Warning: This article contains details of sexual assault. Anyone who is at risk of sexual violence or has experienced sexual violence can call the Guelph-Wellington Women in Crisis 24-hour helpline at 1-800-265-7233.
GUELPH – A longtime staff member at a Fergus pub has been found guilty of sexual assault.
Robert O’Brien was charged with four counts of sexual assault in June 2023 and found guilty of two counts this week.
He was found not guilty of one count and another was dropped before the judgment. Sentencing is set for September.
O’Brien, a server and customer relations representative at the Goofie Newfie Pub and Grill, was accused by a female employee of sexual assault on four occasions between 2021 and 2023.
The complainant’s identity is protected under a publication ban.
She was in attendance during the ruling on June 16, supported by about two dozen people, many wearing teal ribbons to represent sexual violence.
Among the attendees was Haley Baumber and her family.
O’Brien was charged with sexually assaulting Baumber in 2016. A year later he pleaded guilty to lesser charges of assault.
Justice Nicole Redgate, the judge presiding over O’Brien’s recent matter, said she assessed the credibility and reliability of evidence presented during the trial.
Taking place over six days between Oct. 16 and March 13, the trial involved three witnesses, including the complainant but not O’Brien.
On the bus
Redgate said the complainant described O’Brien sexually assaulting her on a bus ride from Toronto to Fergus after a Goofie Newfie staff holiday party in January 2023.
The complainant testified that, without consent, O’Brien wrapped his arm around her, slid his hand under her pants to touch her “bum” and under her bra to grab and pinch her breasts.
She said his hand moved towards her groin, but he stopped when someone at the other end of the bus called out to him, asking him to fetch a drink.
The complainant’s “account of what O’Brien did to her on the bus was reliable,” the judge said, and her memory is credible.
The complainant testified she responded to the assault by freezing up and hoping it would be over soon.
Redgate said it is not fair to expect victims to respond certain ways while experiencing violence, noting “myths and stereotypes” around rape and rape victims “have no place in criminal court.”
The defence didn’t present a witness, Redgate noted, which is not required and did not impact her conclusion.
The Crown presented a witness whose testimony both contradicted and corroborated the complainant’s account at different times.
The defence argued the allegation lacked the necessary details to meet the burden of proof and had “discrepancies that cannot be reconciled.”
The complainant’s memory was unreliable, the defence alleged, and she had financial motivation to lie about O’Brien due to a related civil suit.
Redgate said the complainant was “cross examined thoroughly” regarding motive and testified she was not motivated to lie for financial gain, but to tell the truth to stop O’Brien from doing it again.
“The fact that she has filed a civil suit seeking damages for Mr. O’Brien’s behaviour does not detract (from the evidence),” Redmond said.
While Redgate acknowledged discrepancies between the two accounts, she said they were “not incompatible” and did not reduce the complainant’s reliability or credibility.
Victims cannot be expected to remember specifics of insignificant events following traumatic incidents, she noted, and the complainant admitted struggling to recall certain details because she was distracted by her disbelief about what O’Brien did.
And though the complainant did admit to consuming alcohol throughout the day, she had no lapses in memory and her reliability was not compromised, Redgate said.
During the trial, the defence attorney presented a photo which showed her seated at a table with a group, including O’Brien, whereas she had testified she was at a different table, waiting for a ride home.
The photo also shows her smiling and laughing, while she claimed to be upset.
The complainant acknowledged she was mistaken about not sitting at the same table as O’Brien, but attested the photo did not reflect her true feelings – “just what she was displaying to the world at that moment,” Redgate said.
And the judge said the inaccuracy about sitting at O’Brien’s table was not dishonesty or an attempt to mislead the court.
Regarding the incident on the bus ride, Redmond expressed satisfaction the complainant was truthful in her account of O’Brien’s unwanted touching.
The judge said it was sexual and happened without consent, therefore O’Brien was guilty of sexual assault.
At the bar
O’Brien was also found guilty of a sexual assault that took place at the Goofie Newfie in August or September of 2022.
The complainant said O’Brien came up behind her when she was standing at the bar, put his hand on her lower back, and slowly moved it down until his hand was on her buttocks.
“He did not say anything before or as he touched her,” Redgate recounted from the testimony.
“It made her feel uncomfortable – she did not want him to touch her … and had done nothing to suggest that she … wanted him to touch her.
“After he touched her, [she] turned around and gave him a reaction, as she was surprised that he had done that,” Redgate continued. “She testified that he apologized.”
The defence described the testimony as a vague allegation lacking sufficient detail, Redgate said.
The complainant could not recall some specifics such as who was in the pub and whether anyone could have seen the assault – details Redgate called “peripheral matters that do not go to the core of the allegation.”
Details of how and where the touching happened were not contradicted by other evidence or undermined by cross examination, the judge noted.
She said the complainant was “unshaken in evidence that Mr. O’Brien apologized after the touch, which supports the evidence that the touch happened and that Mr. O’Brien knew he made contact.”
However, Redgate said “given the limited nature of the apology,” it does not shed light on whether the touch was intentional or accidental.
The judge added there was nothing to suggest the touch was caused by being jostled together in a crowded space, as it happened before the dinner rush.
And it wasn’t fleeting or a brush of the hand, as it progressively moved downward from her back.
The judge concluded the touch did happen and was intentional, nonconsensual and sexual in nature.
On the boardwalk
Redgate found O’Brien not guilty of a third count of sexual assault in an incident on the boardwalk outside the Goofie Newfie on Oct. 31, 2021.
The complainant was working that evening and O’Brien was socializing at the pub.
She told the court she offered to drive O’Brien, his wife and their friends home as she was sober and they weren’t.
On their way to the parking lot, she said O’Brien bumped into her, propelling her forward, and his “hand grazed her bum,” Redgate recounted.
It was not a slap and his hand didn’t linger for more than two seconds, she noted.
The complainant testified O’Brien commented to his friend: “something like ‘I’m not supposed to be touching waitresses,’” Redgate said.
“She was surprised but decided he was intoxicated and maybe lost his balance.”
Redgate said the complainant testified she then drove O’Brien, his wife, and three of their friends home in a truck before returning to the Goofie Newfie to finish her shift.
Jonathan Karn, who knows both the complainant and O’Brien, testified he had “no recollection” of the incident on the boardwalk.
He also testified O’Brien was not in the truck on the ride home – it was Karn, his wife and two other friends, Redgate said.
But, she noted, “Karn admitted he had been drinking alcohol that evening (from about 9pm until 12 or 1am) … thus his ability to accurately observe, recall and recount was compromised.”
Redgate added, “Given the close relationship which he presented in evidence, he was biased and attempted to mislead the court about O’Brien’s presence in the truck and on the boardwalk.”
The complainant, Redgate said, was “reasonable, fair and balanced, and not compromised by consumption of alcohol.”
The judge said she accepted and testified to “facts that did not necessarily serve her interest” and her recollection was “coherent,” holding up under cross examination.
Redgate said it was clear the complainant did not consent to the touch, but there was not sufficient evidence to prove, beyond a reasonable doubt, that it was intentional.
“He knew that what he had done was wrong,” Redgate said, as demonstrated by his comment after.
But that “doesn’t show that it wasn’t an accident.”
O’Brien is to return to court on June 27 for a case management appearance, and then again in September for sentencing.
*A previous version of this article stated O’Brien is an owner of the Goofie Newfie. Though he has claimed to be the owner on social media and his name appears on the pub’s liquor licence, he is not an owner. The Advertiser regrets the error.
