2012 QCCQ 363, 2012 QCCQ 363

Unofficial English Translation R. c. Morasse 2012 QCCQ 363 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF LONGUEUIL LOCALITY OF LONGUEUIL "Criminal and Penal Division" No.: 505-01-076026-083 505-01-077160-089 DATE: January 31, 2012 ______________________________________________________________________ THE HONOURABLE PIERRE BÉLISLE, J.C.Q., PRESIDING ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutrix v.

DENIS MORASSE Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ *An order directing that any information that could identify the complainants or witnesses shall not be published has been made pursuant to

section 486.4 of the Criminal Code . 1 .

Introduction [ 1 ] The accused stood trial on thirteen charges involving sexual offences against children under the age of fourteen. [ 2 ] The first eleven counts (file number 505-01-076026-083) concern events that took place between March 1 and November 27, 2007, when the accused, who was soccer coach at the Collège Français de Longueuil, brought students to his home to use his hot tub. [ 3 ] Counts 12 and 13 (file number 505-01-077160-089) relate to incidents that took place in the showers of the chalet at Parc Laurier and in a hot tub at his residence. [ 4 ] As the interests of justice require a joint hearing, the thirteen counts have been joined in the same indictment. 2 .

Factual Background [ 5 ] The accused has a degree in physical education and taught at the Collège Français de Longueuil from 1989 until December 4, 2007, when he was fired. In 2007, he was in charge of the soccer program. [ 6 ] Between March 1 and November 27, 2007, he brought five Secondary I (Grade 7) students to his house to use a hot tub. Frequently naked, he engaged in various playful activities with them, including massaging their backs, shoulders and lower backs, and putting ice into their bathing suits.

These activities took place without the knowledge of the children's parents or the Collège administration. [ 7 ] Between August 1 and September 30, 2007, the accused hired X (eleven years old) to help him draw lines on the soccer field. Afterwards, they would take a shower at the chalet in Parc Laurier. On separate occasions, the accused soaped up parts of X's body to remove paint residue left by the activity.

[ 8 ] On a few occasions, X also went to the accused’s home, where he would find himself naked in the hot tub with the accused, as they played games together. [ 9 ] The versions given by the complainants and by the accused are consistent on most of the events. The accused, however, denies seeking sexual gratification through the alleged acts. 3 . Issues in dispute [ 10 ] The issues turn on the assessment of the credibility of the witnesses with regard to certain incidents and on the sexual connotation of the accused’s actions towards the complainants. 4 .

Crown case 4.1 Testimony of Y (counts 1 and 2) [ 11 ] In March 2007, Y was thirteen years old and a Secondary I student at the Collège Français. He could not play soccer because he had a cast on his arm. The accused asked for his help filling out forms at his residence, after which they periodically used the hot tub. The accused, who was naked, would massage Y’s back, feet and shoulders while Y, also naked, sat on him. The accused then put ice in his bathing suit, as a kind of a game. [ 12 ] When a gardener arrived, they did not leave the hot tub.

They got out right after he left. [ 13 ] These activities occurred several times, without the knowledge of the parents or the school administration. 4.2 Testimony of Z (counts 3, 4 and 5) [ 14 ] In November 2007, Z was twelve years old, in Secondary I at the Collège Français, and enrolled in the sports program. The accused was his soccer coach. On November 21, the accused came to get him at his locker to ask for his help replacing Christmas lights at his home. On the way there, the accused told him that his parents knew where he was going.

He also told Z a story about a girl who was masturbating while he was driving the bus for the soccer players. The accused then took his hand, placed it on his young passenger's genitals, and rubbed. [ 15 ] Once at the accused's residence, Z held the ladder while the accused changed the light bulbs. Z heard the accused talking to his mother on his Blackberry without mentioning the hot tub. Later, inside the garage, the accused took off Z's sweater and pants. He picked the boy up, folded him over his shoulder, and put him in the hot tub.

Z was wearing his boxer shorts as he wrestled with the accused in the hot tub. [ 16 ] The accused then scooped up some snow, putting it in the boy's shorts, and rubbing it in two or three times. He tickled his stomach and hips. Z felt that this was a game. [ 17 ] After eating lunch, the accused brought him back to the Collège, where the boy had a remedial class in French. The accused asked him to tell the person in charge that he had been helping the accused do something at his office and not to tell his parents because he was worried about receiving another complaint. 4.3 Testimony of Ms. G.

L., Z's mother [ 18 ] Z's mother, Ms. G. L., was a member of the board of directors of the soccer team. She has known the accused for several years. At 3:30 p.m. on November 21, she met the accused in the cafeteria of the Collège. She believed that her son had helped him change Christmas light bulbs at the school, not at his home. She never knew that her son had gone there. She learned of it only when he told his father in November or December.

Under no circumstances did the boy have permission to go to the accused's home or use his hot tub. 4.4 Testimony of A, B, and C (counts 6 to 11) [ 19 ] The testimony of A, B and C concern events that took place at the accused's home on November 27, 2007. [ 20 ] They were all twelve years old and secondary I students at the Collège Français. In the morning of November 27, the accused taught them soccer in a domed field outside the Collège. He then suggested that they have lunch at his place. [ 21 ] Without the knowledge of the parents or the Collège administration, he took them to his home to have lunch.

They all brought their own lunches, except for B, for whom the accused made a meal. B finished eating first. Then they moved to the hot tub. [ 22 ] In the garage, the accused undressed B completely. B told him to stop, lying down on the ground and putting up a struggle. His friends found this funny. The accused picked him up, put him over his shoulder, and carried him naked to the hot tub as though he were a sac of potatoes. Once he was in the hot tub, the accused handed him a bathing suit. He lent bathing suits to the other boys as well. [ 23 ] A series of incidents in the water followed.

Some of the boys rolled around in the snow before getting in the hot tub. They sat on the accused, who gave them neck and shoulder massages. The accused then opened B's bathing suit and put ice on his penis. B felt his hand. He repeated his little game with B a second time. [ 24 ] The boys got dressed in the garage. The accused brought them back to the Collège and wrote a note explaining their lateness. 4.5 Testimony of X (counts 12 and 13) [ 25 ] In August 2007, X was eleven years old and was in sixth grade at St-Romain elementary school. The accused was not his soccer coach.

The accused hired him to help him draw the lines on the city soccer field. He would come to get him at 6:00 a.m. and drive

him to school around 8:30 a.m. [ 26 ] After doing the work, they had to go to the chalet in Parc Laurier to wash up (P-1, photo album). X states that the first time they took a shower, the accused undressed him. The accused, naked, repeatedly lathered the boy's body, which was covered with paint, as well as his buttocks and penis. [ 27 ] Afterwards, he brought him to his house to use the hot tub. Both of them were naked. The accused suggested they play the torture game. According to the accused, X chose to be spanked on his bottom instead. The accused complied, playfully spanking his buttocks outside the water.

X states that the accused did not want him to keep his boxer shorts on because he could not dry them. After the activity, the accused drove him to school. 4.6 Testimony of R. G., school principal [ 28 ] R. G. has been principal of the Collège Français for twenty-three years. The accused began working as the soccer coach in 1990 and became the gym teacher in 1995-1996. [ 29 ] The students took a school bus to the dome to play their sport. The accused had a license to drive a minibus with fewer than twenty seats. On occasion, he might use his own vehicle if they were late.

According to the written regulations of the Collège, secondary I and II students could not go out at lunch time without parental authorization. Before November 2007, the accused had sought permission for an outing for a group that did not include the students involved in this case. All of the teachers were aware of this regulation. [ 30 ] When made aware of the events, R. G. met with the accused at the Sandman hotel on March 17, 2008, along with D. C., the CSQ representative, and J. D., the union president. Two days later, he fired the accused because the bond of trust had been broken. 4.7 Testimony of Ms. L.

O., the accused's neighbour [ 31 ] Ms. O., who is retired, has lived in the building next to the accused for the last fifteen years. In 2007, he was living with his wife and three children. They have not been on good terms for several years. On four occasions, Ms. O. has complained to the police about loud noise caused by the use of the hot tub. [ 32 ] From her home, she has a view of the accused's garage door and the hot tub behind his house. She has a file in which she has kept a record of several events that piqued her curiosity. In the morning, his wife would leave for work.

The accused would then drive his children to school and return home with students dressed in Collège uniforms. [ 33 ] On April 4, 2007, around 9:30 a.m., she saw a boy with his wrist in a cast sitting in the hot tub with the accused. In the morning of April 16, they were sitting next to each other in the corner of the hot tub, which had six seats. She saw the accused put his arm around the boy's neck. When the accused got out of the hot tub, he was naked. According to Ms. O, he took a big step out of the hot tub, with his buttocks and penis exposed. She even took photographs (P-2(

a) to (

e) en liasse). On April 19, she saw both of them in the hot tub again, wearing their bathing suits. [ 34 ] On May 14, 2007, she saw a pick-up truck draw up in front of the accused's house. An employee of the fertilizer company pulled a hose around to the back of the house. At that moment she saw a boy scramble out of the hot tub and enter a utility room. She then watched the accused climb out of the hot tub, naked. She filmed this last event with a video camera (P-4).

The accused can be clearly seen, totally nude, exiting the hot tub and lowering the cover. [ 35 ] On November 21, 2007, at 12:33 p.m., she noticed the accused playing with a teenager in the hot tub. The accused took him by the arm to get him to [ translation ] "ride piggyback". He carried the boy on his back, while the boy wrapped his arms around his torso and neck. The accused was completely naked. The boy was wearing a bathing suit. They then began playing another game, as the accused held the boy upside down by his ankles and the boy tried to grab onto the trellis.

When they got out of the hot tub, however, they were both wearing their bathing suits. Ms. L. O. also filmed this incident with her video camera (P-4). [ 36 ] Afterwards, she and her husband went to the police station to seek advice. The police suggested that they speak to the administration of Collège Français. They did not do so, however, because other important events happened in their lives. 4.8 The accused's out-of-court statements [ 37 ] The accused's out-of-court statement and his interview with the principal, R.

G., were admitted as evidence for the purposes of cross-examination. [ 38 ] This sums up the Crown's evidence. 5 . Defence evidence 5.1 Testimony of F. B., store clerk [ 39 ] F. B. has known the accused as a soccer coach for thirty years. He states that the accused behaves like a perpetual adolescent when he is with the boys. He is very participatory and interactive. He is very close to the boys. He has fun with them. In the players' locker room, he snaps towels at the boys' buttocks. He surprises them by pulling down their pants.

He has never seen him touch their genitals, however, nor has he seen any of the boys put up a struggle. 5.2 Testimony of N. T., teacher [ 40 ] N. T. is a teacher at Collège Français. He has known the accused for twenty years. The accused was his soccer coach. A longstanding friendship has developed between the two of them. According to him, the accused has always acted like a teenager when

interacting with teenagers. In the locker room, they would have wet towel fights or play a game called [ translation ] “red belly". [ 41 ] From 2002 to 2006, when he was sixteen years old, he also worked with the accused, drawing lines on soccer fields. The accused never lathered him up in the showers in the chalet at Parc Laurier. He never witnessed any [ translation ] "pants-pulling" incidents with the boys, and he never saw him touch their genitals. 5.3 Testimony of Denis Morasse [ 42 ] The accused has a B.A. in physical education and began teaching at the Collège Français in 1989.

In 1997, he became the gym teacher. Later, he was in charge of the soccer program until December 4, 2007. [ 43 ] He is close to the students. He establishes a friendly relationship with them. He roughhouses with the players. He plays silly games with them in the locker room. His way of interacting elicits better performances from them. This approach has been successful. He has maintained friendships with his former students. They also frequently invite him to their weddings, and he has even been named godfather to the child of one of his former students. (

a) Incidents involving X [ 44 ] In 2007, when he was 51 years old, the accused was coaching the U-12A team, which was still being put together. X tried out and was accepted. At the end of the summer, the accused discussed the “Élite” program with X's father. To help with the financing, the accused proposed hiring his son to help him draw lines on the city's soccer fields. [ 45 ] Once they were done with their work, they would take their showers at the chalet at Parc Laurier. The accused noticed that X still had a lot of paint on his forearms, arms, and legs.

He sent him back to the shower and told him to take off his boxer shorts, which he placed on the separator, where the toilets are. The accused lathered him up, rubbing the boy's arms, legs, and calf to show him how to get the paint off. He emphasizes that he never touched his buttocks or his penis. [1] [ 46 ] The next time, the accused removed the boy's sweater because there was no time to lose. After he had finished washing himself, the accused noticed that X still had a lot of paint on his arms and legs.

He did the same as he had the time before, never touching his genitals. [2] [ 47 ] After that, the accused did not intervene in the shower because X was washing himself properly. [ 48 ] In late September or early October, the accused did not paint the lines in the Collège Français parking lot because he had not been authorized by the person in charge. As they neared the Collège, the accused suggested that he either drive X to school or take him to his place to use the hot tub. X agreed to the hot tub. Once they arrived at the residence, they went into the garage.

To tease him, the accused took off the boy's sweater, shoes, socks, and pants. X was wrestling with him and laughing. The accused then took him over his shoulder and sat him down on the edge of the hot tub. He let him slide into the tub, keeping the boy's boxer shorts so that they would not get wet, since he would need them to go back to school. He offered him the use of a bathing suit, however, but X said that it wasn't necessary. Since the accused is comfortable with nudity, he undressed in the garage, returning with two towels. [3] [ 49 ] They stayed in the hot tub, naked, for forty minutes.

While they were chatting, the accused suggested different games, including the torture game, “zerberts”, the “I hold you, you hold me, by the little goatee” game, red belly, or spanking. X chose spanking. The accused complied, pulling him by the arm down onto his stomach and spanking him three times. Then they exited the hot tub and got dressed. The accused drove him back to school. [4] According to the accused, because of constraints due to his schedule, X went to his home only twice. The first time was in mid-August during a team party and the second time was the time they roughhoused in the hot tub. [5] (

b) Incident involving Z [ 50 ] The accused has known Z for a few years. He used to attend his brothers' soccer matches. On November 21, 2007, the accused ran into Z at the Collège and asked him to come to his home to help him change Christmas light bulbs. Although Z had to attend a make- up class during lunch hour, he was free to do it another day. [ 51 ] Once at his home, they changed the light bulbs. Z's mother then telephoned. The conversation was short. The accused did not tell her that her son was there because he wanted to tell her in person at the cafeteria later that day.

And indeed, at the Collège at 3:30 p.m., he told her that her son had come to help him put up Christmas lights and that he had used the hot tub. [6] [ 52 ] Afterwards, they went to the garage. As he was wrestling with Z, the accused removed the boy's sweater, shoes, and socks. Z resisted when it came to his pants, and the accused did not persist. He lent him a bathing suit. As they left the garage, he picked the boy up, folded him over his shoulder, and threw him into the hot tub. They began play-fighting. They teased each other.

They were taking turns dunking each other under the water and cracking their toes. [ 53 ] The accused denies putting ice in the boy's bathing suit or putting his hand inside to touch his genitals. [7] [ 54 ] He realized that they had to hurry up because Z had a class to attend before soccer practice. They changed quickly in the garage. On the way back to school, the accused told Z a spicy anecdote about a girl masturbating. [8] Then he took his arm, holding him around the wrist, and placed his hand more or less near his private parts without touching them, or at his lower abdomen near his crotch area.

This stopped when they arrived at the Collège, where he informed the person in charge that Z was late. [9] He denies that he told Z not to tell anyone. [10] (

c) Incident on November 27, 2007 [ 55 ] At the end of the sports period in the morning of November 27, 2007, the accused made an appointment with four students in

the cafeteria of the sports therapist's office. They then went to his home where they had lunch. [56] B finished his meal first. He wanted to use the hot tub. The accused went to the garage with him. He wrestled with the boy,pulling off his sweater, pants, shoes and socks. He let the boy keep his boxers on. The boy was resisting, but not vigorously. A was nextto them and laughing at the situation. [57] The accused then hoisted B over his shoulder and put him down on the edge of the hot tub, pulling off his boxer shorts.

He thentossed him a bathing suit that he had taken from the garage.[11] [58] They all ended up in the hot tub. They threw snow at each other. The accused suddenly had the idea to take ice from the shelf.He pulled at B's bathing suit and slipped the ice in, without coming into contact with his private parts. B said that he didn't feel anything.The accused did it again, and B resisted more vigorously, making the accused work harder to put the ice down his bathing suit.[12] Thattime, the accused had the impression that he touched B’s skin. He pulled his hand back immediately.

The atmosphere in the hot tubremained very friendly.[13] [59] The students then rolled around in the snow, before returning to the hot tub. B found himself sitting on the accused's knees. Theaccused massaged his upper shoulders, going down the length of his spine to the top of his bathing suit.[14] [60] The others wanted the same treatment. The accused then gave them a similar massage.[15] [61] They all changed in the garage, with their towels around them. Back at the Collège, the accused wrote a note to justify theirtardiness.[16] (

d) Incidents involving Y [62] The accused invited Y to his house to fill out some forms. He was wearing a cast after injuring his arm. At the sports therapist'soffice, the accused told Ms. L. that he was leaving with Y. The boy subsequently returned to the accused’s house on approximately tenother occasions. They used the hot tub. [63] Y said that he had a sore back, and the accused suggested that he give him a little massage. Y came to sit on his lap while theaccused rubbed his neck, shoulders and back. To tease him, he took some ice from the edge of the hot tub and slipped it into his bathingsuit.

Y responded by doing the same to him, and the accused let him. [64] The accused found himself naked in the hot tub with Y on four different occasions. They would give each other footmassages.[17] The accused would then massage his shoulders. [65] The last time was when a lawn maintenance company technician arrived at his residence. Once the technician had finished thetreatment, the accused told Y to get out of the hot tub because they were late. He had to drive him back to school. He confirms that hedid not get out of the hot tub in front of the technician because it could have been open to

interpretation.[18] [66] The accused maintains that he had no intention of committing any sexual acts with the complainants. [67] This sums up the defence evidence. 6 . Positions of the Parties [68] The defence admits that the accused’s actions were inappropriate in the circumstances but argues that the sexual connotationsdid not exist. Moreover, if a sexual aspect is demonstrated, it asks that I apply the principle of de minimis non curat lex to avoid aconviction for trifling behaviour. [69] The prosecution responds that the accused committed sexual acts towards the students in the guise of harmless games. 7 .

The Applicable Law [70] In R. v. Chase, (SCC), [1987] 2 S.C.R. 293, the Supreme Court analyzed the offence of sexual assault, whichrequires only a general intent. In paragraph 11, it states that sexual assault is an assault within any one of the

definitions of that conceptin subsection 244(1) (now 265(1)) of the Criminal Code which is committed in circumstances of a sexual nature, such that the sexualintegrity of the victim is violated. The intent or purpose of the person committing the act or the motive of sexual gratification are factorsin considering whether the conduct has the requisite sexual nature according to an objective test: 11. ... "Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer"(Taylor, supra, per Laycraft C.J.A. at 269).

The part of the body touched, the nature of the contact, the situation in which it occurred, thewords and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats which may or may notbe accompanied by force, will be relevant (citation omitted). [71] In R. v.

V. (K.B.), (SCC), [1993] 2 S.C.R. 857, the Supreme Court states that an assault is of a sexual naturewhen a father grabs his son's genitals to discipline him because, in the absence of evidence of sexual gratification on the part of theaccused, this constitutes a violation of his child's sexual integrity. [72] In R. v. Ewanchuk, (SCC), [1999] 1 S.C.R. 330, the Supreme Court specified that, to obtain a sexual assaultconviction, the two fundamental elements – namely, the actus reus and the mens rea – must be proved beyond a reasonable doubt.

Atparagraph 23, Major J. defines them as follows: [23] … The actus reus of assault is unwanted sexual touching. The mens rea is the intention to touch, knowing of, or being reckless of orwilfully blind to, a lack of consent, either by words or actions, from the person being touched.

[73] Unlike sexual assault, the sexual interference (section 151 Cr. C.) and invitation to sexual touching (section 152 Cr. C.) requirespecific intent. Sexual touching and invitations to sexual touching must be committed for a sexual purpose. To obtain a conviction, theevidence must reveal that the accused was seeking sexual gratification or that he violated the sexual integrity of the person when hecommitted the alleged acts. This essential element of the offence may be established by direct or circumstantial evidence: R. v.

Morrisey,2011 ABCA 150. [74] It should be pointed out that, when assessing the testimony of children, more attention must be given to the peculiarperspectives of children, not from the perspective of rigid stereotypes, but taking into account the strengths and weaknesses whichcharacterize the evidence offered in the particular case. In R. v. W.(R.), (SCC), [1992] 2 S.C.R. 122 at 133, the SupremeCourt establishes the principle: ... Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time andplace, may be missing from their recollection.

Wilson J. recognized this in R. v. B. (G.), (SCC), (SCC), [1990] 2 S.C.R. 30, at pp. 54-55, when, in referring to submissions regarding the court of appeal judge's treatment of the evidenceof the complainant, she said that: . . . While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this doesnot mean that they have misconceived what happened to them and who did it. ...

The credibility of every witness who testifies before thecourts must, of course, be carefully assessed but the standard of the "reasonable adult" is not necessarily appropriate in assessing thecredibility of young children. [75] Regarding the notion of credibility, it is now established that the approach set out by Cory J. in R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742 is not a sacrosanct formula to be invoked as a magic incantation. Thus, a systematic application of the three-step model established in this leading case is no longer necessary. What matters is that the substance of its instruction be respected.

Thefirst two steps can therefore be dealt with together. [76] Consequently, in cases that turn on credibility, judges must first answer the decisive question of whether the accused's evidence,considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt: R. v. Dinardo, 2008 SCC 24 ,[2008] 1 S.C.R. 788 at para. 23. If so, the accused should be acquitted.

If not, the judge should go on to determine whether the evidenceas a whole establishes the guilt of the accused beyond a reasonable doubt. [77] It is useful to recall that the deposition of the accused (including that of his witness) should not be considered in isolation but inthe context of all of the evidence, and that a witness may be believed entirely, in part, or not at all. 8 . Analysis 8.1 The de minimis defence [78] In the alternative, the defence raises the de minimis non curat lex argument.

If the essential elements of offences are met, thedefence argues that the accused's actions were harmless and seeks a stay of proceedings on the counts under sections 151 and 152 of theCriminal Code. [79] The case law now recognizes that the defence of de minimis non curat lex exists in Canadian criminal law.

Indeed, subsection8(3) of the Criminal Code permits this common law defence to be raised when the circumstances so justify. [80] “In effect, the defence is that there was only a ’technical’ commission of the actus reus and ’that the conduct fell within thewords of an offence description but was too trivial to fall within the range of wrongs which the description was designed to cover’ (E.Colvin, Principles of Criminal Law (2nd ed. 1991), at 100). The defence of de minimis does not mean that the act is justified; it remainsunlawful, but on account of its triviality it goes unpunished" (citations omitted)….

"In part, the theory is based on a notion that the evil tobe prevented by the offence

section has not actually occurred. This is consistent with the dual fundamental principle of criminal justicethat there is no culpability for harmless and blameless conduct".[19] [81] The existence of this rule [translation] "constitutes a protection against unjustified prosecutions in trifling cases and contributesto the long-term maintenance of confidence in the criminal justice system".[20] [82] Assuming the defence’s premise whereby the essential elements of the offences are met, the conduct of the accused certainlycannot be characterized as trifling.

If the wrongful acts have a sexual connotation, it becomes impossible – because of their frequencyand the context in which they were committed – to argue that they are harmless, insignificant, or that they are too trifling to be punished. [83] Therefore, this argument must fail. 8.2 The element of sexual connotation required under sections 151 and 152 Cr.

C. [84] As for the charges under sections 151 and 152 of the Criminal Code, the accused does not claim that the acts did not take place(except for a few incidents where the issue of credibility comes into play); rather, he argues that they took place in a context that wasplayful and that he was not seeking any sexual gratification. [85] To convict an accused, the trial judge must find beyond any reasonable doubt that the sexual touching or invitation to sexualtouching was committed for a sexual purpose.

Sexual gratification or the violation of a person's sexual integrity may be demonstrated bydirect evidence or inferred from the circumstances or the very nature of the touching. In R. v. Morrisey, 2011 ABCA 150 at paras 21–22,the Court of Appeal of Alberta made this determination on the basis of whether a reasonable person would perceive the sexual context. [21] Touching is done for a sexual purpose, if it is done for one’s sexual gratification or to violate a person’s sexual integrity.

Indetermining whether touching takes place in circumstances of a sexual purpose, we are of the view that a trial judge can in assessing the

mens rea of the accused, consider whether the sexual context of the touching would be apparent to any reasonable observer. The “sexualpurpose” may be proven either by direct evidence, or it may be inferred from circumstantial evidence or from the nature of the touchingitself (ie. the only reasonable inference to be drawn from the circumstantial evidence or from the nature of the touching itself is that theaccused committed the touching for a sexual purpose). (see para 24 of R v Menjivar, 2010 ABPC 164 ,

(2010) AJ No 610, 2010ABPC 164). [22] Here a reasonable observer, considering the whole of the evidence, could have been satisfied beyond a reasonable doubt thatthe appellant’s touching was done for a sexual purpose. ... [Emphasis added.] [86] Referring to the decision rendered in R. v.

Menjivar, 2010 ABPC 164, the Court of Appeal of Alberta adds that the onlyinference that can be drawn from circumstantial evidence or from the nature of the touching is that the touching done by the accused wasfor a sexual purpose. 8.3 Application to the case at bar [87] The accused, who was 51 years old at the time of the alleged offences, had been teaching soccer at the Collège Français since1989. He has no criminal record. It is not so much the credibility of the accused that is at issue, however, as his

interpretation of thefacts. [88] If the accused's conduct is considered objectively, in light of all of the circumstances, it seems clear that his behaviour had asexual connotation or violated the sexual integrity of the children. I will explain. [89] The accused acted in violation of the written regulations of the Collège Français, which prohibited Secondary I and II studentsfrom leaving the Collège during lunchtime without parental authorization. The accused never requested this permission. When Z'smother telephoned him – if indeed she did – the conversation was brief.

He did not tell her that her son was at his home, preferring to tellher in person when he met her at the cafeteria around 3:30 that afternoon. His attitude is suspect. He felt uncomfortable. On thatoccasion, he simply told her that her son had helped him change Christmas bulbs, but he did not tell her that this took place at hisresidence. I do not believe him when he says that he told Z's mother that her son had used the hot tub. She heard about it only when theboy told his father one month later.

It is worth pointing out that the parents of the other children involved were not informed either. [90] His feeling of discomfort was also apparent when the lawn maintenance technician arrived at his residence to apply a seasonaltreatment. The accused was naked in the hot tub with Y and did not dare get out for fear that his behaviour would give rise tospeculation. If his attitude is that it was a harmless game, why did he not request permission from the parents to bring the boys to hishome to bathe naked in his hot tub during lunch hour while receiving massages for relaxation?

Would a reasonable person believe thatany one of these parents would have agreed? Of course not. That is why he never asked for permission to do what he did. [91] The nature of the touching is sufficient to conclude that there was a sexual connotation or a violation of the complainants'sexual integrity. [92] The one time he brought Z to his home, he removed all the boy's clothes except for his boxer shorts. He lifted the boy over hisshoulder and put him in the hot tub. He played games with him, cracking his toes and tickling him. He put ice down his bathing suit,which he denies, but I do not believe him.

It was not reasonable to undress the boy. He did not respect the youth's privacy. Moreover, inhis vehicle, he took the boy's hand and placed it on the boy's private parts or lower abdomen, in addition to telling him a racy story withsexual content. Obviously, he did not tell any of this to Z's mother at the Collège cafeteria that afternoon at 3:30. In addition, he asked Znot to tell his parents to avoid receiving another complaint. [93] With regard to Y, his actions are revealing. He used the hot tub with him on at least four occasions.

He massaged the boy’sback, feet and shoulders, while he was naked and the boy was sitting on him. He also put ice down the boy's bathing suit, which he thenremoved while wrestling with him to crack his toes. A reasonable person would certainly perceive the sexual context of this touching. [94] The same activities were carried out with A, B and C. In the garage, he undressed B, who asked him to stop and resisted in frontof his friends. He picked up the boy, folded him his shoulder, and put him in the hot tub. He threw him a bathing suit afterwards. Theversions of this incident vary, however.

The accused states that he allowed the boy to keep his bathing suit on but took it off him beforeputting him in the hot tub. A testifies to the same effect, whereas C confirms B. Nevertheless, this changes nothing regarding theviolation of his sexual integrity. What is more, the accused slipped ice into B’s bathing suit twice, in addition to giving massages to thethree other teenagers. [95] After having hired X to help him draw lines on the soccer fields, he brought him to his house to use the hot tub. In the garage,he took the boy's clothes off and then climbed into the spa with him, naked.

He played with him outside the water, spanking his buttocks.As for when he lathered him up in the chalet at Parc Laurier, I do not believe him when he says he did not rub his genitals. [96] The accused's actions toward the complainants were unconcerned with their privacy and violated their sexual integrity. Insteadof asking them to take off their clothes to use the hot tub, he did it himself.

Instead of explaining to X the proper way to remove the extrapaint, he did it himself, with the excuse that they had to return to school quickly. [97] The notes written to an authority at the Collège to justify the students' lateness do not reflect reality. The accused wrote a vagueand imprecise note. He provided no details. He made no mention of where they had been, of the hot tub, or of the activities that tookplace there.

The documents submitted to the administration do not reveal the real reasons for their absence, except that they mention thatthey were with him. [98] Moreover, it should be pointed out that these events took place when his spouse and children were not present. No one saw anymembers of his family there.

[99] For all of these reasons, I find that a reasonable person would have observed the sexual context of the touching. The onlyrational inference possible is that these actions were committed for a sexual purpose. [100] The complainants did not always feel comfortable with the accused. B was embarrassed to get undressed in front of hisfriends.[21] Indeed, he told him to stop. He tried to wriggle away.[22] He managed to move away when the accused tried for a secondtime to slip ice into his bathing suit.

X wanted some privacy in the shower of the chalet at Parc Laurier, but the accused undressedhim.[23] Actions of this nature constitute a violation of their sexual integrity. [101] In this case, the prosecution presented similar fact evidence to bolster the credibility of the complainants when their version ofthe facts contradicted the accused, in an effort to demonstrate repetitive or systematic behaviour and to attribute to him a guilty intent inorder to rebut the anticipated defence of trifling actions carried out in a playful context. [102] On this last point, the defence submits a motion to sever counts 12 and 13 concerning the complainant X.

Further to a decisionrendered on May 27, 2010 (2010 QCCQ 3996), this motion was dismissed because the various criteria for consideration listed in Last,2009 SCC 45 , [2009] 3 S.C.R. 146, had been met. The interests of justice required that a joint hearing be held. [103] The factual and legal connection between the incidents presents a high degree of similarity. The boys, all aged 11 and 12 yearsold, all attended the same school, except for X. The events took place in a hot tub, under the guise of game-playing, and were possiblebecause of the bond of trust and authority between the boys and the accused.

Some of the complainants were naked. The accused wasnaked. The unauthorized outings from the Collège were done without the knowledge of the administration or parental consent. Theseincidents were not coincidental. This similar fact evidence is relevant to the issues in dispute. It is also admissible because it tends toestablish more than a general propensity (moral prejudice) and the probative value of the reasonable inferences outweigh the prejudicialeffects in relation to an issue in the crime charged: R. v.

Handy, [2002] 2 S.C.R. 33 at para. 33. [104] In their testimony, the complainants describe conduct taking place over a six-month period that demonstrated systematicbehaviour (modus operandi). The similar fact evidence brought on each count reinforces the Crown's case and is also admissible tocounter the defence on each of the other counts: R. v. Houle, (QC CA) at para. 71, referring to the comments ofPigeon J. in Guay v. The Queen, (SCC), [1979] 1 S.C.R. 18 at 32.

The circumstances of this case therefore give ahigher probative value to the version of one party over the other. [105] Their deposition appeared sincere and convincing, and was delivered without animosity toward the accused. I noted no collusionamong them or any a posteriori contamination, especially since X did not attend the same school as the other boys.

The defence arguesthat X's credibility is not at issue but that his version is not reliable because he admitted that he made a mistake about the number oftimes he used the hot tub with the accused and how often he had been lathered up in the shower in the chalet at Parc Laurier. Accordingto W. (R.), supra, a child cannot be expected to be as precise in his testimony as an adult would be regarding events that took place nearlythree years earlier. These slight contradictions do not take away from the value of his version. [106] The defence maintains that the testimony of Ms. L.

O., who filmed certain events involving the accused, confirms his innocence.The video showing the accused getting out of the hot tub demonstrates the aspect of nudity, but it is only one element among manyothers to consider. [107] The two witnesses called for the defence were not useful except to explain his behaviour in the locker rooms. They did not takepart in any activities in the hot tub with the accused. [108] The fact that the actions were perpetrated as part of a game does not bar a conclusion of sexual connotation.

The parts of thebody touched, the nature of the contact, the nudity observed, the undressing of the children, the massages, the lack of authorization fromthe parents, the failure to disclose to the school administration and Z's mother, the fake late notes, his attitude toward the lawnmaintenance technician, the sexual anecdote he told Z and his placement of his hand on his private parts or his lower abdomen, theabsence of any other adults during the activities in the hot tub, and the reasonable inferences drawn from the similar fact evidence allreveal his intent to act with a sexual purpose.

The defence of trifling, harmless actions raises no reasonable doubt in my mind. [109] In short, I find that the evidence as a whole raises no reasonable doubt as to his guilt. A reasonable person would have perceivedthat these actions had a sexual connotation. The accused exploited the bond of trust between himself and his students to bring them to hishome. The game-playing was nothing more than a pretext or a subterfuge, enabling him to commit acts violating their sexual integrity orto touch the boys for sexual purposes.

I do not believe that the accused, a mature 51-year-old man, would have behaved in such a matterwithout underlying motives. [110] Therefore, I find that the prosecution has demonstrated beyond any reasonable doubt the essential elements of the offencescharged under sections 151 and 152 of the Criminal Code. 8.4 The sexual assault offences (paragraph 271(1)(

a) Cr. C.) [111] As for the sexual assault charges, the sexual context required by Chase, supra, has been established beyond any reasonabledoubt, especially since this offence requires only general, and not specific, intent. [112] In R. v. Bernier, (QC CA), the Court of Appeal of Quebec also dismissed a similar defence in the case of anurse who claimed that his touching of patients who were incapable of giving consent was a kind of bad joke.

At page 4, the Courtconsiders the existence of [translation] "situations where an assailant does not need to use strength to violate the physical or sexualintegrity of the victim". At page 5, it adds that [translation] "[a]n assault that is sexual in nature does not always present with the hostilitythat exists in an assault as the term is commonly understood" and that [translation] "in fact, the assault component of a sexual assaultarises from the absence of the victim's consent to the touching".

At page 6, it notes that [translation] "to require evidence of sexualmotivation would have the effect of transforming sexual assault into a specific intent offence" and finally concluded that [translation]"the intent to perform

an act is sufficient, without any need to prove that [the accused] was motivated by any malicious or specific intent"and that [translation] "in the face of evidence of the commission of the offence, the judge does not have the discretion to acquit [an

individual] because the actions were harmless or merely in play". According to Deschamps J.A., [translation] "the relative seriousness ofthe actions can be considered only at the sentencing stage". [113] If we consider the accused's behaviour objectively, in light of all of the circumstances, I find that his actions, in a sexual context,toward teenagers who were incapable of giving valid consent because of their age (section 150.1 Cr. C.) and the bond of trust andauthority (paragraph 273.1(2)(

b) and (

c) and 265(3)(d)) Cr. C. constitute sexual assault because they were committed in such a way thatviolated their sexual integrity. 9 . Conclusion [114] For all of these reasons, I find that the prosecution has also established the essential elements of the sexual assault offencesbeyond a reasonable doubt. [115] Because of the rule against multiple convictions, however, the proceedings on the sexual assault charges should be stayed:R. v. S.J.M., 2009 ONCA 244 ; R. v. Innerebner, 2010 ABQB 188 at para. 35; R. v. B. (W.E.), 2009 MBQB 312.

FOR THESE REASONS, the Court: [116] CONVICTS the accused of the offences of sexual interference and invitation to sexual touching, namely, counts number 2, 4, 5,7, 9, 11, and 13. [117] ORDERS a conditional stay of proceedings on counts number 1, 3, 6, 8, 10, and 12 concerning the offences of sexual assault. __________________________________ PIERRE BÉLISLE, J.C.Q. Mtre Marie-Josée GuillemetteCriminal and penal prosecutorFor the prosecution Mtre Marco LabrieFor the Accused Dates of hearing: April 15 and 28, May 17 and 18, September 7, November 24 and 25,December 20, 2010, September 15, 2011.