R. v. Etherington Date:, 2016 BCPC 186

Citation: R. v. Etherington Date: 20160406 2016 BCPC 186 File No: 197949-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Division REGINA v. WAYNE GLEN ETHERINGTON ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. GAFFAR BAN ON PUBLICATION - s. 486.4(2) CCC Counsel for the Crown: J. Dickie Counsel for the Defendant: D. Melville Place of Hearing: Surrey , B.C. Dates of Hearing: March 15, 24, April 1, 2016 Date of Judgment: April 6, 2016

[ 1 ] THE COURT : In giving these oral Reasons for Judgment, I reserve the right to edit my reasons for minor errors and to add such things as headings and more extended case references or excerpts if a transcript is ordered. Any such ordering will not change any of the underlying reasoning or ultimate result. Introduction [ 2 ] Dr. Wayne Glen Etherington has been charged with exposing his penis in a public place (i.e., the charge of Indecent Act pursuant to s. 173(1)(a)) on the 7th of December 2012.

He is also charged with two incidents of non-consensual sexual contact, (i.e., charges of sexual assault pursuant to s. 271 of the Criminal Code ) on the 31st of December 2012 and the 26th of January 2013. The Crown is proceeding summarily on all matters. There is a ban on the disclosure or publication of any information that would tend to identify the complainants, pursuant to s. 486.4(2). [ 3 ] At each relevant time, Dr. Etherington was a veterinarian at the Clayton Animal Hospital in Langley, British Columbia, who provided medical care for the complainants' dogs.

The adult female complainants believed that he owned the animal clinic when they attended. Each incident allegedly occurred either inside his veterinarian clinic or in the parking lot outside of the clinic. The evidence before the court is that there was a professional relationship between Dr. Etherington and each complainant, but no personal nor social relationship. [ 4 ] I have heard evidence from each complainant. No further evidence was called by either party. Issues [ 5 ] The questions I must decide are as follows:

a) Count 1, indecent assault of L.C. and M.M.: Has the Crown proven beyond a reasonable doubt that Dr. Etherington exposed his penis in a public place in the presence of L.C. and M.M.? If so, has the Crown proven beyond a reasonable doubt that Dr. Etherington intended to expose his penis at that time?

b) Count 2, sexual assault of C.D.: Has the Crown proven that in all the circumstances Dr. Etherington's hugging of C.D. was sexual in nature? As part of that analysis in this case, I must determine if the Crown has proven beyond a reasonable doubt that Dr. Etherington had some form of erection when he hugged C.D., C.D.'s sexual integrity was violated when Dr. Etherington hugged her, and C.D. did not consent to being touched in that manner, i.e., she did not want to be touched in that manner.

c) Count 3, sexual assault of T.R.: Has the Crown proven that in all the circumstances Dr. Etherington's conduct was sexual in nature when he hugged T.R. and kissed her on the cheek? On the facts of this case I must determine if the Crown has proven beyond a reasonable doubt that T.R.'s sexual integrity was violated when he hugged and kissed her, and T.R. did not consent to being touched, i.e., she did not want to be touched, hugged and/or kissed. Position of the Parties [ 6 ] In general, the Crown submits that:

a) Public Exposure: The alleged incident occurred in a parking lot in a strip mall outside of the animal clinic in the presence of L.C. and M.M. L.C.'s evidence should be accepted as she had an opportunity to view the penis and was unshaken in cross-examination. Ms. Dickie argues that given that L.C. observed the penis being exposed, the Crown is entitled to rely on the legal presumption that Dr. Etherington intentionally exposed his penis. M.M.'s evidence that she did not observe the penis at the same time as L.C. is explained by her more limited viewpoint.

b) Sexual Assault of C.D.: Ms. Dickie argues that the evidence of C.D. should be considered reliable and credible. Her evidence demonstrated that Dr. Etherington touched her body in a manner that violated her sexual integrity without her consent. The sexual nature of the contact was evident, says the Crown, when Dr. Etherington slid his hands down her back from her shoulders to her lower ribcage, pulled her lower body into contact with his pelvis and she felt and/or saw a semi-erection. Ms. Dickie opposes the application of the de minimis principle to this count as contrary to the underlying principles for the offence of sexual assault.

c) Sexual Assault of T.R.: The evidence of T.R. is uncontested, reliable and credible. Her evidence demonstrated that Dr. Etherington touched her body in a manner that violated her sexual integrity without her consent. The sexual nature of the contact is uncontested and was evident when Dr. Etherington hugged her without invitation, disregarded her defensive reaction, lifted her chin, kissed her on the cheek, almost immediately apologized for misreading the cues, explained that he was undergoing counselling for misreading social cues, and that it was hard to meet people and that he was lonely. Ms.

Dickie opposed the application of the de minimis principle to this charge and again referred to the principles underlying the sexual assault provision. Ms. Dickie argues that the circumstances of this incident cannot be considered trivial such that the de minimis principle can be applied. [ 7 ] In

summary, Dr. Etherington submits that:

a) Public Exposure: Mr. Melville, on Dr. Etherington's behalf, argues that L.C.'s evidence is internally inconsistent and externally inconsistent when assessed with M.M.'s evidence. He submits that her inability to determine if Dr. Etherington was circumcised necessarily contradicts her assertion that she had a full, unobstructed view particularly in light of the brevity of the view. He argues that M.M. would have seen the penis, too, given the position of the parties. However, since she did not, it is unsafe to convict in these circumstances.

b) Sexual Assault with respect to C.D.: Mr. Melville argues strenuously that C.D.'s evidence is not reliable nor credible. He points to inconsistencies in her evidence, contradictions with her own statement and the manner in which she made assertions in court that were clearly contradicted by her statement. He concedes that there was a hug, but no more. He argues that any touching was not sexual in nature. If I accept this submission, Mr. Melville argues that I must consider then whether the Crown has proven the lesser included offence of assault simpliciter beyond a reasonable doubt.

If I find that the Crown has proven assault simpliciter beyond a reasonable doubt, then I should apply the de minimis principle.

c) Sexual Assault of T.R.: Mr. Melville accepts the reliability and credibility of T.R.'s evidence. He accepts that she was hugged and kissed on the cheek without her consent and that the touching violated her sexual integrity. He also accepts the sexual nature of the touching. However, he submits that I should impose the de minimis principle. [ 8 ] I have considered the evidence in this case, the able submissions of counsel and the legal authorities provided by counsel. I intend to summarize only the materials I found most relevant for the purposes of this case.

I am cognizant of the passage of time since the events alleged and its possible effect on the memory of the complainants. Identification is not in issue. The Law Indecent Act [ 9 ] The Crown must establish beyond a reasonable doubt that Dr. Etherington intentionally exposed his penis in a public place in the presence of one or more persons, pursuant to s. 173(1). The Crown is not required to show that the alleged act had a sexual context ( R. v. Jacob , 1996 Ontario Court of Appeal). There is a presumption that Dr. Etherington intended to show his penis in a public place if another person saw it ( R. v.

Parsons , 1962 BCSC para. 12). This presumption can be rebutted if Dr. Etherington demonstrates that he believed his penis was covered by his coat. In other words, Dr. Etherington may rebut this legal presumption if he establishes that he had an honestly held but mistaken belief that his coat covered his penis ( R. v. Breton , 2014 APC para. 10, citing R. v. Sansregret , 1985 SCC para.15 in part). Sexual Assault Actus Reus [ 10 ] The Crown must establish beyond a reasonable doubt that, in all the circumstances, Dr. Etherington touched the complainants in a sexual manner and violated their sexual integrity ( R. v.

Litchfield , 1993 SCC para. 8). I must objectively assess these two elements ( R. v. Ewanchuk , 1999 SCC para. 25). The Crown must prove that Dr. Etherington's actions were voluntary ( Ewanchuk , para. 25). The purpose or motive of Dr. Etherington's actions, as derived from the evidence, may be a factor in considering whether the conduct is sexual in nature. The Crown must also establish beyond a reasonable doubt that the complainants did not consent to be touched in such a manner ( Ewanchuk , para. 25). The defence takes no issue with this element of the test.

The defence concedes the complainants did not consent to being touched. The defence correctly focused on whether the impugned touching was sexual in nature. Consequently, I do not have to deal with the issue of whether Dr. Etherington had an honestly held but mistaken belief in consent. [ 11 ] I note that, if I determine that the touching is not sexual in nature, I still have to examine whether the touching amounted to an assault simpliciter. The Crown would be required to prove that Dr. Etherington intentionally or recklessly touched the complainants without their consent.

I am cognizant of the comments in the case of R. v. Bernier , 1997 QCA at page 474, in which there is reference to the touching, that the touching may be slight, because the law prohibits any intentional touching of another person without the consent of that person and without lawful excuse. The touching does not need to be hostile, rude, nor aggressive. [ 12 ] I interpret the comments above in light of the later decision of R. v. Jobidon , 1991 SCC at paras. 63 through 65, which seeks to circumscribe the broad application of the assault provisions.

In particular, paragraph 63 refers to the following: Assault has been given a very encompassing definition in s. 265. It arises whenever a person intentionally applies force to a person "directly or indirectly," without the other's consent. The definition says nothing about the degree of harm which must be sustained. Nor does it refer to the motives for the touching. If taken at face value, this formulation would mean that the most trivial intended touching would constitute assault. The court then provides an example.

It concludes the paragraph by stating: That absurd consequence could not have been intended by Parliament. Rather its intention must have been for the courts to explain the content of the offence, incrementally and over the course of time. At paragraph 65 the court wrote: With the offence of assault, that kind of balancing is a function the courts are well-suited to perform.

They will continue to be faced with real situations in which complicated actions and motivations interact, as they have in the past. [ 13 ] I have also considered the comments of the Supreme Court of Canada in the still later decision of Ewanchuk, a 1999 decision at paragraph 28. This paragraph provides the rationale referred to by Ms. Dickie in her able submissions to me concerning the reason for the criminalization of assault. Paragraph 28 reads: The rationale underlying the criminalization of assault explains this.

Society is committed to protecting the personal integrity, both physical and psychological, of every individual. Having control over who touches one's body, and how, lies at the core of human dignity

and autonomy. The inclusion of assault and sexual assault in the Code expresses society's determination to protect the security of theperson from any non-consensual contact or threats of force. The common law has recognized for centuries that the individual's right tophysical integrity is a fundamental principle, "every man’s person being sacred, and no other having a right to meddle with it, in any theslightest manner": see Blackstone’s Commentaries on the Laws of England (4th ed. 1770). The last sentence of the paragraph reads: It follows that any intentional but unwanted touching is criminal.

I interpret paragraph 28, again, in the context of the references I have made to R. v. Jobidon. [14] This case also involves the potential application of the de minimis principle. The decision in R. v. Kolebaba, 2011 BCPC 1considers the application of the de minimis principle to assault charges in the context of incidental, accidental and intentional touching. In particular, paragraph 50 reads: For the purposes of the present analysis it is important to remember, as a threshold point, that the slightest intentional touching of anotherwithout that other's consent can constitute an assault at law.

An assault may be committed even in circumstances where the accusedexerts no degree of strength or power when touching the victim and where the perpetrator acts without violence or even animus: see R. v.Burden (1981), (BC CA), and R. v. A.Z., (ON CA). Paragraph 51: That said, there are circumstances where intentional contact that occurs between perpetrator and victim is so trifling and insignificant,when seen in context, that it will not attract criminal liability. There is reference in paragraph 52 to cases involving incidental contact.

In the middle of the paragraph: In other cases, while the non-consensual physical contact may not have been incidental and secondary, its nature is otherwise so triflingand insignificant overall that the court may properly overlook it as an “irregularit[y] ... which would weigh little or nothing on the publicinterest”: R. v. McLeod, 2006 ABPC 114. [15] I have also been referred to the decision R. v. Smale 2016 ABPC 39 and in particular to paragraph 39, in which the court refersto a decision of the Yukon Territorial Court in R. v. Elek, [1994] Y.J. No. 31.

There is discussion about intentional but minor non-consensual contact. In the decision of Smale, the court refers to Elek at paragraph 24 of Elek: In my view, much of the difficulty in applying the de minimis test is the usual translation: "The law does not concern itself with trifles." I think a much better way to approach the task is to ask whether or not the conduct of the accused is sufficiently serious that it shouldproperly be stigmatized as criminal.

I recognize that this is hardly more precise than speaking of the conduct as being trifling or trivial,but I think that the words trifling and trivial can convey a pejorative message to the complainant which may not be warranted. Anaccused may be acquitted on de minimis grounds even though what happened is not considered by the court to be a "trifle", but is simplyconsidered to be conduct that, while unacceptable and wrong, did not constitute criminal misconduct. Mens Rea [16] The Crown must prove beyond a reasonable doubt that Dr. Etherington intended to touch the complainants (Ewanchuk para.41).

The Crown must also establish, that in touching the complainants, Dr. Etherington knew or was reckless or was wilfully blind to thecomplainants' lack of consent (Ewanchuk para. 42). The Crown does not have to prove that Dr. Etherington touched the complainants ina sexual manner (Litchfield para. 7). Analysis December 7, 2012: Has the Crown proven beyond a reasonable doubt that Dr. Etherington exposed his penis in a public place inthe presence of one or more persons? [17] M.M. and L.C. both testified about the events of the 7th of December 2012.

While their testimonies contained overallsimilarities, their testimonies differed on some matters. Some of those differences were material to the issues. L.C. is 65 years old andhad never met Dr. Etherington before that day. M.M. had seen him at a dog park but denied they had a friendship or any type of social orpersonal relationship. The Crown asked M.M. twice whether Dr. Etherington had done anything to make her uncomfortable prior to thatday. M.M. denied it both times. [18] The animal hospital is located in a busy strip mall with a parking lot area attached. They both testified that they attended at the

animal clinic in L.C.'s minivan, on the 7th of December 2012, so that M.M.'s dog could receive post-surgery care (the removal of bandages). The minivan had a rear cargo area for the dog and a rear door that lifted upwards. The dog was very upset, agitated and unable to walk properly when they arrived. They could not remove the dog from the vehicle. They wanted and received canine medical attention at the minivan. The bandages were removed from the dog. Both L.C. and M.M. were dissatisfied about how Dr. Etherington professionally treated them and the dog.

Clearly, they viewed his dealings with them, and the dog, as brief and cursory. [ 19 ] Upon their arrival, L.C. recalled that M.M. went inside the animal clinic to explain the situation and returned alone. Shortly afterwards, L.C. recalled that Dr. Etherington came out of the animal clinic and examined the dog. Dr. Etherington said that the bandages had to be removed and returned to the animal clinic. His examination lasted approximately 15 seconds. [ 20 ] According to L.C., a young man then exited the clinic, entered the back of the van, removed the dog's bandages, informed them that Dr.

Etherington would be out shortly and returned inside the clinic. The bandage removal took approximately one minute or so. Dr. Etherington came out of the clinic a few minutes later. [ 21 ] M.M. recalled the medical treatment differently. She testified that when they arrived, Dr. Etherington was not in the office yet. His assistant and receptionist came out of the clinic. She then saw Dr. Etherington walking through the parking lot. He told them that the bandages could be removed. Dr. Etherington then went inside the animal hospital.

His staff removed the bandages and returned inside the animal hospital. [ 22 ] Both witnesses agree that, a minute or two later, Dr. Etherington came back outside to the minivan. At this point L.C. was standing at the back of the vehicle on the driver's side. The rear door lid was up and M.M. seated inside the rear cargo area of the vehicle with the dog. Dr. Etherington came to the open rear door of the vehicle where L.C. was already standing. Dr. Etherington stood at the rear passenger side of the vehicle while L.C. stood at the rear driver's side of the vehicle. L.C. described that Dr.

Etherington had his back to the parking lot and he was slightly turned, so that the front of his body was more towards the car. She later stated that he was facing more into the body of the van. M.M. testified that she could see half of Dr. Etherington's body and could not see his back half. She could see his front side. Later, in cross-examination she indicated that she could see the front of him clearly and he was standing sideways. [ 23 ] According to L.C. he was wearing a knee-length or longer coat, tan or beige in colour. She stated that it was like a windbreaker.

Later on, she agreed with Crown that she could use the term "trench coat" to describe it. It had a belt that was not done up nor tightened. L.C. could not remember what Dr. Etherington was wearing on his lower body, other than pants. M.M. testified that Dr. Etherington wore a car coat which looked like a mid-thigh jacket. She could not recall anything about his other clothing. In cross- examination, Mr. Melville asked M.M. about what clothing Dr. Etherington was wearing on his lower body.

M.M. was combative in her responses and eventually stated, "I don't think he was wearing a skirt, so I'll say that he was wearing pants." While I am mindful that a witness may be nervous and uncomfortable when testifying, I viewed these answers as unhelpful and antagonistic. Both witnesses were certain that he was wearing an outdoor coat and was not wearing a clinical or medical smock. [ 24 ] L.C. testified that, at this point, Dr. Etherington glanced at the dog and said that everything was fine. L.C. asked him about the swelling. Dr. Etherington put his hands into the pockets of his coat.

Still inside the coat pocket, his right hand lifted up the coat and she could see his penis. His penis was "totally exposed." It was not covered by anything like underwear. She could not say anything about the state of his pants, other than his pants were up. He said nothing when the coat was lifted. The penis was only exposed for three to four seconds, not very long at all, as the coat just went up and down. After the coat was back down, Dr. Etherington said that it looked good, fine, and that the swelling would go down. Dr.

Etherington then left the area. [ 25 ] Under cross-examination, L.C. testified that she could not say nor see if he was circumcised. She stated that she did not wear glasses, it was daylight and that nothing obstructed her view. She was approximately five feet from Dr. Etherington. She testified that she did not see if he was circumcised or not because it happened so quickly and she was five feet away. She reasserted that she got a full view of the penis hanging out of his pants. [ 26 ] M.M.'s account differs. She testified that when Dr.

Etherington returned back outside he "didn't even look at the dog." M.M. was worried about how the dog's leg was feeling. Dr. Etherington then started to walk away. L.C. called him over to ask something. M.M. asked him a question. She was concentrating on her dog and looking at Dr. Etherington's face as she waited for an answer. She was approximately five feet from him. L.C. was approximately three feet from M.M. Dr. Etherington answered M.M.'s question and then he left. The exchange was brief and Dr. Etherington was only there for a moment. M.M. was clear in her evidence that she did not see Dr.

Etherington's penis at any time during their interaction that day. She suggested that, in explanation for not seeing his penis, she may have been looking at her dog at the time. [ 27 ] In cross-examination she agreed that Dr. Etherington appeared to be six foot two inches to six feet three inches tall when he stood at the back of the vehicle. She was looking up into his face from her seated position. When it was suggested that her face was level with Dr. Etherington's crotch, given his height, she did not directly respond to the question. Instead, she answered, "I wasn't looking there." Mr.

Melville suggested that she could still see with her peripheral vision that his crotch was directly in her line of vision, to which M.M. replied, "Okay." She agreed that she saw nothing and saw no exposed penis. She agreed that it was daylight. She said that she was not wearing glasses at that time and had no problem with her vision (she has glasses for reading). [ 28 ] After Dr. Etherington left for the last time, L.C. re-entered her vehicle and sat there flabbergasted and taking it all in for approximately five minutes. During that time, she told M.M. what had happened and they just sat there.

Then she drove M.M. home. They discussed the incident on the ride home. In the days following, M.M. agreed that they talked about what happened but could not say how many times. She did not think that they "harboured" on it. [ 29 ] I have considered all of the circumstances described by the witnesses, as well as the similarities and differences in their testimony. I am satisfied all relevant interaction between Dr. Etherington and the witnesses occurred in the public parking lot area of a busy strip mall in Langley, British Columbia.

However, I am unable to conclude that the Crown has established beyond a reasonable doubt that Dr. Etherington exposed his penis. While I do not doubt the sincerity of L.C.'s testimony about her observations that day, I am

cognizant of the following factors which render it unsafe to convict in all the circumstances: (

a) the witnesses were clearly dissatisfied with Dr. Etherington's professional interaction with them and the dog; this dissatisfaction permeated their testimonies; (

b) M.M. did not see Dr. Etherington's exposed penis; (

c) based on L.C.'s description of Dr. Etherington's body position which faced the opening of the minivan's rear, M.M. had an opportunity to see the penis. She did not. Ms. Dickie submitted that the right-hand flap of the coat may have obstructed M.M.'s view of the penis and/or she may have been dealing with her dog when it occurred. However, I am unable to agree, given L.C.'s description of his body position and M.M.'s testimony that her primary purpose was to ask him a question. While she may have been dealing with her dog, M.M. was looking directly at him in expectation of an answer.

I accept L.C.'s evidence that his body was slightly turned so that the front of his body was facing towards the rear of the vehicle and he was facing more into the body of the van. M.M. was directly inside the body of the van facing outwards; (

d) Dr. Etherington spent a very brief time at the minivan on the last occasion; (

e) the brevity of L.C.'s view of the penis (three to four seconds) which she described as the coat just going up and down; (

f) L.C.'s inability to describe the state of Dr. Etherington's lower body clothing and pants when she testified that she clearly saw his penis protruding from his pants; (

g) L.C.'s inability to describe whether his penis was circumcised. I do not consider this to be a particularly significant factor, as a person's own reaction (shock) may diminish the ability to observe such a detail. However, when this factor is combined with the others, it enhances my reasonable doubt. [ 30 ] The witnesses have sincerely described their observations. I also note that L.C.'s reaction was immediate and immediately shared with M.M. However, I am troubled by the overall circumstances and material inconsistencies.

I cannot convict on the basis of L.C.'s own certainty in her observations, which I consider to be honestly held. The jurisprudence is replete with the evidence of witnesses who are firm in their honest beliefs and testimony, only to be substantially contradicted by other evidence. I am unable to conclude beyond a reasonable doubt that Dr. Etherington exposed his penis on the 7th of December 2012. Given this conclusion, it is unnecessary for me to deal with the issue of intent and the legal presumption that if a witness saw his penis, he intentionally exposed it.

December 31st, 2012: Has the Crown proven beyond a reasonable doubt that Dr. Etherington touched C.D. in a sexual manner? [ 31 ] C.D. is 56-year-old woman who had a history of bringing her pets to the Clayton Animal Hospital in Langley, B.C. While she usually dealt with another veterinarian at the animal hospital, she also had two to three prior dealings with Dr. Etherington. On the 31st of December 2012, at approximately 10:00 a.m., she took her female dog to the animal hospital to deal with an ear injury caused by another dog. She observed Dr. Etherington and his receptionist at the clinic.

When asked by Crown, C.D. indicated that she was approximately five feet five inches to five feet six inches tall and wearing a blouse with button-up snaps, collar and half-length sleeves on top of her black jeans. In her direct evidence with Crown, she estimated that Dr. Etherington was approximately five feet 11 inches to six feet tall, although she was not sure. He was wearing light cotton pants which appeared to be medical or lab scrub pants underneath a yellow shirt and white lab coat. He had a stethoscope around his neck. Dr. Etherington examined C.D.'s dog in an examining room. It was not a large room.

C.D. sat in a chair and held the dog's body and face between her knees in order to control the dog during the examination. Dr. Etherington crouched down and examined the dog. She felt that the ear examination lasted a little bit longer than anticipated. He provided C.D. with instructions for the care of the dog and provided her with a medical cream to prevent infection. Dr. Etherington noted that the dog was due for a vaccination, which he administered. As Dr. Etherington vaccinated the dog, he commented on C.D.'s fingernails.

He told her that he liked her artificial fingernails and asked whether she did them herself. C.D. testified that she tried to keep him focused on the dog, but he began asking about how her Christmas went and whether she had plans for New Year's Eve. C.D. responded that she had no plans because she would be looking after her grandson. [ 32 ] After the vaccination, C.D. stood up to leave the examination room. She heard Dr. Etherington say, "Happy New Year?" She responded, "Happy New Year." He then said, "Hug?" Dr. Etherington then put his hands on her shoulders with one hand on each shoulder.

He was standing upright, approximately one foot away from her. C.D. tapped downwards on his left shoulder with her right hand once or twice. She described it as follows, ". . . so he put his hands on my shoulders . . . so the right hand, I just kinda tapped his shoulder like okay . . . as soon as I did that his hands went from my shoulders down . . ." She "had the dog" (leash, I presume) and her purse or wallet in her left hand. She testified it was just instinct when she patted him on the shoulder in order to convey that "he should move on." She had to reach up and look up a little bit due to his height.

When she tapped him, she did not know what to think and was very surprised by his behaviour. It was behaviour that she expected from a friend or an acquaintance, but not in a veterinarian's office. She felt very uncomfortable but not threatened that he would do anything. As she tapped his shoulder, Dr. Etherington's hands slid down from her shoulders. His right hand, she guessed "went to the bottom of her ribcage and the other hand came down and he pulled her hips towards him." He did not use a lot of force, he did not grab her really hard and pull her towards him.

She was just more surprised that her body just went because she was not expecting it. I presume that she meant that her body just followed along because she was not expecting it. [ 33 ] C.D. testified that their pelvic areas touched and she felt an erection. She looked down at the floor, avoiding his eyes. She saw a bulge in front of his pants. Her observation of the bulge was the other reason she thought he had an erection.

C.D. testified that she was unable to describe the degree of erection, but stated that there was "a definite view that something was going on." She pulled away, he patted her shoulder, and he said, "Good girl." C.D. ensured that she had her wallet and dog leash, and got out of the room as fast as

she could. He was turned away from her when she left the room. She went to the reception area to pay her bill. [ 34 ] When Dr. Etherington came out to the reception area a few minutes later, he told the receptionist to charge her for the vaccine but not the emergency visit. C.D. testified that an emergency visit was a little more expensive than the vaccine. She said this was not unusual because it was regularly done for repeat clients. She just thought, "Thanks, that was nice." [ 35 ] After she left the clinic and was driving home, C.D. started to relive the incident as it just kept running around in her mind.

She questioned whether it had really happened and if she should report it. She did not know what she was going to do. She testified that she did not know if what occurred was a sexual assault. The RCMP station was located on her route home. She stopped and told a person inside the station that she wanted to report something. Later that day, a police officer obtained a statement from her. In the days afterwards, C.D. made an appointment to see her regular veterinarian at the animal hospital. She told him what had occurred. [ 36 ] She testified that Dr.

Etherington had never asked for a hug before, that she had no romantic interest in Dr. Etherington, and that he had never approached her before to go for a coffee or to become romantically involved. She did not consent to him touching her shoulders, a hug or the touching of their pelvic areas. [ 37 ] Mr. Melville cross-examined C.D. in four general areas: (

a) how the hug started (meaning the sequence of events after they wished each other Happy New Year and Dr. Etherington asked for a hug); (

b) their relative body heights which would make pelvic-to-pelvic contact impossible; (

c) whether, on the day of the incident, she told the police that she could feel an erection versus seeing what she believed to be an erection; and (

d) whether his comment "good girl" was directed at C.D. or the dog. [ 38 ] How the hug started: In cross-examination, C.D. agreed that Dr. Etherington asked her if he could hug her when he asked, "Hug?" She testified that she did not say anything in response to that question. Her evidence under cross-examination then contradicted her earlier testimony. In her earlier testimony, she stated that Dr. Etherington asked, "Hug?" first, and then he placed his hands on her shoulders. He was approximately one foot away from her and she tapped him on the left shoulder once or twice.

She explained that it was just an instinct when she patted his shoulder. In cross-examination she stated that he put his hands on her shoulders first, and then he asked her, "Hug?" as he was stepping forward. She then testified that she had no time to react and that her reaction eventually was to pat his shoulder. [ 39 ] I am cognizant that several years have passed since the events described and memory can be affected by the passage of time, particularly regarding a sequence of events. However, this contradiction represents an internal contradiction between evidence given within a very short period of time.

While the timing of the initial hands' placement may not on its own appear to be significant, it is a factor to be considered in the overall context and my assessment of whether the touching was for a sexual purpose. This evidence, given during questions by the Crown, is more benign than the evidence given during cross-examination. This may not have been intentional. [ 40 ] Body positions: Mr. Melville cross-examined C.D. about their body positions during the event. She indicated that they were both standing, facing each other. She confirmed that Dr. Etherington did not crouch down but was standing straight up.

When he pulled her hips forward, they were "groin-to-groin." In cross-examination, C.D. testified that she was five feet five inches and that Dr. Etherington was either five feet ten inches or five feet 11. She agreed with counsel when he suggested that Dr. Etherington was six feet tall. Mr. Melville suggested to her that given the relative disparity in height, his groin area would be higher than her groin area and that his groin would more likely be in her stomach or torso area. She responded that it did not feel like it.

When counsel suggested that they were never groin-to-groin during the hug, she replied, "It felt like it." She was asked about the physical impossibility of their being groin-to-groin. She answered that, "It felt like it." At this point, I note that C.D.'s initial responses under cross-examination regarding Dr. Etherington's height sought to shorten his height. It appeared to me that she began to modify her answers once she became aware of the purpose of Mr. Melville's questions.

Her repeated identical responses demonstrated her unwillingness to accept a reasonable proposition. [ 41 ] The disparity in height is significant. It would have been physically impossible for their groins to be aligned. In the overall circumstances, it diminishes the sexual aspect of the touching. However, even if his groin area connected with her torso or stomach (and not her groin) it is still a non-consensual touching. [ 42 ] Contradiction about feeling versus seeing an erection: Under cross-examination, C.D. testified that the events were very clear in her mind. Mr.

Melville cross-examined her about whether she saw or whether she felt the erection. In her statement, the officer asked C.D. directly whether she could feel Dr. Etherington's erection. She responded twice that she pulled away and added that she did not wait to feel anything. It is clear that she told the police that she pulled away, looked down to ensure that she had her wallet and the leash and she then noticed an erection. In her evidence, C.D. insisted that she had told the police that she felt an erection. She was given an opportunity to review her statement and point out that reference.

She appeared to review each page and referenced a portion of the statement transcript in which there was no reference to her feeling an erection. I accept that she did not refer to feeling an erection in her police statement. C.D. continued to insist that she had told the officer about feeling an erection because that was what she meant.

When counsel continued to ask questions in this area, C.D. then explained that her emotional state, the quick events in the animal hospital, her confusion and the officer's difficulties with the recording device all meant that her statement was not as clear as counsel would have liked. She maintained in court that she felt the "bulge," she saw it and she got out. She continued to insist that she had told the police in her statement that she had felt an erection. [ 43 ] Due to the contradiction between her timely statement and her evidence three years later, I am unable to conclude that C.D. felt

an erection. I accept that a person's memory is clearer closer in time to the event described. I also accept as a common sense proposition that memory can be affected by the repeated verbal and mental replaying of events, which occurred here. C.D.'s contradiction affects the reliability of her memory, given the passage of time. Her insistence that she did tell the police that she felt an erection when it was clear that she did not, affects her credibility. It is a significant point.

Feeling an erection would significantly enhance the sexual nature of the touching (the hug). [ 44 ] From all the evidence it is also clear that the events unfolded very quickly. I accept that Dr. Etherington touched her shoulders and pulled her forward for the hug. I also accept that she had her hand on his left shoulder when he moved her forward for the hug, which would create upper body distance between them. As a result, her lower body moved closer to his body and touched his body briefly.

As soon as she felt herself pulled forward and touch his body, she consistently testified that she pulled away immediately. I accept that she looked downwards and saw a "bulge" in his groin area. I am unable to conclude that she saw an erection. While she provided a conclusory statement that she saw an erection in her evidence, she was unable to describe the degree of erection. The only description she could provide was "just that there was a definite view that something was going on." Her evidence did not provide sufficient detail for me to reasonably conclude that she actually saw an erection.

I am also mindful that Dr. Etherington was wearing light cotton lab or medical pants. This is not alarming, given that he worked in an animal hospital and performed surgeries. I cannot ignore the possibility that such clothing may unintentionally and visually permit a more pronounced view of an unaroused male genital area. [ 45 ] The "good girl" comment: Again in cross-examination, C.D. testified that Dr. Etherington patted her shoulder after the embrace and then said, "Good girl." She agreed that her female dog was positioned right beside her when he made that comment.

She disagreed when asked if it was possible that he was speaking to her female dog when he made that comment. If this comment was directed at C.D. it would be a disparaging and sexist, if not sexual, comment. It may have enhanced the sexual nature of the hug. However, I am unable to conclude that the comment was directed at C.D. and not the dog. According to her evidence, she was not looking at his face and she was avoiding his eyes at that point. She was looking down to see if she had her wallet and/or purse and the dog, and she left immediately.

Given the direct proximity of the dog the comment may have been directed at the dog. [ 46 ] No one is disputing that Dr. Etherington's actions in hugging C.D. were unprofessional and inappropriate. It is clear that Dr. Etherington touched C.D., she did not consent to being touched, and that she felt her sexual integrity was violated. The question I must answer is has the Crown proven beyond a reasonable doubt that Dr. Etherington touched C.D. in a sexual manner. To answer this question I have considered all the circumstances objectively. I find that I am unable to conclude that Dr.

Etherington touched C.D. in a sexual manner in all the circumstances. I find that the hug occurred after the parties wished each other Happy New Year. Given the findings above regarding the facts in this matter, particularly the comments and contact relating to both parties, the brevity of the contact and my assessment of the reliability and credibility of C.D., I am unable to conclude that the Crown has proven the sexual nature of the touching; therefore I acquit Dr. Etherington of sexual assault. However, I conclude that he did intentionally touch her without her consent.

The evidence supports the elements of an assault. [ 47 ] The next question is should I apply the defence principle of de minimis non curat lex ? Or, as Faulkner J. stated more appropriately in the R. v. Elek decision cited earlier, is Dr. Etherington's conduct sufficiently serious that it should be properly stigmatized as criminal? What occurred here was a "Happy New Year" hug. Little to no force was used. It occurred in a professional setting but the parties were not strangers to each other. The contact was brief.

I acknowledge, in accordance with the comments in Jobidon at paragraph 65, that the courts are engaged in a balancing function, dealing with real situations in which complicated actions and motivations interact. In view of my findings, I conclude that Dr. Etherington's conduct was unacceptable and wrong but did not constitute criminal misconduct. I acquit him of assault. January 26, 2013: Has the Crown proven beyond a reasonable doubt that Dr. Etherington touched T.R. in a sexual manner? [ 48 ] The facts are not in dispute concerning the events of the 26th of January 2013.

T.R., a 52-year-old woman attended the animal hospital twice on that day. The first time, she testified that she rushed to attend the office before noon because the clinic closed at noon. On the first occasion, Dr. Etherington examined her dog and took x-rays. They examined the x-rays together. There were two other staff members in the back area when they examined the x-rays. T.R. noted that "some people are more close talkers" and Dr. Etherington stood close to her in her personal space.

While I heard more details about the first attendance at the clinic, those details are no longer relied upon by the Crown and will not be referenced here. [ 49 ] As a result of the first examination they agreed to leave the dog at the animal hospital for the continuation of IV fluids and observation. Dr. Etherington suggested that the dog remain overnight. T.R. declined because no staff remained in the clinic overnight. She preferred to pick up the dog later that afternoon. Dr. Etherington told T.R. that he had to go to Richmond and that he would call her around 5:00 p.m.

They agreed that T.R. would return later that afternoon to pick up the dog. [ 50 ] At approximately 5:30 p.m. Dr. Etherington notified T.R. that her dog was ready to be picked up. T.R. returned to the clinic right away. While she had expected that the dog would be in the front area of the clinic, the dog was still in the cage in the back area of the clinic. Dr. Etherington explained why he wanted the IV to remain attached to the dog. As he placed the dog on the examination table, he talked to her. She was uncertain how the conversation started.

She did not remember the exact order of things discussed and whether they started out discussing what she did for a living. She later testified that she believed the conversation started when he asked her opinion about his staff. From her evidence, it appeared to me that they discussed the quality and age of his staff for some time. At some point, Dr. Etherington told T.R. that his staff was not like her and "you just pick up something right away." She testified that he asked her what she was up to that night, or something like that.

She told him that she was going to watch a movie with her husband and baby the dog. He responded, "Oh, that sounds good." She asked him back, "What are you doing?" He replied, "Probably the same. I don't have anybody." She later testified that he said something to the effect that he would be doing the same thing. He told her something to the effect that, "It's been a few years," and, "It's hard to find people to meet and he had been alone for awhile." He continued to converse with her. He asked her, "What do you do, again?" She explained again what she did.

I infer that she referred to the city of Richmond in her response, because his next response was, "Oh, that's nice. That's where I was, going to Richmond for

counselling. Yeah, I'm kinda messed up, I'm kinda tired. That's why I've got the place up for sale. I wanted to do surgeries." T.R. responded with questions about the dog and Dr. Etherington provided medications.

T.R. testified that they continued "chatting." The implication from her evidence is that it was possible that they started talking about her profession, particularly given the reference to him asking her about her profession "again." [ 51 ] She then asked him, "How much do I owe you?" She testified that, at this point, she felt uneasy as there was no one around and "it just felt weird." They were standing at the examination table kitty-corner from each other. Dr. Etherington explained the medical costs in detail and itemized things.

She testified that, at that point, it was the end of the day, she was not comfortable, and she wanted to leave. Dr. Etherington brought the conversation back to her dog a few times. [ 52 ] She then said, "Ready to go then?" Dr. Etherington replied, "Yeah, okay." She testified that, ". . . he leaned . . . he came forward and I thought 'he's going to hug me'.

I kinda leaned forward and went like this." (The witness demonstrated that she curled her upper body inwards to put distance between them.) "Then he hugged me and then he lifted up my chin and gave me a kiss." [ 53 ] T.R. later clarified the movements and areas touched during the hug and kiss. Dr. Etherington moved approximately two feet towards her when he hugged her. He placed his hands around her shoulders when he hugged her. His arms and forearms made contact with her body and his hands made contact with her back.

She described her height as five feet four inches tall and his height as six feet two inches tall or six feet three inches tall. She described it as "a loose hug" and "not a really tight hug" with "very slight contact between our upper bodies." His hands did not "wander" and there was no "full body press." She characterized her curling forward as "turtling" where she put her arms crosswise around her chest while lowering her head and chin downwards. After the hug, her evidence was that he lifted up her chin and gave her "a peck" meaning a brief, light touch on her left cheek with his lips.

He did not engage his tongue. She pulled away. After that, he did not touch her again. [ 54 ] After the peck on the cheek, Dr. Etherington said, "Okay, we'll see you then." She replied, "Yeah, okay," and got the dog off the table. She started walking out the door. Dr. Etherington followed her to the door. By this time, T.R. was really uncomfortable and feeling scared. Dr. Etherington gave her some dog food appropriate for her dog's medical condition. T.R. went outside to her vehicle and placed the dog in the back cargo area. She then opened the driver's door and got into the driver's seat.

While at the vehicle, Dr. Etherington told her, "Oh, oh, sorry, sorry if I misread anything back there." T.R. replied, "Yeah, you really did." Dr. Etherington stated, "I'm going through a lot of stuff. I haven't had a relationship in 20 years." T.R. then testified with the words, "You know, that sort of thing." I am uncertain if she said that as part of her evidence characterizing what Dr. Etherington was saying, or if Dr. Etherington said those words. He said, "That's why I'm actually going to counselling, because I misread cues." T.R. then told Dr.

Etherington, "Okay, well, whatever." She later testified that he said, "Oh, I'm sorry, we may have misunderstood, I misunderstood some cues but that's my problem. That's why I was in Richmond, to see my counsellor because I don't always get the right cues." She testified that he said again that he was really tired, lonely and "it's hard to find good ones, a good person to be with." He was apologizing.

"I misunderstood your cues, I misunderstood some cues." His demeanour was "off." She described him as "mumbling about the whole thing" and that "he seemed to ramble." He would change topics and seemed all over the map. He was about six feet away from her. [ 55 ] She had the vehicle's door and window open because she was afraid that if she closed it he would pull her out of the vehicle through the window. I am uncertain why she believed that an open door would be a barrier to any such manoeuvre. She was not exactly sure what he was going to do.

She then testified, "I mean, I didn't think he was going to do that, but I was not fighting for whatever, so I closed the door and left." [ 56 ] The next day they communicated by e-mail and text about the invoice. During that communication, T.R. conveyed her discomfort with his conduct. Dr. Etherington texted back that he was sorry and for her not to worry about the bill.

In her evidence T.R. said, "He texted me, 'I’m going through a lot right now, going through some stuff, 20 years without somebody, good ones taken'," and then he gave her advice regarding the removal of the IV. [ 57 ] It is obvious and is not disputed that T.R. gave no consent to being hugged nor kissed. The issue is whether the touching occurred in a sexual manner. The focus, of course, is on the hug and "peck on the cheek." The Crown appropriately argues that the hug alone in these circumstances constituted an assault. Ms. Dickie argues that the kiss imbues a sexual aspect to both the hug and the kiss.

They cannot be separated. She argues that his later comments about counselling, being lonely and misreading cues indicate that he knew he had overstepped. Ms. Dickie says that these comments establish that he was touching T.R. for a sexual purpose. She argued that there was no difference between romantic and sexual intentions. [ 58 ] Human experience tells me that hugging can be sexual or non-sexual. The hug that was described here appears to have been a very awkward one. Human experience also tells me that certain types of kisses can be sexual or non-sexual.

A peck on the cheek falls on the most formal end of the spectrum. [ 59 ] Do Dr. Etherington's comments about loneliness and misunderstanding cues establish a sexual motive? While his comments can be interpreted in that manner, they can also be an expression of loneliness and social awkwardness so serious that he is receiving counselling for it. His actions were highly inappropriate and unprofessional but I am unable to conclude that they were for a sexual purpose. Therefore, I acquit him of sexual assault. [ 60 ] I must then consider whether his actions constituted an assault on T.R. I conclude that they did.

Whether or not Dr. Etherington was undergoing any social or emotional issues, his intentional conduct clearly violated the physical integrity of T.R. without her consent. This occurred directly after a purported counselling session about his social and emotional issues. If there was one time that he knew his conduct would be inappropriate, it was that late afternoon. On that basis, the Crown has established beyond a reasonable doubt that Dr. Etherington committed an assault on T.R. I decline to apply the de minimis principle to this conduct.

It was sufficiently serious in all the circumstances to require criminal stigmatization. Conclusion [ 61 ] Count 1: Indecent Act (exposure in a public place) - Dr. Etherington is acquitted.

[ 62 ] Count 2: Sexual Assault of C.D. - Dr. Etherington is acquitted. On the lesser included offence of assault, Dr. Etherington is acquitted. [ 63 ] Count 3: Sexual Assault of T.R. - Dr. Etherington is acquitted. On the lesser included offence of assault, Dr. Etherington is found guilty. (REASONS FOR JUDGMENT CONCLUDED)