Her Majesty the Queen - v. -, 2011 SKPC 154

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 154 Date: October 6, 2011 Information: 31082015 Location: Moose Jaw, Saskatchewan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Salah Tarhuni Appearing: Mr. Rob Parker For the Crown Mr. Darin Chow, Q.C. For the Accused DECISION M.T. GORDON , J

Introduction [ 1 ] The trial of this matter commenced July 5, 2010 and the Crown’s case concluded with my decision of August 3, 2010. On August 25, 2011, the Court denied the Defence request for an adjournment. The trial continued. The accused was not present. Therefore, the first part of this decision summarises the background leading to this course of events. The decision concludes with the Court finding Salah Tarhuni guilty as charged. Background [ 2 ] Salah Tarhuni is charged that on or about the 5 th day of February, A.D. 2009, at or near Moose Jaw, Saskatchewan, did: commit a sexual assault on S.F. contrary to

section 271 of the Criminal Code . [ 3 ] The Information was sworn February 17, 2009 and Mr. Tarhuni was released on a recognizance February 18, 2009 to appear in Court April 8, 2009. On the first court appearance, the Crown indicated it was proceeding summarily. Mr. Chow, counsel for Mr. Tarhuni, entered a not guilty plea and a trial date of October 1, 2009, was set. [ 4 ] At the request of counsel the matter was brought forward on September 16, 2009. Counsel requested an adjournment of the October 1, 2009 trial and the matter was set over to November 10, 2009. Again the matter was set over to November 24, 2009.

On November 24, 2009, a trial date of July 5, 2010 was set. The trial proceeded to hear two Crown witnesses on July 5, 2010. As agreed by the consent of counsel (accused was not present), the trial continued on July 12, 2010 with a voir dire in relation to the Crown’s application to admit similar fact evidence. I rendered my written decision August 3, 2010 (unreported), and allowed the Crown’s application. [ 5 ] The matter was set over to September 15, 2010 to be spoken to, then on October 13, 2010 to October 20, 2010, and then to November 1, 2010.

The Defence waived delay and indicated they were waiting for the name of an expert and expert report. On November 1, 2010, a trial date of April 20, 2011 was set. [ 6 ] At this point in time, all adjournments were consented to by the Crown. The accused was present July 5 and 12, 2010 only. [ 7 ] On April 20, 2011, Mr. Chow, on behalf of his client, requested an adjournment of the trial. Mr. Chow indicated that he had spoken to Mr. Tarhuni who was in Libya. Mr. Tarhuni’s parents are in Libya. Mr. Tarhuni is an agricultural engineer and is assisting in this capacity in his community.

It was reported that he has every intention of returning to Canada. In addition, the Defence intended to call a medical doctor, Dr. Mohammad, to give expert evidence. It has been difficult making arrangements as the doctor is a Libyan National. [ 8 ] Mr. Parker on behalf of the Crown strenuously objected to the adjournment. The Crown says that it has been cooperative to date, consenting to several requests for adjournments. However, the Crown submits that Mr. Tarhuni is not sincere and it appears he will only appear when it suits him.

The Crown was notified by the Defence just seventy-two hours prior to trial that Mr. Tarhuni was not returning for the resumption of the trial April 20, 2011. [ 9 ] The Crown suggested that the appropriate way to handle this matter was to find that Mr. Tarhuni had absconded in accordance with the provision of s. 475 of the Criminal Code and proceed to conclude the trial in his absence. The Crown emphasized that Mr. Tarhuni’s first obligation is to this Court. The Crown pointed out there is another trial, with a similar charge, waiting to be commenced.

[ 10 ] Mr. Chow submitted that Mr. Tarhuni has not absconded, as his whereabouts are known and he is in contact with counsel. The situation in Libya was not anticipated, and not within the accused’s control. Defence counsel pointed out that given my ruling on the Crown’s application to lead similar evidence, there is no prejudice. [ 11 ] I granted the adjournment. However, the Court made it clear that Mr. Tarhuni needed to be present August 25, 2011, as any further adjournment would not be favourably considered. Mr. Chow acknowledged the situation and said he would advise his client of the situation. Mr.

Chow went on to say if Mr. Tarhuni did not attend August 25, 2011, he may have to withdraw. [ 12 ] On August 25, 2011, the date for the resumption of the trial, Mr. Chow advised that his client was not present and requested a further adjournment. Mr. Chow indicated he had no personal communication with Mr. Tarhuni and all contact was through his brother Dr. Tarhuni. This has been the usual method of communication. Mr. Tarhuni is still in Libya. He is looking after his parents and family. He is an agriculture engineer and is assisting any way he can with preserving property and rebuilding.

The civil strife in Libya is not within his control and, on humanitarian grounds, the Defence seeks an adjournment. Again, the Defence emphasized that Mr. Tarhuni intends to mount a defence and testify on his return. The Crown has closed its case and therefore would suffer no prejudice. [ 13 ] The Crown’s position has not changed from April 2011. The Crown again strenuously opposed an adjournment and requested the trial continue. The Crown requested that pursuant to s. 475 of the Code , the Court find that the accused has absconded. The Crown argued that there is no reasonable prospect the accused will return.

The issuing of a warrant so that Mr. Tarhuni would be arrested on his return to Canada is not a satisfactory solution. This does not bring any closure to the victims. The interest of justice demands that the matter be concluded. Decision [ 14 ] After considering the position of the parties, I declined to grant the adjournment and ordered that the trial proceed pursuant to s. 803(2)(

a) of the Code . I could not make an order under s. 475 as this

section does not apply when the Crown elects to proceed summarily. For the record, I would like to outline my reasons for so doing. The Court appreciated that the within circumstances are rather unusual and the importance of the accused to be able to mount a defence. The accused is the one in jeopardy. However, I cannot ignore the history of this case. The last time Mr. Tarhuni was present was August 3, 2010. There were several adjournments, each at the request of the Defence, to which the Crown consented. However, in April 2011, the Crown made it abundantly clear it was opposed to any further adjournments.

At that time, the Crown indicated it had not received any notice of expert witness pursuant to s. 657.3 of the Code and had concerns as to whether the accused would even return. The adjournment was allowed, given the fact that the complainant had testified, the similar fact evidence had been admitted, that Defence counsel was in contact with his client and intended to defend the charge. The continuation of the trial was set four months hence to August 25, 2011. [ 15 ] I noted that nothing had changed since April 2011.

The accused was not present, there was no information as to any efforts he had made to leave the country. There was no indication of when he thought he could leave or if there were any difficulties with leaving. The same fairly vague reasons were advanced as to why Mr. Tarhuni was staying in Libya. There was no indication that an expert was going to be called, only the same information that a Dr. Mohammad, a Libyan National, is being investigated as a possible defence witness. [ 16 ] The Court was concerned that Defence counsel has not had any form of direct contact with his client.

There is no new or more definite information about when the accused will return. There is no plan. There is no indication that the accused has tried to return and encountered difficulties. There is a lack of specific information as to what the accused is doing in Libya. The Court recognizes there is a civil war in Libya and citizens, no matter which side they support, are experiencing upheaval, strife and uncertainty. Mr. Tarhuni’s parents and family are in Libya. [ 17 ] In my view, the accused has an obligation to return to Canada where he was living and working, to face these charges.

The Court is not persuaded that the accused will ever return to this jurisdiction. If he does return, we have no idea when that will be and if he will stay to the conclusion of his trial. Mr. Tarhuni continues to try and negotiate the process. The Crown has been very accommodating. At some point the Court has to decide that he has been given a reasonable opportunity to attend Court and present his case. That time has come. For all of the above reasons, the adjournment is declined. The Defence must present its case.

Trial [ 18 ] As a result of this decision, Defence counsel did not call any evidence. [ 19 ] The Crown’s argument was brief. The evidence of the complainant, that was corroborated by the admission of similar fact evidence, clearly establishes the guilt of the accused beyond a reasonable doubt. [ 20 ] Defence counsel candidly admitted the only evidence before the Court was that of the uncontroverted evidence of the two Crown witnesses. [ 21 ] Salah Tarhuni is charged that on or about the 5 th day of February, A.D. 2009, at or near Moose Jaw, Saskatchewan, did: commit a sexual assault on S.F. contrary to

section 271 of the Criminal Code . [ 22 ] The first witness was Linda Cooney, the senior secretary at the Moose Jaw Cardiac Clinic. Early in 2009 the clinic was seeking a new office employee. Advertisements had been placed and Salah Tarhuni, the office manager, was responsible for conducting the interviews. There were ten to twelve applicants and all were interviewed during the day and evening. Mr. Tarhuni wore a lab coat, while Dr. Tarhuni usually wears scrubs. There was nothing to indicate that Salah Tarhuni was a medical doctor. On cross-examination she thought she introduced the accused as the office manager.

Mr. Tarhuni had interviewed and hired Ms. Cooney. Ms. Cooney was not required to submit to any physical exams to ascertain her health status. [ 23 ] S.F., twenty-five years of age, was working at Walmart in February 2009. She was job hunting and responded to this posting at the medical clinic on Sask Jobs. She gave her resume to the accused, who was wearing a white lab coat. She assumed he was a doctor. After questioning her briefly, he asked her to return that evening. [ 24 ] S.F. returned at 7:00 p.m. and was given a tour of the clinic.

However, this tour consisted of not only an explanation of the various tests and procedures, but also a demonstration on S.F. S.F., upon request, took off her shirt, so Mr. Tarhuni could apply the sticky patches from the heart monitor. [ 25 ] In the next room he told her to take off all her clothes from the waist up and put on a gown. During the course of this procedure he opened her gown in front, applied the sticky patches at various points right under her breast and squeezed her breast. Mr. Tarhuni asked her to take off her pants and lay face down.

He ran his fingers down her leg and touched her buttocks. [ 26 ] Mr. Tarhuni then explained to her that one of the requirements of being hired was that the individual was healthy. Therefore, he requested that she remove her panties and submit to an internal examination. [ 27 ] At the conclusion of these procedures, she dressed and returned to the office of Salah Tarhuni. At the time she was asked very personal questions such as whether she was religious and whether she was a virgin.

There were also some hypothetical questions and role playing. [ 28 ] Throughout her testimony the complainant stated that she felt awkward and did not like the requests being made of her. She felt that she could not say “no” and if she wanted to be hired that these procedures were required. She felt she would lose this job opportunity. She really wanted to leave her job at Walmart as this type of work was closer to her training. She was willing to put up with this process as she thought the questions were possibly legitimate. [ 29 ]

Section 271 of the Criminal Code reads as follows:

(1) Every one who commits a sexual assault is guilty of (

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

b) an offence punishable on

summary conviction and liable to imprisonment for a term not exceeding eighteen months. [30]

Section 265 of the Criminal Code defines assault as follows: 265

(1) A person commits an assault when (

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; (

b) he attempts or threatens, by

an act or a gesture, to apply force to another person, if he has, or causes that other person to believe uponreasonable grounds that he has, present ability to effect his purpose; or (

c) while openly wearing or carrying a weapon or an imitation therefore, he accosts or impedes another person or begs.

(2) This

section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causingbodily harm and aggravated sexual assault.

(3) For purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of (

a) the application of force to the complainant or to a person other than the complainant; (

b) threats or fear of the application of force to the complainant or to a person other than the complainant; (

c) fraud; or (

d) the exercise of authority.

(4) Where the accused alleges that he believed that the complainant consented to the conduct that is the subject matter of the charge, ajudge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instructthe jury, when reviewing all evidence relating to the determination of the honesty of the accused’s belief, to consider the presence orabsence of reasonable grounds for that belief. [31] The leading case in this area is R. v.

Ewanchuk (1999), (SCC), 131 C.C.C. (3d) 481, the Supreme Court of Canada outlined the components of sexual assault at paragraph 23: 23 A conviction for sexual assault requires proof beyond a reasonable doubt of two basic elements, that the accused committed the actusreus and that he had the necessary mens rea. The actus reus of assault is unwanted sexual touching. The mens rea is the intention totouch, knowing of, or being reckless of or wilfully blind to, a lack of consent, either by words or actions, from the person being touched. [32] In R. v.

Cook (1985), (BC CA), 20 C.C.C. (3d) 18,Lambert J.A. noted the Court must determine whether there has been a real affront to the complainant’s sexual integrity and dignity. [33] In the within case, and as a result of my decision that the trial mustproceed, the only evidence is that of Linda Cooney and S.F. and the similar factual evidence of T.M. [34] Given the imbalance in power, age and emotional maturity between theaccused and this young woman who desperately wanted a new job, I have no hesitation in accepting the evidence of S.F. in its entirety. She was not experienced in the work world.

I conclude from her evidence she thought this job opportunity would be a step up the ladder,a definite improvement over her current job.

[ 35 ] I conclude that S.F. genuinely believed that the accused was a medical doctor and that she had to go along with the questioning and procedures that the accused dictated. S.F., in the particular circumstances, felt compelled to go along with all the tests in order to be considered a suitable candidate for this job in a medical clinic. Not unlike many people, she assumed that Mr. Tarhuni was a doctor, and that the test would not have been suggested and performed otherwise.

She was perhaps naive, and inexperienced, but believable. [ 36 ] While it is true that S.F. removed her clothes as requested, this does not equate with informed consent. Informed consent must be fully given with full knowledge of the situation. In my view, S.F. was the subject of trickery or fraud and in law this is no consent at all. [ 37 ] I find that the accused intended to touch the complainant, the touching was of a sexual nature, and there was no valid consent. [ 38 ] In conclusion, I do not have a reasonable doubt. Salah Tarhuni is guilty as charged.

Dated at Moose Jaw, Saskatchewan, this 6 th day of October, 2011. _________________________________________ M.T. Gordon, J