R. v. Plehanov Date:, 2012 BCPC 563

Citation: R. v. Plehanov Date: 20121126 2012 BCPC 0563 File No: 84100-C9 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ALEKSANDR PLEHANOV REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. St. Pierre Restriction on Publication: Pursuant to s. 486.4 of the Criminal Code there is a ban on publication, broadcast or transmission of the names of the complainants and any other information that may identify the complainants. Counsel for the Crown: Wendy Van Tongeren Harvey Counsel for the Defendant: Lisa Jean Helps

Place of Hearing: Port Coquitlam , B.C. Dates of Hearing: Jan. 3, 4, 5, 6, 9, 10, 11, 12, 13, Feb. 10, June 21, July 3, 4, 2012 Date of Judgment: November 26, 2012 An Errata was released on November 26, 2012; the corrections have been made to the text and the Errata is appended to this document. [ 1 ] Aleksandr Plehanov was a teacher employed by the Coquitlam District 43 School Board when he was arrested and charged with a number of Criminal Code allegations on March 18 th , 2010. [ 2 ] A trial was held with respect to Information No. 84100-C9. The charges are that Mr. Plehanov: Count 1 – on or about the 10 th day of March, 2010, did sexually assault E.A., contrary to

Section 271 of the Criminal Code Count 2 – on or about the 10 th day of March, 2010, did, for a sexual purpose, touch, directly or indirectly, with a part of his body or with an object, the body of E.A., a person under the age of sixteen years, contrary to

Section 151 of the Criminal Code Count 3 – on or about the 10 th day of March, 2010, did sexually assault A.N., contrary to

Section 271 of the Criminal Code Count 4 – on or about the 10 th day of March, 2010, did, for a sexual purpose, touch, directly or indirectly, with a part of his body or with an object, the body of A.N., a person under the age of sixteen years, contrary to

Section 151 of the Criminal Code Count 5 – on or about the 10 th day of March, 2010, did sexually assault S.G., contrary to

Section 271 of the Criminal Code Count 6 - on or about the 10 th day of March, 2010, did, for a sexual purpose, touch, directly or indirectly, with a part of his body or with an object, the body of S.G., a person under the age of sixteen years, contrary to

Section 151 of the Criminal Code Count 7 - on or about the 13 th day of October, 2009, did sexually assault F.L., contrary to

Section 271 of the Criminal Code Count 8 - on or about the 13 th day of October, 2009, did, for a sexual purpose, touch, directly or indirectly, with a part of his body or with an object, the body of F.L., a person under the age of sixteen years, contrary to

Section 151 of the Criminal Code Count 9 - on or about the 9 th day of January, 2008, did sexually assault M.R., contrary to

Section 271 of the Criminal Code Count 10 - on or about the 9 th day of January, 2008, did, for a sexual purpose, touch, directly or indirectly, with a part of his body or with an object, the body of M.R., a person under the age of fourteen years, contrary to

Section 151 of the Criminal Code Count 11 – from the 3 rd day of June, 2010 to the 8 th day of June 2010, inclusive, did without lawful authority and knowing that another person was harassed or was reckless as to whether the other person was harassed, engage in conduct that caused that other person, C.S. and/or her child, F.L. to reasonably fear for her safety or the safety of anyone known to her, contrary to

Section 264 of the Criminal Code Background [ 3 ] This trial commenced on January 3 rd , 2012 and covered some 13 days of evidence from 33 witnesses. A number of Admissions and Exhibits were also filed in the case. [ 4 ] From 2007 until March 11 th , 2010 Mr. Plehanov was a “teacher on recall” and a “teacher on call” (essentially a substitute teacher) for District 43 schools. He was teaching at Elementary [School #1] in January of 2008 when the allegations contained in Counts 9 and 10 occurred.

He was teaching at Elementary [School #2] on October 13 th , 2009 when the allegations contained in Counts 7 and 8 occurred. He was teaching at Elementary [School #3] on March 10 th , 2010 when the allegations contained in Counts 1-6 occurred. Finally, the Crown alleges that Mr. Plehanov was seen near the home of F.L. on two occasions and that the circumstances of those incidents constitute the offence contained in Count 11 (Criminal harassment) of the Information. [ 5 ] All five complainants were female students aged 7 or 8 years old at the time of the allegations.

The alleged criminal behaviour involves allegations that Mr. Plehanov touched the children in various ways that amounted to criminal behaviour. All of the allegations occurred in open classrooms and no children were ever alone with Mr. Plehanov. [ 6 ] Many witnesses in this case testified as to conversations that they had with others. Much of it was hearsay evidence and was only called for the purpose of explaining why people took certain steps and not for the truth of the content of the hearsay statements.

This is an important point for the trier of fact to remember when looking at the whole of the evidence and whether certain facts have been objectively established to the degree upon which to base a conviction. I have so instructed myself. [ 7 ] It is a crucial part of the Crown’s theory that these incidences allegedly occurred after Mr. Plehanov had been warned several

times that some of his contact with the children was essentially inappropriate and unprofessional. This, the Crown maintains, allows theCourt to draw an inference that the contact was for a sexual purpose as opposed to simply being a situation where an unskilled teacherdid not appreciate what the proper boundaries were relating to contact with students. [8] All five complainants provided evidence, both orally, and by way of videotaped statements that were admitted under Section715.1 of the Code.

In addition, there were parents, teachers and school administrators who also gave evidence in this trial. [9] The accused did not testify. [10] The defence says that the Crown has failed to prove, beyond a reasonable doubt, any of the allegations against him. Thedefence submits that Mr. Plehanov may have been a naive and ineffective teacher but that his inappropriate contact with the students, if itcan be described as such, does not nearly reach the threshold required to be characterized as criminal conduct. Law [11] Mr. Plehanov, the accused, is presumed innocent until proven guilty.

The Crown must prove its case beyond a reasonabledoubt. The trier of fact does not examine facts separately and in isolation with reference to the criminal standard. Rather, I must besatisfied that the Crown has proven each and every element of the offences beyond a reasonable doubt. The burden always rests with theCrown. The accused need not prove the existence or non-existence of any fact essential to guilt. Mens rea (mental element) required for sexual assault [12] The leading case on the definition of sexual assault is R v.

Chase, (SCC), [1987] 2 S.C.R. 293, [1987] S.C.J.No. 57. [13] As the Court noted in Chase at para. 12 and subsequently in R. v. Ewanchuk, (SCC), [1999] 1 S.C.R. 330;[1999] S.C.J. No. 10, the offence of sexual assault is an offence of general intent: to meet the mens rea requirement, the Crown mustonly prove that the accused intended to touch the complainant.

As the court noted in Chase, there are a number of strong social policyreasons for having a general intent rather than specific intent requirement, including the difficulty of proving specific intent, and the factthat the motivations for sexual assault are “many and varied” (at para. 12). [14] The challenge in determining if

an act is a sexual assault appears to instead arise at the actus reus (what actions can be proved)stage. As I will set out below, at this stage the court may also consider the accused’s subjective mental state, but this factor’s relevancewill depend on the circumstances. [15] In Chase, the Supreme Court of Canada defined sexual assault as an assault “which is committed in circumstances of a sexualnature, such that the sexual integrity of the victim is violated” (at para. 11).

The court set out the relevant test as follows at para. 11: 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?” (Taylor, supra, per LaycraftC.J.A., at p. 269). [16] As the Supreme Court of Canada noted in confirming this test in R. v. Larue, [2003] S.C.J.

No. 20, “[t]his is an objective testthat focusses on the sexual integrity of the victim” (at para. 2). [17] The court in Chase also identified the factors that may be considered in determining whether the conduct is of a sexual nature: The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act,and all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force, will be relevant(at para. 11). [18] Importantly, the court stated that the existence of a sexual motive or purpose is only one factor in determining whether the act isof a sexual nature: The intent or purpose of the person committing the act, to the extent that this may appear from the evidence, may also be a factor inconsidering whether the conduct is sexual.

If the motive of the accused is sexual gratification, to the extent that this may appear from theevidence, it may be a factor in determining whether the conduct is sexual. It must be emphasized, however, that the existence of such amotive is simply one of many factors to be considered, the importance of which will vary depending on the circumstances (at para. 11).

[19] In Ewanchuk, the Court followed the definition of sexual assault set out in Chase and described the actus reus of sexual assaultmore simply as requiring proof of three elements, at para. 25:

a) touching,

b) the sexual nature of the contact, and

c) the absence of consent. [20] As the court noted, “the first two of these elements are objective”. On these elements, the Crown must only prove that theaccused’s actions were voluntary.

With regards to the second element, the “sexual nature of the contact,” the Court reiterated thestatements in Chase: The Crown need not prove that the accused had any mens rea with respect to the sexual nature of his or her behaviour. [21] Along the same lines, the court in a number of cases has stated that the Crown need not prove the accused committed the assaultfor sexual gratification, particularly where other indicia clearly indicate the contact was of a sexual nature (see e.g. R. v.

V. (K.B.), (SCC), [1993] 2 S.C.R. 857, in which the accused claimed he had grabbed his child’s genitalia in order to discipline him andthe court found this act to constitute sexual assault). [22] The case law suggests that the importance of the accused’s purpose depends on the circumstances. The case R. v. J.(C.), (NL CA), [1990] N.J. No. 209, 85 Nfld. & P.E.I.R. 144 is frequently cited for this principle. In this case, the accused hadbeen charged with sexual assault upon his daughter.

The impugned conduct, mutual wrestling and tickling, had taken place from thecomplainant’s early childhood and had no sexual connotation at that point.

In this factual context, the court found that the trier of factwould have to consider whether the accused had committed the acts for sexual gratification: This is because, in order to find the accused guilty, the jury would have to find that an activity which had been part of the regular life inthe family for some years, and was not contended to have sexual connotations until some time after its inception, evolved into sexualassaults in its later stages when the complainant had passed from childhood to adolescence.

To arrive at such a conclusion in the presentcircumstances, the jury would have to find that the impugned contacts had changed from being incidental to the romping or skylarkingbut without sexual connotation to acts with sexual intent.

In such circumstances, the purpose or motivation of the accused in my opinionwould be very relevant. [23] The underlying idea here appears to be if the touch could be interpreted as innocent, or had in the past been interpreted this way,the accused’s purpose will be more significant. [24] However, as the Supreme Court of Canada has recently emphasized, the general rule is that the Crown does not need to provethe accused had a sexual purpose. In R. v. Lutoslawski, 2010 ONCA 207, aff’d 2010 SCC 49, affirming the Court of Appeal’s decision,Mr.

Justice Binnie, writing for the court cited the test in Chase (“Viewed in light of all the circumstances, is the sexual or carnal contextof the assault visible to a reasonable observer?”), and stated that “[s]exual assault does not require proof of an improper or ulteriorpurpose” (at para. 1). Accordingly, the Crown had proven its case because it “proved beyond a reasonable doubt that the touching of thecomplainants occurred in circumstances of a sexual nature such as to compromise the sexual integrity of the complainants” (at para. 1). Sexual Interference –

Section 151 [25]

Section 151 of the Criminal Code defines the offence commonly referred to as sexual interference as follows: Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of aperson under the age of 16 years [is guilty of an indictable or

summary offence]. [26] This offence requires proof of a specific intent to touch for a sexual purpose: R. v. Sears (1990), (MB CA),58 C.C.C. (3d) 62 at 64 (Man. C.A.); and R. v. Michel, [1993] B.C.J. No. 321 (QL) (S.C.) at paras. 5-7. In Sears (above), , the Courtdescribed the necessary elements of the offence of sexual interference at p. 64: In reading this

section as a whole, it is clear that an accused who intends sexual interaction of any kind with a child and with that intentmakes contact with the body of a child “touches” the child and is guilty of an offence. The

section address…the adult who for his or herown sexual purposes makes contact, whether as a primary actor or not, with the body of a child. [27] The Crown must prove the touching happened specifically for a sexual purpose, but the definition of “for a sexual purpose”does not necessarily require that this sexual purpose be the accused’s own sexual gratification. The question is whether the sexualpurpose is apparent from the circumstances.

[28] In R. v. G.B., [2009] B.C.J. No. 342, 2009 BCCA 88, the B.C. Court of Appeal considered

section 153 of the Criminal Code,which has very similar language to

section 151 and states that it is an offence if a person... (

a) for a sexual purpose, touches, indirectly or directly, with a part of the body or with an object, and part of the body of the youngperson. [29] This case was a Crown appeal from the acquittal of the accused on charges of touching for a sexual purpose contrary to section153(1)(a). The respondent was the foster parent of the complainant, D.W., a 17-year old developmentally disabled person, and had“masturbated D.W. ‘to get him relieved.’”(at para. 6).

The trial judge had accepted defence counsel’s argument that the complainant had“pestered” the respondent to touch him and that the respondent had done so to end the pestering, rather than for his own sexualgratification (at para. 3). [30] In overturning the trial judgment, the B.C. Court of Appeal found that the trial judge erred in implicitly finding that the “sexualpurpose” component under

section 153 required that the Crown prove the accused committed the act for his own sexual gratification (atpara. 24). The court stated that the only intent required “is that the touching be for a sexual purpose” and that it was clear on the factsthat the purpose of the touching was sexual (at para. 24). The court further rejected defence counsel’s submission that such a definitionwould criminalize morally innocent behaviour.

The court wrote at paragraph 28: The sexual nature of the contact is not defined by the area of the body that is touched, but rather by the sexual nature of the touching.Thus, innocent contact such as an inadvertent touching of a sexual area, or contact while at play, or contact while bathing a child would,so long as the touching is not for a sexual purpose, not be prohibited (emphasis in original).

Section 715.1 Video Statements [31] A few words must be said with respect to the use to be made of statements admitted into evidence under

Section 715.1 of theCriminal Code. [32]

Section 715.1 of the Code is a statutory exception to the hearsay rule which permits an out-of-court statement to be admitted atthe trials of certain enumerated offences if the complainant is under 18 and if the video was made within a reasonable time following thealleged offence. The complainant must also describe the acts complained of and, while testifying, adopt the contents of the videotape. [33] Voir Dires were held with respect to each videotaped statement that was entered into evidence.

At the end of those Voir Direscounsel agreed that the statements are admissible subject to submissions as to the weight to attach to the testimony in each. [34] The statements formulate part (or all) of the complainant’s in-court testimony in-chief. However, and this is important toremember, the video-taped evidence is not entered for the truth of its contents. Neither can it be used to bolster a witness’ credibility orto corroborate her evidence.

Section 715.1 videotapes may also be used to assess the credibility of the complainant when they areinconsistent with the viva voce testimony. (See R. v. Aksidan (2006), 2006 BCCA 258 , 227 B.C.A.C. 119 (B.C.C.A.) and R. v.K.P.S. 2007 BCCA 397 (B.C.C.A.)). [35] The proper use of a videotaped statement admitted pursuant to s.715.1 was decided in R. v. L.(D.O.), (SCC),[1993] 4 S.C.R. 419 at paras.37-40, namely to communicate additional information to supplement the evidence of a child who may beinarticulate or forgetful at trial.

The section's primary goal is to create a record of what is probably the best recollection of the event. This videotaped statement should, together with the witness’ oral evidence given at trial, comprise the whole of the evidence-in-chief ofthe complainant. (See R. v. C.C.F. (SCC), [1997] 3 S.C.R. 1183 (S.C.C.)). Cross-Examination of Child Witnesses [36] The Supreme Court of Canada commented on the unique challenges confronting a trier of fact when it comes to assessing theevidence of child witnesses in R. v. C.C.F. (above).

Justice Cory wrote this at paragraphs 47-48: 47 If, in the course of cross-examination, defence counsel elicits evidence which contradicts any part of the video, this does not renderthose parts inadmissible. Obviously a contradicted videotape may well be given less weight in the final determination of the issues.However, the fact that the video is contradicted in cross-examination does not necessarily mean that the video is wrong or unreliable.The trial judge may still conclude, as in this case, that the inconsistencies are insignificant and find the video more reliable than theevidence elicited at trial.

In R. v. B. (G.), (SCC), [1990] 2 S.C.R. 30, at p. 55, Wilson J. stated that a flaw, such as a contradiction, in a child's testimony should not be given the same effect as a similar flaw in the testimony of an adult. . ..

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. 48 She concluded that, although each witness' credibility must be assessed, the standard which would be applied to an adult's evidenceis not always appropriate in assessing the credibility of young children. This approach to the evidence of children was reiterated in R. v.W. (R.), (SCC), [1992] 2 S.C.R. 122, at pp. 132-34.

There McLachlin J. acknowledged that the peculiar perspectives ofchildren can affect their recollection of events and that the presence of inconsistencies, especially those related to peripheral matters,

should be assessed in context. A skilful cross-examination is almost certain to confuse a child, even if she is telling the truth. Thatconfusion can lead to inconsistencies in her testimony.

Although the trier of fact must be wary of any evidence which has beencontradicted, this is a matter which goes to the weight which should be attached to the videotape and not to its admissibility. [37] Further challenges arise where a child witness has difficulty remembering the incidences later (as was the case with severalwitnesses in this case) making cross-examination difficult, if not impossible. [38] I have instructed myself in the law regarding the appropriate assessment of evidence received by children.

Common sense mustbe employed when considering inconsistencies and children’s reduced capacity to deliver their evidence with the kind of cogent claritythat is more properly expected of mature adults. However, weaknesses in the evidence are not to be simply dismissed summarily as acorollary of the above caution. It is still necessary to critically assess the whole of the evidence with a view to determining whether thecriminal standard has been met.

Similar Fact/Act Evidence [39] The general rule is that evidence of discreditable conduct of the accused, sought to be introduced by the prosecution, will beinadmissible except when its probative value outweighs its prejudicial effect. (See R. v. Handy, 2002 SCC 56). [40] In addition to the stated purpose of establishing the mens rea of Mr. Plehanov at the time of the alleged offences the Crown alsosubmitted in this case that the witnesses who testified with respect to prior incidences of inappropriate touching assist in strengtheningthe credibility of others.

As I understand it, the Crown is not, in this respect, relying upon Mr. Plehanov’s alleged conversations withteachers and school principals but on the direct evidence called relating to the allegations contained in the Indictment and otherallegations not contained in the Indictment. [41] In order to determine the question of admissibility, the purpose for which the evidence is being adduced must be clearly statedby the Crown. As I understand the Crown’s position, the question to be decided is whether the sexual assaults occurred.

The similarfact evidence led here is said to be probative of the actus reus of the offences, which in turn depends on the credibility/reliability of thecomplainants' evidence about the assaults. [42] The Crown pointed to R. v. Wells [2003] B.C.J. No. 927 (BCCA) as support for this suggested use. The court refers to R. v.Handy (above) and states at par. 80: 80 The appellant's trial took place before the release of the Supreme Court's decision in R. v.

Handy (2002), 164 C.C.C. (3d) 481,2002 SCC 56, which provides support for the reception of the similar fact evidence where the credibility of the complainant, as opposedto the identity of the accused, is at issue.

In that case, Binnie J. emphasized the need to frame as accurately and precisely as possible thespecific aspect of credibility to which the similar fact evidence is directed, so as to avoid the danger of admission of general evidence ofpropensity and bad character. [43] Specifically, the Crown suggests that if there is a reasonable chance of a witness being believed then their evidence could besupported by the evidence of other witnesses.

There is also a specific concession that the evidence of M.R. could not likely stand on itsown but the Crown asks the court to find that her evidence is bolstered by the evidence of the other complainants. [44] Probative value, however, cannot be assessed in the abstract. It is said that the utility of the evidence lies precisely in its abilityto advance or refute a live issue pending before the trier of fact. (See R. v. Handy (above), par. 73). [45] I find that the evidence relating to the alleged extrinsic misconduct of Mr.

Plehanov (all the evidence called that did not directlyrelate to the counts in the Information) could only be possibly relevant to corroborate those witnesses who testified that they sat on Mr.Plehanov’s lap in the classroom. It could not possibly go further than that. However, I do not find this to be a live issue in thedeterminations that I must make as I am prepared to accept, without it, that M.R. and F.L. did, in fact, sit upon Mr. Plehanov’s lap.

Whatremains to be determined from a careful analysis of the evidence is the nature and extent of any touching that may have accompanied thesitting upon the lap. [46] The other use that can be properly made of the extrinsic evidence that was called is to establish the mental state of Mr.Plehanov at the time of the alleged offences. In other words, whether Mr. Plehanov knew or ought to have known that certain physicalcontact with the students was frowned upon by his employer. It cannot go further than this. For instance, it does not extend to prove thatMr.

Plehanov understood the line between inappropriate behaviour on his part that may simply be dealt with as a disciplinary matter bythe employer or the College of Teachers and inappropriate behaviour that is criminal in nature. [47] Where the alleged similar acts are other counts in the Indictment they are admissible if relevant, material and not barred bysome admissibility rule. The law surrounding similar fact is largely driven by concerns relating to the jury system. [48] The court in R. v.

L.W. (2004), (ON CA), 191 O.A.C. 22, at para. 9 said: It is important to keep in mind that the risk of prejudice was much reduced because of the fact that this was a trial by judge alone. [49] Essentially, the main purpose for the admission of the so-called similar acts between the counts in this Indictment is for

corroboration between the individual complaints here. [ 50 ] In this case the defence argues that as between several of the complaints on this Indictment there is a real possibility of collusion (however unintentional that may be) and taint due to the circumstances relating to the allegations and how they came to light. [ 51 ] In general, with respect to so-called similar act evidence in these situations, where there is evidence of actual collusion among the witnesses, or at least an air of reality to an allegation of collusion, the Crown must satisfy the trial judge, on a balance of probabilities, that the evidence of similar acts is not tainted by collusion.

This is because the presence of collusion destroys the foundation on which admissibility (and once admitted, the use to be made) is sought. [ 52 ] Because I heard all of the evidence in a judge alone trial and subject to my comments above, in my mind the real question is the use, if any, that could properly be made of the evidence led on these issues and how it relates to the evidence as a whole. [ 53 ] It is my intention to deal with the questions of possible collusion and corroboration in the next

section when I look at the evidence and make findings relating to the crucial issue of credibility/reliability in the context of considering the evidence as a whole. Analysis of Evidence [ 54 ] A.N. was a Grade Three student at Elementary [School #3] at the time of the alleged offences listed in Counts 3 and 4 of the Information. On March 10 th , 2010 her mother, D.N., picked her up from daycare after school and asked her how her day went. As a result of what A.N. told her mom about her day, D.N. contacted some other parents, the principal of the school, Derek Passaglia and the police. [ 55 ] Cst.

Dopson responded to the dispatch (relating to a complaint of some kind of alleged sexual touching) and attended the residence. He took statements from D.N. and J.N., the parents of A.N. Pursuant to protocol he did not take statements from A.N. It was suggested to Cst. Dopson by D.N, that he should also speak to a classmate of A.N.’s by the name of E.A. Also mentioned by D.N., in the context of a prior allegation against Mr. Plehanov, was a student at Elementary [School #2] named E.H. D.N. passed on the name of E.H.’s mother, M.H. as well as the principal of that school, a Ms. Brenda Walker. Cst.

Dopson could find no complaint made to the police with respect to that matter. In fact, no complaint was ever made in that alleged incident. [ 56 ] A.N. remained at home for the next two days of school. On March 11 th , 2010 A.N. was interviewed by Cst. Sedgman at the police station. [ 57 ] D.N. received a call from a lawyer in May, 2010.

As a result of that call, on May 11 th , 2010 A.N. gave a second statement to the police. [ 58 ] With respect to contact the complainants may have had with each other D.N. testified, aside from the children’s contact at school, that months later, A.N. attended a joint counselling session regarding this matter with E.A. and that she attends dance class with S.G. [ 59 ] D.N. also knows M.H., who is the mother of an Elementary [School #2] student, E.H. They had worked together. In fact, D.N. had called M.H. from the car on her way home from the daycare where the initial disclosure from A.N. had taken place.

She had knowledge of a similar alleged incident at Elementary [School #2] and had spoken with M.H. about it. Further conversations established that Mr. Plehanov was the teacher allegedly involved in both incidents. M.H. asked D.N. not to mention the Elementary [School #2] incident to the police for fear that the police would think the allegations had been tainted by collusion. However, D.N. did tell the police about the Elementary [School #2] incident. [ 60 ] D.N. also testified that A.N. told her of three girls who may be involved in similar incidents as the one she was alleging.

D.N. contacted or left messages with the parents of those three girls explaining the incident that happened and suggesting they go to the police. Only one of those girls is a complainant in this matter. [ 61 ] Prior to the arrival of any police at the house, D.N. also spoke to E.Q., the mother of F.L., another student at Elementary [School #2], and suggested to her that she call the police as well. [ 62 ] D.N. was also acquainted with the mother of S.G., the complainant on Counts 5 and 6.

D.N. testified that it was her understanding that her other daughter, M., (younger sister to A.N.) was at after-school care the week following March 10 th , 2010 and had mentioned to S.G. that the police had been at their house earlier. It must be noted that M. had been in the vehicle on the way home at the time A.N. was telling her mom about the alleged behaviour of Mr. Plehanov. [ 63 ] D.N. also explained to her daughter that Mr. Plehanov was “inappropriately touching” her.

D.N. went on to share information with M.H. (mother of E.H.), E.Q. (mother of F.L.) and M.G. (mother of S.G.) about the nature of the allegations against Mr. Plehanov. [ 64 ] J.N., A.N.’s father testified that he immediately spoke to A.N. when they returned from after school care on March 10 th , 2010. He said that A.N. was not upset about the incident but that she was visibly upset about the possibility of them talking to the principal.

He said that A.N. was “leading him through it” but that he would question her for clarification. [ 65 ] In cross-examination the following exchange took place: Q You asked her if Mr. P. had touched her bum; is that right? A Correct. Q And then you said, "Is it like this?" and demonstrated, and she said "Yes"; is that right?

A Correct. [ 66 ] Of course, J.N. cannot be faulted for attempting to draw out A.N.’s version of events. However, this exchange shows clearly that there were leading questions asked that had the very real potential of tainting A.N.’s own recall of the precise nature of any touching that occurred. [ 67 ] Derek Passaglia was the principal of Elementary [School #3] at the time. He confirmed that Mr. Plehanov had been called in as a “teacher on call (TOC)” on February 9 th , 15 th , 24 th and on March 10 th , 2010.

At least on one of the dates in February he had taught the same class as the one he had been in on March 10 th , 2010, the date of the allegations. There were no complaints made about Mr. Plehanov on the prior occasion. However, on March 10 th Mr. Passaglia returned to the school about 4 p.m. after coaching a basketball game. E.Q was there with her daughter E.A. E.Q. appeared anxious and upset. They both came into his office. [ 68 ] While the three of them were seated in the office, E.Q. began to relate that her daughter was “inappropriately touched”.

For 45 minutes to an hour they discussed the allegations against Mr. Plehanov. E.A. appeared anxious, confused and scared. E.A. advised Mr. Passaglia that she had recounted what happened to her to some friends while on the couch in the classroom. [ 69 ] Cst. Sedgman interviewed the complainants from Elementary [School #3] (Counts 1-6 on the Information). She has been with the RCMP since 2006 and prior to that worked on child protection matters for the government. She is familiar with the “stepwise” method of interviewing children.

She had just been seconded to the Sex Crimes Unit when she became involved in this case. [ 70 ] Cst. Sedgman interviewed A.N. and E.A. for the first time on March 11, 2010 and then A.N. again later on May 11 th , 2010. Mr. Plehanov was arrested on March 18 th , 2010 and released the same day. After the arrest, Cst. Sedgman interviewed E.H. She also spoke to M.H. (mother of E.H. that day). [ 71 ] It should be noted that Cst. Sedgman also interviewed four other girls who are neither witnesses nor complainants in this proceeding. [ 72 ] On June 10 th , 2010 Cst.

Sedgman took the complaint involving an allegation that Mr. Plehanov was seen in the area of F.L.’s residence. She attended and took a statement from K. M. and took photos of the area. That investigation led to the Criminal Harrasment charge. A.N. [ 73 ] A.N. provided two statements to the police. The first one was provided the day following the allegations arising at Elementary [School #3]. The second one was May 11, 2012 (about two months later). She also testified at the trial.

She felt comfortable enough to testify in open court and, unlike, the other young complainants, did not seek to provide her testimony by way of video link from another room. [ 74 ] A.N. testified that she provided a statement to the police because she was “sexually assaulted” by Mr. Plehanov. She essentially conveyed that she heard this term from her parents and that she equated it with inappropriate touching. (Transcript, January 4 th , p. 4-5). [ 75 ] She said that she did not observe anything happen between Mr. Plehanov and S.G. and that S.G. did not tell her about anything that happened with Mr.

Plehanov. (T, Jan. 4 th , p. 11, ll.17-25). [ 76 ] As well she did not see anything happen between Mr. Plehanov and E.A. (T, Jan.4 th , p.12, ll.34-35). [ 77 ] In court, A.N. says that she was sitting on a couch in the back of the classroom when E.A. came there and told her about something that had happened. (T., p.13, ll.1-3).

It is somewhat curious that despite the girls discussing the “gross” behaviour of the teacher (which one could properly assume would make them hyper-vigilant as to the actions of the teacher vis a vis one another) that neither ever viewed anything untoward happen to the other nor any of the other students for that matter. [ 78 ] A.N. testified that, other than vagina, the only word she uses to describe that area would be “pee-pee”. [ 79 ] The videotaped statement was played in court. In that statement (a transcript of which is contained in Exhibit 3) A.N. tells Cst. Sedgman that Mr.

Plehanov rubbed her bum “really really gently” on two occasions as she was standing beside him at the desk he was seated at. [ 80 ] She then tells Cst. Sedgman that she talked to E.A. and two other girls about it and that E.A. told her that Mr. Plehanov had “swiped” her across her chest. [ 81 ] In the video Cst. Sedgman then asks A.N. if she could think of anything else that happened that she would like to tell her about. A.N. answered that there was not. [ 82 ] Cst. Sedgman then leaves the room for a short time and A.N. can be heard talking to herself. It is not possible to hear what she was saying. When Cst.

Sedgman returns she asked a few more questions and then once again asked A.N. if she had anything else she wanted to say. This time A.N. states that “after that he started rubbing my front area too”. [ 83 ] According to A.N. this incident happened in between the two incidences of buttock rubbing. A.N. motioned in a circular area from under her bellybutton to around her upper thighs. [ 84 ] It was at this point the following exchange took place:

S: Okay. So do, do you have a name for your private part at the front? N: Mm-hmm. S: And what do you call that? N: My dee dee. S: Your dee dee? And what’s your private

part in the back? N: My buttocks. S: Your buttocks. N: (LAUGHS). S: Okay. Think that’s a funny name don’t you [N. Head nod indicating yes] Yeah? Okay. So when you say he’s rubbing you in the front was he rubbing your dee dee? N: Um, like around it, right here, over here and over here and there. Like right under my belly button. [N. Used left hand to show where rubbing occurred]. S: Okay, so under your belly button. N: Mm-hmm. S: And kinda here. [Cst. Sedgman is seen here rubbing her upper thighs – (my observation)] N: Mm-hmm. S: Do you know what this area’s called? [ rubbing her upper thighs ] N: My crotch.

S: Your crotch. Okay so...if this is your dee dee like on you. N: Mm-hmm. S: He was just rubbing around your dee dee? N: Mm-hmm. S: Did he ever touch your dee dee? N: Um, I think once. S: Yeah? You don’t really remember? N: No. Video Transcript, page 23 [ 85 ] At trial A.N. suggested that Mr. Plehanov had in fact touched her vagina once. However, in cross-examination she clarified that what she meant by that was that Mr. Plehanov had touched below her belly button. (T.

Jan. 5 th , 2012, p.32, ll.36-47). [ 86 ] There is a very real doubt arising from this evidence that there was any touching of A.N. in her front area as tentatively suggested. If there was any touching to the front of A.N.’s body the precise nature of it is impossible to conclude to any degree of certainty. [ 87 ] After watching the videotape of the first statement provided to Cst. Sedgman A.N. was asked these questions by Crown Counsel: Q Okay.

All right, in -- in -- when you were talking to Constable Sedgman, and I think it was about page 12 for my friend, you said that when you were being touched on the bum that you didn't say anything to Mr. P., and what is the reason you didn't say anything to him? A Because at the time I didn't know it was wrong. Q Okay. What do you mean by that? Tell me more so I understand. A I didn't realize he was doing it until afterwards. Q You didn't understand that he was doing what?

A I didn't realize that he was rubbing my bum until afterwards. Q Okay. So what made you realize that? A I was just thinking about it and then that's when I realized. [ 88 ] A.N. placed markings on a diagram of a young girl’s body and that became Exhibit 2 in the proceedings. [ 89 ] In cross-examination A.N. stated that after she had been at Mr. Plehanov’s desk the first time playing with the iPhone she attended on the couch with other girls. Those other girls were E. and E.A.. A.N. said it was E.A. and E. who originally said something about the behaviour of Mr.

Plehanov and that then she, A.N., told E.A. something as E. had left the sofa by that time. Another girl, B. was also there at the time. [ 90 ] E.A. had told the girls that Mr. Plehanov was “gross or creepy or something like that”. (T.Jan. 5 th , 2012, p. 30, ll.22-24). It was only after talking with these other girls that A.N. realized that “rubbing on the bum” was wrong. A.N. had later advised her mom that Mr. Plehanov was “gross”. [ 91 ] A.N. also confirmed that Mr. Plehanov did not ever pull her onto his lap or ask her to sit on his lap. [ 92 ] A.N. did not know for how long Mr.

Plehanov had his hand on her buttocks. She did agree that Mr. Plehanov moved her to the side by putting his hand on her “butt cheek”. (T. Jan. 5 th , 2012, p.28, ll.32-47). [ 93 ] According to A.N. it was at the sofa that E.A. had told the girls that Mr. Plehanov had “crossed her chest” and made a motion with her hand rubbing across the upper chest area.

It is notable that E.A. does not describe this incident either in her videotaped evidence or in her testimony during the trial. [ 94 ] Also, according to A.N.’s testimony at trial, E.A. did not, at any time that day, disclose to her that she had been touched on the bottom or anywhere below the waist. [ 95 ] A.N. made a second recorded statement on May 11, 2010. This was after her mother had received a phone call from someone asking her whether A.N. had mentioned the presence of a toy spinning top during class.

At that time she had not. [ 96 ] Once asked about the top by her mother A.N. did say she recalled playing with a top. She attended at the police station to tell Cst. Sedgman about this. She states in the video that the kids were playing with a top at some points in the day and that she “thinks” that Mr. Plehanov was holding her shoulder at that time. E.A. [ 97 ] E.Q. is the mother of E.A. She attended the school on March 10 th , 2010 to pick up E.A. When she approached the door to the classroom she realized it was shut. She saw E.A. and two other girls at Mr.

Plehanov’s desk doing something. [ 98 ] When they got home E.Q. was summoned by her husband who had overheard E.A. and her younger brother talking about Mr. Plehanov. As a result of that conversation E.Q. spoke to a neighbour and then attended a meeting with Mr. Passaglia, the principal. This hour-long meeting was in the presence of E.A. [ 99 ] When they returned home, D.N. called E.Q. and they talked about their respective children’s day in the classroom. The police attended and the next day E.A. met with Cst. Sedgman to provide a statement. [ 100 ] E.Q. agreed that E.A. had conveyed to her that Mr.

Plehanov had, while standing up, had reached around her and put his hands up her shirt. E.Q. says she was shocked by this revelation and later she told E.A. that a similar thing had happened to A.N. [ 101 ] A.N. testified that during the day she spoke with various girls about what was going on with the teacher, Mr. Plehanov. These girls were E., E.A., B. and A. [ 102 ] In her videotaped statement to the police she described several incidents involving Mr.

Plehanov where he was “in her personal space”. [ 103 ] It was made clear in cross-examination that prior to any of the incidents involving her, A.N. had come running up to the couch and told E.A. and others that Mr. Plehanov had wanted her to sit on his lap. In the video, E.A. relayed to Cst. Sedgman that she and the others were shocked by this disclosure. [ 104 ] It was apparent from watching the video of this exchange that E.A. felt confident in her recollection of this incident. [ 105 ] E.A. confirmed in cross-examination that A.N. had made this “shocking” disclosure prior to Mr.

Plehanov touching her in any allegedly improper manner. E.A. had concluded, as a result of this disclosure, that Mr. Plehanov was “gross”. [ 106 ] Of course, it is notable that A.N. was equally confident and clear in her testimony that Mr. Plehanov did not, in fact, ask her to sit on his lap at all and that she did not tell E.A. that that had happened. A.N. had also testified that it was E.A. who had made the original disclosure to the group of girls about Mr. Plehanov behaving inappropriately. [ 107 ] During the video E.A. related the incidents to Cst. Sedgman.

One incident occurred when she was with several others waiting to use the iPhone that the kids were playing with. E.A. says that Mr. Plehanov was directing her to the back of the lineup and

“accidentally” pushed her on her bottom. [ 108 ] Another incident involved E.A. at Mr. Plehanov’s desk as he was sitting and she was standing beside him talking to him. She relays in the video how she stood in between Mr. Plehanov’s legs and he was squeezing his legs together to put pressure on her thigh. She then went to the couch and then back to her desk. [ 109 ] In another incident she describes Mr. Plehanov approaching the kids asking them if they wanted help. The kids were sitting at their desks and Mr. Plehanov came behind her and put his hands on her shoulders and tapped her shoulders as he spoke to them.

She demonstrated with her hands in a tapping or squeezing motion on the shoulders. She characterized the touching as not being “like a real teacher”. [ 110 ] Furthermore, after some kids were doing homework on a couch Mr. Plehanov approached her at her desk and leaned down to ask her if she had any questions and then wrapped his arm around her and his hand was placed just above the waistline of the pants on her hip but underneath the shirt.

It was unclear how much of the hand was under the shirt. [ 111 ] It is quite impossible, in my mind to infer from this evidence whether the hand was simply placed where a hand would normally be place if you hold someone’s waist while standing next to them or whether there was some advertence on the part of Mr. Plehanov to place his hand underneath the shirt. In any event, E.A. did not need any help so he went away to another student. [ 112 ] At another part of the video interview E.A. states that is “how it ended, the day”.

There is certainly some confusion as to the sequence of the alleged incidents. [ 113 ] She testified that, at the end of the day she was waiting with some other kids in the class and playing with the iPhone. She described it as there being “something weird” about this class as the door was closed. She paused when she told Cst. Sedgman this fact. She said that when her mom came to the class that Mr. Plehanov got up from his desk and appeared to start cleaning the classroom.

She clearly viewed the door being closed as having some significance (as her mother had in her testimony as well). [ 114 ] The Crown had suggested that this scenario can be viewed as some kind of consciousness of guilt.

However, I find, after considering this evidence, that there is no negative inference that I can or should draw simply from the fact that the class door was closed after class. [ 115 ] E.A. testified that there was another incident with the squeezing of the thigh again at that time (after class) although in cross- examination it became less clear that there were two separate incidents involving the thigh. (T. Jan. 6 th , 2012, p.54). [ 116 ] She told Cst.

Sedgman that whenever something “weird” would happen she and a friend would run to the couch and tell other girls (including A.N.) everything. [ 117 ] She also advised that another girl, E. told her that Mr. Plehanov had ran both his hands down the front of her chest (she demonstrated with both hands, palms flat against her chest and sliding them slowly down her chest). That girl was not called as a witness in the trial. [ 118 ] Despite there being other students present during all of these incidents, there were no witnesses called who observed any of them.

E.A., for her own part, did not observe anything untoward between Mr. Plehanov and any of the students. [ 119 ] It was clear from E.A.’s evidence that she felt uncomfortable in how Mr. Plehanov was touching her and that she may have felt different had it been one of her parents. [ 120 ] In cross-examination she agreed that a lot of what she remembers from that time is due to the video. That is not surprising of course, given the passage of time and her young age at the time. S.G. [ 121 ] M.G. is the mother of S.G. Both she and her husband are teachers themselves.

S.G. was in the same class on March 10 th , 2010 as A.N. and E.A. [ 122 ] Apparently, on Friday, March 12 th , 2010, A.N.’s younger sister told S.G. about the police being at their house and that the substitute teacher was in some kind of trouble. M.G. made inquiries with her own daughter, S.G. and, as a result, S.G. became a complainant as well. [ 123 ] On Monday, March 15 th , 2010 S.G.’s parents planned to see the principal about the matter. She was reminded to attend upon the principal after she saw D.N. at the school on Monday. S.G. provided a statement to Cst. Naidu on March 16 th .

The night before that S.G. became very upset at bedtime that Mr. Plehanov would get into some kind of trouble and she did not wish him to get into trouble. [ 124 ] M.G. agreed in cross-examination that teachers of younger students have more physical contact with them than teachers who teach older students. [ 125 ] S.G. testified that she was in Grade two at the time of the alleged incidents. She related that while Mr. Plehanov was correcting her math he touched her on the bum. [ 126 ] During her videotaped statement she related an incident when she and another girl, A., were at Mr.

Plehanov’s desk getting their math work corrected. They were standing on either side of him while he was seated at his desk. When she would get a question wrong she said he would pat her shoulder in a consoling type gesture. When she would get a page of answers right he would pat or rub her on the bum (she later demonstrated a circular motion with a flat palm). She did not feel that there was anything untoward about this gesture

and she said she did not know it was serious until later. During her testimony at trial she stated that at the time she thought Mr. Plehanov was just trying to be nice. [ 127 ] S.G. did not see anything that Mr. Plehanov was doing to A. but later said she was told by A. that Mr. Plehanov touched her on the bum. A. was not a witness in this trial. [ 128 ] A.N.’s younger sister had apparently advised S.G. on March 12 th that A.N. had been touched on the bum by the substitute teacher. That is when S.G. says she remembered being touched on the bum as well. (T.

January 9 th , 2012, p.17, ll.31-36). [ 129 ] S.G. admits that after she gave the statement to Cst. Naidu she did discuss the incident with E.A. a few times. She also recalls talking to A.N. about the incident at least on one occasion. [ 130 ] S.G. does not recall anybody playing with toys like spinning tops that day. [ 131 ] The timing and circumstances of this disclosure raise clear concerns as to the reliability of this evidence. F.L. [ 132 ] C.S. is the mother of F.L. (a student at Elementary [School #2] at the time).

She testified that one day in October of 2009 she picked up her daughter from after school care and asked her about her day. Her daughter related that they had had a substitute teacher and that it was a fun day. She stated that she had sat on the teacher’s lap. It was that and some other conversation that led C.S. to contact Barbara Walker, the principal. [ 133 ] That incident was dealt with by the school board as an incidence of inappropriate contact or “boundaries” issue and the matter was eventually resolved.

It was in March of 2010 that C.S. heard from M.H., the mother of another Elementary [School #2], about the investigation at Elementary [School #3] involving Mr. Plehanov. C.S. realized the same teacher had been involved in the incident involving her daughter so she contacted the police. Both she and her daughter gave a statement to the police on March 25 th , 2010 concerning the incident in October of 2009. [ 134 ] F.L. gave a videotaped statement to Cst. Naidu that day. She relayed two incidents that happened where Mr. Plehanov pulled her onto his lap and had his arm wrapped around her.

His hand (she was not entirely clear as to which hand it was) was on her lower stomach area just under her shirt and he was rubbing in a circular motion. [ 135 ] She was asked by Cst. Naidu whether she knew what her private parts were called. She appeared too shy to say that on the recording so she whispered into Cst. Naidu’s ear. She is heard saying that Mr. Plehanov did not touch her there. [ 136 ] At trial, she marked a diagram of where Mr. Plehanov had touched her (Exhibit 15) and it shows a small circle around her bellybutton as the area.

While she was doing that she remarked that she doesn’t really remember all, but that this is what she kind of remembered (T. Jan. 9, 2012, p.6, ll.35-38). [ 137 ] In chief examination, after some discussion at trial about whether F.L. had adopted her statement given to Cst. Naidu, the following exchange took place: Q. All right. So now I’d like to know what exactly are you talking about when you’re talking about Mr. P’s lap? A. I don’t remember. Q. You don’t remember his lap? A. I don’t really remember. [ 138 ] In cross-examination F.L. again admitted that it was difficult to remember how or where Mr.

Plehanov had touched her on the day in question. She could not say if there were any mistakes made in the statement to Cst. Naidu as it was given such a long time ago. She did testify that she knows she would have tried to tell the truth at that time. [ 139 ] Again, it is quite impossible to determine the precise nature of the alleged touching in this scenario. When someone holds a young child on their lap with an arm wrapped around them it would be quite normal or common for the hand to be placed where F.L. says it was (near her bellybutton).

Apart from that her inability to recall the details makes any further findings dangerous to say the least. E.H. [ 140 ] E.H. is not a named complainant on the Information. E.H. was in the classroom on the same day as the incident involving F.L. (above). Her mother is M.H. As mentioned earlier in these reasons, M.H. and D.N. are friends. M.H. spoke to D.N. on the phone on March 10 th , 2010 in the van just after A.N. had talked about her day with Mr.

Plehanov as the substitute teacher. [ 141 ] M.H. testified that that night or the next day she made the connection that the same teacher had been involved in a complaint at her daughter’s school, Elementary [School #2], in 2009. That complaint was related to Mr. Plehanov and the fact that some of the kids were sitting on his lap. It was alleged at that time that this was inappropriate behaviour for a teacher, particularly a male teacher, to be involved in. That investigation is detailed in the next

section (Other Evidence). [ 142 ] M.H. spoke to D.N. about that connection between the Elementary [School #2] complaint and the reporting that A.N. had made to her mother, D.N. on March 10, 2010. She also spoke to C.S., the mother of F.L., about the incident at Elementary [School #3].

[ 143 ] M.H. testified that at some point after March 10, 2010 all three mothers, M.H., D.N. and C.S. met for coffee and discussed the situation involving Mr. Plehanov. [ 144 ] E.H. gave a videotaped statement to Cst. Sedgman on March 18, 2010. Her testimony related to a date in 2009 when Mr. Plehanov was a substitute teacher for her class. She was in Grade Two at the time. [ 145 ] In the video she described how they were playing with some tops (spinning toys) that Mr. Plehanov had apparently brought to the class. [ 146 ] She was of the opinion, she stated, that everybody thought that Mr.

Plehanov liked F.L. the best. She described that when the girls would go to his desk to ask about corrections to their school work Mr. Plehanov would pull them onto his lap. She said, “he usually only pulled (F.L.) on to his lap. Or once he pulled me onto his lap and once he pulled A., my friend.” [ 147 ] She could not remember the time that he pulled her onto his lap. She did explain, however, that Mr. Plehanov used his hands on her upper waist area to pull her on to his lap. [ 148 ] Asked how that made her feel, she answered that it made her feel okay.

She estimated that she was on his knee for about ten seconds. She said she did not see Mr. Plehanov pull any boys onto his lap. [ 149 ] She stated that later she had spoken to her principal, Ms. Walker, and another teacher named Mr. Katt(?) about the incident (as part of the investigation into Mr. Plehanov described above). [ 150 ] She described Mr. Plehanov as a fun teacher who did not make them do much work. She seemed to like the fact that Mr. Plehanov had brought the tops with him to class. [ 151 ] In her testimony at trial E.H. could not recall the details of that day and how many times she saw F.L. on Mr.

Plehanov’s lap nor could she recall how F.L. was sitting on Mr. Plehanov’s lap. M.R. [ 152 ] S.M. is the mother of M.R. She testified that she knew her daughter had a Russian-speaking substitute teacher in January of 2008. At that time no concerns were raised by either her daughter or anyone else. After the allegations arose at Elementary [School #3] she spoke to her daughter as well as Ms. Reynolds, the principal of Elementary [School #1]. She then contacted the police. [ 153 ] It should be noted that the police released a press release on May 3 rd , 2010 explaining that they had arrested Mr.

Plehanov and that they were looking for further victims and/or witnesses at other schools that he had taught at. [ 154 ] S.M. admitted that prior to questioning her daughter about her interactions with Mr. Plehanov she told her daughter that Mr. Plehanov was a bad teacher and also told her that she knew that her daughter had sat upon his lap. [ 155 ] M.R. provided a videotaped statement to Cst. Shelby Murphy on May 19 th , 2010. She was in Grade Three at Elementary [School #2] when she had Mr. Plehanov as a substitute teacher. She was in Grade Five when the statement was provided.

She was in Grade Seven at the time she testified at trial. [ 156 ] In the video she spoke about a substitute teacher she had in Grade Three that would play board games and do no work. She said he asked her to sit on his lap and he would gently touch her. She demonstrated with her right hand motioning from her chest area down to her lower stomach area. [ 157 ] Essentially, she indicated that when you approached the teacher he would pat his lap as if to invite her to sit on his lap. [ 158 ] She demonstrated by wrapping both her arms around herself to show how the teacher would hold her on his lap.

She then suggested that he would touch her gently on her chest area. She also demonstrated that he would touch her gently in her lower stomach/pubic bone area. Her fingers were in a semi-closed or cupped position. In other words, it appeared that she demonstrated with her fingers curled under her palms in a loose manner. [ 159 ] She advised Cst. Murphy that this teacher (she had referred to him as Mr. P.) had only taught her on this one occasion. [ 160 ] At trial M.R. could not recall sitting on Mr. Plehanov’s lap.

She confirmed that she had not spoken to anyone about this incident until May of 2010 when her mother had shown her a newspaper

article and asked her questions about the teacher, Mr. Plehanov, who was the subject of the article. She agreed that it was after her mother had pointed Mr. Plehanov out as being a “bad man” that she remembered the incident involving sitting on his lap. [ 161 ] She agreed that she told the police what she had talked about with her mom. [ 162 ] This evidence is clearly problematic. It was given some 28 months after the actual alleged incident. It was the first time she had related the incident to anyone. Her description of the alleged incident in the video is vague and uncertain.

Again, it is impossible to find, with any degree of certainty, just what the nature of the contact was in this incident. Her memory of the incident was virtually non- existent by the time she testified at trial. It was impossible to cross-examine her on the videotaped evidence that was entered. Other Evidence [ 163 ] There were many collateral witnesses called in this proceeding. I propose to summarize only parts of this evidence. However, I

have carefully reviewed all of the evidence and will later discuss the use, if any, and the weight to attach to it, that can or should be given to it. [ 164 ] Part of the Crown theory in this case is that Mr. Plehanov had been warned on several occasions prior to the allegations made from the complainants from Elementary [School #3] in March of 2010 that he was behaving inappropriately with young female students. The Crown maintains that the court should draw the inference that any inappropriate contact occurring after those warnings must be due to the sexual proclivity of Mr.

Plehanov as opposed to being due to simple ignorance of the proper conduct expected of a teacher. [ 165 ] Defence counsel stated on several occasions that this evidence has the danger of becoming inadmissible propensity evidence and that it was virtually impossible for it be at all probative of the mens rea that the Crown is required to prove. The Crown maintained that Mr.

Plehanov’s state of knowledge relating to alleged boundaries and the conduct expected of a professional teacher are relevant to the issue of mens rea . [ 166 ] In light of the Crown theory and in light of the fact that this is a judge alone trial I allowed evidence to be called relating to prior complaints involving Mr. Plehanov and the alleged lack of boundaries he was exhibiting between himself and particularly the young female students he was teaching. It should be remembered that Mr.

Plehanov taught for a number of years in the district at some 40 schools. [ 167 ] Of course, at all times I remain cognizant of the limited purpose that this kind of evidence could be used for. The proposed use and the weight to attach to this evidence was the subject of submissions at the end of the trial. Elementary [School #2] Lisa White [ 168 ] Mr. Plehanov was substituting for Lisa White, a teacher at Elementary [School #2] on October 13 th , 2009. She testified that when she returned to class she found it unusually disorganized and messy. She was quite upset by the state her classroom had been left in.

There was a note left for her authored by Mr. Plehanov. The note expressed how much Mr. Plehanov had enjoyed the class and how F.L., among others, offered their help. Brenda Walker [ 169 ] Ms. Brenda Walker was then the principal of Elementary [School #2]. She gave evidence that she received a phone call from C.S. who was upset that her daughter, F.L., had sat on the substitute teacher’s lap. [ 170 ] Ms. Walker advised C.S. that an investigation would be undertaken. An investigation did take place. The accounting given by Ms. Walker indicates that it was a fairly thorough investigation.

On October 16 th , 2009 more than 8 children (including F.L.) were interviewed. Later on October 21 st another group was interviewed, including some that had already been interviewed. On October 20 th , M.H. had contacted her with information that her daughter, E.H., may also be involved and that therefore, E.H. was also spoken to. [ 171 ] Ms.

Walker did admit, however, that some of the questions asked could be characterized as leading questions and the “script” that was developed to assist in questioning the children was modified as a result. [ 172 ] She advised that by January of 2010 the investigation was at a close. She gave the results of her findings to the School Board. Ms. Walker had considered the issue as one involving boundaries issues and was content with the decision not to get the police involved in the matter. Jamie Ross [ 173 ] Jaime Ross was the Director of Human Resources for the school district at the time.

His job description included dealing with discipline matters. He reports to the Superintendent of Schools. [ 174 ] After the complaints were made about Mr. Plehanov at Elementary [School #2] there was an investigation conducted. As a result of that investigation Mr. Ross authored a letter to Mr. Plehanov that was admitted as Exhibit 31. The letter is heavily edited. What is left essentially advises Mr.

Plehanov that there will be a psychologist to work him on boundary issues and some help with classroom management and other teacher practices. [ 175 ] The last edited paragraph states: You need to understand clearly that in the future you need to treat all students in a respectful manner.....As a teacher you have an obligation to ensure that all your students are treated in a respectful manner and that your classroom is a safe and welcoming place for all students. I look forward to working with you and providing whatever assistance you need. [ 176 ] Mr.

Ross testified that the investigation resulted in a finding of misconduct but stressed that there were no findings of physical assault or sexual impropriety found and that Mr. Plehanov co-operated with the recommendations. Elementary [School #1] Rick Botero

[ 177 ] Rick Botero was a teacher at Elementary [School #1] during January 2008. This was the time that Mr. Plehanov was a substitute there teaching a class that included M.R. He says that he recalls Mr. Plehanov being there for six days that month. Mr. Botero was in the computer lab next to Mr. Plehanov’s classroom and would wander in there from time to time. [ 178 ] Mr. Botero relayed an incident on January 18 th , 2008 where he walked into the classroom and observed a student sitting on the lap of Mr. Plehanov. Upon his entry, the child jumped off Mr.

Plehanov’s lap and stood in between his legs at his desk as they reviewed some schoolwork. He said that he called the girl away and reported the incident to the principal. He did not know how the matter was resolved. He agreed he did not go to the police and only went to the police after he was made aware of the media story involving Mr. Plehanov in May of 2010. Sue Reynolds [ 179 ] Sue Reynolds was the principal of Elementary [School #1] at the time. She confirmed that Mr. Plehanov taught at her school for five days at that time. She testified that she spoke to Mr. Plehanov about the incident related by Mr.

Botero. That conversation was the subject of a Voir Dire . For the limited purpose that the Crown was tendering the statement (that is the mens rea issue) I admitted it into evidence. Essentially, Ms. Reynolds reminded Mr. Plehanov that there were boundaries and that teachers should refrain from touching the children or having children sit on their laps and that he should be careful about putting himself into situations like that. [ 180 ] She agreed that she did not take any notes of this conversation and has some difficulty recalling exactly what was said to Mr. Plehanov. [ 181 ] Ms.

Reynolds agreed that she did not consider there to be a safety issue with Mr. Plehanov and that it was more of a boundaries issue that needed to be resolved informally. [ 182 ] Ms. Reynolds was advised in March 2010, after the matter had arisen at Elementary [School #3], that parents may be inquiring about Mr. Plehanov and his involvement as a substitute teacher at Elementary [School #1]. Elementary [School #4] Laurie Birnie [ 183 ] Ms. Birnie was principal at Elementary [School #4] in May of 2007 when she spoke to Mr.

Plehanov about a complaint from a child who had felt uncomfortable about her hair being touched. She said that she simply spoke to Mr. Plehanov about being mindful of touching the kids, particularly as he was a male teacher. Her evidence was that he seemed to understand what she was conveying to her. This was not a disciplinary measure. The conversation was meant to provide some guidance. Elementary [School #5] Mark Clay [ 184 ] Mr. Clay was the principal at Elementary [School #5]. He described how Teachers on Call are called out to schools to substitute for teachers who are away.

Only qualified teachers are used. Mr. Clay interviewed Mr. Plehanov and he passed all the necessary checks in order to become a “TOC” (Teacher On Call). [ 185 ] Mr. Plehanov was called out to the school in late September 2007. There was an incident that caused Mr. Clay to have a meeting with Mr. Plehanov and a staff representative from the Union. [ 186 ] Essentially, a student in a Grade 4-5 split class had come forward with a complaint that she had felt uncomfortable with a hand that Mr. Plehanov had placed on her shoulder and a rubbing of her back. It was explained to Mr. Plehanov by Mr.

Clay that this was not acceptable behaviour. They talked generally about different cultures and how this may be acceptable in some cultures but not ours. Mr. Clay testified that, in his opinion, Mr. Plehanov was not quite clear on what he had done wrong. He was advised that making a student feel uncomfortable was not acceptable. [ 187 ] He agreed that all contact is contextual and that Mr. Plehanov taught for several days after this meeting.

He also agreed that he became aware of the 2010 allegations later and agreed that the news of the allegations were shocking to teachers in the district. [ 188 ] I conveyed to counsel that I would not be using any of these out of court statements for the truth of any of any of the alleged assertions that were made but just for the fact of what was said and what knowledge may have been possessed by Mr. Plehanov regarding appropriate behaviour for a teacher at the time. Elementary [School #6] Elspeth Anjos [ 189 ] Ms. Anjos was a literacy support teacher in September of 2009 at Elementary [School #6].

She was asked to support Mr. Plehanov with the new Literacy Program being implemented. [ 190 ] She saw Mr. Plehanov with his Grade 4-5 class. She witnessed a female student approach Mr. Plehanov and sit on his lap. She testified that child had gone onto his lap of her own volition but that she spoke with him later and advised that it was not appropriate to allow a student to sit on him. She later witnessed a similar incident with a different child. She again spoke to him about rebuffing a student who wished to sit on his lap. [ 191 ] There was a third incident involving Mr.

Plehanov moving about the class supporting the students. One female student got up to approach Mr. Plehanov. Ms. Anjos testified that she asked the student to sit down but the student gave Mr. Plehanov a hug. She said the

hug was a short one and she opined the girl was just being defiant of her instructions to sit down. However, she did again explain to him that he should have removed her hands. [ 192 ] She advised Mr. Plehanov that she would be mentioning her observations to the principal. [ 193 ] She described his class as noisy and that he had trouble maintaining order. In fact she was there due to the concerns over poor classroom management. She agreed that at no time did Mr. Plehanov initiate any of the contact with the students.

She also agreed that male teachers are held to a different and higher standard than female teachers. Barbara GIllies [ 194 ] Ms. Gillies was the principal at Elementary [School #6]. She had understood that Mr. Plehanov requested some support in his classroom. She testified that Mr. Plehanov was there from September 2009 until November 4 th , 2009 three days a week. He then returned to the school in February of 2010. [ 195 ] She had a meeting with Mr. Plehanov on February 3 rd , 2010 (she was not positive of the date).

The essential nature of the meeting had to with some information that had been passed on that Mr. Plehanov was allowing students to hug him. She advised him that it was not appropriate to allow that and she modelled some words and behaviour he could use to rebuff a student who wished to do that. [ 196 ] She discussed the Code of Conduct for the school. She admitted that this Code is largely directed at the expectations of students. She did not recall providing a copy to Mr. Plehanov. She testified that she attended his class to advise the students not to go up to Mr.

Plehanov to hug or touch him as that could get him into trouble. Mr. Plehanov was present at the time. [ 197 ] Ms. Gillies agreed that this particular class was somewhat of a problem and that is part of why Mr. Plehanov had requested some support. Ms. Papillo [ 198 ] Ms. Papillo was a teacher at Elementary [School #6]. She would talk to Mr. Plehanov about classroom management. As the head of the English Department she had received complaints that Mr. Plehanov was not managing his class properly.

On one occasion she looked in his classroom and there were kids singing and there were girls sitting on his desk and acting silly. She advised the students to go back their desks. It was her belief that Mr. Plehanov did not appear to realize that the students’ behaviour was inappropriate. [ 199 ] Later, in the hallway she observed several girls hugging Mr. Plehanov. His hands were down by his side. He was not reciprocating the hugs. She told Mr. Plehanov that hugging was not appropriate and suggested that he use “high fives” as a way to express affection.

She suggested that during the hugging incident he looked to be embarrassed and confused about what to do. [ 200 ] She agreed that a valid classroom management technique is putting your hand on a shoulder of a student. She also agreed that her concern was more related to classroom management than anything else. [ 201 ] It is notable that the allegations arising from Elementary [School #3] in March of 2010 do not include lap-sitting or hugging.

Counsellors [ 202 ] Evidence from the professionals who spoke to the children regarding their allegations was called largely to rebut any submission that there was collusion or taint with respect to the evidence called. Dr. Michael Elterman [ 203 ] Dr. Michael Elterman testified about his involvement in the complaints that arose from the alleged incidents of lap-sitting that took place October 13 th , 2009 at Elementary [School #2].

He was qualified as an expert on the impact of child sex abuse on children and child development, memory and development, forensic and therapeutic interviewing, child behaviour and touching and the dynamics of reporting same. [ 204 ] He related how he had met with E.H. and F.L. and their respective parents about the allegations of lap sitting by the children. [ 205 ] He testified that often children will not know something is wrong until the parents tell them that it is.

He relayed that children who grow up around family often do not know what the appropriate behaviour of an outside adult should be. [ 206 ] He testified that the characterization of behaviour by an adult as being bad or not can be shaped by parental reactions to it. He gave the example that a parent who shows alarm over a child sitting on a teacher’s lap could signal to that child that it is not the same as sitting on Grandpa’s lap. [ 207 ] The Doctor agreed that none of the children that he interviewed showed any signs of trauma.

He also agreed that if children 7-8 years old are using the word “inappropriate” to describe behaviours that that may suggest they may be adopting that term from someone else. Kendra Niwa [ 208 ] Kendra Niwa was a counsellor with Act II Counselling. She has a Masters Degree in Clinical Psychology. She described the joint counselling session that she had with E.A. and A.N. on August 9, 2010. She was aware of the allegations being made at that time. She could not say what, if anything, had been discussed between the two girls as it related to Mr. Plehanov.

She testified simply that neither she nor the girls discussed the facts relating to the allegations during the counselling session.

Warren Driedger [ 209 ] Mr. Driedger was a counsellor at Elementary [School #3] and did conduct both an individual counselling session and a joint counselling session with E.A. and S.G. in May of 2011. It was a 30 minute session and the girls did most of the talking. He testified that they did not talk about the details of what allegedly happened with Mr. Plehanov but they did discuss the court process. [ 210 ] No notes were kept of these sessions. He agreed that the girls were there to talk about the emotions that they experienced as a result of the incidents with Mr. Plehanov.

Both girls were aware that the other had some common “inappropriate” contact with Mr. Plehanov. He appeared to agree that one purpose of the meeting was to reinforce the commonality of experience and to validate these experiences. The Criminal Harassment Charge [ 211 ] Before dealing with Counts 1-10 on the Indictment I propose to dispose of Count 11, the allegation involving criminal harassment. [ 212 ]

Section 264 of the Criminal Code of Canada states:

(1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.

(2) The conduct mentioned in subsection (1) consists of

a) repeatedly following from place to place the other person or anyone known to them;

b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;

c) besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be; or

d) engaging in threatening conduct directed at the other person or any member of their family. [ 213 ] The Crown here relies upon clause 2(c) (the “besetting” clause). The Defence concedes that C.S. held a subjective fear for her safety as a result of the impugned conduct. The issue is whether identity has been proven and if so, whether it has been proven that Mr. Plehanov knew or ought to have known that the conduct would create this fear. [ 214 ] K.M. lives with her husband K. on [omitted for publication] near the residence of F.L. She knows the family.

She testified that in June of 2010 on two occasions that she saw someone she believed to be Mr. Plehanov near her residence. She knew about Mr. Plehanov from media reports. She knew F.L. was a complainant. She also believed that Mr. Plehanov had taught her own daughter on one occasion although she could not recall that time. [ 215 ] On the first occasion, June 3 rd , 2010 at approximately 10:55 a.m., she asserted she saw this person standing near the residence of F.L. On the second occasion, June 8 th , 2010, she saw the same person sitting in a black BMW.

She was aware of the photo that had been distributed in the media. She had, in fact, recorded the television story on her PVR recorder and had watched it several times. [ 216 ] She described the man she saw on June 3 rd as being h eavy set, wearing a baseball hat, having two moles on each side of face, in his mid 30’s and approximately 5’11” inches tall (although she admitted she was really bad with height estimations). The closest she came to this person was four meters. She said this person walked towards her as she was in her vehicle leaving her garage and that she made eye contact several times.

She tried to swing back around to take a photo but at some point the man was in, what she described as, a dark blue BMW. [ 217 ] On that day she went down to Elementary [School #2] and spoke to Ms. Walker, the principal, who advised her to call the police, which she did. She did not tell C.S. of the incident as she did not wish to alarm her. [ 218 ]

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