Docket: CACR2081 Her Majesty the Queen Appellant - v. -, 2012 SKCA 74

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 74 Date: 20120725 Between: Docket: CACR2081 Her Majesty the Queen Appellant - and - Bonnie McLachlan Respondent Publication Ban : An order has been made prohibiting the publication of the complainant’s name and any information that could lead to the identity of the complainant shall not be published or broadcast in any way. Coram: Richards, Ottenbreit & Caldwell JJ.A. Counsel: Bev Klatt for the Appellant Peter A. Abrametz for the Respondent Appeal:

From: CR. No. 10 of 2011, J.C. of Prince Albert Heard: June 19, 2012 Disposition: Allowed Written Reasons: July 25, 2012 By: The Honourable Mr. Justice Richards In Concurrence: The Honourable Mr. Justice Ottenbreit The Honourable Mr. Justice Caldwell Richards J.A. I. INTRODUCTION [ 1 ] The respondent, Bonnie McLachlan, was charged with sexual exploitation of a young person contrary to s. 153(1) of the Criminal Code . She had been a teacher in Prince Albert, Saskatchewan during the 1993-1994 school year.

It was alleged that, during this period, she had maintained a sexual relationship with a 15 year old male student. [ 2 ] The case was tried by a Queen’s Bench judge and jury. The jury heard from several witnesses including both the complainant and Ms. McLachlan. The evidence presented by the Crown suggested that there had been sexual contact between the complainant and Ms. McLachlan on numerous occasions in and around Prince Albert and during a school trip to Alberta. For her part, Ms. McLachlan denied having acted inappropriately toward the complainant.

The jury deliberated and rendered a verdict of not guilty. [ 3 ] The Crown appeals the acquittal. It submits the trial judge made several fatal errors in his charge to the jury. [ 4 ] I generally agree with the Crown’s concerns and conclude, for the reasons set out below, that the acquittal must be set aside and a new trial ordered. The jury was not instructed properly with respect to (

a) the evidence concerning the trip to Alberta, (

b) the application of the criminal standard of proof or (

c) the issue of a teacher’s position of trust and authority in relation to his or her students. II. BACKGROUND [ 5 ] When the complainant was 14 years old, and in grade 9, he attended a school in Prince Albert. Ms. McLachlan was one of two grade 9 teachers at the school but she did not directly teach him any subjects. Ms. McLachlan has never suggested that, in any of the circumstances relevant to this appeal, she was anything other than a “teacher” or that the complainant was anything other than her “student”. [ 6 ] According to the complainant, he and Ms. McLachlan developed a relationship over time.

It began with his participation in a weightlifting program at the school for teachers and students. When the program ended in the fall of 1993, Ms. McLachlan told the complainant that she would be willing to work out with him at a private fitness centre after school hours. The complainant’s parents consented. [ 7 ] The complainant testified that his parents usually dropped him off at the gym in the evenings after supper. He worked out at the gym with Ms.

McLachlan at least three times a week and, generally speaking, she gave him a ride home after the sessions. [ 8 ] The complainant testified that, as time wore on, he and Ms. McLachlan began to discuss things that were not school-related. He also said they skied together and were by themselves for most of the day during a school ski trip to Big River in November or early December of 1993. The complainant had just turned 15. [ 9 ] According to the complainant, he went to the private fitness centre to work out with Ms. McLachlan the first Monday after the ski trip.

She told him that they should leave the gym early and go somewhere private. They drove outside the city limits, parked and had sexual intercourse.

[ 10 ] The complainant said there were numerous other sexual encounters after that. He said they would usually meet at the gym but leave early to have sex, typically in her car. He testified that they had sex several times per week for the next two months. Starting in or about February or March of 1994, he said they began to have sex at Ms. McLachlan’s home. According to the complainant, this was possible because her husband was usually out of the house on Wednesday nights and frequently away on weekends. [ 11 ] The complainant said that he told his friends he was having sex with Ms.

McLachlan but they did not believe him. To prove it, he allowed three boys to listen in on a telephone conversation he had with Ms. McLachlan. Two of the boys (now men) testified. One recalled Ms. McLachlan making graphic sexual comments and inquiring of the complainant about a previous sexual contact. The other recalled only fragments of the conversation but remembered Ms. McLachlan telling the complainant that she thought she was falling in love with him. [ 12 ] The complainant testified that rumours about his relationship with Ms. McLachlan started after his friends realized he was having sex with her.

The situation threatened to become even more public on the eve of a school trip to Alberta in May of 1994. The complainant and two other male students, G.M. and C.E., were invited to join a choir and band excursion to Banff and Red Deer. They agreed and Ms. McLachlan offered to go on the trip to play the piano. [ 13 ] Wanda Kent was a teacher’s assistant at the school. She testified that she had been concerned about Ms. McLachlan’s relationship with the complainant for weeks, if not months, before the Alberta trip. She indicated that she had seen Ms.

McLachlan acting inappropriately around the complainant at school. For instance, she had seen Ms. McLachlan press her body up against the complainant’s body so as to pin him against a locker and then rub her body up and down against him. [ 14 ] Ms. Kent was also concerned because of things Ms. McLachlan had told her. For example, approximately two weeks before the Alberta trip, she said Ms. McLachlan had told her that she had “more than just a relationship” with the complainant and that she was eager to go on the school trip with him. She also told Ms.

Kent that she was worried her husband might be using a tape recorder to gather evidence against her. [ 15 ] Ms. Kent testified that she kept her suspicions to herself until she was approached by a grade 9 student who asked her to do something about the situation between Ms. McLachlan and the complainant. According to Ms. Kent, this led her to raise her concerns with the teacher to whom she reported and then with the principal of the school. The complainant testified that around this time Ms. McLachlan contacted him by phone.

She advised that he was going to be called into the principal’s office and asked about their relationship. She told him to deny it and said her husband would be very angry with him if he were to do otherwise. The complainant testified that the principal spoke to him and asked only one question: was he “infatuated” with Ms. McLachlan. He responded that he was not. [ 16 ] Ms. McLachlan testified that, shortly before the trip to Alberta, she was called to the principal’s office and warned about her behaviour in relation to the complainant.

Despite the warning, she acknowledged that she used her car to drive the complainant and two other boys to and from Alberta. The rest of the students involved in the trip rode on a bus. [ 17 ] The complainant gave evidence that, on the way to Alberta, Ms. McLachlan rubbed his leg and touched his hand as he sat in the front passenger seat of her vehicle. G.M., one of the boys in the back seat, testified that he saw Ms. McLachlan and the complainant touching and rubbing each other’s legs and touching each other’s hands while they travelled to Alberta. [ 18 ] The complainant said that, while they were in Banff, Ms.

McLachlan took him to a restaurant and bought him supper. He also testified that, when they were in Red Deer, he watched a movie while lying on a bed in a hotel room with Ms. McLachlan. He indicated that she kept grabbing him underneath the covers and that he believed this made the other students in the room feel uncomfortable. [ 19 ] This evidence was generally corroborated by Mr. G.M.. He testified that the complainant and Ms. McLachlan did not eat supper with the rest of the group the night they arrived in Banff. Mr.

G.M. said he and some others had gone downtown after dinner and had seen the complainant and Ms. McLachlan alone at a table on a downtown restaurant balcony. He also testified that, the next day when everyone rented bikes, Ms. McLachlan and the complainant split off and rode alone. He recounted that, on the night the group spent in Red Deer, he saw Ms. McLachlan and the complainant lying together on a bed underneath the covers. [ 20 ] The complainant also gave evidence that, one night when the school group was in Banff, he was alone with Ms. McLachlan in a hot

tub. He said that she climbed on his lap, wrapped her legs around his body and started to kiss him. He testified that C.E. walked in andsaw what they were doing. [21] All of this seemed to be corroborated by Mr.C.E.. He said that, on the evening after their performance in Banff, the studentsdecided to go swimming in the hotel pool. Ms. McLachlan and the complainant stayed behind when everyone left. Mr.C.E. said that,when he went back to the pool area to look for the complainant, he saw Ms. McLachlan and the complainant alone in a hot tub andobserved Ms. McLachlan sitting on his lap.

She and the complainant were kissing and hugging. [22] The school group returned to Prince Albert on a Saturday. The following Tuesday, the School Board received an anonymous callfrom a student who expressed “concerns” about Ms. McLachlan and one of the students. The School Board then directed the principal“to check with some students that were on the trip”.

She did this by calling four students into her office and saying to each one “how wasthe trip?”. [23] Two of the female students reported that, although they had not seen “anything”, they had been obliged to stay in their room thefirst night in Banff because they had no key and had to wait for Ms. McLachlan to come back to the hotel. They also reported that, on thesecond night, Ms. McLachlan and the complainant had gone missing after going to a restaurant. They advised that someone had seenMs. McLachlan and the complainant together in a hot tub. [24] The music teacher who had gone on the trip reported that Ms.

McLachlan had disappeared with the complainant the first night inBanff. All of this led to Ms. McLachlan being suspended from her teaching duties for the balance of the school year for “inappropriatebehaviour”. [25] Ms. McLachlan testified at the trial. She denied having any sexual contact with the complainant. She acknowledged asking thecomplainant’s parents for permission to let him work out with her at the private gym, but said she was never alone with the complainantat any time or at any place in Saskatchewan or Alberta. Her evidence was that her husband was always at the gym with her.

She deniedever having been in a hot tub with the complainant and said that she had not gone for supper with him when they were in Banff. III. ANALYSIS [26] The Crown submits that the charge given to the jury was defective in several respects. It contends: (

a) the judge incorrectlyinstructed the jury to disregard the evidence relating to the Alberta trip, (

b) the judge wrongly instructed the jury to apply the criminalstandard of proof to individual pieces of evidence, (

c) the judge failed to provide adequate instructions to the jury with respect to ateacher’s position of trust and authority in relation to students, and (

d) the judge failed to adequately and fairly review the evidence. Ipropose to deal with the first three submissions in turn. I find it unnecessary to deal with the fourth submission. [27] However, before proceeding to an analysis of the substance of the Crown’s position, it is necessary to comment on the applicablestandard of review. Specifically, I note that, in order to set aside the acquittal in this case, the Crown must discharge a significant onus. That onus was described as follows in R. v.

Morin, (SCC), [1988] 2 S.C.R. 345 at p. 374: The onus resting on the Crown when it appeals an acquittal was settled in Vezeau v. The Queen, (SCC), [1977] 2S.C.R. 277. It is the duty of the Crown to satisfy the court that the verdict would not necessarily have been the same if the jury had beenproperly instructed. I am prepared to accept that the onus is a heavy one and that the Crown must satisfy the court with a reasonable degree ofcertainty.

An accused who has been acquitted once should not be sent back to be tried again unless it appears that the error at the firsttrial was such that there is a reasonable degree of certainty that the outcome may well have been affected by it. Any more stringent testwould require an appellate court to predict with certainty what happened in the jury room. That it cannot do. See also: R. v. MacKenzie, (SCC), [1993] 1 S.C.R. 212 at p. 248. A.

The “Alberta Evidence” [28] In order to understand the Crown’s first argument, it is necessary to dig somewhat deeper into what happened at the end of the trial. [29] In their closing submissions to the jury, counsel focused on the issue of whether the Crown had proven there was a sexualrelationship between the complainant and Ms. McLachlan. Both lawyers proceeded on the assumption that all of the evidence which hadbeen tendered was properly before the court and was available for the jury’s consideration.

[30] At one point in her address to the jury, the prosecutor seemed to say that Ms. McLachlan could be found guilty as charged even ifthe jury believed nothing more than that she had been kissing the complainant in a hot tub while in Banff. Her comment in this regard isset out below: So even if you find she was kissing him in the hot tub, that is enough. That’s enough. That’s sex – that’s contact for a sexual purpose. But that’s not all there was to it.

There was a full-fledged sexual relationship, but all the Crown has to prove beyond a reasonable doubton that element is that there was a touching for a sexual purpose. And that evidence is corroborated by other witnesses. [31] Immediately after closing submissions were completed, the trial judge asked for counsel’s assistance. He expressed concern aboutthe possibility that the jurors might be satisfied that Ms. McLachlan sexually touched the complainant in Alberta, but not inSaskatchewan. His concern was rooted in the fact that the indictment alleged Ms.

McLachlan had committed the offence charged “at ornear Prince Albert, Saskatchewan”. The trial judge said he wanted the advice of counsel with respect to how to instruct the jury aboutthis issue. He then adjourned the proceedings to allow them to consider their positions. [32] On reconvening, the prosecutor expressed the view that, in order to secure a conviction, the Crown had to prove sexual touchinghad taken place in Saskatchewan. Following some further discussion with counsel, the trial judge raised another, but related, issue.

Heasked for their positions about whether the jury should be allowed to consider any of the evidence relating to the events that hadallegedly taken place in Alberta. [33] The prosecutor submitted that the evidence of the happenings in Alberta was admissible. Ms. McLachlan’s counsel also took theposition, at least initially, that the evidence was admissible.

However, moments later, after being asked to restate his position, hechanged directions and submitted that “out of an abundance of caution”, the jury should be “warned” not to consider evidence concerningevents which occurred outside of Saskatchewan. [34] The judge adjourned court until the next morning. At that time, he advised counsel that he had decided to instruct the jury todisregard all of the evidence relating to sexual misconduct in Alberta. He did so by stating as follows: . . .

I am of the opinion that the jury will need to disregard all evidence relating to alleged misconduct said to have taken place outsidethe Province of Saskatchewan. While I am cognizant of the Crown’s position that the events alleged to have transpired complete a narrative under which the allegationsarise, I am guided, by his case [sic] by the words of Judge Doherty from the Court of Appeal decision, R. v.

Robinson (2004), (ON CA), 189 C.C.C. (3d) 152, where, at paragraph 72, he said: … [I]t was open to the jury to reach a different factual conclusion concerning the act that constituted the sexual assault, as long as the actwas within the four corners of the indictment. The alleged misconduct in this case of Alberta – in – sorry, in that case, took place beyond the spatial limitations indicated in theindictment, and this, therefore, also falls beyond the jurisdiction of this jury. If the conduct cannot be lawfully part of or within the basisof the indictment, that evidence serves no lawful purpose.

For the jury’s deliberation, this proceedings – excuse me – its inclusion would amount to similar fact evidence, which is not part of theCrown’s case, and for these reasons, which I will communicate to the jury as part of my instructions, that the jury will disregard allevidence relating to the alleged sexual touching and inappropriate behaviour said to have taken place outside the Province ofSaskatchewan. [35] The trial judge then instructed the jury that the only evidence they were permitted to consider was “evidence alleged to be [Ms.McLachlan’s] conduct in Prince Albert and Prince Albert District”.

He advised the jury to disregard and not use “any of the evidencerelating to what was alleged in Alberta”. This is what he said: You’ll recall, in the evidence, much evidence was given about things that happened in Banff and Red Deer, and if you’ll recall theCrown’s closing, they summarized it by saying you can find a guilt based on what happened in Banff and Red Deer. In other words,there were wrongful acts done in Alberta for which she can be convicted on this indictment. My conclusion is that is not true.

I’ll put itthis way: that is not the law because the indictment she is charged with today, going back to the sheet again, says the wrongful actoccurred within or in the district of Prince Albert, Saskatchewan. And the law is clear, as I have concluded, that the offence chargedmust come within the four corners of the indictment. So consequently, the only evidence you may consider is evidence alleged to be her conduct in Prince Albert and Prince Albert District. You must disregard and not use any of the evidence relating to what was alleged in Alberta.

You don’t have to consider whether it wastrue or not, true or proven beyond a reasonable doubt, it just doesn’t matter to these charges, okay? As a consequence, any allegations or evidence relating to the – to Alberta events are not admissible or relevant to this proceeding and

may not be used by you to base any part of the conviction or consideration for a conviction, okay? It just can’t be part of yourdeliberation. The only evidence you may consider is, to put it briefly, is Saskatchewan evidence . . . [36] In this Court, counsel for Ms. McLachlan did not attempt to defend the line of reasoning employed by the trial judge on this point.Rather, he contended that, given the prosecutor’s comment in her jury address to the effect a conviction could be founded on what hadallegedly happened in the hot tub in Banff, the judge had no choice but to instruct the jury as he did.

In other words, counsel submittedthat the prosecutor had made an error in the course of her address and it was an error which could only have been cured by having thejury disregard all of the evidence concerning what had transpired in Alberta. [37] I do not accept this argument. Given the wording of the indictment, the prosecutor was wrong to suggest that Ms. McLachlan couldbe convicted on the basis of sexual touching which had occurred in Banff. In this Court, there is no disagreement between the parties onthe point.

Indeed, the prosecutor herself, in her submissions to the judge following her jury address, also readily accepted that theconviction had to be based on sexual touching in Saskatchewan. [38] All of this said, the problem created by the prosecutor’s misstatement could have been satisfactorily remedied by way of the trialjudge providing a proper direction to the jury.

Specifically, he could have instructed the jury to disregard the impugned statement of theprosecutor and told it that the Crown was obliged to prove that touching for a sexual purpose had taken place “at or near Prince Albert,Saskatchewan” as alleged in the indictment. It would have been easy enough for the trial judge to make it clear that Ms.

McLachlancould not be convicted on the strength of sexual touching in Alberta. [39] As to the merits of the trial judge’s own reasons for excluding the evidence concerning the trip to Alberta, I will do no more thanobserve briefly that there is no general rule of law to the effect that evidence is admissible only if it relates directly to the allegationsfound within the four corners of the indictment.

With specific reference to the sort of charge at issue in this appeal, I note that there aremany cases where the Crown has been allowed to introduce evidence of assaults by an accused on a complainant even though theassaults were not the activity which formed the subject-matter of the charge. See, for example: R. v. F.(D.S.) (1999), (ON CA), 132 C.C.C. (3d) 97 (Ont. C.A.); R. v. MacDonald (2002), (ON CA), 170 C.C.C. (3d) 46 (Ont. C.A.); R. v.C.(D.A.R.), 2002 PESCAD 22, 170 C.C.C. (3d) 64 (P.E.I.C.A.). [40] The trial judge also made some reference to Ms.

McLachlan’s alleged conduct in Alberta being “similar fact” evidence. Theprecise nature of his concern in this regard is not apparent and the picture is somewhat clouded by the fact that, when the evidence waspresented to the jury during the course of the trial, no concerns about it were raised by counsel for Ms. McLachlan and the prosecutordid not, at that time, explain the specific purpose or purposes for which it was being tendered.

But this does not mean there was adisqualifying “similar fact” problem with the evidence. [41] Clearly the evidence with respect to the Alberta trip could not have been used by the jury to infer that Ms. McLachlan is a person ofgenerally bad character and therefore was likely to have committed an offence against the complainant. Nor could the jury have used theevidence about what allegedly happened in Alberta as a reason for punishing Ms. McLachlan by way of finding her guilty of the offenceactually charged. However, on the basis of the submissions of the Crown in this Court (uncontested by counsel for Ms.

McLachlan) theevidence was properly admissible with respect to at least some issues. I will not attempt to sort out what might have been the limits ofthe allowable uses of the evidence as this point was not fully argued before us. However, the bottom line is clear enough. The trialjudge’s response to the “similar fact” issue should have been to instruct the jury as to the allowable and prohibited uses of the evidenceconcerning the Alberta trip.

He should not have, if in fact this is in part why he proceeded as he did, simply excluded the evidence in itsentirety because it had a similar fact quality. [42] In the end, I conclude that the trial judge erred in instructing the jury to disregard all of the evidence concerning the Alberta trip. Given the potential significance of the evidence, it is not clear that the jurors’ verdict would have necessarily been the same if they hadbeen allowed to consider it. B.

The Application of the Standard of Proof [43] The Crown’s second argument is that the trial judge misdirected the jury with respect to how it should apply the criminal lawstandard of proof to the evidence. It says the trial judge erred by telling the jury to apply the “beyond a reasonable doubt” standard tothe testimony of individual witnesses, rather than to the elements of the offence.

[44] The law on this point is clear. It is misdirection for a judge to instruct the jury to apply the “beyond a reasonable doubt” standard toindividual pieces of evidence. See, for example: Stewart v. R., (SCC), [1977] 2 S.C.R. 748 at 759-61, R. v. Bouvier(1984), (ON CA), 11 C.C.C. (3d) 257 at 265, affirmed (SCC), [1985] 2 S.C.R. 485. As Sopinka J.said in R. v.

Morin, at p. 360, “…the function of a standard of proof is not the weighing of individual items of evidence but thedetermination of ultimate issues”. [45] In this case, near the beginning of his short charge, the trial judge instructed the jury that the reasonable doubt standard applied toindividual pieces of testimony. He said this: If you have a reasonable doubt about the accuracy of certain testimony or how much credibility it has or how much weight to give it, ifyou have a reasonable doubt, you must give the benefit of that doubt to Ms. McLachlan, the accused. She always gets the benefit of anydoubt.

The Crown gets no benefit of any doubt. If there are conflicting views of credibility, you don’t have to resolve them. You may be well left with doubt and not firmly believe ordisbelieve a particular witness. That may give rise to a reasonable doubt, and, if so, if you have a reasonable doubt as to whether awitness is or is not credible, once again, to whom do you give the benefit of the doubt? I think you can probably guess where I’m goingright now: you give it to the accused. She gets the benefit of the doubt. [46] In addition, when referring specifically to Ms.

Kent’s evidence, the trial judge in effect instructed the jury not to consider hertestimony as a basis for their decision unless they believed it on a “beyond a reasonable doubt” standard. The trial judge put it this way: . . . So if you believe beyond a reasonable doubt what Wanda Kent says was admitted to her by Ms. McLachlan – that’s the key, do youaccept that beyond a reasonable doubt – then that is capable of being corroboration or capable of being evidence of an admission onbehalf of Ms. McLachlan. Whether you find it as such is a question of fact. Did they have the meeting? Did they have a discussion?

Isthat what Ms. McLachlan said? The Crown must show each of those elements and you must be satisfied that she made those answers, butthat’s part of your job and your role. [47] I acknowledge that, on several occasions during the course of this charge, the trial judge correctly directed the jury that, in order forit to find Ms. McLachlan guilty as charged, the Crown had to prove each of the elements of the offence beyond a reasonable doubt. However, this did not overcome the fact that he had also instructed the jury to assess the testimony of individual witnesses on the basis ofthe same standard.

A juror who followed the trial judge’s directions would have (

a) assessed the testimony of each witness using thestandard of “beyond a reasonable doubt” and then, in addition, (

b) asked whether, on the basis of the evidence he or she had accepted onthis standard, each element of the offence had been proven beyond a reasonable doubt. [48] As a result, although it was presumably a case of misstatement (rather than misunderstanding) on the part of the trial judge, theeffect of his misdirection may very well have been that the jury considered the evidence piecemeal. Much of it, without the support ofother evidence, might have been discarded as not meeting the standard prescribed by the judge.

Accordingly, the trial judge’sinstructions with respect to the jury’s fact finding mission amount to a fatal error and stand as a basis for disposing of this appeal infavour of the Crown. C. Person in a Position of Trust or Authority [49] The Crown’s third argument is that the trial judge failed to properly instruct the jury on the issue of whether Ms. McLachlan was ina position of “trust or authority” as contemplated by s. 153(1) of the Criminal Code, the

section under which she was charged. Thatprovision reads as follows: 153.

(1) Every person commits an offence who is in a position of trust or authority towards a young person, who is a person with whomthe young person is in a relationship of dependency or who is in a relationship with a young person that is exploitative of the youngperson, and who (

a) for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of the youngperson; or (

b) for a sexual purpose, invites, counsels or incites a young person to touch, directly or indirectly, with a part of the body or with anobject, the body of any person, including the body of the person who so invites, counsels or incites and the body of the young person. [emphasis added] [50] In my view, the Crown’s argument on this point is well-founded. The trial judge dealt with this element of the offence byinstructing the jury as follows: . . . ‘Was Bonnie McLachlan in a position of trust or authority towards [S.W.]?’ Once again, words like trust and authority are notdefined in the Criminal Code.

We find we draw from our ordinary experience and the meaning of those words to determine whether they

existed. It is generally accepted that a person in a position of trust to a young person when the relationship creates an obligation or responsibilityon the adult. Let me give you an example. If you find that Ms. McLachlan agreed with [S.W.] to drive him home at night afterCalifornia Fitness, you may conclude – may conclude – that that was her acceptance of a responsibility to drive him home safely, andthat, equally, society, his parents, and even him trusted in her to do it properly.

So if, in fact, she drank 15 bottles of beer before shejumped in the car to drive him home and was impaired, you’d say well, that’s a – that’s a breach of trust. That’s not compliant with whateverybody expected. And so the question for you is, in this case, do the circumstances reveal that Ms. McLachlan stood in a relationshipof trust with respect to [S.W.]? And you look at all the circumstances. Various people have, in the circumstances, have been found to have been in a trust with people.

Parents have often been found to be in atrust relationship with their children, teachers of students, employers of their employees, caregivers, coaches, youth group leaders are allexamples of people who may be in a position of trust. They’re not in a position of trust automatically, but in the circumstances you’reentitled to determine whether the relationship is one of trust.

If it is one of trust, then you have to decide, has the Crown proven beyond areasonable doubt there was that trust? [51] This instruction, on an essential aspect of the offence charged, does not comport with the Supreme Court of Canada’s decision in R.v. Audet, (SCC), [1996] 2 S.C.R. 171. In that case, which also involved s. 153(1) of the Criminal Code and the allegedsexual misconduct of a teacher, LaForest J. (for the majority of the Court) held that, but for exceptional factual circumstances, teachersare necessarily in a position of trust and authority in relation to their students.

He wrote as follows: 39 … a teacher is not in a de jure position of trust or authority towards his or her students. 40 However, it would be excessively formalistic to refuse to recognize that certain persons, by reason of the role entrusted to themby society, will in fact and in the vast majority of cases come within the ambit of s. 153(1) by reason of their status vis-à-vis the youngperson and, in particular, the relationship they are engaged in with that young person as a consequence of such status. ... 41 In my view, no evidence is required to prove that teachers play a key role in our society that places them in a direct position oftrust and authority towards their students. ... . . . 43 In short, I am of the view that in the vast majority of cases teachers will indeed be in a position of trust and authority towardstheir students.

It must also be recognized that there may be situations where, owing to exceptional factual circumstances, this is not thecase because, even though the accused has the status of a teacher, his or her relationship with a particular student is such that the elementof trust or authority is totally absent. I will refrain from speculating and suggesting hypothetical examples to illustrate this.

However, inthe absence of evidence raising a reasonable doubt in the mind of the trier of fact, it cannot be concluded that a teacher is not in aposition of trust and authority towards his or her students without going against common sense. [emphasis added] [52] In this case, the trial judge’s charge did not instruct the jury that, but for exceptional circumstances, a teacher like Ms. McLachlanis in a position of trust and authority relative to a student like the complainant.

Rather, his instructions left the jury with a rather open-ended discretion to decide whether, in light of the “circumstances”, a notion he did not elaborate upon, the Crown had proven thiselement of the case. [53] I do not mean to suggest that a jury instruction on this issue is defective unless it specifically parrots the precise language used in R.v. Audet. The real point is that the charge in this case conveyed nothing of the special relationship which typically runs between ateacher and a student.

Nor did it advise the jury that, but for evidence of unusual circumstances raising a reasonable doubt on the point,the existence of a relationship of trust and authority followed necessarily from the status of Ms. McLachlan and the complainant asteacher and student. Rather, the trial judge compared teachers to, among other individuals, employers and caregivers and simply left thejury to decide whether, with reference to all the “circumstances”, Ms.

McLachlan stood in a relationship of trust to the complainant. (Inaddition, the trial judge made no meaningful reference to “authority”, a concept surely relevant in this context.) [54] As a result, in my respectful view, the trial judge’s charge on this point was inadequate. It might have led the jury to find onimproper grounds that, particularly in relation to matters occurring outside of school hours, Ms. McLachlan was not in a position of trustor authority in relation to the complainant. IV. CONCLUSION [55] I conclude, for the reasons set out above, that this appeal must be allowed and a new trial ordered.

DATED at the City of Regina, in the Province of Saskatchewan, this 25th day of July, A.D. 2012.

_____ “Richards J.A.” ____________________ Richards J.A. I concur. “Ottenbreit J.A.” Ottenbreit J.A. I concur. “Richards J.A. for” Caldwell J.A.