Ontario Court of Appeal refuses to overturn sexual assault conviction against employer

Appellant argued trial judge failed to properly consider evidence

Ontario Court of Appeal refuses to overturn sexual assault conviction against employer

The Court of Appeal for Ontario has affirmed a trial court decision convicting an employer of three counts of sexual assault after he failed to prove that he was physically incapable of committing the offences against his female employee.

In R. v. M.F., 2022 ONCA 372, the complainant worked for the cleaning company the appellant and his wife owned. She alleged that the appellant sexually assaulted her on three separate occasions in Sept. 2016.

During the trial, the appellant’s wife testified as a defence witness. She provided evidence that the appellant had had erectile dysfunction since 2009. In addition, the family doctor testified that the appellant had been diagnosed with type 2 diabetes, which likely caused his erectile dysfunction, and he was seeing the appellant for a shoulder injury between Sept. 2016 and Jan. 2017.

The trial judge convicted the appellant on all three counts of sexual assault and sentenced him to seven and a half years. He found that the appellant’s wife was not a credible witness, and the evidence presented by the doctor failed to support a finding that the appellant was physically incapable of sexually assaulting the complainant.

In his appeal, the appellant argued that the trial judge failed to properly consider the evidence that he was physically incapable of committing the sexual assaults due to his shoulder injury and erectile dysfunction.

The Court of Appeal denied the appellant’s appeal and upheld his sexual assault conviction.

As to the appellant’s shoulder injury, the court agreed with the trial judge’s finding that the evidence submitted by the doctor did not support the premise that the appellant would have had problems bending over or getting on his knees or had suffered from any limitations to his full range of motion during the sexual assaults.

“The trial judge did not misapprehend the evidence on this issue,” the court wrote. “Based on the doctor’s testimony regarding the appellant’s condition on September 19, 2016, which was close in time to the assaults, it was open to the trial judge to find that the doctor’s evidence did not raise any reasonable doubt regarding the appellant’s physical ability to commit the offences.”

On the issue of erectile dysfunction, the appellant claimed that the trial judge failed to consider his wife’s evidence that they had been sexually inactive since 2009.

According to the court, it was evident from the trial judge’s credibility finding that he did not believe the wife’s evidence because she fabricated evidence on the issue of whether the appellant would have had an opportunity to be alone with the complainant.

“Given this credibility finding, the trial judge was not required to address and explain why he rejected each aspect of the wife’s evidence, including her evidence about her sexual relations with the appellant,” the court wrote. “In any event, the wife’s evidence that she did not have sex with the appellant since 2009 did not contradict the complainant’s evidence that the appellant sexually assaulted her.”

The court also found that while the trial judge considered that type 2 diabetes could cause erectile dysfunction, the evidence failed to prove that the appellant had erectile dysfunction.

“Ultimately, the trial judge had no direct credible evidence that the appellant suffered from erectile dysfunction,” the court wrote. “In contrast, he had direct evidence from the complainant, who he found credible, that the appellant sexually assaulted her.”

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