R. v. R.(A.), 2012 ONCJ 268

WARNING The court hearing this matter directs that the following notice should be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

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

i) to (iii).

(2) Mandatory order on application. — 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 complainant of the right to make an application for the order; and (

b) on application made by the complainant, the prosecutor or any such witness, make the order. . . . 486.6 Offence. —

(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. Citation: R. v. R.(A.) , 2012 ONCJ 268 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — A. R. Before Justice T. Lipson Reasons for Judgment released on May 2, 2012 Ms. M. Petrie and Ms. D. Kennedy ............................................................................. for the Crown Mr. F. Addario and Mr. W. Thompson .............................................................. for the accused A.R. LIPSON J.:

REASONS FOR JUDGMENT [ 1 ] A.R. pleaded not guilty to charges of sexual assault and sexual interference. Overview of the evidence [ 2 ] In the 1994-5 school year A.R. was the complainant M.K.’s grade 8 home room teacher at a senior public school in Toronto. A.R. was 28 years of age at the time. M.K. was thirteen years of age at the start of the school year in September and turned 14 in January, 1995. A.R. had coached M.K. the year before. [ 3 ] By the beginning of the 1994-5 school year, M.K.’s father had been diagnosed with cancer.

M.K., M.K.’s mother, understandably focussed most of her attention on her husband’s treatment needs. M.K. tried to set up a support system for her son and her daughter C.K. at their school. She spoke to A.R. who agreed to provide M.K. with extra academic help that included tutoring at the home. [ 4 ] M.K. is now 30 years of age and an elementary school teacher. He testified that his teacher, A.R., took advantage of his emotional vulnerability during his grade 8 school by sexually abusing him. M.K. recalled that around the middle of October, A.R. began telling him that he cared for him and then that he loved him.

M.K. would attend for extra help from A.R. before and after regular class hours. In the beginning, the accused would kiss on him on the cheek. This progressed to kisses on the lips and then open-mouth “French kissing”. A.R. would frequently hold M.K.’s hand during these sessions. The accused would often drive him home from school and often kiss him goodbye while in his car on M.K.’s driveway. [ 5 ] A.R. also tutored M.K. at home in a small den near the kitchen and later in a basement area of the house. M.K. testified that on four to five occasions the accused masturbated him.

On one of those occasions, C.K. interrupted them at a point when M.K.was sitting on A.R.’s lap. C.K. mentioned seeing this to her parents at dinner that night. M.K. gave an excuse that he had somehow lost his balance and accidentally fell into the accused’s lap. [ 6 ] M.K. testified that A.R. would attend some of his MTHL hockey games and then drive him home in his car. Eventually his mother became uncomfortable with the interest the accused was showing in her son.

She instructed M.K. to ask A.R. to stop attending his games. [ 7 ] M.K. testified that once A.R. drove him to his home in Thornhill where he gave the complainant a massage. M.K. was fully clothed at the time. He also testified that A.R. asked him if he wanted to go for a Jacuzzi in the nude with him at a health club but M.K. declined this invitation. [ 8 ] M.K. testified that during the grade 8 year A.R. gave him gifts and other favours. The accused gave him used school hockey nets. At Christmas, the accused gave him several presents including cologne, deodorant and an Italian good luck pendant.

These gifts were packaged into one large present containing several notes from A.R. Well before the police becoming involved, the complainant threw out these notes but with his mother’s help, found the Italian good luck pendant, filed as an exhibit in this trial. He also testified that A.R. helped him cheat on school tests by feeding him the correct answers. M.K. alleged that the accused was instrumental in him being accepted to a leadership camp even though he was a mediocre student. [ 9 ] M.K. testified that the abuse stopped at the end of the grade 8 school year.

A.R. maintained a relationship with M.K.s older sister E.K. They both coached volleyball. M.K.would see A.R. occasionally at some of E.K.’s family functions and had short casual conversations with the accused at those events. In 2010 the complainant started to read a book written by former N.H.L. hockey star Theo Fleury that described years of abuse by a minor league coach. He also saw an Oprah television episode dealing with sexual abuse survivors. All of this gave him the courage to disclose his own abuse, first to his wife and then other family members what he had been carrying inside for years.

In November, 2010 he provided an initial statement to the police. He then sought counselling from a registered social worker. Through what he termed “visualization techniques”, the complainant was able to recover more memories of the alleged abuse which he reported to police in a second statement. [ 10 ] M.K. testified that M.K.’s 1994-5 school year was an extremely difficult time for her family because of her husband’s illness. She sought out A.R.’s assistance to provide some extra support for M.K., particularly with his schoolwork.

She believed that her son sought and received extra help from A.R. before and after regular school hours. She had a vague recall of A.R. coming over to the house on a few occasions to tutor her son. M.K. remembered him coming to her son’s hockey games and practices. He came with the K. family to one hockey tournament. During the ride A.R. and her son were sitting in the back seat of the family car. She noticed that at one point the accused placed his right hand over her son’s left hand and seeing this left her a feeling of discomfort.

After hearing comments from other parents about how unusual it was for a teacher to attend a student’s hockey games that were not school related. M.K. told her son to tell A.R. not to attend any of his future games. In 2010, at her son’s request, she was able to find the Italian good luck pendant that her son said A.R. gave him. She believed he would have received this pendant in his early teen age years prior to his turning 16 but had no independent recollection of this. [ 11 ] A.R. testified. He is now 47 years of age and has been an elementary school teacher for 20 years.

He is married with two young daughters. [ 12 ] A.R. denied that he ever sexually abused the complainant. In the fall of the 1994-95 school year he became aware of M.K.’s family situation and was concerned that M.K.’s academics were slipping. He accepted M.K.’s request to keep an eye on M.K. and give him extra time and help with his school work. A.R. tutored him at home on two to three occasions. Each session lasted about 45 minutes. Other members of M.K.’s family were always present in the house while he tutored the complainant.

He recalled tutoring him in a small den located just a few steps down from the kitchen. A.R. said that he was too busy with his school team coaching commitments and class preparation to see M.K. before or after regular school hours. [ 13 ] A.R. denied assisting M.K. to cheat on school tests. Because of his coaching commitments and other duties, he was unable to provide extra help to students, including M.K., before or after regular class hours. He never drove the complainant to hockey games.

He recalled going to one game with the family. He remembered sitting in the back of the car and putting his hand on M.K.’s in order to encourage him to play hard and do well. He never took M.K. to his home in Thornhill or suggest that the two of them take a Jacuzzi in the nude at a sports club. He gave M.K. used school hockey nets to cheer him up. It was not unusual for teachers to give away old equipment to students. He denied giving M.K. Christmas presents and cards. He denied giving him an Italian good luck pendant.

After the 1994-95 school year, he did not maintain contact with M.K. but did with his older sister E. and her family. He attended her wedding and her child’s baptism. She came to his wedding in 2003 and his daughter’s first communion. At these events, A.R. had brief and friendly conversations with the complainant on those occasions. He testified that the complainant might have seen him wear an Italian good luck pendant at two family events.

He maintained that he never gave the complainant a similar pendant and that he received his years after teaching M.K. [ 14 ] In cross-examination A.R. testified that he and M.K. did not specifically discuss the complainant’s family situation or what the boy was going through emotionally. M.K. kept a lot inside and A.R. saw his role as assisting him with academics. This translated into two or three forty-five minute tutoring sessions at the K. residence and some help during regular classes. A.R. did recall C.K. interrupting a tutoring session but nothing untoward was occurring.

He came to care for M.K. and he told him so a couple of times, either during tutoring or in the school hallway, in order to cheer him up. [ 15 ] In cross examination A.R. testified that it was possible he may have touched the complainant’s hand not only during the car ride to the hockey game but also during tutoring sessions and hallway chats at school. In hindsight, he conceded that cupping the complainant’s hand was inappropriate and that it could be misconstrued by others as a romantic gesture. A.R. also admitted that he might have told M.K. that he not only cared for him but loved him.

He did so when he thought the boy was feeling down about his father’s situation. Looking back now, he acknowledged that saying these things was inappropriate and an “error in judgment” on his part. A.R. maintained that none of his interactions with the complainant was sexual. He only meant to encourage M.K. and be supportive. [ 16 ] The defence also called G.P., a former teaching colleague of the accused.

She confirmed that it was common practice for staff to give students old school sports equipment. [ 17 ] P.W., the accused’s mother in law, testified that she purchased the Italian gold pendant for A.R. at her daughter’s request in 2000. She had never seen her son in law wear such a pendant before this.

Applicable legal principles [ 18 ] This is a criminal case and every person charged with a criminal offence is presumed to be innocent until the Crown proves his or her guilt beyond a reasonable doubt. [ 19 ] The burden or onus of proving the guilt of A.R. beyond a reasonable doubt rests upon the Crown and never shifts. A.R. does not have to prove his innocence and I am to presume that he is innocent throughout my deliberations.

I may only find A.R. guilty if after considering all of the evidence, I am satisfied that the Crown has proven its case beyond a reasonable doubt. [ 20 ] I remind myself that a reasonable doubt may arise from the evidence or as a result of the conflict in the evidence or because of a lack of evidence. It is my duty to consider the evidence carefully and dispassionately and to weigh without sympathy or prejudice for or against anyone involved in the proceedings.

Then, after reflecting upon all of the evidence of each individual witness, I must weigh it and make a decision as to whether I accept the entire evidence given by that witness, a portion of that evidence, or none of the evidence given by that witness.

And after considering the whole of the evidence presented in the case by both the Crown and the defence, if any, I must reach a conclusion as to guilt beyond a reasonable doubt or otherwise acquit. [ 21 ] I further remind myself that the object in assessing evidence in a criminal case is not to choose one witness over another; it is to determine whether the Crown on the whole of the evidence has proven the accused’s guilt beyond a reasonable doubt. The ultimate question is not which side is telling the truth, but rather on all of the evidence whether the case was proven beyond a reasonable doubt. [ 22 ] In

summary, it is incorrect to decide the case on the basis of whether I believe the defence’s evidence or the Crown’s evidence. Approaching the evidence on the basis of an either/or proposition would exclude the possibility that without believing the defence’s evidence, one still has a reasonable doubt as to guilt. [ 23 ] I must and do instruct myself that 1. If I believe the evidence of A.R., A.R. must be acquitted. 2. If I do not believe the evidence of A.R. but I am left in reasonable doubt by it, then I must also acquit A.R.; 3.

If I am not left in reasonable doubt by the evidence of A.R., I still must ask myself whether I am convinced beyond a reasonable doubt of his guilt on the balance of the evidence which I do accept. [ 24 ] I appreciate the need for caution to preserve the integrity of the presumption of innocence. Yet, is also true that a trial judge is entitled to convict where he or she believes the evidence of a complainant where there is little or even no corroboration to support his or her version of events.

Analysis [ 25 ] Counsel for the accused submitted that the court should acquit A.R. on the basis that his denials of sexually abusing the complainant should be believed or, at the very least, leave the court in reasonable doubt.

The defence also submitted that even if the court were to reject the testimony of A.R. or not be left in reasonable doubt by his evidence, there remain sufficiently serious concerns regarding the reliability M.K.’s testimony that the court ought to be left in reasonable doubt about the guilt of the accused. [ 26 ] In assessing the evidence in any case alleging historical sexual abuse, appellate courts have instructed trial judges to heed important principles.

Counsel for the Crown and the accused referred to several of them in their submissions. [ 27 ] M.K. disclosed these allegations several years after the acts are said to have occurred. He told the court of the shame and embarrassment he carried inside before reading the Theo Fleury book and watching the Oprah show on sexual abuse survivors. He then

decided to tell his wife, other family members and ultimately the police in late 2010. The law is clear that this kind of delay in disclosure,standing alone, should never give rise to an adverse inference against the credibility of a complainant. As stated in R. v. D. (D.)2000 SCC43 , [2000] S.C.J. No. 44 (S.C.C.) at para.65 : …there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make animmediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse.

Reasons for delay are many andat least include embarrassment, fear, guilt or a lack of understanding and knowledge. In assessing the credibility of a complaint, thetiming of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. [28] In submissions, neither the Crown nor defence submitted that the timing of the disclosure by the complainant in this casewas probative of either guilt or innocence.

The timing of the disclosure in this case is, in my view, a neutral factor that is not probative ofguilt or innocence. [29] There were times in his testimony that M.K. had some difficulty recalling dates, locations and the number of times that thealleged sexual abuse occurred. I have kept in mind the following instruction set out in R. v. W. (R. (SCC), [1992] S.C.J.No 56 (S.C.C.) at para. 56. In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according tocriteria applicable to her as an adult witness.

Yet, with regard to her evidence pertaining to events which occurred in childhood, thepresence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the ageof the witness at the times to which she is testifying. [30] It is also true that the complainant in this case was not a pre-schooler when these events allegedly took place. He was ayoung teenager and senior public school grade 8 student. [31] Counsel for A.R. submitted that the complainant exaggerated the number of times he was molested during the tutoringsessions in his home.

M.K. told the court that the accused masturbated him four to five times. A.R. said he tutored the complainant atmost two to three times. M.K. told the police that she could only remember A.R. tutoring her son once or twice. It seems to me that suchdifferences in recollections are to be expected after the passage of so much time and should not adversely impact upon the court’sassessment of the complainant’s testimony. [32] Counsel for A.R. also submitted that the complainant exaggerated the frequency of the masturbation occurrences. M.K.testified that the masturbation incidents occurred four to five times.

He testified that other inappropriate sexual contact such as the Frenchkissing happened on average two to three times a week. There was a passage in the complainant’s police interview which could beconstrued as saying that the masturbation incidents occurred two to three times a week. However, I accept M.K.’s explanation that hewas, in fact, referring to any inappropriate sexual contact and not just the masturbation.

I say that because M.K. alleged that thoseincidents happened only in his family’s home and there is no controversy that A.R. tutored him there on only a handful of occasionsduring the 1994-5 school year. [33] M.K.’s often emotional testimony was powerful and compelling. It appeared to the court that he was endeavouring at alltimes to be truthful. I detected no evidence of animus or motive to fabricate on his part. His demeanour, that is, the manner in which hetestified, was that of a credible witness.

The demeanour of a witness is a factor which a trial judge can and should take into account inassessing his evidence. I also recognize, as our Court of Appeal has stated on a number of occasions, that it is an error to base credibilitydecisions solely on the demeanour of witnesses: R. v. J.F. (2003), (ON CA), 177 CCC (3d) 1, at para 101; R. v.Norman (1993), (ON CA), 87 CCC (3d) 153; R. v. Gostick (1999), (ON CA), 137 CCC (3d) 53 at59-61. [34] Here, as in many cases involving allegations of historical sexual abuse, the reliability of the complainant’s evidence is acentral issue.

Trial judges are required to exercise particular caution and scrutiny in approaching the reliability of evidence. In R. v.H.P.S., [2012] O.J. No. 478 (Ont. C.A.), the court observed: Memory is fallible. Courts have long recognized that even an apparently convincing, confident and credible witness may not be accurateor reliable and that it is risky to place too much emphasis on demeanour alone where there are contradictions and inconsistencies in theevidence: see R. v. McGrath, [2000] O.J. No. 5735 (S.C.), at paras. 10-14; R. v. Stewart (1994), (ON CA), 18 O.R.(3d) 509, at pp. 515-18; R. v.

Norman (1993), (ON CA), 16 O.R. (3d) 295, at pp. 311-15. [35] In H.P.S. the court also refers to Minden J.’s useful discussion in McGrath of these cautionary considerations at paras 11-15: Much of the author's focus is on the need for a particularly rigorous approach to issues of reliability given the frailties of memory ofdistant events: see: R. v. S.(W.) (1994), (ON CA), 90 C.C.C. (3d) 242 (Ont. C.A.). The trier of fact's experience andknowledge about human nature and memory may serve to betray rather than guide in cases of this kind: see also R. v. M.(B.) (1998), (ON CA), 130 C.C.C. (3d) 353 (Ont. C.A.).

Accordingly, careful scrutiny must be paid to the evidence: see R. v.Norman (1993), (ON CA), 87 C.C.C. (3d) 153 (Ont. C.A.). In that regard, a number of factors should be kept in mind. A witness' difficulty in recollection due to the passage of time must not lead toan "undiscriminating acceptance" of his or her evidence. A trier of fact must pay particular attention to serious inconsistencies in theaccount, as well as to significant inconsistencies between present testimony and prior accounts. Such inconsistencies may discloseunreliability: see, for example, R. v. G.G. (1997), (ON CA), 115 C.C.C. (3d) 1 (Ont.

C.A.). There must be a rigorousanalysis of whatever independent, extrinsic evidence still exists. A trier of fact must be aware that an apparently honest, confident or convincing witness may not necessarily be an accurate witness: see

R. v. Norman , supra. Nor does an abundance of detail in the recounting of an event necessarily imply an accurate memory. As well, a trier must bear in mind the "subtle and not so subtle influences" that may have over time distorted memory. The influences upon the life of a witness over the course of many years also make it difficult to fairly assess an apparent lack of motive to fabricate. In this context, the trier must be particularly vigilant to ensure that the burden of proof is not shifted to the accused.

A trier of fact must be alive to the fact that passage of time provides more opportunities for collusion or contamination between multiple complainants. This must be kept in mind when assessing the probative value of similar act evidence. Finally, in the overall assessment of the evidence, there is a special need to self-instruct on the frailties of evidence concerning events from the distant past. Trials concerning distant events may call for a direction to proceed cautiously before acting on unconfirmed evidence, even in a case in which the particular circumstances do not otherwise mandate a special warning.

In the application of the reasonable doubt standard, a trier of fact must be especially mindful of the absence of evidence that might have been available had the matter been prosecuted at an earlier date. [ 36 ] I found M.K. to be a sincere and credible witness. Nevertheless, I cannot ignore certain concerns about the reliability of his evidence. [ 37 ] One obvious and significant example is M.K.’s account that during one of the masturbation incidents, he and A.R. were interrupted by M.K.’s younger sister C. who witnessed her 13 year old brother sitting on the accused’s lap.

According to M.K., C. reported this to her parents and they questioned M.K. about the incident. M.K. testified that he told them that he had accidentally fallen onto his teacher’s lap. C. was available to testify in this trial but the Crown elected not to call her as a corroborating witness. M.K. said that she had no memory of the incident. She also agreed that this is something she would have certainly remembered and followed up on had she known about it.

I believe her, especially in light of the discomfort she felt seeing A.R. placing his hand on her son’s hand the hand during the car ride to a hockey game. [ 38 ] As well there are reliability concerns which arise from the manner in which M.K.’s disclosure of the alleged abuse unfolded and, in particular, the role played in his disclosure as a result of counselling sessions with his therapist. I accept that prior to any counselling, the complainant disclosed to family members and the police that he was sexually abused by the accused.

However, it is also the case that as a result of therapy sessions with the social worker, M.K. said that he was able to recover some memories which are significant in this case. He told the court that one of the purposes of the counselling sessions was to “recall newer information, just stuff I had suppressed over the 18 years”. M.K. told the investigative officer that as a result of his therapy sessions, he was able recall when he was first masturbated by the accused. Apparently he was unable to remember this at the initial police interview.

M.K. also was unable to remember that A.R. gave him an Italian good luck pendant when he provided his first statement to police. Through “visualization techniques” in therapy, he recovered a memory of receiving the pendant from the accused. The pendant plays a significant role in the Crown’s case against the accused and I will address the conflicting evidence about this later in these reasons.

The point I simply make here is that because of the manner in which the complainant purported to recall the details of these highly relevant events, an additional layer of scrutiny is needed in assessing his account: see R. v J.G.R. [2009] O.J. No. 117 (Ont. C. A.) at para. 9 . In the absence of independent supporting evidence, it is extremely difficult to determine whether these recovered memories are valid or not. Further, there are important questions not answered in the evidence. To what degree has the validity and/or accuracy of this type of therapy been recognized in psychology or psychiatry?

Did suggestive questioning on the part of the therapist play any role in prompting the recall of these memories? Was the therapist assisting M.K. properly qualified to conduct this type of therapy? Put another way, I am not in a position on the record before me to determine whether any of these recovered memories are true of false. [ 39 ] There are also reliability concerns about the complainant’s testimony regarding the gifts that A.R. allegedly gave him. [ 40 ] There is no question that M.K. was particularly vulnerable during his grade 8 year. He and his family were distressed about his father’s cancer.

The Crown argued that A.R. took advantage of this situation in order to sexually molest M.K. and that part of his strategy to gain his trust and compliance was to give the boy a number of gifts. M.K. testified that the accused gave him several presents including, a hockey net, a big box at Christmas time containing ten gifts inside and an Italian gold pendant. M.K. testified that A.R. told him he had a matching pendant. He also testified that he didn’t think the accused ever told him to keep the gifts a secret from any of his family members.

There is no dispute that the accused gave the complainant used school hockey nets. A.R. said it was not unusual for school staff to give old school sports equipment to students. The testimony of one of his teaching colleagues from that era, G.P., confirmed this. A.R. said he gave him the hockey nets in order to lift M.K.’s spirits during this difficult period of his life which is certainly a plausible explanation. He denied giving M.K. any other gifts. He admitted owning a very similar gold pendant but that he received that from his wife’s family years after teaching the complainant.

M.K.’s mother did not testify that she ever noticed M.K. in possession of any presents from the accused aside from the hockey nets. If these gifts were never a secret, it is difficult to imagine that she or other family members would not have noticed them and followed up with her son about them. [ 41 ] There is no doubt that M.K. received an Italian good luck pendant during his childhood which his mother recovered from a jewellery box at his request after charges were laid in this case. And there is no doubt that the accused currently owns a very similar pendant.

M.K. sincerely believes he received the pendant from the accused. There is, however, a body of credible evidence which casts some doubt on the reliability of his assertion. Apart from M.K.’s testimony, there is no evidence from anyone else that the accused owned or wore such a pendant in 1994-5. The video introduced into evidence of A.R. in the school gym shows him wearing a shiny necklace around his neck but does not establish that he was wearing the Italian pendant.

Further, there is evidence from the accused’s mother in law, P.B.W., who impressed me as a credible witness that she purchased the Italian gold pendant that A.R. now owns in 2001. When she met him in 1998 he didn’t wear such a pendant. In 1999 she gave the same kind of good luck pendant as a gift for her baby granddaughter and A.R. asked about its significance.

And as I have already mentioned, the accused’s memory of receiving his pendant from the accused was one that was recovered in therapy that, in itself, presents significant reliability concerns that I addressed earlier in these reasons. [ 42 ] The complainant testified as to other favours from the accused such as recommending him for leadership camp and feeding him answers during school tests. The evidence is not conclusive on these points. The accused didn’t deny helping M.K. and other students but asserted he never assisted any student to cheat.

He denied getting M.K. into a leadership camp but it was also true that M.K.

had demonstrated leadership qualities in his athletic endeavours. [ 43 ] There is some evidence which potentially supports M.K.’s version of events. He testified in addition to the French kissing and masturbation incidents, the accused also had a penchant for holding his hand and telling him he either cared for him or even loved him. M.K. testified that she observed the accused placing his hand on her sons in the car ride to or from a hockey game. A.R. admitted he did this only as a gesture of encouragement and nothing more.

He also admitted that on occasion he would tell the accused he cared for him and even loved him in order to be supportive and nothing else. He testified that, in hindsight, he recognized that these acts were inappropriate even though his intentions were in no way criminal. [ 44 ] I am satisfied that the handholding incident occurred and likely occurred at other times. I am also satisfied that the accused did on occasion tell the complainant that he loved him. To what degree do these findings support the complainant’s position that A.R. kissed him and masturbated him?

That question brings me to an assessment of the accused’s credibility. [ 45 ] A.R. vigorously denied any guilt. His position was summarized earlier in these reasons. Counsel for the accused submitted that his testimony concerning the core allegations was clear, consistent, unwavering and credible and, on its own, provides a sufficient basis to acquit. [ 46 ] I can certainly agree with the argument made by counsel that so many years after the alleged events, it is difficult to ever prove that the acts alleged never happened. In any event, there is no onus on an accused to prove or disprove anything.

The burden of proof always remains on the Crown to establish guilt beyond a reasonable doubt [ 47 ] A.R. appeared to the court to be an intelligent and articulate witness who was unwavering throughout his testimony in his denial of the core allegations. Generally speaking, he made a good first impression as being a credible witness.

Having said that, there are areas of his testimony when seen in the context of the totality of the evidence that are inconsistent and in some respects implausible. [ 48 ] For example, A.R. attempted to create the impression that he had an almost “arms-length” relationship with M.K. during the relevant time frame. On one hand he accepted M.K.’s request to keep an eye on M.K. and be a support person in his life yet he also maintained that he never really spent much time with M.K. talking about his situation. A.R. said he never saw him before or after school because he was too busy with other duties.

He spent less than three hours tutoring him over the whole school year and had the odd chat with him in the hallway to cheer him up. He went to only one of M.K.’s hockey games. [ 49 ] I am satisfied that the accused spent far more time with M.K. than he was prepared to admit and that he attempted to minimize the nature of his relationship with M.K. which I believe was very close. During cross-examination A.R. admitted sometimes telling M.K. that he cared for him. He also agreed that it was possible that he sometimes told him that he loved him.

A.R. admitted the hand holding incident in the car that was observed by M.K. but also conceded that he may have held his hand during the tutoring sessions and during their chats in the hallway. These were intimate and personal gestures which speak to an attempt on the part of the accused to forge a relationship that went well beyond the bounds of any appropriate teacher -student relationship. This also tends to explain why the accused gave M.K. the used school hockey nets as a gift. [ 50 ] M.K. and his mother both asserted that the complainant went for help from the accused before and after class.

A.R. observed that the youngster’s marks were suffering. It is implausible that he would not make time to provide him with extra help at school and I do not believe A.R.’s testimony that he did not spend time with M.K. in his classroom before and after school. [ 51 ] Counsel for the accused characterized the accused’s minimization of the closeness of their relationship as a display of “defensiveness” that was consistent with innocence. I strongly suspect that is not the case.

There can be no question that saying I love you to a student while holding his hand is highly inappropriate conduct not only by today’s standards but also by the standards for teachers which existed in the mid 1990’s. I also tend to accept that the accused was attending more of M.K.’s games than he was prepared to admit.

If he simply went to only one game, it is unlikely that M.K. would have felt uncomfortable to the degree of having her son tell A.R. to stop coming to any more games. [ 52 ] The real question here is to what extent do these credibility concerns about A.R’s testimony advance the case for the Crown that the accused sexually abused M.K.? [ 53 ] On the record before me, it is difficult to determine whether, in fact, A.R. was the person who gave M.K. the Italian good luck pendant. It is very coincidental that the accused currently owns a similar pendant.

Yet the evidence of A.R. and particularly the credible testimony of his mother in law significantly weakens the complainant’s assertion that A.R. gave the pendant as a gift. [ 54 ] M.K. also testified that the accused took him to his home in Thornhill and gave him a massage. That he knew the type of house and general location supports his account.

On the other hand, his lack of recall of the interior of the house or of the two active dogs in the house at that time tends to weaken the force of his evidence. [ 55 ] The Crown argues that the proven hand-holding incident and the admitted expressions of affection used by A.R. provide strong corroboration for M.K.’s allegations. That evidence does provide some but not conclusive support.

It is also true that those acts, inappropriate as they were, could also be viewed as demonstrations of encouragement and support as A.R. maintained during cross- examination. [ 56 ] Counsel for the accused pointed out that according the complainant, there must have been over 100 “high risk” incidents of inappropriate sexual contact between A.R. and the complainant when the accused could have been easily detected by other people. There were alleged kissing, handholding and acts of masturbation in the K. home while his family members were nearby in the house.

There was kissing and handholding behaviour in the classroom at times when other students and school staff could have interrupted. The accused allegedly often kissed the complainant in M.K.’s driveway. The defence argues that it is implausible that someone would not have observed something and reported it to the authorities. This common sense argument cannot be easily dismissed. [ 57 ] After carefully considering all of the evidence, I strongly suspect that M. K. was telling the truth. On balance I prefer his

evidence over that of the accused. M.K., in my view, was a more believable witness than A.R. However, as I pointed out earlier, a finding of guilt cannot be based on strong suspicion or by the court treating the trial as a credibility contest as between the accuser and the accused. The real issue here, as in any criminal case, is whether the Crown has established the guilt of the accused beyond a reasonable doubt. The burden of proof upon the Crown is very high. While I do not accept the accused’s testimony, I am left in some reasonable doubt by his testimony and the other evidence adduced on his behalf.

Even if I were not left in reasonable doubt by A.R.’s testimony, the reliability concerns with respect to the complainant’s evidence discussed earlier would prevent the court from concluding that the Crown had established the accused’s guilt beyond a reasonable doubt. [ 58 ] In the result, the charges are dismissed. Released: May 2, 2012 Justice T. Lipson