discontinue contact with the person who has been inappropriate sexually or who has assaulted them; and
demonstrate perfect or near perfect recall, including a consistent and linear narrative of “what happened.”
These are, of course, unrealistic expectations. They do not represent how most women who are sexually assaulted actually cope and respond. As a result, these myths, biases, assumptions, and expectations interfere with how victims’ testimony about their experiences is heard and understood in sexual assault trials, and with how legal actors in the criminal justice system assess their credibility.
356I reject the various submissions (both direct and implied) offered by the defence to discredit or diminish the credibility and reliability of the evidence of each complainant as set out below.
i) Failure to Report to Police
357The defence submits that with the exception of A.P. in 2015 and B.P. in 2017, the complainants never came forward to the police until after they read about Mr. Mouamer being charged in the media. The defence submits that the failure of these individuals to come forward is in some measure an indication that they were never sexually assaulted.
358I reject that submission. It involves the myth that if a person is sexually assaulted they will immediately report same to the authorities.
359I disagree. There are as many reasons as to the when, where, why and how victims of sexual assault come forward, if ever, as there are victims of sexual assault. Furthermore, to accept the false logic that the complainants who did not come forward right away are not credible or reliable would require me to conclude that each of the women fabricated the evidence that Mr. Mouamer had them facing the mirror to look at their dentures and check to see the fit while he stood behind and pushed his penis up against their buttocks.
360Ironically, two of the complainants went to the police within a day or so of the respective alleged incidents. These two complainants, A.P. and B.P. provided police with independent accounts of being sexually assaulted by Mr. Mouamer while he stood behind them and had them leaning on the counter looking at their dentures in the mirror while being asked to repeatedly open and close their mouths.
361I am not persuaded that the failure of most of the complainants to come forward makes their evidence less credible or reliable. Furthermore, I am not persuaded that such evidence is the product of the complainants providing false evidence.
ii) Complainants Returned for Services
362Mr. Mouamer testified that a number of the complainants returned for further services after the date of the alleged assault. The suggestion made to each was that if they had been sexually assaulted, they would not have returned.
363I disagree. Each of the complainants presented as being in need of denturist services. They were all in a position of dependency on Mr. Mouamer to resolve their denture issues. There was a clear power imbalance between Mr. Mouamer and each of the complainants. All of them needed denturists services. Some of them needed repair work done immediately. For others it was a significant financial issue to either pay for the denturist services or have another person, benefit carrier or social service agency pay. The fact that some of them returned for further services is not an indication that the sexual assault did not occur, nor that they only came forward because they heard that Mr. Mouamer had been charged. They were in need.
364Furthermore, some of the complainants were having trouble processing what had happened to them. While they were all certain Mr. Mouamer had pushed his penis up against their buttocks, they were not sure if they had been sexually assaulted.
iii) No Complaint to the Accused
365Mr. Mouamer submits that no complainant voiced any concerns with him at the time of the alleged incident. I reject this as in any way diminishing or affecting the credibility of the witnesses. It is well established in our jurisprudence that there is “no rule as to how victims of sexual assault are apt to behave”: R. v. Lacombe, 2019 ONCA 938, 383 C.C.C. (3d) 114 at para. 45. This is analogous to the absence of avoidant behaviour in R. v. Martiuk, 2023 ONSC 414. The mere absence of voicing concern cannot form the basis of a credibility assessment leading to reasonable doubt: see Martiuk, at para. 86.
366Furthermore, the complainant A.P. spoke up and asked Mr. Mouamer if he was sexually assaulting her. In any event, to conclude that because a complainant being sexually assaulted in this manner while receiving denturist services alone with Mr. Mouamer they are not credible or reliable is a disturbingly false narrative that does not and cannot form part of our criminal justice system.
iv) Ontario College of Denturists Funding
367Only two of the complainants took advantage of funding for counselling provided by the College. The suggestion that these complainants did receive or attempted to receive counselling were motivated to fabricate their stories when they reported the incident to the police is simply wrong. Firstly, there was no such information even available to these clients until months or years after they went to the police.
368Furthermore, it is wrong to suggest that there was some personal gain to be received by them when all that was available was a reimbursement. It is illogical to suggest that a person would falsely accuse Mr. Mouamer of sexually assaulting them in order to receive reimbursement for counselling regarding an event that did not occur.
v) Grooming
369There was no evidence of grooming by Mr. Mouamer. That is, at no time did he engage in any behaviour or sexual talk that could be viewed as grooming of the complainants.
370It is not an element of the offence of sexual assault contrary to s. 271 of the Criminal Code that there be evidence of grooming. Whether or not there was grooming is immaterial to the evidence in this case.
371I have accepted the evidence of each complainant individually for the reasons set out above and the specific reasons set out below.
T.F. (Counts #3 and #4)
372T.F. was a cancer patient who was slight of build. She testified on two occasions that when Mr. Mouamer pressed his groin area up against her buttocks that with her also being pressed up against the counter at the front, she suffered pain and discomfort. She tried to pull back from this unfortunate position but was pushed back against the counter in the same manner by Mr. Mouamer.
373I am persuaded by her uncontradicted evidence that when she had her sister attend with her in the examining room on subsequent visits, Mr. Mouamer did not position her at the mirror. Rather, he had her look at the dentures using a handheld mirror.
374It was suggested that if T.F. was as uncomfortable as she said because her frail body was being pressed up against the counter she would have said something. I disagree with that suggestion. There are any number of reasons why she might have been afraid or uncomfortable speaking up while she was in need of Mr. Mouamer to complete the work on her dentures.
375It was put strongly to T.F. that she did not obey a direction from the Windsor Police not to have contact with Mr. Mouamer. It was put she went back to get her dentures because she was not in fear of Mr. Mouamer. The following exchange occurred:
Q. Ma’am, I’m, I’m going to put to you that the reason why you went to pick up your dentures was that you were not in fear of Mr. Mouamer. You can agree or disagree.
A. I’m, I wasn’t what”
Q. What, in fear of Mr. Mouamer.
A. Yeah, I was in fear. That’s why I brought somebody with me.
Q. And, ma’am, as it relates to the matters before the Court, I take it that, I’m going to put to you that this incident didn’t happen that you describe as a first and second incident, and that’s why you attended his office on your own evidence, at least nine times.
A. It did happen; both incidents happened.
Q. So you disagree with me.
A. A hundred and ten percent both incidents happened.
Q. Well, ma’am, I’m going to put to you that in fact you were mistaken.
A. I, I disagree with you. You weren’t there.
Ms. Joy: Your Honour, I don’t think I have any more questions.
376While there were some inconsistencies in the evidence of T.F. on collateral issues such as the location of the sink, I have concluded that the evidence of T.F. was both credible and reliable on the evidence of the offence. She was sexually assaulted by Mr. Mouamer twice.
J.B. (Count #5)
377This complainant was in economic distress with respect to having a family member pay for all her denture work. J.B. was a credible and reliable witness notwithstanding certain frailties in her testimony. She admitted at the time she was the victim of Mr. Mouamer that she was mentally unstable as a result of bipolar disorder. Having conceded that, she was also dealing with serious issues including her daughter being a victim of human trafficking.
378Notwithstanding these admissions, I find her to be a credible and reliable witness with respect to her evidence of the actus reus of the offence.
379She provided a description of the events that was not shaken in cross-examination. It is very troubling that she indicated to police after filing her complaint that she wanted to “blow up” his clinic. That statement was improper. However, it also supports the anger she had as a result of the incident. That anger was palpable.
380She also did not consider that she had been sexually assaulted until she read about the arrest. Again, whether she was not certain at the time of the incident she had been sexually assaulted, it is clear from her evidence that she was touched by Mr. Mouamer’s penis in a sexual manner without her consent. I have accepted her evidence.
C.G. #1 (Counts #6 and #7)
381I have accepted the evidence of C.G. #1 that she was sexually assaulted by the accused. The inconsistencies in her testimony with respect to how long her son was waiting for her in the car and the timing of the incident do not affect the clarity with respect to how she described the two instances she was sexually assaulted.
B.P. (Count #8)
382B.P. was the complainant that triggered the filing of these charges in June of 2017. She went to the police promptly following the incident.
383I do not accept that her evidence was tainted by Cindy Higgins’ comments on social media. Cindy Higgins was not a patient of Mr. Mouamer. Cindy Higgins was clearly an acquaintance of B.P. She described her relationship with Cindy Higgins to a lesser degree than Cindy Higgins did in her posts. It is also clear that she may have communicated with Cindy Higgins about the incident. Having said that, notwithstanding the inappropriate racist overture of Ms. Higgins social communications, there is no reference to the specifics of what happened to B.P. (or any other complainant) in these posts.
384For that reason I find there was no collusion. Neither was there the type of inadvertent collusion the defence referenced in the case of R. v. Dorsey, 2012 ONCA 185, 288 C.C.C. (3d) 62. I find the evidence of B.P. was both credible and reliable. She was questioned at extended length about a myriad of issues beyond the connection to Cindy Higgins. For example, I am not concerned in assessing her evidence, as Mr. Mouamer emphasized, that at trial she was not sure if she arrived at Mr. Mouamer’s office at 2:45 p.m. when she had so indicated at the preliminary hearing, as one example.
385I also accept her evidence that she remained after the incident to get her paperwork completed. It is improper to suggest that her actions in this regard bring her credibility and the reliability of her evidence into question.
386Whether she was mistakenly under the belief that Mr. Mouamer could administer anesthetics, her account of the incident was clear. Whether she could tell the court how long the incident lasted does not negate my overall assessment of her evidence. I accept her evidence regarding the incident.
A.P. (Count #9)
387A.P. was the only other complainant that reported the incident promptly to the Windsor Police Service after it occurred. That was in 2015. Again, I accept her evidence independently. Mr. Mouamer suggests that because A.P.’s daughter posted on social media that this is evidence of collusion. I disagree.
388It is only evidence that persons were reporting that they, or persons close to them, had been sexually assaulted by Mr. Mouamer. That fact alone does not constitute collusion with respect to the specific allegations that each complainant made.
389I am also not persuaded that the actions of A.P. in seeking to have money returned from Mr. Mouamer after she had spoken to the police demonstrates that she was more concerned about the civil aspect of having monies returned then the alleged sexual assault. Again, this engages the twin-myth theory and I do not adopt or accept Mr. Mouamer’s suggestions in that respect.
390She gave her evidence on the sexual assault clearly and understandably, despite language issues that required her to testify with an interpreter. I also give significant weight to the fact that at the time of the incident she called out to him and asked if she was being sexually assaulted.
M.B. (Count #11)
391M.B. testified that she was receiving the drug Citalopram at the time she testified. However, she had no memory issues when the incident occurred.
392There were minor discrepancies in her evidence such as whether Mr. Mouamer’s fingers were in her mouth or whether she was bent over. However, the core evidence she provided regarding the incident and the conduct of Mr. Mouamer pushing his penis (that may have been getting erect as opposed to being erect) into her buttocks was credible and reliable.
K.C. (Count #12)
393Like with most other complainants, Mr. Mouamer submits that the fact K.C. did not come forward until “it hit the paper” somehow renders her evidence less credible and reliable. I disagree.
394I also disagree that the fact that she continued to attend for denturist services after she was sexually assaulted affects how the court should view her evidence.
395That she might have been coaxed by an unidentified friend to contact the police is of no probative value.
396She gave her evidence clearly and forcefully. I have accepted the elements of her evidence that she was sexually assaulted. It is suggested by Mr. Mouamer that K.C.’s anger regarding a dispute with respect to the submissions of her benefit claim before she attained the age of 65 does not negate from the veracity of her evidence. There is no evidence to suggest she fabricated her story or that it was the product of collusion.
A.F. (Count #13)
397The focus of Mr. Mouamer’s attack on the credibility and reliability of A.F.’s evidence is that she made sure she obtained a refund from him in June of 2017 after it was reported that he had been charged and then had reported the incident to the police.
398The defence alleges she took advantage of the circumstances of his arrest to secure a refund. Even if that is true, it does not logically follow that having succeeded in that respect she then went to the police to fabricate evidence of a sexual assault. Her evidence was clear, concise and I accept same.
R.C. (Count #14)
399R.C.’s evidence on the facts relating to the alleged sexual assault were clear and I accept same. That she might have been mistaken about whether it was a sunny day, when the incident occurred, or how he touched her shoulders or who placed the partial dentures in her mouth do not detract from the clarity and detail of her evidence on the elements of the offence.
J.M. (Counts # 16 and #17)
400J.M. was the first complainant witness in this matter. She was on the witness stand for over two days. By her evidence in-chief and over a lengthy cross-examination, I am satisfied that her evidence was credible and reliable. I place no weight on the suggestion that despite being sexually assaulted twice, she returned for further services. I have previously addressed why this complainant may have felt the need or necessity to return for financial reasons or because it was erroneous to assume because she came back that means the offences did not occur.
401There were some inconsistencies in her evidence with respect to how long the thrusting/grinding lasted from five to ten minutes, being reduced to two to three minutes at trial. This evidence does not in any way reduce my opinion that her evidence on the elements of the offence was clear and reliable. She was unwavering in her testimony of how Mr. Mouamer pushed his penis/groin area into the buttocks of J.M. on two occasions while he had her standing at the mirror and was checking her dentures from behind.
402I accept the evidence of J.M. There were some inconsistencies in her testimony. However, there was no wavering in her account of how Mr. Mouamer touched her with his groin area while looking at her teeth in the mirror as she learned on the counter.
403I have considered J.M.’s statement that she did not believe she had been sexually assaulted until she learned that others had come forward. Her thoughts in this regard do not negate Mr. Mouamer’s actions in sexually assaulting her in this manner. That is, while she might not have thought she was being sexually assaulted because it would seem unbelievable to her that a professional denturist would touch her in that matter, she did not equivocate testimony that the touching took place and that she did not consent to same.
404Additionally, I do not find that the receipt of funds by J.M. from the Criminal Injuries Compensation Fund in any way tainted her evidence, or made same less credible or reliable.
405She was not even made aware of the existence of the fund until long after she filed her complaint. The existence of the fund was in no way motivation or an impetus for her filing her complaint.
Some Other Basic Elements of Defence
1) No wrongdoing had occurred
406Mr. Mouamer suggests that because a number of complainants expressed words to the effect that they did not believe they had been sexually assaulted it means no offence occurred.
407I disagree there is no issue of consent here. The actus reus of the offence of sexual assault is the application of force in a sexual manner without consent where the accused knows that the complainant did not consent. That one or more of the complainants may have been confused about what Mr. Mouamer had done was sexual assault or were trying to cope with the possibility they had been sexually assaulted, does not negate the evidence of the offences occurring.
408I have considered and dismissed the defence theory that Mr. Mouamer was set up.
409It does not establish a reasonable doubt in this matter.
410As set out in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 56:
The governing principle was nicely summarized by the Alberta Court of Appeal in Dipnarine, at para. 22. The court noted that “[c]ircumstantial evidence does not have to totally exclude other conceivable inferences” and that a verdict is not unreasonable simply because “the alternatives do not raise a doubt” in the jury’s mind. Most importantly, “[i]t is still fundamentally for the trier [of] fact to decide if any proposed alternative way of looking at the case is reasonable enough to raise a doubt.”
411In this regard, I note a reasonable doubt is not a speculative doubt to be proven.
412As indicated earlier, a reasonable doubt is not speculative doubt. As set out at para. 66 of Villaroman:
The judge did not ignore hypothetical alternative explanations advanced by the respondent’s counsel. He found that they were speculative, noting that the Crown does not have the burden “of negativing every conjecture to which circumstantial evidence might give rise and which might be consistent with the innocence of the accused”: para. 81; citing Paul, at p. 191.
2) Not sexual in nature
413Mr. Mouamer submits the examination was not sexual in nature. I agree that the examinations themselves were not sexual in nature. The defence states at para. 340 of its submissions that “doctor-patient sexual assault cases are somewhat different from other sexual assault cases because there can be legitimate medical reasons for a practitioner to examine a patient’s sexual organs.” In those cases, the part of the body that is touched must be assessed contextually.
414The examinations in this case concerned the mouths of Mr. Mouamer’s patients, not their sexual organs. Furthermore, there was absolutely no valid medical or treatment purpose for Mr. Mouamer’s penis or groin area to be anywhere near the complainants’ buttocks as it was. The complainants do not assert they were sexually assaulted because Mr. Mouamer touched their mouths. They were sexually assaulted because Mr. Mouamer, a denturist, touched their buttocks with his penis.
415Whether or not it is professional for Mr. Mouamer to have positioned the clients facing the mirror to check their dentures is immaterial. There is no evidence before the court that not only was it professionally permissible to have a client face the mirror in this manner but that it was understood and acceptable that the penis/groin area of the denturist could or would come into contact with the buttocks of the client for an extended period. I reject the submission that because the examinations were not sexual in nature there can be no offence. His conduct was sexual in nature and that is an essential element of the offences for which he is charged. Mr. Mouamer’s actions clearly sexualized the situation.
Conclusion
416There is a line from a song entitled “New Dark Age” that says:
In the darkest times
Darkest fears are heard
And from the safest places
Come the bravest words.[1]
417Those words fully apply to the evidence in this case. Individually, a number of women required various denturist services. Through referral from their dentist or knowledge of the location of the clinic, they attended for services with Mr. Mouamer. Some went once, some attended repeatedly. Some returned for additional services after their alleged incident.
418Only two out of more than a dozen of these clients went to the police shortly after the incident. That would be A.P. in 2015 and B.P. in 2017.
419It is not until the media reported that Mr. Mouamer was charged with sexual assault for allegedly touching a patient “inappropriately” that the remainder of the complainants experienced a “eureka” moment. They did not decide to falsely accuse Mr. Mouamer of sexual assault. They did not decide to collude with other patients they did not know. Rather, they gained confidence from the fact that they were not alone, that the incidents of sexual touching they had experienced were real and needed to be reported for any number of reasons. Of course there was strength in them doing that because they were no longer alone. Rather, they were now, as the song says, in the safest place.
420The words they told the police were brave. The police correctly told them they were brave. They were brave because each of these women was vulnerable. They were in situations where there was an acknowledged power imbalance. They had put themselves in a position of trust with a regulated professional who sexually assaulted them.
421The accused submits that because these individuals for the most part only came forward after they learned about Mr. Mouamer from the media somehow makes their evidence less credible, or less reliable.
422Nothing could be further from the truth. These women bravely came forward and independently told strikingly similar and remarkably identical stories of how they were sexually assaulted by Mr. Mouamer while alone in this office, facing the mirror and being subject to having him push, grind, thrust or gyrate his penis and groin into their buttocks.
423I am more than satisfied beyond a reasonable doubt that each of the complainants whose evidence I have considered were sexually assaulted by Mr. Mouamer.
424Mr. Mouamer, please stand:
I find you guilty of sexual assault contrary to s. 271 of the Criminal Code with respect to Counts 3, 4, 5, 6, 7, 8, 9, 11, 12, 13, 14, 16 and 17.
425That is my ruling.
Original signed by Justice George W. King
George W. King
Justice
Released: Decision delivered orally – November 20, 2023
In writing – December 4, 2023
COURT FILE NO.: CR-18-4474
DATE: 20231120
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
Mario Mouamer
reasons for judgment
King J.
Released: Decision delivered orally – November 20, 2023
In writing – December 4, 2023
1The Sound, New Dark Age from the LP “From the Lions Mouth”, Koroua, 1981.