R v Castro-Wunsch, 2021 ABQB 337

Court of Queen’s Bench of Alberta Citation: R v Castro-Wunsch, 2021 ABQB 337 Date: 20210428 Docket: 181055930Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Marco Castro-Wunsch Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the victim must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published, including using initials in place of the complainant’s name and anonymizing the business in issue. Corrected judgment: A corrigendum was issued on April 29, 2021; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment

of the Honourable Madam Justice Tamara L. Friesen _______________________________________________________ [ 1 ] Under the authority of s 486.4 of the Criminal Code , RSC 1985, c C-46 , information that could identify the victim must not be published, broadcast, or transmitted in any way. Identifying information has been removed from this judgment to comply with the ban so that it may be published, including using initials in place of the complainant’s name and anonymizing the business in issue. I. Executive

Summary [ 2 ] Marco Castro-Wunsch (Mr. Castro-Wunsch) is charged with sexually assaulting AB. At the time of the alleged assault, AB had been working for a company I will call CD Corp as a summer student for approximately two months. The accused was AB’s employer and immediate supervisor. His wife, Ms. Castro-Wunsch, was the owner of CD Corp. Mr. Castro-Wunsch was 53 at the time of the alleged offence. AB was 21. [ 3 ] The complainant testified that shortly after reporting for work at CD Corp the morning of July 16 th , 2018, Mr. Castro- Wunsch sexually assaulted her in his office.

He continued the sexual assault or series of sexual assaults against her over the course of the day, from approximately 9:30 AM to 5 PM. He left her alone in the office at various times during the day to go to the front office to deal with clients, but he was gone for such brief periods – “always 10 to 15 seconds” – that she had no time to leave. She testified that she was finally able to collect herself in order to leave the building at approximately 3:00 PM. When she returned later in the day to retrieve her wallet and personal belongings, she did not expect him to be there.

The accused was still in the office when she entered the building, and the sexual assault resumed. [ 4 ] The Crown tendered as evidence a series of text messages between the complainant and her friend, who I will call RR, sent the day of the alleged sexual assault, during approximately the same time period the assaults were alleged to have been occurring.

In the context of that text conversation, the complainant told her friend, among other things: “Extreme SOS I am so upset,” “He tried to take me on his desk,” “I could fight my way out of it,” and “I’m scared.” Defence counsel agreed to general admissibility of the texts, but disagreed on how they were to be interpreted, and that they could be relied on for any purpose other than narrative purposes. [ 5 ] Mr. Castro-Wunsch also testified at trial.

He agreed that he and the complainant had engaged in multiple sexual acts in the workplace over the course of the day, but testified that the sexual acts admitted to were entirely consensual. He denied the occurrence of some of the more serious acts alleged by the complainant. Mr. Castro-Wunsch said the complainant’s assertion that she did not have any time to flee or reach out for help during the course of the day was a false, self-serving narrative, and a deliberate lie to the Court to cover up the fact that she had initiated and consented to the sexual activity.

AB had reported what was actually a mutually amorous and enjoyable office sex encounter as a sexual assault after the fact because AB felt guilty about it, and had experienced “buyer’s regret.” [ 6 ] Defence counsel tendered as evidence a series of text messages between the complainant and the accused’s sister, Vanessa Castro (Ms. Castro), who was also one of her managers at CD Corp. Those texts were also sent during approximately the same time period the assault were alleged to have been occurring, which was the same time period AB was texting with her friend RR.

In the context of that text conversation the complainant responded coherently to work-related questions sent by Ms. Castro, said nothing about what was going on with Mr. Castro-Wunsch at the time, did not ask for help, and used a smiley face emoji in one of her text bubbles. Defence counsel asserted that these text messages could be relied upon as indicative of AB’s state of mind at the time: calm, coherent, and happy. [ 7 ] A significant portion of the defence case was devoted to proving that Mr.

Castro-Wunsch had left his office on over 30 occasions during the course of the day to deal with clients in the front office and that at least 15 of those occasions he was gone for a period of at least two minutes. Mr. Castro-Wunsch said that this evidence, in addition to the texts sent during the day, proved AB was deliberately lying about not having time to leave or seek help. AB did not scream, or cry, or use her phone to contact her friends and family at any point in the day to ask for help, because she was not scared, and did not need help. When she wanted to leave, Mr. Castro- Wunsch let her go. Mr.

Castro-Wunsch asserted that for these and other reasons, AB was not a credible or reliable witness, and that even without the accused’s testimony, the Court should acquit on the basis that the Crown could not meet its onus of proof. [ 8 ] Defence counsel was adamant in his closing submissions that the defence theory consisted of valid challenges to the complainant’s credibility and reliability based on the evidence before the court, and did not rely on any forbidden stereotypes about how sexual assault victims are expected to act. [ 9 ] In reality, the defence theory was comprised of both a valid credibility challenge and an appeal to impermissible stereotypical reasoning.

The stereotypical reason underlying the valid credibility challenge in this case included, but was not limited to the following: • If a person does not scream during a sexual encounter this is evidence they are not afraid of the accused and were consenting to the activity. • If the person does not request their loved ones or other potentially available third parties to rescue them during the course of the sexual assault this is evidence that no assault was occurring. • If the person does not take every opportunity potentially available to them to escape the allegedly assaultive situation this is evidence that they consented to the sexual activity in question.

• If there is no other identifiable motive or explanation for why a person would or would not make a false sexual assault allegation (no evidence of motive one way or the other) the Court can infer that the complainant was motivated by post-sex shame, guilt or remorse, colloquially referred to as “buyer’s regret.” [ 10 ] I have extensively reviewed the entirety of the evidence, specifically, the testimony of all witnesses, the text messages to the extent that they are admissible (as I will describe in more detail later), and the evidence of the weigh in and weigh out process at CD Corp. [ 11 ] Taking all of the evidence, and the relevant law, into account, I find Mr.

Castro-Wunsch guilty of the sexual assault because: • I reject his evidence on the issue of what sexual acts occurred, whether AB consented and communicated consent to all of the sexual act engaged in, and whether he knew she was not consenting to all of those acts; • I accept and prefer AB’s evidence on the issue of what sexual acts occurred, that she did not consent to any of those sexual activities, and that she communicated to Mr.

Castro-Wunsch that she did not consent to the majority of those acts; and • I find that the Crown met its burden of proof beyond a reasonable doubt with respect to all of the elements of sexual assault. None of the evidence before me raised a reasonable doubt as to proof of any of the essential elements of the offence of sexual assault. II. Issue [ 12 ] The issue in this case is whether the Crown has proven beyond a reasonable doubt that Mr. Castro-Wunsch sexually assaulted AB. [ 13 ] The Crown bears the onus of proving that Mr.

Castro-Wunsch intentionally touched AB directly or indirectly in circumstances of a sexual nature, that AB did not consent to the sexually touching, and that Mr. Castro-Wunsch knew AB did not consent to the sexual touching. [ 14 ] Mr.

Castro-Wunsch is presumed to be innocent until the Crown proves his guilt beyond a reasonable doubt on each and every element of the offence of sexual assault. [ 15 ] The following evidentiary issues will also need to be determined in assessing whether or not the Crown has met its burden of proof in this case: • What use, if any, can be made of the text messages sent the day of the alleged assault; • The impact of CD Corp business records from the day of the alleged assault on AB’s credibility; and • Whether there is any evidence that AB had a motive to fabricate the sexual assault allegations. III.

Facts and Evidence [ 16 ] The Crown called two witnesses: the complainant, and her friend, RR. Defence called three witnesses: the accused; Nydia Leon (Ms. Leon), a full-time employee of CD Corp; and Ms. Castro, a management level employee at CD Corp who is also the accused’s sister. [ 17 ] Several exhibits were entered at trial, most by consent.

These included: hand drawn maps, as well as a video tape of the site office where the alleged assault took place; several sets of text messages, some sent the day of, and some in the days after the alleged assault; an Agreed Statement of Facts with respect to DNA results; CD Corp’s employee orientation manual; photographs of AB’s clothing; business records, including weigh scale chits and manifests; and an odour patrol report. Background to the alleged offence [ 18 ] The majority of the background evidence was not controversial.

Unless otherwise stated, the facts set out below should be considered the court’s findings after having fully considered any conflicting evidence given at trial. Areas of significant disagreement will be dealt with later on in these reasons. [ 19 ] The alleged offence occurred at CD Corp which is a composting facility located in an industrial area near Edmonton, Alberta. The property itself is about five acres. The road through the property loops around a central activity location.

Trucks from different places bring in organic waste which they unload at the central location, and invoices are issued according to how much waste is dropped off. The site office is located near the entry to the property, with a scale area right outside the front door. [ 20 ] The site office is approximately 800 square feet and has two levels. There is one entrance into the building, which is a normal sized door suitable for one person to walk through at a time.

Once inside the front door, there is a small vestibule area, about three to six feet long, with a second door at the other end that leads into the office area. On the right, after entering the vestibule area, there is a small plexiglass window or screen. Ms. Leon was usually seated at a desk or table on the other side of the plexiglass window. Truckers would enter through the first door and stand in the vestibule area when communicating with Ms. Leon or whoever was seated in the first-floor reception area. [ 21 ] There were windows to the outside through which Ms.

Leon or anyone seated in that area could see the truck scale outside.

There is also a camera connected to a monitor in the second-floor office that shows the scale area. [ 22 ] The usual process for a truck bringing in waste begins with the truck stopping on the weigh scale. The scale operator keys a code into the computer and records the weight. The scale operator also jots down the code and truck or driver identification on a piece of paper on the desk which contains a grid set up for that purpose.

Sometimes drivers exit their vehicle during the weigh in process and enter the vestibule area, but it is not necessary for them to do so. [ 23 ] The witnesses gave different time estimates as to how long the weigh-in process usually takes and whether truckers were required to enter the building at that time: 15-20 seconds, to “always” two minutes. The witnesses also gave different time estimates as to how long the drop off process takes once the trucks have weighed in: four minutes to 30 minutes. [ 24 ] After the waste has been deposited, the truck drives back onto the scale.

The same code is used to record the weight. The difference is calculated and a sheet, or “chit” is printed out which records the information. The truck driver then dismounts, enters pertinent information onto the chit (driver’s name, company name), signs the chit, takes a copy for their records, and departs. In addition to the chit, some companies require their own manifests to be completed and signed. [ 25 ] There is a second door at the other end of the vestibule which leads into the first-floor office area.

To the right after entering the office area from the vestibule, there is a small flight of stairs leading to the second floor. There is water cooler under the stairs which employees, like the complainant, used to fill their water bottles. There is a small kitchen at the top of the stairs. As you enter the kitchen from downstairs, to the left is a counter and to the right is a small bathroom. Also, to the right, past the bathroom, is an open entryway in the accused’s office area. [ 26 ] Upon entering the office area, to the left is a set of windows with a ledge.

The desk is L-shaped running along the other two walls. A computer and two to three desk chairs are located at the portion of the desk which is to the right. [ 27 ] A person cannot see into the accused’s office from the bottom of the stairs. From the top of the stairs, it would be possible to see a portion of the office, but not the portion where the computer and chairs are located.

There are no landlines in the building and all the employees use cellphones to communicate. [ 28 ] A separate washroom on the northside of the building, not connected to the inside of the building was mainly used by Antonio (the Court was not provided with Antonio’s last name), who at the relevant time worked fulltime at CD Corp as a heavy equipment operator and was responsible for site maintenance. [ 29 ] The people who worked at the CD Corp site fulltime included Antonio, Mr. Castro-Wunsch, as well as Ms. Leon who operated and managed the truck scale and also functioned as a record keeper and receptionist.

Sometimes a second equipment operator would be hired to work with Antonio. The accused worked in his office on the second floor of the building most of the time, overseeing operations, working on paperwork and other company related activities. Ms. Leon worked in the main floor reception and scale operations area. Antonio worked outside on site. The summer interns joined them at the site at various times during the course of their work placement. [ 30 ] One of the tasks that the summer interns were asked to perform on a regular basis, were odour patrols.

Odour patrols involved driving a set path around the periphery to take measurements, check and record if there was odour, and record the weather. The patrols would occur three times a week or more. The person performing the patrol would take notes and then enter the required information onto a form on an electronic program downloaded onto their phone or computer (application or “app”). [ 31 ] CD Corp is one of two interrelated companies. I will refer to the other company as DC Inc. The owner of the companies is Ms. Castro-Wunsch who is married to the accused. DC Inc has its offices in downtown Edmonton.

In the summer of 2018, three summer interns, including AB, had been hired to work for both companies. [ 32 ] The accused’s sister Ms. Castro works for both companies, although primarily with DC Inc. She has been employed by DC Inc for over nine years. She works with CD Corp as their Occupational Health and Safety Officer, and also does some fundraising work on their behalf. Both Ms. Castro and the accused are senior employees of Ms. Castro-Wunsch’s companies. Mr. Castro-Wunsch’s evidence [ 33 ] Mr. Castro-Wunsch was 53 at the time of the alleged offence and 55 at the time of trial.

He was raised overseas and became a Canadian citizen when he was in his 20s. He has a university degree in management and economics from a Canadian university. He has been married for 30 years and has several children. He has no criminal record. [ 34 ] The accused is employed at the CD Corp as operations manager. When asked in cross-examination about the corporate structure of CD Corp and its sister company, he said he was a secretary but he was “not totally clear” whether he was a Director. His wife manages the corporations’ affairs.

The accused also manages other properties in various locations, including some overseas. [ 35 ] The complainant started working for CD Corp in May of 2018, which is when he first met her. He agreed that he was “her boss.” The complainant worked for both companies and for the month of May split duties between them. When she was at CD Corp she would assist with various tasks around the work site, including performing odour patrol. [ 36 ] Apart from work, Mr. Castro-Wunsch had previously socialized with the complainant on July 4, 2018, when the employees of the sister companies got together for a bicycle tour.

The tour took about four hours and ended with shared snacks and beer at a local brewery. [ 37 ] The day of the alleged sexual assault, Ms. Leon had taken the day off to attend to personal matters. The only other person working on the property was Antonio who was on site receiving materials and doing site maintenance.

[ 38 ] The accused arrived at approximately 8:20 AM that day. He recalled that the complainant had arrived a bit late that morning, sometime before 9 AM. The intention was for her to take over Ms. Leon’s duties as scale operator for the day. [ 39 ] The complainant entered Ms. Leon’s work area on the first floor, which is where the accused was located at that time, as he was covering for Ms. Leon. She gave him a hug and kiss on the cheek, and then sustained the hug. They had hugged previously and this did not seem abnormal to Mr. Castro-Wunsch, although he agreed in cross-examination that he did not hug Ms.

Leon, who was also his employee. The pair then walked upstairs where AB deposited her lunch and other items, and they began to talk about art. [ 40 ] The accused said that at some point after she started working at the site in May 2018, AB had shown him some art she had done. After seeing it, he and his wife decided to commission AB to do an art project at DC Inc’s downtown office. Mr.

Castro-Wunsch felt art was something he had in common with AB, and he testified that it was something they had discussed frequently during AB’s lunch or other breaks. [ 41 ] On July 4, 2018, the accused had spent most of the day cycling with the complainant and they had talked about the possibility of her doing a second commissioned art piece for him personally. On July 16th, he said they continued their discussions about art, and the proposed project, talking about different

interpretations for much of the day. The conversation took place primarily in the lunch room but at other times, they went to his desk to look at pieces by Gaudi and other artists. [ 42 ] Mr. Castro-Wunsch recalled that their conversation about art was interrupted frequently by trucks coming through. When the trucks arrived, he would go down and weigh them in and then return upstairs. [ 43 ] At some point, AB told Mr. Castro-Wunsch she felt she had a connection with him, and gave him a “more intimate” hug. She said she was really glad they were working together and made a comment about wanting to get closer.

He answered “How close?” She responded by hugging him again. They hugged one another and rubbed cheeks for a long time. Mr. Castro-Wunsch said that this intimate touching was initiated by the complainant. He thought that this initial incident of intimate touching was interrupted by a truck driver. [ 44 ] After dealing with the truck driver, he returned to the office. The hugging continued, and then progressed to kissing on the cheek and then mouth on mouth. He recalled that AB had initiated the kissing. After hugging and kissing for a while, they would stop and begin to talk about art again.

At some point AB slid onto Mr. Castro-Wunsch’s lap and they began to kiss more intensely. Every so often he would leave AB in his office to go deal with a truck. [ 45 ] The accused testified that the weigh in process takes one to two minutes but may take longer if the truck drive comes inside or has a question. On July 16 th , he recalled that several drivers had questions about where to unload.

He said the weigh out process takes a little longer and required the driver to come inside to sign the chit and manifest, if a manifest is required. [ 46 ] When he returned from dealing with a trucker, they would kiss and talk about art and AB’s plans in general. Mr. Castro- Wunsch said that they were more interested in kissing than talking, and things progressed from there. [ 47 ] Once, when Mr. Castro-Wunsch came back after dealing with a truck driver, AB was standing up.

She pulled hair off his shoulder and said “Sorry, I shed a lot.” He recalled that moment very clearly. [ 48 ] Sometime closer to noon or a little after they started kissing more intensely. Mr. Castro-Wunsch put his hands under AB’s shirt, hugging her and feeling her back. She had her arms around his neck and around his back, and her fingers in his hair. He recalled they were standing up most of the time although sometimes they sat down. While standing, he started touching her breasts. He pulled her shirt up. These encounters would occur in “short bursts” and then he would be interrupted by a truck driver.

After a couple of minutes away, he would return. At one point, he took her t-shirt off, or she took it off. When he returned from dealing with a truck driver it was still off. She wrapped her arms around him and they continued to kiss and “fondle” one another. [ 49 ] The accused defined “fondling” as touching AB’s breasts, arms, waist, her buttocks from the outside, and “maybe a couple of times,” putting his hand between her clothing against her skin, going “lower on the hips.” [ 50 ] Mr. Castro-Wunsch said he touched AB over her clothing at first and then moved under her clothing to her breast.

Later, he kissed her on her breast, and then toward her navel, and hips. He then lowered her pants and felt around the front of her pubic area. He was kneeling down and she was standing. He testified that she would then “take her hands and push him up and lightly say “no” – so I respected that.” He understood this to mean that she was okay with kissing but “not with that.” He thought she was excited but it was “beyond her level of comfort.” He said that this occurred “two or three times”. [ 51 ] As the day went on, Mr. Castro-Wunsch would leave for a few minutes, and then come back to the office.

AB would still be there, and they would embrace. Mr. Castro-Wunsch described the sexual touching as “mutual I guess…. She would kiss me on the cheek or lips. It was a mutual thing.” In between the sexual encounters, he would leave to deal with truckers, and sometimes there were conversations. [ 52 ] In one conversation AB said she had a boyfriend she loved and that she did not want to hurt him. She asked the accused about his wife. He told her “marriages are difficult… and not always perfect.” In cross-examination, Mr.

Castro-Wunsch denied telling AB that she was too young to commit herself to a single person, but agreed he had told her she was “too young” and that is it “good to have experiences.” He told her that if she was “interested in exploring with someone else” that he was interested. [ 53 ] At one point, AB ran her hand along the accused’s penis on the outside of his pants with her open palm. He undid his zipper so she could touch it directly. He said that only happened once. He believed AB had placed her hand there herself, but did not recall the exact motion. It was a brief moment.

He said she touched “it” – meaning his exposed penis – and then withdrew her hand. [ 54 ] According to the accused this was the extent of the sexual touching that occurred between the parties that day. [ 55 ] When asked by his counsel whether AB had given him any verbal indication that she did not want to kiss him, Mr. Castro-

Wunsch answered “no.” He said she did not scream or give any physical indication she did not consent. “Other than the hand cues” she did not give him any other physical cues to stop doing what he was doing. She never cried that day. She did not tell him she was uncomfortable with what they were doing. He testified that “She didn’t say stop. She just said she had feelings of confusion.

She would kiss me and we would hug and then go back to that threshold.” She did not physically resist his efforts to alter her clothing by lifting it up or pushing it down. [ 56 ] At the end of the day before she left, the accused thought that AB was “fine with kissing and making out” but was uncomfortable with sexual intercourse. He recalled that she had tried to explain to him why she was hesitant to go beyond a certain point: she had moral issues about her boyfriend and the accused’s wife, and felt guilty.

He said his understanding when she left was that she was still thinking about pursuing something further with him and might have different feelings about it at a different time. His interest was just to know “what her thoughts were” and nothing further. [ 57 ] Mr. Castro-Wunsch thought AB left around 3:30 PM to perform an odour patrol. He recalled that she returned around 4:30 PM. He observed that there is no set time for the odour patrols and she could have left to perform that duty at any time during the day. Mr.

Castro-Wunsch recalled eventually leaving the office around 5:30/5:45 PM. [ 58 ] The accused had his cellphone with him throughout the day. Phone records for his phone showed that he received several calls while he was with the complainant in his office, including a three-minute call from a potential contractor, and a five-minute call from his wife at 2:46 PM. It also showed that he had called the complainant while she was out performing the odour patrol, although she did not answer.

He said he had called her because he wanted to find out the results of the odour patrol. [ 59 ] The complainant also had a cell phone with her that day, and he saw her texting and sending messages. It seemed “typical” and so he did not say anything to her about it. [ 60 ] The hours of operation on July 16 th , 2018, were 8:30 AM to 5:00 PM. After 5 PM the site would be locked up.

The accused acknowledged that he could have left before AB came back, but he explained that as clients were continuing to come in, he stayed for them. [ 61 ] When asked in cross-examination why AB never performed the job that had been assigned to her that day, Mr. Castro-Wunsch said “it was easier for me because I was dressed” and “she didn’t feel she was ready to go down.” He would just jump up, and “take that step,” and be at the counter; however, he also said he felt “no need to rush.” Mr.

Castro-Wunsch observed that AB could have gone down to deal with the truckers at any time, as she had “found time to text” during the day. He admitted they did not actually discuss it. [ 62 ] The accused said he did not expect anything like that to happen that day. He was married then and is still married. He agreed it was not a good idea and he should have thought about it more carefully, but he proceeded in the heat of moment, letting the emotion take over. In cross-examination, he said he had not even realized he was sexually attracted to the complainant until she hugged him and rubbed her cheek against his.

That action made him think of her differently. [ 63 ] Mr. Castro-Wunsch said he had not considered their age difference. When pressed on the issue, he agreed with Crown counsel that “as an employee it was not a good choice at all, not the best choice.

I did not have a thought of power at the time.” But he viewed it as her engaging in consensual sexual activity with him: “she was looking for it and he was interested as well.” He testified that it was AB who was initiating the interactions but that there was a strong mutual attraction. [ 64 ] On redirect, he said “I’ve thought about it and I know the workplace is not the place for that kind of relationship… It is not the best, it is not the perfect thing to do.” [ 65 ] When asked what compliments the complainant had given him that day, the accused said “she said she felt a strong attraction to me.

A strong connection to me. She wanted to have a friendship outside of work and the rest was more body language than words.” [ 66 ] The morning after the incident, Mr. Castro-Wunsch sent the complainant a series of text messages, including images of two paintings depicting the Greek myth known as the “Judgment of Paris” which included nude female figures. Mr. Castro-Wunsch said he sent the pictures to AB as examples of the theme he wanted for the commissioned art piece.

He wanted the piece to include “the three graces” but using AB’s own techniques. [ 67 ] When questioned by the Crown on his interest in the “Judgment of Paris” the accused explained that what he likes about the story is how it represents having to choose between “two different ideals.” Paris, a demi-god, had to judge the three goddesses, and choose beauty and virtue. Mr. Castro-Wunsch said he was “not sure” if the goddesses appeared before Paris nude in the original story.

He rejected the suggestion that when appearing in works of art, the goddesses from this particular myth are commonly rendered in nude form, but said he did want the complainant to paint them nude. He also rejected the suggestion that he engaged her in discussions about the painting as a ruse to talk about something with sexual content. [ 68 ] Mr. Castro-Wunsch sent the messages in the morning, around 7:25 AM, as he was preparing to leave on a pre-planned trip to Mexico to deal with one of the properties he manages. He planned to be there from Tuesday to Saturday that week.

None of the messages said anything about the sexual interactions that had occurred the day before. [ 69 ] At 9:47 AM, just prior to boarding his plane, the complainant replied: “Please stop contacting me.” The accused said he was confused by this change of tone, but he respected her request and did not respond. [ 70 ] Later that week, Mr. Castro-Wunsch’s sister, Ms. Castro, contacted him to tell him the complainant had alleged that he had sexually assaulted her. Mr. Castro-Wunsch did not recall exactly when he found out about the allegations, but he knew his sister had begun a workplace investigation.

He gave her a written statement in the course of that investigation which was eventually provided to the police. In cross-examination, the accused admitted that some of the details described in his oral testimony were not included in his written statement, including that he had taken over AB’s weigh scale duties for the day.

[ 71 ] He also agreed that he had not mentioned that AB had initiated the kissing when they hugged in the morning. He said that kissing him on the cheek was something she had also done in the past in front of other employees on multiple occasions. He remembered the moment that she had plucked one of her hairs off his shoulder very clearly and thought he had included it in his written statement, but agreed that he had not. AB’s evidence [ 72 ] The complainant was a student studying at a local university during the time period when the sexual assault is alleged to have occurred.

She had started working for CD Corp and DC Inc as a summer intern the first Monday of May 2018. Her job term was expected to last four months, until the end of August 2018. [ 73 ] The complainant said she enjoyed working for the accused and his wife. The companies were small, had a small staff, and everyone was friendly and got along well. It was the first job she had ever had that was related to her university degree and she was excited about gaining experience in her field. [ 74 ] AB worked full time for the two companies.

She started working out at the CD Corp site doing whatever needed to be done day to day including cleaning up the worksite, opening boxes and bags. When she was at the site, her usually routine was to park her car, go into the office building, drop off her lunch in the fridge, use the washroom, put gloves on, and then work outside for the rest of day. She would come inside and use the kitchen area to eat her lunch. [ 75 ] When the accused and his wife learned that the complainant was an artist, they asked her to spend a portion of her summer intern project working on an office mural for them.

She was excited about the project and started working on it at the downtown office on June 12 th , 2018. [ 76 ] As a result of the time spent on the art project, prior to July 16 th , 2018, the complainant had not been out to work at the industrial site for almost a month, other than to perform the occasional odour patrol. [ 77 ] When she arrived at work on Monday July 16 th at around 8:45 AM she went upstairs to the second-floor office to put her lunch in the fridge and to ask the accused what her duties would be for the day. She did not know at that time that Ms.

Leon had taken the day off and would not be coming in. [ 78 ] She was wearing a t-shirt and sports bra as well as underwear and a baggy set of high-waisted work pants, and running shoes. It was a really hot day. She thought it was probably around + 25 degrees or + 30 degrees Celsius outside, and according to the weather screen monitor, about + 31 degrees Celsius inside the office. [ 79 ] She recalled that the accused had come out from his desk and into the kitchen area to give her a hug. The hug did not seem abnormal to her as she had received a hug from him and from his wife before.

She observed that both he and his wife are very friendly with their employees, and she felt she had a close relationship with them. [ 80 ] AB did not know who raised the issue first, but they began discussing a personal art project he wanted her to do for him. He had raised the issue with her before but they had not had a lot of time to talk about it. His idea related to a specific Greek myth: “The Judgment of Paris.” He started telling her about his favourite artists and said he wanted to show her some examples.

He led her to the office to show her the examples on his computer. [ 81 ] They sat in the office chairs looking at the computer screen while he showed her various examples of the story as depicted by different artists in different time periods. She felt the idea might be too complex for her. The discussion lasted about an hour and they talked the entire time as they sat side by side facing the screen. [ 82 ] At some point the complainant asked where Ms. Leon was. Mr. Castro-Wunsch told her she was away for the day, and that AB would need to cover for her at the scale weighing the trucks in and out.

She thought this information was conveyed to her fairly early on in the conversation with the accused. [ 83 ] AB had been trained on how to use the scale but had never had to do it for an entire day before. She knew it required sitting in the small desk on the lower floor, weighing the trucks going in and out as they stopped on the scale, using a small screen in the office that gave the value. In her experience, sometimes the trucks would wait until the value appeared and then just drive off. She said she was trained to just write the value down so that Ms.

Leon could prepare an invoice later based on how much waste was left at the site. [ 84 ] AB thought the conversation about art went on for about an hour. During that time, Mr. Castro-Wunsch explained what he wanted for the art project and more about the specific myth and why it was significant to him. The story involved Paris having to judge three naked females and decide which one was the most beautiful. AB was not familiar with the story. [ 85 ] Mr. Castro-Wunsch explained that it resonated with him because sex can have different meanings depending on the way it takes place: lustful, frantic, or gentle.

At the time, she said she did not think what he was saying was inappropriate because “he would always talk about stuff like that” and it did not seem directed at her. [ 86 ] At some point, she mentioned that after her internship was over she wanted to stay close with him and with his wife. She felt that the accused’s tone changed after she said that. He asked her “how close?” She said she did not know what he meant. She had always thought of him as a friend or an uncle, someone she could have a good conversation with, and she thought of his wife the same way. [ 87 ] Mr.

Castro-Wunsch then turned towards her in his chair and leaned his whole body in towards her. AB did not answer for a second. He got out of the chair and stood over her. She felt his demeanor had changed but still did not understand what he meant. She answered: “Like, close friends.” He then put his hands on her shoulder and face and began to kiss her.

[ 88 ] She got up out of the chair but there was a desk behind her. She tried to back away but there was nowhere to go. She said he had his hands on her shoulders and neck and face constantly trying to get his face into her face. He started by kissing her face, mouth and lips. She said she was trying to get away but she felt trapped. [ 89 ] Mr. Castro-Wunsch put his hands under her butt and lifted her up and onto the corner of the desk. He then started putting his hands under her shirt, groping under her sports bra. She recalled his hands also being on her neck and shoulders.

AB said that the accused did not ask if he could kiss her or touch her in that way, and that she did not consent to it occurring. [ 90 ] The complainant testified that once she “clued in” to what was going on she wanted to make it clear that she was not interested. She asked Mr. Castro-Wunsch what he was doing. He just kept trying to kiss her and did not answer. She asked him again: “What are you doing?”, and told him to stop, but he would not stop.

She said she used the word “stop” several times out loud. [ 91 ] The complainant described the next five hours from 10:45 AM to approximately 3 PM as “multiple sexual assaults.” The complainant testified that she remained in the accused’s office the whole time. The only time he was not in the room with her was when he would go downstairs to deal with trucks. The sexual touching and groping would stop and start in correlation with the presence of trucks driving in and out of the property.

When he heard or saw a truck drive up to the weigh scale, he would put his hand on her and say “stay here.” [ 92 ] She said the trucks would drive in, get weighed, and the drive to the back. They did not need to wait on the way in, and so he would just wave them through. The accused would have to run down to deal with them on the way out, and then he would rush back to the office. Once in a while someone would come inside. He would then run back up. It was not a busy day and she thought he had left the office “maybe 20” times.

She testified that each time he left it would be for approximately 15 – 20 seconds. [ 93 ] She said there was no clock and she was not thinking about the time. Every time Mr. Castro-Wunsch left she would try to put her clothes back on but by the time she had started to compose herself he would be back. He was never gone for long, and she was scared and shaking. It was hard to get her clothes back to the way they should be. [ 94 ] AB testified that at first, she was confused and afterwards she was just shocked that he would not stop. She went from being surprised to being scared.

She said “I was telling him to stop and, you know, asking him what are you doing, and he wasn't listening to me. So it was -- I guess it had gone from being surprised to being scared. He just kept doing what he was doing and he wasn't listening to what I was saying. And then I was kind of also trapped in there with him, so I was just scared and I didn't know what to do.” [ 95 ] She explained that she was scared because he was bigger than her, and she thought she would not be able to fight him off. Throughout the day, Mr. Castro-Wunsch was always between her and the one door leading out of the office.

She did not see any point in trying to get away. She said she was internally scared and fearful. [ 96 ] During the encounter Mr. Castro-Wunsch would push into her with his head and shoulder and she could not keep him away. She tried to use her arms on his shoulders to keep him a least that far away from her. Even during the parts of the day when he was not sexually assaulting her, she said the accused was still trying to touch and keep his hands on some part of her body. [ 97 ] AB was unsure exactly when each of the alleged multiple sexual assaults occurred, although she knew they started around 10:45 AM.

While she said she could recall everything that had happened – all of the “multiple assaults” – she could not recall the chronological order of events. She said the incidents are mixed together in her mind and she admitted they might not be in the correct order. [ 98 ] She recalled that the sexual assaults escalated over the course of the morning. He had her pushed up against the corner of the L-shaped desk. After he had groped her for a while, under her bra and t-shirt, he pulled up her shirt and bra and put his mouth on her breasts.

She said she was telling him to stop, “but he wasn’t stopping.” Her sports bra does not have clasp on it so he had to push it up. It was still on her, but not covering her breasts. [ 99 ] AB testified that Mr. Castro-Wunsch did not respond or say anything when she said “no” – he just kept doing what he was doing. She said she was in the corner of the desk for a lot of the day, in a seated position. [ 100 ] She recalled that Mr. Castro-Wunsch would say sexual things to her but that he was not listening to what she was saying to him. They would talk sometimes, between the assaults.

She admitted that some of what they said to each other during the day was “fuzzy.” At one point, she asked about video cameras in the office and whether his wife could see what was happening. He indicated the cameras were off. She said she brought up his wife more than once and repeatedly told him she had a boyfriend.

She thought that would make him feel guilty, and he would stop, but instead, he told her “not to feel bad.” He would tell her not to think about that, that his wife was separate from “this.” She told him that was not true, and that she loved her boyfriend very much, she was happy, and she was not interested in him. He ignored her. [ 101 ] Mr. Castro-Wunsch also told her “monogamy is not right, it is not natural.

Humans’ closest relatives are monkeys and they are not monogamous.” He repeated several times that “it’s natural” and she should have “multiple partners.” He wanted to help her “explore.” He also told her “You are too young to be in a committed relationship. You don’t know what you want at that age.” He asked her about her sexual history and how many men she had been with. He said she was too young to know what she wanted sexually, and that she should move to an art capital like Vienna so she could experience life and sexuality. He said he wanted to “help [her] with that.” [ 102 ] AB testified that Mr.

Castro-Wunsch would laugh when she said she did not want to have sex with him because “he could tell” she wanted to have sex with him. She repeatedly told him: “I’m not interested in you that way, I don’t want to have sex with you.” She felt her protestations were treated like a joke, even though she thought she was being very firm. She was emphatic that he never asked for her permission to touch her sexually. [ 103 ] She said she was crying for a lot of the day. Mr.

Castro-Wunsch would ask her: “what’s wrong?” When she explained how she was feeling, he would again tell her “you’re crying because you feel guilty for wanting to have sex with me.” Tears were streaming down

her face for most of the day, and at times she was hysterical, crying audibly, and panicking. She said she had that type of extreme reaction during the more serious sexual assaults. [ 104 ] At some point in the day, the accused began rubbing the outside of her pants, both her butt and her vagina. He would use his hand and sometimes would rub his penis against her. She described this as “continuous.” He would try to get her pants undone and she would try to prevent that by holding on to them.

Sometimes he would push into her with his shoulders and head so her head was above his and she could not stop him from reaching down. He would try to prevent her from keeping her hands on her pants. [ 105 ] Eventually, the accused managed to get his hands into the inside of her underwear. This happened more than once, she thought more than five times. He also managed to pull her underwear and pants down to her knees, “a few times” although never all the way off. She said on those occasions he put one or two fingers inside her vagina.

She was telling him to stop and he was saying sexual things to her like how good it felt to him. She would say something like “I can’t do this, I don’t want to do this, please stop.” She testified that she said “everything I could say, any way I would think to say no and he wouldn’t listen to any of them.” [ 106 ] She recalled that he took his penis out of his pants multiple times. He would stop what he was doing and back away from her a little bit and then start touching himself.

At one point he took one of her hands in his hand and starting masturbating himself with it. [ 107 ] She recalled that he bent her over the desk a little bit as it was waist height for her, pushed her into the corner, restraining her hands behind her back and then pushing on her lower back with his arms. He got her pants undone and pulled them down and put his mouth on her vagina. She thought that happened “a couple of times.” She was “crying quite a lot” at this point and trying to push at his head with her hands. She did not recall how long that went on but thought it was between five and 15 minutes.

She was begging him to stop. [ 108 ] On one occasion when he got her pants pulled down to her knees, she said he tried to have sex with her. She was facing away from him, pushed into the corner of the desk and bent over. She felt his penis on her butt, and him trying to put his penis between her legs, quickly, frantically trying to enter her.

She said she became “really hysterical, trying to twist my body away and crying really hard at that point … audibly freaking out and crying and begging him to stop.” She said he was not able to get his penis inside her vagina, and that eventually he just stopped trying. [ 109 ] Again, he asked her what was wrong. She said she was “really crying” and felt like she could not stand up.

He said something like “sorry if I pushed you a little too much … actually I’m not sorry because I want to have sex with you.” He told her, again, that she was crying because she felt guilty about wanting to have sex with him. [ 110 ] She recalled another incident where he took a step back, and lifted her leg up. She was leaning against the desk and shaking. He took her shoe and sock off and had his penis out. He put his penis on the bottom her foot and thrust into it. He told her how good it felt. He did it for a while and then, when she was not participating, he eventually stopped.

He tried to put the sock back on but she grabbed the sock and shoe and put them on herself. [ 111 ] The series of assault went on for several hours, with no break. At some point, one of the truckers came and started up a conversation with the accused. She was able to get her clothes back to where they were supposed to be and made it into the kitchen bathroom. [ 112 ] Throughout the whole day she had been saying she should get back to work, in an attempt to get out of the office. Once the trucker had gone she exited the washroom and the accused was in the kitchen area.

He asked her why she looked so sad and what was wrong. He said seeing her so sad made his “organ go down.” She said, “I don’t know, I should go.” He wanted her to tell him what she was thinking. She said “I have to go do some work.” [ 113 ] Mr. Castro-Wunsch told her he would be gone for four days, and wanted her to know that when she was ready to have sex with him she had to let him know. He did not want her to be feeling guilty and crying when it’s happening. He wanted her to enjoy it to the fullest.

Again, she told him: “I don’t see you like that and I’m not interested in you like that.” [ 114 ] She grabbed some clothing and her car keys out of her backpack which was in the kitchen area and then returned to the bathroom. She changed into her shorts on but kept the same shirt on. He kept putting his hands on her, trying to get her to stay. He told her she did not need to do the odour patrol. [ 115 ] At around 3 PM she left to do the odour patrol. She left in her own car and began performing the route.

It usually took about an hour to drive the whole route, which included a few stops of about five minutes or so. She said she did the first part of the route and then parked at the Tim Horton’s parking lot because she did not feel safe driving. She called her friend RR. They spoke for a long time, she thought almost two hours. At trial, she did not recall talking to anyone else on the route. [ 116 ] The accused called AB’s phone at about 3:45 PM but she did not answer. She knew it was him because his number and name were saved into her phone and it came up on her screen.

She felt stressed and panicked that he was calling her. [ 117 ] At some point in the day the accused had told her he would be leaving at 4 PM as he was flying to Mexico the next day. He told her Antonio would be locking up at 5 PM. She had left her bag at the office and needed to go back to get it as it had her wallet and personal belongings in it. She wanted to get back before 5 PM because that is when the gates were going to be closed. She assumed he would be gone by then. [ 118 ] The accused was still in the office when AB returned.

She said she did not notice his car in the parking lot, or if she did, it did not register with her that it meant he might still be there when she entered the building. Mr. Castro-Wunsch came out of his office into the kitchen and began putting his hands on her again. He asked her, now that she had a chance to clear her head, what was she thinking about what had happened? She told him she felt horrible. He laughed and said she would get over the guilt eventually. He said he had called to let her know he did not have to leave at 4 PM.

[ 119 ] AB told him she was supposed to meet her parents after work, and that she had to leave or her parents would be wondering where she was. He then sexually assaulted her again, this time using his body to keep her cornered in the kitchen area. He kept trying to get her shorts pulled down, and again put his fingers inside her vagina. She was shaking and telling him to stop and had tears on her face. He sucked on her neck, groped her under her shirt and bra and pulled them up again so he could put his mouth on her breasts. [ 120 ] He told her he uses the gym at the Fairmont hotel and that he is usually alone.

He said they could go in the sauna and get a hotel room afterwards. She told him she was not interested and that she had a boyfriend but he continued talking about it. At about 5:45 PM she was finally able to leave. He said “you have to promise you’ll tell me when you’re ready to have sex with me.” [ 121 ] She did not recall whether she used the company app to provide an odour patrol report that day. [ 122 ] The complainant did not tell her parents about the alleged assault that night, but she did tell her boyfriend. She said she was not sure what to do because Mr.

Castro-Wunsch was her boss and his wife was her other boss but she knew she could not go back to work the next day. [ 123 ] At some point, AB told the accused’s wife that she was not feeling well and would not be coming in to work. She decided to report the incident to Ms. Castro, who AB thought was the company human resources representative. [ 124 ] The morning after the alleged sexual assault, the accused texted AB several times, starting at 7:23 AM. He texted her five times over the next two hours.

At 9:47 AM she texted back “Stop contacting me.” He did not contact her again after that. [ 125 ] The complainant and her boyfriend met with Ms. Castro at a coffee shop around noon on Tuesday, July 17 th , 2018. They were there for quite a while talking about what had happened. Ms. Castro was taking notes. [ 126 ] The complainant told her parents about the assault a few days later, on Thursday, July 19th, 2018. She said she thought she had not really absorbed what had happened to her until then. She reported the matter to the police the next day, on July 20th, 2018.

She gave a recorded statement later than evening at the police station. She provided the police with the clothes she was wearing the day of the alleged assault, including her t-shirt, underwear, work pants, and socks. She also provided them with copies of the text messages sent by Mr. Castro-Wunsch the morning of July 17th, 2018, as well as text messages with Ms.

Castro, as well as with the accused’s wife, sent in the days immediately following the alleged assault. [ 127 ] The complainant never returned to work at CD Corp or DC Inc and did not finish the mural, which remains in the possession of DC Inc, and to her knowledge, does not appear to have been credited to her. The text messages from July 16 th , 2018 [ 128 ] During the course of the day, the complainant had her cellphone with her. Sometimes it was in her pocket and sometimes on the desk. Two series of text messages sent the day of the alleged assault were entered into evidence.

The first series was between AB and her friend RR. The second series was between AB and Ms. Castro. AB did not remember either of the text exchanges until she was presented with them. Texts with RR [ 129 ] AB identified a series of screen shots of a text conversation between herself and RR, who was a close friend of AB’s at the time. They had met at a restaurant job, and were about the same age. [ 130 ] To her knowledge, the text records had been provided to the police by RR sometime after the alleged assault.

AB said she had forgotten about them and did not remember texting with RR that day until RR sent her copies of the text messages via email approximately one month before the preliminary inquiry on June 6, 2019. By the time RR sent AB the screenshots, AB had a new phone. AB had not saved, or did not have access to the series of text messages on her new phone. [ 131 ] Seeing the texts helped AB remember sending them. She recalled that she would text with RR when the accused was away dealing with truckers.

She thought she would have sent the messages over an extended period of time, between the hours of 10:30 AM and 2:30 PM. She did not recall when they started or when they finished texting. [ 132 ] In 2018, RR said she was working at a brokerage firm. She recalled AB texting her while she was in a work meeting on July 16th, 2018. RR said the texting occurred during her meeting that day, which would have been between 9 AM to noon. [ 133 ] The screenshots do not have the date or time they were sent recorded on them.

RR said she saved the text messages as screen shots two days after they were received, on July 18, 2018. She confirmed the date of the screenshot by looking on her iPhone records to see when they were saved as photographs. While she agreed it would have been possible to save them as text messages on her phone, RR did not do that. She took screen shots in case they might be useful one day. She deleted the actual texts to save space on her phone. [ 134 ] RR held onto the screen shots until June of 2019 when she was contacted by a police officer in relation to the upcoming preliminary inquiry.

He came to obtain a witness statement from her in relation to the conversation she had with AB on the phone the afternoon of July 16 th , 2018. She emailed him copies of the texts that evening. [ 135 ] With respect to the phone call, RR indicated that it happened in the afternoon, sometime after she had returned home from work at 1 PM but before 5 PM. It was a long conversation about what AB said had occurred that day with Mr. Castro-Wunsch. She described AB’s demeanor during the call as “upset, crying, hyperventilating.” [ 136 ] The texts sent earlier in the day are sequential.

RR and AB both testified that there were breaks between sending and receiving

the various texts but that the communication took place over a lengthy period of time. RR thought it as about one and a half hours. RR admitted it was possible the screenshots did not contain every text that was sent that day but did not agree with the suggestion that she had deliberately edited them.

She testified that she did not take anything out, but agreed with Defence counsel’s suggestion that she could have, and that the Court would not be able to tell if she had. [ 137 ] Considering their evidence together, I find that the texts were likely sent between 10:30 AM and 12:30 PM the day of the alleged assault. [ 138 ] AB said that she texted instead of calling RR because she was just really scared. She was terrified that if she tried to fight or run that Mr. Castro-Wunsch might try to harm her or rape her.

She was in a panic and frantically texting her friend because she did not know how much time she had before he came back. [ 139 ] The texts were put to both RR and AB, and each was asked for their

interpretation of what was said. The text string, as set out in the Exhibit and using quotation marks to indicate separate text bubbles, is as follows: AB: “I need your help” “Extreme SOS I am so upset.” “Marco is not who I thought he was.” RR: “Oh no” “What is happening” AB: “I’m alone at work with him.” RR: “I’m in a meeting” AB: “I thought he was like a second father to me.” RR: “What” “ (content of bubble cut off)” AB: “I need you” “I can’t call you” “I’m alone with him” “I’m texting you as trucks come and he weighs them in” RR: “What is he doing??

Like do you feel threatened” AB: “I need to see you.” “Yes and No” “But mostly yes” “I could fight my way out of it” RR: “Okay, stay calm and don’t be afraid to stand your ground okay?” AB: “But I am not going to do anything that would make him mad” RR: “What is the situation right now? Why are you alone? Who else is around?” “Can you excuse yourself?” AB: “It’s just us at the site office” “It’s tiny” RR: “ (text bubble cut off)” AB: “He came onto me” “I thought he was” “Like a dad to me” RR: “Okay don’t panic. Men are trash and we know that.

Just keep your distance from him until you can get out of there.” “I know you’re upset and I’m sorry you trusted him and he acted like a fuck.” AB: “I’m scared” “I think he’s actually in love with me” “What the fuck” “He tried to take me on his desk” “RR I’m scared what the fuck” “We’ve been talking about it all morning” RR: “Like he actually tried to have sex with you?” AB: “I’m cornered” RR: “I know you’re scared but you need to put a boundary down.” AB: “Yes I did and it didn’t work” [ 140 ] AB said that “we’ve been talking about it all morning” referred to Mr.

Castro-Wunsch trying to convince her to have sex with him. [ 141 ] AB said that when she texted “He tried to take me on the desk” she would have been referring to the time Mr. Castro-Wunsch tried to insert his penis into her vagina. [ 142 ] Defence counsel suggested the first three text bubbles were sent because AB was feeling internally conflicted about what she was doing with Mr. Castro-Wunsch and not because he was forcing himself on her.

She answered “That is completely incorrect.” [ 143 ] He also suggested that the references to the accused being “like a father” to her referred to her internal moral struggle with what she was feeling. She answered “That’s incorrect. I don’t see my father in a sexual way.” She explained “I thought he care about me. I trust him, and he assaulted me.” [ 144 ] Defence counsel then suggested that when she said she could fight her way out of it, she was referring to what was happening inside of her: there was something she wanted to do but she should not be doing it. She answered: “Absolutely not.

That’s not what I’m talking about. There’s no internal struggle about how I was feeling. I was horrified … I was scared and I was shocked and I didn’t know

what was happening to me … I had no say in what he was doing to me … I wasn’t participating in any way.” [ 145 ] When asked about her statement that she did not want to do anything that would “make him mad” AB explained: “if I tried to run or escape, which I was incapable of doing because he was always between me and the exit, I didn’t know what he would do if he was mad… If he was capable of assaulting me in the ways that he already was, I thought he might try to rape me or seriously injure me if I tried to leave, and that’s what I meant by that.” She denied the suggestion that the statement referred to telling the accused’s wife about what had happened. [ 146 ] When asked why she did not respond to the questions “Can you excuse yourself?” or “Did he actually try to have sex with you?” AB said she did not have time to answer those questions.

She did not think she was fully reading all the texts. She was frantically texting in between assaults. [ 147 ] The cross-examination continued on in this fashion, with Defence counsel suggesting an

interpretation of the text messages in keeping with the accused’s evidence that the sexual encounter was completely consensual, and AB denying that anything in the text messages implied consent. She said: “I’m clearly telling her how scared I am.” [ 148 ] The cross examination on AB’s text messages with RR concluded as follows: Q And I’m going to suggest that of course we don’t have a complete record of what you said to RR that day, but I’m going to suggest that part of the reason you were communicating with her is that over the day, you were developing to a degree a sort of sense of buyer’s remorse.

You know the phrase, buyer’s remorse? You know what that means? A Excuse me? Q Do you know what the phrase “buyer’s remorse” means? A No, please explain it to me. Q Okay. So sometimes a person goes and buys something and they regret I afterwards because they think, oh, jeez, I paid too much money. So you buy a house, you buy a car, and then you regret … making the purchase, right? For whatever reason. Maybe it cost too much money. Maybe actually the colour of the car looks ugly and you don’t like it anymore. You see, a remorse for doing something, ok? After you do it.

Now do you understand what buyer’s remorse is? A Yeah. Q Okay. So I’m going to suggest what you’re doing … when you’re throwing these things out to RR, you’re sort of having a sense of buyer’s remorse, and there is one way we can get rid of buyer’s remorse. The best way to get rid of buyer’s remorse is to sit there and say, well, you know what? The seller forced me into the deal. Because then that gets rid of your remorse because you’re saying, well, yeah, it really wasn’t my choice. So that gets rid of your remorse. That’s what you’re sort of starting to do here with RR. A No.

It’s not. [ 149 ] I will have more to say about the concept of “buyer’s regret” in the context of sexual assault trials later in these reasons. Texts with Ms. Castro [ 150 ] Ms. Castro is the accused’s sister and she testified that they are very close. She is the health and safety coordinator for CD Corp but spends most of her time working in her professional capacity for DC Inc. She has worked for CD Corp and DC Inc since 2001. [ 151 ] Ms. Castro did not hire AB. She met her when she did AB’s health and safety training.

She provided AB with an employee training handbook and operations plan for the worksite on AB’s first day of work. [ 152 ] On July 17, 2018, she received a text message from AB asking to meet with her privately. She met with AB and AB’s boyfriend around 11 AM that day. They spent just over an hour together. Ms. Castro took some notes during the meeting and afterwards, parked nearby and wrote down more detailed notes about AB’s allegation that she had been sexually assaulted by Mr. Castro-Wunsch the day before. [ 153 ] In her oral testimony, Ms.

Castro said she asked AB about penile penetration and AB said that nothing like that had occurred, just that he had used his fingers. In her notes, Ms. Castro recorded that AB had told her Mr. Castro-Wunsch had taken his penis out and “tried to force himself on her.” Ms. Castro was adamant that those were the words AB used to describe that particular act. [ 154 ] Ms. Castro did not recall AB mentioning in their conversation that she had been texting with anyone that day. [ 155 ] Ms. Castro was devastated by the allegations against her brother.

She began investigating those allegations, questioning various people she thought might have relevant information about what happened on July 16, 2018. She located an odour patrol report that appeared to have been entered by AB into the system at 10:56 PM on July 16, 2018. It indicated weather conditions, and noted that AB had stopped to talk to people at two different locations on the route. [ 156 ] After their initial meeting, Ms. Castro sent AB a number of text messages asking to meet with her again but AB refused. [ 157 ] Ms.

Castro was presented with a series of text messages between her and AB that had been sent during the day of the alleged assault, on July 16, 2018. She still had the text string saved in her phone and was able to indicate the time each text was sent. Ms. Castro indicated that she did not remember if she had mentioned the text string with AB on July 17, 2018, however she did recall telling her that AB could have called her for help and she would have come.

[ 158 ] The text string in question begins July 16, 2018, at 11:03 AM, with Ms. Castro asking AB to take something with her to CD Corp that day. AB replied ten minutes later that she was already at the site and would be there all day. Ms. Castro replied “Oh (plus an emoji)” and “Ok thanks.” AB replied “No problem (plus smiley face emoji).” At 11:17 AM Ms. Castro sent two fairly lengthy texts politely admonishing AB for not telling her when exactly she was going to CD Corp. AB replied ten minutes later, at 11:27 AM, telling her that she was there at Mr.

Castro-Wunsch’s and his wife’s direction, and would be at CD Corp every Monday for the remainder of the summer. She indicated the other two summer students would also be coming in one day a week. At 11:31 AM AB texted that she thought one of them “could probably bring the bags over then!” [ 159 ] The next text on Ms. Castro’s phone is the text AB sent the next day at 8:27 AM asking to meet with her privately. [ 160 ] AB did not disclose the texts between herself and Ms.

Castro sent on July 16, 2018, to the police. [ 161 ] At the end of her statement to police, which was put to her in cross-examination, AB asked: “Like everything I sent to her from the very beginning, like even just about meeting and probably the stuff from [the accused] too?” When she sent the texts from Mr. Castro-Wunsch, Ms. Castro, and Ms. Castro-Wunch to the police, she indicated she was sending “my messages [with them] since Monday, July 16 th .” In cross-examination, AB confirmed that she sent all of the messages from Ms. Castro “from the 16 th , and from [the accused] the week of the 16 th and from Ms.

Castro-Wunsch the week of the 16 th .” Asked whether she texted anyone other than her friend – that day, she said “Not that I can remember, no.” At the preliminary inquiry, when asked if she had spoken or texted anyone while at work the day of July 16, 2018, AB answered “No, I did not.” [ 162 ] The full version of AB’s text string with Ms. Castro from July 16, 2018, was put to AB for the first time on cross-examination.

Before providing them to AB, Defence counsel pointed out that the bottom part of the last text bubble from July 16, 2018, containing the words “… probably bring the bags over then!” is clearly visible in the screen shots AB provided to the police. [ 163 ] Defence counsel, in cross-examining AB, asserted that this was evidence the texts were available to AB but she chose not to disclose them to the police. AB deliberately withheld the texts from July 16 because they did not support her version of events. AB denied deliberately withholding the texts.

She observed that if that were the case, she would not have wanted to include the tail end of the July 16 conversation in her disclosure to the police. [ 164 ] When asked whether she was wrong or lying when she said she did not text anyone on July 16, AB said she was in shock: “I was going through trauma. And this isn’t something that I was obviously focused on. I didn’t remember this.” She said she was not lying, she just did not remember she had texted Ms. Castro until the moment Defence counsel showed her the text messages.

Similarly, she had not remembered texting with her friend that day until her friend showed her the text messages. She did not recall deleting either set of messages. [ 165 ] AB agreed with Defence counsel that the texts between herself and Ms. Castro from July 16 do not indicate that she is in distress, and that she did not ask Ms. Castro to come to the site, or for help. She did not agree with the suggestion that it was because she did not need help. She repeated that Ms. Castro was Mr. Castro-Wunsch’s sister. Evidence about the weigh in/weigh out procedure [ 166 ] AB, Mr. Castro-Wunsch, and Ms.

Leon all testified at some length about the weigh in/weigh out procedure. [ 167 ] AB indicated that while she may have been presented with the formal procedures as part of her orientation, she had been trained informally by Ms. Leon. During orientation, AB was told to read the information and then to ask any questions she had. She observed that there was a lot of material in the binders. Ms. Leon just showed her how to punch in the codes and record a weight.

AB said it was not as thorough as what was described in the binder and that you could do a ticket all at once if you had to, as long as you had the right information. She only remembered actually filling in for Ms. Leon once, although she saw the process performed many times. [ 168 ] Ms. Leon testified that she has been employed by CD Corp for over seven years. At the time of the offence, and presently, she was working as the weigh scale operator. She also took care of certain accounting and record keeping tasks.

She was not in the office at the time of the alleged offences and had no first-hand knowledge of them. She indicated that Mr. Castro-Wunsch was the site operator and her “direct boss.” [ 169 ] Ms. Leon described in great detail the manner in which truck were weighed in and weighed out at the CD Corp property. For the most part, her testimony was consistent with Mr. Castro-Wunsch ‘s testimony, with some differences. [ 170 ] Ms. Leon said that when trucks drove in they would be required to come in to talk to her about the unloading process.

She said it would take “at least” two minutes to key in a code during the weigh in process and that she could not key it in later. It would take between 10 – 30 minutes to drop off a load of material. She said the weigh out process would also take two to three minutes. [ 171 ] On cross-examination Ms. Leon was initially unwilling to agree that truckers could ever be simply waved through on the way in. She gave several different reasons why truckers would have to come in.

Eventually, she agreed that some truckers (she emphasized “not all”) were lazy and would just talk to her through the window on the way in. [ 172 ] Mr. Castro-Wunsch testified that the weigh in process would sometimes take two minutes, but only if the driver needed to come inside for some reason. He indicated that the drivers did not always have to come inside. [ 173 ] Ms. Leon was insistent that drivers could never leave without weighing out and taking a chit and the same process always had to be followed, without fail.

However, she also admitted that she could create or recreate chits after the fact for certain customers in certain situations and that she had done so for one customer who had attended after hours on July 16. [ 174 ] A series of chits or receipts were entered into evidence, and presented to both Mr. Castro-Wunsch and Ms. Leon. The chits,

dated July 16, 2018, provided information about how many trucks passed through CD Corp that day, as well as what time they wereweighed out. Mr. Castro-Wunsch and Ms. Leon both reviewed each of the 21 chits with the Court, explaining the information containedin them, and identifying their handwriting on the chits. Several manifests, or “field tickets” were also entered into evidence. [175] The first chit has a time stamp of 9:46 AM. The last chit has a time stamp of 4:54 PM. Fifteen of the chits appear to have beenissued during the time period of the alleged assault: 9:30 AM to 3:30 PM.

Most of the chits appear to have been signed by the truckdrivers, which indicates they entered the premises prior to leaving. Mr. Castro-Wunsch identified his own handwriting on most, but notall of the chits. Some chits do not contain any of Mr. Castro-Wunsch’s handwriting (Jobs 27118, 27119, 27134 and 27133, for example).Mr. Castro-Wunsch was unsure whether something was written by him or the truck driver in a few cases. [176] Ms. Leon identified her handwriting on all of the chits. On the chit for Job 27122, both Mr. Castro-Wunsch and Ms. Leonidentified the handwriting at the very top of the chit as their own.

On the chit for Job 27135, they both identified the words “SpruceGrove” as being written by them. [177] One of the chits – Job 27116 – indicates zero values where the other chits have listed a weight. It is time stamped 11:21 AM,July 16, 2018. Ms. Leon explained that this was not the actual time when the truck in question was weighed in and weighed out again.The chit related to a trucker who had permission to come through the site after hours to drop off product without supervision. Ms.

Leonwas able to create the chit after the fact for this client because the driver had weighed the truck in and weighed the truck out, and had lefta manifest behind containing the required information. The chit in question was created when she returned to work on July 17, 2018. [178] On cross-examination, Ms. Leon was extremely reluctant to admit to any exceptions to personal attendance for the weigh inprocedure. When asked about area signage, she insisted that the directional signs CD Corp used to guide trucks to the drop off area weremoved every week and that they did not keep people from becoming confused.

She insisted that even the regulars would need to stop tocome in and talk to her on the way in to the site to get instructions about where to go. DNA evidence [179] DNA results obtained from the national Forensic Laboratory Services-Edmonton were admitted by consent. [180] DNA testing was performed on the bra and underwear that AB was wearing on the day of the alleged sexual assault. She alsoprovided a voluntary blood sample. A blood sample was also taken from Mr. Castro-Wunsch pursuant to a DNA warrant. DNA profileswere developed for both AB and Mr.

Castro-Wunsch. [181] The accused’s DNA was located in a biological sample taken from inside one of the cups of AB’s bra, as well as from theinterior waistband of her underwear. IV. Legal Principles A. Law of Sexual Assault [182] The essential elements the Crown must prove with respect to a sexual assault charge are that: 1. The accused touched the complainant directly or indirectly; 2. The touching by the accused was intentional; 3. The touching by the accused took place in circumstances of a sexual nature; 4. The complainant did not consent to the touching by the accused; and 5.

The accused knew that the complainant did not consent to the touching by the accused. [183] Mr. Castro-Wunsch is presumed to be innocent until the Crown proves his guilt beyond a reasonable doubt on each and everyelement of the offence of sexual assault. [184] In this case, the first three elements are proven with respect to the majority of the sexual acts alleged by the complainant. Withrespect to the admitted acts, the Crown must prove beyond a reasonable doubt that the complainant did not consent to the touching, andthat the accused knew she did not consent.

With respect to the sexual acts which the accused denies, the Crown must prove all fiveelements beyond a reasonable doubt. [185] A reasonable doubt is a doubt based on reason and common sense that is logically connected to the evidence or the absence ofevidence. It is not based on sympathy or prejudice.

At the same time, reasonable doubt does not involve proof to an absolute certainty; itis not proof beyond any doubt such as an imaginary or a frivolous doubt (see R v Lifchus, (SCC), [1997] 3 SCR 320and R v Starr, 2000 SCC 40, [2000] 2 SCR 144). [186] In R v Barton, 2019 SCC 33, the Supreme Court of Canada reviewed the law of consent and knowledge of consent at para 88: "Consent" is defined in s 273.1(1) of the Code as "the voluntary agreement of the complainant to engage in the sexual activity inquestion". [footnote omitted] It is the "conscious agreement of the complainant to engage in every sexual act in a particular encounter"(JA, at para 31), and it must be freely given (see Ewanchuk, at para 36).

This consent must exist at the time the sexual activity inquestion occurs (JA, at para 34, citing Ewanchuk, at para 26), and it can be revoked at any time (see Code, s 273.1(2)(e); JA, at paras 40

and 43). Further, as s 273.1(1) makes clear, "consent" is not considered in the abstract. Rather, it must be linked to the "sexual activity inquestion", which encompasses "the specific physical sex act", "the sexual nature of the activity", and "the identity of the partner", thoughit does not include "conditions or qualities of the physical act, such as birth control measures or the presence of sexually transmitteddiseases" (R v Hutchinson, 2014 SCC 19, [2014] 1 SCR 346, at paras 55 and 57 (emphasis deleted)). [187] The Crown must prove beyond a reasonable doubt that the complainant did not

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