R. v. M.P., 2010 ONSC 5653

Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainants, as well as the witnesses K.L., N.S., J.W. and T.W., and any information that could disclose such identity, shall not be published in any document or broadcast or transmitted in any way. CITATION : R. v. M.P., 2010 ONSC 5653 COURT FILE NO.: 2916/08 DATE: 20101118 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) HER MAJESTY THE QUEEN ) ) ) S. Andersen, for the Crown ) ) ) - and - ) ) ) M.P. ) ) P. Band, for the Defence ) ) ))) HEARD: September 21, 23-5, 28-30, October 1-2, 5-7, 2009; March 15, August 3-4, 2010 JUDGMENT HILL J.

TABLE OF CONTENTS Para. No. INTRODUCTION . 1 SCHOOL BOARD POLICY RE TEACHER/STUDENT PHYSICAL CONTACTS ...... 5 E.M. Background..................................................................................................... 15 The M.P./J.S. Relationship............................................................................... 24 Circumstances of Alleged Offence.................................................................... 33 Disclosure . 52 J.M.

Background . 69 The Alleged Physical Touching Tickling, Rough-housing, etc. 78 The Shove into a Chair 85 The Gym Floor Drag/Spin . 87 The Arm Twist Injury . 90 Disclosure . 97 B.F. Background . 10 1 Tickling, Play-fighting, etc. 11 4 Darts in the Gym Office . 1 19 Specific Allegations of Physical Touching The Gym Office . 12 1 The Stage . 1 28 The Stage Storage Room .. 13 2 Gym Storage Room #1 . 13 4 Gym Storage Room #2 . 1 38 May 2006 . 14 2 More Touching . 15 4 The Music Room Location . 15 6 Grade 8 Graduation . 16 1 The Last School Day . 16 6 Disclosure . 1 69 K.F.

Background . 1 88 The Alleged Physical Touching Tickling . 20 2 The Gym Office . 2 0 8 Gym Storage Room #2 . 22 0 The Stage and Stage Storage Room .. 22 2 Gym Storage Room #1 . 24 2 Disclosure . 2 48 POSITIONS OF THE PARTIES The Similar Fact Application The Crown . 2 80 The Defence . 2 8 9 As to Proof Beyond a Reasonable Doubt The Crown . 29 7 The Defence . 3 0 7 ANALYSIS General Principles . 3 20 Similar Fact 33 6 Sexual Assault/Assault/Consent 35 1 Fact-Finding and Conclusions . 3 70 CONCLUSION . 4 2 7 INTRODUCTION [ 1 ] M.P. is a teacher. [ 2 ] In the early nineties, as a teacher at F[...] Senior Public School (F[...]), he taught E.M. (E.M.). [ 3 ] During the time period 2004-6, the accused taught and/or coached J.M. (J.M.), B.F. (B.F.) and K.F. (K.F.) at R.L.

Senior Public School (R.L.). [ 4 ] Mr. M.P. pleaded Not Guilty to the commission of sexual offences against E.M., B.F. and K.F. and Not Guilty of assaulting J.M. SCHOOL BOARD POLICY RE TEACHER/ STUDENT PHYSICAL CONTACTS [ 5 ] Susan Stevens was a teacher at F[...] during the time period of 1991 to 1994 and principal at R.L. some years later. Ms. Stevens recalled that, at the outset of each school year, policies and procedures were communicated to all teaching staff. Updates were provided at staff meetings throughout the year. Each teacher was expected to be familiar with the policy binder contents. [ 6 ] Ms.

Stevens informed the court that policies included keeping students in their classrooms and out of the hallways, a teacher never being alone with a student, and a teacher having no physical contact with a student except to separate two youths from fighting. [ 7 ] J.S. a teacher at F[...], testified that from 1991 onward, school board policy required that teachers teach curriculum; a teacher’s personal thoughts and feelings were to be kept to herself or himself; intimate discussions about a teacher’s personal life were to be avoided; a teacher was “never to be in a classroom alone with a student, especially with the door closed”; a teacher was not to touch a student; and a teacher was to ensure that she or he did not find themselves “in an awkward position”.

The witness understood the policies to be for the protection of students and teachers.

[ 8 ] Annette Mungra, a teacher at R.L., understood that there was a ‘hands off’ policy in the teachers’ code of conduct prohibiting physical contact with students including no play-fighting. Each classroom had the code posted and the policy was repeated at staff meetings as being for each teacher’s own safety. As a phys-ed teacher, the witness used no physical contact with students.

When necessary, she would reject a hug explaining the necessary boundaries to a student. [ 9 ] E.F., another R.L. teacher, described to the court a Board-wide policy that teachers were to keep their hands off the students unless a reasonable exception applied such as in the case of an injured student. The policy was repeated at the start of each school year and set out in Board and union policy documents. The witness considered that a “High 5” or a tap on the back or hand on the shoulder by way of encouragement was not prohibited. A student’s skin was not to be touched except the hand.

The witness testified that Board and union policy also recommended a teacher never be alone with a student. [ 10 ] M.P. testified that the Peel District School Board had a standard policy about “not touching students”. It would be inappropriate to tickle a student over clothing, to touch under clothing, to have a student on one’s knee even to comfort, or to hug a student.

On the accused’s evidence, “the only physical contact” he had with students was to give a pat on the shoulder, a “High 5”, a handshake or spotting during a phys-ed activity or demonstrating in volleyball in the course of coaching. [ 11 ] In his April 20, 2007 statement to the police, the accused was questioned about physical contact with his students: Q. You, you agree that, that um, you had a good rapport with a lot of the kids? A. Yes. Q. Right? And uh, and you joked around with them and kid around with them um, you know, kind of hey how you doing and punches. And they, they’d punch back kind of thing. A.

I would never initiate a punch. Q. You would never initiate a punch? Okay. Would they initiate a punch and you punch back? Just trying to kind of make them feel comfortable? A. I’ve had students punch me, and I’ve either pushed them away or said like you shouldn’t be doing that, that’s not right. But I haven’t… Q. Oh they’re punching, you are they meaning that in an assaultive (Sic) way or are they meaning that in a, in a kidding way? A. No. I’ve, I’ve never been punched by a person in an assault. Q. Okay. Okay. Um, so the, the kids are just trying to… A. Horsing around (Inaudible) yes. Q. Horsing, okay. Yah.

And uh, and you horse around back with them? A. No. [ 12 ] At trial, Mr. M.P. was further questioned in-chief regarding his answers to the investigating officer: Q. One question that Officer Cloutier asked you on the videotape was something to the effect of whether you engaged in any horsing around ...

A. Yes. Q. ...with students and I recall your answer being no. Can you explain how you interpreted Officer Cloutier’s question? A. I interpreted that as in horsing around with other students that I had initiated. And had I initiated horseplay with other students, no I hadn’t. Was I involved with horseplay? If a student had initiated it, for example if a student pushed me, would I push them back? Yes, I would. [ 13 ] In cross-examination, the subject was again explored: Q. So your position today, Mr. M.P. is that you would in fact horse around with students? A. If they had initiated it, yes. Q.

You’d shove them back and forth? A. Shove them away, yes. Q. Only just once? A. Yes. Q. What if they pushed you back, you wouldn’t continue that throughout the day? A. Throughout the day? No. Q. If a student gave you tap on the shoulder, you’d tap them back? A. Yes. Q. What if they tapped you back again? Would you tap them back? A. I’d probably grab their hand and say enough’s enough. Q. So, just that one exchange? You... A. Yes. Q. ... wouldn’t let it continue?

A. Correct. [ 14 ] The accused denied being alone in the gym office with a student without the door being open. He also provided this evidence: Q. Have you ever been in a room with another student with the door closed when you were alone? A. No. Q. Ever? A. No. . . . Q. Just to clarify, you were never alone with any student ever with the door closed? A. Correct. Q. Why was the reason -- what was the reason for that? A. Well we had always been told from the very beginning that you should not be behind closed doors with an individual student. Q. And that’s your practice from the beginning of teaching onwards? A.

Correct. E.M. Background [ 15 ] E.M. testified as a 29-year-old witness. She is a chef with a young daughter. The complainant’s date of birth is April […], 1980. [ 16 ] E.M. attended F[...] Senior Public School in Mississauga for grades 6 through 8 in the years 1991 to 1994. When she graduated in June 1994 she was 14 years of age. [ 17 ] According to the complainant, she got along well with her teachers and they were fond of her. She was an ‘A’ student. She received an award as the best grade 8 student. She was involved in music and played sports in all seasons.

She was the female athlete of the year in grade 8. [ 18 ] During her time at F[...], E.M. had Ms. J.S. for physical education and health studies. The complainant described herself as “very close” to Ms. J.S. who taught her in all three grades. [ 19 ] E.M. first met the accused in the course of playing school floor hockey. She called him “Mr. M.P.”. Mr. M.P. was one of the organizers. He taught science and coached sports but not to her. She often saw him at the school gymnasium. [ 20 ] The complainant recalled hanging around Ms. J.S.’s classroom after classes ended. Because Ms.

J.S. and the accused were friendly she saw the accused there as well. [ 21 ] J.S. was aged 28 years when she first met E.M. in the fall of 1991 when she taught the complainant health and physical

education. She recalled her student as very active, outgoing, enthusiastic, caring and involved in many aspects of school life. [ 22 ] Asked about her relationship with E.M., Ms. J.S. stated that they spent a lot of time together at school through sports activities. The complainant would also come to her classroom after school to say hello. Coaching E.M. developed into a friendship with some time spent together outside of school hours through grades 6 to 8. She did not have a similar relationship with any other student.

According to the witness, she viewed E.M. almost like a daughter. [ 23 ] The accused testified that he had a good rapport with E.M. She was an exceptional student. The student respected and looked up to him. In his view, he came to know E.M. better in her grade 8 year. He could joke verbally with her. Mr. M.P. informed the court that he did not see E.M. outside class except for floor hockey intramural games. He did not spend more time with E.M. than any other student. He did not see their relationship as like father/daughter. The M.P./J.S. Relationship [ 24 ] E.M. testified that she came to learn that Ms.

J.S. and Mr. M.P. were having an extra-marital affair. While uncertain of the point in time, perhaps late grade 6 or early grade 7, the witness recalled a day when she entered Ms. J.S.’s classroom after class to say good night. The teachers were kissing. She immediately pulled herself out of the doorway and left the school. She cannot recall if she was observed. [ 25 ] The following day, according to the complainant, Ms. J.S. called her to her classroom and confided that she was unhappy in her marriage and was involved in a romantic relationship with the accused.

It was E.M.’s perception that the accused was more friendly to her after this. She felt closer to him “because I felt like we had this little secret that I knew about”. To her recall, Ms. J.S. and the accused also became more physically affectionate in front of her. [ 26 ] J.S. informed the court that by February of 1992 she had developed a romantic relationship with her teaching colleague, M.P.. E.F. knew of their relationship. [ 27 ] There was romantic physical contact on school property between her and the accused including sexual behaviour.

This occurred in each other’s classrooms and in a science supply room. That room’s door to the hallway was generally locked. That door and the doors leading to the adjacent science classrooms each had a long narrow window. The door to the hallway was always covered with construction paper. Ms. J.S. testified that the accused told her he put the paper there so nobody could see in. In her in-chief evidence, Ms. J.S. was unsure whether the windows of the other doors were covered.

Seeing into the depth of the science supply room from an adjoining classroom would require a person to be right at the window and in the corner of a classroom. The supply room also had a window to the school exterior. In re-examination, the witness recalled the accused telling her not to worry as he had covered the doors.

She recalled being in the science supply room with the accused one to three times a day including during the school day and before and after classes ended. [ 28 ] Neither the witness nor the accused rejected the possibility that E.M. may at some point have observed physical contact between them. [ 29 ] According to the complainant, she was never jealous of Ms. J.S.’s relationship with Mr. M.P.. She did not believe Ms. J.S. was jealous of her relationship with the accused. [ 30 ] Ms. J.S. testified that the relationship ended in the spring of 1994. It was not “a happy break-up”.

At trial, the witness said that she can still be upset or angry about the event. To the witness’ recall, when E.M. made her disclosure the relationship “was already coming to an end” or indeed over. [ 31 ] Mr. M.P. testified that there was no paper on the window of the door leading from his second floor science classroom to the science prep room. Nor on the door to the opposite science room. Only the door to the hallway had paper covering the window which he may have placed there so that persons would not be able to see the expensive equipment in the room.

The accused recalled the prep room’s window to the outside as about four feet wide and ten feet high. The accused testified that he would only be in the science prep room for two to five minutes at any one time. [ 32 ] Mr. M.P. testified that he had discussions with Ms. J.S. in the science prep room after classes were over and students had dispersed but not any intimate behaviour at that location. He was never in the prep room with Ms. J.S. longer than five minutes. In cross-examination, the accused agreed that the prep room was a private place to speak.

Circumstances of Alleged Offence [ 33 ] The complainant informed the court that toward the end of her grade 7 year, and into grade 8, M.P. “started pulling [her] out of class” when she was in science class. He asked her to come out of class. It happened frequently. Sometimes, Mr. M.P. did not get her teacher’s permission. No other teacher ever pulled her out of class. At times, he took her to a science supply room. This was a long and narrow room between two science classrooms with a door to each adjoining classroom and a door to the school hallway.

To E.M.’s recall, the window in the door to the hallway was covered for a period of time. The windows in the doors to the science classrooms were not covered. There was a counter and storage cupboards in the room. [ 34 ] E.M. testified that the accused began asking her for “hugs” in grade 8. [ 35 ] The complainant rejected the suggestion in cross-examination that there had been only one “chat” in the science supply room. The supply room was off-limits to students – only teachers were permitted to enter the room. [ 36 ] The complainant described herself as liking to joke around and to be sarcastic.

She enjoyed being teased. The witness further stated that: “I liked to touch him, I suppose”. There were hallway interactions with Mr. M.P. described in these terms:

Q. Other than the times when Mr. M.P. would pull you out of science class or the time you told us about in music or coming from music, tell us about some of the interactions you had with him? A. He would be jovial with me in the hallways, but he was very jovial with a lot of people in the hallways. He was a very kind of smart, kind of a wise cracking teacher, liked to tell jokes, make fun of students, joke around and I was just kind of one of those students that probably he was like that with. He would tease me. He would tickle me.

He would kind of like play wrestle, you know in the hallways if I was walking, he would kind of come up behind me and maybe like scoop me up for a few feet and walk and then put me back down again. These sorts of things were all in plain sight of other – other students. And he was like that with a lot of other students as well. I don’t remember any girls him being like that with, but I can remember there being a lot of boys in class that he had kind of like that kind of rapport with. Q. Rapport meaning the physical or the jovial portion or both? A.

I remember the jovial part of it, very sarcastic and making fun of people, making fun of students and doing it in a way though it’s like a friendly way so the other students would be able to be kind of be sarcastic and jovial back. Q. Okay, when he’s – he tickles you or play wrestles, tell us more about that? A. I don’t know. There’s not really anything else to tell, that’s what it was. It was just in the hallways kind of joking around with me, while I’d be walking to class. Q. Were there others around? A. Yep, that would be in between classes when the classes were changing, people would be in the hallways. Q.

And what portions of your body is he tickling? A. Side, your ribs, my rib cage, like your stomach area. Q. Your stomach area? A. Yah, just like your core, no where that would be – not like anything above my rib cage or below – torso. Q. Is this over or under your clothing? A. Over your clothing. Q. And was that at any particular time, do you recall? A. No, I don’t recall. It was constant as far as I recall. [ 37 ] The complainant described the tickling as in her torso area in the ribs. There was no sexual discussion nor touching of her

sexual anatomy. [ 38 ] According to the complainant, the accused would also walk with her in the school hallway putting his arm around her shoulder at times “snugly” and “affectionately” steering her direction. He also linked arms with her. She had seen Mr. M.P. play-fighting with other students in the hallway. No other teachers interacted with students in this way. [ 39 ] Pursuant to s. 715.1 of the Criminal Code , E.M.’s April 4, 1994 videotaped statement was admitted as evidence.

In that statement, the complainant provided the following information: (1) she would say “hi” to the accused in the hallway or go by his classroom after school or floor hockey to say good night (2) because she was thinking of being a doctor or a vet, she also visited the accused’s science room to ask science-related questions – after class, he let her do dissections when other students were in the vicinity

(3) Mr.

M.P. did “different things” for her after school – on these occasions, other students might be present working or would pop in (4) she got to know the accused better in grade 7 – she gave him a Christmas card – they became friends – she cared what he thought of her and she wanted to impress him (5) in grade 8, the accused “got more friendly” – he talked to her and asked about her hobbies, what she had done on the weekend, and “things like that” – he came to her classroom during her science class and at times took her out of class for 2 or 3 minutes into the science supply room with the doors closed while a student teacher continued teaching in his adjacent classroom (6) at a point, “it got more personal” – after conversation, “at the end he would just like give me a hug and then…I’d go back to class” – initially, she did not think anything was wrong about these hugs but then “thought that this was kind of weird but then I don’t know” (7) on one occasion, the accused took her out of music class to a location just outside an exterior school door after receiving her music teacher’s permission – he asked her if she was mad at him – she thought this arose because she had earlier failed to acknowledge him or had not been cheerful in the hallway – he wanted to make sure everything was alright – he asked for a hug – she gave him one and returned to music class (8) if she had been absent for school for a time, as after Christmas holidays, Mr.

M.P. would say “can I have a hug”. [ 40 ] Looking back, the complainant thinks she was indifferent at the time of speaking to the police – she really did not understand why she was there. In her statement to the police, she made an effort to be truthful while deliberately omitting to disclose certain things. In her testimony, the complainant stated that in her videotaped statement, “I was being as truthful as I wanted to be”. Asked what that answer meant, E.M. testified that when she spoke to the police she sensed that others believed something wrong or strange had transpired.

She did not, and she felt embarrassed and somewhat humiliated, and therefore avoided saying anything that might be taken as inappropriate. She held back facts hoping that she, Ms. J.S. and Mr. M.P. would not get into trouble. She lied to the officer when she said that she had covered everything. As examples, she made an effort to keep Ms. J.S. out of the narrative, she minimized the frequency of the hugs with the accused, and “it was more elaborate than just a simple hug” with “hugs in different positions and hugs that were a certain length of time” more like “an embrace”.

E.M. testified that, at the time of her statement, she still considered Mr. M.P. was her close friend, she cared what he thought, and she did not want him to get mad at her for telling things to the school and to the police. After the disclosure, she did not see or talk to the accused again. [ 41 ] In her trial testimony, the complainant recalled a progression of hugging from an ordinary hug to hugs lasting 4 to 10 seconds in the following circumstances: Q. Now, you talked about a number of hugs, a number of different, I think the words that you used, “hugs in certain positions”.

Can you talk about positioning and if it changed over time, how it changed? A. Basically there was a progression of hugging from a hug like you would just give somebody if you were casually meeting them, just a hug like standing up hugging somebody or I guess in the case it would be him crouching down a little bit, because I was shorter.

I was smaller then, to progressing to hugging for a short amount of time, then hugging for a longer amount of time, to hugging and kind of afterwards rubbing on your arms up and down to then, you know, hugging – he would take me over and there was a counter, like a cabinetry on the left side of the room and there was like a counter top and he would sit me up on the counter and then hug me sitting on the counter and kind of – I would have my legs spread apart and I would be sitting back on the counter and he would lean in and give me a hug in between my legs. Q. So, was he sitting or standing when he was… A.

Standing.

Q. Were you having conversations during this hugging time or what was going on? A. Yah, yah we would go in there and we would have a chat. It would never just be take me in there and have a hug and then leave. There was always a conversation also about just casual things. You know, classes, the weekend, my grades, sports. . . . Q. When Mr. M.P. was hugging you or during the chats that you had, did he ever let you know he felt about you? A. He would say playful affectionate things, like you know, I love you, but it was always said very casually and didn’t make me feel threatened in any way. Q.

And what about you, how were you feeling about him at this point? A. Like I said, I really valued what he thought of me, so when I would hear things like that, like I said, it made me feel happy. Q. Can – you talk about how he hugged you, where on your body he was touching you. You’ve talked about some of the positioning, but can you give us some more details? A.

When he hugged me on the counter specifically, it would start with a hug where your arms would just be kind of wrapped around the top of somebody’s shoulders and then it would gradually – it progressed to hugging me kind of around my waist, like with your arms kind of around my – like – it’s hard to explain. Physically he was hugging, sitting on the counter there was hugging where I would feel his – just his hands like a regular hug over top of your shirt and there was a couple of times where it happened that I would feel his hands on my skin which would be just down below by my waist. Q.

You mentioned some rubbing during certain occasions. Can you describe that, how often that would occur, if you can. A. Yah, just like if somebody was hugging you and then after they had hugged you they would kind of take their hands and rub them on the side of your arms or like he would hug me, his hands would be down between my shirt and my pants on my skin then he would just kind of like rub my skin, you know just like an inch or two up and down.

Just kind of like – it’s kind of like your family hugging you, but it’s not – it’s hard to explain. [ 42 ] This type of hug occurred as casual, not school-related, conversation went on. [ 43 ] E.M. could not distinguish, in her memory, between the various hugging episodes in the science supply room. The length of the hugs varied throughout the sequence as did the contact between Mr. M.P.’ hands and her back. [ 44 ] In the complainant’s mind, “there was an understanding” that she knew why she was being hugged – “It was because he cared about me”.

At times, the accused would say “playful affectionate things like…“I love you””. According to E.M., it was always said “very casually and didn’t make me feel threatened in any way”. She believed Mr. M.P. would not harm her in any way. [ 45 ] The complainant described their position in the science supply room as deep enough into the room that they could not be seen through the thin windows of the doors of the adjoining science classroom. It seemed to her that she was the only one being pulled out of class.

Although she knew the context was not normal, she liked the attention – she felt that it meant that she was special. She did not view the touching as sexual. [ 46 ] At trial, the witness drew a diagram of how she was touched by Mr. M.P. in the science supply room (Exhibit #3). [ 47 ] E.M. testified that the accused would pick her up with his hands under her arms and set her on the counter. She was not seated on the very edge of the counter. When she leaned forward, on occasion a shorter top she was wearing would ride up her back exposing her skin.

When the accused stood between her legs, his torso would be touching her torso. There was no pelvic contact between them. [ 48 ] According to Ms. J.S., Mr. M.P. and E.M. became more friendly, through conversations, in grades 7 and 8. She was aware that

the student had given the accused birthday gifts as well as Christmas gifts and cards. The witness testified that she was at no point jealous of E.M.’s relationship with the accused. [ 49 ] M.P. denied that he ever tickled E.M. or ever lifted her onto the science prep room counter or hugged her at that location. The accused denied ever being in a science prep room with E.M. He never asked the student for a hug. She would drop in to see him and they did some dissections and extra experiments together. He at no time discussed his personal life with E.M.

He was never alone with the complainant in a location where the door was closed. He did not intercept E.M. on her way to music class. [ 50 ] According to the accused, he hugged E.M. only once at the time of Remembrance Day of the student’s grade 8 year. He was in the entrance of his science room without a class. E.M. walked in in tears saying she had not gone to play her trumpet in time that morning over the P.A. system. She was upset and afraid of what the music teacher would say. He told her that accidents happen and that she should seek out the music teacher. She thanked him and then hugged him.

According to the accused, he did not hug her back – he did not wrap his arms around her. [ 51 ] In cross-examination, the complainant stated that she had no recollection of missing an assignment to play Taps on her trumpet over the school’s public address system in relation to a Remembrance Day observance. Disclosure [ 52 ] E.M. learned that the relationship between Ms. J.S. and Mr. M.P. had come to an end and that it did not end well. [ 53 ] According to the complainant, a couple of hours after mentioning to Ms. J.S. in casual conversation, one day in March of 1994, an episode of physical contact with Mr.

M.P., she was called to the school guidance counsellor’s office. The counsellor spoke of them having “suspicions”. She was asked to repeat what she had related to Ms. J.S.. She then discussed matters with her mother. Shortly after, when events were still fresh in her mind, she gave a videotaped statement to the police. The complainant was furious that Ms. J.S. had conveyed information to the guidance office. [ 54 ] On the witness’ evidence, she was confused by the accused’s denials – this hurt her feelings and she felt betrayed. She thought that the teacher may have acted with ulterior motives.

She felt embarrassed and somewhat stupid when nothing came of her allegation to the police. [ 55 ] At trial, the complainant informed the court that looking back at what occurred at F[...] she considers it to have been “very inappropriate” and the relationship that developed with M.P. to be “completely outside of the lines of what it should have been”. She was young and became emotionally attached to the teacher. She had no father growing up and her mother was divorcing her step-father – M.P. became a father figure.

She now believes the accused was emotionally manipulating her for an ulterior purpose. [ 56 ] At the 2008 preliminary inquiry, E.M. did not recall giving a statement in 1994 to the police or its contents. Watching her videotaped interview refreshed her memory. The 1994 statement was incomplete but true. [ 57 ] On April 28, 2007, the complainant provided a further statement to the police when re-interviewed. That statement, in her view, elaborated on the earlier statement.

Shortly before her 2007 statement, the complainant watched a television program, The Seduction of Children, which dealt with the mental and emotional manipulation of children prior to any physically inappropriate thing occurring at the hands of an older person. [ 58 ] Looking back, the complainant also viewed her relationship with Ms. J.S. as inappropriate. They went shopping and to movies together. They bonded and the teacher confided about personal issues in her life. She recalled Ms. J.S. crying in front of her. [ 59 ] Ms. J.S. testified that, in the spring of her grade 8 year, E.M. telephoned her at home.

It was evening. It may have been March 24, 1994. she was upset. According to Ms. J.S.: As best as I can remember she was upset. I asked her why and she said that she had been sworn to secrecy, that she was afraid. She felt that she was afraid to walk down the hallway for fear of encountering Mr. M.P., because he was taking her into rooms and hugging her and then not letting her go. [ 60 ] This was the first occasion she had heard about the accused hugging E.M. The student gave no clarification as to who had sworn her to secrecy. E.M. had not previously expressed any negative feelings about the accused.

The witness had no precise recall of her response. She is confident she would have consoled the complainant. She asked for no details. She also became upset. She felt confused, perhaps betrayed by the accused. The only physical contact Ms. J.S. had ever observed between E.M. and the accused was an occasion when the accused stood behind the student helping with a dissection or how to use a microscope. The contact was holding E.M.’s hand demonstrating how to control one of the microscope settings. [ 61 ] Within the week, and perhaps on Monday, March 28, 1994, Ms.

J.S. discussed the subject of E.M.’s disclosure with the F[...] guidance counsellor who directed her to the school principal. She had not told E.M. of her intention to report the matter to the administration. The C.A.S. were notified. [ 62 ] Ms. J.S. acknowledged that in her relationship with E.M. she had breached aspects of Board policy which could attract discipline by a school Board superintendent. She received a discipline letter relating to E.M. [ 63 ] Mr.

M.P. recalled that after E.M. reported that he had been hugging her, a school superintendent cautioned him to be careful with the kids and told him that a letter would follow. An April 26, 1994 letter stated in part:

At this time I would like to stress that your actions in this particular situation showed a lack of good judgment. It is not wise practice to ever allow yourself to be put in a situation where you are with any student one on one behind closed doors. In addition, physical contact with students should be avoided except in situations where it is necessary to ensure the safety of the student or that of others. The accused explained the lack of good judgment related to him not backing away in the Remembrance Day hug. He understood the correspondence to further caution about being alone with a student.

The Board superintendent suggested a school transfer for the accused. [ 64 ] According to the accused, the complaint relating to E.M. made him “even more vigilant to make sure [he] wasn’t alone with a student definitely”. [ 65 ] According to Ms. J.S., she telephoned E.M. in 2007 after learning that Mr. M.P. had been charged in relation to other students. She did not encourage E.M. to come forward. They in turn met three or four times. At a point, E.M. asked her to stop contact. [ 66 ] As a witness, Ms.

J.S. stated that she may still be a bit angry that, in her opinion, school authorities did not deal properly with M.P. over the E.M. matter. [ 67 ] E.M. testified that her contact with Ms. J.S. stopped at about age 20 and then when charges had been laid against the accused. In her view, Ms. J.S. was still angry with the accused. According to the complainant, she then saw Ms. J.S. on about three occasions and had e-mail contact. E.M. testified that after the preliminary inquiry she sent Ms.

J.S. an e-mail telling her she wanted no contact until the legal proceedings against the accused were at an end. [ 68 ] E.M. testified that her perception of events changed: Yah, yah it changed immediately after I had told and gone to the police station, because I was told that after I had told the – you know give up these secrets, that he had denied a lot of it and I thought that was really strange, because I didn’t understand why somebody would deny something that was perfectly all right to me. Like I though oh, you know, why would he be denying pulling me out and why would he be denying giving me hugs?

Like I know that it’s not normal, but I don’t really understand why you would deny it and that made me think that that was a little odd and maybe that was because something really wasn’t right about it. But I was so angry and embarrassed that I didn’t want to question it. I just wanted to forget about it and just put it behind me. So, I didn’t really – for a good five or six years I didn’t really give it any thought at all. J.M. Background [ 69 ] J.M. was born May […], 1993. She testified at trial as a sixteen-year-old high school student.

She was a good athlete who played many sports including volleyball while attending R.L. for grades 7 and 8. The witness was a good student scoring marks in the nineties. She was captain of the girls’ volleyball team. At R.L., Mr. M.P. coached most of the teams on which she played. J.M. considered Mr. M.P. to be a very competitive coach. She described herself as helping out a lot in the gym between, during and after classes and at lunch. These activities included fund-raising and sports. The witness recalled Mr.

M.P. as being in charge of the chocolate almond fund-raising each fall. [ 70 ] Mr M.P. described the girls’ volleyball team as very competitive. There were daily practices – sometimes twice a day. [ 71 ] According to the accused, the lunch sales program generated as much as $12,000.00 annually for R.L.. He oversaw the program and was assisted by a couple of teacher advisors and a group of ten to twelve student volunteers. To the accused’s recall, J.M. and N.S. were involved. The program operated in the stage area of the school daily from about 11:50 a.m. to 12:15 p.m. [ 72 ] Mr.

M.P. testified that lunch sales materials, chocolate almond supplies and other items were kept in the stage storage room. The almonds supplier also provided about 1000 small chocolate almond bars. They were given out as prizes or, according to the accused, he might give one to a student who had helped him. [ 73 ] J.M. acknowledged that in grade 8 she was the best setter on the school’s girls’ volleyball team.

In practices, she did a lot of ball-setting, perhaps dozens of times. [ 74 ] The witness testified that throughout the school year the accused would take her out of class, usually math and science, to help out with things in the gym. The frequency varied from once a week to daily. On average, half a class would be missed each time. [ 75 ] Asked about her relationship with Mr. M.P., J.M. testified that in grade 7 the accused began treating her as a “teacher’s pet”. The accused picked on her a bit. At times, he discussed his personal life with her such as his wife and new baby.

With near daily volleyball practices, she saw the accused daily. She spent a significant amount of time in the gym. In the witness’ opinion, Mr. M.P. spent more time with the kids he liked – he favoured them. She recalled the accused having a tendency toward yelling and outbursts at his players when unhappy with their play. He had been known to throw a shoe at a player. He could be verbally abusive. Some girls would cry, others would talk back. According to J.M., if she thought the coach was being rude she would shake it off or give him

attitude. [ 76 ] It was K.F.’s view that J.M. and the accused were pretty close. The accused could be hard on her in the context of her being the captain of the girls’ volleyball team. [ 77 ] Mr. M.P. testified that he considered J.M. to be intelligent, dependable and trustworthy. He spent time joking around with her. She was a big part of the lunch and chocolate sales at the school. She took on a lot of responsibility on the volleyball team and was captain of the girls’ team in grade 8. As the team’s only setter, she might set the ball 200 to 300 times a practice.

On occasion, he would verbally push her to keep her motivation up. He would be stern with her. She would talk back at times. The Alleged Physical Touching Tickling, Rough-housing, etc. [ 78 ] J.M. informed the court that she spent a lot of time in the accused’s gym office at R.L.. She popped in when she wanted to. In the office, she typed on the computer. She might be alone, or with Mr. M.P., or with the accused and another gym teacher. The office door might be open or closed by Mr. M.P.. The accused recalled J.M. being in the gym office a lot in grade 7 and 8 and Mr.

Grozdenofsky being present “the majority of the time”. Before morning volleyball practices, Mr. M.P. would bring her into his office to talk about how she should play and the attitude she should exhibit. At times, in the office, when they were alone, the accused would, in the witness’ words, “joke around and put me in headlocks or put my arm behind my back and push me against the wall”. J.M. testified that the accused “liked horseplay and … to be physical”. She never initiated the horseplay or rough-housing and did not enjoy it. When her coach tried to tickle her sides, she would squirm to get away.

This happened more than once in the gym office. Asked what precipitated physical contact, the witness replied: Q. What would be happening just before he’d put you in a headlock or put your arm behind your back? A. If I was in a bad mood or I wasn’t really talking, he would do it. Mostly because he thought that he or he wanted a reaction out of me. He wanted me to fight back, but I wouldn’t. Q. Why do you believe that that’s what he wanted? A.

Well, I remember him actually saying to me one time when I didn’t fight back – I don’t know how he worded it, but he said something like he wanted me to fight back and I was lame for not fighting back. I don’t know how he worded it though. Q. And when he’s putting you in a headlock or putting your arm behind your back, can you describe how he is doing that and what else he is doing? A. Well, he would – I don’t know, he would just do it and he would laugh and think it was a joke, but… Q. What would you say or do? A. I probably told him to let me go every single time he did it, because I don’t like it. Q.

Was the headlock and the arm behind the back happen[ing] at the same time or at different instances? A. Different. Q. And when he’s putting your arm behind your back, what kind of physical contact is there between you other than him somehow using his body to get your arm behind your back? A. He would grab my wrist and just turn it behind my back.

Q. Did any of the rest of your bodies touch? A. No. Q. And how did that feel when he did that? A. Not that great. Q. You are being a little sarcastic. A. Yah, sorry. Q. Can you describe it in a different way? A. It actually did kind of hurt. Q. Do you recall whether you said anything to him to let him know that you were – you were hurting? A. I know that he knew I did not like it, but he did it anyway. Q. Why is it that you say that you know he knew that you didn’t like it? A. Well, every time he did, I felt uncomfortable. I told him not to do it. I wouldn’t joke around with him. I wouldn’t be laughing. Q.

What about when he puts you in a headlock, how much of your bodies are touching? A. I’d be bent over and his entire arm would be around my neck, yah. Q. How long would he hold you in a headlock? A. Not very long, no more than a minute. It would be probably 30 seconds. [ 79 ] J.M. testified that the accused told her that he liked it when she fought back and annoyed him when she did not. According to the witness, she never did. It seemed to her that the accused made attempts to aggravate her. The witness gave this evidence in cross- examination: Q.

And you didn’t want him to know that what he was doing was really upsetting you?

A. I told him to stop when it was too far. Q. Yah. A. But that doesn’t mean that he did stop. Q. I know. But you never told him it hurt? A. I have told him some things – that it hurt. Q. You did? A. Yes. [ 80 ] In cross-examination, the complainant tearily described to the court being teased by other students: …he always – he had a creepy way about him. Actually the students in my class in grade seven used to actually make me go home and cry every night because they used to say, like when he used to come into my class to try to take us – try to take me out, they’d be like oh, J.M,.’s going to go have sex with Mr.

M.P., and you know that kind of thing, at that age, it’s upsetting. And there was just a part of me was always scared that at one time it might happen, ‘cause I didn’t know him, and he scared me and half the reason that I was around him as often as I was, was because I was scared of him. And if I said no, I was afraid he would hurt me. [ 81 ] The accused agreed that J.M. was a “tough” kid. [ 82 ] It seemed to J.M. that the accused touched her as “a joke” – “he could just like sort of bully and get away with it”. Mr.

M.P. testified that he did not tickle J.M. or rough-house with her. [ 83 ] Sixteen-year-old N.S., a grade 11 student when she testified, had attended R.L. for grades 7 and 8. N.S informed the court that at R.L. she was on several sports teams, helped out with chocolate sales fund-raising and other school activities. [ 84 ] Mr. M.P. taught N.S. gym in grade 7 and for a part of grade 8. He was her coach in grade 7 for volleyball as well as for track and field and cross-country running. She got along well with the accused.

The only physical contact she had with the accused was in the context of volleyball practice and drills. Mr. M.P. informed the court that when the gym office door was open, it would slowly creep closed on its own to about six inches from closing completely. While sometimes the accused was nice and playful, N.S. testified that in her view no one really liked Mr. M.P. – during volleyball games he would yell and be mean and rude toward members of the team. This would cause some girls to be upset and to cry. Of her teammates, K.F. would not talk back to the coach. J.M. would.

The Shove into a Chair [ 85 ] J.M. described a particular incident of physical contact with her coach in grade 7 when they were alone in the gym office. The office door was open. The accused was in a bad mood for some reason. On this occasion, according to the witness, the accused shoved her out of the way from behind causing her to stumble forward and hit her eye on the corner of a chair in the gym office. To her recall, she got up pretending she had not struck her eye. She feared complaining given Mr. M.P.’ mood thinking he “would just be rude back”. [ 86 ] Mr.

M.P. denied ever shoving J.M. in the gym office causing her to hurt herself. He did not see her fall forward and strike her face on a chair. The Gym Floor Drag/Spin [ 87 ] The complainant described another incident in January 2007 at a lunch-time during floor hockey season. As she was bent down crouched on one knee to tie up her shoe, Mr. M.P. knocked her over, grabbed one of her feet and began to run in the gym dragging her along and laughing. To the witness’ recall, B.F. was also in the gym at the time in a position to see what was occurring. As she was dragged, it hurt her spine on the hard floor.

The hurt was temporary. J.M. informed the court that she told the accused to stop. After about a minute, the accused stopped.

[ 88 ] In her evidence, N.S. described a single observation of Mr. M.P., after a volleyball practice, tickling J.M. as she was on the gym floor on her stomach laughing. He had her arm behind her back. J.M. was telling the accused to stop but not in a serious way – “just saying stop like you would to a friend”. There may have been other players from the girls’ volleyball team in the vicinity. Ms. N.S. perceived J.M. and the accused to be buddies or friends. [ 89 ] The accused described an event during a volleyball practice. J.M. had not been serving well. He pressed her to keep serving.

At a point when she bent down in an apparent attempt to tie up a shoelace, although to the accused’s view it was not undone, he grabbed her foot – “I spun her along the floor, or around on the floor”. He moved J.M. about a foot. He believed she was trying to get out of serving. He gave her a spin causing other girls to laugh. He wanted to get a reaction and to motivate her. The Arm Twist Injury [ 90 ] J.M. described a further incident after a volleyball practice near the outset of grade 8 when she was in the accused’s office.

This was not unusual, as after a practice the accused would discuss with her how the team was doing or how she had played. The other girls were in the girls’ change-room. She had yet to change. She was in Mr. M.P.’ office when, as they were facing one another, the accused grabbed her arm and spun her around. One of the accused’s hands held her wrist. His other arm was around her shoulder. She struggled to get free. It hurt as a shooting pain went up her arm. It hurt. She yelled out for him to stop. He did so after about 30 seconds.

The witness testified that it seemed to her that it was done to lighten her up as she may have been grumpy or being rude to him. She did not want the accused to see her upset or crying. Once the accused released his hold, she ran crying to the change-room where her team- mates were including N.S. and K.F. She did not want to be around the accused. [ 91 ] J.M. testified that team members noticed her condition. She explained to them what happened and that she was crying because Mr. M.P. hurt her shoulder.

The witness told the court she had experienced a number of sprains over the years and she believed the office incident likely damaged or sprained her shoulder as after the incident she had difficulty lifting things and playing volleyball. The soreness continued for some time. [ 92 ] Mr. M.P. testified that he never put J.M.’s arm behind her back even in jest. He recalled J.M. complaining on one occasion about her shoulder saying it was from hitting serves too hard. A couple of other times she said she hurt her arm spiking and serving. [ 93 ] According to J.M., Mr. M.P. never apologized to her.

This was the last episode of physical contact between them. [ 94 ] J.M. testified that she was up late the day when her shoulder was injured. She told her parents what had occurred: A. …I told my parents when I got home, because I was complaining my shoulder hurt and so we were basically up all night fighting, because they wanted to press charges and they wanted to contact the school and I was telling them not to. Q. Why didn’t you want to? A.

Because I didn’t want to get involved with anything. [ 95 ] On the complainant’s evidence, the day after the shoulder incident, she was late for morning volleyball practice. At practice, she told the coach her shoulder was sore from overhand serving. [ 96 ] When in grade 7, N.S. considered J.M. one of her best friends. She had a recall of J.M.’s shoulder hurting her which she believed was on account of volleyball – serving, spiking and doing drills. Disclosure [ 97 ] K.F. informed the court that when she was in grade 7, J.M. told her that her arm was “bugging” her.

The next day J.M. came to school wearing a tensor bandage. J.M. said that her arm hurt when she played volleyball. According to K.F., in November 2006, after Mr. M.P. had left the school, J.M. told her that Mr. M.P. was responsible for what happened to her arm. [ 98 ] J.M. testified that she at no point talked to B.F. respecting the physical contact the accused had with her. She did, however, discuss this with K.F. and N.S. shortly after Mr. M.P. left the school in October of J.M.’s grade 8 year. They were already aware of the “shoulder incident”.

J.M. testified that she told N.S. everything she had told the court “about like him shoving me and putting me in headlocks and things like that”. [ 99 ] J.M. testified that after her parents were contacted, they told her she had to be interviewed by the police. [ 100 ] J.M. testified that she was glad the accused left the school not just because he was verbally abusive: ..he was also like physically abusive, and I didn’t appreciate horseplay and things like that, because he took them as a joke and I didn’t normally. B.F.

Background [ 101 ] B.F. was born January […], 1992. She testified as a grade 12 student. She hoped to train to eventually become a firefighter like her father. She is an exceptional athlete. She plays competitive hockey and several other sports. B.F. has good grades and was offered a scholarship to play university hockey in the United States. She does not know E.M. [ 102 ] The complainant recalled her marks in grades 7 and 8 during the 2004-6 time period at R.L. as A’s and B’s at a time when she was very active on school sports teams and in school activities.

In grade 7, she began showing outward signs of puberty and growing up. [ 103 ] M.P. taught B.F. phys-ed for the latter half of grade 7 and for her grade 8 year. The accused, along with Mr. Warr, coached her as a member of the girls’ volleyball team. Most days there would be morning and afternoon volleyball practices after classes. [ 104 ] B.F. described a stage storage room at stage level which was used to store chocolates, lunch sales materials, and “some other weird stuff in jars” like crickets, etc. The witness recalled that in gym storage room #1 mats were stored. It was very tight for space in that room.

Gym storage room #2 contained gym equipment such as volleyball nets, volleyballs, etc. The gym storage rooms automatically locked when closed. [ 105 ] To B.F.’s recall, probably half way through grade 7 at R.L., she became friends with Mr. M.P.. They talked about a lot of things. The accused often used her as a demonstrator in gym class. As well, some days when food was sold at lunch in the stage area by Mr. M.P., or when chocolate sales were on-going, she helped out.

Not only did he coach her, but also they worked together after school in April of 2006 constructing a set for a school play. [ 106 ] As the girls’ volleyball coach, in B.F.’s opinion, Mr. M.P. was intense. He could be mean to a player and was to her on occasion. He once threw a shoe at a player for missing a serve. He had inappropriate approaches. [ 107 ] B.F. recalled Mr. M.P. pulling her out of class about four times in grade 8. To her knowledge, she was the only student this happened to. B.F. testified, “…if a teacher comes to your classroom and asks you to…help…what kind of student is going to say no”. Ms.

Mungra informed the court that there was no firm school policy about taking a student out of class. She considered that the practice was frowned upon as the student would have class work to do. [ 108 ] J.M. testified that she first met B.F. in elementary school. They later attended R.L. at the same time, overlapping for one year. According to the witness, they were not ever “really close friends” or ever “close”. In her view, B.F. was also a teacher’s pet of Mr. M.P.. The two would joke with one another. They appeared to be friends “more than teacher and student”. To J.M.’s recall, B.F. helped out Mr.

M.P. a lot, particularly at the beginning of B.F.’s grade 8 year. She observed no physical contact between them. [ 109 ] Allison McGregor taught B.F. a number of subjects in the student’s grade 8 year at R.L.. From her limited observations of Mr. M.P.’ interaction with B.F., she considered that the two had a positive relationship – there was joking and laughing. The accused seemed to have a closer relationship with B.F. than with other students. Frequently, B.F. sought the witness’ permission to be excused from class to help Mr. M.P. in the gym. [ 110 ] Ms.

Mungra taught home room subjects and girls’ phys-ed at R.L.. She knew B.F. as responsible, out-going, friendly and mature for her age. She had seen the accused working with B.F. and J.F. in the gym office or on the stage at times when she would be left in the gym with her own and the accused’s gym classes. She also observed the accused with just B.F. on a “pretty frequent” basis. The accused testified that he had never left Ms. Mungra with two classes while he went off with a student. [ 111 ] Surya Naidu taught grade 7 computers and grade 8 social studies and later special education in her tenure at R.L..

She knew M.P. as a teaching colleague. From her observations, Ms. Naidu believed that Mr. M.P. had a close and jovial relationship with B.F. According to Ms. Naidu, as the students rotated between classrooms, teachers would generally be stationed by the classroom doors. Students were expected to move along. On one occasion in a hallway she shared with Mr. M.P., she observed the accused call B.F. back – they spoke with “some comradery”, sharing a joke, as B.F. leaned with her back against the wall while the accused faced her with his arms extended on each side of her and his hands on the wall.

Their bodies were about a foot apart but not touching. The event lasted about 30 seconds – in the witness’ words, “long enough for me to be aware of it”. Other students and teachers were in the area. [ 112 ] Sawraj Boparai, a special education teacher at R.L., testified to seeing B.F. and Mr. M.P. talking to one another in a school hallway a few times. The school halls were noisy and busy.

On two to five occasions, generally before the second morning bell, she observed B.F. backed into a wall with the accused leaning his upper body into her and facing her with his arms around the student and the palms of his hands flat to the wall. They were talking and laughing. B.F. would have her arms crossed in front or behind her back. The space between the two was about a foot. At times, the witness had the impression that B.F. seemed like a trapped animal. Though having no specific recall, Mr.

M.P. testified that it was possible he had conversed with B.F. in the manner described by the Crown witness. [ 113 ] Mr. M.P. described B.F. as a very good athlete. She was very outgoing. They had a good relationship and always got along well. He did not consider that B.F. spent more time with him than with other teachers. The accused testified that, “In her grade eight year I would say she was close to myself”. He did not think she was closer than a number of other students. Mr. M.P. agreed that he may have favoured B.F. because of her athleticism.

The accused recalled having sports-related discussions with B.F. in the school hallways. He did not speak to her in the hallway more than any other student. They would joke around “an awful lot”. Although B.F. was not involved in lunch or almond sales, she helped in the gym including setting things up for volleyball. The accused agreed that he arranged to have B.F. come to assist him in four or five TAG periods. To his recall, he did not have B.F. out of class any more than any other student.

Tickling, Play-fighting, etc. [ 114 ] The complainant informed the court that a form of play-fighting would go on throughout the day between her and the accused “back and forth” with pushes and punches whenever they saw each other.

[ 115 ] The complainant testified that during class changes in the school hallways Mr. M.P. would tease her and push her. They would also talk to one another in the hallway. [ 116 ] Apart from the pushing and punching, according to B.F., she was physically touched by Mr. M.P. in the stage and gym storage rooms and at a music room location.

The witness testified that “a lot of it is just a blur” – with the number of incidents she cannot keep the sequence straight or the precise timing or what clothes were being worn or whether other students were around but does recall “how it happened and where it happened and what happened”. [ 117 ] J.M. testified that in the context of Mr. M.P. telling her that he liked it when she fought back, he also said B.F. fought back. [ 118 ] In cross-examination, the accused was directly asked whether he recalled touching B.F. at any time.

His response was that he had – “[i]n the course of football and stuff”, for example ‘hands in’ in a huddle, a grab of the hand to tell B.F. what position to take as he put her on the floor in a volleyball game, a pat on the shoulder saying ‘good job’ at cross-country running, and a handshake at grade eight graduation. In further questioning, the accused gave this evidence: Q. Would you poke each other in the shoulder too? A. She would initiate it, yes. Q. Would you poke her back? A. Sometimes. Q. Was it just a one shot each time or more often? A.

Yah, she’d try to give me a -- when I wasn't looking she’d try to give me a good shot in the arm. She liked to do that then run away and say, see if you can get me. Q. Would this be in the hallways, coaching, gym class? A. Usually in the gym. Q. Did you ever get her back? A. She’s a lot faster runner than I was, so no. Q. Did you give her any of those pay back taps? A. If she hit my arm I would either -- if she was still there, I would push her away, because they did hurt. Sometimes I would give her a pay back. Q. Right then or later on in the day? A. No, it would be at that occurrence.

It wouldn’t be later on in the day. Q. It would not be?

A. It wouldn’t be later on in the day. It would be when that took place. . . . Q. So the only time you had physical contact with B.F.in a playful manner was when she initiated something? A. Correct. Q. Was there a reason that you never initiated something? A. Yah because I didn’t think it was the right thing to do. Q. And the playfulness with B.F, that was just taps to the arm? A. Yes. Q. Nothing else? A. No. Darts in the Gym Office [ 119 ] According to Ms. Mungra, in the afternoon of the date of a school dance in October 2005, she went to the gym where the lights were dimmed and the student dance was ongoing.

Mr. M.P. had earlier requested that she type a letter for him at the gym office. She opened the closed door of the gym office and found Mr. M.P. and B.F. in the middle of the office playing darts and eating pretzels. Neither had any reaction when she entered the room. Ms. Mungra testified that, feeling very awkward and uneasy, she encouraged B.F. to leave when the accused stepped out to obtain letterhead from the principal’s office. Mr.

Grozdenofsky “came in at one point” toward the middle or end of her typing. [ 120 ] The accused recalled that he played darts with B.F. three or four times in the gym office at lunch time in the student’s grade 8 year. According to his evidence, Mr. Grozdenofsky or Mr. Warr or another teacher would also be present. The office door would have been open. Specific Allegations of Physical Touching The Gym Office [ 121 ] B.F. described the first physical contact with the accused as occurring in the gym office. She could not recall the time of day. They were alone in the office in grade 7.

The complainant recalled the accused and her play-fighting – there was pushing and punching each other’s arms hard enough to hurt sometimes. B.F. could not recall who initiated this. The accused then began tickling her sides at her “hips and kind of like up the shirt where he is touching skin”. She was tickled long enough for her skin to turn red. She felt “really uncomfortable” and scared. She has no recall of any conversation. Subsequently, still in her evidence in-chief, the complainant said that she could not recall if pushing or punching occurred in the gym office on this occasion.

The tickling ended with Mr. M.P. laughing. She did not want to be touched like this. She then left the office. [ 122 ] The complainant testified that during the TAG period, a 20-minute time in homeroom before classes ended for the day, she and others were allowed to go to the gym to set things up on stage relating to the school play. On one such occasion in grade 8, the accused called her away from her friends and into the gym office and began to discuss volleyball. He shut the door.

Others were in the gym. [ 123 ] At a point, the accused wrestled her to the floor and pinned her down on her back “almost like an older sister or an older brother pinning you down, like sitting on your stomach…in between your stomach and the lower part of your body and holding your arms”. While pinned, she was tickled on her sides and on her skin a little bit underneath the pants but above her underwear line. She often wore fitted jeans. Her pants were loose enough that the accused’s hand “could fit” down her pants in the waistband area. The tickling left red marks.

Although she was moving as tickled, she did not see how the accused’s hand could go accidentally into her pants. The witness described herself as feeling “really nervous because everyone else was outside the door” – “it didn’t feel right” and

she was not sure what was going on. The complainant testified that, “[l]ike this is a teacher. You can’t stop it”. She did not want to be touched in this manner. She left the office “really upset” and scared. She thinks others could tell. A friend, N.D., commented that she had been in the room a long time and asked what happened. The complainant does not think she told him what occurred. [ 124 ] The complainant felt embarrassed: Q. You said that you were really upset and everyone – everyone knew. Why do you believe everyone knew? A.

Because for as long as I can remember, since day one I’d been in RHL I was told to look out for Mr. M.P.. Q. Sorry, I was asking specifically about you being upset and why you say everyone knew. A. Because when I – I guess the expression on my face, I’m not too sure. It’s kind of strange if a female student goes into a phys-ed office just with a teacher that a lot of people have heard previous stuff about for a long period of time. [ 125 ] B.F. described a routine before gym class that jewellery be removed.

For safekeeping, rather than leave jewellery in a change room, it could be placed in a basket in the gym office. Because she cleaned up or cleared equipment after the class, she would generally be the last student to retrieve her jewellery before going to the change room. A number of times, she was approached by the accused, perhaps on as many as 20 occasions, when she came to pick up a firefighting necklace given to her by her father. She wore the necklace always unless she absolutely had to take it off. The accused would start talking to her. On occasion, someone else would be present.

When no one else was there, Mr. M.P. might do nothing or he would tickle her sides and “sometimes it would be as bad as him pinning me on the floor”. A lot of these times she was touched below her waistline in the manner described above. On more than one occasion, the accused used his hand to touch her on the skin a bit beneath her underwear. The complainant testified that the accused’s hand remained an inch or two above her vagina. She felt the touching was inappropriate – “Every time he touched me like that, I never wanted it”. [ 126 ] Mr.

M.P.’ testimony agreed that girls participating in the gym did not wear jewellery. There was a plastic container which was located “inside the corner of the phys-ed office” to safeguard the jewellery as there had been thefts from the change rooms. At the end of gym class, the jewellery container would be placed by a gym teacher on a small desk outside the gym office door. [ 127 ] The accused testified that B.F. was not often in the gym office in her grade seven year.

To his recall, B.F. would only be in the gym office if going over sports matters such as volleyball plays or when B.F. placed her jewellery in the security receptacle. Mr. M.P. denied that he ever tickled B.F. or pinned her to the floor or touched her skin under her shirt or put a hand down her pants. The Stage [ 128 ] B.F. described the first physical episode on the stage as occurring in grade 8 around the time a day’s lunch sales were scheduled. This was an instance of Mr. M.P. tickling her sides as she was standing facing the teacher.

She was touched on her clothing and, when her shirt started “to get scrunched up”, under her top by his hands. It went on for some minutes. She was shocked “[b]ecause it’s the teacher doing it to me”. She has no recall of what was said. The complainant gave this evidence: Q. Why do you feel kind of shocked? A. Because it’s the teacher doing it to me. Q. And what about that made you feel kind of shocked? A. I felt like I was being taken advantage of. Q. In what way specifically? A. Just taken advantage of a student/teacher relationship, like to a whole different level where he was using his authority against me.

Q. Why did you feel that he was using his authority against you? A. Because if a teacher comes to your classroom and asks you to – for help or to come get the stuff out of his truck or to do this, what kind of student is going to say no? [ 129 ] According to the complainant, she was physically touched by the accused in the main stage area probably three or four times. This included coming up from behind and tickling her sides catching her off guard, the accused putting his arm around her shoulder as he spoke to her, and “stuff like that”. Sometimes the tickling left marks. It was not restricted to her waist area.

On one occasion, she laughed because she was nervous. She felt physically and emotionally uncomfortable. She saw the accused tickle no one else on the volleyball team. [ 130 ] Ms. Mungra testified that fund-raising chocolate sales are conducted in part from the stage area. The witness recalled seeing B.F. and the accused on various occasions come down from the stage area and into the gym. The folding door across the stage, open only for assemblies and plays, was closed as usual. The stage curtains were open. They said they had been engaged in fund-raising activity on the stage.

While she knew of no other students or staff up in the stage area at the time, others may have been present. [ 131 ] Mr. M.P. testified that the conduct described by B.F. never occurred. The Stage Storage Room [ 132 ] The complainant described similar touching once or twice at the location of the stage storage room when she was helping with lunch sales or cleaning up afterward or putting away chocolates – everyone would be out for recess or doing their own thing. The door was always open.

In the storage room she was tickled on clothing and skin, the accused’s arm would be around her shoulder, along with “laughing and stuff”. She at no time tickled the teacher. [ 133 ] The accused testified that he was never alone with a student in the stage storage room. He was never in that room with B.F. He denied B.F.’s allegations relating to touching in the stage storage room.

Gym Storage Room #1 [ 134 ] As to the gym storage room #1 location, B.F. recalled that after her gym class in grade 8, in the two to four weeks when gymnastics were taught, which was scheduled immediately before lunch, she would put the gym mats away in the room. There was little floor space in the storage room. As she was in the room putting away mats, with her back to the door, Mr. M.P. entered and she heard the door close. The lights were on. Within about 15 seconds, he pinned her to the ground on her back as he squatted on her with about 75% of his weight.

The accused held her hands with one of his as she was squirming. The complainant also stated that she could not have stopped the tickling in any event: How are you supposed to say no to a teacher, really, when you are 14 years old. You are not really thinking anything of that. [ 135 ] He tickled her on the hips and sides of the torso. He seemed happy. They were in the storage room for about five minutes. [ 136 ] According to the witness, during the weeks of gymnastics, she was tickled on her sides in the gym storage room #1 area “regularly, unless there was someone around”.

The complainant recalled being touched in grades 7 and 8 in the area of this room. [ 137 ] Mr. M.P. testified that he was never alone with a student in gym storage rooms #1 and #2. The accused agreed that he might have been in gym storage room #1 removing sports equipment with B.F. but “it wouldn’t be just with her” as they would not be alone together. The accused denied touching B.F. in gym storage room #1. Gym Storage Room #2 [ 138 ] B.F. testified that she was touched during her grade 8 year at the gym storage room #2 location.

There were about eight encounters as she would be in the course of putting away volleyball nets after practice. The complainant described what occurred in these terms: Q. What’s the first thing that you can remember happening in gym storage room two? A. Pretty much the same sequence like storage. Like I would be cleaning up something or like putting away equipment and he would show up.

Q. Do you recall whether there were any others, students or teachers around? A. No, it was always seeming like he was well aware of who was around him and who wasn’t. . . . Q. What happened when you were putting away the nets after volleyball? A. He would approach me and start talking to me about something and then it was almost be like he would catch me off guard and then just start laughing and joking around with me and then just start either tickling me or putting his arm around me. Q. Was there any specific reason that you knew about for him putting his arm around you? A. No. Q.

Did you ever tell him that you wanted him to touch or did not want to be touched? A. No. Q. When he is tickling you in storage room two, what parts of your body is he touching? A. Again, my sides… [ 139 ] The complainant was unsure but thought that on these occasions other students were in the gym or the second gym on the other side of a separating divider wall. Ms. B.F., recalled some tickling on skin as she would still be wearing her shorts and t-shirt from practice. She was always standing. Mr. M.P. would be facing her or to her side. The tickling was from above the kneecap up to the sides of her torso.

The tickling made her feel very uncomfortable: It was just -- it’s one of those feelings that you always get in your gut that you know that this shouldn’t be going on and that it’s a really unpleasant feeling. Like it makes you sick to your stomach. [ 140 ] Ms. McGregor recalled one occasion when B.F. returned to her classroom in April or May of 2006. The date was perhaps a month before the trip of the grade 8s to Ottawa. The student was not happy, her head was down, she looked as if she might cry.

It seemed to the witness that after that day the student, who was ordinarily energetic and bubbly, was not herself – she trudged along, not smiling as often, looking stressed, tired and sad. [ 141 ] Mr. M.P. testified that he was never alone in gym storage room #2 with B.F. There were occasions when they would both be at the room to get a volleyball net or if B.F. was obtaining volleyballs. The accused denied that he ever touched B.F. in gym storage room #2.

May 2006 [ 142 ] Surya Naida informed the court that in the spring of 2006, after she had returned to R.L. from maternity leave in May 2006, one of the students, J.W., came to her at the end of one school day. He informed her of what he had just observed in the gym. As J.F. was bent over to do up her shoelace at the end of gym class when most students had departed, the accused came up from behind, picked her up and carried her to another location in the gym, and tickled her. J.W. said he thought this was sexual harassment. He wanted to go to the principal. Ms.

Naidu testified that she stopped him from speaking further saying, “Let’s not jump to conclusions” and not to be saying such things in the hallways. Ms. Naidu reported the matter to Ms. Stevens. [ 143 ] Eighteen-year-old J.W. testified that B.F. was in the same grade 7 and 8 as he was at R.L.. They had no classes together. He

recalled her as popular and playing for lots of sports teams. The witness spent no time with B.F. outside of school. [ 144 ] J.W. testified to observations he made in June of 2006. He came in from recess to obtain a ball to use at recess. He entered the gymnasium and proceeded to the gym office. The office door was open. In the office, he saw Mr. M.P., who taught him phys-ed in grade 7, along with B.F. and a student named J.F.. They had their backs to the witness.

He took one step into the office and observed, over a period of 20 to 40 seconds, the accused with an arm bent over and around each of B.F.’s and J.F.’s bodies from the back of the neck and under the armpit stretching down between the elbow and the shoulder – “the way you’d have your arms around a buddy, but his arms were moving” up and down slowly about an inch. He could see the back of the accused’s arms.

While he could not see the accused’s hands, from his vantage point “it looked like they were in the chest area of the two girls”. [ 145 ] According to the witness, the occupants of the office did not observe him. He did not fully enter the office. He turned and walked away: …it didn’t seem right and I didn’t know what would happen. Like in my mind it – there were so many questions that were popping into my head, like what would happen, what would I say, what would they say, what would – I don’t now… [ 146 ] Mr. J.W. informed the court that he immediately went to the office and reported what he had seen.

At trial, he could not recall which staff member he spoke to. To the witness’ recall, he did not see Mr. M.P. at school in the two weeks after he made his report. [ 147 ] Mr. M.P. testified that he had no recall of being in the gym office with his arms around B.F. and J.F. and he could think of no reason why he would be in such a position. [ 148 ] B.F. testified that she was aware that, in grade 8, in 2006, J.W. reported something between her and Mr. M.P. to the principal’s office. She has never spoken to him about what he reported seeing.

She understood the accused was then sent home while further investigation was done. She was called to the principal’s office the next day, May 9, 2006, and asked by Ms. Stevens what was going on without her explaining the situation. Feeling scared, she believes that she replied that nothing was going on. When her mother picked her up from school, she related to her that she had been in the principal’s office for hours and then asked questions about Mr. M.P. and something someone had seen. According to the complainant, her mother freaked out on her and jumped down her throat saying things such as Mr.

M.P. could be fired and that he had a baby. According to the complainant, “I got really upset and I just really kept quiet…I was only 14 at the time. I was scared to death”. [ 149 ] The following day, the complainant’s parents met with the principal. The complainant had a meeting with a C.A.S. social worker which she described in her evidence in-chief: A. The social worker briefly kind of said to me that there was accusations of Mr.

M.P. doing stuff and I really didn’t -- I was -- at this point like I was shaking and I was nervous and I was so upset at this point and scared about him losing his job and I felt bad that I didn’t say anything. When she was asking me questions like were the doors open and closed, I said he never shut a door, like he never touched me, he never did -- like I basically like hands down lied to the social worker. Q. And why did you lie to her or him? A. It was a her. Because I was scared.

I’ve never been in a situation like that ever in my life and to have my parents kind of not support me and kind of be there to even ask me what happened, I thought nothing was even wrong, so I didn’t say anything. Q. What do you mean by “I thought nothing was even wrong”? A. I don’t know. I just thought if my parents weren’t making that big of a deal of it and was going and meeting with the social worker and they didn’t ask me ever if anything happened. They just kind of like the one time when my mom -- like the day before when my mom freaked out on me, tha

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