R. v. Racco, 2013 ONSC 1517

CITATION: R. v. Racco, 2013 ONSC 1517 COURT FILE NO.: 192/11 DATE: 20130322 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) HER MAJESTY THE QUEEN ) ) ) KELLI FREW , for the Respondent/Crown ) Respondent ) ) - and - ) ) PETER RACCO ) ) ) ALAN D. GOLD and MELANIE WEBB , for the Appellant Appellant ) ) [On appeal from the conviction and sentence by the Honourable R.

Zisman, dated October 31, 2011 and April 13, 2012] THIS JUDGMENT IS SUBJECT TO A PUBLICATION BAN REGARDING THE NAME OF THE COMPLAINANT OR ANY INFORMATION THAT MIGHT TEND TO IDENTIFY HER AMENDED JUDGMENT Corrected decision: The text of the original judgment was corrected on March 22, 2013 and the description of the sentences replaced in the corresponding paragraphs in the original judgment is as follows: Para. 2: “ …Her Honour imposed a 60 day jail sentence and 24 months probation.” Para. 73: “Her Honour imposed a 60 day term to be served in jail and 24 months probation.” DURNO, J. [ 1 ] The appellant and his wife, Josie, are real estate agents.

The appellant’s wife hired J.K. to assist in running their office. On a Sunday evening, the appellant and J.K. met at a coffee shop and went to her apartment. J.K. said that while there the appellant grabbed

her by the neck and stuck his tongue down her throat. While he was doing so, she felt his fingers “on top of her pants in her vaginalarea.” She left the apartment. The appellant said that while looking at the apartment, J.K. grabbed him by the back of the neck andstuck her tongue down his throat. He told her that was inappropriate and left. [2] The trial judge accepted J.K.’s evidence, finding e-mail and text communications before and after the visit to J.K.’s apartmentsupported her account. Her Honour rejected the appellant’s evidence, finding that in many areas it made no sense.

The appellant wasconvicted of sexual assault with the trial judge finding he touched the complainant’s vagina under her pants. Her Honour imposed a 60day jail sentence and 24 months probation. [3] The appellant appeals contending the trial judge erred in approaching the case with the presumption the complainant was truthfulinstead of applying the presumption of innocence. While properly setting out the steps in R. v.

W.(D.), (SCC), [1991] 1S.C.R. 742, he contends Her Honour failed to apply that analysis to her reasons, instead applying a presumption of guilt. [4] In the alternative, the appellant appeals against the sentence submitting: the trial judge erred in her use of the Victim ImpactStatement; in finding the offence involved a breach of trust by a person in a position of authority in relation to J.K.:, in finding thatwhether or not the touching was over or under the clothing would not affect the sentence; and that the sentence was harsh and excessivewhen other similar sentencing cases are considered. [5] For the following reasons, the conviction appeal is dismissed and the sentence appeal allowed.

The Evidence [6] The complainant, J.K., was a 29 year old separated mother with a 6 year old child. She was hired by the appellant’s wife in May,2010, as an office manager for the Racco’s realty company. After being hired, J.K. met the appellant and described him as having a“very flirtatious personality.” Upon meeting J.K., the appellant said, “Oh wow, my wife hired a very attractive looking young woman.” While she initially thought little of the comments, they progressed with the appellant saying it was nice to have some “Joy in his life.” She began to feel uncomfortable.

When she addressed the comments with him, he brushed them off. The comments included telling herhe could “give her a good rim job” and that he wanted to get extra sound proofing for his office so that when she came around they coulddo stuff without anyone hearing. Once, he brushed her bottom with his hand. When she turned around, he said he was just adjusting herskirt for her. [7] J.K. testified she would tell the appellant he had an absolutely beautiful wife and asked why he was talking to her as he did. Hetold her Josie was beautiful but that was about it.

He just needed someone in his life when “you get up to the top here it’s, it’s very, youknow cold and people don’t really know you.” He needed somebody. [8] The appellant denied he made any inappropriate comments to J.K. at his office. [9] J.K. was temporarily living at her office but became aware of a rental property that was available when she put a lock box on it inthe course of her employment for the appellant.

When he arranged for her to see it, she was very interested in leasing the property,wanting to offer $1,400 monthly instead of the $1,500 the landlord wanted. [10] On Saturday, May 15, 2010, J.K. put in extra hours trying to organize the office. The offer to lease the apartmentwas signed by J.K. and witnessed by the appellant. When first shown the lease at trial, J.K. said she did not know whose signaturewitnessed hers, noting people had been asked to change (forge) signatures in the office but later, in cross-examination, said the appellantprobably signed at the same time as she did.

She then said she did not know if it was his signature or when he signed it. [11] The appellant testified J.K. prepared the lease agreement. It was signed in the office on May 15 and witnessed atthat time by the appellant. The agreement was to be presented to the landlord on Monday, May 17.

However, by May 16 there wereother people interested in the apartment, so he needed to discuss the current offer with J.K. [12] On Sunday, May 16, 2010, J.K. was with her family at the beach when she exchanged a series of text message andphone calls with the appellant at the following times: • 12:59 p.m. from the appellant to J.K: “… make sure u remember to flip over our blackberries –thx!!P&J” • 1:31 p.m. from the appellant to J.K: “Can you call me on my cell plse –re rental of 286 st paul st” • 1:32 p.m. one minute call from J.K. to the appellant. • 1:33 p.m. 5 minute call from J.K. to the appellant.

She testified the conversation related to the rental and how her day wasgoing. • 1:58 p.m. from the appellant to J.K: “Hey bb Its me again – sugar diddy.” J.K. said the appellant had never previouslyreferred to her as “Baby” or to himself as “Sugar Daddy.” The references made her feel uncomfortable because the appellant was heremployer. The appellant testified J.K. asked him to use the phrases so she would know it was him attempting to contact her because hisnumber appeared as “Unknown caller” and she was not responding. He used the code to get her attention as she had not picked up hiscalls.

While he did not understand her motive, he went along with it.

• 1:50 p.m. from the appellant to J.K: “Can u call back plse [phone number 1] ?” • 2:02 p.m. 4 minute call from J.K. to the appellant.

The complainant had no recollection about the content of this call although she recalled feeling uncomfortable. • The appellant testified that during their early afternoon discussions, J.K. expressed concerns about whether she was emotionally ready to take on the apartment and believed she would not get the property without a co-signor. • 3:24 p.m. from J.K. to the appellant: “Peter, I will be at my place in an hour if you want to talk.” The appellant testified he felt J.K. wanted to talk to him further about the offer.

He felt they needed to have a face-to-face discussion about it. • 3:37 p.m. from the appellant to J.K: “Hey bb! Justvout right now – will hook up later tonite – will call u when on route.” • 6:07 p.m. from the appellant to J.K: “Do you prefer red or white?” The appellant and J.K. testified this reference was to his practice of buying clients a bottle of wine when they closed a real estate deal.

However, J.K. said she did not know how to take the comment based on the appellant’s earlier references to “baby” and “sugardaddy.” • 6:08 p.m. from J.K. to the appellant: “Your funny I like red … Are you coming by later I was just going to go to the gym?” J.K. testified she was not really going to the gym but did not know what was going on.

She could not figure out why he wanted to come over so late to discuss the rental. • 6:10 p.m. from the appellant to J.K: “yes – it will b a bit later on – so go ahead & I’ll txt u later” • 6:11 p.m. from J.K. to the appellant: “Thanks” • 7:04 p.m. from J.K. to the appellant: “Peter, this is very complicated I would like to set up a time during the day to talk. I am feeling uncomfortable.” The appellant testified he concluded J.K. felt uncomfortable going through with the lease, so he felt the face- to-face meeting was necessary. • 8:03 p.m. from the appellant to J.K: “Hey what’s the worry?

I am just gonna talk about it – i should drop by there in 15 min” • 8:10 p.m. from J.K. to the appellant: “Sorry I’m at my mom’s, let’s do coffee tomorrow”. J.K. testified it was getting late but the appellant persisted in wanting to meet that evening. She suggested they meet at Starbuck’s. • 8:12 p.m. from the appellant to J.K: “Can u call me on my cell plse” • 8:12 p.m. 4 minute call from J.K. to the appellant. J.K. said the appellant was making light of the situation. She told him it was too late but he persisted in wanting to meet that evening.

She did not feel comfortable meeting at her apartment, so suggested a coffee at Starbucks.

The May 16 th Meeting [ 13 ] J.K. testified she drove to Starbucks and met the appellant at roughly 8:35 p.m. The appellant was very lighthearted. When she raised his comments about her, asked if that was how he carries on and if he had such an open relationship, the appellant said he found her attractive and could not help himself. She told him it was not appropriate. He changed the topic to the rental and wanting to see her apartment so he could explain it to his client. [ 14 ] J.K. did not want to go to her apartment with the appellant but agreed to do so because he pressured her, asking if she was a chicken.

They walked back to her place although both had cars at Starbucks. Once at the apartment, they went upstairs where she showed him around. While showing him some things that she was going to bring up to par for building code, the appellant pulled her forward and put his tongue down her throat. She felt his fingers on top of her pants in her vaginal area and pushing her head. She did not remember anything else. [ 15 ] They were at the table and she felt him “feeling areas” but that was all she could recall. She could not recall him saying anything before pulling her forward.

Following a break to permit J.K. to compose herself at trial, she continued her testimony: “Peter put his tongue down my throat. I felt his fingers on top of my pants in my vaginal area and pushing my head. I don’t remember anything else.” [ 16 ] J.K. said she left the apartment and recalled someone calling the appellant’s name while they were walking down the street. She had no recollection of seeing the appellant or any exchange of words with him. J.K. went to her mother’s and called Josie telling her she was quitting because she had another job.

J.K. did not want Josie to know what the appellant had done. [ 17 ] The appellant testified he discussed the rental with J.K. at Starbucks and she expressed uncertainty about the agreement. They did not discuss whether she could afford it, as she was expecting money from her separation. Her uncertainty related to whether she was emotionally in the right state of mind to make the decision. J.K. invited him back to her apartment, he did not suggest going there. She had previously mentioned the poor condition of her apartment compared to the one for which she had the offer prepared.

He assumed she wanted him to see the state of repair of her current place. [ 18 ] They walked to the apartment and once there, the appellant concluded her living conditions were dismal. While looking at one room, he turned around and J.K. grabbed him by the neck and kissed him, forcibly putting her tongue in his mouth. He pushed her away saying, “This is not a good idea” and that he was leaving. He left and walked back to his car with J.K. following a few steps behind him. She approached him and apologized.

He told her not to worry about it, it was okay and “no big deal.” [ 19 ] J.K. testified she wanted to quit her job and called Josie Racco telling her she was quitting because she had another job. She did not want to tell her what had happened. Communications After the Meeting [ 20 ] The following texts and phone calls occurred after the visit to J.K.’s apartment: • 10:19 p.m. from the appellant to J.K: “What’s going on?? Plse call me asap!!

Everything is ok plse call” • 10:22 p.m. from the appellant to J.K: “This is serious – plse call – joise just told me that u r quitting??” • 10:27 p.m. from J.K. to the appellant: “Everything is not ok peter, you fix it and tell josie something because I m not comfortable w your advances at all. I feel sorry for ur wife” • 10:30 p.m. from J.K. to the appellant: “I said I have another job offer, pls just have my last weeks cheque at the office by 5. Thanks” • 10:30-10:31 p.m. from the appellant to J.K: “OK – I am truly sorry for what I said and did – promise won’t ever happen again!!

Plse come back to work – we have so much to do & help each other”. The appellant said J.K. instructed him to make it look like this was his fault in case his wife confronted her about the incident. She could say it was her fault and have a text from him confirming it. He testified J.K. wanted it for “deniability”, she wanted to know that if Josie were to say, she could say no, no Josie this is what Peter said to me.

She wanted it on her text message”. • 10:38 p.m. from the appellant to J.K: “Plse need to know u R. v. good with moving forward – going to get this rental for u - & no further interference & no one needs to know & no questions asked – plse confirm asap” • 10:41 p.m. from J.K. to the appellant: “Fine, let her know I will be in tomorrow morning. I will explain I’m just stressed out to Josie, nothing said. I know this was an isolated incident”. J.K. testified she decided to return to work because she had no other job and no options. She would have had no job and no place to live.

She thought that maybe it would not happen again.

• 10:44 p.m. from the appellant to J.K: “Thanks b god! – just one last thing resend your last msg – except delete the last sentence – thx p”. The appellant testified he did so, so that he could show his wife that he did nothing wrong. • 10:45 p.m. from the appellant to J.K: “Told Josie u were a little overwhelmed by the back log of workload – josie is sick to her stomach that u thinking of leaving!!

Plse stay on” • 10:48 p.m. from the appellant to J.K: “Plse call josie asap from her cell – because she is now calling sue to see if she can get her to call & talk to u – god I such an idiot!” • 10:54 p.m. from the appellant to J.K: “Josie really wants to just hear from u tonite – really she will b ok once u call back – she will not b mad at u – I’ve been talkin to her that u have been a little stressed over the rental and YOUR marital situation---“ • 10:55 p.m. from J.K. to the appellant: “Her number?

The phone kicks in to answering machine” • 10:57 p.m. from the appellant to J.K: “Call her cell [phone number 2].” • 10:57 p.m. 4 minute call from J.K. to Josie Racco. • 10:58 p.m. from the appellant to J.K: “She will call u back” • 11:57 p.m. from the appellant to J.K: “Thx ! will talk tomorrow –p” [ 21 ] The next day J.K. and the appellant met with the landlord and the offer was accepted. The appellant testified she was “overcome with emotion out of happiness.” At the office, the appellant said he would get Josie to write her a cheque for her rent for the new apartment. Josie later gave her a cheque for $3,000.

The appellant denied ever talking to J.K. about the money, that it was “hush money” as J.K. alleged in her evidence or that he signed the cheque. When the lease was subsequently cancelled, the landlord kept one half for her trouble while J.K. kept the balance. [ 22 ] J.K. denied she had edited any text messages. She had provided police with a May 17, 2010 text from her to Josie Racco that read: Josie, think I will take u up on the keeping this weekend for myself, but pls tell sue she can all be on my cell if she needs anything.

Just a little note though will usually try to come in Saturdays even for a bit till we are caught up … [ 23 ] The complete version included the following after “… are caught up: U guys have done so much for me.. I feel its only right. Thanks, Joy”. [ 24 ] When first confronted with the difference, J.K. said “the stuff underneath is not relevant.” She later said it was not intentional as it was at the bottom of the e-mail.

She provided no explanation for how half of a line could be removed on the basis it was “not relevant.” [ 25 ] In a second text to Josie Racco on May 17 at 7:25 p.m., J.K. wrote: “Joise, Thank you sooooooo much again!!! I have the cheques on order and everything ready for Angie. You guys are a true blessing.” J.K. testified she thought everything was going to be fine and it was going to stop at that point. The appellant made it clear Josie was never to know what had happened. In order to make sure that I was okay they put that place together for me. She did not have to worry about anything.

J.K. thought everything was going to be fine and would stop at that point. The May 25, 2010 text message [ 26 ] J.K. sent the appellant the following text message: Peter, I have given some thought to everything that has gone on and the way u act towards me when I’m at work and I feel extremely uncomfortable, I try to smile and pretend it does not bother me but it does and especially that Josie is such a great person and u still carry

on this way. I have shown a lawyer the text message so someone knows your behaviour and I know date a police officer and these things are not taken lightly, I have a good case for sexual harassment if I choose to take this further with reco, or we can settle this out of court and you guys can pay me 4 months’ salary $8000 so I can find another job and now have to deal with this. Let me know so I can carry on with my life. [ 27 ] The appellant never paid the $8,000. J.K. said she sent the message because she needed a place to live, had bills to pay and needed to move on with her life.

She received a phone message from the appellant that inferred she should not make it harder on herself than it already was, that she was not the only one with connections, and that he had connections on the police force. J.K. said she asked for the money because she needed to be okay, she had no place to live, he was her employer, had sexually harassed her and sexually assaulted her. She did not know how she was going to continue.

J.K. agreed that the effect of the message was she would file a complaint with the Real Estate Council of Ontario (RECO) or they could “settle out of court” for four months salary so she could find another job as it was embarrassing.

Had she received the money she would have found a way to continue on, would not have gone to RICO and did not know if she would have gone to the police. [ 28 ] On May 28, 2010, J.K. went to the police station with a package containing 31 pages of text messages, banking documents, medical records and her “running commentary.” She gave the police her laptop that was synced with her BlackBerry. She prepared such a well-organized package because she could not speak as a result of the emotional trauma of the incident.

Her laptop was given to police so they could gather what information they needed and have access to whatever they needed as far as the papers she had given them. [ 29 ] For the first time, in cross-examination, J.K. said the appellant had insinuated that he could come to her new apartment because he had a key. This had not been mentioned to the police in almost five hours of interviews over two days. Similarly, there was no reference to forging signatures at the appellant’s office in the police statement.

When it was suggested she made up the allegations because she wanted the apartment so badly she said, “Not bad enough to cancel it. Because I did cancel it.” [ 30 ] J.K. acknowledged that she had returned to an ice cream shop with her then common law partner to ask questions of prospective witnesses but denied she held her partner out to be a police officer. [ 31 ] The appellant testified his post-meeting text messages were an attempt to cover up for his wife who he thought would read his messages. J.K. wanted protection from the appellant’s wife knowing J.K. was the aggressor at the apartment.

Further, he did not want J.K. to quit her job as they were in a very bad position with nobody else to manage their office. He went along with J.K.’s request that he sent messages making it look like he was at fault and asked her to remove a reference to the “isolated incident” and re- send a message in case his wife saw it. [ 32 ] Richard Ottaway testified he ran a fries and ice cream shop in downtown Burlington. Sometime in the end of April or early May, he recalled seeing a man he believed was the appellant walking with a woman, whom he thought was the appellant’s wife in front of his store.

This is the route the appellant and J.K. took after they left J.K.’s apartment. They were walking casually together, side by side, at a normal pace. He called out the appellant’s first name, “Peter,” but received no response. The Reasons for Judgment [ 33 ] The trial judge provided 17 single spaced pages of Reasons for convicting. Her Honour did not believe the appellant and found his evidence did not raise a reasonable doubt in her mind.

His “many attempts in cross-examination to explain the so called “code” or “hey bb .. it’s me sugar diddy” he claims he was asked to use by the complainant made so sense whatsoever.” Her Honour noted it was significant J.K. was never asked in cross-examination whether or not she had told the appellant to use the code. That the 30 year old employee who had only worked for the appellant for about three weeks would give instruction to a 49 year old realtor made no sense. [ 34 ] Similarly, his explanations for sending the post-meeting texts, that on a plain reading were a series of apologies, made no sense.

His explanation for asking J.K. to edit one text to remove the reference to an “isolated incident” made no sense. [ 35 ] The appellant’s explanation for calling J.K. on May 17 made no sense because she had signed the agreement the day before and the meeting with the landlord was the next day. J.K. knew she had no co-signor and was worried about her finances. There was no indication she had changed her mind about putting in the offer to lease.

The appellant continued to text her after she texted him saying she wanted to meet Monday. [ 36 ] Her Honour noted it was not enough to reject his evidence and find it did not raise a reasonable doubt, it was necessary to consider the evidence she accepted to determine if the Crown had established guilt beyond a reasonable doubt. J.K.’s account of the events leading up to the sexual assault were consistent with her phone records and text messages sent by the appellant.

Trying to arrange the meeting for Monday or meeting for a coffee at Starbucks was not consistent with someone luring the appellant to her apartment so she could set him up as the appellant alleged. [ 37 ] Since J.K. had never seen the Starbucks surveillance video, yet said the video would show the appellant touching her hand and her withdrawing when the video was of such quality that it was not possible to see what they were doing, did not detract from J.K.’s evidence. [ 38 ] Her Honour considered the submission J.K. edited one message she gave to police and did not give police one message sent after the assault but found it did not impact on her credibility.

She gave the police the downloaded texts she considered relevant – those leading up to and after the assault. The trial judge accepted her evidence she did not deliberately omit the texts she sent to the appellant and his wife that dealt with the rental. J.K. did not believe it was relevant. Her Honour accepted J.K.’s evidence regarding how the last line was omitted from the text when it was printed and concluded, “By providing the police with full access to her computer, any relevant texts could have been located.”

[ 39 ] The trial judge found the May 17 e-mail thanking the appellant and his wife and calling them a “true blessing” did not detract from her credibility. J.K. said she was going to keep working at the company and was grateful for their assistance in getting the rental for her. [ 40 ] J.K. also gave police the e-mail where she demanded $8,000 and did not deny keeping half of the $3,000 she received for the rent deposit.

Her Honour found: Although I accept that this was an attempt by the complainant to obtain money from the defendant it does not diminish her credibility regarding the defendant sexually assaulting her. There is nothing inherently improper in an employee attempting to obtain compensation for her mental distress and subsequent loss of employment as a result of an incident of sexual assault by an employer. [ 41 ] The trial judge rejected the appellant’s submission J.K. made up the allegations so she could obtain money from him.

The submission was inconsistent with text messages that she did not want to meet the appellant at her apartment. It was only after his persistence that she agreed to go there. Her Honour accepted J.K.’s evidence that she felt she was entitled to be compensated for what the appellant did to her and because she would be left without a job and proper accommodations for her and her son. [ 42 ] Her Honour put no weight on Mr. Ottoway’s testimony in view of its vagueness.

It was not corroborative of J.K. lying to the police that she ran from her apartment to her car. [ 43 ] J.K. was extremely emotional and distraught when testifying about the incident. She had trouble speaking and articulating what happened. She had blocked some of the events from her mind. Noting there were dangers in relying on demeanor, the trial judge found J.K.’s manner of testifying was inconsistent with someone who would put themselves through the trauma of a trial just to obtain financial compensation.

While she was vigorously cross-examined, she answered the questions asked and did not waiver in her version of events. The Crown had met its burden of proving the offence beyond a reasonable doubt. Grounds of Appeal Did the trial judge apply a presumption the complainant was truthful instead of the presumption of innocence? [ 44 ] The appellant submits that an examination of Her Honour’s Reasons reveal she proceeded on the basis J.K. was presumed to be an honest witness instead of applying the presumption of innocence.

He bases that submission on several areas of the Reasons indicated below from which the appellant argues the trial judge must have proceeded as he contends. In addition, he contends Her Honour misapprehended or ignored relevant evidence rendering the trial unfair.

He submits the cumulative effect of the trial judge’s misapprehension of the evidence and ignoring relevant facts, supports the overall submission Her Honour proceeded on the basis J.K. was an honest witness. [ 45 ] The Crown submits Her Honour made findings of fact that were open to be made on the evidence, findings that do not reflect a misplaced presumption of honesty or misapprehension of the facts. [ 46 ] The appellant submits the trial judge ignored J.K.’s “false evidence” in several areas. First, she told police she ran from her home to her car while Mr.

Ottaway said the person with the appellant was walking with him and at trial J.K. said she walked back to her car. While the trial judge rejected Mr. Ottaway’s evidence because of its vagueness, in doing so, Her Honour ignored J.K.’s evidence that while she was going down the street after leaving her apartment, a man had called out the appellant’s name. That evidence added weight to Mr. Ottaway’s evidence by strengthening the link to the night of the incident, yet Her Honour failed to consider J.K.’s evidence when rejecting Mr.

Ottaway’s. [ 47 ] While Her Honour did not address J.K.’s evidence about someone calling out the appellant’s name, I am not persuaded the failure to do so reflects Her Honour ignoring relevant evidence. That evidence would have somewhat enhanced the appellant’s evidence as to the manner in which the appellant and J.K. were walking. However, it would not have materially enhanced Mr. Ottaway’s evidence for the following reasons. First, he thought the woman with the person he thought was the appellant was Josie Racco, whom he knew from having business relations with her and the appellant.

He said it looked like the appellant’s wife. There is no evidence J.K. and the appellant’s wife looked similar. Mr. Ottaway said the woman looked about the appellant’s age. Mr. Racco was 47. J.K. was 31. [ 48 ] Second, the couple were about 25 feet away from him yet there was no reaction when he yelled, “Peter.” When asked if looking back he thought it was the appellant, Ottaway said, “Probably not, ‘cause he would have probably responded back saying or looking back.

I mean if somebody calls me I’m going to look around and say who’s calling me.” [ 49 ] Third, the appellant testified J.K. was walking a few steps behind him. He had been walking at a “fairly quick pace.” J.K. was close to him. The appellant said J.K. caught up to him just as he was coming around Lakeshore towards John St. and he was going up John St. Mr. Ottaway said he saw the couple walk around the Lakeshore-John corner together.

On this record, I am not persuaded the trial judge erred in this area. [ 50 ] As regards J.K. telling the police she ran and testified she walked, it was open to Her Honour to find that was not a significant discrepancy in her evidence and that it did not impact on her credibility. [ 51 ] Second, it is contended Her Honour erred in accepting J.K.’s explanation why one e-mail was incomplete and one not included in the bundle she gave to the police. In relation to one, J.K. said the last line of the e-mail must have been deleted when she

printed it off, yet the missing sentence was part of the last line. In relation to the other, the only explanation was that it was after theincident and J.K. did not think it was relevant. [52] The trial judge saw and heard J.K.’s explanation for the omissions. Her Honour took into consideration that J.K.gave the police her computer which included all of the communications.

While the appellant argued on appeal that the emails and textsintroduced were not from J.K.’s computer so the trial judge’s finding J.K. had given the police the computer containing all of thecommunications removed any concerns, it is not apparent that the source of the texts was explored or argued at trial. There was anadmission that the ones introduced were sent to and from J.K. and the appellant. It may also be as Ms. Frew argued that it is necessary toexamine the sequence of emails and not isolate one.

On this record, while the trial judge was not required to do so, it was open to HerHonour to reasonably conclude that the “edited” and omitted emails did not impact on J.K.’s credibility. [53] Third, the appellant submits the trial judge ignored J.K.’s attempt to “extort” $8,000 from the appellant so she wouldnot go to RECO, the real estate board’s governing body, and possibly would not have gone to the police.

He contends Her Honour“legitimized” the request on the basis J.K. needed money to move on with her life, that in some fashion the $8,000 was something akinto severance pay for working with the appellant’s company for three weeks and/or compensation for what the appellant did to her. Theproblem, as Mr.

Gold put it, was that there was never an objective assessment of the $8,000 demand including that it was only after themoney was not paid that J.K. went to the police. [54] That an employee might want money when leaving employment because of an incident like this one isunderstandable although it could be argued this is a large amount for severance pay.

However, I agree that the trial judge’sconsideration of the request for money is troubling because Her Honour never addressed the threat to report the appellant to RECO orher evidence that she was unsure whether she would have gone to the police had the appellant paid the money.

Neither did the reasonsaddress the timing of the report to the police – right after the appellant’s refusal to pay the money. [55] Fourth, the appellant submits the trial judge erred in concluding the complainant’s demeanor was “inconsistent withsomeone who would put themselves through the trauma of a trial just to obtain financial compensation.” He submits the trial judgefailed to consider whether J.K.’s extreme emotional distress was “perhaps, all

an act simply in order to obtain financial compensation inthe end.” Further, Her Honour overemphasized J.K.’s demeanor. [56] I am not persuaded the trial judge erred in this area. While the trial judge was not required to make the findingsnoted above and others might have reached a different conclusion, I am unable to find Her Honour erred. The findings were open to thetrial judge to make on this record. Whether a complainant would put her or himself through the trial process if they were lying or had anulterior motive is a relevant consideration. R. v. D.M., 2012 ONCA 894 , [2012] O.J.

No. 6059 (C.A.) [57] There is no difficulty with a trial judge considering a witness’ demeanor in assessing their credibility. As the Courtof Appeal held in R. v. Boyce, [2005] O.J. No. 4313, “trial judges are not required to ignore demeanor in their assessment of a witness. They can use it in conjunction with their assessment of all of the evidence in the full context of the trial.” Where the Court of Appealhas raised the caution flag is on over-reliance on demeanor. [58] The recent majority judgment from the Supreme Court of Canada in R. v.

N.S. 2012 SCC 72 at para. 25-26 reinforcesthe importance of demeanor evidence: 25 Covering a witness's face may also impede credibility assessment by the trier of fact, be it judge or jury. It is a settled axiom ofappellate review that deference should be shown to the trier of fact on issues of credibility because trial judges (and juries) have the"overwhelming advantage" of seeing and hearing the witness -- an advantage that a written transcript cannot replicate: Housen v.Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 24; see also White v. The King, (SCC), [1947] S.C.R. 268, at p.272; R. v.

W. (R.), (SCC), [1992] 2 S.C.R. 122, at p. 131. This advantage is described as stemming from the ability toassess the demeanour of the witness, that is, to see how the witness gives her evidence and responds to cross-examination. 26 Changes in a witness's demeanour can be highly instructive; in Police v.

Razamjoo, [2005] D.C.R. 408, a New Zealand judge askedto decide whether witnesses could testify wearing burkas commented: ... there are types of situations ... in which the demeanour of a witness undergoes a quite dramatic change in the course of his evidence.The look which says "I hoped not to be asked that question", sometimes even a look of downright hatred at counsel by a witness whoobviously senses he is getting trapped, can be expressive. So too can abrupt changes in mode of speaking, facial expression or bodylanguage.

The witness who moves from expressing himself calmly to an excited gabble; the witness who from speaking clearly withgood eye contact becomes hesitant and starts looking at his feet; the witness who at a particular point becomes flustered and sweaty, allprovide examples of circumstances which, despite cultural and language barriers, convey, at least in part by his facial expression, amessage touching credibility. [para. 78] [59] I am not persuaded the Reasons reflect an over-reliance on demeanor. Neither, am I persuaded the trial judge erredin not mentioning the possibility J.K. was “putting on

an act” to enhance her credibility. That failure does not necessarily show that HerHonour started with the presumption that J.K. was credible. This was a clear credibility case and it would have been apparent that theappellant was seriously challenging J.K.’s credibility. [60] Fifth, it is contended that the trial judge erred in finding J.K. answered all of the questions asked when she had a farfrom complete memory of the incident itself and repeatedly responded to questions in cross-examination saying that she did not recall.

While there were portions of J.K.’s evidence where she said she had no recollections, that was primarily in relation to the events in herapartment. In other portions of her evidence, she answered the questions asked of her.

[ 61 ] While the failure to appreciate the significance of J.K.’s attempt to get money from the appellant is troubling, I am not persuaded it alone or in conjunction with the other grounds just canvassed show the trial judge started with the presumption of honesty in relation to J.K.’s evidence. Given the text messages this was a very formidable Crown case. It was clearly open to Her Honour to find the appellant’s explanations for the messages were incredible. [ 62 ] In particular, the sequence of the calls and text messages after they left the apartment is telling.

First, it was J.K. who made the first contact after they left her office/home. She called Josie Racco and said she was quitting. Then in an eleven minute span J.K. refers to the appellant’s “advances,” that she wants her pay cheque, the appellant says he is “truly sorry for what [he] said and did” and promises it won’t ever happen again. The appellant’s explanation for what appears to be an apology was that J.K. told him to make it look like it was his fault in case Josie Racco confronted her about what happened.

The appellant then told J.K. there will be no further interference and J.K. refers to it as an “isolated incident.” The appellant’s explanation for asking J.K. to delete the “isolated incident” reference was so he could show his wife that he had done nothing wrong.

That explanation is inconsistent with J.K. asking him to send an earlier text to make it look like it was his fault. .” Later in the texts the appellant refers to himself as “such an idiot.” While the appellant argued the emails and text messages were not devastating for the defence, I disagree. [ 63 ] I am not persuaded Her Honour approached the credibility issue as contended by the appellant. To the extent that the appellant has shown a misapprehension of the evidence by the trial judge or a failure to consider significant evidence, I am not persuaded the verdict would have been any different.

Sentence Appeal [ 64 ] While summarizing the evidence in convicting the appellant Her Honour said J.K. “felt his fingers down her pants in her vaginal area” when he was sticking his tongue down her throat. During sentencing submissions, defence counsel drew Her Honour’s attention to the transcript of J.K.’s evidence in which she said: Peter put his tongue down my throat. I felt his fingers on top of my pants in my vaginal area and pushing my head.

I don’t remember anything else. [ 65 ] Defence counsel also argued that J.K.’s evidence was not clear as to whether or not there was any touching at all in the vaginal area, submitting the sexual assault conviction should therefore be based solely on an unwanted French kiss. Crown counsel advised the trial judge that it was not a skin on skin kind of assault. The Reasons for Sentence [ 66 ] In the first paragraph of the Reasons for Sentence, Her Honour said: On October 31, 2011, following a trial, I found the defendant guilty of a charge of sexually assaulting the complainant.

I found that the defendant, who was the complainant’s employer, had insisting [ sic ] on seeing her apartment and once inside had pulled her forwards [ sic ] him and stuck his tongue down her throat. He put his fingers in her pants in her vaginal area. The complainant had no further memory of what happened. [ 67 ] Her Honour noted the Crown sought a 60 day jail sentence while the defence sought a suspended sentence and probation or if a jail sentence was to be imposed, it should be served conditionally.

Were it not for the appellant’s otherwise unblemished character and stature in the community, the Crown would have sought a longer jail term. [ 68 ] Her Honour found the offence was committed by a person in a position of authority, a statutory aggravating factor on sentence. She rejected the defence position that it was technically a breach of trust, finding the appellant used his position as J.K.’s employer to make it very difficult for her to avoid seeing him outside the office.

He exploited not only his position as her employer but also her desperate need to find suitable accommodation for her and her son to live in, to convince her to let him into the place she was staying. The trial judge regarded J.K. as a very vulnerable victim as she was dependent on the appellant for her job. He was also assisting her in getting accommodation for her and her son. [ 69 ] The trial judge examined a series of cases filed by counsel and concluded a short period of incarceration was required to express society’s abhorrence of the type of conduct.

The real issue was whether or not the sentence should be served in custody or in the community. [ 70 ] After finding that the three preconditions to considering a conditional sentence were satisfied, Her Honour concluded that the appellant’s “use of his position of authority against his employee along with the serious harm done to this particular victim are such aggravating factors that they militate against the imposition of a conditional sentence.

A conditional sentence would not send a strong enough message in this case to the community that this type of behavior is reprehensible and will not be tolerated.” [ 71 ] Later in the Reasons, Her Honour found as follows: With respect to the nature of the offence, it is submitted that this was a fairly minor sexual assault. Specifically, it is submitted that although in my reasons for sentencing I found that the defendant had put his hands inside the complainant’s pants and touched her vaginal area that the evidence was not clear that the touching was inside rather than outside the complainant’s pants.

For the purpose of sentencing, whether or not I misapprehended the evidence in this regard would not affect the sentence. I agree that no major force was used and that the defendant forced his tongue down the complainant’s mouth and touched her vaginal area either inside or outside her clothes.

[72] While examining the aggravating factors, Her Honour addressed the Victim Impact Statement as follows: The complainant filed a Victim Impact Statement. She stated that following the sexual assault she suffered from post-traumatic stressdisorder, depression and many forms of anxiety. She stated that she ended up in hospital on two occasions due to emotional strain and anervous breakdown. As a result of the emotional impact, the complainant stated that she began to stammer and would consistentlystammer for months after the incident and still stammers when she needs to speak about the incident.

This was evident when shetestified during the trial. She also stated that she suffered from constant hives as a result of stress. The defendant submits that the complainant’s Victim Impact Statement was “over the top” and that there were no medical or counselingreports to substantiate the effect on her of the sexual assault as outlined in her statement. If is further submitted that the complainant mayhave an ulterior motive in seeking a civil remedy against the defendant. I do not find anything inappropriate in the complainant’sstatement.

If the defendant did not accept the information in her statement he could have chosen to cross-examine her. I have no doubtthat the impact on her of this incident was profound. In this case, the complainant suffered physical, emotional and financialconsequences as a direct result of the defendant’s sexual assault. She was deeply affected and traumatized by the incident.

Just becausesuch an incident may not have affected another victim as it affected this complainant does not cause the court to question the truthfulnessof the impact this incident had on her. [73] Her Honour imposed a 60 day term to be served in jail and 24 months probation. Analysis [74] The appellant submits the trial judge made several errors in imposing a 60 day jail sentence. He seeks a suspendedsentence and probation or a conditional sentence.

The Crown submits the sentence appeal should be dismissed as the appellant has notbrought himself within the scope of appellate intervention on sentence appeals as found by the Supreme Court of Canada in R. v.Shropshire (1995), (SCC), 102 C.C.C. (3d) 193 and R. v. M.(C.A.) (1996), (SCC), 105 C.C.C. (3d)327. [75] An appellate court can only intervene to vary a sentence where the sentence is unfit, clearly unreasonable, outside theacceptable range, or is a marked, substantial departure from sentences customarily imposed on similar offenders who commit similaroffences in similar circumstances.

In addition, appellate interference is warranted to minimize disparity, or where the sentence is clearlyexcessive or inadequate, if the judge applied the wrong principles, failed to consider a relevant factor or placed an overemphasis onappropriate factors.

Shropshire, M.(C.A.) However, where there are errors in principle or in law, an appellate court must review thesentence without the usual deference. [76] Turning to the areas in which the appellant submits the trial judge erred, first, the appellant contends Her Honourerred in her use of the Victim Impact Statement by relying on unproven medical diagnoses as aggravating facts and in finding defencecounsel could have “chosen” to cross-examine J.K. in regards to the disputed areas.

I agree the trial judge erred. [77] On the date of sentencing submissions, the Crown filed J.K.’s Victim Impact Statement that had been provided to thetrial judge earlier. It is not apparent whether J.K. was at court.

In the statement, J.K. said she had dealt with “post-traumatic stressdisorder, depression and many forms of anxiety on many different levels daily,” that she was in a state of shock for a long period of time,had several emotional breakdowns after the incident, ended up in the hospital on two occasions due to the emotions, strain and thenervous breakdown, had panic attacks, suffered from chronic hives due to the stress, faced severe traumatic stress from the incident andlost her voice due to the emotional impact as she would literally stammer consistently for several months.

She saw and still had aphysiologist and sexual assault therapist. [78] In the course of an exchange with the trial judge regarding trial counsel’s description of the Victim Impact Statementas “over the top,” defence counsel said there was absolutely no medical evidence to support anything [J.K.] says.

Her Honourresponded, “Okay.” [79] In her Reasons for Sentence dealing with the Victim Impact Statement, the trial judge noted the defence counsel’ssubmission that the Victim Impact Statement was “over the top and that there were no medical or counseling reports to substantiate theeffect on her as outlined in her statement. Her Honour then found, “If the defendant did not accept this information in her statement hecould have chosen to cross-examine her.” [80] The trial judge’s use of the Victim Impact Statement reflect two errors.

First, since the Victim Impact Statementcontained medical diagnoses that were relied upon by the Crown and the trial judge as aggravating factors on sentence, those factors hadto be established beyond a reasonable doubt as they were disputed. Since the defence contested the medical diagnoses, in the absence ofadmissible evidence and a finding the aggravating factor was established beyond a reasonable doubt, it could not be relied upon. TheCrown agrees the trial judge should not have relied upon the medical diagnoses in the Victim Impact Statement as the Crown shouldhave applied to establish the aggravating facts.

There was no basis for the admission of the contested medical diagnosis. [81] Victim Impact Statements may be used “[f]or the purpose of determining the sentence to be imposed on an offenderor whether the offender should be discharged pursuant to s. 730 in respect of any offence”. The statement is to include the “harm downto, or loss suffered by, the victim arising from the commission of the offence.” s. 722(1) That does not mean that contested facts can beestablished through a Victim Impact Statement. As Dickson J. held in R. v.

Gardiner (1982), (SCC), 68 C.C.C. (2d) 477at p. 514 (S.C.C.) “facts that justify the sanction are no less important than the facts which justify the conviction” and that “crime andpunishment are inextricably linked.”

[82] While Victim Impact Statements are admissible pursuant to s. 722(1), their use is subject to the general provision ofs. 724(3). The Crown bears the burden of proving any disputed fact and the offender has the right to cross-examine on the evidence theCrown leads. Gardiner is codified in s. 724(3)(

e) of the Criminal Code providing where there are disputed facts “relevant to thedetermination of sentence” the prosecutor must establish, by proof beyond a reasonable doubt, the existence of any aggravating factbefore relying on it in determining the sentence”. There is no principled reason for excluding information in Victim Impact Statementsfrom the general rule stated by Dickson J. and the procedural protections in s. 724(3). R. v.

V.W. (2008), 2008 ONCA 55 , 89O.R. (3d) 323 at para. 27 [83] Here, the trial judge relied on the medical diagnoses in the Victim Impact Statement in aggravation of the sentencewhen that information was disputed by the appellant. Those medical diagnoses revealed very significant medical and emotional impactsfrom the offence that would aggravate the offence and impact on sentence.

In addition, the medical diagnoses was one of the tworeasons given by the trial judge for finding a conditional sentence was not appropriate. [84] The second area of concern with Her Honour’s dealing with the Victim Impact Statement is the finding defencecounsel could have chosen to cross-examine J.K. on her Victim Impact Statement. The Crown concedes Her Honour erred in sayingdefence counsel could have chosen to cross-examine on the statement. I agree. [85] There is no automatic or open-ended right to cross-examine on a Victim Impact Statement.

In V.W., at para. 28, theCourt of Appeal rejected submissions that such a right existed. Conferring an open-ended right to cross-examine might discouragevictims from offering such statements and re-victimize those who did. [86] However, an absolute bar on cross-examination would unduly interfere with offenders’ procedural rights. V.W. atpara. 28.

Instead, the Court of Appeal found there was a threshold “air of reality” burden on the offender to satisfy the sentencing judgethat a fact or facts contained in the Victim Impact Statement are disputed and that the request to cross-examine is not “specious orempty.” This is a low threshold and involves the sentencing judge exercising a discretion to assess the request to cross-examine in lightof the proven facts and evidence led to determine a “just reconciliation between the procedural rights of the offender while stillrespecting the legitimate role of the victim in the sentencing process. [87] While there was no application to cross-examine J.K. if she was at court or for an adjournment to cross-examine heron a later date, neither did the trial judge mention cross-examining J.K. during submissions although the failure to cross-examine appearsto be a reason Her Honour rejected the appellant’s objections to the statement and relied upon its contents.

To the extent that the Crownargued it was not clear whether Her Honour relied on the disputed portions of the Victim Impact Statement, it is clear that the trial judgedid so. Her Honour outlined some of the contents of the report including referencing the medical diagnoses, rejected the defencesubmissions and then found the impact on J.K. was profound with physical, emotional and financial consequences as a direct result ofthe sexual assault. Just because such an incident may not have affected another victim as deeply as it did J.K. did not cause Her Honourto question the truthfulness of the impact.

Given those comments, it is readily apparent Her Honour relied on the entire contents of theVictim Impact Statement, including the medical diagnoses. [88] In addition, since the issue was that there were no medical records or evidence to support the medical diagnosis inthe Victim Impact Statement, it is questionable what cross-examination would have accomplished.

As the Crown conceded insubmissions, the Crown had to bring an application to establish that aggravating factor by introducing medical reports or evidence andfailed to do so. [89] I am persuaded the trial judge erred in her acceptance of the medical diagnoses contained in the Victim ImpactStatement as aggravating factors on sentence.

While there were aspects of the Victim Impact Statement that properly reflected theimpact of the offence on J.K., given the issue was raised by defence counsel and that the trial judge relied upon the impact the offencehad on J.K. in aggravation of the sentence and in rejecting a conditional sentence, the trial judge erred in relying upon unprovencontested factors in aggravation of the sentence. [90] Second, the appellant submits the trial judge erred in relation to the nature of the sexual assault.

After finding in herReasons for Judgment that the appellant placed his hand in J.K.’s pants, counsel directed the trial judge to J.K.’s evidence and the Crowntold the trial judge that this was not a skin on skin assault. Notwithstanding those comments, the Reasons for Sentence started out withthe same error.

Her Honour returned to the nature of the assault, noting that the evidence as to whether the touching was inside oroutside of the pants was “not clear.” With respect, the evidence was clear – the touching was not inside the pants. [91] The issue defence counsel had raised in sentencing submissions, in addition to the fact that there was no evidence theappellant put his hands in J.K.’s pants, was whether there was any touching in the vaginal area.

When Her Honour addressed thesentencing submissions in her judgment, the trial judge appears to have understood the argument that the evidence was not clear abouthow the appellant touched J.K.’s vaginal area but that was not the appellant’s argument.

As regards the appellant’s trial argument thatthe evidence was not clear that there was any touching in the vaginal area, Her Honour found there was touching either over or under theclothing. [92] While the trial judge determined that whether the touching was over of under the pants had no effect on thesentence, it is difficult to see that the nature of the sexual assault would not impact on the sentence.

While it may be that in somecircumstances, the nature of the sexual assault will not impact on the sentence, given the facts in this case, in order to determine theappropriate sentence, it was necessary for the trial judge to determine the nature of the assault and to sentence in accordance with whatwas established beyond a reasonable doubt. [93] Since the evidence was clear on the issue, the trial judge was required to sentence on the basis of the evidence.

Thedistinction between sexual touching over and under the clothing is generally a relevant consideration in assessing the seriousness of thesexual assault in imposing sentence. Both appellate and trial courts refer to whether the touching was over or under the clothing. See: R. v. L.T. [2011] O.J. No. 1650 (C.A.), Sazant v. College of Physicians and Surgeons, 2011 ONSC 323 , [2011] O.J. No. 192(Div.Ct.) at para. 279 and R. v. Escobar, [2008] O.J. No. 1232 (S.C.J.) at para. 23. In this context, the Crown agrees a touching under

the clothes would be a more intrusive sexual assault. From the appellant’s perspective he received the same sentence as he would havereceived had the trial judge been satisfied beyond a reasonable doubt that he committed a more serious sexual assault. [94] In the Crowns written submissions, it was contended that Her Honour explained why it made no difference to thesentence whether the touching was over or under the clothing – because no major force was used. I am not persuaded, the reference to“no major force” was an explanation for why the manner of touching would not impact on the sentence.

That no major force was useddoes not justify a conclusion it made no difference in the sentence. It also ignores that a touching under the clothing is a more invasiveand serious sexual assault. [95] Third, the appellant contends the 60 day sentence was harsh and excessive, that it reflects a marked departure fromthe sentences imposed on similar offenders in similar circumstances. The appellant relied on the following judgments in support of hisargument: R. v. Wismayer, (ON CA), [1997] O.J. No. 1380 (C.A.), R. v. Liu, [1997] O.J. No. 278 (Gen.Div.), R. v.J.B., [1996] O.J. No. 4011 (Gen.Div.), R. v.

Sears, [1992] O.J. No. 3059 (Gen.Div.), R. v. Mintz, [2004] O.J. No. 4223 (C.A.), R. v.Sampson, [2008] O.J. No. 209 (S.C.J.), R. v. J.J.W.L.L., [2004] O.J. No. 3137 (S.C.J.), R. v. Kang, [2004[ O.J. No. 3629 (O.C.J.), R. v.D.S., [2005] O.J. No. 3928 (S.C.J.), R. v. Casciaro, 2006 ONCJ 422 , [2006] O.J. NO. 4501 (O.C.J.), R. v. L.M., [2006] O.J.No. 1464 (O.C.J.) R. v. Tulk, [2000] O.J. No. 4315 (O.C.J.), R. v. Pecoskie, [2000] O.J. No. 1421 (S.C.J.), R. v. Nikkanen, (ON CA), [1999] O.J. No. 3822 (C.A.), R. v. J.C.T., (ON CA), [1998] O.J. No. 1688 (C.A.) and R. v.Ladouceur, [1998] O.J.

No. 1680 (C.A.) The cases reveal sentences ranging from discharges, to suspended sentences and probation toconditional sentences for sexual assaults, some involved employers (Kang and Pecoskie) and some where the sexual assaults were moreserious. [96] Ms. Frew submitted that the sexual assault sentencing cases reflect a very wide range of dispositions.

She referred tothose filed by the Crown on sentencing and relied upon by the trial judge that I will refer to later as showing the 60 day sentence was inthe range of appropriate sentences. [97] While the authorities relied upon by the appellant show that in numerous similar cases, non-custodial terms wereimposed, there are cases where jail sentences were imposed.

Given the very wide range of sentences for similar offences, I am notpersuaded that on the basis of approach taken by the trial judge the sentence is clearly outside the range. [98] Fourth, it is contended the trial judge erred in finding the offence involved a breach of trust because the appellantwas J.K.’s employer. Mr. Gold argues there was no breach of trust as there was no legal trust involved in the appellant and J.K.’srelationship.

He submits s. 718.1 makes it an aggravating factor if there is evidence the offender, in committing the offence, abused aposition of trust or authority in relation to the victim. It was not as if the appellant told J.K. that she had to engage in sexual conduct orshe would lose her job. The fact the appellant was J.K.’s employer had nothing to do with the sexual assault. His position as heremployer was not used in the commission of the offence. He was simply acting as a broker trying to get her accommodations.

TheCrown submits there was a breach of trust by a person in authority because the appellant was J.K.’s employer. [99] Two issues arise from that finding: first, did the offence involve a breach of trust by a person in a position ofauthority?

Second, if it did, did the trial judge err in her use of that factor? [100] Dealing with the first issue, trial counsel conceded it was “technically a breach of trust.” The trial judge rejected the“technical” aspect of the submission, finding the appellant was J.K.’s employer and that he took advantage of her desperate need to findsuitable accommodations for her and her son to convince her to let him into the place where she was staying. [101] While the offence was not a workplace sexual assault on an employee, one where the offender linked the agreementto sexual conduct to J.K.’s continued employment, and the appellant was not in a legal position of trust, I am not persuaded the trialjudge erred in characterizing the offence as involving an abuse of a position of authority.

No doubt, the offence was not committed inthe workplace or during J.K.’s employment. At the time of the offence, the appellant was dealing with her as a broker trying to get heraccommodation. However, as J.K.’s employer the appellant was clearly in a position of authority over her. He knew through heremployment of her housing problems and need to move. That the incident occurred outside work and working hours, does not mean theappellant was no longer J.K.’s employer.

I am not persuaded that because the interactions occurred in relation to J.K.’s office/ home oran apartment she was going to rent removed that position of authority. Put differently, it is not possible to excise the employer-employeerelationship from this particular equation. There was at very least an abuse of a position of authority component to the offence that isaggravating. That it would have been more aggravating had the appellant directly linked J.K.’s participation in sexual conduct to heremployment would have been more aggravating does not remove the breach.

However, to the extent that the trial judge appears to basethe breach of a position of authority finding on J.K.’s vulnerability, that in itself is not a breach of a position of trust. [102] Turning to the second issue, the trial judge’s use of the appellant’s breach of trust, Her Honour found: The defendant was the complainant’s employer and therefore there was a breach of trust which Parliament has recognized in s. 718.2(a)(iii) of the Criminal Code is an aggravating factor on sentence and that it requires an increase in the sentence. [103] I am not persuaded the trial judge erred in those comments with one important qualifier – an increase in sentence doesnot mean a sentence served in jail is required if a breach of trust is established. [104] While I am not persuaded Her Honour erred in finding the appellant was a person in authority in relation to J.K., I ampersuaded the trial judge erred in her reliance on the medical evidence from the Victim Impact Statement, in finding defence counselcould have cross-examined in relation to the disputed areas of the Victim Impact Statement, and in finding it made no difference to thesentence whether the touching was over or under the clothing.

On any one of these bases, it follows that the trial judge’s determinationof the appropriate sentence does not attract the usual deference on appeal. R. v. Codner 2013 ONCA 138. [105] First, examining the aggravating factors. While not a pure breach of trust case, it is an aggravating factor that the

offender abused his position of authority in relation to J.K. in committing the offence. The offence was committed in J.K.’s home. J.K.was vulnerable in terms of needing a job and place to live. In addition, the offence went beyond an unwanted kiss. The offence also hasto be viewed in the context of the appellant’s inappropriate comments to J.K. in the workplace.

Finally, notwithstanding the trial judge’serrors in relation to the Victim Impact Statement, there were admissible impacts on J.K. from the offence including that she could nolonger remain at her employment with the Raccos, and it was open to Her Honour after seeing and hearing J.K. to conclude that heremotional state testifying and difficulty speaking were not just symptoms exhibited while testifying – they were consistent with theimpact of the offence as reflected in the admissible portions of the Victim Impact Statement. [106] There are also mitigating facts including the appellant was a 49 year old first offender, he had taken steps through a“life coach” to address his depression issues, he was no longer with his wife, he had added support payments, he lost his employment andwas unemployed for a period of time before obtaining new employment, the impact on his reputation in the community had beensignificant because the case attracted publicity, he has made significant contributions to this community, and he is a person of otherwisegood character with family obligations.

I agree with the trial judge`s finding that the appellant was not a risk to re-offend. Severalreference letters spoke in glowing terms of the appellant as a person and contributor to his community. [107] That there is no remorse shown is the absence of a potentially mitigating factor and not one in aggravation. Similarly,that he does not have the mitigating effect of a guilty plea is the absence of a potentially mitigating factor, and not one in aggravation. That his evidence was rejected is also not an aggravating factor on sentence. R. v.

Kozy (1990), 74 O.R. (3d) 545 (C.A.) [108] As regards the purposes and principles of sentencing, the most important considerations are general deterrence to senda clear message to employers who would be tempted to engage in unwanted sexual conduct with employees. In terms of the messagethat a sentence sends, it is not just the sentence upon which the informed member of the public should consider the message. Themessage here includes the corollary impacts of the offence noted above. [109] The sentence also has to address denunciation, reflecting society’s condemnation of the conduct.

The sentence shouldalso take into consideration specific deterrence which appears to have been addressed to date with the appellant’s arrest, trial andconvictions. His rehabilitation must also be considered. He has reached out for assistance in that regard. [110] I also have to take into consideration that sentences imposed on similar offenders who commit similar offences insimilar circumstances should be similar. Turning first to those relied upon by the Crown and referenced in the trial judge’s reasons forsentence, in R. v.

R.A.R., 2000 SCC 8 , [2000] 1 S.C.R. 163 the Supreme Court of Canada restored the 12 month jail sentenceimposed at trial for sexual assault and two counts of assault in the following circumstances: In November of 1990, the [respondent] was harnessing a horse in his barn when he cornered the complainant, placed his hands inside herpants and pulled her pubic hair. He then directed her into a box stall where he ordered her to lie down on the straw. He then proceeded totake off her pants and inserted his finger in her vagina, told her not to tell anyone and departed for breakfast.

The second incident occurred in February of 1991 in the barn when the complainant was putting a halter on a horse. The [respondent]pulled on the halter so that she stumbled and fell. He placed one arm around her neck and put a finger up each of her nostrils and pulledquite hard causing her nose to bleed. The third assault occurred in the summer of 1991, when the [respondent] came into the garden where the complainant was working,telling her it was time to eat. He then grabbed her from behind by her wrists, had his two sons and a friend grab her feet and carry her tothe house.

When she struggled, the boys let go of her feet but the [respondent] dragged her by her wrists across a [page168] graveldriveway. During this incident, he told the [complainant] that she was fat and he laughed. He also told her that she had to go to eat whenhe told her. [111] The majority found the Court of Appeal failed to give “sufficient account” to the key aggravating factor, the abuse of aposition of authority, as well as the violent and demeaning nature of the acts, the naiveté and vulnerability of the complainant and theimpact on her career and family life.

Those offences were committed on three separate occasions in the workplace and were far moreintrusive. [112] In R. v. Khiara, [2004] O.J. NO. 730 (S.C.J.), Speyer J. upheld an 8 month sentence on the manager of a fast foodrestaurant who was convicted of sexual assault. A finding of guilt on a count of sexual interference was stayed. After the midnightclosing only the manager and a “naïve and innocent” 16 year old teenager remained at the restaurant as the manager had offered him aride home. Thiara went to his car and got a pornographic movie, placed it in the VCR and asked the teenager to watch it.

While doingso he moved his hand up the complainant’s leg, touched his penis over the clothing, and tried to have the teenager touch his peniswithout success. He also asked the employee to masturbate him but he refused. As the employee walked away the manager grabbedhim by the neck and kissed him three times on his neck. The trial judge found that offender was a risk to re-offend. [113] In R. v. Rae, [2007] O.J. No. 1832, (S.C.J.) O’Connor J. upheld a 90 day sentence for a workplace sexual assaultconviction. The majority of the judgment deals with the conviction appeal.

The facts are not included other than it appears to have beenat least the fondling of the complainant’s breast. [114] The appellant relies on the cases noted in para. 95. I have read all of the cases and do not propose to review each casein detail. Briefly, in Wismayer, a 12 month conditional sentence was imposed where the offender touched the vagina of an 8 to 9 yearold girl. In Liu, an employer received a suspended sentence for fondling an employee shoulder down to her arms and then locking thedoor and exposing his genitals. In Sampson and Kang, conditional sentences were imposed where intercourse occurred.

Finally, in

Pecoskie, an employer was convicted after a jury trial of having non-consensual intercourse with an employee who was intoxicated andreceived a conditional sentence that was affirmed on appeal. [115] A review of the case law shows the range for similar offences is from conditional sentences to short reformatoryterms. I find that a conditional sentence is within the range of appropriate sentences for this offence for this offender.

Identifying therange does not fix the sentence as the aggravating and mitigating factors may take the sentence above or below the range or informwhere within the range the sentence should be. R. v. Hamilton (2004), (ON CA), 72 O.R. (3d) 1. [116] I turn next to determine whether there should be a suspended sentence and probation, a conditional sentence or a termserved in jail.

I am not persuaded that a suspended sentence and probation would be consistent with the purposes and principles ofsentencing given the aggravating facts. [117] What remains is to determine where the sentence should be served and its duration. In accordance with the directionsfrom the Supreme Court of Canada in R. v. Proulx (2000), 2000 SCC 5 , 1 S.C.R. 61, the first step is to determine whether asuspended sentence and probation as well as a penitentiary term can be eliminated. They can.

A penitentiary term is not sought and asuspended sentence has been eliminated from consideration. [118] The second step is to determine whether the three pre-conditions to imposing a conditional sentence are met. Theyare. There is no minimum sentence, the fit sentence is less than two years and permitting the appellant to serve the sentence in thecommunity would not endanger the community. In these circumstances, trial judges are directed that they must give seriousconsideration to imposing community based sentences.

Proulx, at para. 127, #7. [119] The problematic element is whether a conditional sentence would be consistent with the purposes and principles ofsentencing. There is neither law nor directions from appellate courts that all offences involving a breach of a position of authority or trustmust result in a term served in jail although it is a significant factor on sentence. [120] Conditional sentences can address general deterrence and denunciation, particularly where the terms place significantrestrictions on the offender’s liberty and involve a contribution to the community. As the Court of Appeal held in R. v.

Jocko 2010ONCA 452: [69] A conditional sentence is available in principle, though not always in practise, for all offences in which the statutoryprerequisites are met.

Apart from offences excluded by the terms of s. 742.1, for example offences punishable by a minimum term ofimprisonment, no specific or category of offence is presumptively excluded from the conditional sentence option: Proulx at paras. 79 –81. … [71] Depending on the severity of the conditions imposed, a conditional sentence may nonetheless be reasonable even wheredenunciation and deterrence are the predominant sentencing objectives: Wells at para. 35. A conditional sentence can achieve bothpunitive and restorative sentencing objectives.

As Lamer C.J. explained in para. 100 of Proulx: To the extent that both punitive and restorative objectives can be achieved in a given case, a conditional sentence is likely a bettersanction than incarceration. Where the need for punishment is particularly pressing, and there is little opportunity to achieve anyrestorative objectives, incarceration will likely be the more attractive sanction.

However, even where restorative objectives cannot bereadily satisfied, a conditional sentence will be preferable to incarceration in cases where a conditional sentence can achieve theobjectives of denunciation and deterrence as effectively as incarceration. This follows from the principle of restraint in s. 718.2(

d) and(e), which militates in favour of alternatives to incarceration where appropriate in the circumstances. [72] A conditional sentence with house arrest carries a substantial stigma for the offender, especially in a smaller, tightly-knitcommunity where everybody knows everybody else and their business.

The nature and extent of denunciation achieved by a conditionalsentence will vary significantly, depending upon the circumstances of the offender, the nature of the conditions imposed, the communityin which the sentence will be served and the knowledge of the offender’s crime within that community: Proulx at para. 106. [121] In some large communities the vast majority of criminal offences are rarely reported in the media so the impact ofbeing found guilty and convicted can be largely unknown in the community.

From the findings of the trial judge, it is apparent that thisconviction is well known in the community in which the appellant lives and works although it is not a small community. That in itself isa significant public statement addressing general deterrence and denunciation. The impact on the offender to date has been significant inhis community and personal life. [122] In examining the sentence, I have also taken into consideration that the case has been outstanding for 2½ years withno indication the appellant has contributed to the delay.

There is no indication that he has had any further involvement with the law. Inaddition, while not a significant factor, rendering the judgment on appeal has taken longer than most

summary conviction appeals. I alsotake into consideration the brief duration of the offence and that the touching was over the clothing, a fact I consider relevant in fixingthe appropriate sentence. That the touching was not more intrusive and the duration brief are not mitigating factors. Rather, they reflectthe absence of potentially aggravating ones and inform the examination of other cases.

[ 123 ] I also take into consideration, that a conditional sentence can be of longer duration than a jail sentence and impose restrictions for a longer period of time. [ 124 ] In all the circumstances, I am persuaded that a 6 month conditional sentence would be consistent with the purposes and principles of sentencing, particularly with restrictive terms so that it is not “life and business as usual” for the offender.

While there are significant aggravating factors, I am persuaded that the impacts that have already befallen the appellant, while not determinative, contribute to making incarceration unnecessary in order to achieve general deterrence or denunciation. Sentencing, Eight Edition, Clayton Ruby [ 125 ] The sentence will include house arrest and a community service component. The balance of the terms will be addressed with counsel in court when the judgment is released.

Conclusion [ 126 ] The conviction appeal is dismissed. [ 127 ] The sentence appeal is allowed and the appellant sentenced to a six month conditional sentence. ___________________________ DURNO, J. Released: March 22, 2013 CITATION: R. v. Racco, 2013 ONSC 1517 COURT FILE NO.: 192/11 DATE: 20130322

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Respondent - and – PETER RACCO Appellant [On appeal from the conviction and sentence by the Honourable R. Zisman, dated October 31, 2011 and April 13, 2012] THIS JUDGMENT IS SUBJECT TO A PUBLICATION BAN REGARDING THE NAME OF THE COMPLAINANT OR ANY INFORMATION THAT MIGHT TEND TO IDENTIFY HER AMENDED JUDGMENT AS OF MARCH 22, 2013 DURNO, J. Released: March 22, 2013