R. v. T.G., 2019 ONCJ 665

WARNING An order restricting publication in this proceeding under ss. 486.4(1) , (2) , (2.1) , (2.2) , (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide: 486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (

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

(2) 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 victim of the right to make an application for the order; and (

b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (

a) as soon as feasible, inform the victim of their right to make an application for the order; and (

b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under

section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this

section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15 ; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5 ; 2012, c. 1, s. 29 ; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18 . 486.6(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.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15 . ONTARIO COURT OF JUSTICE CITATION: R. v. T.G. , 2019 ONCJ 665 DATE: September 17, 2019 BETWEEN: Her Majesty the Queen

— and — T.G. Judgment T. D’Eri, G. Hendry .............................................................................. Counsel for the Crown O. Goddard, J. Nasseri ................................................................. Counsel for the Defendant Felix J.: Table of Contents: R. v. T.G. Preface 12 I. Introduction to the Oral Portion of the Judgment 12 A. Climate of Physical Touch 13 B. The Focus of the Trial 13 C. Criminal Offences – Sexual Assault and Sexual Interference 14 D. The Pathway of Reasoning 15 E. The Decision on Each Count 17 Part One 18 I.

Introduction to the Written Portion of the Judgment 18 A. The “Grade School Complainants” 19 B. The “Historical Complainants” 19 C. Single Summer School Complainant 20 D. The Information 20 E. Organization of this Judgment 21 PART TWO 21 I. Discreditable Conduct Application – “Similar Fact Across Counts” 21 A. Procedural Considerations 21 B. Position of the Applicant 22 C. Position of the Respondent 22 D. Ruling on the Application 22 E. Outline of this Ruling 23 II. The Test for Admissibility – The Handy Template 23 A. General Considerations 23 B. Discreditable Conduct Evidence is Presumptively Inadmissible 24 C.

Material Issue(

s) in Question 24 D. Required Degree of Similarity 24 E. Nexus 25 F. Admissible versus Inadmissible Propensity Evidence 26 G. Discreditable Conduct need not be Conclusive of Guilt 26

H. Considerations in Cases of Child Sexual Abuse 26 I. Collusion 27 1. Why is the issue of collusion so important? 27 2. Role of the trial judge 27 3. “Air of Reality” 27 4. What constitutes collusion? 27 5. Collusion – onus 28 J. Balancing Probative Value versus Prejudicial Impact 29 III. Application to this Case 29 A. The Material “Issue(

s) in Question” 29 B. The Defendant’s Testimony and the “Material Issues in Question” 30 C. Collusion and the “Grade School Complainants” 30 D. Collusion and the Historical Complainants 33 E. The Weak Nexus Between the Historical Complaints and the Complaints made by the Grade School Complainants 34 F. The Probative Value Associated with the Admission of the Historical Complainant Counts is outweighed by the Prejudicial Impact 34 G. The Probative Value Associated with the Admission of the Summer School Complainant count is outweighed by the Prejudicial Impact 35 H. Decision 36 PART THREE 36 I.

The Offences: Assault, Sexual Assault, Sexual Interference 36 A. Sexual Assault 36 B. Sexual Interference 37 C. Assault 37 Part Four 39 II. The Credibility and Reliability of the Defendant 40 A. Credibility and Reliability 40 1. Background and experience 40 2. Demeanor 40 3. Credibility 40 B. Central Position of the Defendant 42 1. Admission of generalized physical touch 42 2. Accidental or incidental touch 43 3. Limited confirmation of each complainant’s version of events 44 4. The Principal’s warning 44

a) The Principal’s testimony 44

b) Defendant’s testimony 45 C. The Examinations: Prejudicial Evidence 51 1. Prejudicial evidence that the defendant was “touchy”, “creepy”, “too friendly” 51

2. Normalization of a climate of touching and “grooming” 51 3. “Exhibitionism” 52 4. The educational background of the defendant 52 5. Discreditable evidence that the defendant invited children to do yard work 53 6. Discreditable evidence that the defendant sent a “threatening email” 53 7. Discreditable evidence – the changeroom 53 8. Discreditable conduct evidence elicited from witness A.M. 54 9. Discreditable conduct evidence – “boob” comment 54 10. Opportunity – the risk of detection 55 D. Credibility and Reliability of the Defendant: Conclusion 57 Part Five 58 I.

Factors Impacting the Credibility and Reliability of the Complainants and Child Witnesses as a Group 58 A. Introduction 58 B. The Impact Associated with the Dismissal of the Discreditable Conduct Application 59 C. Credibility and Reliability 59 D. The Proper approach to Child Witnesses 60 E. Animus/ Motive to Fabricate / Bias 62 F. Collusive circumstances as a reliability concern 66 G. Collusive Circumstances as a Credibility Concern 68 H. The Approach to s.715.1 Statements followed by the Police 68 I. The Examinations: Direct Examination 69 J. The Examinations: Characteristics of Cross Examination 70 K.

Impact of Cross-examination 71 L. The Relevance Objection: Cross-examination premised on Stereotypes 73 1. Supplementary reasons 73 2. Subsequent rulings 77 3. Conclusion – objection rulings 77 M. Cross-examination on the issues of Delayed Disclosure and “Avoidance Behaviour” 78 N. The Circumstances Surrounding Disclosure – Witness C.M. 78 O. Prior Consistent Statements 79 1. The issue of hearsay statements during trial 79 2. Submissions 80 3. Admission to rebut recent fabrication 80 4. Admission for the purposes of rebuttal versus substantive admissibility 81 Part Six 82 I. Introduction 82 II.

Count 1 and Count 9: Complainant E.S. 82 A.

Summary of the allegations 82

B. Analysis 83 1. General circumstances of the offences 83 2. Revelation 84 3. Prior inconsistent statement to her mother 85 4. Hug in the hallway 85 5. “Skinny” comment made by the defendant 86 6. Animus / Motive to Fabricate/ Bias 86 7. Collusive circumstances as a credibility and reliability concern 87 8. Delayed disclosure / “Avoidance” behaviour 87 C. Judgment at Trial: Counts 1 and 9 92 III. Count 3 and Count 11: Complainant G.B. 92 A.

Summary of the allegations 92 B. The Defendant’s Classroom/ Music Room 93 1.

Summary of the Evidence 93 2. Analysis 94

a) The teacher’s desk 94

b) Lack of Corroboration 94

c) The statement 95

d) Prior Consistent Statement 95

e) Finding 96 C. The Teachers Staffroom 97 1.

Summary of the Evidence 97 2. Analysis 97

a) The evidence of C.M. 97

b) Inconsistencies 98

c) Inconsistent statement by G.B. 98

d) Positioning made touching the buttocks impossible or improbable 99

e) Finding 100 D. Health Class 100 1.

Summary of the Evidence 100 2. Analysis 100 E. Gym Equipment Room 101 1.

Summary of the Evidence 101 2. Analysis 101

a) Inconsistencies 101

b) Statement against interest 102

c) Finding 102 F. Other Overall Issues/ Factors 103

1. Credibility and reliability of C.M. 103 2. Animus / Motive to Fabricate/ Bias 103 3. Collusive circumstances as a credibility and reliability concern 104 1. Delayed disclosure / “Avoidance” behaviour 105 2. Prior consistent statements 105 3. Admission against interest from the defendant 106 4. Many circumstances or incidents 106 G. Judgment at Trial: Counts 3 and 11 106 IV. Count 4 and Count 12: Complainant L.C. 107 A.

Summary of the allegations 107 B. Analysis 107 C. Judgment at Trial: Counts 4 and 12 109 V. Count 5 and Count 13: Complainant M.V. 110 A.

Summary of the allegations 110 B. The Allegations 110 C. Analysis 110 1. The teacher’s desk 110 2. Inconsistencies between M.V. and K.B. 111 3. Inconsistencies sourced in the evidence of E.S. 111 4. “Frozen” versus putting a music instrument away 111 5. Opportunity 112 6. Animus / Motive to Fabricate / Bias 112 7. Collusive circumstances as a credibility and reliability concern 112 8. Delayed disclosure / “Avoidance” behaviour 113 9. Prior consistent statements 114 D. Judgment at Trial: Counts 5 and 13 115 VI. Count 6 and Count 14: Complainant A.S. 115 A.

Summary of the allegations 115 B. Analysis 115 1. Physical description of the incident 115 2. Number of incidents 119 3. Location of the incidents 120 4. Being alone with the defendant 121 5. Hand up the shirt 121 6. Animus / Motive to Fabricate / Bias 121 7. Collusive circumstances as a credibility and reliability concern 122 8. Delayed disclosure / “Avoidance” behaviour 122 B. Judgment at Trial: Counts 6 and 14 123

VII. Count 7 and Count 15: Complainant B.H. 123 A.

Summary of the allegations 123 B. Analysis 124 1. Observations of the defendant touching H.G. 124 2. Interaction with H.G. 125 3. Inconsistencies 126 4. Animus / Motive to Fabricate/ Bias 126 5. Collusive circumstances as a credibility and reliability concern 127 6. Delayed disclosure / “Avoidance” behaviour 127 7. Prior consistent statement 127 8. Comment about B.H.’s Breasts 129 9. Unreliable observations of the defendant touching A.S. 129 10. Overall credibility and reliability of B.H. 130 C. Judgment at Trial: Counts 7 and 15 130 VIII. Count 8 and Count 16: Complainant H.G. 130 A.

Summary of the allegations 130 B. Analysis 131 1. Lack of detail 131 2. Inconsistencies between H.G. and B.H. 131 C. Judgment at Trial: Counts 8 and 16 131 IX. Count 17 and Count 24: Complainant B.D. 133 A.

Summary of the allegations 133 B. Analysis 133 1. The first Incident 133 2. The second incident 133 3. Absent corroboration – incident one 134 4. Animus / Motive to Fabricate / Bias 134 5. Collusive circumstances as a credibility and reliability concern 135 6. Evidence of sitting on the defendant’s lap or knee 135 7. Two other circumstances of defendant conduct 135 C. Judgment at Trial: Counts 17 and 24 136 X. Count 18 and Count 25: Complainant M.S. 136 A.

Summary of the allegations 136 B. Analysis 137 1. Circumstances of the Offence 137 2. Reaction of the class 138 3. Collusive circumstances as a credibility and reliability concern 138 4. Delayed disclosure / “Avoidance” behaviour 139

5. Prior consistent statements 139 C. Judgment at Trial: Counts 18 and 25 139 XI. Count 20 and Count 27: Complainant P.P. 140 A.

Summary of the allegations 140 B. Analysis 140 1. Opportunity 140 2. Statement made by P.P. after the touch 140 3. Accidental touch 140 4. Gymnastics bridge incident 141 5. Allegation concerning A.S. 142 6. Skinny 142 7. Animus/ Motive to Fabricate/ Bias 142 8. Collusive circumstances as a credibility and reliability concern 142 9. Delayed disclosure / “Avoidance” behaviour 143 10. Prior consistent statements 143 C. Judgment at Trial: Counts 20 and 27 144 XII. Count 21 and Count 28: Complainant S.M. 144 A. Background 144 B.

Summary of the allegations 145 C. Analysis 145 1. The Crown has not proven either criminal allegation beyond a reasonable doubt 146 2. Collusive circumstances as a credibility and reliability concern 146 3. Cross-examination on the lap issue 147 4. Credibility and Reliability 148 D. Judgment at Trial: Counts 21 and 28 148 XIII. Count 22 and Count 29: Complainant M.R. 148 A. Background 148 B.

Summary of the allegations 149 C. Analysis 149 D. Judgment at Trial: Counts 22 and 29 150 XIV. Count 23 and Count 30: Complainant J.F. 150 A. Background 150 B.

Summary of the allegations 150 C. Analysis 151 1. Positioning 151 2. Nature of the touching 151 3. Opportunity 152 4. Animus / Motive to Fabricate/ Bias 152

5. Collusive circumstances as a credibility and reliability concern 153 6. Delayed disclosure / “Avoidance” behaviour 154 7. Prior consistent statement 155 8. Comments made by the Defendant 155 D. Judgment at Trial: Counts 23 and 30. 155 Preface [ 1 ] This was a lengthy trial numbering many days. At the end of the trial the Crown and Defence provided very detailed written submissions. The Crown submissions are 45 pages long. The Defence submissions numbered 206 pages, are densely written, and include 1271 specific footnoted references to the record at trial.

These submissions were augmented by detailed oral submissions on the last day of the trial – July 29, 2019. This Court has spent the last six weeks reviewing the evidence at trial including the digital record, transcripts, and the exhibits. [ 2 ] Today I will render judgment concerning the trial in this case. The trial was lengthy. My judgment at trial is almost two hundred pages long. Because it would take probably two or three court sitting days to read the entire judgment, I have decided to read out a small part of the decision today.

Then I will file my written judgment with the Information and the Clerk of the Court for distribution. [ 3 ] There are several interested members of the public, family and friends of the defendant and the complainants, and the media here today. The purpose of this brief oral

summary of my written decision is to give an overview of the central issues. This brief oral

summary will not address the detailed analysis for my decision. In the written judgment I have done my best to be comprehensive and address all of the reasons for my judgment. After providing this oral

summary, I will move straight to a decision on each of the counts before the Court. I. Introduction to the Oral Portion of the Judgment [ 4 ] This case is about a teacher in an elementary school and his physical interaction with children who he either taught or coached in sporting activities. [ 5 ] The allegations involve accusations that the defendant touched twelve female students and one male student in a sexual manner. Nine of the complaints concern conduct alleged during the 2017-2018 school year. One complaint is about conduct alleged during summer school in 2017.

Three of the complaints concern conduct dating back almost a decade. In all of these circumstances, it is clear that the defendant was in a position of trust or authority over the children and the children were too young to consent to sexual contact. [ 6 ] Several central issues will predominate this judgment. I will address in this oral portion of the judgment, upfront, early, so that the issues may be clearly framed. A. Climate of Physical Touch [ 7 ] It is clear, on all of the evidence at trial, that the defendant engaged in the physical touching of students on a regular basis.

This is admitted by the defendant. The defendant acknowledged physical touching, such as a pat on the shoulder or a hand on the waist, as examples of physical touching devoid of sexuality or sexual intent. From the defendant’s perspective, this was a normal part of the school environment and his approach to teaching. The central message of the defendant’s testimony was that while he engaged in the physical touching of students, he never touched a student in a sexual manner, or with sexual intent in his mind. B.

The Focus of the Trial [ 8 ] The focus of this trial was not whether it was wrong for the defendant to have engaged in any form of touching of his students. This trial is focused on whether or not, separate and apart from any touching of students, the Crown has proven beyond a reasonable doubt that the defendant engaged in sexual touching of his students. [ 9 ] The physical touching of any child in society is something that merits examination, particularly in circumstances where the person doing the touching is in a position of trust or authority.

Children are vulnerable members of our society and any circumstance of physical contact with a child may invoke some scrutiny. [ 10 ] I recognize that even the touching of students characterized by the defendant as non-sexual, may cause reasonable members of the community to be concerned, suspicious, or upset. For example, there would seem to be no good reason for a teacher to place a grade six female student on his lap or knee during the school day.

I understand why even reasonable and objective members of the community might deem such physical contact with children as inappropriate, unprofessional, and suspicious. [ 11 ] All that being said, it is critically important, at this early juncture, to make it crystal clear, that this criminal Court is not focused on judging whether or not the defendant acted “inappropriately” or “unprofessionally”. While almost every witness described the defendant as “too touchy”, “too friendly”, and “creepy”, this cannot be the focus of this Court.

This is a criminal trial, and I must maintain a resolute focus on whether the Crown has proven the defendant guilty of criminal misconduct – not professional misconduct. The examination of whether the defendant’s behaviour amounts to professional misconduct is perhaps a question for a regulatory body.

[12] It is also important at this early stage of the judgment to explain that I am well aware that teachers have physical contact withstudents. It should be very clear, that the judgment in this case does not purport to criminalize the incidental, accidental, or innocenttouching of students by teachers generally. The judgment in this case is definitively not a general statement to teachers that physicaltouching of students is always wrong or there is no justification for touching a student. Nothing in this judgment should be taken as acondemnation of teachers who physically touch their students.

This case is not focused on incidental, accidental, or innocent touching ofstudents. This case is focused on allegations of sexualized touching of students, interspersed amongst the phenomenon of frequent non-sexual touching of students. [13] For me as the trial judge, the question is strictly whether the Crown has proven beyond a reasonable doubt that the defendantengaged in sexual touching of the students as specifically alleged in the charges before this Court. C.

Criminal Offences – Sexual Assault and Sexual Interference [14] Neither the Crown nor the Defence dispute the basic elements of the criminal charges before the Court. A sexual assault is anon-consensual intentional touching of another person in circumstances where the sexual nature of the contact is objectively apparent toa reasonable observer. A court must examine the entire context of the circumstances and objectively assess whether or not the touchingwas sexual based on the part of the body touched, the nature of the contact, words used, and gestures.

Sometimes a sexual assault isfairly obvious where it is predicated upon the part of the body touched (e.g. the touching of a woman’s breast). Sometimes a sexualassault involves touching of a more ambiguous nature. In either circumstance, the offence of sexual assault does not require that theCrown prove that there was a sexual purpose accompanying the touching. The crime of sexual interference is designed to protect childrenfrom sexual contact with adults.

The Crown must prove that a non-consensual intentional touching of a child under the age of sixteenyears was accompanied by specific intent mens rea and a sexual purpose. [15] The circumstances surrounding the defendant’s touching of students in this case present complex legal issues. In theenvironment of frequent physical touching described in this case, a number of students have complained about both “inappropriate”touching and sexual touching. Some of the touching alleged is plainly sexual.

For example, testimony that the defendant touched orsqueezed the buttocks of a young female student, if accepted, is perhaps obviously a sexual assault. On the other hand, some of thetouching described by other complainants is not plainly or obviously sexual. For example, testimony that the defendant put his armaround the waist of complainant, while perhaps “unprofessional” or “inappropriate”, might not, on an analysis of all of thecircumstances, immediately convey a sexual nature to an objective observer. D.

The Pathway of Reasoning [16] A trial judge has a duty to show the pathway of reasoning used to determine guilt or innocence. The normal rule in a criminal trialis that the Court may only consider the admissible evidence available on a particular count when evaluating guilt or innocence. TheInformation before the court contains thirty counts involving multiple complainants. On a multiple-count Information, the Court may notuse the individual allegations of misconduct on each of the multiple counts to decide the case in a global or holistic way: R. v. S. (P.L.), (SCC), [1991] S.C.J. No. 27.

The Court cannot simply rely on the combined force of the evidence of manycomplainants to conclude that the coincidence of so many children making similar but false allegations is too great, therefore thedefendant must be guilty.

The only way for the Court to engage in such reasoning, is if the Crown brings an application – a discreditableconduct application across the counts – asking the Court to do just that. [17] The Crown brought the discreditable conduct application seeking to have this Court rely on the pattern of acts and behaviourexhibited by the defendant in relation to all of the complainants to help prove the criminal allegations. The Crown argued that thedefendant is not simply a “physical person” or a “touchy person”. The more ambivalent touching coincided with a sexual purpose just asmuch as the overtly sexual touching.

The Crown argued that if one examines all of the complainants, and all of the counts, a patternemerges showing that the defendant’s physicality is intentional and a precursor to sexual offences. The Crown’s position is that thedefendant is not simply a person who engaged in the non-physical touching of students. Even when touching students in a manner thatmight not scream out “sexual assault”, he was engaged in such touching as a prepatory step to his overall aim of sexualized touching ofstudents.

Finally, the Crown argued that the discreditable conduct across the counts would provide context and support for the evidenceof the many complainants in this trial. [18] The Defence opposed the application. The Defence position was that the complainants have discussed the details of theirpersonal allegations with each other such that a climate of collusion existed prior to their complaint to the police. In such circumstances,the Defence submitted that the independent reliability of the complainants had been compromised and this was fatal to the merits of theCrown application.

As for the trial proper, the Defence submitted that the record produced demonstrated that the climate of collusioneroded the credibility and reliability of the complainants such that the Crown could not prove any of the allegations beyond a reasonabledoubt. The defendant testified and denied any sexual touching or sexual purpose. The Defence submitted that in these circumstances,the Crown had not met the high criminal burden of proof on any of the allegations. [19] Evidence of discreditable conduct is presumptively inadmissible.

The Crown has the burden to establish that the discreditableconduct application should be granted. In this case, based on the record before me, the Crown has not met the burden to establish thatthe discreditable conduct evidence should be admitted at trial. The Crown did not prove that the presumptively inadmissiblediscreditable conduct evidence should be admitted.

The Crown failed to rebut the issue of collusion on a balance of probabilities, andthe evidence otherwise did not meet the test for admission. [20] As a result of this preliminary ruling, this Court was not permitted to use the defendant’s acts in relation to other complainants, toassist with determining the defendant’s guilt is the manner submitted by the Crown.

Where, for example, I heard testimony that thedefendant simply placed his arm around the waist of a child and nothing more, I did not have access to the entire record of his conduct inrelation to all of the complainants, to potentially inform my assessment of his mental intent, and assist with determining if this was acriminal offence. The Crown failed to establish that the discreditable conduct evidence across the counts was admissible in law.

Counts Complainant Finding 1 & 9 E.S. Guilty 2 & 10 S.M. Not Guilty 3 & 11 G.B. Guilty 4 & 12 L.C. Not Guilty 5 & 13 M.V. Guilty 6 & 14 A.S. Guilty 7 & 15 B.H. Guilty 8 & 16 H.G. Not Guilty 17 & 24 B.D. Guilty 18 & 25 M.S. Not Guilty 20 & 27 P.P. Guilty 21 & 28 S.M. Not Guilty 22 & 29 M.R. Not Guilty 23 & 30 J.F. Guilty [ 21 ] The failure of the Crown to establish the admissibility of the defendant’s conduct across all of the counts, in relation to all of the complainants, is a pivotal factor in the ultimate findings at trial.

I am required to assess each count based on the admissible evidence available on that count. I am not permitted to use the defendant’s discreditable conduct in relation to all of the complainants when assessing each individual count. [ 22 ] All of the students testified that the defendant touched them inappropriately and in most cases sexually. The defendant denied each and every circumstance. This means that credibility issues must be resolved by consideration of the evidence as a whole. The Supreme Court of Canada has provided guidelines for how a trial judge is to analyze credibility issues in W.(D). v.

The Queen (1991), 63 C.C.C. (3d) 77 (S.C.C.) [ W.(D.) ]: • First, if you believe the evidence of the accused, obviously you must acquit. • Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. • Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [ 23 ] The core position of the defendant is that: 1.

At no time did he touch a complainant where the circumstances would objectively support a perception that the touching was sexual in nature; and 2. At no time did he touch a complainant with a sexual purpose in mind. [ 24 ] With respect to step one of W.(D). , I do not believe either of these central positions advanced by the defendant. While I believe certain aspects of the defendant’s testimony which I will outline in this judgment, I reject his core position. If I believed either or both of the “twin denials” in his core position, I would find him not guilty of all of the counts before the Court.

Acceptance of either or both of these testimonial defences would mean that the Crown had not proven sexual assault or sexual interference beyond a reasonable doubt. [ 25 ] With respect to step two of W.(D.), it is not enough to simply disbelieve the defendant and therefore find him guilty because of that simple disbelief. That would be an error in law. I must also evaluate the defendant’s evidence as a whole to determine whether it leaves me with reasonable doubt, notwithstanding the fact that I do not believe his core position.

I will explain in this judgment why the defendant’s evidence does not leave me in a state of reasonable doubt. [ 26 ] Rejection of the defendant’s core position and the recognition that his evidence did not leave me in a state of reasonable doubt means I must move on to the third step of the W.(D.) analysis.

Notwithstanding my views of the defendant’s testimony, I must examine what, if any, evidence I accept provided by the Crown’s case to determine whether or not the Crown has proven the defendant’s guilt beyond a reasonable doubt. [ 27 ] I will explain why I do not believe the defendant’s denials by referencing factors that impact his credibility and reliability (Part Four of this judgment) and factors that impact the credibility and reliability of the complainants (Part Five of this judgment).

In the final part of this judgment, Part Six, I will detail the evaluation of each criminal allegation, count by count, without resort to the discreditable conduct record produced at trial. With these preliminary considerations in mind, I will now provide my decision on all of the counts. E. The Decision on Each Count [ 28 ] As I explained at the outset, I have rendered judgment in lengthy written form. At this time, I will provide my decision on each count. Part One

I. Introduction to the Written Portion of the Judgment [1] [ 29 ] The defendant stands charged with a series of sexual offences related to his employment as a teacher and sports coach. The allegations involve the defendant touching a number of students in a sexual manner at school. [ 30 ] There are three groups of complainants in this case. Given the publication order, I have simply named these groups: “the grade school complainants”, the “historical complainants”, and the “summer school complainant” rather than set out the particular schools involved. A.

The “Grade School Complainants” [ 31 ] In March 2018, the defendant was arrested and charged in relation to several allegations of sexual assault and sexual interference between September 2016 and February 2018. These charges related to a number of child complain​ants at a school where he was a teacher and coach of sport teams. These complainants were in grade six or seven at the time of the investigation. They were all approximately aged ten to twelve at the time of the police investigation and the provision of their video statements to the police.

By the time of trial, these complainants were approximately one year older. [ 32 ] At trial, each of these complainants used the CCTV video room, adopted their s. 715.1 video statement to the police, and testified pursuant to a promise to tell the truth. When I refer to this collection of complainants, I term these the “grade school complainants”. B. The “Historical Complainants” [ 33 ] On March 19, 2018 the Durham Regional Police Service distributed a media release upon the arrest of the defendant. Thereafter there was publicity on the internet and news media concerning the defendant.

As a result of this publicity, additional persons came forward with historical allegations dating back almost a decade. [2] [ 34 ] On April 18, 2018 the police arrested and charged the defendant a second time concerning a new group of complainants. The focus of this group of complainants concerned allegations about conduct that occurred when they were aged nine, ten, or eleven and in grade six during a time period covering 2010 to 2012. These witnesses attended a different school than the grade school complainants and the summer school complainant.

All of the complainants and witnesses called in support of these allegations were aged 18 at the time of the investigation and 19 at the time of trial. These witnesses testified in open court. I term these complainants the “historical complainants”. C. Single Summer School Complainant [ 35 ] Finally, there is one complainant who testified concerning events that occurred during summer school (July 2017) when she was taught by the defendant. I term this complainant the “summer school complainant”. D.

The Information [ 36 ] The Information contains one count of sexual assault contrary to s.271 of the Criminal Code of Canada [ Criminal Code ] and one count of sexual interference contrary to s. 151 of the Criminal Code in relation to each complainant. Each pair of counts is framed in an identical fashion save and except for the name of the complainant and the date. The Crown withdrew counts 19 and 26 in relation to one complainant at the outset of the trial due to the unavailability of the complainant.

In written submissions at the end of the trial, the Crown invited the Court to dismiss counts 2 and 10 in relation to complainant S.M. [ 37 ] This leaves the following counts in relation to the “grade school complainants”: • E.S. – Counts 1, and 9 • G.B. – Counts 3, and 11 • L.C. – Counts 4, and 12 • M.V. – Counts 5, and 13 • A.S. – Counts 6, and 14 • B.H. – Counts 7, and 15 • H.G. – Counts 8, and 16 • B.D. – Counts 17, and 24 • P.P. – Counts 20, and 27 [ 38 ] The following counts relate to the “historical complainants”: • S.M. – Counts 21, and 28

• M.R. – Counts 22, and 29 • J.F. – Counts 23, and 30 [39] The single “summer-school complainant” is represented by: • M.S. – Counts 18, and 25 E. Organization of this Judgment [40] A trial court has a responsibility to provide clear reasons for a decision. This judgment cannot, and will not, reproduce the vastrecord. This judgment cannot and will not address every single submission made by the Crown and Defence. It is impossible to reduceevery single composite step in decision-making to writing.

Similarly, particularly in a lengthy trial, it is not possible to outline everypiece of evidence, every argument, or every nuance at trial. Rather, the focus will be on the findings of fact and the analysis relevant tothe legal issues and the criminal burden of proof. [41] The judgment is organized in the following parts: 1. Part One – Introduction to the Written Portion of this Judgment; 2. Part Two – Discreditable Conduct Application; 3. Part Three – The Offences: Sexual Assault and Sexual Interference; 4. Part Four – The Credibility and Reliability of the Defendant; 5.

Part Five – The Credibility and Reliability of the Complainants; and 6. Part Six – Judgment on each count. PART TWO I. Discreditable Conduct Application – “Similar Fact AcrossCounts” A. Procedural Considerations [42] Prior to trial, the Crown properly applied to admit discreditable conduct across the counts on the Information: R. v. Tsigirlash,2019 ONCA 650, at paras. 26-27. The parties requested that the discreditable conduct application be addressed at the end of theevidence, during submissions, rather than at the end of the Crown’s case: R. v. Last, 2009 SCC 45 , 2009 S.C.C. 45, at para. 34;R. v.

C.(U.), 2009 ONCA 367, at para. 19. As such, the application was blended with the trial. B. Position of the Applicant [43] The Crown seeks the admission of the summer school complainant count and the historical complainant counts as discreditableconduct. The Crown submits that these four counts may be considered amongst themselves pursuant to this application. The Crownfurther submits that these four counts may be used as discreditable conduct in relation to the grade school complainant counts.

TheCrown does not request that the Court use the grade school complainant counts as discreditable conduct in any manner. [44] The Crown submits that the discreditable conduct evidence is relevant to the credibility and reliability of the child complainantsand witnesses and is specifically probative of the following: • Whether the touching occurred as described. • That the touching was intentional and not accidental. • To rebut the argument of collusion. • Whether the touching was objectively sexual in nature. • Whether the touching was for a sexual purpose. C.

Position of the Respondent [45] The Defence position is that the application should be dismissed because the Crown has not rebutted the comprehensive record

of collusion impacting all of the complainants and has otherwise failed to establish the admissibility of the evidence. D. Ruling on the Application [ 46 ] The cross-examination by the Defence was comprehensive, wide-ranging, detailed, and deliberate. Both Defence counsel deftly handled the difficult task of cross-examining child witnesses. The level of preparation on the part of Defence counsel was evident, clear, and impressive. There was a clear Defence approach– mine the witnesses for as much evidence of collusion as possible in aide of undermining the Crown’s discreditable conduct application.

While there were certainly other impacts associated with this approach that I will detail later in this judgment, for now, it is sufficient to simply observe that the Defence created a formidable record of collusive circumstances.

The lengthy cross-examination of every witness was focussed on producing the record of rumours, discussions, speculation, and communications in support of the Defence position that the collusive circumstances impaired the reliability (and potentially also the credibility) of the complainants in this case. [ 47 ] For the reasons that follow, the application to admit discreditable conduct across the counts is dismissed. E. Outline of this Ruling [ 48 ] The organization of my Ruling on this application revolves around the test for admissibility outlined in R. v. Handy , 2002 SCC 56 [ Handy ].

I will begin by outlining the components of the test identified by the Court in Handy including: 1. Presumptive inadmissibility; 2. The material issue or issues in question; 3. The required degree of similarity; 4. Nexus; 5. The distinction between admissible and inadmissible propensity evidence; 6. Discreditable conduct need not be conclusive of guilt to be admitted; 7. Special considerations in cases of child sexual abuse; 8. Collusion; and 9. Balancing probative value versus prejudicial effect. [ 49 ] After this brief

summary, I will apply the Handy framework to the issues on this application. It should be noted that the Court did not employ a rigid, formulaic, step-by-step application of the components of the test for admissibility. The Court identified relevant factors at the outset, and then applied the factors relevant to the particular record in Handy . This ruling will follow a similar format. It is important that the relevant factors are adapted to the peculiar factual circumstances of the case. II. The Test for Admissibility – The Handy Template A.

General Considerations [ 50 ] The ultimate aim of a trial judge on a discreditable conduct application is to marshal the relevant evidence and consider the relevant factors enroute to the ultimate weighing of the probative value of the evidence versus the prejudicial impact associated with the admission of the evidence. The authoritative framework provided by Handy guides this analysis. B. Discreditable Conduct Evidence is Presumptively Inadmissible [ 51 ] The analysis begins with the recognition that discreditable conduct evidence is presumptively inadmissible.

The presumptive exclusion of such evidence recognizes the inherent danger of using character evidence as circumstantial evidence of the defendant’s propensity or disposition to perform the acts charged: Handy , at paras. 31,36 . [ 52 ] There is a narrow basis for admission of discreditable conduct evidence premised on a careful analysis of the issue to which the admission of the evidence is directed and a determination that the evidence is so “. . . highly relevant and cogent that its probative value in the search for the truth outweighs any potential for misuse. . .” : Handy , at para. 41 . C. Material Issue(

s) in Question [ 53 ] A critical step in the Handy frame work is to ascertain the material issue or issues in question to which the discreditable conduct evidence is directed. [ 54 ] As explained by the Court: 74 The issues in question derive from the facts alleged in the charge and the Defences advanced or reasonably anticipated. It is

therefore incumbent on the Crown to identify the live issue in the trial to which the evidence of disposition is said to relate. If the issuehas ceased to be in dispute, as for example when the fact is admitted by the accused, then the evidence is irrelevant and it must beexcluded: R. v. Clermont, (SCC), [1986] 2 S.C.R. 131 (S.C.C.), at p. 136; R. v. Bosley (1992), (ONCA), 18 C.R. (4th) 347 (Ont. C.A.), at p. 360; R. v. Proctor (1992), (MB CA), 69 C.C.C. (3d) 436 (Man. C.A.), at p.447; R. v. Hanna (1990), (BC CA), 57 C.C.C. (3d) 392 (B.C. C.A.); and B. (L.), supra, at p. 50.

The relativeimportance of the issue in the particular trial may also have a bearing on the weighing up of factors for and against admissibility. Similarfact evidence that is virtually conclusive of a minor issue may still be excluded for reasons of overall prejudice. [55] It is important to clearly set out the material issue(

s) in question because the ultimate balancing of probative value versusprejudicial effect is informed by considering the specific material issue to which the discreditable conduct evidence is directed: R. v.Mahalingan, 2008 SCC 63, at para. 72; Handy, at paras. 69-70. [56] The issue in question may not be characterized broadly as the general disposition or general credibility of the defendant: Handy,at para. 71-72. However, it is permissible for the material issue to focus on the pattern of similar behaviour that serves to confirm theevidence of multiple complainants: R. v. T.B., 2009 ONCA 177, at para. 22. D.

Required Degree of Similarity [57] According to Handy, the probative value of the discreditable conduct evidence may increase depending upon the similaritybetween the other discreditable conduct and the alleged criminal conduct for which the defendant is on trial. Where the material “issuein question” is the essential element of identification, a high degree of similarity, akin to a signature, or a peculiar or distinctivepropensity is required: Handy, at paras. 76-80.

Where the issue is the actus reus, a more nuanced approach is required as explained bythe Court at paragraph 78: 78 The issue in the present case is not identification but the actus reus of the offence. The point is not that the degree of similarity insuch a case must be higher or lower than in an identification case. The point is that the issue is different, and the drivers of cogency inrelation to the desired inferences will therefore not be the same. As Grange J.A. correctly pointed out 20 years ago in R. v. Carpenter(1982), (ON CA), 142 D.L.R. (3d) 237 (Ont.

C.A.), at p. 244: The degree of similarity required will depend upon the issues in the particular case, the purpose for which the evidence is sought to beintroduced and the other evidence. [58] In all discreditable conduct applications, the Court must assess the degree of similarity required. The assessment of the degree ofsimilarity required must calibrated having regard to the material issue(

s) in question. E. Nexus [59] The probative value of the evidence also depends on the nexus between the evidence of discreditable conduct and the offences towhich that evidence is directed at proving: R. v. MacCormack, 2009 ONCA 72, at para. 49. As explained by the Court in Handy atparagraph 82: 82 The trial judge was called on to consider the cogency of the proffered similar fact evidence in relation to the inferences sought to bedrawn, as well as the strength of the proof of the similar facts themselves.

Factors connecting the similar facts to the circumstances setout in the charge include: (1) proximity in time of the similar acts: D. (L.E.), supra, at p. 125; R. v. Simpson (1977), (ON CA), 35 C.C.C. (2d)337 (Ont. C.A.), at p. 345; R. v. Huot (1993), (ON CA), 16 O.R. (3d) 214 (C.A.), at p. 220; (2) extent to which the other acts are similar in detail to the charged conduct: Huot, supra, at p. 218; R. v. Rulli (1999), (ON CA), 134 C.C.C. (3d) 465 (Ont.

C.A.), at p. 471; C. (M.H.), supra, at p. 772; (3) number of occurrences of the similar acts: Batte, supra, at pp. 227-28; (4) circumstances surrounding or relating to the similar acts (Litchfield, supra, at p. 358); (5) any distinctive feature(

s) unifying the incidents: Arp, supra, at paras. 43-45; R. v. Fleming (1999), (NL CA), 171Nfld. & P.E.I.R. 183 (Nfld. C.A.), at paras. 104-5; Rulli, supra, at p. 472; (6) intervening events: R. v. Dupras, 2000 BCSC 1128 , [2000] B.C.J. No. 1513 (QL) (S.C.), at para. 12; (7) any other factor which would tend to support or rebut the underlying unity of the similar acts. F. Admissible versus Inadmissible Propensity Evidence [60] The probative value of the propensity evidence increases, and potentially surpasses the prejudice associated with admission,when it is specifically focused on the material issue in question.

As explained by the Court in Handy at paragraph 91: 91 References to "calling cards" or "signatures" or "hallmarks" or "fingerprints" similarly describe propensity at the admissible end ofthe spectrum precisely because the pattern of circumstances in which an accused is disposed to act in a certain way are so clearly linkedto the offence charged that the possibility of mere coincidence, or mistaken identity or a mistake in the character of the act, is so slight as

to justify consideration of the similar fact evidence by the trier of fact. The issue at that stage is no longer "pure" propensity or "generaldisposition" but repeated conduct in a particular and highly specific type of situation. At that point, the evidence of similar facts providesa compelling inference that may fill a remaining gap in the jigsaw puzzle of proof, depending on the view ultimately taken (in this case)by the jury.

The powerful inference associated with admission of the evidence is sourced in the improbability of coincidence and the “. . . observedpattern of propensity operating in a closely defined and circumscribed context.”: Handy, at paras. 87-91, 110. G. Discreditable Conduct need not be Conclusive of Guilt [61] The Court rejected an approach requiring the proposed discreditable conduct evidence be virtually conclusive of guilt in order forit to be admitted.

The Court explained that the admissibility test is akin to the circumstantial evidence test – that the circumstances areconsistent with guilt and inconsistent with any other rational conclusion. H.

Considerations in Cases of Child Sexual Abuse [62] There are particular considerations in cases of child sexual abuse as explained by the Handy Court at paragraph 42: 42 The “common sense” condemnation of exclusion of what may be seen as highly relevant evidence has prompted much judicialagonizing, particularly in cases of alleged sexual abuse of children and adolescents, whose word was sometimes unfairly discountedwhen opposed to that of ostensibly upstanding adults.

The denial of the adult, misleadingly persuasive on first impression, would meltunder the history of so many prior incidents as to defy innocent explanation. That said, there is no special rule for sexual abuse cases. Inany case, the strength of the similar fact evidence must be such as to outweigh “reasoning prejudice” and “moral prejudice”.

Theinferences sought to be drawn must accord with common sense, intuitive notions of probability and the unlikelihood of coincidence.Although an element of “moral prejudice” may be introduced, it must be concluded by the trial judge on a balance of probabilities thatthe probative value of the sound inferences exceeds any prejudice likely to be created. I. Collusion [63] The Handy Court analysed the issue of collusion as part of the assessment of the probative value of the evidence. The issue ofcollusion must be assessed by the trial judge at the admissibility stage: Handy, at paras. 109-113. 1.

Why is the issue of collusion so important? [64] The core assertion by the prosecution in relation to the admission of similar fact evidence asks the rhetorical question: What isthe probability of coincidence involved when a multitude of complainants make a similar complaint about the sexual touchingperpetuated by the defendant? Put another way, the prosecution asserts that it is highly unlikely that the complainants would en masseengage in similar false or inaccurate allegations against a teacher they loved.

By bringing this application, the Crown is seeking thecorroborative weight of the mass of complaints to establish the guilt of the defendant. [65] The Defence submits that the prosecution’s position is irrevocably impaired by the collusive circumstances impacting all of thecomplainants and witnesses. Collusion is a “. . . [c]rucial factor because the existence of collusion rebuts the premise on whichadmissibility depends. . .”: Handy, at para. 110. Collusion rebuts the improbability of innocent coincidence thereby negating theprobative value of the proffered similar fact evidence: Handy, at paras. 104-113; R. v.

Arp, (1998), (SCC), 129 C.C.C.(3d) 321 (S.C.C.) at p. 344; R. v. Burke, (SCC), [1996] S.C.J. No. 27, at paras. 38-45; R. v. McDonald, (ON CA), [2000] O.J. No 3315 (C.A.), at para. 27. 2. Role of the trial judge [66] The trial judge performs an important gatekeeper role and must analyse the evidence in support of collusion when consideringthe probative force of the similar fact evidence: Handy, at para. 106. The balancing of probative value and prejudicial impact necessarilyinvolves a limited weighing of the evidence for this purpose: R. v.

B. (C.R.), (1990), (SCC), 55 C.C.C. (3d) 1 (S.C.C.),at p. 24. 3. “Air of Reality” [67] An “air of reality” regarding collusion is established by evidence of “concoction or collaboration, not “contact or mereopportunity”: Handy, at para. 111. 4. What constitutes collusion? [68] The Ontario Court of Appeal provided an excellent definition of collusion in R. v.

Clause, 2016 ONCA 859, at paragraph 81: 81 Collusion can arise both from a deliberate agreement to concoct evidence, as well as from communication among witnesses that canhave the effect, whether consciously or unconsciously, of colouring and tailoring their descriptions of the impugned events: R. v. B.(C.)(2003), (ON CA), 167 O.A.C. 264, [2003] O.J. No. 11 (C.A.), at para. 40. As this court noted in R. v. F.(J.) (2003), (ON CA), 177 C.C.C. (3d) 1, [2003] O.J.

No. 3241 (C.A.), at para. 77, the "reliability of a witness'saccount can be undermined not only by deliberate collusion for the purpose of concocting evidence, but also by the influence of hearingother people's stories, which can tend to colour one's

interpretation of personal events or reinforce a perception about which one haddoubts or concerns."

[69] Further, as explained in R. v. B.(C.), (ON CA), [2003] O.J. No 11 (C.A.) at paragraph 40, the definition doesnot necessarily imply sinister motivations: 40 Collusion can arise both from a deliberate agreement to concoct evidence as well as from communication among witnesses that canhave the effect, whether consciously or unconsciously, of colouring and tailoring their descriptions of the impugned events. In this casethere was evidence of, or at least the opportunity for collusion in the various discussions regarding the incidents reported by thecomplainants.

Furthermore, taken together with the anger regarding the dismissal and pay issues between one complainant and theappellant and the joint lawsuit by the complainants for damages, there was clearly an air of reality to the possibility of collusion in thiscase. [70] The definition of collusion, as it applies to a discreditable conduct application, may encompass inadvertent, innocent, andunintentional contact: R. v. Wilkinson, 2017 ONCA 756, at paras. 36-40 [Wilkinson]; R. v. Dorsey, 2012 ONCA 185 [Dorsey].

Further,collusion may be sourced in external influences on the witnesses including pre-trial publicity: Dorsey; R. v. A.(H.), 2007 ONCA 530.Hearing other complainants’ experiences may colour one’s

interpretation of personal experience and reinforce perceptions, doubts, andconcerns: R. v. F.(J.) (2003), (ON CA), 177 C.C.C. (3d) 1 (Ont. C.A.), at para. 77. [71] That there is evidence of an opportunity for witnesses to have colluded, communicated, or consulted, does not necessarily meanthat the prosecution attempts to rebut the prospect of collusion must fail: R. v. Shearing, (2002), 2002 SCC 58 , 165 C.C.C. (3d)225 (S.C.C.) at paras. 43-44 [Shearing]; R. v. W. (J.), 2013 ONCA 89. Simple awareness that others have made allegations does notnecessarily establish collusion.

The simple fact that one complainant knows that others have come forward with allegations, withoutknowledge of the details of the allegations, does not establish collusion: R. v. M. (R.), 2015 ONCA 9. Where the evidence supports mereopportunities to collude, the issue should be left to the trier-of-fact for ultimate assessment of the weight to assign to the admissiblediscreditable conduct: Shearing, at para. 44; Dorsey, at paras. 29-31. 5. Collusion – onus [72] The Defence is not required to prove collusion occurred: Handy, at para. 113.

Where there is some evidence of collusion, or atleast an “air of reality” to the assertion of collusion, the Crown, as the proponent of the presumptively inadmissible evidence, bears theonus to establish on a balance of probabilities, that the similar fact evidence is free from the taint of collusion: Handy, at para. 12. Wherethe Crown is unable to rebut the assertion of collusion on a balance of probabilities, the similar fact application should be dismissed: R.v. J.T., 2018 ONSC 446, at para. 10; Wilkinson, at paras. 36-39. J.

Balancing Probative Value versus Prejudicial Impact [73] When determining the admissibility of discreditable conduct evidence, the ultimate question is – has the Crown established thatthe probative value associated with receipt of the evidence outweighs the prejudicial impact associated with admission of the evidence:Handy, at paras. 49-51. The probative value associated with admission must outweigh the prejudicial effect: R. v. Goldfinch, 2019 SCC38, at para. 64 [Goldfinch]; Handy, at para. 50.

The probative value of the evidence must outweigh the “moral prejudice” and“reasoning prejudice”, as defined associated with its admission: Handy at paras. 31,42, 71-72, 83, 100. [74] With all of these factors in mind, I will now apply the relevant features of the test to the facts of this case. III. Application to this Case A. The Material “Issue(

s) in Question” [75] The first relevant step in the Handy framework concerns the assessment of the material issue(

s) in question. [76] I accept the Crown submission that the proposed discreditable conduct evidence is reasonably probative of the issues outlined insupport of admission: • Whether the touching occurred as described. • That the touching was intentional and not accidental. • To rebut the argument of collusion. • Whether the touching was objectively sexual in nature. • Whether the touching was for a sexual purpose. [77] These live issues permit the proper consideration of the probative value versus prejudicial impact associated with admission. Butthe analysis of the material issue(

s) in question must also consider the larger record on the application. B. The Defendant’s Testimony and the “Material Issues in Question” [78] The probative value of the proffered evidence must be assessed in the context of the material issues to which it is directed:Handy, at para. 73. In this case, the parties argued the application at the end of the trial. The defendant chose to testify on the blendedapplication and trial. His testimony, to a degree, mitigates the probative value associated with admission:

1. He acknowledged that he engaged in regular non-sexual physical touching of students; 2. He acknowledged that he continued to engage in non-sexual physical touching of students even after receiving a warning from his Principal; 3. He acknowledged that he was in a position of trust or authority; 4. The defence conceded the essential element of identification; 5. He did not attempt to rely on any notion of consent as a specific defence to any of the allegations; and, 6.

He did not ultimately rely on accidental touching as a specific defence to any of the allegations. [ 79 ] It is also critical that the defendant generally acknowledged the background circumstances provided by the complainants relating to their allegations. He admitted that he had no challenge to the general circumstances testified to by each complainant.

In so testifying, the defendant generally acknowledged each complain​ant’s recount of the surrounding circumstances of touching and the foundational circumstances relevant to their articulation of contact with him, even while clearly disputing any sexualized contact. C. Collusion and the “Grade School Complainants” [ 80 ] The next relevant issue is the central issue litigated on this application – collusion. I find that there is an air of reality to the issue of collusion in relation to all the grade school complainants.

The Crown, as the applicant, has not rebutted the spectre of collusion on a balance of probabilities. [ 81 ] Defence counsel methodically and exhaustively cross-examined the complainants. This approach produced a dense voluminous record. Defence counsel have exhaustively outlined the multitude of conversations and discussions amongst the child complainants and witnesses in their detailed submissions. [ 82 ] The Crown stipulated that the grade school complainant counts should not be utilized as discreditable conduct evidence. I agree.

I will therefore only summarily outline the relevant factors concerning this group of complainants: 1. They were similarly aged female children and one male child; 2. They attended the same school; 3. They were split between grade 6 and grade 7; 4. Some of the children played on sports teams coached by the defendant; 5. Almost all of the children were directly taught by the defendant; 6. Each complainant testified to a very positive, subjectively-held view of the defendant; 7.

Throughout the 2017-2018 school year, children at the school, including the grade school complainants, engaged in specific discussions about the inappropriate behaviour of the defendant; 8. The discussions at the school included opinions that the defendant was “too touchy”, “too friendly”, and “creepy”; 9. The defendant went on a leave of absence in January 2018 due to illness. This absence provoked additional discussions amongst children at the school including discussions that his absence was related to his conduct; 10.

The defendant’s arrest in March of 2018 provoked a multitude of discussions amongst the complainants and witnesses in this case; 11. The defendant’s re-arrest in April of 2018 provoked additional discussions; 12. A police media release provoked additional discussions; 13. Media publicity caused additional discussions; and, 14.

The discussions involved the exchange of details amongst all of the grade school complainants and child witnesses from the same school. [ 83 ] The unassailable conclusion based on the comprehensive record produced by the Defence is that all of the complainants and witnesses discussed experiences and observations with the defendant including at times the specifics of how he was touching children improperly and sexually. The discussions and exchange of information impacted all of the grade school complainants and witnesses.

Specifically: • The collusive circumstances impacted every complainant from the grade school group (complainants E.S., S.M [3] , G.B., L.C., M.V., A.S., B.H., H.G., B.D., M.S., P.P. • The collusive circumstances also impacted the child witnesses (not complainants) called by the Crown ( C.M., and K.B.) • These collusive circumstances impacted the grade school complainants and witnesses prior to their police statements, after their police statements, and in some cases during the time period leading up to trial

• These discussions at times involved the exchange of particular details of the acts perpetrated by the defendant [ 84 ] None of the child complainants or child witnesses colluded with bad intent. The resounding crescendo from all witnesses in this case was that the defendant was held in high regard. He was everyone’s favourite teacher. He was “cool”. He was approachable. He could relate to the children. His classes were fun. He appeared to care about his students. Every single child witness and child complainant endorsed a positive subjectively-held view of the defendant.

None of these child complainants and child witnesses conspired to fabricate evidence against the defendant. But, the record demonstrates that every last one of them engaged in discussions including details about the defendant’s conduct. [ 85 ] The fact that these discussions occurred is neither shocking nor surprising. Everyone’s favourite teacher was suddenly on a mysterious leave of absence. Then he was arrested by the police – twice. Then there was media coverage. Stories on the internet.

How could it ever be the case that the children at a grade school would remain quiet and introspective about such circumstances. This would have been totally unnatural. A grade school is a small community. The idea of a leading educator being accused of touching children in a sexual manner would cause the entire student body to discuss the event, let alone teachers and parents. [ 86 ] It is also not shocking that the child complainants and child witnesses may have exchanged details of what the defendant did to them. These children were beginning to bridge their childhood years to young-adult years.

This is often a time when children begin to transition from reliance on parents to reliance on peer groups. There is nothing shocking or disturbing about the fact that these children sought comfort and reassurance from speaking to each other about what was happening to them. [ 87 ] But these understandable circumstances also solidly support the Defence position on collusion. There is little doubt that rumour, speculation, and discussion occurred.

It would have been entirely unnatural for the student body to remain mute in the face of such sensational circumstances. [ 88 ] The lion’s share of this trial concerned the allegations involving the grade school complainants. At the end of the trial, the Crown did not seek to use this body of evidence as foundation for prior discreditable conduct analysis. The Defence asserted that collusive circumstances rendered this body of evidence inadmissible. I agree with the submissions of the Defence. I disagree with the Crown position. The Crown did not rebut the issue of collusion on this record.

I am satisfied that all of the grade school complainants and witnesses engaged in conversations involving details of the particular touching perpetrated by the defendant. The collusive circumstances eroded the premise upon which admission of the discreditable conduct relies. D. Collusion and the Historical Complainants [ 89 ] There is an air of reality to the collusion issue concerning the historical complainants.

The Crown has not rebutted the issue of collusion sufficient for the admission of this evidence as discreditable conduct for any purpose. [ 90 ] The historical complainants were not at the defendant’s school in March 2018. These adult complainants were in University, faraway from Durham. While these complainants were not directly exposed to the storm of collusive discussions occurring at the defendant’s school, they nonetheless engaged in discussions sufficient to find a climate of collusion enveloping their disclosure of allegations against the defendant.

The climate of collusion included: • That during high school, complainants S.M., M.R., and J.F. engaged in a group discussion on a McDonald’s restaurant patio wherein they exchanged details about the defendant’s inappropriate touching behavior. • J.F. testified that every time the defendant’s name came up in the years since exposure to the defendant’s conduct, she would communicate to anyone present that she did not like the defendant. There is little doubt that such an approach would provide opportunities for further discussions about why she held these views.

To the extent J.F. denied any conversations about the defendant, I deem her an unreliable historian on this issue. • M.R. detailed conversations involving J.F. and M.R. and others about how the defendant was “creepy” and should not have been touching children. S.M. had a series of communications with others when she found out the defendant had been arrested. She also endorsed discussion with M.R. about the conduct of the defendant. [ 91 ] The historical complainants have had approximately nine years to engage in discussions.

This body of evidence, while no where near as substantial as that produced concerning the grade school complainants, is significant enough to establish collusion. As it pertains to the historical complainants, I would dismiss the application on the basis of collusion alone. But there is another concern with the admissibility of the historical complainant counts as discreditable conduct - nexus. E.

The Weak Nexus Between the Historical Complaints and the Complaints made by the Grade School Complainants [ 92 ] In addition to my concerns about collusion, the nexus between the allegations made in March 2018, and the allegations sourced from the historical complainants dating back to 2009, is weakened by the passage of time. [ 93 ] In this case, identification of the defendant as the person who interacted with the children is not in issue.

The probative value of the discreditable conduct is premised on the supposition that the defendant was guided by the same motivations, impulses, and intent with respect to his physical touching of a number of students in both 2009 and 2018. The decade between the allegations made by the historical complainants and the grade school complainants objectively weakens this premise on the facts and circumstances extant in this particular trial: (See R. v. P.M.C. , 2016 ONCA 829 , at paras. 22-25 for a similar examination of this issue.) [ 94 ] There were no intervening circumstances during this ten-year period.

At the end of the prosecution case, the Crown successfully applied to admit discreditable conduct evidence in relation to a formal warning communicated to the defendant by his Principal. As I

will discuss more fully below, the Crown did not seek to call evidence concerning proof of the underlying circumstances giving rise tothe warning. The Crown did not call evidence directed at the defendant’s alleged conduct in relation to a female student at the time. Theonly probative record produced was the content of the warning provided to the defendant. The underlying allegation was not proven.Given this record there are no relevant intervening circumstances.

Given this gap in time, I am concerned about the probative value ofthis evidence supporting the Crown theory that the defendant was possessed of the same sexual impulses and motivations in both2009/2010 and 2018. F.

The Probative Value Associated with the Admission of the HistoricalComplainant Counts is outweighed by the Prejudicial Impact [95] Having balanced all of the relevant considerations, the probative value of admitting the historical complainant counts asdiscreditable conduct is outweighed by the prejudice associated with admission. [96] My findings concerning collusion and the lack of nexus drive this conclusion. Other considerations include the fact that thedefendant’s testimony does not conflict with the overarching circumstances leading up to his impugned actions as described by eachcomplainant.

There is no need to admit discreditable conduct evidence to bolster the circumstances described by the complainants attrial. Further, there is no issue of identification in this case. G.

The Probative Value Associated with the Admission of the Summer SchoolComplainant count is outweighed by the Prejudicial Impact [97] While complainant M.S. was not subject to the collusive circumstances involving the group of grade school complainants or thegroup of historical complainants, she was subject to the impact of discussions with others concerning the conduct of the defendant whichimpacted her reliability as a witness at trial.

It is also apparent that notwithstanding that she had no direct contact with the grade schoolcomplainants, there was nonetheless a climate of discussions about the defendant’s conduct at her school after his arrest. M.S. relatedsome of these discussions during her testimony. But these discussions did not involve other complainants at this trial. [98] I find that the Crown has rebutted the issue of collusion as it pertains to complainant M.S. on a balance of probabilities.

M.S. wasexposed to opportunities to collude, but the evidentiary record does not support a finding that the collusive opportunities involved thedetailed discussions. [99] Nevertheless, I find that the probative value of admitting the single summer school complainant count as discreditable conduct isoutweighed by the prejudice associated with admission because of the dissimilarity of her allegation. [100] As outlined above, identity is not in issue.

The factual circumstances surrounding each complainant’s rendition of events is notdisputed by the defendant – just the sexual nature and sexual purpose of any touching. The issue of similarity has to be analyzed withinthe context of the material issues in question: Handy, at paras. 76-78. I find that the approach to similarity outlined by Watt. J.

A. in R. v.Durant, 2019 ONCA 74, at paragraphs 101-102 is focussed on the issue of similarity in the context of the test applicable whereidentification is the material issue in question. [101] The allegation made by M.S. is manifestly dissimilar to any other allegation in this trial. No other complainant describes sexualcomments associated with the touching. The incident allegedly occurred quite prominently in the front of the class. I acknowledge thatin sexual assault cases, similar circumstances may suffice for the purposes of admission notwithstanding some dissimilarity in the natureof the acts: R. v.

S.C., 2018 ONCA 454, at paras. 23-27. But the circumstances – a classroom – are more generic. But, after carefulconsideration of the record on this application, the allegations made by M.S. are too dissimilar and too generic to assist this Court withthe issue of actus reus or mens rea: R. v. B.(R.), (ON CA), [2003] O.J. No. 4589 (C.A.), at paras. 61-64, aff’d R. v.Blake, 2004 SCC 69; R. v. A.F., 2010 ONSC 5824, at para. 72. H.

Decision [102] For all of these reasons, the probative value associated with admission of the discreditable conduct evidence is outweighed by theprejudice associated with admission. [103] The application is dismissed. PART THREE I. The Offences: Assault, Sexual Assault, SexualInterference [104] Given the submissions of counsel, the basic elements of the offences before the court are not disputed. I will address the essentialelements briefly as a result. A. Sexual Assault

[105] Sexual Assault requires the Crown to establish the following beyond a reasonable doubt: • That the defendant intentionally applied force; • The complainant did not consent to the force that the defendant intentionally applied; • That the defendant knew that the complainant did not consent to the force that he intentionally applied; and, • That the force that the defendant intentionally applied took place in circumstances of a sexual nature. [106] The Supreme Court of Canada has provided clear guidance on how to evaluate circumstances of a sexual nature, the fact thatsexual assault is a general intent offence, and the requisite elements of the offence: R. v.

Chase, (SCC), [1987] 2 S.C.R.293, at para. 11 [Chase]; R. v. Jarvis, 2019 SCC 10, at paras. 50,124-125; R. v. Ewanchuck, (SCC), [1999] S.C.J. No10. The test outlined in Chase is still the focus in most sexual assault trials involving touching: The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: "Viewed in thelight of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer".

The part of the bodytouched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all othercircumstances surrounding the conduct, including threats which may or may not be accompanied by force, will be relevant. [Citationsomitted.] [107] Relevant to this case, it is important to keep in mind that the “force” need not be forceful. Even a gentle touch will suffice: R. v.R.V., 2019 ONCA 664, at paras. 109-116. Finally, the Crown does not have to prove a sexual purpose for the touching: R. v. Trachy,2019 ONCA 622, at paras. 70-74 [Trachy]. B.

Sexual Interference [108] The purpose of this

section is to protect children from any sexual contact with adults: R. v. E.C., 2019 ONCA 688, at para. 14.Sexual Interference requires the Crown to establish the following beyond a reasonable doubt: • That the complainant was under the age of 16 at the time of the offence; • That the defendant intentionally touched the complainant whether directly or indirectly; and, • That the touching was for a sexual purpose. [109] Sexual interference is a crime of specific intent: R. v. B.J.T., 2019 ONCA 694, at para. 37 [B.J.T.]; R. v. Bone, (MB CA), [1993] M.J. No. 222 (C.A.).

The Crown must prove that the touching was done for a sexual purpose: Trachy, at para70. While the defendant may have another reason for the touching, if he also has a sexual purpose, the offence is proven: B.J.T, at para.37. C. Assault [110] A challenging issue in this judgment is assessing the defendant’s liability for simple assault. At the end of final submissions, theCrown submitted that the defendant should be convicted of assault if his liability for sexual assault is not established.

I am not satisfiedbeyond a reasonable doubt that the Crown has established the simple offence of assault in relation to any of the complainants. This is afunction of several considerations. [111] First, procedural considerations impact the fair trial rights of the defendant. During the blended application and trial, some of thecomplainant’s testified to circumstances that were not clearly or objectively sexual in nature. This Court raised the issue of procedurewith the Crown.

At several points in the proceeding this Court required the Crown to stipulate their procedural intentions at the end ofdirect examination of the complainant (i.e., whether or not the Crown was maintaining a prosecution based on sexual assault and sexualinterference). As this Court indicated at the time, given the blended nature of the proceeding, the Defence was entitled to know whatrecord was being relied on concerning the application and what was the case to meet on the trial proper. Furthermore, the defendant wasentitled to know what jeopardy he was facing prior to testifying.

In these circumstances, the Crown maintained the prosecution as asexual assault and sexual interference and referenced the discreditable conduct application. In my view, asking the Court to convict onassault in these circumstances works a procedural unfairness to the defendant. While I recognize that assault is both a lesser andincluded offence and an element of the offence of sexual assault, this procedural approach, on a blended application and trial, prejudicedthe defendant’s ability to respond to culpability for simple assault. [112] Second, the defendant’s liability for simple assault is unclear.

Where I have found the defendant guilty of sexual assault, I havedone so because I was satisfied beyond a reasonable doubt that sexual touching was accompanied by non-consensual assault. Perhapsbecause of the approach to the blended proceeding, there was little, or no examination narrowly focused on liability for assault. Forexample, the Crown called the Principal of the school as a witness, yet declined to examine her concerning school guidelines, directives,or conditions around the physical touching of students: (e.g., see R. v. Plews, 2010 ONSC 5653, at paras. 5-14 [Plews]).

There was anarrow statement from the defendant’s Principal that each September the teachers are generally cautioned with respect to their conductinvolving the students. There was an oblique reference to a handbook. The Crown did not seek to expand upon this concept duringdirect examination. The handbook was not filed as an exhibit. [113] Third, the notion of a limited zone of consensual physical contact betw

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