R. v. M.S., 2017 ONCJ 477

WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subpara-graph (

i) if it occurred on or after that day; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and (

b) on application made by the complainant, the prosecutor or any such witness, make the order. . . . 486.6 OFFENCE —

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. ONTARIO COURT OF JUSTICE CITATION: R. v. M.S. , 2017 ONCJ 477 DATE: June 13, 2017 COURT FILE No.: Central East Region (Oshawa) BETWEEN: HER MAJESTY THE QUEEN — AND — M.S. Before Justice F. Javed Heard on May 15, 30, 2017 Reasons for Judgment released on June 13, 2017

D. Bronowicki ................................................................. counsel for the Crown D. Barrison ................................................................ counsel for the defendant F. Javed J.: I. Introduction [ 1 ] The defendant M.S. is charged with the offence of sexual assault, contrary to the Criminal Code . [ 2 ] The allegations involve sexual activity in a storage room of a restaurant. Mr. M.S. worked in the restaurant and the complainant was seeking employment. [ 3 ] The trial is a classic “he said/she said” dispute. The Crown called the complainant, Ms. A.B.

She described three quick instances of sexual activity in some detail. Mr. M.S. testified through a Tamil interpreter. He admitted that Ms. B. was in the restaurant seeking employment but denied accosting her in the storage room and sexually assaulting her. [ 4 ] The issues in this case turn on an assessment of credibility. This is not an easy exercise by any means. As such, I reserved judgment to reflect on the submissions of counsel as well as to thoroughly review the evidence. II. The Factual Background [ 5 ] I propose to set out the evidence of the parties before I turn to my assessment of credibility.

There is no dispute about an encounter in the stock room but the events leading up to it and what occurred in the room is contested. For greater context, I will start with the complainant’s account. (

a) Evidence of A.B. [ 6 ] Ms. A.B. is 42 years old and has lived in Oshawa for the last 2 years. She has 20 years of experience in the restaurant industry. [ 7 ] The restaurant in question is B[…], also in Oshawa. It is a family style deli near her home. She stated that she was quite familiar with the restaurant as she had attended in the past. Despite this, she had never used the bathroom in the restaurant, which is located in the basement. The bathroom would become a focal point later on. (

i) Background [ 8 ] Ms. A.B. testified that she frequented B[…] often prior to the allegations. She would see Mr. M.S. who was employed as a cook and had “several” conversations with him about employment and other topics. He had not responded one way or the other. Mr. M.S. denies this. She stated that she was “100%” sure that he had worked there for two years. He was employed both in the “front and “back of the house” which means he would both greet patrons and work in the back kitchen.

[ 9 ] In cross-examination, it was suggested to her that he was only employed since April 2016. She disagreed stating that “she thought she knew” he worked there for 2 years which was based on how long she lived in the neighborhood, which was also 2 years. (ii) Events prior to the encounter [ 10 ] On July 26, 2016, Ms. A.B. was preparing to travel to the United Kingdom (UK) for two weeks. At 11:30 am, she was walking back from a group meeting on her way home to pack. She stated that Mr. M.S. flagged her down and waived her towards the restaurant. She decided to say hi.

He said “[I] think I have a job for you”. [ 11 ] Mr. M.S. was working in the front of house as the owner of the restaurant was on vacation. [ 12 ] She had a conversation with him about employment, which she said lasted for “a while, maybe 30 minutes”. He explained that he needed help with cleaning and organizing the stock room and basement. This conversation took place in the main dining room. Mr. M.S. denies this.

One other person was already present while another person entered during their conversation. [ 13 ] She described the restaurant as “very small” with a cash counter and bar upon entry and four tables to the left and four to the right. Exhibit 2 is a diagram made by Ms. A.B., which depicts the open concept of the restaurant. She explained that one would be able to see into the kitchen upon entry but had to walk down the hall to access the stairway to the basement. [ 14 ] The basement contained a stock room, which was she said was 5x5 feet. The bathroom was located near the entrance of the stock room.

She stated that there was approximately 1.5 feet from the bottom of the stairs to the entrance of the door to the stock room. [ 15 ] She testified that the door of the stock room was “very old”, painted blue (100%) and “rickety”, with no handle. She added that the door had slats and one could see through them. She explained: “the door is one length of wood after another with two lengths of wood holding it together, very rudimentary”. It opened outward and couldn’t shut properly. This permitted the light to enter inside the stock room. [ 16 ] She added that the two continued to talk upstairs. Mr.

M.S. stated that he also wanted help with the menu. As such, the two sat down on a table to discuss the menu. He then switched to the stock room, stating that it was a “mess” and needed to be cleaned up. They discussed employment. She explained that she wouldn’t be able to start for two weeks and gave him her phone number. He was insistent on showing her the stock room to which she agreed. Mr. M.S. denies all these details with the exception of a brief conversation in which she asked for employment and he told there wasn’t any. [ 17 ] According to her, Mr. M.S. proceeded to go downstairs first. She followed.

There was no conversation en route. (iii) The stock room [ 18 ] She was first to enter the stock room. The distance from the front of the room to the back was approximately 4.5 feet. She was about 2 feet from the entrance. She had made her way to the back of the stock room, approximately 1 foot away from the back shelves and was examining the room. There was shelving directly in front of her and to her left. The wall to the right of her had some shelving and a mop bucket. [ 19 ] She stated that the light switch was inside the room to one’s left if facing the door but to one’s immediate right upon entry.

She disagreed that the light switch was on the outside of the room. In cross-examination she was confident about this stating, she “100% sure”. [ 20 ] Ms. A.B. was shown a series of photographs taken by Mr. Barrison in May 2017 showing the basement including the stock room. Ms. Bronowicki did not insist on authenticating the photographs, which arguably would have made Mr. Barrison a witness in the proceedings. Instead, they were tendered, without objection through Mr. M.S. who was able to identify them. There’s no evidence that

they were taken at separate times/dates. [ 21 ] Ms. A.B. did not immediately recognize them but eventually, did recognize a third photograph, exhibit 4, which she said “appeared to look right”. She stated that it looked the like stock room “I was stuck in” but “it was missing the light switch” (inside the room). She added: “maybe I was more traumatized than I thought”. [ 22 ] Exhibit 5 is a photograph, which depicts a light switch outside the entrance to the stock room.

She maintained that her memory of the light switch was inside the room. [ 23 ] Exhibit 6 is a photograph of the stock room and depicts a grey metal door without slats. The room does not appear to be 5x5 but rather larger. It contains shelving and a freezer among other sundries strewn about. She stated that the door was not correct and must have been changed. (iv) Events inside the stock room [ 24 ] Ms. A.B. then explained how she was allegedly sexually assaulted. Mr. M.S. disputes all these details. She testified that after she entered the stock room, Mr.

M.S. followed and slammed the door and turned off the light. She added that she could still “see a little bit through the slats” (on the door). In cross-examination, she maintained that she was “100% sure” that the door had been painted blue and had slats in it. [ 25 ] At this point, Mr. M.S. grabbed her by the right arm and spun her around. She was confident that it was her right arm because she was wearing bracelets on her left arm, which weren’t jingling. He proceeded to put his hand up her shirt under her bra touching her breast.

At the same time, he took his other hand, which she assumed was his left hand and unzipped his pants, placing her hand on his bare penis through the zipper flap. She did not see him unzip his zipper but heard it. He then let go of her breast and put his hands down her pants, touching her vagina. She was not wearing any underwear. He did not insert his finger in her vagina but rather, laid it flat. [ 26 ] During the entire ordeal, Mr. M.S. was silent. She stated: “no stop, what are you doing, I’m married”. She felt anxious but did not raise her voice.

The volume of her protest was not loud enough to get the attention of the two patrons upstairs. She testified thinking at the time, “this is what rape must feel like”. [ 27 ] After the protest, she heard footsteps of somebody upstairs coming downstairs into the basement and swivel around the corner to turn the light on in the bathroom. She got scared. Mr. M.S. said: “see [it’s] really messy down here” then put his pointer finger to his mouth, which she understood meant for her to stay quiet. (

v) Events after the alleged incident [ 28 ] Mr. M.S. then went racing upstairs. He told her to wait five minutes then come upstairs. She agreed. She couldn’t explain why she did this. After she came upstairs, she grabbed her purse, said “thanks, have a good day” and left. [ 29 ] At 1:00 pm, Mr. M.S. called her cell phone and asked “would you like to come back”. She stated: “no I don’t think so” and hung up. There was no evidence called to corroborate this call. She added that her driver was coming to pick her up at 1:00 pm for the airport. [ 30 ] She did not immediately report the incident to the police.

Instead, she caught her flight to the UK, which was later in the evening. However, upon arriving in the UK, she called the Durham Regional Police Service. She stated that she was provided information, which led her to wait until she got back to Canada to report the matter. As I will discuss below, I have concerns about the accuracy of this as it would defy logic and prudent police practice to not immediately take a statement over the telephone to memorialize a serious sexual assault allegation.

I find it surprising that a police officer would simply tell her to wait until she got back to provide any information, unless of course that’s not what happened. In any event, no evidence was called corroborating or denying this account which I must consider along with the rest of the evidence.

[ 31 ] Upon returning to Canada, she went to the police and provided a brief written statement followed by a more fulsome videotaped statement two days later. [ 32 ] I will turn to Mr. M.S.’s account which as stated above is materially different. (

b) Evidence of Mr. M.S. [ 33 ] Mr. M.S. is 50 years old. He was born in Sri Lanka and immigrated to Canada in 1985. He became a Canadian citizen in 1987. He has two children who are 12 and 13 years old. He does not have a criminal record. (

i) Background [ 34 ] He testified that he has been employed at B[…] since June 2016 and not two years. In April 2016, he was trained at the restaurant and ultimately in the same month, his wife purchased it. He acknowledged that the building was old and some parts were run down. One could hear footsteps from the basement. He added that he had not been at the restaurant prior to this. He is currently employed in both the front and back of the house. [ 35 ] He was cross-examined on his general practice when he was working at the restaurant.

He stated that when he was working back of the house or cooking, he would wear a collared shirt. He would fold his chef apron in half and roll it up, then securing it on him. On occasion he would not wear the apron at all as he was also working front of the house where he would meet with customers. (ii) Events prior to the encounter [ 36 ] On the date in question, he recalled working. His sister in law is also employed there but wasn’t working on this date. Ms. A.B. entered the restaurant and approached him at the bar. She inquired if there was any work.

He replied that this [the restaurant] is a small place and there is no work. He proceeded to the kitchen when two other people walked in and sat down. Ms. A.B. was still at the front counter but then sat down with one of the males’ at a table. One male ordered French fries so he proceeded to the kitchen then went downstairs in the basement to retrieve some French fries from the freezer. He added that there is no door to the basement. (iii) The stock room [ 37 ] He explained that the stock room is approximately 4 feet from the bottom of the stairs.

It is approximately 12 feet deep and has some shelving in the room. He confirmed the accuracy of Exhibits 4, 5 and 6 as being the same in form as on the date in question. He stated, “it has always been this way” since the time of his employment. In cross-examination, he acknowledged that when the door is closed, one could see some light in the hallway but there were no slats in the door. [ 38 ] He testified that given the old state of the restaurant, ventilation was poor so he routinely left the stock door open. On the date in question, it was also fully open.

He added that the door to the stock room is a soft metal door and older. It was grey in colour and did not have any slats. It had never been replaced. The photographs confirm this. (iv) Events in the stock room [ 39 ] While he was exiting the stock room with his French fries, he ran into Ms. A.B. who was exiting the bathroom. She looked into the stock room and said “I would do any kind of work” pointing to the mess in the storage room. He responded: “we don’t need anyone now”, as well as “this was a small place”.

[40] He emphatically denied any physical contact, let alone sexual contact with Ms. A.B.. He further denied having any otherconversation with Ms. A.B. in the basement. (

v) Events after the stock room [41] The brief exchange ended with him rushing upstairs with his French fries as the customer was waiting for him. As he did so,another male was in the area of the washroom. [42] Ms. A.B. eventually came upstairs and continued to speak to a male party but eventually left. She did not order any food or drink. [43] In addition to denying any sexual touching, he also denied telling her that he was Guyanese, as he would have no reason to do soas he is of Sri Lankan background. III. The Positions of the Parties [44] Mr. Barrison submits that Mr.

M.S.’s denials were credible and this alone should be sufficient to raise a reasonable doubt.Moreover, he argues that there were significant problems with the credibility of Ms. A.B. as her account was internally inconsistent inseveral ways, physically improbable and overall unreliable. [45] Ms. Bronowicki counters that Mr. M.S.’s denial should be rejected as it defied common sense, logic and experience. Instead, theevidence of Ms. A.B. was both credible and reliable. Any inconsistencies were on trivial issues and didn’t impact the substantiveevidence of sexual touching, which she says was left unimpeached. IV.

The Applicable Principles [46] The offence of sexual assault requires the prosecution to prove the following elements of the offence: (

a) touching, (

b) for asexual nature; and (

c) the absence of consent. The Crown must also prove an intention to touch and knowledge or recklessness or wilfulblindness towards the lack of consent: R. v. Ewanchuk, (SCC), [1999] 1 S.C.R. 330 (SCC). [47] Consent or lack of consent are not contested issues in this case. The sole issue is whether the touching took place. To this end, anassessment of credibility is the determinative factor. [48] It is trite that I can accept some, all or none of the evidence presented. In a case with two conflicting witnesses, the trial is not acredibility contest.

The issue is not who is more believable but whether the Crown has proven the charge beyond a reasonable doubt: R.v. Challice, (ON CA), [1979] O.J. No. 1301 (C.A.) In determining whether the Crown has met this heavy burden, Ihave applied the three-part test in D.W. v. the Queen (1991), (SCC), 63 C.C.C. (3d) 397 (SCC) [W.(D.)] [49] The proper approach to the burden of proof is “to consider all of the evidence together and not to assess individual items ofevidence in isolation.

It is essential that the credibility and reliability of the complainant’s evidence be tested in the light of all of theother evidence presented; particularly when the Crown’s case depends solely on the unsupported evidence of the complainant and wherethe principal issue is that witness’ credibility and reliability”: R. v. White (1947), (SCC), 89 CCC 148 SCC at page 151. [50] I am also guided by the dictum of the Court of Appeal in R. v. B.D., 2011 ONCA 51 , [2011] O.J.

No. 198, whichstated (at para. 114): “the principles underlying W.(D.) are not confined merely to cases where an accused testifies and his or herevidence conflicts with that of Crown witnesses. They have a broader sweep. Where, on a vital issue, there are credibility findings to bemade between conflicting evidence called by the defence or arising out of evidence favorable to the defence in the Crown's case, the trialjudge must relate the concept of reasonable doubt to those credibility findings.

The trial judge must do so in a way that makes it clear tothe jurors that it is not necessary for them to believe the defence evidence on that vital issue; rather, it is sufficient if – viewed in thecontext of all of the evidence – the conflicting evidence leaves them in a state of reasonable doubt as to the accused's guilt: Challice.”

[51] Even in cases where an accused testifies and isn’t impeached, there is another route to conviction, which Ms. Bronowickisubmits is also available in this case. This was explained by Justice Doherty in R. v. J.J.R.D. (2006), (ON CA), 215C.C.C. (3d) 252 (Ont. C.A.) [JJRD].

He wrote: An outright rejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth ofconflicting credible evidence is as much an explanation for the rejection of an accused's evidence as is a rejection based on a problemidentified with the way the accused testified or the substance of the accused's evidence. [52] In the final analysis, if after carefully reviewing the evidence, I am unable to decide between the accounts of the parties,mindful of the burden of proof, I must acquit: R. v. S. (J.H.), 2008 SCC 30. V.

Analysis [53] In assessing the evidence of the two witnesses, some factors that have a legitimate bearing on credibility include: (

a) the internalconsistency of the witness’s account of events, (

b) whether the evidence is corroborated or contradicted by other evidence, (

c) theconsistency of the account over time, (

d) the inherent plausibility of the witness’s account, (

e) the witness’s interest in the outcome, (f)the witness’s motive to lie or lack thereof, (

g) any difficulties in the ability to perceive, recall or communicate the evidence, (

h) thewitness’s poor character for untruthfulness, (

i) my overall impression or instinct, and to a lesser degree, (

j) the demeanour of the witnesswhile testifying. [54[ Ms. Bronowicki provided me with the case of R. v. Woolam, 2012 ONSC 2188 , [2012] O.J. No. 3867 (Ont. Sup. Ct.),as an example of the principles extrapolated in JJRD. With respect, I do not think that Woolam advances the Crown’s position in thiscase. Let me explain why. [55] Woolam was a

summary conviction appeal before Durno J. in which the trial judge convicted the accused, a doctor, of sexuallyassaulting his patient and employee, J.P. On appeal, Durno J. (at para. 49) observed that the conviction was premised on three reasons:(1) the trial judge found J.P.’s evidence very precise and detailed with no significant contradictions or inconsistencies and inherentlytruthful,

(2) J.P. had no motive to fabricate her allegations and (3) post-event evidence and in particular, conduct. [56] The post-event evidence was held by the trial judge to be “pivotal” and only consistent with something having occurred asdescribed by J.P. and completely inconsistent with the accused’s account. In sum, the trial judge concluded that the cumulative effect ofthe Crown’s evidence “overwhelmed” the defence evidence, which was free from any problematic demeanor, disabling inconsistenciesor important flaws. In other words, it was open to the trial judge to totally reject Mr.

Woolam’s evidence despite the absence of anyobvious flaws when stacked up against J.P.’s evidence. Durno J. held that this was a correct application of the JJRD principle. [57] The conviction in Woolam was anchored on three prongs and viewed as a whole, did not leave the trial judge with a reasonabledoubt about the accused’s guilt. For reasons that I will expand on below, I have concluded that on this record, there is only one prong,which supports the Crown’s position, namely, evidence that Ms. A.B. had no motive to lie.

Apart from this, I do not agree that Ms.A.B.’s evidence was so “precise and detailed” and therefore inherently truthful, thus overwhelming the defence evidence. In my view, itdoes not overwhelm the defence evidence, especially on vital issues. (

i) Findings on post-event demeanor [58] Post-event demeanour or emotional state evidence is admissible and may be used to support a complainant's evidence of a sexualassault: see Murphy and Butt v. The Queen [1977) (SCC), 2 S.C.R. 603 at 617; R. v. Boss, (1988), (ON CA), 46 C.C.C. (3d) 523 (Ont. C.A.), R. v. Arsenault, [1997] O.J. No. 3977 (C.A.) at para. 9; R. v. Clark, [1995] O.J. No. 4036(C.A.) at para. 7. That said, reliance on demeanour alone to resolve a credibility issue must be approached cautiously: R. v. J.A.A., 2011SCC 17, [2011] 1 S.C.R. 628 at para. 14; R. v.

Hemsworth, 2016 ONCA 85 at para. 45. [59] Ms. Bronowicki submits that Ms. A.B.’s evidence of calling the police from the UK then following up when returning toCanada is consistent with an assault taking place. I do not find this to be post-event demeanor or conduct that rises to the level of being“pivotal” like Woolam, which would only be consistent with something nefarious having occurred in the stock room. [60] The undisputed evidence is that after the alleged sexual assault, Ms. A.B. left the restaurant and traveled, as originally planned, tothe UK. She called the police the day after and reported the matter.

There is nothing inherently illogical about this, as this was not a true“delayed reporting”. The concern I have is one already expressed above, namely, her evidence that the police told her to, in effect, wait itout and report the matter when she returned to Canada. I have grave difficulties accepting this. It does not make sense that a policeofficer would encourage delaying a sexual assault especially because the investigation of a sexual assault becomes more complicated astime progresses. For example, it is common sense that one’s memory fades over time and doesn’t usually get better.

It would make senseto memorialize one’s account sooner rather than later. I find that this doesn’t make sense. [61] Having said that, I have considered Ms. A.B.’s conduct upon returning to Canada. She went to the police and spoke to Cst.

Weightman who did not take a formal statement or a videotaped statement. This too doesn’t make a lot of sense and no evidence wascalled to explain why she didn’t immediately attend at the Sexual Assault Unit of the police and be interviewed by the police. On herevidence, the police would have already known about the matter as she called them from the UK and ostensibly, arrangements wouldhave been made to speak to the specialized unit handling these types of cases.

That did not appear to happen. [62] Overall, the evidence of post-event demeanor in this case is not strong unlike that in Woolam, where the trial judge accepted thatthe victim immediately acted in a manner that was highly unusual according to her mother. While I have placed some reliance on thisfactor, it is neutral at best. (ii) Findings on evidence of motive [63] Evidence of motive is also a proper consideration in the fact-finding process but I am mindful that there is no onus on an accusedto prove that a complainant has a motive to lie: R. v. Jackson, [1995] O.J. No. 2471 (Ont.

C.A.). [64] In my view, there is no evidence that Ms. A.B. had a motive to fabricate her allegations against Mr. M.S.. Mr. Barrison does notseriously challenge this submission because according to his client, he didn’t know Ms. A.B. very well. He did not suggest that this was adiabolical event designed to seek retribution for a rebuffed employment request. There is no evidence of this. However, like demeanorevidence, this alone cannot carry the prosecution’s heavy burden of proof. [65] This leaves the evidence of Mr. M.S. stacked against that of Ms. A.B.. (iii) Findings on contested factual issues [66] Ms.

Bronowicki submits that Ms. A.B.’s account makes sense internally and any inconsistencies were on trivial issues. Incredibility conflicts, the law is clear that it is not appropriate to hold witnesses to a standard of perfection. Instead, the law instructscourts to focus on significant inconsistencies when focusing on the reliability of one’s account: R. v. M.G. (1994), (ON CA), 93 CCC (3d) 347 at 354-55 (Ont. C.A.) [67] Credibility is closely intertwined with reliability. In R. v.

H.C., 2009 ONCA 56, Watt J.A. explained, “any witness whoseevidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy forreliability: a credible witness may give unreliable evidence”. [68] When viewed as a whole, I have concerns about the reliability of Ms. A.B.’s account. This has left me with ample reasonabledoubt about her position that she was sexually assaulted. This is irrespective of Mr. M.S.’s denials, which I found to be credible.

Indeed,the Crown’s reliance on Woolam for the JJRD principle is a reflection that there weren’t any glaring issues with Mr. M.S.’s evidence.The JJRD analysis focuses on the strength of Ms. A.B.’s evidence, not the weaknesses in Mr. M.S.’s denial. [69] Before I turn to my findings of fact, it is important to make a thematic observation of Ms. A.B.’s evidence, which may havecontributed to my reliability concerns. [70] Ms. A.B.’s first encounter with the police was after she returned to Canada. This involved a brief statement, which was reducedto writing in Cst. Weightman’s notebook.

He did not testify, thus I do not know why she was not immediately videotaped about herallegations, which would have been the preferred course of action. The two prior statements led to testimony that was confusing,internally inconsistent and overall unreliable. It was not neutralized with adequate explanations. [71] A common theme which emerged in cross-examination is that when Ms. A.B. was confronted with an inconsistency with her trialevidence or an omission from her initial account, she deferred to her videotaped statement as being correct.

[ 72 ] This is problematic because at trial, she did not testify with unequivocation or put differently, she was equivocal about many things. On many occasions, she was confident in her account stating she was “100%” sure about details. It is only when she was confronted with a prior statement or omission, she became unsure and professed to have no memory of either speaking to the police or discussing a detail that one would expect to recall. This lack of certainty leaves me concerned – even about an area in which she was confident, namely the sexual assault in the stock room. [ 73 ] Against this backdrop, the following are my findings of fact. (

a) Background issues

(1) I accept the evidence of Mr. M.S. that he worked at the restaurant since April 2016. There is no basis to reject this. I have already explained above that Ms. A.B. insisted it was 2 years (and she was 100% sure of this) and added “she thought she knew” this based on how long she lived in the area. In my view, this is not a reliable source of recall and in any event conflicts with Mr. M.S., who was clear that his wife bought the restaurant in 2016;

(2) Ms. A.B. told the police she couldn’t recall if Mr. M.S. had a moustache. This, despite her position that she had seen him many times in the past. In re-examination, she added that she “couldn’t recall” if Mr. M.S. always had a moustache. I find her evidence on this issue to be unreliable as this is an important omission as a moustache is not a benign detail that can be easily missed or easily forgotten. If her recollection of the event is correct, the entire interaction lasted 30 minutes and she would have had ample opportunity to make a facial recognition and recall an important detail.

This was not a fleeting encounter and Mr. M.S. was not a stranger (according to her) where one might forget such a detail. In other words, this was not a mistaken identification, but rather (on her evidence) a mistaken recognition;

(3) Ms. A.B. testified that Mr. M.S. initiated the conversation with her prompting her to enter the restaurant whereas she told the police it was her who did so. When asked to clarify she said: “I don’t know which one is accurate”. I have a doubt as to whether Mr. M.S. initiated the initial contact;

(4) I accept the evidence of Mr. M.S. that he never told her he was of Guyanese background because he is in fact, Sri Lankan. I find his denial to be credible and making sense; (

b) Events leading to the stock room

(5) I accept the evidence of Mr. M.S. that on July 26, 2016, the door to the stock room was a grey metal door, not an old blue door with slats. His evidence was corroborated by objective evidence, namely Exhibit 6, which clearly shows a grey metal door and more importantly, does not show an old, rickety, blue door with open slats. I cannot place any confidence in Ms. A.B.’s recall of this significant detail, which again was one which she said she was 100% sure. Moreover, there is no evidence that the door was changed in the intervening period despite the photos being taken in 2017;

(6) Ms. A.B. agreed that she didn’t tell the police about the slats in the door, explaining “she didn’t go into detail” which alone may not be an important omission but becomes significant based on her position that she was able to see through the slats which was a reason the alleged assault stopped. She also agreed that she didn’t tell the police about being able to see through the slats which becomes an important omission;

(7) Similarly, I accept the evidence of Mr. M.S. that the light switch which activated the lights in the stock room, was outside, not inside the stock room. This too was corroborated by Exhibit 4, which confirms same. This too was a detail that Ms. A.B. said she was very sure of. Having said this, I do not find this to be an overly significant fact;

(8) Ms. A.B. didn’t tell the police that Mr. M.S. placed her hand on his bare penis despite telling them he directed her hand on his penis. I accept her explanation that she wasn’t specifically asked about this and forgot the detail. It is important but not entirely significant;

(9) I find that her recollection of the type of pants that Mr. M.S. was wearing was also unreliable. She acknowledged that that she initially told the police that he was wearing “chef pants” or “scrub” pants which would not have a zipper flap, but later changed this to

different pants as chef pants didn’t have a zipper. In my view, this is a significant inconsistency because she only recalled at trial that sheheard the zipper open;

(10) Ms. A.B. testified that Mr. M.S. was wearing a white “chef shirt”. In cross-examination, it was put to Ms. A.B. that she toldthe police that Mr. M.S. was wearing an apron. When her memory was refreshed on this issue with the videotaped statement, shecouldn’t recall telling this to the police, adding that it would be “impossible that he was wearing an apron”. In re-examination, she addedthat she may have said this in haste. I simply can’t be confident about her recollection of what Mr. M.S. was wearing; (

c) Events in the stock room

(11) Ms. A.B. initially testified and maintained that the whole ordeal in the stock room lasted about 5 minutes. In cross-examination she was challenged on this, eventually stating it “happened very fast”. This may have been an innocent slip on her part butwhen assessed as a whole, it is another issue on which her reliability was challenged;

(12) At trial, she testified that she told Mr. M.S. to stop once but agreed in cross-examination that she told the police she said no“at least twice”. When asked to clarify, she stated that it may have been twice and may not have recalled the specific number of timeswhile testifying. Again, this is not a vital issue but when considered as a whole, it is problematic;

(13) Ms. A.B. agreed that she told the police that Mr. M.S. went upstairs and she followed. She further agreed that she didn’ttell the police that he had told her to wait 5 minutes before coming upstairs. If accepted, this may constitute some post-offence conductwith an inference that something nefarious occurred and steps should be taken to hide it from the customer who had exited the bathroom.In cross-examination, she agreed that she never told the police this detail. She simply told them that he went upstairs and she followed. She added: “I said 5 minutes because it was easier for the courtroom”.

She then immediately said “Oh he did tell me to wait down hereand made a shh motion (holding his finger up to his mouth). I can’t be confident in her recall on this significant aspect of her evidence.

(14) Ms. A.B. testified that she didn’t see a customer come down the stairs. When asked if she stated something different earlier,she couldn’t recall. Her memory was refreshed with her videotaped statement in which she told the police she did see a person comedown the stairs. She explained this inconsistency by stating that her videotaped account was correct because there were slats in the doorand the door was open ajar, allowing her to see outside. She added: “after [you] showed me the pictures, I was recalling somethingdifferent but what I know to be true is what I told the police”.

This is problematic because it suggests that she wasn’t being precise in hertrial evidence. I agree with Mr. Barrison that is an example of her potentially piercing together aspects of prior testimony to accord withher present version of events “to make things fit”. I have a strong doubt about whether anybody came downstairs prompting the end of anassault. Her explanation did not adequately neutralize the reliability concerns: R. v. Francois, (SCC), [1994] 2 S.C.R.827 at para. 21. VI. Conclusion [74] In the final analysis, I accept Mr. M.S.’s denials of sexual touching.

I disagree with the Crown’s position that his story didn’tmake sense. On his evidence, Ms. A.B. asked for a job, he politely told her one wasn’t available and proceeded to serve a customer. Hehad French fries in his hands, which would make it difficult, if not impossible to sexually assault Ms. A.B. in the manner that sheexplained. This alone is enough to raise a doubt about his guilt. I accept that Ms. A.B. went to the basement to use the bathroom and thisjust wasn’t a story created by Mr. M.S.. There’s nothing inherently unusual about a customer using a bathroom in a restaurant.

Nor is itunusual that a stock room door would be left open to allow for ventilation. [75] However, I have gone further and considered that even if I was to reject his denial as being untrue, a reasoned reflection of Ms.A.B.’s evidence also leaves me in doubt. The reliability of her account is simply too weak when stacked against the denial to find beyonda reasonable doubt that she was sexually assaulted. There is nothing inherently improbable about her account but given my finding thatMr. M.S. had French fries in his hands, it becomes remote.

There is no motive to lie and her demeanor and conduct after the fact does notassist too much. Her memory of events simply can’t be trusted to carry the Crown’s heavy burden. The frailties in her memory were onsignificant issues especially the many omissions of important details and the description of the door. Unlike Woolam, her evidence wasnot precise and detailed. In some cases, deficiencies in memory can be explained. That didn’t happen here. [76] In short, Ms. A.B.’s evidence as a whole was simply too unreliable. I can’t be sure as to what happened in the stock room.

[ 77 ] Accordingly, Mr. M.S. will be found not guilty. Released: June 13, 2017 “Justice F. Javed”