R. v. F.(J.), 2003 CanLII 52166 (ON CA)

COURT OF APPEAL FOR ONTARIO

W A R N I N G

The President of the panel hearing this appeal directs that the following should be attached to the file:

A non-publication and non-broadcast order in this proceeding under s. 486(3) of the Criminal Code, concerning the identities of and any information that would disclose the identities of the complainants and witnesses, has been made and continues.

File Information

DATE:20030825

DOCKET: C33827

LASKIN, FELDMAN and CRONK JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Harry G. Black, Q.C. and

Respondent

Joanne E. Mulcahy

For the appellant

• and -

Randy Schwartz

J. F.

For the respondent

Appellant

HEARD: October 22 & 23, 2002

On appeal from convictions entered by Justice John C. Kennedy of the Superior Court of Justice on October 25, 1999 and from sentence imposed on March 9, 2000.

FELDMAN J.A.:

1The appellant was a karate teacher. He was charged with historical sexual offences against eight young men who had been his students: B. H., S. M., C. M., B. V., J. A., J. T., M. S. and G. S. There was a consent acquittal with respect to J. T. as no evidence was led by the Crown. The appellant was acquitted with respect to four of the seven remaining complainants, but convicted with respect to three: B. H., S. M., and M. S. He received a sentence of four months consecutive on each count. The appellant appeals his convictions and sentence.

2The three convictions each involved a single incident of touching the genitals of the boys while demonstrating stretching techniques in connection with karate. The appellant acknowledged that he did demonstrate stretching techniques to the complainants, but denied that any incidental touching of the genitals had any sexual purpose. The decision of the trial judge turned on the credibility of the witnesses including the appellant and another former student, E. T., who instigated the prosecutions and organized and met with the complainants on several occasions. It was because of E.T.’s involvement that the evidence on the other counts was considered tainted by possible collusion and formed part of the trial judge’s conclusion that he had a reasonable doubt on those charges.

3The appellant raises three categories of alleged errors by the trial judge: failing to appreciate the effect of collusion and tainting of evidence as a result of the involvement of E. T., reversal of the burden of proof and errors in perception of the evidence.

4For the reasons that follow, I would allow the appeal, set aside the convictions and order a new trial on each count.

FACTS

5The appellant graduated from the University of Western Ontario in 1982 with a Bachelor of Arts degree in Physical Education. He opened and operated a series of martial arts and karate schools in the London area, which he eventually franchised across Canada. From 1982 to his arrest in 1997, the appellant taught karate and martial arts to thousands of students in the London area and beyond. He was a recognized contributor to the London community, having been involved in numerous fundraising charitable events and adult and children’s sports events.

(1) The Incidents

(i) B. H.

6The first conviction was for a spring 1988 incident involving B. H. when he was 12 years old. The charge against the appellant in respect of the incident with this complainant was touching a person under 14 for a sexual purpose, contrary to s. 151 of the Criminal Code. At the time of the trial in 1999, the complainant was studying in the United States to be a chiropractor. He studied karate with the appellant from 1982/3 to October 1988. The complainant’s father was a chiropractor. The appellant was his patient and friend.

7The complainant gave detailed testimony about the event. He testified that he worked up a sweat in an afternoon karate practice. Two or three other students were there at the time. After practice, the appellant suggested that he take a shower. The complainant said that he was embarrassed about taking a shower especially because it was dark in the men’s shower as there had been a power failure that day. He said that the appellant hinted that because he was nearing puberty he might get acne if he did not shower, and that it would be too late to shower once he had taken the bus home. The complainant went into the change room trying to avoid taking a shower. He had no shampoo, soap or towel. The complainant testified that the appellant “presented with an attitude” suggesting the complainant was tough, getting older and should shower. The appellant gently but sternly tugged on his arm and brought him into the dark change area saying, in respect of the dark, that he did not have to see only to be able to feel. The appellant then suggested that he shower in the girl’s shower which had light from windows.

8Both the appellant and the complainant had their uniforms on at the time. The complainant was “somewhat agreeing” to shower although he did not want to. He also made the excuse that he had a planter’s wart on his foot, but the appellant responded that no one used the girl’s shower. The complainant denied that he had previously showered at karate school and that there had ever been talk about it. In the girl’s shower, he took off his uniform and attempted to turn on the shower but had problems with it. The appellant had left to get shampoo. When he returned, the complainant was facing away from the appellant so as not to expose his full frontal nudity, and attempting to adjust the shower. He referred to his difficulties adjusting the shower in order to divert attention from his nakedness.

The appellant adjusted the shower, then mentioned the complainant’s tan line. B. H. said: “I was tanned from the waist up, enough that it was noticeable and he could see my bum and he said, “you’ve got quite a tan line here [B.]” – [B.] was my nickname.” The complainant was then turned around and the appellant was crouching about one foot in front of him. He could not say how he was turned around or whether the appellant had touched him to turn him or had just suggested he check something. The complainant said he did not turn voluntarily, but with reluctance.

9The appellant said he wanted to check something having to do with the complainant’s flexibility or stretching. The appellant then palpated the muscles on the complainant’s inner thighs. In so doing, the back of the appellant’s hand touched the complainant’s scrotum, testicles and penis. The complainant spread his legs to try to avoid this touching and he also tried to pull his genitals away so that the appellant could palpate the muscles. The appellant did not explain what he was doing. He commented that “you’re getting a big dick, [B.].” He checked other muscle groups and went back and forth a couple of times. When he moved from one leg to the other, he said, “let’s just move your dickie here.” He also made comments about how one side was tighter than the other. The incident lasted from 30 to 60 seconds. Eventually the appellant got up and told the complainant to get on with the shower and left the room.

10B. H. then took a shower and dressed as fast as he could so as not to have any further contact with the appellant without his clothes on. When he was dressed, the appellant came over to him in the dark men’s change room and suggested that he bring a towel and shampoo in order to shower more regularly at the club. Although he did not want to do that, the complainant agreed that maybe that was a good idea. They then had a further discussion about the value of palpating the upper inner thigh for stretching purposes. Then B. H. took the bus home.

11B. H. then skipped the next three classes over a one-week period. He said this was because of embarrassment and fear of a similar experience with the appellant, however, he told his parents he was not feeling up to it. Eventually he told his mother about the experience, following which he returned to karate class. The complainant said that, once after that, the appellant pulled him aside and told him to hit the shower, and he brushed it off. Nothing was ever said again about the incident or about taking a shower. After that he went only once or twice a week to classes until October 1988, when he quit. He testified that there were many factors involved. He told people it was because he was bored with karate, but he said consciously or unconsciously he had a level of discomfort at the school.

12After quitting, he saw the appellant at his father’s office on several occasions and at karate events that he attended to see his friends. He also telephoned the appellant a few times after quitting. Once, he called to get advice about running for student council president. Another time he called about a speech he was making. He knew the appellant had been president of his high school, and had won public speaking contests.

13In cross-examination, B. H. confirmed that over the years of lessons he had spent thousands of hours with the appellant, including in private lessons with him, and that, in all that time, there was only the one incident of 30 to 60 seconds, and that it was something he never spoke to the appellant about after it occurred in 1988. He also acknowledged that his father may have said to him that taking a shower after karate may have been a good idea, after the appellant suggested it to his father.

14B. H. also confirmed that karate emphasized flexibility, including in the legs, thigh and groin area. Around the age of 12 he had a growth spurt and he lost some of his flexibility in that area. B. H. agreed that when the back of the appellant’s hand touched his genitals that may have been an accident, but said when the appellant moved his penis to the side, it was deliberate. B. H. was also confronted with his preliminary inquiry testimony wherein he testified that the appellant had made the “big dick” comment subsequent to the shower incident when the appellant suggested that the complainant should wear a jock strap. B. H. maintained at the trial that the appellant made the comment twice.

15B. H.’s mother testified about what her son told her at the time. She said that she confronted him because she felt something was bothering him. She said that he told her he had taken a shower at the appellant’s insistence after a karate workout. While he was in the shower room the appellant came in, crouched down in front of him and wanted to see some stretching muscles. He put his hand on the boy’s genitals to move them out of the way and touched his penis with the back of his hand to move it aside and said “let’s get this dick out of the way.” The complainant’s mother did not include the “you’re getting a big dick” comment as part of the story she had been told. She was initially upset, but she and her husband decided not to call the police. Her husband told her that the appellant had recently commented about the complainant growing and felt his son’s concern was an overreaction. They gave the complainant the choice of continuing with karate and taking a shower only if he wanted to. They did not say anything to the appellant about the incident. They sent the complainant camping with the appellant in August 1988 and had pictures taken in their home with him in 1989.

(ii) S. M.

16The charge relating to this incident with the appellant was sexual assault, contrary to s. 246.1(1)(a) of the Criminal Code. S. M. was 25 years old when he testified and 13 at the time he first became involved with the appellant’s karate school. About one year after he started at the school in 1987 or 1988, when he was 13 or 14, S. M. was relaxing at the end of a class and was the last one there, when the appellant approached him, asked how his stretching was, and offered to show him a technique to improve his stretching. They were walking half way between the entrance to the dojo, the room where the class took place, and the back entrance of the school. The appellant told S. M. to go into a relaxed horse stance, a common stance used in karate, then asked him to pull down his pants and underwear. He was not in his uniform but had changed into beige casual pants and a white t-shirt. S. M. was surprised, but because the appellant was his “sensei”or teacher, he pulled his pants down to above his knees. Then the appellant crouched down in front of him and pointed out the muscle on the inside upper thigh and told him that was the muscle to massage while stretching. He began to massage it and told him that was the technique. The appellant then said “we’ll just move compadre out of the way here”. He then moved the complainant’s testicles to the side by cupping his hand. He then did the other side. The incident lasted for a minute or two, then S. M. pulled his pants up. In cross-examination, S. M. acknowledged that his time estimate of the incident lasting a minute or two included the time before and after the massage and that the muscle massage itself took 20 to 30 seconds. Although muscle massage had been shown in class, S. M. had not seen it demonstrated on anyone with no clothes on.

17S. M. continued with karate classes for three or four years. Nothing was said between them about the incident. When S. M. was 15, the appellant asked him once about his stretching technique and he said it was fine.

18At some point S. M. was considering having his best friend join the club when the incident came back to him and he decided he did not want to put his friend at risk of the same thing happening to him. He then left the club and told his friend, as a result of which the incident was eventually reported to the police. S. M. gave the police a statement in 1990. Officer H spoke to the appellant and no charges were laid. Crown counsel asked S. M. if he had consented to what the appellant did and he said he did not.

19Officer H gave testimony as well. He did not give the details of what S. M. told him except that S. M. said that the appellant touched his genitals when he pushed them aside during a stretching exercise, but the complainant did not mention anything sexual. The officer met with the appellant who admitted the incident, but denied any sexual purpose or overtones. After investigating, Officer H told S. M. that no charges would be laid because he could not prove the acts were done for a sexual purpose.

(iii) M. S.

20M. S. was 27 years old at the time of trial and started karate when he was 13 or 14. The charge relating to his incident with the appellant was also sexual assault, contrary to s. 246.1(1)(a) of the Criminal Code. The complainant was 15 or 16 when, after class one day, the appellant called him into his office to learn a new stretching technique. After he came into the office, the appellant locked the door and asked him to undress in order to see his tendons more clearly. The complainant, who was wearing his uniform, removed his uniform pants, underwear and jock strap. He then did the splits and the appellant applied pressure on the tendons about an inch or two from the testicles. Toward the end of the incident, the appellant cupped his genitals for about 30 seconds. The appellant was discussing the stretching while doing this. M. S. said that the appellant also asked him if he could get an erection, to which he mumbled “no” or “I don’t know”. After a period of minutes, he got up and dressed. M. S. testified that he did not consent to this touching.

21M. S. continued his karate classes after this incident for a further period of under two years. Later he moved to Australia. When he returned, he rejoined the karate school again for a couple of months because he was looking for some roots back in London. The incident was not discussed, although the appellant did ask him at some point during the two years how his stretching was.

22In cross-examination, M. S. confirmed that stretching had always been a very important part of karate, particularly stretching in the groin area. He also agreed that the appellant told him he had a new technique for stretching and that in fact, the new technique was effective. Further, when the appellant asked him into his office to show the technique, he first demonstrated with a rubber band how it can be stretched to the limit, then by applying pressure at 90 degrees, stretched further. M. S. also agreed that the appellant told him that he would be applying pressure to his tendons. The appellant also told him to practice this himself and asked him a couple of weeks later if he had improved.

(2) E. T.’s Involvement and the Evidence of Collusion

23These matters were reported to the London police in January 1997, along with complaints by five other men, after the complainants met together several times with another former student of the appellant, E. T.

24E. T. was 26 years old at the time of the trial and was an MBA student in Health Services at the University of Western Ontario. She had previously completed a law degree at Osgoode Hall Law School and followed that with a Bachelor of Science degree at Western. She grew up in London, Ontario where she took karate lessons from the appellant beginning at age 14. She took lessons for 10 years and attained a first-degree black belt. She took lessons three times per week and taught on the weekends. She explained that she continued with the training club even while she attended Osgoode Hall in Toronto. She left the club in December 1996, after the decision had been made that a number of people, including herself, would be approaching the police about the appellant.

25The appellant wrote a number of reference and recommendation letters for E. T. at her request over the years. The first was in 1990 when she was applying for scholarships after high school. The second was in 1992, and was a reference letter that she requested in order to be accepted into law school. The third was in 1995, and was a reference letter that she requested for an application to medical school.

26E. T. testified that she first became suspicious of the appellant’s actions with a number of the boys at the club while she was in law school. When she returned from law school she decided to approach one of the former students to discuss her suspicions. Her suspicions were based on rumours that she had heard and the appellant’s relationship with the boys at the club. The person she approached was J. D., a former student who now operated a karate school using the appellant’s name and under his auspices. J. D. apparently told the appellant about E. T.’s approach to him and, as a result, the appellant asked E. T. to meet with him when she came in to teach on June 3, 1995. She testified that he asked her not to continue to approach people because it would hurt his reputation, his family, and others who were opening karate schools under his name. He also admitted some impropriety with one student, unnamed, who he said was receiving counselling. The appellant indicated that his problem related to past steroid use. E. T. testified that she recorded this conversation; however, the recording was not put into evidence at the trial.

27E. T. had lunch with B. H. that summer. The following summer she had a discussion with another former student, T. A., as a result of which his brother, J. A., called her. During this time, B. H. called her several times. Finally on December 8, 1996, J. T. called her and she met with him on December 12, and as a result, she met with S. M. as well. On December 20, 1996, there was a meeting at B. H.’s home. Six people attended of whom E. T. named herself, B. H., S. M. and J. T.. The meeting lasted under two hours, and it was determined that E. T. would see if there were other people who wanted to go forward to the police.

28Following that meeting, E. T. contacted B. V. and met with him and J. T. on December 27, 1996. There was a further group meeting on December 30, 1996 at G. S.’s apartment. E. T. had contacted people to attend that meeting, which also lasted under two hours. A further meeting was held at G. S.’s apartment on January 3, 1997. E. T. arranged for a police officer to attend that meeting to answer questions. At the meeting they agreed that whoever wished to go forward would give his name to E. T. to provide to the police, which she did.

29In cross-examination, E. T. disclosed that she had developed an animus against the appellant for several reasons. One related to her training to qualify as a second-degree black belt. In December 1996, she was supposed to try for her second-degree black belt and agreed that she was not happy that the appellant told her a few months before that she was not ready for it and could not try out. Although she claimed that the second-degree belt meant nothing to her, she agreed that she tried to arrange for the test to be moved to a day when she did not have an exam in order to be able to try to qualify.

30The appellant had also intervened in 1991 in a relationship she had with a young male student, by speaking to the boy’s parents and suggesting that because he was only 16 and she was 18, the relationship was inappropriate. She agreed that she was not happy with the appellant’s involvement.

31In the summer of 1994, E. T. was employed in the Crown’s office, and worked on a sexual abuse sentencing project. She was aware of the S. M. matter from 1990 and that the appellant was gaining in influence in the karate world and expanding his operation. When she worked at the Crown’s office her suspicions increased regarding the possibility of the appellant’s wrongdoing. When she raised the issue first with J. D., he denied her concerns.

32E. T. elaborated on her involvement speaking to several of the complainants before and after the three group meetings in December 1996 and January 1997, and at the first meeting, encouraging the complainants to carry the process forward. She claimed that following the first meeting, she only acted as a facilitator for those who wanted to proceed, and gave the police a statement like the others. Eventually she admitted that she stayed involved through the arrest, the court proceedings and the trial itself including having lunch with the complainants while they were testifying during the trial.

33During questioning regarding the details of her continued contact with the complainants and with the police, E. T. asked to refer to notes which she had with her in the witness box. Although she had been asked by the Crown attorney to turn over all notes for the purpose of disclosure, she did not turn over some notes that she had made of dates and times of the appellant’s court appearances for his bail and preliminary hearing, and of some conversations she had during this period. E. T. also ordered the transcript of the preliminary hearing and read portions of it relating to a potential witness in the case to that witness. She acknowledged that after the appellant was arrested in April 1997, the police told her to let them handle matters, but she still asked what more she could do. The police told her to do nothing more, because of the need for fairness in the process. She was upset by that and told the police that for three months all the boys had been calling her. She denied that they discussed their stories or that she discussed them. She said that the boys only wanted to know about the progress of the case and why it was taking so long. Based on the dates she was talking to the complainants - from January to April 1997 - it appeared that she was talking to them at the time they were composing their statements to the police. She further acknowledged that the investigating officer came out of the preliminary hearing and told her and the others to stop talking about what was being said in court.

34In their testimony, each of the eight complainants discussed their interaction with E. T. and the meetings they held with her and the other complainants.

35B. H. had lunch with E. T. as a friend in the summer of 1995 or 1996, and the conversation turned to the club. She suggested that the appellant committed sexual improprieties with young boys and he responded by talking to her about what happened with the appellant and saying that he thought the appellant was a pervert. He acknowledged that he said this after having consulted with the appellant about the student council and public speaking matters and seeking his advice. He denied, however, that he was seeing things differently in 1999 than in 1988.

36He also talked to others about it, both on the phone and in person. In May 1995 he met with E. T. He spoke with her again in May 1996, after which he made the decision to see if there were others to whom he could lend support. As a result, he called J. T. who was in Alberta. They had a fifteen-minute conversation where they told each other about their incidents with the appellant, although J. T. disclosed more details than B. H. did. B. H. also called S. M. and spoke to him on the phone and in person, where S. M. explained briefly what had happened to him with the appellant. B. H. told S. M. about the shower incident and that he was worried about other children. He also spoke with B. V. at the suggestion of someone else and with G. S. at the suggestion of S. M. G. S. told B. H. about what he said happened to him with the appellant, as did B. V. B. H. also spoke to J. A. and M. S.

37B. H. then held the first meeting at his house. He said there was no discussion of details there, although there had been before that. E. T. was present and said at the meeting that she saw trends in the appellant’s behaviour and inappropriate sexual nature, as she had said when they first met. B. H. was also at the next two meetings where the complainants and others were present, one of whom gave information about what happened to him. Also, B. H. heard details about incidents that happened to other people not involved in the prosecution. He also received further information from G. S. on the phone after the meetings. Following the meetings, he prepared his statement for the police as well as a follow-up statement answering questions. Finally, B. H. agreed that hearing the stories others told him about what they claimed the appellant did to them, confirmed in his mind that the appellant was a pervert.

38S. M. also testified that he was contacted by B. H. and they exchanged information about what happened to them with the appellant. E. T. also called S. M. at that time and he met with her and told her about the incident involving him. She also told him about other incidents that she had heard about. He spoke to M. S., J. T., G. S., B. H. and B. V. He could not remember if he spoke with J. A. He attended the two group meetings at G. S.’s apartment and, contrary to B. H.’s evidence, he said that people talked about what happened to them at those meetings. He acknowledged that he agreed with the others that they would help each other make this accusation against the appellant. According to S.M., there was a great deal of exchange of information among the complainants.

39S. M. was asked about an incident in 1990 when he encountered the appellant at the Western Fair Grounds and spoke to him about the police complaint. In his cross-examination he would not agree that in that conversation he had referred to the incident as a misunderstanding. However, at the preliminary hearing in this case, he agreed he had said that, but added that the appellant had put the words into his mouth. He also would not agree that he could have been mistaken about the appellant’s motives or that the number of people he had discussed the matter with and heard about might have influenced his perception of events.

40M. S. also gave evidence about his interaction with the other complainants. He said that he first talked about his incident with his friend S. M. when S. M. first disclosed his incident and the police became involved. At that time, M. S. only said that something had happened to him but provided no details. The next time he spoke about it was in 1995 or 1996 when S. M. called him after he was contacted by a number of people who had had similar experiences with the appellant. S. M. attended two of the three complainant meetings. He attended the first meeting at B. H.’s home in December 1996 and the third meeting at G. S.’s apartment in January 1997. He said details were not discussed with him, but agreed that others could have discussed details. He agreed that at the meeting some people may have used the word “cupping”, which he had used in his examination in chief, to describe what the appellant did to them. He understood that S. M.’s and J. T.’s experiences were similar to his with a stretching exercise that involved fondling. He also said that, in spite of all these meetings, he believed his memories were his own.

(3) Evidence of the Appellant

41After graduating from the University of Western Ontario, the appellant began to teach martial arts in a private school in London. He moved the school to various locations over the years as the school continued to grow. The appellant taught Kenpo Karate. He eventually franchised eight locations across Canada. After he was arrested, he sold the school but retained some involvement at head office and teaching the black belt students.

42The appellant taught thousands of people at his schools over the years, as well as many police officers and military personnel. He did coaching and ran school martial arts programs. He represented London at athletic and leadership conferences and raised funds for scholarships and numerous charities. He also received several local awards for his work and contribution to the city.

43At first the appellant was teaching a form of Kenpo Karate called Tracy Kenpo after the Tracy brothers who were teaching a Kenpo offshoot. However, in 1984, the appellant joined the International Kenpo Karate organization operated by the founder of American Kenpo, Ed Parker. He met Mr. Parker at that time and began to train with him in a series of seminars around the United States from 1984 until Mr. Parker’s death in 1990. Mr. Parker also came to London, Ontario to teach. Following Mr. Parker’s death, his widow asked the appellant to represent the Parker family teaching International Kenpo abroad. As a result, the appellant taught extensively in Europe from 1991 to 1993 as well as in the United States. At the time of the trial, he held a fifth-degree black belt in American Kenpo, and a sixth-degree black belt in Kanzen Kenpo, a technique he created in 1993 and began to teach in his schools. He also has training in other martial arts.

44The appellant explained various aspects of karate and of martial arts. One was that the groin is one of the most significant regions of the body for target and self defence as well as for flexibility for demonstration purposes. In the American Kenpo system, 102 out of 202 self defences involve a groin grab or groin contact. Consequently, during classes there would be hand contact with a student’s groin, including testicles and penis. Many levels of stretching exercises were practised in order to achieve flexibility. The appellant was very involved in karate competitions and took students around Ontario and the United States to competitions.

45The appellant said that in 1988, in Baltimore, he had a discussion with Ed Parker about stretching and Parker offered to show him a new technique to get past the plateau beyond which some people could not go. At trial, the appellant referred to this stretch as the “Parker stretch” for ease of reference, although this was not a name used by him before the trial. Parker demonstrated this stretch to the appellant in his hotel room. It involved removing his pants and underwear and assuming the splits position. Mr. Parker then applied pressure-like massage to the tendons near the testicles, down the leg, to the knee and back up. As a result the appellant dropped down in the splits closer to the ground by 11/2 to 2 inches. The appellant said that it was the best stretch he has seen in his 25 years in martial arts. His explanation was that the effect is to trick the muscles into stretching beyond what was their maximum.

46The appellant said that he showed this stretch to students. He would use an elastic band first to demonstrate how the stretch would work. He taught the stretch with clothes removed in order to be clinical about it, because that is the way he was shown and because he thought that was the best way to see the tendons. He did this in private because of its personal nature. He said that he would usually show the stretch between classes when the school was open. He said that the genitals were never the focus of the exercise. They may have been moved out of the way but never grabbed. There could be contact with the person’s genitals by the back of his hand especially if the person was in the splits position and using his own hands for balance.

47The appellant was cross-examined extensively about the Parker stretch. He explained why he believed it was necessary to demonstrate it with clothes off to better see the involved tendons. He said he did not know if Parker had put it in writing in instructional books or to whom he had taught it. He explained that he only taught it to a number of the older students who were interested in competition. The majority of the people he showed it to said that the stretch worked terrifically. When asked what he did to downplay the contact with a sensitive part of the body, the appellant answered that he would ask the student if he felt uncomfortable and that he would stop if the student did. This was confirmed by two of the defence witnesses, S. Mc. and P. M.

48The appellant gave his description of what occurred with each complainant. The first was B. H. The appellant said that in the class they had worked hard and B. H. was sweaty and smelly and had to take a long bus ride home, so he suggested he take a shower. They also had a discussion about B. H.’s recent loss of flexibility, as he had been a child star, but now that he was growing he needed to focus on stretching. There had been a power outage and the male change room was dark. The women’s change room had windows so there was some light there. The appellant went with B. H. to the male change room to help him find his clothes and take them to the women’s change room to change in the light. On the way he suggested showering there, and B. H. did not react negatively or give any reason not to. Because he did not have shampoo, the appellant went to get some in the male change room. He had no recollection of adjusting the shower. He recalled continuing the discussion about stretching. He did not show the Parker stretch, but told the complainant he would have to work on his splits and pointed to an area on the inside of his leg, without making contact with his groin, and showed him a chopping motion there. He said that B. H. had his own hand covering his groin. He also denied making a comment at that time about “getting a big dick” or about B. H.’s tan. He also did not know if the complainant had a towel as he was not there when he was showering. He said there was nothing sexual about the incident.

49The appellant also said that he had discussed with B. H.’s father, who was his chiropractor as well as a very involved parent, the idea that his son should shower and the father agreed.

50B. H. continued to be actively involved in the club through the spring, summer and fall of 1988, including participating in tournaments and charitable fundraising demonstrations as well as in a weekend tenting trip.

51In October 1988, B. H. told the appellant that he was getting bored with karate and wanted to get involved in other things. After that, the appellant saw him at his father’s office, at his home, and when the complainant came to an event at the school as a spectator. B. H. also called the appellant for advice about running for student council president. Furthermore, the appellant and his wife had an ongoing social relationship with the complainant’s parents. The complainant’s mother sought the appellant’s advice about an acting school she opened for children. Their relations were always positive and no one ever suggested to him that they thought he was a pervert.

52The appellant was cross-examined briefly about the B. H. shower incident. He said he did not show B. H. the Parker stretch because he felt he was too young (12 years old). He did not remember the complainant saying he had a planter’s wart but said it was possible he had said that. The appellant also agreed that he may have adjusted the shower even though he did not recall doing so. He also said that he did comment at another time that the complainant was getting bigger, that is, growing up and therefore he should protect himself by wearing a jock strap. He did not make any comment about the size of his penis during the shower incident.

53The appellant also described his recollection of the S. M. incident. He recalled that it was in the summer of 1988 in the dojo at the end of the day, when S. M. was expressing the desire to attain the skill level of his close friend M. S. The appellant then told him about the new stretch and explained what was involved, although not with an elastic. S. M. then removed his pants and underwear and the appellant showed him how to do the stretch. Subsequently he asked S. M. if the stretch was working for him. S. M. said that it was and thanked him for it. The appellant agreed that he may have said something to let the complainant know that he was moving his testicles out of the way but could not recall if he used the term “compadre”. He testified that he had no sexual intent.

54In 1990 he was called by Detective H. about the incident. The appellant offered to show him the stretch, but the detective declined. No charges were laid, but the detective suggested that he not demonstrate the stretch without someone present. Detective H. agreed in his testimony that he did tell the appellant to do that.

55In 1992, S. M. and M. S. came into the club. At that time the appellant confronted S. M. and told him how shocked and angry he was that the police were called and that S. M. had misinterpreted what happened. The appellant recalled that S. M. said that, at first, he thought the appellant had done something wrong, then later realized that the appellant was just trying to help him. They apologized to each other.

56In relation to the M. S. incident, the appellant recalled it was in 1988 or 1989 when M. S. was 16 or 17, the school was open and classes were going on. Because the complainant was a competitor, the appellant offered to show him the new stretch he had learned that was very effective. They went into his office and he demonstrated how the stretch worked on an elastic band by applying pressure and making it stretch further. He explained that it would involve removing his pants. He then closed the door, M. S. removed his pants and underwear, and the appellant showed him the stretch. The complainant was in the splits and there may have been inadvertent contact to his genitals with the back of the hand. There was no cupping of the groin nor did he talk about getting an erection. He said there may have been talk about increased blood flow to the area, but not about genitalia. The only discussion he had with him afterward was the standard follow-up about whether there was any improvement. Again, the appellant denied any sexual purpose.

57The appellant also gave evidence about the incidents alleged against him by the other complainants, some of which included allegations of masturbation and fellatio, all of which he denied.

58With respect to E. T., she began at the karate school in 1987 and was an active member there from 1988 to 1996. At some point she was accomplished enough to become an assistant teacher in his classes. He confirmed the incident which E. T. resented where, at the request of parents, he suggested to a 14 year old boy[1] in his class that he listen to his parents and end his relationship with E. T., who was in university at the time. She came to him after that and said he was ruining her life. She subsequently applied to law school and he wrote a letter on her behalf. E. T. then developed a

relationship with the boy’s younger brother, but the relationship deteriorated over time. The younger brother came to the appellant about it, but the appellant did not interfere again. In 1994 and 1995, E. T. became a disruptive force in the classes because of her interaction with these two boys. In 1995, J. D. told the appellant about E. T.’s approach to him and about her suggesting to people that the appellant was acting inappropriately towards students in the school. As a result, in May or June 1995, when E. T. came to the school, the appellant asked to speak to her.

59During that meeting she brought up S. M. and that she knew about the police investigation. The appellant felt that she was threatening him. During the conversation, he admitted that, as a result of the incident with S. M., the appellant had suffered physically and mentally. He also said there was a person in the school whom he had wronged, but it was by not helping the student when he had come to the appellant for help numerous times because of E. T. Following this conversation, she continued to hold the S. M. incident over his head and to make his life uncomfortable. He said that she took their conversation out of context, and that he did not tell her he had committed any improper acts on anyone. He agreed to write her a letter of reference for medical school, hoping she would get in and not be involved at his school. He wrote a brief letter which she found unacceptable. She dictated to him the longer letter which was sent.

60In November 1996, E. T. wanted to test for a second-degree black belt. The appellant testified that it was important to her because she did not want the two brothers to get ahead of her. He told her she was not ready to test in December because she did not know the moves in the new Kanzen Kenpo. She tried to say it was because of the date of the testing and to get the date changed. She attended the testing to observe and was disruptive there.

61Crown counsel at trial asked only one question of the appellant in cross-examination relating to E. T., that is, whether the appellant felt that he was run over by her. Otherwise, his version of her behaviour and their interaction was unchallenged by the Crown.

(4) The Other Defence Witnesses

62The defence also called four witnesses. S. Mc. is a second-degree black belt student of the appellant who had been studying with him since 1988. He testified that groin contact is often involved in karate, and that flexibility in the groin area is very important. He also testified that the appellant showed him the new stretching technique in the fall of 1989 when he was 16 or 17. He took down his pants and underpants. He cupped himself with his hand. The appellant put pressure on and kneaded the tendons from the inner pelvic girdle down the inside of both legs to the knee. He said there was no sexual aspect to it. He likened it to a check-up at the doctor. He was also asked in cross-examination about using a chopping motion and he said he understood that the chopping motion did the same as the kneading. He found the stretch very effective and said that it was the only way he was able to do the full splits.

63S. W. had trained with the appellant since 1983 and at the time of the trial was 39 years old and holds a first-degree black belt in karate. He testified that when he was at the preliminary hearing in this case, he observed B. H., S. M., C. M., B. V., J. A., M. S. and G. S. with E.T., who was going around to the group telling them not to say her name in court. He also testified about the configuration of the inside of a van which the appellant owned because allegations were made by some of the complainants about sexually assaultive behaviour by the appellant in the van. He further testified about the importance of flexibility in karate and said he was aware of the stretch that involved stimulating the inside of the groin to relax the tendons and achieve a greater stretch. He said he heard the appellant and Mr. Parker discussing the stretch in the appellant’s club in London in the fall of 1987. He believed he had known about the stretching technique for about a year at that time. The appellant would tell the students in class to warm the inside muscles of the legs in order to stretch out doing the splits. However, the appellant had never done it on him.

64P. M. was 23 years old at the time of the trial and has a third-degree black belt in karate. He joined the appellant’s karate club in 1986. He was involved in tournaments and interested in increasing his flexibility and had heard about a stretching technique from a friend. He asked the appellant to show it to him in 1991 or 1992 when he was 16 or 17. The appellant was first reluctant to show him but then agreed to. He went to the appellant’s office where he removed his pants and the appellant pushed on his inner groin moving down his legs while he was in the splits. The appellant also pushed him down from the hips to assist him to go down further in the splits. It took a couple of minutes. He said it increased his flexibility dramatically. He said he was not uncomfortable and that the appellant told him to let him know if he was. The appellant asked him if it worked and he said it did. He then did the procedure on himself and the appellant did it on him again as well, several times (about 15) because when doing the splits it is difficult to do it on oneself. The last time was in 1994. He said there was nothing sexual about it nor was anything sexual said by the appellant. There may have been very slight contact by the appellant’s hand on his genitals when he started working his way down the leg.

65L. J. was also a first-degree black belt student of the appellant. She began lessons with the appellant in 1990. At the time of the trial she owned one of the appellant’s franchise schools in Tillsonburg, which she acquired in 1996. She reported a conversation she had with E. T. in late spring 1996. E. T. said that the appellant had ruined her life; she blamed him for her break-up with her boyfriend, P. M. She also said that the appellant would get what was coming to him. She also told L. J. in September 1996 that she planned to test for the next level of black belt and was unhappy when the appellant would not let her test for it.

GROUNDS OF APPEAL

66The appellant’s grounds of appeal can be grouped into three main categories:

(1) Errors made by the trial judge in failing to appreciate the effect of the involvement of E. T. with the complainants and of the collusion of the complainants over an extended period of time on the perception and recollection of their respective incidents by B. H., S. M. and M. S.

(2) Errors made by the trial judge in his approach to the evidence tendered by the Crown and by the defence, which resulted in the trial judge reversing the burden of proof.

(3) Errors made by the trial judge in his apprehension of the evidence.

(1) Collusion, Tainting of Evidence and the Role of E. T.

67The issue of the role of E. T. in the prosecution of this case, the effect of her involvement on the witnesses, and the serious possibility of intentional or unintentional collusion and tainting of the evidence, was a live issue throughout the trial. At the close of the prosecution’s case, the defence made a motion for dismissal on the basis that all of the Crown’s evidence was tainted and unreliable because of E. T.’s involvement. In his submissions on the non-suit motion, Crown counsel at trial acknowledged the serious impact that E. T.’s involvement had on the prosecution’s case. He took the position that the Crown had presented “some evidence” for a case to meet then concluded:

Having said that, it is instructive that when the first piece of paper comes from her purse, [E. T.] is asked, are there others. Her response, I don’t think so. And your Honour’s instruction, look. As a result of her looking, two more pieces of paper come out which contain what, in my respectful submission, was seriously damaging evidence with respect to the integrity of the prosecution.

68The trial judge dismissed the motion. In his ruling, he found that E. T. was on a mission, but even so, there could be credible evidence upon which a jury could reach a conclusion of guilt. He therefore rejected the non-suit motion.

69In his reasons for decision at the end of the trial, the trial judge made serious findings in respect of E. T. and her role in the prosecution of this case:

Prior to the involvement of [E. T.] in this case, the only complaint which had been made to authorities about the accused’s alleged conduct was by [M. S.] in 1990 for what will be referred to as the Parker stretch for ease of description. I will have more to say about the procedure later in these reasons.

I am cognizant in this case that a driving force behind the complaint is the energy of one [E. T.]. [E. T.] had worked in the Crown Attorney’s office and alleges that she had become aware of the accused’s improper conduct [with] his students initially from a discussion that she had with one [J. D.] who was a student of the accused and also ran the Tillsonburg franchise under the accused’s direction. Her discussions with…[J. D.] were in June of 1995.

As a student in the Crown’s office it is the defence position, that armed with a little knowledge, [E. T.] became dangerous, and a crusader looking for sexual assault victims…which she pursued with a vengeance. Her intention became focused upon the accused with respect [sic] from time to time.

From time to time I am aware that there was friction between [E. T.] and [J. F.] over [E. T.]’s training and testing. Notably, in the fall of 1995 [J. F.] had refused to permit [E. T.] to test after travelling to Edmonton in training for her grading. I am of the belief that [E. T.] was revengeful from time to time with respect to [J. F.]’s dictates with respect to the operation of his school and grading of his students and her evidence must be reviewed carefully with this factor very much in mind.

After speaking to [J. D.], [E. T.] confronted [J. F.] about his activities with him and apparently taped their conversation in which the accused confessed to some impropriety insofar as [J. D.] was concerned. This was in the spring of 1995.

I accept the fact as well, that [E. T.] was repulsed by the type of activity which had been described to her and which involved the accused’s male students.

Prior to approaching authorities in late December, 1995 [E. T.] had contacted and spoken to the complainants in this case about their interactions with the accused and about alleged improprieties. She organized a meeting between themselves.

The concern that I have about [E. T.]’s involvement in this case and the opportunity for collusion and fabrication is tempered somewhat by the fact that she gave no direct evidence herself at trial about the alleged inappropriate behaviour. She was not a party to the alleged inappropriate interactions.

[E. T.] impressed me as an energetic, aggressive and determined individual on a mission which was to destroy the accused once she became aware of what she believed was his criminal sexual behaviour. Further, her actions were contaminated by the following.

She did not admit readily to have notes, albeit in the form of a diary which she deliberately chose not to turn over to the police in the course of the Crown disclosure. I believe that she knew well that her actions in this respect were improper.

Contrary to what she said in evidence at trial I find that she did so encourage the complainants to bring their evidence forward, to complain and to see their complaints through to trial. This is indeed what she said in her preliminary and the evidence which she gave at trial was markedly different.

After the accused was arrested, she continued to follow the status of this case and the investigation and continued to take more than a passing interest in events.

She was indeed the driving force behind the investigation and continued to be so even after the accused was arrested.

She ordered, received and communicated the bail transcripts to complainants.

Her evidence about her involvement in the continuing investigation and communication with the complainants after the accused was charged is unreliable.

Even after she was told to let the police conduct the investigation, by morality officer, Detective Kerkhof, she acted contrary to their [advice] and remained active.

I am satisfied that she knew well the full details of the alleged complaints made by various complainants at an early stage and discussed these complaints with other complainants in detail.

The suggestion made by her that she had mild contact with only a few of the boys is a falsehood which is misleading to the Court.

The complainants’ evidence in light of the above must be viewed and analysed very carefully. That, however, is not the end of the matter.

70The trial judge then gave effect to his concerns by acquitting the appellant on what he referred to as the “serious allegations of abuse” by the complainants, J. A., B. V., G. S. and C. M. He stated:

The activities of [E. T.], raise a doubt, as to the serious allegations of abuse which are denied by the accused. However, this concern does not apply to the incidents of touching associated with the Parker stretch which are, in some cases admitted, and which I find took place.

71The trial judge made findings with respect to each complainant. In rejecting the evidence of C. M., the trial judge said:

I reiterate my concern that his evidence has been influenced or contaminated by [E. T.] and the other complainants. [E. T.]’s activities, in my view, raise a reasonable doubt as to the veracity of these reports.

72The trial judge made a similar finding respecting J. A.:

The activities of [E. T.] raise a reasonable doubt with respect to these complaints and as a result counts number six and seven will be dismissed.

73Finally, in respect of G. S., the trial judge made the observation that there were similarities in the description of the appellant’s approach to him with the descriptions provided by other complainants. His conclusion that: “This similarity could be explained by the activities of [E. T.]”, contributed to his finding that he had a reasonable doubt on the G. S. charge.

74The trial judge, however, did not reach a similar conclusion in connection with the complaints by B.H., S. M. and M. S. Thus, he discounted the effect of E. T.’s involvement on the evidence given by B. H., S. M. and M. S., while treating her involvement as a poisoning influence on the other complainants.

75The central question on this appeal is whether the trial judge fully considered and appreciated the possible effect that E. T.’s involvement and the numerous meetings and interactions among the complainants and others could have had on these three complainants and their recollections of the very brief events they explained and described.

76The trial judge found B. H. to be “a sincere and credible witness who was doing his best to tell the truth and give specifics about a series of events that took place 10-101/2 years ago.” He accepted B. H.’s evidence that “his testimony had not been tainted by [E. T.] or his fellow complainants.” He concluded that: “[B. H.] does not strike me as an individual who is easily influenced and I believe that he is a ‘straight shooter.’” Finally, the trial judge noted that B. H. had told his parents about what happened, his mother had testified to it and that that report had taken place long before E. T. ’s involvement.

77The trial judge’s finding that B. H. was sincere, a “straight shooter”, and not influenced by E. T. and the others, fails to take into account that collusion and discussion among witnesses can have the effect of tainting a witness’s evidence and perception of events innocently or accidentally and unknowingly, as well as deliberately and intentionally. The reliability of a witness’s account can be undermined not only by deliberate collusion for the purpose of concocting evidence, but also by the influence of hearing other people’s stories, which can tend to colour one’s interpretation of personal events or reinforce a perception about which one had doubts or concerns.

78B. H. had several meetings and telephone conversations with E. T. and numerous conversations with individual complainants from 1995 to 1997 and apparently right up to, and through, the trial. From E. T. he heard the details of stories of what she said had happened to other boys, recounted on the basis that the appellant was a sexual pervert and predator. From other boys he not only heard details of some of their stories, but together they commiserated and supported each other, first as victims of the appellant and eventually as protagonists against him in these proceedings. Once he began to meet with E. T., B. H. concluded and articulated that the appellant was a pervert.

79The trial judge’s finding, based on B. H.’s demeanour and sincerity, ignored the serious potential for inadvertent tainting from these numerous meetings and conversations, particularly tainting about B. H.’s perception of the appellant’s intent, and about whether it was sexual or only to assist with stretching to improve karate skills.² As B. H. acknowledged in cross-examination, hearing the other stories confirmed in his mind that the appellant was a pervert.

80The other basis upon which the trial judge discounted the possible effect of tainting on B. H. was because he told his parents at the time about the incident. However, the appellant did not deny that the incident occurred. What he denied is that it was sexual in nature and that he made the comment, which adds credence to the sexual intent of the touching, that the complainant was “getting a big dick.”

81On that issue, the trial judge made a specific finding that the appellant did say to B. H.: “You are getting a big dick there.” [In the evidence, the comment was described by B. H. as “you are getting a big dick, [B.]”. It is unclear whether discrepancies such as this are merely typographical or dictation errors, or errors in perception of the evidence.] In so finding, the trial judge did not deal with the fact that the complainant’s mother did not include that comment in her narrative of what her son told her at the time. He also did not deal with B. H.’s prior testimony at the preliminary hearing where he said the appellant made that statement on another occasion when he told him to wear a jock strap. By not addressing these apparent discrepancies in the evidence, the trial judge failed to consider the possibility that the appellant added that comment advertently or inadvertently as a result of his conversations with others, including E. T. Furthermore, the fact that B. H.’s mother did not include the “big dick” comment in her account of what her son told her, removes the trial judge’s only objective reason for discounting the potential effect of tainting on B. H.’s evidence on that crucial point, and therefore also on his perception that the touching was sexual in nature.

82The trial judge found that S. M. also impressed him as a “genuine, credible witness.” The trial judge did not deal specifically with the potential for tainting of this witness’s evidence by his meetings and conversations with E. T. and the other boys. In his general findings, the trial judge said that his concern about her involvement did not extend to the Parker stretch incidents because they were admitted in some cases. However, again, what was not admitted by the appellant was the criminal aspect of the incidents, which was the sexual aspect. As with B. H., S. M.’s perception of the event as sexual was certainly reinforced by his involvement with the group of complainants who had all concluded and firmly believed by the time they decided to go to the police in 1997, that the appellant had assaulted them sexually. The trial judge did not address the evidence that the appellant had confronted S. M. in 1990 about his complaint to the police and that S. M. had agreed at that time that there had been a misunderstanding. Although S. M. confirmed at trial his preliminary inquiry testimony that the appellant had put those words into his mouth, that evidence followed the E. T. involvement, while the 1990 meeting with the appellant was long before it. S. M. was either not as honest or possibly not as perceptive as B. H. about the possible tainting effect of the collusion on his perception of what occurred. However, again, the trial judge did not advert to this very important evidence and address it in the context of his acceptance of the reliability of S. M.’s evidence and his rejection of the appellant’s evidence.

83Although the trial judge did not specifically mention the prior police report as a factor in accepting that S. M.’s evidence was not tainted, that logic, which the trial judge applied to B. H.’s evidence, could apply to S. M.’s evidence as well. Officer H did not provide much detail in his testimony of what S. M. had said to him. Importantly, he did not suggest that S. M. told him that the touching by the appellant was sexual in nature. The fact that in his complaint S. M. did not mention anything sexual is consistent with the appellant’s version of events. The evidence of Officer H thus leaves open the suggestion that the complainant changed his perception as a result of his involvement with E. T. and the others. The trial judge failed to consider the ramifications of this evidence and the serious possibility of at least inadvertent tainting.

84The trial judge also accepted M. S. as “an honest witness doing his best to recount an unpleasant experience.” He accepted that the appellant had cupped M. S.’s genitals and had asked him whether he could have an erection. He rejected the appellant’s denial of this part of the incident or that there was any sexual aspect to demonstrating the stretch technique. The trial judge did not discuss the possibility of advertent or inadvertent tainting of M. S.’s evidence, or the similar use of the term “cupping” by others in their discussions. Nor did he consider the impact on M. S. of the very serious sexual accusations made by the other boys, which M. S. had heard about over the course of many conversations and meetings. The trial judge’s only reference to E. T.’s involvement with M. S. was in the context of the Parker stretch incidents, partly admitted by the appellant. Again, the sexual accusations were vehemently denied by the appellant, and were the main subject of the discussions by E. T. and the others.

85In addition, in his reasons, the trial judge made no reference to each of the three complainant’s continued karate lessons or association with the appellant over several years. Again, this behaviour by the complainants could suggest that their perceptions of the incidents at the time differed from their perceptions of them at trial. By ignoring this evidence, the trial judge again failed to advert to the possibility of tainting because of E. T.’s involvement.

86The Supreme Court has recently addressed the seriousness of the possibility that evidence has been tainted by collusion in the context of the treatment of similar fact evidence. In the cases of R. v. Handy (2002), 2002 SCC 56, 164 C.C.C. (3d) 481 and R. v. Shearing (2002), 2002 SCC 58, 165 C.C.C. (3d) 225, the court held that before admitting similar fact evidence, the trial judge must be satisfied of its reliability and exclude it if not satisfied on a balance of probabilities that the evidence is not tainted by collusion. Once admitted, the jury must still be warned to assess the evidence carefully and to consider whether it can be considered reliable given the possibility of deliberate or accidental tainting by collusion among the witnesses (Shearing at para.44).³

87In R. v. Burke (1996), 1996 229 (SCC), 105 C.C.C. (3d) 205, the Supreme Court discussed concocted evidence outside the context of similar fact evidence. The court held that a trial court must scrutinize crucial evidence with special care, and must consider any circumstances which could affect its reliability, including the possibility of collusion. In that case, the failure of the trial judge to consider that possibility led the Supreme Court to declare the verdict unreasonable.

88In this case, the trial judge was not only alive to the potential for E. T.’s involvement to taint the evidence of the complainants, he dismissed several of the charges in part because of the potential for tainting. However, the trial judge discounted the same possible tainting effect on the evidence of three of the complainants. Instead, he fully accepted their evidence without a critical analysis either of the discrepancies and changes in their views and actions over the years or of the possible intentional and unintentional effects of the numerous meetings among the complainants led by E. T., who was motivated by her personal animus against the appellant. This failure by the trial judge constitutes a serious error of law, which affects his appreciation of all of the Crown evidence he relied on, as well as his basis for rejecting the evidence of the appellant and the appellant’s witnesses. By itself this failure requires the court to set aside the convictions.

(2) Reversal of the Burden of Proof

89In his reasons for decision, the trial judge did not refer specifically to the decision in R. v. W.D., 1991 93 (SCC), [1991] 1 S.C.R. 742. However, in the latter part of his lengthy reasons (headed “Reasons for Decision”), he first rejected the evidence of the appellant and of the witnesses called by the defence, then turned to the Crown evidence that he accepted and that which he rejected, resulting in three convictions and four acquittals. Although the trial judge therefore applied the methodology set out in W.D., in his rejection of the defence evidence, it appears that he shifted the burden of proof in relation to crucial matters, the most significant of which is the Parker stretch. He also treated the evidence of the appellant and of his witnesses differently from the evidence of the Crown witnesses, subjecting it to greater scrutiny and criticism. He made the further error of determining the credibility of Crown witnesses based on demeanour, accepting their evidence on that basis while rejecting the evidence of the defence witnesses, again substantially on the basis of demeanour.

90In R. v. Gostick (1999), 1999 3125 (ON CA), 137 C.C.C. (3d) 53⁴ this court warned against an approach to the evidence which bases credibility decisions on demeanour, approaches the evidence with a harsher standard of scrutiny for the defence than for the Crown witnesses and which accepts the complainants’ evidence as true, then proceeds to discredit the contrary evidence. In R. v. J.C. (2000), 2000 1931 (ON CA), 145 C.C.C. (3d) 197, another decision of this court, a new trial was ordered where the trial judge rejected the appellant’s evidence without properly assessing it in light of all the other evidence that supported his version of events.

91The trial judge found the Parker stretch to be a figment of the appellant’s imagination, invented to justify his sexual aggression on his students. He made this finding by rejecting the evidence of the appellant about the stretch and by rejecting the evidence of S. Mc., S. W. and P. M. about the stretch. He did this essentially by finding their evidence incredible and by rejecting as suspect all the defence evidence, because the four defence witnesses all had close associations with the appellant. The trial judge did not explain why this would give them a motive to fabricate. In many cases witnesses who are called on behalf of a party have an association with the party. That is why they are able to give relevant evidence. In this case, there was no suggestion in the cross-examinations by the Crown of the defence witnesses that they were lying because of their relationship with the appellant or that they had concocted or met to contrive their evidence.

92The Crown led no evidence that the Parker stretch did not or could not exist or that its existence was not found in any written material. The Crown called no witness in the Kenpo Karate field or who had been associated with Parker or his movement. The appellant was asked whether there was anything in written literature about the stretch and he answered that he did not know. However, the trial judge made a finding that there was nothing in writing, then used that finding to conclude that if the stretch was as valuable as the appellant said it was, it would have been committed to print. He also reasoned that the American Kenpo Karate Program owners would have protected the copyright in the stretch and marketed it, again without any evidence on the point one way or the other. He also concluded that the appellant would have promoted the stretch more widely if it was real. In the result, after stating his reasons for rejecting the existence of the stretch, the trial judge said: “In this case, there is no credible evidence which would legitimize the procedure or which would dispel the conclusions that I have reached, that this contact was illegal.” The trial judge’s reasoning amounts to placing the burden on the appellant to prove, using entirely independent evidence, that the stretch existed as a legitimate karate technique.

93The trial judge also categorically rejected the evidence of the defence witnesses because they were not independent, and found that their evidence did not raise a reasonable doubt.

94He rejected S. Mc.’s evidence as “rehearsed and manufactured,” a reference to demeanour. He first rejected the witness’s analogy of the stretch demonstration to a medical check-up, on the basis that the appellant is not a licensed professional. This constituted a misapprehension of the testimony of the witness, who was not suggesting that the appellant was a doctor or was licensed, but that the circumstances of the demonstration involving naked touching by his teacher were similar to those of a medical check-up by a doctor. The trial judge also rejected the dramatic results reported by S. Mc. as incredible, without adverting to the evidence of others, including S. M. and M. S., that their stretching ability had improved. The trial judge also found that the appellant may have treated S. Mc. differently from the others in demonstrating the stretch, as there was no contact with the genitalia. S. Mc. said he cupped himself with his hand. However, this was consistent with the appellant’s explanation that genital contact was not part of the procedure and that, depending on the position the student was in, his hands were or were not free to move his own genitalia. Furthermore, the appellant said that B. H. was covering his own genitals with his own hand. I conclude that the trial judge’s reasons for rejecting S. Mc.’s evidence as unreliable do not bear scrutiny.

95The trial judge also described the evidence of defence witness S. W. as “rehearsed and fabricated.” This conclusion was based on his friendship with the appellant as well as the fact that S. W. said he heard of the stretch, that a lot of students were excelling at it and that he heard about it in 1986, which was before 1988 when the appellant said he learned it in Baltimore. The trial judge considered this error to be evidence of fabrication rather than a two year mistake about a date that would not have been significant to S. W. who was never shown the stretch, and about which he was not cross-examined. Furthermore, the trial judge drew a serious adverse conclusion against one witness where other witnesses also made errors or were unsure as to dates and years but were not taken to task on the issue (e.g. S. M. and M. S.).

96The trial judge also rejected the corroborative evidence of P. M., saying that he had “grave reservations about credibility.” He discounted the evidence first because P. M. is a friend of the appellant and had a financial relationship with him and, second, because he said he was shown the stretch 15 times, while the trial judge drew an inference from the appellant’s evidence that he did not show him the stretch that many times. In fact, the appellant was never asked how many times he had shown the stretch to P. M.

97Thus, the trial judge appears to have rejected the defence witnesses by effectively putting an onus on them to prove the truth and demonstrate the accuracy of their recollections. From the trial judge’s treatment of the evidence of all of the defence witnesses, it appears that he effectively decided that the appellant was guilty, and based on that conclusion, rejected outright all of the evidence tendered by the defence.

98The trial judge also specifically applied a much more stringent level of scrutiny to the evidence of the appellant than to that of the complainants. He gave B. H. credit for doing his best to remember specifics of the events that took place 10 to 101/2 years before. In fact, B. H. was very specific in his description of the shower incident. Yet the trial judge criticized the appellant for remembering the same incident with detail and attributed the memory to guilt or to lying. In particular, he found it hard to accept that the appellant recalled bringing shampoo to B. H. in the women’s shower room, yet this was the same evidence that B. H. gave. The trial judge did not advert to the appellant’s cross-examination where he said that he did not remember certain details, such as commenting about B. H.’s tan in April, but agreed that he might have, as B. H. recalled. In other words, it was B. H. who recalled many details, while the appellant did not, but the trial judge perceived the opposite and found it a reason to reject the appellant’s evidence.

99In R. v. Norman (1993), 1993 3387 (ON CA), 87 C.C.C. (3d) 153 at 172-3, this court was faced with a similar approach by the trial judge, who discounted defence evidence or held the accused

to a different standard of recall than the Crown witnesses. The court held that by so doing, the trial judge had effectively shifted the onus to the accused.

100This shift of the onus is also apparent in this case in the way the trial judge approached the evidence of the complainants and of the appellant in terms of credibility. The trial judge appears to have treated the evidence as a credibility contest, for example in the case of M. S., where he found that he “accepted and preferred” the complainant’s evidence.

101Finally, the trial judge relied heavily on demeanour in his assessment of the evidence of the complainants, noting that they impressed him as honest and doing his best in the case of M. S., sincere and credible and doing his best in the case of B. H., and genuine and credible in the case of S. M. The trial judge failed to address the inconsistencies in their evidence, the potential effect of the meetings with the others and E. T. and their perceptions of that potential effect, or the parts of their evidence which assisted the appellant, such as M. S.’s and S. M.’s acknowledgement that the stretch was useful. This court has stated on numerous occasions that it is an error for a trial judge to base credibility decisions solely on the demeanour of witnesses: Norman, supra, at p.173-4, and Gostick, supra, at p.61.

(3) Misapprehension of the Evidence

102The trial judge made numerous errors in his findings and misapprehended important parts of the evidence. Although some of these errors can be understood as slips, one cannot be certain at what point the errors must reflect a misapprehension or at least confusion about the evidence.

103The trial judge found that the charges in this case stemmed from Project Guardian. This was a notorious police investigation in London in 1990 and had nothing to do with this investigation.

104The trial judge stated that prior to E. T.’s involvement, the only complaint that had been made to the authorities about the appellant was by M. S. in 1990. Of course the complaint in 1990 was by S. M.

105The trial judge stated that the Parker stretch incident with M. S. was in 1998. This was an error. He went on to convict the appellant on count 10 regarding M. S. which relates to the period January 1988 to December 1989, and to acquit on count 9, January 1985 to December 1987, saying that that count related to events before January 1989.

106The trial judge misapprehended the evidence of E. T. regarding her taped conversation with the appellant. The trial judge understood that in that conversation the appellant admitted to some impropriety with J. D. There was never any suggestion of impropriety with J. D. E. T. testified that the appellant admitted some impropriety with an unnamed student. The appellant testified that what he admitted to was acting wrongly by not intervening when asked to do so by a student who needed protection from E. T.

107One very significant misapprehension, adverted to earlier in these reasons, was with respect to the comment attributed to the appellant by B. H. that during the shower incident he said “you’re getting a big dick, [B.].” Not only did the appellant deny making the comment, but the complainant’s mother did not include the remark in her narrative of what her son had told her at the time, nor did it appear that B. H. said it at the preliminary inquiry. The trial judge did not acknowledge these inconsistencies, nor did he attempt to explain or reconcile them when he made the finding, in the face of them, that the appellant did make the impugned comment. As I said above, this comment formed a critical part of the evidence as to whether the touching was for a sexual purpose.

CONCLUSION

108The trial judge made serious mistakes in his approach to the assessment and apprehension of the evidence that require this court to set aside the convictions. I would allow the appeal, set aside the convictions and order a new trial. Given the extensive collusion and likelihood of tainting of the evidence of the witnesses in this case, the court must consider whether the appropriate remedy is to find an unreasonable verdict and enter an acquittal. I have concluded that this is not a case for that verdict. It could have been open to the trial judge, based on the conduct admitted by the accused, to convict him of the offences of sexual assault and sexual interference. To do so, the trial judge was required, based on proper principles, to reject as raising no reasonable doubt, all of the defence evidence that the touching was not sexual. In my view, although that would be a difficult assessment for the trial judge to make, because it was open to him, this is not a case of unreasonable verdict. Accordingly, the convictions will be set aside and a new trial ordered.

Footnotes

1. 2The offence of touching for a sexual purpose (B. H.) is one of specific intent, while the offence of sexual assault (S. M. and M. S.) is one of general intent. In the latter case, the test for whether the assault is “sexual” is an objective one based on all the factors including the part of the body touched, the nature of the contact, the situation, the words and gestures accompanying it, the other conduct including threats or force as well as the intent, motive or purpose of the perpetrator: R. v. Chase, [1987] 2. S.C.R. 293 at para. 11. In both cases, the complainant’s perception of the nature of the touching is an important factor in the judge’s determination.
2. 3The issue of the trial judge’s use of the three incidents on which he convicted as similar fact evidence on the issue of the appellant’s sexual intent does not appear to have been raised at the trial or on the appeal. However, to the extent that the trial judge may have used the evidence in that way and for that purpose, a rigorous collusion analysis was required in accordance with Handy and Shearing before the evidence could be considered by the trial judge as similar fact evidence for any purpose. Although the trial judge did not specifically say that his conclusion that the appellant’s purpose in touching the complainants in the course of his stretching demonstration was not innocent but sexual was based on his consideration of the three incidents in combination, it is clear from his reasons in rejecting the veracity of the appellant generally and about the Parker stretch in particular, that he was using all three incidents together as evidence of a modus operandi on the part of the appellant.
3. 4See also: R. v. DeHaan (2002), 2002 41697 (ON CA), 155 O.A.C. 358; R. v. Owen (2001), 150 O.A.C. 350; R. v. C.S., [1999] O.J. No. 2200 (C.A.); R. v. W.S. (1994), 1994 7208 (ON CA), 18 O.R. (3d) 509 (C.A.); R. v. Norman (1993), 1993 3387 (ON CA), 16 O.R. (3d) 295 (C.A.).
4. 1E. T. testified that the boy was 16 years old.