SUDBURY - A former Sudbury Police officer has been found guilty of sexual assault against a then 17-year-old summer student who was working at the GSPS headquarters.
Wayne Foster, a now-retired 31-year officer was charged for a sexual assault that took place on Aug. 24, 2007.
Foster was ultimately convicted of the assault on Dec. 23. The victim, who is protected by a publication ban surrounding her identity, “found herself in an elevator alone with Mr. Foster when, without her consent, he pushed her against the side of the elevator, kissed her forcibly, slid a hand down her pants, and pushed a hand up her shirt,” said court documents.
Foster denied the assault, and in fact denied having any memory of or any interactions with the victim.
Only the victim and Foster testified at trial, and much of the evidence came through an agreed statement of facts, including work schedules, and the confirmation of a conference that Foster had attended shortly after the assault in the fall of 2007. The victim had moved to southern Ontario to attend university, and testified that not only did Foster send her an email noting he would be close to her for the convention and wanted to meet up, but according to court documents asked her in the message if she had ever: “been f—-d by a Black man.” (Foster identifies as a Black man.)
It appears from testimony that the victim saw Foster at a distance in 2022 at a grocery store, and pressed charges shortly after.
“The police service notified the SIU of the incident on October 28, 2022,” said a Special Investigations Unit (SIU) press release.
In his decision, Jenner wrote that there was no evidence that may have shown a misunderstanding between the two — i.e. that Foster thought what he was doing was consensual— and said he also must consider “the cumulative impact of issues or factors that might have little impact individually.”
Ultimately, the judge said his job was to decide “Has the Crown proven beyond a reasonable doubt that the alleged conduct occurred, and that it was perpetrated by Mr. Foster?”
The victim’s testimony
The victim testified she first came into contact with Foster during her summer employment at the GSPS headquarters in 2007. She said though she spoke to many officers, Foster took an interest in her at work, and he spoke to her frequently. She spoke of their interactions as “flirtatious.”
Asked about the “tenor of her relationship” with the then detective, the victim testified that he made her “feel very comfortable at work.”
The victim described one occasion where she was in a lunchroom at work, listening to music. She testified that Foster asked her what she was listening to; he was leaning on a table, and she was sitting in a chair. She gave him her earphones so that he could listen to the song, which was sexually explicit in nature. She testified that Foster said he did not know “she listened to that” and said he “wanted to do that”. His comment made her uncomfortable, she testified, and said she did not know what to do, so she giggled at the remark.
“A lot of others would brush the students off, but Mr. Foster made her feel important … she would sometimes be excited to speak with him,” reads the decision.
“That changed on her last day of summer employment.”
On her last day as a summer student, August 24, 2007, at the end of the workday, the victim testified she was saying goodbye to colleagues, including Foster. She went to other departments to say goodbye, and then boarded the elevator on the sixth floor.
Someone she could not identify got on and then off the elevator, at which time Foster entered. She was not expecting to meet him there and they were alone in the elevator. She testified about 15 minutes had passed since she had said goodbye to him.
The victim testified Foster “placed one hand against her hip and pushed her against the side of the compartment. Then he placed his body against hers and kissed her forcibly.”
She testified he then slid one hand down her pants—inside the pants but outside of her underwear—and cupped her vulva. She said Foster put his other hand up the blue blouse she was wearing and grabbed her breast. She testified that she remembers her stomach being exposed and believes he touched her breast under her bra because she had to readjust it afterwards.
She testified she did not say stop, but rather froze in shock.
“She described feeling as if time had stopped, though also explained that it must not have lasted very long” wrote the judge, and he noted the many specific details she recalled from the interior of the elevator during the attack.
After the attack, she testified Foster then pulled himself off her and adjusted his clothes. The doors opened and he said that he would see her next summer. She did not move. The doors shut. She grabbed the side of her bra to pull it down, and when she opened the doors, she walked outside to go to her mother, who was meeting her outside to pick her up.
The victim testified she received an email from Foster in the fall of 2007, asking her to meet up to have sex while he was close to her university town.
The judge said he found the victim’s demeanour “lent strength to her credibility."
He wrote that while she demonstrated great patience, “it was clear that testifying in this trial was highly emotional for her.”
Jenner wrote he found “particularly compelling” the change in her demeanor as questions approached or touched on the core of the assault allegations. “While I must exercise extreme caution about the weight I give these observations, they are nonetheless among the factors I found compelling,” he wrote.
Foster’s testimony
Foster became an officer in 1984 with Peel Regional Police, and moved to Sudbury four years later, he testified. When he joined the GSPS, he was the first black officer and “the only one for five or six years.”
He retired in 2015 after 31 years in policing.
Foster, in his testimony, denied any knowledge of the victim. It was this blanket denial, and the defensiveness the judge perceived in Foster’s testimony that “troubled him,” wrote Jenner.
“I was troubled by the confidence with which Mr. Foster claimed that through his entire career he was sure he never spoke to any student about a career in policing. This would be a remarkable feat of memory given his lengthy career,” he wrote. “If, as Mr. Foster testifies, there was nothing remarkable about that afternoon, I find it hard to believe that he remembers, with such certainty, that he was not in the elevator,” the judge said later.
He also noted that Foster’s “willingness to make allowances” to the Crown for possible casual interactions with the victim shifted depending on whether it would tend to harm his defence.
“This issue also manifested as a defensiveness on Mr. Foster’s part during his cross-examination. When he was being asked, in very plain terms, about his interactions with students, he was coy,” wrote Jenner, and included a transcript of questions asked by the Crown, Jason Nicol, and answered by Foster.
Q: In 2006, 2007, you worked with students, correct?
A: Define work.
Q: You encountered them as part of your duties at headquarters at Sudbury Police, correct?
A: I’m sorry, what year?
Q: 2006 and 2007.
A: I did not work with students in criminal investigations.
Q: So, well, I’m not talking you directly, but you must have encountered—
A: You asked me if I worked with students and my answer is, I did not work with students in 2006, 2007.
Q: Right. But you must have encountered students in 2006, 2007, in the building.
A: They would have been in the building.
Q: You must have encountered them.
A: Define encounter, sir.
Q: Did you speak with any?
A: Probably in passing.
Defence counsel for Foster, Joanne Mulcahy, raised what the documents refer to as “internal inconsistencies,” within the victim's testimony. Mulcahy asked questions surrounding the accuracy of the lunchroom music listening testimony as the victim first said “earbuds” when she later testified she meant earphones, as well as the victim's testimony about the time of day of the assault, and her frequency of contact with Foster. The victim testified she saw the accused "almost everyday,” but later corrected herself, noting she meant it as a turn of phrase, rather than an exact occurrence.
The judge wrote “I do not find that any of these ‘newly disclosed’ details detract from” the victim's testimony, and called them “very minute details.”
Based on the testimony, the facts in evidence, and his legal responsibilities, Jenner found Foster guilty of sexual assault.
Foster’s next court appearance will be for sentencing. His case is moving to assignment court on April 15 to set a date for the hearing.
Jenny Lamothe covers court for Sudbury.com
