CITATION: R. v. Nahar, 2026 ONSC 4078

COURT FILE NO.: CR-23-0755

DATE: July 13, 2026

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING Crown

– and –

NAVPREET NAHAR Accused

Stacey Hamilton, for the Crown

Robert Christie, for the Defence

HEARD: May 11, 12 and 13, 2026

REASONS FOR JUDGMENT

JUSTICE C. PETERSEN

Table of Contents

INTRODUCTION.. 3

ANALYTICAL FRAMEWORK.. 4

Avoiding a Credibility Contest 4

Avoiding Cross-Count Reasoning. 5

LAYOUT OF THE WORKPLACE AND WORKFLOW... 6

ALLEGED OFFENCES INVOLVING N.. 9

Summary of Evidence. 9

Analysis of Witness Credibility and Reliability. 12

Sexual Assault (count 1) 16

Touching. 16

Intent 17

Circumstances of a Sexual Nature. 17

Complainant’s Lack of Consent 18

Accused’s Knowledge of Complainant’s Lack of Consent 18

Conclusion (count 1) 18

Sexual Interference (count 2) 18

Intentional Touching. 18

Sexual Purpose. 18

Age of Complainant 19

Conclusion (count 2) 19

ALLEGED OFFENCES INVOLVING M... 19

Summary of evidence. 19

Analysis of Witness Credibility and Reliability. 22

Potential for Collusion and Bias. 24

Sexual Assault (count 3) 27

Touching. 27

Intent 28

Circumstances of a Sexual Nature. 28

Complainant’s Lack of Consent 29

Accused’s Knowledge of Complainant’s Lack of Consent 29

Conclusion (count 3) 29

Sexual Exploitation (count 4) 29

Age of Complainant 29

Intentional Touching for a Sexual Purpose. 30

Position of Authority. 30

Conclusion (count 4) 30

INTRODUCTION

1Mr. Nahar is charged with four sexual offences against two complainants. Their anonymity is protected by a publication ban ordered pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. D-46. I will therefore refer to them as N and M.

2The specific charges on the indictment are as follows:

Count 1: sexual assault on N between August 1, 2021 and November 30, 2022,¹ at the Township of Centre Wellington, contrary to s. 271 of the Criminal Code;

Count 2: sexual interference with N, a person under the age of 16, by touching her directly with his hand for a sexual purpose, in the Township of Centre Wellington, on or about August 1, 2021, contrary to s. 151 of the Criminal Code;

Count 3: sexual assault on M between August 15, 2021 and November 22, 2021, in the Township of Centre Wellington, contrary to s. 271 of the Criminal Code; and

Count 4: sexual exploitation of M, a young person, by touching her directly with his hand for a sexual purpose while occupying a position of trust or authority over her, in the Township of Centre Wellington, between August 15, 2021 and November 22, 2021, contrary to s. 153(1)(a) of the Criminal Code.

3The charges relate to a period when Mr. Nahar was working as a night shift manager at a Wendy’s restaurant in the Township of Centre Wellington. The two complainants were both part-time employees working under his supervision. The offences are alleged to have been committed in the workplace. Mr. Nahar pleaded not guilty to all the charges.

4The Crown called evidence from three witnesses at trial, namely the two complainants and a senior manager from the Wendy’s restaurant named Rhonda Gagnon. The defence consented to Ms. Gagnon’s evidence being adduced through a written summary of salient elements of her statement to the police.

5Mr. Nahar testified in his defence. He denied ever touching either complainant for a sexual purpose or in circumstances of a sexual nature.

6Identity and jurisdiction are not issues in this case. All the other elements of the charged offences are disputed.

ANALYTICAL FRAMEWORK

Avoiding a Credibility Contest

7Credibility is a critical issue in this case. I am therefore mindful of the need to follow the instructions outlined by the Supreme Court of Canada in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 SCR 742. Specifically, for each count on the indictment,

i. If I believe the accused’s exculpatory testimony, I must acquit him;

ii. Even if I do not believe the accused’s testimony, or do not believe all his testimony, I must acquit him if his evidence leaves me with reasonable doubt about an essential element of the offence; and

iii. Even if I am not left in doubt by the accused’s testimony, I must ask myself whether, based on the evidence that I do accept, I am convinced beyond a reasonable doubt of his guilt.

8The principles in W.(D.) apply whenever it becomes necessary to make credibility findings on conflicting evidence. They apply not only to the accused’s evidence but also to any exculpatory or potentially exculpatory evidence from other sources, whether adduced by the defence or the Crown: R. v. Smith, 2020 ONCA 782, at para. 12; R. v. Boucher, 2022 ONCA 40, at para. 83; R. v. D.M., 2022 ONCA 429, at para. 58; R. v. Fitzpatrick, 2026 ONCA 262, at para. 86.

9The W.(D.) principles are designed to ensure that the trier of fact follows a line of reasoning that may not be intuitive, namely that a trial is not a contest between two competing versions of events. Evidence can raise a reasonable doubt even if it is not accepted or believed. Moreover, mere disbelief of exculpatory evidence does not lead to a conviction: Fitzpatrick, at para. 85. The Supreme Court of Canada recently reiterated the importance of not turning trials into credibility contests: “The presumption of innocence means that a guilty verdict cannot rest only on whether the trier of fact believes the Crown’s evidence or finds it more plausible. Instead, a conviction must always rest on proof beyond a reasonable doubt.” R. v. Berg, 2026 SCC 21, at paras. 10-11.

10The Supreme Court’s decision in W.(D.) does not mandate that a trial judge’s analysis begin with an assessment of the credibility of the accused’s testimony before evaluating the complainants’ testimony. The order in which a judge makes witness credibility findings is inconsequential so long as the principle of reasonable doubt remains the central consideration, and the error of deciding a credibility case by mere preference is recognized and avoided: R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639 (S.C.C.), at paras. 21-28; R. v. Y. (C.L.), 2008 SCC 2, [2008] 1 S.C.R. 5 (S.C.C.), at para. 12; R. v. Carrière, 2001 CanLII 8609 (ON CA), [2001] O.J. No. 4157 (Ont. C.A.), at paras. 48-51.

11There are practical reasons not to mechanically follow the formal order of the three steps in W.(D.). The complainants’ allegations form the basis of the charging document. As a matter of common sense, the accused’s evidence must be assessed in the context of those allegations. The accused’s testimony responds to the complainants’ evidence. It cannot be understood except in relation to their allegations. To analyze his testimony first would be artificial and out of synch with basic logic: R. v. O.V., 2021 ONSC 6141, at paras. 17-18. I will therefore begin my analysis of the evidence for each count with a review of the complainants’ testimony.

Avoiding Cross-Count Reasoning

12There are four counts being tried in this case. Counts 1 and 2 pertain to the same alleged incidents of sexual touching involving N. Counts 3 and 4 pertain to the same alleged incidents of sexual touching involving M. The Crown did not apply to admit evidence across counts based on similar facts. I am therefore obligated to consider the evidence pertaining to counts 1 and 2 separately from the evidence pertaining to counts 3 and 4.

13I have not used evidence relating to one complainant’s allegations to draw any inferences relating to issues that arise from the other complainant’s allegations. I have not used the evidence of one complainant to bolster the credibility of the other complainant’s allegations. I have also been careful not to fall into the trap of propensity reasoning. Specifically, I have cautioned myself against inferring from one complainant’s allegations that the accused is a person whose general disposition is such that he is more likely to have committed the acts alleged by the other complainant.

14The law and fairness dictate that my verdict on each count of the indictment be based solely on the evidence admissible with respect to that count. However, in assessing the credibility of witnesses, including the accused, I am entitled to consider the totality of the evidence given by the witness: R. v. P.E.C., 2005 SCC 19, at para. 1. I have therefore considered the whole of each witness’s testimony, on all counts, in assessing their overall credibility and reliability.

LAYOUT OF THE WORKPLACE AND WORKFLOW

15On the evidence adduced at trial, an issue arose as to whether Mr. Nahar may have touched the complainants inadvertently while working in a confined space, or whether he may have touched them intentionally for a work-related purpose rather than a sexual purpose. The contours and dimensions of the physical workspace and the employees’ workflow within the space are therefore important.

16Each of the witnesses gave evidence about the layout of the workplace. By all accounts, in the kitchen at the Wendy’s restaurant, there was a burger grill next to a sandwich preparation station. The sandwich station was directly across from a frier station. Employees would stand with their backs to each other while positioned at the latter two stations. The grill was to the left of the employees facing the sandwich station.

17N estimated that the counter at the sandwich station was approximately 7 feet long. She said it could have been a bit shorter or longer, but that was her best estimate. I accept her evidence on this point because it was not challenged in cross-examination and was not contradicted by any other witness’s testimony.

18N described how there was a toaster in the middle of the sandwich preparation counter and buns were stocked to one side. There were also two small, refrigerated areas on the counter where tomatoes, onions, lettuce and cheese were stocked. Condiments were located at both ends of the counter. Everything was within the employees’ reach. Mr. Nahar gave a similar, albeit less detailed description of the counter set up. He added that extra buns and extra lettuce were stored on shelves beneath the counter.

19During regular business hours, there would be an employee grilling burgers and passing them off to the sandwich counter, where one or two other employees would add buns, vegetables and condiments, then wrap the burgers. Another employee would be behind the sandwich station operating the frier. The prepared food from both stations would be handed off to an employee who would bag it. All the while, additional employees would be taking orders, preparing beverages, operating the tills and serving bagged food to drive-through and in-house customers.

20Orders were supposed to be delivered to customers within a certain time. N recalled that they had 100 seconds to complete each order. Mr. Nahar remembered that the target was 90 seconds. The difference in their memories on this point is insignificant. They both remembered that a timer on the wall was counting down for each order. By all accounts, there was pressure to work quickly. Mr. Nahar testified that a report was generated at the end of each shift, showing how long it took for orders to be completed. He said he would be reprimanded as the shift manager if orders exceeded the target time.

21It got very busy at dinnertime. N and M both stated that, during the busiest periods, there were often two managers on duty. All witnesses agreed that a third employee would typically be assigned to work at the sandwich station to assist in getting the orders out quickly. Part of the shift manager’s job was to make sure food orders were processed efficiently to accomplish the target numbers. It was the shift manager’s responsibility to make sure the workflow was happening. If there was a problem somewhere on the line, the shift manager was expected to step in and help at the frier station or the sandwich station or assist with bagging prepared food.

22Mr. Nahar testified that there were usually three but could be up to four employees, including the shift manager, working side-by-side at the sandwich station during busy periods. N stated that if there were already three employees at the station when the manager stepped in, then the manager would remove one of the employees and takeover for them. She testified that there was “enough room for personal space” at the sandwich counter. Since Mr. Nahar and N did not always work on the same shift, I allow for the possibility that both their statements are true.

23N testified that employees working at the sandwich station were not assigned specific tasks. They would retrieve cooked burger patties off the warming section of the grill, toast buns, garnish the top bun or the bottom bun of each burger, wrap the finished product, and pass it off to other employees who were bagging and serving the food. If a manager stepped in to assist, he or she would assume responsibility for some of these tasks. There were no defined roles at the sandwich counter. Employees just did whatever they could. This evidence was neither challenged nor contradicted, so I accept it as an accurate description of the workflow.

24N testified that the gap between the sandwich station and frier station was “maybe three or more feet.” Ms. Gagnon estimated that there were “approximately four feet” between the counters. Mr. Nahar similarly estimated the distance to be “approximately three or four feet.” Based on this evidence, I find that the space between the stations measured between 3 and 4 feet.

25M testified that the space was 2.5 to 3 metres wide. Based on the consistent testimony of the other three witnesses, I reject her evidence on this point. However, I find that her credibility and reliability are not diminished as a result. I do not believe that she deliberately attempted to mislead the court by exaggerating the size of the space. Nor do I believe that she misremembers the space as being much larger than it is because she did not contest defence counsel’s description of the space as a “confined area.” She agreed that the space was “very tight,” but said “not to the point where you run into each other.”

26I believe that M made an honest mistake. She either misspoke (meaning to say “3 feet” instead of “3 metres”) or she is simply not adept at estimating distances. She was not asked to demonstrate the width of the space in the courtroom, so I have no way of knowing what she perceives to be a width of 3 metres. She was not confronted with the conflicting evidence of the other witnesses or challenged about the accuracy of her estimate, so she was not given an opportunity to retract or correct it. In the circumstances, I dismiss her evidence on this point as incorrect, but I do not consider the mistake to be a blemish on her overall reliability or credibility.

27N said there was enough space for a person to walk between the sandwich and frier stations even if employees were working there, provided that the employees were facing their stations. I accept this evidence as accurate. It was not challenged and is consistent with the estimated distance of three to four feet.

28There were security cameras in parts of the restaurant. N testified that none pointed back into the dish pit. She said there were some near the kitchen, but they were pointed at the tills, where money was handled. She never saw any cameras pointing “down the line” where employees prepared food at the stations. M similarly testified that the only camera that was “semi in that area” was for the registers. She did not believe that it captured the sandwich station. She also did not believe that any camera captured the area right outside the friers, where mops and buckets were stored. I accept their testimony about the location of the cameras because it was consistent, was not challenged on cross-examination, and was not contradicted by either Ms. Gagnon or Mr. Nahar’s evidence.

ALLEGED OFFENCES INVOLVING N

Summary of Evidence

29N is 20 years old. She worked part-time at the Wendy’s restaurant from March 2021 to June 2023. It was her first job. She was in high school at the time, so she mostly worked evenings (after school) and weekend shifts. Mr. Nahar worked with her for three or four months from August 2021 to December 2021. She was 15 years old at that time. He was a closing manager, and she worked a lot of evening shifts, so they worked together often. She estimated that he was her supervising manager for at least two out of four of her weekly shifts in late 2021.

30N testified that Mr. Nahar often stood a lot closer to her physically than any other employee. She said the kitchen where they worked was a tight space, but it was still possible to maintain “a healthy distance.” She recalled that Mr. Nahar would be so close that they would be “touching arms.” She testified that “he was doing a lot of that.” She said she occasionally bumped into other employees while working, but she (or they) would apologize and make it clear that the touch was accidental. She added that did not often happen more than once with the same person. In contrast, touching happened “a lot of times” with Mr. Nahar, and he did not apologize or say anything about it.

31Ms. Gagnon stated that Mr. Nahar is a “close talker.” She said she addressed that issue with him directly because she felt he was too close to others when he spoke with them. Mr. Nahar did not deny this.

32Ms. Gagnon also stated that the kitchen area was tight, and staff would get physically close to one another and bump and jostle all the time. N testified that Mr. Nahar was different from other coworkers, and not simply because he did not apologize when he touched her. She described how he would touch her in ways that were not accidental bumps. She gave the example of standing in a group talking to other employees and he would come up and put his hands on her shoulders and just stand there. She found that to be a weird thing for a manager to do.

33N recalled one occasion when she was alone doing dishes in the dish pit. She described the incident as follows. Mr. Nahar entered the room, grabbed her hip and slid her across the counter to move her out of his way. She felt uncomfortable being grabbed and thought he could have asked her to move or said, “excuse me” instead of touching her. He did not say anything to her at the time, before or after physically moving her.

34Mr. Nahar did not recall this incident in the dish pit. At one point during his testimony, he denied it happened, but later in his testimony, he acknowledged the possibility that it may have happened.

35Mr. Nahar testified that he may have physically moved both male and female employees during his shifts, if he needed to reach for something in a hurry, especially at the sandwich counter during rush times. Toward the end of testimony, he explained that he would normally place the back of his hand on someone’s arm to push them aside if he needed them to move. He did not remember touching anyone’s hips or shoulders but ultimately conceded that it was a possibility.

36Mr. Nahar described how, during busy times, he would simultaneously listen for orders communicated on a headset in English, which is not his first language, focus on the timer to ensure that orders were completed without delay, and speak to staff about which sandwiches were ready to bag. He testified that, under the pressure of those circumstances, he did not have time to ask staff members to move if he needed to reach for something. It was faster and easier simply to use the back of his hand to direct them to move.

37Considering all the above evidence, including Mr. Nahar’s concessions, I am persuaded that the touching of N’s shoulders and hips occurred. Based on the evidence at trial, the Crown did not argue that these incidents were for a sexual purpose or were done in circumstances of a sexual nature. The Crown does not submit that they constituted sexual assaults.

38The incidents that form the basis of the Crown’s case for counts 1 and 2 allegedly occurred during times when Mr. Nahar and N were working together at the sandwich preparation station. During her examination-in-chief, N testified as follows. They would both be standing at the counter, facing in the same direction. Mr. Nahar would turn and reach back with his arm to pass a prepared burger to another coworker, then he would place his hand on her butt, palm open, when he pulled his arm back. She could not say the precise number of times this happened, but she estimated that it occurred once per shift. It happened so frequently that she concluded it was not accidental.

39N further testified that when Mr. Nahar’s hand slid across her butt, she felt scared and uncomfortable, but she did not say anything to him about it. She explained that she was only 15 years old, he was her manager at her first ever job, and she did not want to make a scene, so she kept her feelings to herself. She recalled that he never said, “sorry, I didn’t mean to do that” or other similar words of apology.

40During her cross-examination, N confirmed that Mr. Nahar did not “grab” her butt when he touched her. She agreed with defence counsel’s suggestion that it was more like his hand “brushed” against her butt, or “grazed” her behind. She was confident that it was not someone else passing by who brushed against her. She said there was no one walking behind them when she felt him touch her butt. Although she did not look down and see Mr. Nahar’s hand touching her, she was sure it was his hand and not his hip or elbow that grazed her. She said she felt five individual fingers on her butt. She acknowledged the possibility that it could have been the back of his hand, but she assumed it was his palm.

41Mr. Nahar testified that, when he worked as a shift manager, particularly during busy times, he would listen to orders on his earpiece to determine where help was needed. He might step in at the frier or the sandwich station. He was often needed at the sandwich counter because preparing and wrapping burgers was the most time-consuming job.

42Mr. Nahar testified as follows. When he helped at the sandwich station, there were usually two other people working beside him, sometimes three. He would go between the first and second workers on the line, or between the second and third workers on the line. At the counter, he would place meat on the bottom bun or help garnish the top bun of a burger, whatever needed to be done. Once an order was completed, he would look to the person on his extreme right to see if the wrapped burger had been given to the bagger. If that person was busy doing something else, then he would go from behind that person and reach for the wrapped burger and give it to the bagger. Sometimes, he would bag the burger himself if they were running out of time to complete an order.

43Mr. Nahar stated that he spent most of his shifts in the area between the sandwich station and frier station. He would not only inject himself into the line to help prepare food if needed, but also sometimes to restock supplies such as buns or lettuce. He acknowledged the possibility that his movements caused him to touch N accidentally, although he had no specific recollection of that. He denied ever intentionally touching her buttocks.

44During his cross-examination, Mr. Nahar testified that he sometimes stood behind the employees at the sandwich station and waited for them to prepare burgers. He explained that he would then reach over or in between them to grab a burger that was ready and that needed to be bagged. He described and demonstrated how he would reach with his arm fully extended, then pull his arm back with the burger in hand. He conceded the possibility that he may have done that on occasions when N was working at the counter.

Analysis of Witness Credibility and Reliability

45N provided her evidence in a straightforward manner. She readily admitted facts that could support the accused’s defence. For example, during her examination-in-chief, she volunteered that Mr. Nahar may have been reaching to grab something when he put his hand on her hip in the dish pit and moved her out of his way. During her cross-examination, she candidly acknowledged that she had conversations with co-workers (including M) about Mr. Nahar’s conduct before she complained to senior management and reported him to the police. Her overall candour enhances my confidence in her intent to be forthright and truthful. As I explain later in my reasons, I am not concerned that her testimony was tainted by any (intentional or inadvertent) collusion.

46N was cautious in distinguishing clear memories of events from facts with respect to which she had less clarity due to the fading of her memory over time. She demonstrated care and a desire to be as accurate as possible, which further enhances my trust in the reliability and credibility of her testimony. She acknowledged that she could not remember certain peripheral details, such as the dates on which the alleged touching occurred. I would not expect her to have precise recall of such mundane facts, particularly given her young age at the time of the events in question, and the amount of time that has passed. The gaps in her memory do not pertain to the core allegations.

47Most notably, N’s testimony was internally consistent and was unshaken on cross-examination. Her testimony was not characterized by embellishment or other flaws that would diminish either her credibility or her reliability.

48In contrast, Mr. Nahar’s testimony suffered from multiple internal inconsistencies, and did not withstand cross-examination. The most glaring example of this pertains to the issue of whether he ever intentionally touched employees in the workplace. He was questioned about this repeatedly, primarily in the context of stepping in to assist employees at the sandwich station during busy times.

49Mr. Nahar initially stated that he could not remember whether he ever touched an employee intentionally, then he categorically denied ever intentionally touching an employee, and then he later admitted the possibility and provided an explanation for why he may have done do. He shifted back and forth between the latter two inconsistent statements throughout his testimony but repeatedly asserted that he had no actual memory of touching anyone. Then, towards the end of his cross-examination, he suddenly asserted that he had a specific recollection of touching employees’ arms from behind with the back of his hand to move them out of his way. In short, his evidence on this topic ranged from, “I haven’t intentionally touched anybody” and “I do not have any such incident happen with anyone,” to “there’s a possibility I might have moved people but it’s not a big thing,” to “sometimes I had to get the back of my hand and move them,” to “I have that recollection because I had a bag in one hand and in the other hand I was holding a burger.”

50Mr. Nahar’s evidence with respect to where he intentionally touched (or may have touched) employees was also inconsistent. During his examination in chief, he described how he would touch an employee’s arm with the back side of his hand to move them out of the way if he needed to make space at the sandwich counter. Defence counsel asked whether he could have placed his hand on their shoulders. He responded, “not the shoulders, but the arm.” However, during his cross-examination, while he repeated that he would touch their arms, he also admitted the possibility that he touched their shoulders.

51On more than one occasion during his testimony, Mr. Nahar admitted the possibility that he may have touched N and M to move them. He specifically admitted the possibility that he may have touched their hips to move them. Ordinarily, I would treat such concessions as indicators of forthrightness that enhance credibility, but in this case, Mr. Nahar contradicted himself on this topic. Toward the beginning of his cross-examination, the Crown said to him, “you were asked about touching N and M on their hips,” to which he responded, “I have not touched them.” He went on to explain that he only ever reached over the shoulders or between the arms of employees at the sandwich counter. He gestured with a straight arm extended at shoulder height to demonstrate his actions. Mr. Nahar is considerably taller than both N and M. He suggested that any intentional touching or even inadvertent touching would have occurred above waist height. This is inconsistent with his prior and subsequent admissions that he may have intentionally touched N’s and M’s hips.

52Mr. Nahar’s evidence did not waver on the core issue of whether he touched N’s buttocks. He denied that consistently. But the constant shifting of his testimony on other issues left me with little confidence in the reliability and credibility of his evidence. There were several occasions when the Crown repeated back to Mr. Nahar testimony that he had just given, and he would dispute what he had said or deny that he had said it. This pattern contributed to the internal inconsistencies in his evidence.

53Mr. Nahar’s credibility also suffered because of his evasiveness during cross-examination. In considering this feature of his testimony, I have made allowance for the fact that he testified through the assistance of an interpreter. I recognize that interpretation can give rise to imprecision and miscommunication. However, Mr. Nahar’s purported difficulties in understanding and directly answering questions did not arise until he was being cross-examined. The interpretation seemed to work flawlessly during his examination-in-chief. Moreover, he did not complain at any time during the trial about the quality of the interpretation services. I am therefore confident that the interpreters were not the source of the problem.

54Mr. Nahar readily answered questions during his examination-in-chief, whereas he frequently asked for questions to be clarified during his cross-examination. The Crown’s questions were not compound or particularly complex, so the difference in his responses is not attributable to the lawyer framing questions differently. The questions that he asked to have clarified were simple and were on topics that had already been discussed during his examination in chief. For example, on the topic of him helping at the sandwich station, he confirmed that he sometimes needed to reach across other employees to get a sandwich. The Crown then asked, “sometimes you’d move employees out of the way?” He responded, “what do you mean?” He had already testified in detail about using the back of his hand to move employees to the side, so his need for clarification of that question did not appear genuine.

55There were several occasions when this occurred during his cross-examination. Another example is when the Crown asked him if he agreed that N “never told you it was ok to touch her buttocks.” Mr. Nahar responded, “I don’t understand the question.” While it is entirely appropriate for any witness to seek clarification of a question that they genuinely do not understand, I believe that Mr. Nahar’s frequent requests for clarification during cross-examination resulted from his desire to avoid answering questions that put him on the spot.

56Another deficiency in Mr. Nahar’s credibility arises from the absurdity of some of his statements. For example, he testified that, on occasions when he touched employees at the sandwich station to move them out of his way, he did not have time to ask them to move or give them instructions to move. He explained that he would be listening to his headset for orders, watching the timer count down, and asking the employees which burger he needed to take to complete an order. He said he was in too much of a hurry to have time to say the words, “move” or “excuse me”. In contrast, he stated that if someone was standing in front of a cabinet, he would ask them to step aside and would not physically move them if he needed to open a drawer. He testified, “I have never touched anyone at that time because the drawers were below or under [the counter]. I had time to say, excuse me. It would take just one second to say and they would understand that I needed something.” It defies common sense for Mr. Nahar to suggest that he had time to utter the words ‘excuse me’ when bending down but not when reaching between or over employees. I believe he drew this illogical distinction to distance himself from the possibility that he may have touched N or M below counter height (i.e., on their buttocks).

Sexual Assault (count 1)

57There are five essential elements of the offence of sexual assault, each of which the Crown must prove beyond a reasonable doubt. I will address each element in turn.

Touching

58Based on the totality of the evidence, I am convinced that Mr. Nahar touched N’s buttocks on multiple occasions in the workplace. I reject his statements that he never touched her buttocks because I find his evidence, overall, to be lacking in credibility for the reasons articulated above. His testimony does not give rise to any reasonable doubt in my mind about whether the touching occurred.

59N’s testimony was consistent, credible and compelling. I accept her evidence without reservation and find that Mr. Nahar placed his hand on her buttocks when he was standing beside or behind her at the sandwich preparation station. He did this repeatedly, approximately once per shift, over a period of many weeks between August 2021 and November 2021.

60The absence of video footage corroborating N’s allegations does not create reasonable doubt about what happened. Given the placement of the cameras relative to the sandwich station, I would not expect the touching to have been captured on video. Moreover, the fact that Ms. Gagnon did not observe anything unusual on the video recordings is of limited probative value because she only looked at the video from two dates when Mr. Nahar and N were working together. The touching occurred repeatedly over a span of a few months.

61The fact that other employes were in the vicinity when the touching occurred does not render N’s testimony implausible or give rise to doubt in my mind about what happened. I believe that Mr. Nahar took the risk of engaging in such conduct in the workplace because he knew it was unlikely that his inappropriate actions would be witnessed by anyone else. The touching of N’s buttocks occurred during the busiest times, when all other employees were focused on their tasks and were trying to complete orders before the timer ran out. Other staff members would have been turned away from N’s behind, facing their stations, grill or counters. They would have been occupied with their duties and would not have been paying attention to what Mr. Nahar was doing with his hand.

62The only person who may have been looking in Mr. Nahar’s general direction is the staff member responsible for bagging prepared food. However, that person would also be focused on their own task as soon as Mr. Nahar passed them a burger. N testified that Mr. Nahar placed his hand on her butt after he passed a burger back to the bagger. His actions were therefore not easily detectable by any other employees in the workplace.

Intent

63I am persuaded beyond a reasonable doubt that the repeated touching of N’s buttocks was intentional. The frequency with which it happened, and the circumstances in which it happened, are sufficient to prove beyond a reasonable doubt that it was not accidental.

64As the shift manager, Mr. Nahar was ultimately responsible for ensuring the workflow, so he would assume responsibility for various tasks during the busiest times. He would be moving in between and reaching over top of other employees at the sandwich station to get the job done. He likely occasionally touched other employees (including N) inadvertently. However, he would have touched their shoulders or arms. By his own account, he was not required to place his hand anywhere in proximity to any employees’ buttocks to complete his duties. The touching of N’s buttocks was not incidental to performing his job.

Circumstances of a Sexual Nature

65I find that Mr. Nahar sometimes intentionally touched employees, including N, simply to move them out of his way. However, he did not touch N’s buttocks for the purpose of moving her. I accept N’s testimony that there was no pressure from his hand directing her to move or step aside.

66Based on the evidence, there was no work-related purpose to the touching of her buttocks. Rather, Mr. Nahar was simply feeling her butt. I infer that he did so either for personal gratification (to satisfy his own sexual impulses) or to assert power over N by denigrating her sexually – or both.

67The part of N’s body that he consistently touched supports a finding that the touching was done in circumstances of a sexual nature. Although buttocks are not sexual organs, they are widely viewed as secondary sex characteristics. They are an intimate part of a person’s body. The touching of N’s buttocks not only infringed on her personal space, it also violated her sexual integrity.

68For all the above reasons, I am convinced beyond a reasonable doubt that the sexual nature of the touching would be apparent to a reasonable observer.

Complainant’s Lack of Consent

69N testified that she did not consent to the touching. It made her uncomfortable and scared. I accept her testimony and find that she did not voluntarily agree to let Mr. Nahar touch her buttocks.

70Moreover, N was only 15 years old at the relevant time. She therefore did not have the legal capacity to consent to sexual touching by Mr. Nahar, who was more than five years older than her and who occupied a position of authority towards her: Criminal Code, s.150.1(1) and s.150.1(2.1).

Accused’s Knowledge of Complainant’s Lack of Consent

71Mr. Nahar knew that N did not consent to the touching. He confirmed during his cross-examination that she never gave him permission to touch her buttocks.

Conclusion (count 1)

72For the above reasons, I find that the Crown has proven all the elements of the offence of sexual assault beyond a reasonable doubt. Consequently, I find Mr. Nahar guilty on count 1.

Sexual Interference (count 2)

73There are four essential elements to the offence of sexual interference, two of which overlap with the elements of the offence of sexual assault.

Intentional Touching

74I have already concluded that Mr. Nahar touched N’s buttocks intentionally on repeated occasions between August 2021 and November 2021. That finding satisfies the Crown’s burden with respect to the first two elements of the offence under count 2.

Sexual Purpose

75I have also concluded that Mr. Nahar touched N’s buttocks either to satisfy his own sexual impulses, or to exercise power over a subordinate coworker by denigrating her sexually. The Crown has therefore established, beyond a reasonable doubt, that the touching was for a sexual purpose, which is the third essential element of the offence of sexual interference.

Age of Complainant

76The only remaining element of the offence in count 2 is that the complainant was under 16 years of age when the touching happened. It is undisputed that N was 15 years old between August 2021 and November 2021.

77Mr. Nahar testified that he was not aware of N’s age when he was working as her shift manager. He agreed that many of the employees looked young. He said he heard some of the crew members talking about school, but not N. He asserted that he did not know she was in high school and did not know she was 15 years old.

78It is not a defence to a charge of sexual interference that the accused believed the complainant was 16 years of age or more at the time of the alleged offence “unless the accused took all reasonable steps to ascertain the age of the complainant”: Criminal Code, s. 150.1(4). There is no evidence that Mr. Nahar took any steps whatsoever to ascertain N’s age. This defence is therefore not available to him.

Conclusion (count 2)

79For the above reasons, I find that the Crown has proven all the elements of the offence of sexual interference beyond a reasonable doubt. I therefore find Mr. Nahar guilty on count 2.

ALLEGED OFFENCES INVOLVING M

Summary of evidence

80M is 21 years old. She was 16 years old between August 15, 2021 and November 22, 2021, which are the dates specified on the indictment for counts 3 and 4.

81During the relevant period, M worked at the same Wendy’s restaurant as N. She worked part time hours, mostly evening shifts because she was in high school at the time. Mr. Nahar was one of her shift managers. She worked with him multiple times per week between August 2021 and November 2021.

82M testified about numerous incidents of unwelcome touching by Mr. Nahar. She said one of the earliest incidents occurred in or around September 2021. She recalled that it was not busy, and she was the only employee working at the sandwich station. She stated that Mr. Nahar approached the station and moved her by putting both of his hands on her hips. She said, “I guess I was in the way of something, so he physically moved me.” She described how the force of his hands pushed her in the left direction. He did not ask her to move or ask for her permission to touch her. She recalled that he grabbed whatever he needed from the table and then went back to the drive-through window. She did not say anything to him but just stood there confused and frozen, thinking, “what just happened?” or “what the heck?”.

83In light of M’s testimony that Mr. Nahar’s apparent purpose in touching her hips was to move her so that he could reach for something he needed, the Crown did not argue that this incident constitutes a sexual assault. The Crown instead relies on other incidents described by M.

84M testified about an occasion when she was one of only three employees working under Mr. Nahar’s supervision near closing time. Her evidence about this alleged incident may be summarized as follows. She had been mopping the floors and was standing at a bucket next to the friers, wetting her mop. Mr. Nahar approached her from behind and stood to her left, slightly behind her. He stood close to her, with their arms touching. He made a comment about how she was not mopping the floors properly. She responded to him, then she felt something touching her butt. She looked down and saw that it was his hand. She looked back up at him but did not say anything because she was in shock. He left his hand there for a couple seconds until she moved forward away from him. She picked up her mop, walked away and continued mopping the floor.

85M stated that there were approximately 10 other times when Mr. Nahar touched her buttocks. She testified as follows. The majority of incidents happened when they were both working at the sandwich station. He would be standing on either side of her and then he would suddenly put his hand on her butt and leave it there for up to 6 or 8 seconds. When this happened, he was not pushing her in any direction or trying to force her to move. It was not like the time he placed his hands on her hips to physically move her so that he could reach for something. His hand would just be sitting there on her butt, but with a grip to it.

86During her cross-examination, M readily admitted that she initially questioned whether the contact with her buttocks was intentional. She said the first and second time it happened, she thought it might have been accidental. But then the incident occurred when he placed his hands on her hips to move her, and that was clearly intentional. After that incident, she started to think his touching of her butt was also deliberate.

87M testified that she would look at his hand when he touched her buttocks. She saw his palm against her butt and felt a grip. Neither of them said anything in those moments. She stated that it was not fleeting, like a graze, but rather had a grip to it and lasted for multiple seconds. The length of time that he left his hand there and the grip she felt made her believe it was not incidental contact.

88Finally, M described a single incident when Mr. Nahar allegedly grabbed her breast. She said it was a later incident that occurred likely in November 2021. Her testimony about this event may be summarized as follows. It happened during rush hour around dinner time. There were three people working at the sandwich station, including her and Mr. Nahar. He had stepped up to the food preparation table to assist in making sandwiches. He was to her right, in between her and the other employee. They were all facing the same direction, preparing the food. She suddenly felt something on her right breast. She looked down and saw the palm of his right hand on her breast. He was reaching across his own body to grab her breast. He left his hand there for multiple seconds, maybe 4-5 seconds, to the point where she thought it was not accidental. It also had a grip to it. He did not squeeze her breast, but it was a firm grip with some pressure.

89M also testified as follows. His hand did not just land on her breast while he was reaching for condiments or other garnishes on the table. He was assisting with sandwich preparation so he would have been reaching across the table for items, such as lettuce or cheese, but he did not need to touch her to access those items. Their arms might bump when working side by side at the sandwich table, but he could have reached in front of her without coming into contact with her breast. When he gripped her breast, he did not say anything. She looked at him while he still had his hand on her breast, but she did not speak. He removed his hand after she looked at him. He pulled it back towards himself without reaching for anything on the table. She just looked forward and pretended it didn’t happen.

90Mr. Nahar denied ever touching M’s breast. He denied touching her buttocks when she was mopping floors and when she was working at the sandwich station. At certain points during his testimony, he conceded the possibility that he may have placed his hands on her hips to move her out of his way, but he stated that he had no specific recollection of doing that. He also stated, at other times during his testimony, that he never touched M intentionally.

Analysis of Witness Credibility and Reliability

91I have already outlined my assessment of the serious deficiencies in Mr. Nahar’s credibility and reliability. They apply equally with respect to his evidence as it pertains to M’s allegations. Some aspects of his testimony were illogical (as described above). He was evasive during his cross-examination, in stark contrast to the direct manner in which he answered questions during his examination-in-chief. Most troubling of all, his testimony was riddled with internal contradictions and inconsistencies.

92Mr. Nahar’s testimony did not waver on the core issue of whether he touched M’s buttocks or breast. He denied those allegations consistently. However, the deficiencies in his credibility cause me to reject the exculpatory parts of his evidence.

93M’s evidence, in contrast, was consistent, internally coherent, forthright and compelling. She demonstrated attention to detail and good recall despite the passage of time. Any gaps in her memory were on peripheral issues and not on her core allegations.

94Defence counsel conducted a skilled and detailed cross-examination of M, but her evidence withstood scrutiny. He attempted to impeach her credibility by exposing inconsistencies in prior statements she made to the police, but the prior statements were either reconcilable or amounted to insignificant differences.

95For example, defence counsel put to M that she told the police Mr. Nahar’s touches of her bum were accidental. He pointed to the following statements that she made during her police interview: “Like I don’t know if it was accidental” and “Like it could be … could have been accidental.” However, the transcript of the interview shows that, in the same breath, M also told the police, “it didn’t seem accidental at some points” and “it was more like a hold” than a graze by someone. M pointed this out and testified that she was explaining to the officer how she originally questioned whether the touching was accidental, but later realized it was purposeful. I accept this explanation and find there is no contradiction between her testimony at trial and her statement to the police on this point.

96The only inconsistency in M’s prior statement to the police was with respect to what caused Mr. Nahar to remove his hand from her buttocks on the occasions when he touched her at the sandwich station. M testified that her looking at his hand was not the cause of him removing it from her buttocks. She said he would keep his hand there for a couple seconds, even after she looked at it. Defence counsel pointed out that she told the police something different when she stated, “then like once he realized that I like saw it or like felt it, he would like move it.” M responded that Mr. Nahar would move his hand a couple seconds after realizing that she saw it or felt it. She asserted that what she told the police was the same as what she stated at trial.

97I agree with defence counsel that there is a subtle but not trivial difference between M’s earlier statement to police and her testimony at trial. Her previous statement suggested that Mr. Nahar held his hand on her buttocks for a couple seconds, then removed it once he realized that she noticed it, whereas her testimony at trial was that he persisted in holding her buttocks for a couple more seconds even after he realized that she had noticed what he was doing. This is, however, a difference without consequence. In both her prior statement to the police and her testimony at trial, M consistently articulated that it was not a fleeting touch or mere grazing of her buttocks, but rather a “hold” or “grip” that seemed purposeful. When exactly and why he removed his hand do not alter M’s evidence that the touching was firm enough and long enough to be intentional. I therefore do not view her testimony at trial as an embellishment of what she previously told the police.

98Defence counsel also attempted without success to expose internal contradictions in M’s testimony at trial. For example, he noted that she initially used the phrase “a couple seconds” to describe the length of time that Mr. Nahar had his hand on her buttocks, but then she later said it was more than 5 seconds and could have been 6 to 8 seconds. Defence counsel suggested that a “couple” denotes 2. M responded, “not necessarily.” She explained that, to her understanding, a “couple” means “3 or more.” I do not find this to be a pretext to cover up an internal contradiction in her evidence, because she used the expression “a couple” consistently in that manner throughout her testimony. It was clear, in many instances, that she meant more than 2 when she stated, “a couple”.

99When M testified about Mr. Nahar touching her buttocks while she was wetting her mop, she said he walked up from behind her on her left side, then placed his right hand on the right cheek of her buttocks and gripped it. At one point during her cross-examination, she stated that he touched her left cheek, then she immediately corrected herself and said it was her right cheek. She denied being confused about which cheek he touched and explained that she simply misspoke and said “left” when she meant “right”, probably because she remembered him standing to her left. I accept this explanation as logical and genuine. Her misstatement does not diminish the reliability or credibility of her evidence.

100M was cautious but not hesitant in giving her testimony. She was forthright and precise. She demonstrated candour in readily acknowledging that, at first, she was not sure whether the touching was intentional. She also readily acknowledged speaking to other female coworkers about Mr. Nahar’s conduct and sharing her experiences with them, including N. For the reasons that follow, I find that these conversations with other employees did not taint her evidence or render it less reliable.

Potential for Collusion and Bias

101The complainants knew each other at the time of the alleged offences. They were not friends but they both worked at the same Wendy’s restaurant throughout the period that Mr. Nahar was employed as a shift manager. They spoke to each other and to other coworkers about Mr. Nahar’s conduct before N disclosed it to her parents and complained about him to Ms. Gagnon. They spoke again after N decided to report his conduct to the police. Mr. Nahar had resigned from his employment by then.

102In the circumstances, there is a risk that the complainants’ evidence could be marred by either deliberate collusion or inadvertent tainting. I have given this serious consideration and am confident that their respective testimonies were not influenced by their prior discussions. I arrived at this conclusion for the following reasons.

103Both complainants were cross-examined about the information that they shared back in 2021. They were both forthright in answering questions on this topic.

104N readily acknowledged that, about one month before she gave her statement to the police, she spoke with a group of employees, including M, about Mr. Nahar’s conduct. She could not recall many details of that conversation, which happened more than four years ago. She remembered sharing with N how Mr. Nahar had touched her, but she could not remember exactly the things that M said Mr. Nahar did to her. She could not recall whether M shared which part of her body he touched. She just remembered that they both felt uncomfortable being touched by him. She testified, “I remember what happened to me, not what happened to other people.”

105M testified that she spoke about Mr. Nahar’s conduct to a group of other female employees at the Wendy’s restaurant starting around October or November 2021. She said, “we didn’t go into detail about what happened to each other. We talked about how he made us feel uncomfortable.” She could not recall whether N was involved in those first discussions, but she remembered talking to N on subsequent occasions, after Mr. Nahar resigned from his position in December 2021.

106M stated that her conversations with N were never one-on-one; they always occurred in a group setting. She said she talked about how Mr. Nahar would grip her butt, but she never mentioned anything to the other women about him touching her breast. She recalled N stating that she had also experienced incidents of Mr. Nahar touching her behind.

107M remembered that the last time she spoke to N was about two weeks before she was interviewed by the police (on April 18, 2022). She remembered that N disclosed to a group of female employees that she went to the police. M testified as follows. She had been suppressing her feelings about what Mr. Nahar did to her, pushing them down and pretending it didn’t happen. The female employees talked about his behaviour, “but we didn’t know it was sexual assault really, we just thought he was being weird.” After N went to the police, she realized it was something serious. She had been sitting on it for a while, repressing her feelings about it, but then “it got really real” to the point that she “couldn’t hold it in anymore.” So she decided to give a statement to the police.

108Defence counsel suggested to M that what she experienced was just incidental contact, but she inflated it in her head over several months because of these conversations with N and other employees, then she went to the police with an exaggerated false story of what Mr. Nahar had done. M was firm in denying that suggestion. She testified, “I repressed it in my head. I didn’t build it up.”

109I have disregarded all hearsay evidence about what any other female employees may have stated regarding Mr. Nahar’s conduct towards them, except to consider the extent to which those statements could have influenced N or M’s perceptions or accounts of what they experienced. Other women’s statements are inadmissible for the truth of their content.

110There is no evidence to support an inference that the two complainants deliberately colluded with each other or with other coworkers to concoct evidence against Mr. Nahar. They were young adolescent girls with no prior work experience. They felt uncomfortable about the way their shift manager was touching them, but they did not know what to make of it. They spoke to each other and to other female co-workers as a sort of reality-check, because they were shocked by what was happening and somewhat in disbelief. M explained that she was in denial, pretending that what happened wasn’t real. The conversations they had with each other validated their feelings and gave them confidence to come forward and report their experiences to the police. That is not the same thing as conspiring to fabricate evidence to get someone in trouble.

111I have considered whether racial bias may have influenced the complainants’ perceptions of Mr. Nahar’s conduct or their decisions to report their experiences to the police. Mr. Nahar is South Asian. He was born in Punjab and immigrated to Canada in August 2018. Both complainants appear to be Caucasian. Defence counsel did not argue that the complainants were motivated to fabricate allegations against Mr. Nahar based on conscious or unconscious racial, ethnic or cultural bias. However, he did explore that possibility during his cross-examinations and it is an important issue to consider.

112Both complainants acknowledged that they thought Mr. Nahar was “weird” and “creepy,” but they made it clear that they formed this impression of him because his touching of young adolescent girls in the workplace was weird and creepy. Nothing in either of their testimonies suggests prejudice against South Asians, or adherence to the stereotypical myths that a Brown man is more likely to disrespect women or to commit a sexual offence. I am confident that the complainants did not deliberately conspire to concoct false evidence against Mr. Nahar for racist or other reasons. I am also confident that their perception of Mr. Nahar’s behaviour was not tainted by racist myths and stereotypes.

113Inadvertent collusion or unconscious tainting of evidence can be just as damaging to the credibility and reliability of witness testimony, but there is no evidence that happened in this case. Although the complainants spoke to each other back in 2021 and 2022, they did not share details of the incidents that allegedly occurred, apart from both mentioning that Mr. Nahar had touched their buttocks. Their discussions with each other may have reinforced their conviction that the touching was not accidental, but that does not alter the substance of their evidence about how, where, and how often he touched them.

114There is no evidence that the complainants saw copies of each other’s statements to the police. There is no evidence that they spoke to each other in preparation for testifying at trial or shared the content of their testimonies with each other during the trial. I am confident that they testified from their independent recollections of their own experiences. Their evidence was not coloured by each other’s accounts of their respective experiences.

Sexual Assault (count 3)

Touching

115Based on the totality of the evidence, I am convinced that Mr. Nahar touched M’s breast on one occasion and touched her buttocks on multiple occasions in the workplace between August 15, 2021 and November 22, 2021. I reject his statements that he never touched her buttocks or breast because I find his evidence, overall, to be lacking in credibility for the reasons articulated above. His testimony does not give rise to any reasonable doubt in my mind that the touching occurred.

116M’s testimony was consistent, credible and compelling. I accept her evidence without reservation. I find that Mr. Nahar touched her in the manner that she described.

117Defence counsel submits that M’s testimony is implausible, given the presence of so many other employees in the workplace. I disagree. I believe that Mr. Nahar took the risk of engaging in such conduct because he knew it was unlikely that his inappropriate actions would be witnessed by anyone else.

118The touching of M’s buttocks when she was mopping occurred late in their shift when only two other employees were working. M testified that both those employees were in another area doing dishes when the incident occurred. There was no video camera in the area where that incident happened.

119The other times that Mr. Nahar touched M’s buttocks, he did so at the sandwich station during the busiest times. Other employees were focused on their tasks and trying to complete orders before the timer ran out. They would not have been paying attention to what Mr. Nahar was doing with his hand.

120M testified that, on the occasion when Mr. Nahar touched her breast, the third employee who was working at the sandwich station likely would not have seen him do it because Mr. Nahar’s height and size would have blocked their line of vision. She explained that she is only 5’ tall, whereas Mr. Nahar is about 6’3”. She stated that the other employee on Mr. Nahar’s right side was a teenager about the same size as her.

121There is no question that gripping M’s breast while working at the sandwich station with another employee was a brazen act, but that does not render M’s account unbelievable, nor does it raise doubt in my mind that it happened.

Intent

122The Crown has established beyond a reasonable doubt that the touching of M’s breast and buttocks was not accidental. The length of the touching on each occasion, the grip applied by Mr. Nahar’s hand, and the repetition and frequency of the touching are all inconsistent with inadvertent contact.

Circumstances of a Sexual Nature

123Considering the body parts that Mr. Nahar targeted with his touching (i.e., M’s breast and buttocks), it would be obvious to a reasonable observer that the touching was done in circumstances of a sexual nature. I have no doubt about this.

Complainant’s Lack of Consent

124M testified that she did not consent to any of the touching. I believe her. There is no evidence that she consented through words or actions. Her silence does not constitute consent. Her submission or lack of resistance also does not constitute consent.

Accused’s Knowledge of Complainant’s Lack of Consent

125Mr. Nahar was aware that M did not consent to the sexual touching. He admitted that she never gave him permission to touch any part of her body.

Conclusion (count 3)

126For the above reasons, I find that the Crown has proven all the elements of the offence of sexual assault beyond a reasonable doubt. I therefore find Mr. Nahar guilty on count 3.

Sexual Exploitation (count 4)

127The offence of sexual exploitation has four essential elements. Specifically, the Crown must prove beyond a reasonable doubt that:

i. M was a “young person” at the time;

ii. that Mr. Nahar intentionally touched M, either directly or indirectly;

iii. that the touching was for a sexual purpose; and

iv. that Mr. Nahar was in a position of trust or authority towards M.

Age of Complainant

128Subsection 153(2) of the Criminal Code defines “young person” as someone who is sixteen years old or more, but under the age of eighteen years. There is no dispute that M was 16 years old at the time of these events.

129It is not a defence to a charge under s. 153 that the accused believed that the complainant was 18 years of age or more at the time the offence is committed unless the accused took all reasonable steps to ascertain the complainant’s age: Criminal Code, s. 150.1(5). Mr. Nahar made no effort whatsoever to ascertain M’s age. This defence is therefore not available to him.

Intentional Touching for a Sexual Purpose

130I have already concluded, for the reasons set out above, that Mr. Nahar intentionally touched M’s breast and buttocks directly with his hand. He touched her breast once and touched her buttocks repeatedly. I accept M’s testimony that all the touching was with a grip that lasted at least a few seconds.

131I infer from the totality of the evidence that Mr. Nahar engaged in this conduct for his own sexual gratification, to exercise power over a subordinate female by denigrating her sexually, or both. I am therefore satisfied beyond a reasonable doubt that the touching was for a sexual purpose.

Position of Authority

132The last remaining element that the Crown must prove is that Mr. Nahar was in a position of trust or authority with respect to M. An individual holds a position of authority toward a young person if they are in a position either to enforce obedience by the young person, or to influence the young person’s conduct.

133As M’s shift manager, Mr. Nahar was her direct supervisor at work. He could and did direct what duties she performed and how she performed them. He monitored her and criticized her when he thought she was not completing tasks (such as mopping) properly. He had the ability to affect her job security if he reported deficiencies in her job performance to higher management. In the circumstances, there is no question that he was in a position of authority over her.

Conclusion (count 4)

134For the above reasons, I find that the Crown has proven all the elements of the offence of sexual exploitation beyond a reasonable doubt. I therefore find Mr. Nahar guilty on count 4.

Footnotes

1. 1Mr. Nahar resigned from his employment at the Wendy’s restaurant in December 2021. I therefore believe this is a typographical error in the indictment. This date should read 2021 and not 2022.