



WARNING

The President of the panel
    hearing this appeal directs that the following should be attached to the file:

An order restricting
    publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or
    (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of
the Criminal Code
provide:

486.4(1)       Subject
    to subsection (2), the presiding judge or justice may make an order directing
    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in
    proceedings in respect of

(a)     any of the
    following offences;

(i)      an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED: S.C.
    2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

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

(2)     In proceedings
    in respect of the offences referred to in paragraph (1)(a) or (b), the
    presiding judge or justice shall

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

(b)     on application
    made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to
    subsection (2.2), in proceedings in respect of an offence other than an offence
    referred to in subsection (1), if the victim is under the age of 18 years, the
    presiding judge or justice may make an order directing that any information
    that could identify the victim shall not be published in any document or
    broadcast or transmitted in any way.

(2.2) In proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible,
    inform the victim of their right to make an application for the order; and

(b) on application of
    the victim or the prosecutor, make the order.

(3)     In proceedings
    in respect of an offence under section 163.1, a judge or justice shall make an
    order directing that any information that could identify a witness who is under
    the age of eighteen years, or any person who is the subject of a
    representation, written material or a recording that constitutes child
    pornography within the meaning of that section, shall not be published in any
    document or broadcast or transmitted in any way.

(4)     An order made
    under this section does not apply in respect of the disclosure of information
    in the course of the administration of justice when it is not the purpose of
    the disclosure to make the information known in the community.
2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b);
    2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s.
    18..

486.6(1)       Every
    person who fails to comply with an order made under subsection 486.4(1), (2) or
    (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2)     For greater
    certainty, an order referred to in subsection (1) applies to prohibit, in
    relation to proceedings taken against any person who fails to comply with the
    order, the publication in any document or the broadcasting or transmission in
    any way of information that could identify a victim, witness or justice system
    participant whose identity is protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Massey-Patel, 2021 ONCA 860

DATE: 20211130

DOCKET: C67596

Strathy C.J.O., Hourigan and
    Paciocco JJ.A.

BETWEEN

Her
    Majesty the Queen

Respondent

and

Timothy
    Massey-Patel

Appellant

Gregory Furmaniuk, for the respondent

Thomas M. Hicks and Angela
    Ruffo, for the appellant

Heard: November 23, 2021

On appeal from the conviction entered on
    May 17, 2019

by Justice Feroza Bhabha of the Ontario Court of Justice.

REASONS FOR DECISION

OVERVIEW

[1]

The appellant, Timothy Massey-Patel, was working
    as a dancer at a male strip club. The complainant, who was attending a
    bachelorette party, hired the appellant for a private dance in a small room in
    the V.I.P. area of the club. Shortly after leaving the V.I.P. area, the
    complainant made allegations that led to a sexual assault charge against the
    appellant. The appellant was tried and convicted on that charge before the
    Ontario Court of Justice.

[2]

At the trial the complainant testified that the
    appellant touched her sexually and inserted his finger into her vagina without
    her consent. She also testified that the appellant briefly inserted his penis
    into her vagina, again without her consent. She said that she did not call out
    for help or vocalize her lack of consent to any of this touching because she was
    frozen in shock and felt powerless.

[3]

The appellant did not testify. In a police
    statement that was admitted into evidence the appellant initially denied that
    the alleged sexual contact took place. He ultimately admitted to the police
    that he had in fact digitally penetrated the complainant but described her as
    an enthusiastic participant and he gave details of her active participation. He
    denied penetrating the complainants vagina with his penis but acknowledged
    that his penis may have been in the general area of the complainants vagina.

[4]

The trial judge did not believe the appellants testimony
    about the complainants consent and was not left in reasonable doubt by that
    testimony. She believed beyond a reasonable doubt the complainants testimony that
    she had not consented to the sexual activity with the appellant. Although she had
    a reasonable doubt about whether the appellant penetrated the complainant with
    his penis, the trial judge found beyond a reasonable doubt that the sexual
    touching and digital penetration occurred. Although it was not argued before
    her, the trial judge noted that a belief in consent defence was not available
    to the appellant because he had not taken reasonable steps to confirm that the
    complainant was communicating consent. Accordingly, she found the appellant
    guilty of one count of sexual assault.

[5]

The appellant appeals that conviction. At the
    end of the oral argument, we dismissed the appeal for reasons to follow. These
    are our reasons.

ANALYSIS

The verdict was not unreasonable

[6]

The appellant argued that, given her reasonable
    doubt about whether the appellant penetrated the complainant with his penis, it
    was unreasonable for the trial judge to have found the appellant guilty of
    sexually assaulting the complainant by touching and digitally penetrating her
    without consent. The appellant submits that these outcomes are irreconcilable.
    We disagree.

[7]

When the trial judges decision is read as a
    whole, it is clear that her reasonable doubt about whether the appellant
    penetrated the complainant with his penis did not arise from credibility
    concerns about the complainant, whose evidence she believed. Instead, the trial
    judges reasonable doubt relating to whether the appellant penetrated the
    complainant with his penis arose from reliability concerns that in no way
    impugned the credibility of the complainants testimony.

[8]

As the trial judge explained, her reasonable
    doubt about the alleged penile penetration arose from the totality of the
    evidence. That evidence included testimony by the complainant that she was in
    shock, an admission made by the appellant to the police that his erect penis
    was near her vaginal area, and the complainants uncertainty about whether the
    appellant ejaculated. In these circumstances it was reasonable for the trial
    judge to have been left in reasonable doubt by the appellants denial that he
    had penetrated the complainant with his penis, while at the same time accepting
    both the appellants admission that he had digitally penetrated the complainant
    and the complainants testimony that she did not consent.

[9]

Nor was it unreasonable for the trial judge to
    have rejected the appellants police statement that the complainant was an
    active participant in the sexual contact that occurred. The appellants account
    was discredited by the fact that, during the course of that statement, his
    version of events moved from indignant denial of sexual contact to admitting
    digital penetration. Quite simply, he lied about the core allegation. Moreover,
    the appellant told the police that when he touches his clients, he stops if
    they say no. The trial judge was entitled to rely on this admission as
    discrediting his account of the conversations he claimed to have had with the
    complainant about her consent. The trial judge was also entitled to find that
    the appellant offered a self-serving and exaggerated account of how visible the
    inside of the booth was to those in the area. Moreover, the trial judge was
    entitled to rely on the complainants abrupt departure from the V.I.P. booth,
    and testimony from her and her friends about her distraught condition, as
    supportive of her account.

[10]

Simply put, we see no merit in the unreasonable
    verdict appeal.

The trial judge did not err in her assessment
    of the evidence of the cashier and the club manager

[11]

The trial judge accepted evidence that when she
    left the V.I.P. area the complainant remarked something to the effect of, what
    was supposed to happen in there, and that she was distraught as she approached
    her friends. The appellant argues that the trial judge erred in accepting this
    evidence in the face of the testimony of the cashier to the contrary. We
    disagree. There was evidence before the trial judge that the cashier was
    distracted by other patrons, and that the club was noisy. In these
    circumstances, the trial judge was entitled to conclude that the cashier failed
    to hear the statement and was not in a position to observe the complainants distraught
    condition described by the complainant and her friends. The trial judge was
    also entitled to find that the cashier did not have a complete memory of
    events, given that his testimony that the complainant did not pay any money
    before leaving the V.I.P. area was contradicted by other witnesses.

[12]

The trial judge was also entitled to reject the
    testimony of the club manager that the complainant did not become upset until
    she failed to pay the required fee, at which point, he said, she decided to
    begin the waterworks". The trial judge found the club manager to be
    partial against the complainant, dismissive of her demeanour and her complaint,
    and disinterested in inquiring into what happened. As explained immediately below,
    the trial judge also found that he gave misleading evidence about the limits of
    appropriate conduct within the club.

[13]

We are not persuaded that the trial judge erred
    in assessing the evidence of the cashier and the club manager.

The trial judge did not rely on impermissible
    stereotypes

[14]

We reject the submission that the trial judge
    engaged in impermissible stereotypical reasoning. None of the inferences drawn by
    the trial judge were inappropriate.

[15]

Specifically, the trial judge relied on her
    observations about the sexualized culture of the club in discounting the
    managers testimony that the kind of sexual activity complained of would not be
    tolerated. She commented on the parade of men in various states of dress and undress
    to explain the complainants apparent confusion about how the appellant was
    dressed. And she referred to the complainants accurate observation of the
    copious amounts of condoms within the V.I.P. area as an illustration of the
    complainants capacity to observe matters of detail despite her alcohol
    consumption. Simply put, there is no basis for concluding that the trial judge
    relied on the sexualized atmosphere of the club as proof that the sexual
    assault occurred, or to support the improper inference that those who would
    work in such a place are less worthy of belief.

[16]

Similarly, there is no basis for concluding that
    the trial judge relied on the appellants general routine during private dances
    to draw impermissible propensity inferences or to find that he is not of
    credible character. She referred to the appellants general routine during private
    dances because the appellant relied upon that routine in recounting his version
    of events, and because his description of his routine included his admission
    that he would determine whether a client was consenting by touching her and
    gauging her reaction. There is simply no basis for concluding that the trial
    judge inferred that as a sex worker, the appellant is less worthy of belief, or
    more likely to commit sexual offences.

[17]

Nor is there any basis for concluding that the
    trial judge relied on the stereotype of the sexually naïve woman to bolster the
    complainants credibility or to undermine the appellants credibility. Instead,
    the trial judge accepted the complainants direct testimony that she was
    shocked at what was taking place, and that based on her one prior visit to a
    strip club where she had gone for a private dance, she was not expecting the
    kind of sexual contact that she alleged. These were findings the trial judge
    was entitled to make.

[18]

We also reject the appellants contention that
    the trial judge disregarded evidence about the complainants conduct leading up
    to the alleged assault. The trial judge was acutely aware that while attending
    a bachelorette party at a strip club, and after seeing fully naked men, the complainant
    purchased a lap dance and voluntarily entered a private booth with the
    appellant. The trial judge recounted all of this in her reasons for judgment. Although
    a trial judge must consider the factual context within which allegations are
    made, as the appellant conceded in oral argument, none of these circumstances
    required the trial judge to have a reasonable doubt relating to the complainants
    denial of consent. The complainant described her state of mind and the trial
    judge believed her. No issues of stereotype or double standards arise.

[19]

Finally, there is no merit in the appellants
    claim that the trial judge evoked the stereotype that sexual activity with a
    sex worker is naughty and something to be ashamed of. It was the appellant who
    advanced this theory by suggesting that the complainant concocted the sexual
    assault allegation because she regretted having let things go so far and had brides
    remorse. The trial judges conclusion that if the complainant had indeed been remorseful,
    she could easily have kept her conduct secret by saying nothing as the events
    took place in a private area, was a reasoned and appropriate basis for
    rejecting the defence theory as implausible.

[20]

We reject the suggestion that the trial judge
    employed impermissible stereotypes.

The trial judge did not apply uneven scrutiny

[21]

We are thoroughly unpersuaded that the trial
    judge applied uneven scrutiny to the evidence. As we have explained, she gave
    cogent and compelling reasons for rejecting the credibility of the exculpatory
    claims the appellant made in his police statement. We can find no basis for
    concluding that the trial judge applied a different standard in finding that
    the comparatively minor imperfections in the complainants evidence did not
    undermine her credibility.

[22]

We reject this ground of appeal.

CONCLUSION

[23]

The appeal is therefore dismissed.

G.R. Strathy C.J.O.

C.W. Hourigan J.A.

David M. Paciocco J.A.


