R. v. M.(S.), 2013 ONCJ 415

WARNING The court hearing this matter directs that the following notice should be attached to the file: This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and

section 129 of the Act. These provisions read as follows: 110. Identity of offender not to be published. —

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act . . . . 111. Identity of victim or witness not to be published.—

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. . . . 129. No subsequent disclosure.— No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act , which deals with the consequences of failure to comply with these provisions, states as follows: 138. Offences.—

(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or

section 129 (no subsequent disclosure) . . . (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. DATE: 2013-07-25 Citation: R. v. M.(S.) , 2013 ONCJ 415 ONTARIO COURT OF JUSTICE sitting under the provisions of the Youth Criminal Justice Act , S.C. 2002, c. 1 BETWEEN: HER MAJESTY THE QUEEN — AND — S. M. a young person Before Justice Penny J. Jones Judgment Released on July 25, 2013. Ms. Satinder Besrai .................................................................................. for the Crown Ms. Laurie Galway............................................................ counsel for the accused S. M. Jones, P. J. J.: INTRODUCTION

[ 1 ] S. M. is charged under the Youth Criminal Justice Act (Act) with one count of public mischief. The information, as amended on consent, reads as follows: S. S.

M., a young person within the meaning of the Youth Criminal Justice Act , on or about the 27 th day of November in the year 2008, in the City of Toronto, in the Toronto Region, did commit public mischief in that with intent to mislead, she caused a police constable Li for the City of Toronto to enter upon an investigation by making a false statement to D/C Li that accused Adolfo Pignataro of having committed the offence of sexual exploitation and sexual assault contrary to the Criminal Code . [ 2 ] S.M. plead not guilty to the charge.

THE ISSUE [ 3 ] The issue I must decide is whether the Crown has proven beyond a reasonable doubt that M.S ., with intent to mislead, caused a police officer to enter upon an investigation by making a false statement accusing Rudy Pignataro of committing sexual assault and sexual exploitation. THE FACTS [ 4 ] In 2008 S.M. was a sixteen year old co-op student placed at G. & A. Salon at the Galleria Mall.

This hair salon is a family run business and it was here that she met Adolfo (Rudy) Pignataro, the son of one of the owners, and the individual she said had sexually assaulted her. [ 5 ] At the time she was placed at the Salon there was another co-op student named S.G. also working there. They began their internship in September of 2008. [ 6 ] It is uncontested that S.M. and S.G. were “fired” from their placement by Rudy Pignataro on or about November 20, 2008. I am satisfied that the two young women were fired because they were not taking the job seriously and not meeting expectations.

Although S.M. originally testified that she was fired because she refused to work late and to stay overnight at the job, she also testified that three days later she came back to the placement with her teacher to ask for her job back. [ 7 ] Both S.G. and Rudy Pignataro in their testimony agreed that the termination related to job performance.

As well, I note that in cross-examination S.M. stated, “I’ll help around more, I won’t be lazy, I won’t give him attitude and then he’s like okay, there’s no more sitting down, you’ll have to listen to what I say and I got hired again.” (Transcript, December 13, 2012, p. 27 line 27-30). [ 8 ] On November 27, 2008 S.M. went to school instead of to her placement. She told her teacher that the reason she did not want to return to the salon was that she was feeling “uncomfortable” because of certain actions by the owners towards her.

The teacher and then the Vice Principal made further inquiries which led to the involvement of the police. [ 9 ] S.M. made a video statement that day which resulted in Rudy Pignataro being arrested and charged with two counts of sexual exploitation (one count relating to each of his co-op students) and one count of sexual assault naming only S.M. [ 10 ] In her police video statement, S.M. made the following allegations: 1. That Rudy Pignataro and his father told her to give them massages and if she did not she would be fired.

She complied. (No details as to the nature of the “massages” were provided and no details were sought by the interviewer.) 2. That approximately one month into the placement, Rudy Pignataro made a new “policy” that she must kiss and hug him, both when she reported for work and when she left for home. She stated that she objected to this but, when Rudy became angry, she complied and would kiss him on the cheek.

3. That she was fired on or about November 20, 2008 because she refused to stay overnight and help him at the salon. 4. That on November 25, 2008 she asked for her job back. He requested a hug and she complied believing she had no choice. While being hugged, Rudy slid his hand down her back and touched her “bum” and she felt uncomfortable. 5. On November 26, 2008 she was in the back hall helping with the towels and he asked for a hug and she complied. Once again he slid his hands down her back and touched her “bum” and she felt uncomfortable. 6.

Later that same day, while she and S.G. were styling Rudy Pignataro’s hair, he told both young girls that they would have to kiss one another as this was a “new policy.” S.G. and S.M. laughed but she knew Rudy was serious because he got mad and she knew he was mad because “he gave me looks, like faces.” [ 11 ] No further details were provided in this statement. [ 12 ] A very important detail was added to the arrest synopsis which was not contained in the video statement given by S.M. to the police on November 27, 2008. The arrest synopsis includes the statement that he (Mr.

Pignataro) “ slid his hands down and grabbed both her buttocks with both his hands.” Although S.M. denies saying any such thing to the police and none of the officers called could recall S.M. making such a comment or could identify the origin of this information, this statement proved important in the determination of the charges against Rudy Pignataro. [ 13 ] After Rudy Pignataro was released on bail, it came to his attention that the mall maintained a video surveillance camera in the back hallway. He viewed the security footage for November 26, 2008 and it clearly showed the hug between S.M. and Mr.

Pignataro. [ 14 ] In the video that was played at court, it showed S.M. and Mr. Pignataro in the back hallway putting dirty towels in the dirty towel bag. At one point, S.M. puts out her arms and she and Mr. Pignataro hug. The hug is not protracted but could be described as a close hug. At the end of the hug, Mr. Pignataro’s hands, which are joined do slide down to S.M.’s waist but do not “grab both her buttocks with both hands” as suggested in the synopsis provided by the police. [ 15 ] Mr.

Pignataro, after reviewing the video, and believing that the nature of the allegation was that he “grabbed S.M.’s buttock with both hands”, immediately brought the video to his counsel’s attention. [ 16 ] His counsel in turn brought the video to both the attention of the police and crown. [ 17 ] After viewing the video, S.M. was re-interviewed to determine whether there had been a further period of contact.

This interview was captured on audio tape and did not result in any further information. [ 18 ] As a result of the clear discrepancy between the synopsis (no one apparently bothered to review the young person’s video statement), and the security video which showed what appeared to be a consensual hug with no sexual content, the charges against Rudy Pignataro were withdrawn on March 9, 2009, at the request of the Crown. [ 19 ] After the charges were withdrawn Mr. Pignataro sought to have his picture and fingerprints removed from the police data base.

He testified that he had received offers to work in the United States in hair shows or to style the hair of celebrities and he was concerned about being stopped at the border given the existence of these charges which were still on the system. [ 20 ] Mr. Pignataro’s lawyer testified that he wrote to the Toronto police and the RCMP to request their destruction on many occasions but without success. He noted that in his experience, given the nature of the charges,(sexual assault and sexual exploitation), the authorities were often reluctant to destroy the prints without some evidence to the contrary.

When questioned about the kinds of evidence that would lead to a destruction of the picture and prints, he mentioned, for example, a judicial decision after a trial exonerating the accused, or some evidence that would establish that the charges shouldn’t have been laid and the complainants were not telling the truth. (In other words, he required evidence that would show that the accused was innocent). [ 21 ] No real progress was made on this front until S.G. arrived at the G. & A. Salon seeking employment in early 2011.

[ 22 ] Mr. Pignataro testified that he was surprised at this turn of events. His lawyer described his client as “taken aback by her application.” (Transcript October 1, 2012, page 45 line 19.) Mr. Pignataro told S.G. that all applications for employment must now be cleared with his lawyer. [ 23 ] Mr. Pignataro’s counsel testified that he told Mr.

Pignataro it was up to him to decide whether she should be hired, but, given his understanding that S.G. was also involved in the 2008 charges as she was named as one of the complainants on the information, he told his client that since she was “the person who helped get you arrested, this might be dangerous.” (Transcript October 1, 2012 p.47 line 31.) He also told his client that S.G. might be helpful in obtaining the information necessary to have his prints destroyed. [ 24 ] Soon after this conversation, a meeting between S.G., Mr.

Pignataro, and his lawyer took place and at the meeting the job was discussed and reference was made to traveling into the States. S.G. testified that she was very excited about the prospect of working with Mr. Pignataro and traveling with him as his assistant. [ 25 ] At the meeting, Mr. Pignataro and his lawyer explained to S.G. about how the charges were withdrawn, about the security video and how his client and his family had suffered as a result of the false allegations. They also told S.G. about Mr.

Pignataro’s wish to have his prints destroyed in order to facilitate his travel to the States for employment purposes. [ 26 ] Mr. Pignataro’s lawyer told S.G. that he would not recommend an employee to his client unless the “bad feelings” were removed which arose because of the false allegations. The lawyer told S.G. how the “bad feelings” could be removed. He said that if the truth were known and if S.G. were helpful in having his client’s prints destroyed, he would not stand in the way of Mr.

Pignataro hiring her. [ 27 ] S.G. was told that she required the following information to secure a job at the salon: a reference from her school, and a reference from an employer. I am satisfied that S.G. was told that an apology letter from S.M. should be obtained if she wished to be considered for the job. S.G. was told that the letter should state that S.M. had lied about the charges and was sorry for the inconvenience caused to Mr.

Pignataro and his family. [ 28 ] I am satisfied that S.G., a 19 year old, unsophisticated young woman believed naively that if she obtained this information she would be guaranteed the job. [ 29 ] S.G. contacted S.M. on Facebook and indicated that she wished to talk to S.M. about the internship and was asking for a favour. According to both S.G. and S.M. the two were not close friends and in fact had only spoken to each other once since the placement terminated.

S.G. testified that she met S.M. by chance at the Dufferin Mall shortly after Rudy was charged and S.M. told S.G. that she had never intended it to go as far as “him being arrested and like I guess bits and pieces of it was a lie”……. (Transcript, S.M. dated February 21, 2012, page 16 line 7-8). [ 30 ] S.G. testified that she told S.M. about her opportunity to work with Rudy Pignataro and his need to have his fingerprints destroyed so that she could travel with him on business to the States. She asked S.M. to provide a letter so that she could secure employment. S.M. testified that she felt badly about Mr.

Pignataro being arrested and agreed to provide the letter. Both S.G. and S.M. agreed that S.M. was not able and/or prepared to write the letter and S.G. offered to write it for her because, according to S.G., S.M. asked her to, “Um, she had asked me to because she said that she wasn’t really capable of writing it and her—I’m going to say she’s not illiterate but she wasn’t like –I can’t explain the word. Um, she just basically had asked me if I could write it.

She read it and then she said okay or she had asked me can you explain this and whatever so I had explained it to her and then she said fine and then she signed it.” (Transcript, S.G. February 21, 2012 p.22 line 4-10) [ 31 ] The letter was typed by S.G. and contained the information discussed at Mr. Pignataro’s lawyer’s office. The letter which was filed as exhibit 6 at the trial reads as follows: Thursday, February 17, 2011 To Whom It May Concern,

My name is S.M. I am writing this letter to you to say that this was all a joke. I am sorry for the inconvenience that I caused on Rudy Pignataro and his family. I did not know that all of this was going to happen. I understand what I have done was wrong and selfish of me to lie about him sexual assaulting me. I am truly sorry for my actions and inconvenience that I have caused. Sincerely yours, S. M. [ 32 ] S.G. delivered this letter to Mr. Pignataro. [ 33 ] Counsel, on his client’s instructions, took this letter to the police with the result that S.M. was charged with public mischief.

At this point S.G. was told there was a further requirement she must meet before she could be considered for the job. She must attend and be interviewed by the police in relation to this letter. [ 34 ] In her statement to the police S.G. indicated that S.M. had written the letter, which was clearly not the case. [ 35 ] This letter was also sent to the police and RCMP with the result that Mr. Pignataro’s picture and fingerprints were removed from the system. [ 36 ] S.G. complied with all the requirements stipulated by Mr. Pignataro to get the job, but no job ever materialized. Mr.

Pignataro indicated at trial that he was still considering hiring S.G. but there were no current job opening. S.G., at the time of trial, had found full time work at another salon because she “felt like it wasn’t sincere” i.e. Mr. Pignataro’s offer of future employment. (Transcript S.G. February 21, 2012 p. 26 line 15). [ 37 ] At trial, S.M. denied lying to the police on November 27, 2008. She said that Mr. Pignataro had asked her for a hug in the back hall and she had complied because she was “shy, not rude”.

She testified that she never said that he grabbed her buttocks with both hands as suggested in the synopsis and she had no idea how that allegation arose. She said that what she told the police was true, i.e. on November 26, 2008, in the back hall of the salon, Mr. Pignataro asked her for a hug; she complied, and he hugged her and he slid his hands down her back and touched her bum and she felt uncomfortable. She also said that Mr. Pignataro told her and S.G. that they must kiss and this made her feel uncomfortable.

In this regard, I note that S.G. testified that this incident had occurred and she initially felt that he was kidding. S.G. felt that this comment was inappropriate, she testified about this incident as follows: Yeah, okay. I don’t know where to begin. It basically we’re co-op students and we do as we were told. There was an incident where me and S.

M. were I think blow drying Rudy’s hair and as a joke he has said, “I want you guys to kiss” and I don’t know if he was being serious or if he was joking around because I didn’t know him too, too well and then we like looked at each other we’re like that’s definitely not happening and then I believe it was the end of the day and then after we blow dried his hair we grabbed our stuff and left. Ah, I also believe it was the next day where she didn’t show up… (Transcript, S.G. February 21, 2012 p. 6 line 9-18). Q. And what was your—what were your thoughts when he made that comment? What did you think? A.

I thought that was unnecessary and plus we were both underage at the time. Um, I was hoping he was joking. Um, other than that I just-I didn’t even bother trying to acknowledge it because it was an inappropriate comment. Q. And did you tell him that? A. I just told him that it wasn’t going to happen at all. I didn’t tell him anything else. Q. What was Ms. M’s reaction, do you recall? A. Something like you’re crazy it’s not happening. Q. And how did she seem when she said that? A. Um, maybe a bit shocked as the comment was made. (Transcript S.G. February, 21, 2012 p. 7 line 16-28).

THE LAW [38] S.M. is charged as a young person under the Youth Criminal Justice Act with an offence under section 140(1)(

a) of theCriminal Code . Section 140(1)(

a) reads as follows: s. 140(1) Every one commits public mischief who, with intent to mislead causes a peace officer to enter on or continue an investigationby (

a) making a false statement that accuses some other person of having committed an offence, [39] In order for S.M. to be found guilty I must be satisfied beyond a reasonable doubt that she, with intent to mislead thepolice, caused a peace officer to enter on an investigation by making a false statement that accused another person of committing anoffence.

In other words, I must be satisfied that: (1) she intended to convey false information that accused Adolpho (Rudy) Pignataro of having committed an offence or offences; (2) she did so with the further or ulterior intent to mislead the police thereby causing the police to enter into an investigation, and (3) the information that Adolpho (Rudy) Pignataro had committed an offence or offences was false. [40] There is no issue that the police entered into an investigation based on the information S.M. provided to them. [41] As there are credibility issues in this case to be decided and S.M. testified, I have instructed myself in accordance with thedirection set out in R v.

W(D), (1991), (SCC), 63 C.C.C. (3d) 397 (S.C.C.). DISCUSSION [42] At trial S.M. testified that she gave truthful information to police about Mr. Pignataro’s conduct in the work place. In herstatement made November 27, 2008 she detailed a pattern of inappropriate physical contact to her and to a lesser extent to S.G. THE APOLOGY LETTER [43] The proof of the Crown’s case relies in large part on what purports to be an admission made by S.M. contained in a lettersigned by her in which she apparently admitted that she lied about the sexual assault and was sorry for any inconvenience her actionscaused Mr.

Pignataro and his family. “I understand it was very wrong and selfish of me to lie about him sexual (sic) assaulting me”. (Exhibit 6) [44] Traditionally this statement, which, as an out of court statement sought to be admitted for its truth, is hearsay and wouldbe excluded from the evidence but for the fact this statement may be characterized as an admission against interest and, as such, fallswithin a well recognized exception to the hearsay rule. If I accept this admission at face value, S.M. has effectively recanted herallegation of sexual assault and thereby implicated herself in a criminal offence.

Moreover, a statement by an accused to a person who isnot a person in authority is admissible as an admission against interest, quite apart from the principled approach to the hearsay analysis. R v. Terrico (2005) 2005 BCCA 361 , 199 C.C.C. (3d) 126 (B.C.C.A.) leave to appeal refused [2005] S.C.C.A. no. 413. Although admissible, the weight to be given to such evidence is a matter for the trier of fact. R v. Streu (1989) (SCC),48 C.C.C. (3d) 321 at p. 328 (S.C.C.) Finally, where an admission was obtained by reprehensible tactics, the jury (trier of fact) shouldbe instructed to (

i) be cautious about accepting it and (ii) attach little weight to it: R v. Hodgson (1998) (SCC), 127C.C.C. (3d) 449 (S.C.C.); R v. Wells (1998) (SCC), 127 C.C.C. (3d) 500 (S.C.C.)

[ 45 ] If I accord substantial weight to the “apology letter” as an expression of contrition for misleading the police, the aforementioned letter constitutes strong evidence of an original intent to mislead the police about the sexual assault.

On the other hand, to attribute little or no weight to the apology letter, would necessarily mean, on my review of the evidence, that there remains insufficient evidence of the mens rea of public mischief to satisfy the burden of proof on the standard required in a criminal case. [ 46 ] Recognizing the pivotal significance of the apology letter, I have given it careful consideration.

In all the circumstances I have determined that the apology letter is undergirded by such a degree of manipulation and pressure bordering on coercion that it lacks sufficient reliability to be seen as an expression of S.M.’s state of mind and is entitled to no weight for the following reasons: 1. S.G. was seeking employment and she was told that if certain prerequisites were met she could be considered for a job that would include extensive travel into the States as Mr. Pignataro’s assistant and would include attending at hair shows and styling celebrity hair.

She was dazzled with the glamorous job described by these two older men and wanted the job. 2. S.G. was convinced by Mr. Pignataro and his lawyer that Mr. Pignataro had been wrongly accused of sexually assaulting S.M. S.G. was told that a security video clearly showed that S.M. was lying because the video showed that Mr. Pignataro never “grabbed S.M.’s buttocks with both hands.” 3.

S.G. was told that if she obtained three things she could be considered for the job, namely a reference from school, a reference from an employer, and a letter from S.M. wherein “she came clean” and admitted that she was lying and apologized for the harm she caused to Mr. Pignataro and his family. She was told that this letter was necessary so that Mr. Pignataro could have his prints destroyed so that he could travel into the States. 4. She was told that this letter was required so that the “bad feelings” that stood between her and the job could be removed. 5. Mr.

Pignataro’s counsel effectively suggested what the letter should say in order to remove the “bad feeling.” 6. Believing there was a job and that she was virtually guaranteed the job if she could obtain the letter as well as the references, she contacted S.M. and asked for a “favour to get a job.” 7. S.G. contacted S.M. on a number of occasions. When S.M. was not able or willing to write the letter, she offered to write it for her. 8. S.G. wrote the letter and took the letter with her and had it signed by S.M.

She assured S.M. that she would get in no trouble with the police and the letter would only be used to secure employment for S.G. with Rudy Pignataro. 9. S.G. was not offered a job with Mr. Pignataro. I am satisfied that Rudy Pignataro never had an intention to offer employment to S.G. Either there never was a job or, given the history, she was never viewed as a person who would be offered employment. 10. The “apology letter” was written by S.G. based on information provided by Rudy Pignataro and his lawyer.

I note that the contents of the letter did not accord with the information S.G. had received from S.M. when she met her at the Dufferin Mall and S.M. told her that she never intended it to go as far as “him being arrested and like I guess bits and pieces of it was a lie.” S.G., in her haste to secure the job, made no effort to confirm S.M.’s agreement to the contents of the statement contained in the letter before placing the letter before her for signature. 11.

I am satisfied that S.G. was manipulated into obtaining the letter by false promises of employment and in turn she pressured S.M. to assist her in that quest by obtaining S.M.’s signature on the letter. [ 47 ] In all the circumstances I am satisfied the letter was obtained by the use of reprehensible tactics and cannot be accepted as a reliable expression of S.M.’s point of view. [ 48 ] Additionally, I accept the evidence of S.M. in relation to the letter and her evidence raises a reasonable doubt for the following reasons: 1.

I find that S.M. is a young woman who is somewhat naïve, trusting and unsophisticated in the way she relates to others. 2. Not only did she not initiate the preparation of the apology letter, she did not write it and probably gave it very little thought; it is doubtful that she ever thought that this statement that she signed under considerable social pressure would ever have found its way to the hands of the police. In fact, she was assured by S.G. that if she signed the letter she would not get into any trouble with the police and on that basis she signed the letter. 3.

It is my belief that she signed the letter filed in the trial, not because she agreed to the contents, but because she wished to support her friend in obtaining employment and felt that she could offer this assistance without placing herself in any jeopardy. [ 49 ] For the above reasons I am not prepared to give any weight to the apology letter. As a result I am not satisfied that the Crown has proven the mens rea of the offence of public mischief beyond a reasonable doubt.

THE ALLEGED FALSE STATEMENT [ 50 ] Additionally, I am not satisfied that the actus reus of the offence, namely that S.M. made a false statement to the police, has been made out beyond a reasonable doubt.

I have reviewed the video statement S.M. made to the police and have compared it to the security video of the “hug” and have concluded that her description to the police in her November 27, 2008 statement and the security video do not substantially differ. (I am not satisfied that she alleged that Rudy Pignataro “grabbed her buttocks with both hands”, a statement attributed to S.M. contained in the police synopsis. If this characterization of the “hug” had been contained in the police video statement made by S.M.

I would have concluded, on the basis of the security video, that she had provided a false statement to the police.) I am also satisfied that her description of the “kiss”, which accorded with the evidence given by S. G. did not constitute a “false statement” within the meaning of Section 140 (1) (

a) of the Criminal Code . [ 51 ] As well, even if I accept the evidence that S.M. told S.G. shortly after the incident in a conversation they had at the Dufferin Mall that “bits and pieces of it was a lie” (in reference to her statement to the police), this purported admission is too vague and ambiguous to form a basis upon which to conclude that her statement to the police in respect to the allegations was untrue.

CONCLUSION [ 52 ] For the above noted reasons, I am not satisfied that the Crown has proven beyond a reasonable doubt either the requisite mens rea or the actus rea of the offence of public mischief in this case. [ 53 ] Accordingly, the charge against S.M. is dismissed. Released on July 25, 2013. ____________________ Justice Penny J. Jones