WARNING
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences;
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall
(a) as soon as feasible, inform the victim of their right to make an application for the order; and
(b) on application of the victim or the prosecutor, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18..
486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
COURT OF APPEAL FOR ONTARIO
Simmons, Watt and Miller JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
David Rancourt
Appellant
Megan Savard and Julia Kindrachuk, for the appellant
Christine Tier, for the respondent
Heard: October 21, 2019
On appeal from the conviction entered on June 30, 2016 and the sentence imposed on October 13, 2016 by Justice John M. Johnston of the Superior Court of Justice.
REASONS FOR DECISION
1The appellant was the complainant’s high school teacher. He does not dispute that after the complainant turned 18 years old he participated in on-line sexual encounters with her, and that after she left high school this progressed to sexual intercourse. The complainant later moved in with the appellant and his wife and children, ostensibly to work as the children’s nanny, but in reality to facilitate sexual access. The appellant and the complainant kept their relationship secret.
2Eventually, the complainant began a relationship with another man. Neither of the complainant’s partners were aware of the complainant’s relationship with the other. During a period of hospitalization for declining mental health, the complainant texted the appellant to end their relationship. When the appellant sent a text in reply, it was read by the complainant’s new partner, M.G., who thereby learned of the parallel relationships for the first time. The complainant maintained her relationship with M.G. Two months after the text incident, after the appellant persisted in trying to contact the complainant and her parents, the complainant went to the police.
3The appellant admitted the adult sexual affair to the police, including the online sexual activity after the complainant had turned 18, but denied that he touched the complainant sexually while she was underage.
4What was contested at trial was whether the appellant had engaged in various acts to groom the complainant sexually while she was still his student, and (in some instances) while she was also under the age of 18. In particular, the questions were: (1) whether the appellant had engaged in cybersexual activity with the complainant before she had turned 18, and (2) whether the appellant had engaged in sexual touching of the complainant while he was still the complainant’s teacher, both before and after she turned 18.
5The appellant did not testify and the trial turned, primarily, on the credibility of the complainant. The trial judge convicted the appellant of sexual assault and sexual exploitation. He was sentenced to imprisonment for one year.
6The appellant appeals against conviction on the basis that the trial judge committed various errors, including errors in assessing the complainant’s credibility. He also appeals against sentence.
7For the reasons that follow, both appeals are dismissed.
Background
8As stated above, the appellant was the complainant’s teacher for four of her five years of high school. After the complainant turned 18, but while she was still a high school student receiving instruction from the appellant, the complainant and appellant engaged in sexually explicit messaging with each other using a variety of social media platforms. This progressed to the complainant masturbating, for the appellant’s benefit, in her bedroom while the appellant watched from his home via webcam, coaching and encouraging her. Although the complainant initially testified at the preliminary hearing that this cybersexual activity began before she had turned 18, her testimony at trial was that it began two months after she turned 18. This was significant as the complainant was therefore not a “young person” within the meaning of s. 153(1) of the Criminal Code during the cybersexual activity, and that activity could therefore not be the basis for a conviction for sexual exploitation under s. 153(1) of the Criminal Code.
9That left allegations of multiple incidents of sexual touching by the appellant, starting when the complainant was in grade 9. Many of these allegations involved the appellant touching the complainant’s breasts over her clothing “accidentally on purpose”, as the trial judge characterized it, or the appellant brushing his semi-erect penis against her hand or arm as he walked past where she was seated in his classroom. The trial judge accepted the complainant’s evidence that these incidents happened as she attested. However, he was left with a reasonable doubt as to whether the appellant had touched her on these multiple occasions – such as brushing her breasts with his hand while reaching across his car to lock and unlock the passenger door after she was seated – with the requisite sexual intent. Accordingly, the trial judge found that these incidents could not ground a finding that the appellant had committed either sexual interference or sexual assault.
10The only allegation which supported a finding of guilt was what the trial judge referred to as the “‘dirty girl’ game”. The complainant testified that, starting when she was in grade 9, the appellant would, in the classroom, rub his foot against her sock, leaving dirt on it. He would then rub the mark off with his hand. In reference to this, he called her a “dirty girl”. As the years progressed, the complainant testified, the touching progressed up her leg, under her kilt, and by grade 12 he was touching her near her pelvic area.
11The trial judge found that the instances of the “‘dirty girl’ game” occurring before the complainant turned 18 constituted sexual exploitation and sexual assault. The instances after she turned 18, and while she was still his student, also constituted sexual assault, on the basis that her consent to the activity was vitiated by the position of trust that he held over her as his teacher.
12The appellant was convicted of sexual exploitation and sexual assault, and sentenced to one year imprisonment.
Issues
13The appellant argues that the trial judge erred:
by misapplying the burden of proof;
in rejecting the evidence of the appellant’s wife;
by applying different standards of scrutiny to the defence and Crown evidence; and
imposing a harsh and excessive sentence.
Analysis
14Each of these issues are addressed in sequence.
Misapplication of the burden of proof
15The appellant alleges three errors with respect to the misapplication of the burden of proof by: (a) “bootstrapping” the complainant’s credibility by using her own evidence to confirm her story; (b) rejecting defence evidence on the basis that he accepted the complainant’s evidence; and (c) failing to resolve the complainant’s credibility problems.
(a) Bootstrapping
16First, the appellant argues that the trial judge “bootstrapped” the complainant’s credibility by finding her allegations to be credible because of his findings about the nature of her relationship with the appellant. But, he argues, the trial judge’s findings about the nature of the complainant’s relationship with the appellant during high school were based solely on the complainant’s unsupported testimony. These findings included that: (a) the appellant sent the complainant a text when she was 15, telling her that his wife was away, he was lonely, and that it would be nice if she came over; (b) the appellant texted the complainant constantly during a school trip to New York City, when the complainant was 15; (c) the appellant and complainant pre-arranged a webcam chat when the complainant was 16, so that the appellant could see her naked; (d) the complainant was 16 when the appellant first told her about a pornographic website called Red Tube; (e) the appellant texted the complainant constantly during a second school trip to New York City when she was 17, and distributed theatre tickets so that the complainant would be seated next to him; and (f) the complainant attended her grade 12 graduation with a platonic friend in order to appease the appellant, who texted her throughout the night.
17We do not agree that the trial judge made this error. Each of these findings had some support in evidence that was independent of the complainant: (a) the appellant’s former spouse S.C. testified in cross-examination that she went away for part of the summer with the children, leaving the appellant alone; (b) M.N., a fellow student, testified to her observations of the complainant texting during the New York trip and the inferences she drew from her observations; (c) recovered text messages between the complainant and the appellant referenced an earlier incident when the complainant had shown herself naked to the appellant on a webcam; (d) the appellant admitted in his statement to police that he may have mentioned the Red Tube pornography site to the complainant while she was in high school, and that she may have looked at it; and (e) both M.N. and Mr. Lopes, a colleague of the appellant, testified about their observations of the complainant texting during her grad night. Further, Lopes testified about his observations of the appellant texting the complainant during a hockey game, and his concerns about the appropriateness of this behaviour. In short, there was an entire body of evidence – independent of the claimant – supporting the trial judge’s conclusions about the highly unusual nature of the appellant’s relationship with the complainant during high school.
(b) Rejecting defence evidence
18The appellant argues that the trial judge erred by rejecting the account given by the appellant in his police statement. The trial judge is said to have reversed the burden of proof – to have accepted the complainant’s account, and then rejected the appellant’s account because it did not agree with the complainant’s.
19We do not agree. The trial judge gave reasons for independently rejecting the appellant’s exculpatory statements. First, the trial judge was entitled to draw a negative inference from the appellant’s stated memory problems. It strained credulity that the appellant could not remember how an unremarkable student-teacher relationship transformed, within two months of the complainant’s 18th birthday, to the appellant texting the complainant to encourage her to shave her genitals and to masturbate for him while he watched via webcam. Additionally, S.C. testified in cross-examination that the appellant had told her, when he first confessed to the relationship, that he had memory blanks related to how this relationship began and how it ended. He later admitted to her, according to her testimony, that he had no such memory blanks. The trial judge was entitled to draw a negative inference about the appellant’s credibility.
20Second, the trial judge was entitled to find that the appellant was not forthcoming in his statement to police. Even though the appellant admitted the adult affair to the police, he clearly distanced himself from, and minimized his involvement in, the cybersexual encounters he had with the complainant while she was his student. His characterization of events – “the only thing that did happen in high school is that she did the masturbation thing” – left out the role he played. The text of the Skype chats reveals a different picture – of the appellant encouraging and directing his 18-year-old student in how to perform sex acts in front of a camera to gratify him sexually.
(c) Failing to recognize or resolve the complainant’s credibility problems
21The appellant’s position at trial was that the complainant was chronically deceptive, not credible, and the story of her high school relationship with the appellant was simply one of many fabrications. Although the trial judge noted that the complainant had significant credibility problems, and dedicated 14 pages of the reasons for judgment to his assessment of the complainant’s credibility, the appellant argues that he nevertheless misunderstood the appellant’s submissions and failed to resolve the credibility problem.
22We do not agree.
23In her testimony, the complainant was candid about the many concocted stories she had told the appellant in the time period leading up to the termination of their relationship, including telling the appellant that she had a kidney tumour (and manufacturing an incision for added effect), that her father had a brain tumour, and that she had attempted suicide while in the hospital. The complainant was frank about her and the appellant having both lived dual lives, conspiring to have the complainant move in with the appellant and his wife and children under the pretext of working as the nanny in order to facilitate a sexual relationship without arousing S.C.’s suspicion. She also acknowledged carrying on simultaneous relationships with the appellant and M.G. for six months, keeping each a secret from the other.
24The complainant admitted to these fabrications in examination in chief, explaining that she lied in order to get some time away from the appellant. The trial judge accepted the complainant’s rationale for her fabrications. Given the context of a controlling relationship, her pattern of lying to the appellant did not suggest to the trial judge that she was a person who is prone to dishonesty. Rather, these were deliberate falsehoods intended to facilitate temporary escape from the appellant’s control. This assessment was open to the trial judge on the evidence before him, and there is no basis upon which we would interfere with it.
25The trial judge was also required, as part of his credibility analysis, to consider the appellant’s submission that the complainant had a motive to lie (first to M.G., then the police, then the court) about when the sexual relationship began and, specifically, how young the claimant was when the appellant first touched her for a sexual purpose.
26The appellant argues that the trial judge made errors in how he analyzed this question. As we explain below, we agree that some of the trial judge’s remarks were infelicitous. Nevertheless, such errors are peripheral to the trial judge’s credibility analysis and, when read as a whole, the trial judge’s credibility analysis is sound. He conducted an exhaustive examination of the complainant’s credibility, fully alive to her frailties as a witness. We would not interfere with that assessment.
27The appellant argues that the trial judge made two errors in rejecting the appellant’s argument that the complainant was motivated to invent the allegations of underage sexual contact in order to save her relationship with M.G.
28First, the appellant argues that the trial judge asked the wrong question. Instead of asking whether the complainant subjectively believed it would help preserve her relationship with M.G. if she told him that sexual contact with the appellant began when she was 13 years old, the trial judge asked whether there would have been any objective benefit to such a fabrication.
29There are passages in the reasons which can support the reading advanced by the appellant. It may have been clearer if instead of writing, for example, that the complainant “did not need to make up the additional component of the criminal allegations to achieve the result that she did achieve”, the trial judge had written that the complainant “knew she did not need to make up the additional component”. Nevertheless, the formulation used by the trial judge is equally capable of supporting an objective or a subjective reading, and it is not necessary to read the reasons in the manner proposed by the appellant.
30In any event, even if this court accepted the submission that the trial judge had applied an objective inquiry, it is not apparent that this would constitute an error. The appellant’s sole authority for the proposition advanced is R. v. Willier, 2013 BCCA 214, 338 B.C.A.C. 63, a decision dealing with Vetrovec witnesses. However, although the complainant’s credibility was the central issue at trial, she was not a Vetrovec witness. Unlike the witness in Willier, the complainant was in no criminal jeopardy. Vetrovec witnesses are those with “disreputable and untrustworthy backgrounds” with a “demonstrated moral lack”. The complainant does not fit either of these descriptors.
31Furthermore, the defence made no submission at trial that, in this case, there would be any difference between a subjective and objective assessment of benefit. In these circumstances, the trial judge made no error in how he framed his analysis.
32Second, the appellant argues that the trial judge erred in concluding as a matter of fact that the complainant had no motive to lie. The trial judge found that the text messages between the complainant and M.G. suggested that M.G. – who had been devastated by the revelation that the complainant had a long-standing sexual relationship with the appellant – was already mollified when he thought the sexual contact began when she was 18. For the trial judge, there was no reason for the complainant to exaggerate to win over M.G.
33The appellant, however, argues that the complainant needed the allegation of underage sexual contact to preserve the relationship, and that the text messages show that M.G. remained somewhat hostile until the complainant told him that things began when she was only 13, at which point his attitude towards her became more sympathetic.
34The trial judge reasoned that if M.G. had only been told the facts that were undisputed at trial – of the adult affair and the unusually close student-teacher bond – M.G. would have figured out on his own that there must have been a long sexualized history, regardless of whether there was any criminal wrongdoing. There was no need to invent the specific allegations of criminal touching to obtain the desired sympathy from him. Furthermore, the trial judge noted, M.G. urged her to lie and tell her family that she was 18 when the relationship began, so as to spare the appellant’s family from the fallout. He also urged her not to go to the police. Significantly, the complainant only went to the police two months later, and only then to address the appellant’s refusal to leave her and her family alone.
35We do not agree that the trial judge made any palpable and overriding error in rejecting the theory that the complainant concocted the story of the sexual touching from age 13 in order to procure sympathy from M.G. and preserve her relationship. The trial judge did not believe that she had fabricated the allegations against the appellant. He gave his reasons for believing her. She testified for six days and, with the exception of her inability to recall dates and times, he was impressed with the consistency of her evidence. He accepted her rationale for her admitted fabrications and did not find that they undermined her credibility. He did not agree that she was prone to exaggeration on any material point. He agreed that her delay in going to the police was explained by the context of her relationship with the appellant, and was not a mark of fabrication.
Rejecting the evidence of S.C.
36S.C. testified to the effect that although the appellant and the complainant were close, the nature of their relationship was not any closer than the appellant’s relationship with any other student, and that contrary to the complainant’s evidence, students did not frequent the appellant’s classroom at the end of the school day. The trial judge rejected this evidence, chiefly because it was contradicted by the evidence of other witnesses. But he gave five additional reasons for disbelieving her. Of these five additional reasons, the appellant argues that one of them contained a fallacious inference by the trial judge: that S.C. had initiated, and then suspended, divorce proceedings, because “if he is found not guilty, she intends to resume a relationship, however, not necessarily if he is found guilty.”
37The appellant rightly observes that there can be many reasons for suspending divorce proceedings, and there was no evidence that S.C. had reconciled with the appellant or intended to reconcile with him. The trial judge ought not to have speculated about this. Nevertheless, as the Crown argued, the evidence at trial established that S.C. remained financially interdependent with the appellant. S.C. had filed an application for child support from the appellant, and she believed that his future as a teacher – and therefore his financial viability – could turn on an acquittal. The trial judge was entitled to consider S.C.’s interdependence with the appellant. In any event, the status of S.C.’s relationship with the appellant was only one of several secondary reasons the trial judge had for rejecting her evidence.
Applying different standards of scrutiny
38It is an error of law to apply a different standard of scrutiny to Crown and defence evidence; to minimize problems with Crown evidence while highlighting similar or less serious problems with defence evidence. The appellant argues that the trial judge, in carrying out his credibility analysis, applied a relaxed degree of scrutiny of the Crown’s evidence when compared to the scrutiny given the defence evidence. He raises four points where there is said to be a divergence.
39First, the appellant contrasts the trial judge’s rejection of the defence theory that the complainant had a motive to lie, with the finding that S.C. had a motive to lie based on her statement that her divorce was on hold.
40We do not agree. The two different assessments were not driven by uneven scrutiny of evidence. As stated above, the trial judge gave careful scrutiny to the argument that the complainant had a motive to lie to M.G. With respect to the finding that S.C. had a motive to lie, it was of secondary importance in the trial judge’s credibility analysis, and the evidence was of marginal relevance to the allegations.
41Second, the appellant argues that the trial judge drew inconsistent inferences from the fact that the appellant and the complainant each lied about their affairs to their other partners. Although the trial judge excused the complainant’s lies to M.G., he drew a negative inference from the fact that the appellant feigned memory loss when his wife demanded details of the affair.
42Again, this does not constitute uneven scrutiny. The two contexts were entirely different. The appellant contrasts the complainant’s pretending to live with the appellant’s family as a nanny – a deception advanced by the complainant and appellant in concert – with the appellant’s lies to S.C. about memory loss after the fact. The trial judge was entitled to draw different inferences from the two contextually different deceptions.
43Third, the appellant argues that the trial judge used ambiguities and minor inconsistencies in the evidence of S.C. and the police statement given by the appellant as evidence that they were downplaying unfavourable facts. This, the appellant argues, contrasts with the trial judge’s lenient attitude towards the complainant, whose evidence the trial judge characterized as largely consistent, despite inaccuracies and exaggerations.
44Again, the context is vastly different. The appellant’s statement to the police was brief. He said little. The trial judge attributed great significance to the few statements that he made that were not simple denials. S.C. testified about peripheral matters only and, as stated above, the trial judge had reason to discount her testimony. The complainant, by contrast, testified for six days on the central matters in issue. In that vastly different context, the trial judge was impressed with her overall consistency. This is not uneven scrutiny.
45Fourth, the appellant argues that the trial judge drew inconsistent inferences from different witnesses’ failures of memory. In particular, he contrasts the negative inference the trial judge drew from the appellant’s statement to police (that he did not remember how it was that he started to coach the complainant to masturbate over Skype), with the trial judge’s acceptance of the complainant’s vague evidence (that it was an “evolution kind of thing”).
46This was not uneven scrutiny. The appellant’s position was that there was absolutely nothing unusual about his student-teacher relationship with the complainant prior to her turning 18. Within two months he was instructing her, via Skype, on how to masturbate while he watched. If things had been as the appellant and S.C. had stated, the sexual turn in the relationship must at some point have been a sharp and extraordinary change within a defined time period. It would have been so alien to the nature of the teacher-student relationship that the fact that the appellant could provide no account for how it happened was probative. By contrast, the complainant testified that it was an evolution – a gradual progression over many years. On her account, it was an increasingly sexual relationship that proceeded incrementally. It was not inconsistent, in light of the two different backstories, for the trial judge to accept a degree of vagueness in the complainant’s testimony but draw a negative inference from the appellant’s complete absence of memory.
Sentence appeal
47The appellant appeals against sentence based on the assertion that the sentence of one year is harsh and excessive, and that the trial judge engaged in double counting of the elements of the offence as aggravating factors.
48The appellant characterizes the offence as repeated but brief, low-level, sexual touching by a person in authority. He argues that such offences attract a sentence between 14 days and six months.
49We do not agree. The sentence is fit and appropriate and there is no basis to intervene. The trial judge committed no error in finding that “the extent of the manipulation and grooming in this case distinguishes it from other cases cited.” It is relevant that this was a lengthy course of conduct instrumental to grooming a student for increasingly intimate sexual activity and dependence.
50The trial judge did not misuse the elements of the offence as aggravating factors. The abuse of a person under the age of 18 and the abuse of authority are both aggravating factors listed in s. 718.2(a) of the Criminal Code, and the sentencing judge is required to take them into account. Here, the trial judge did not use these as stand-alone aggravating factors, but mentioned them in the context of explaining the nature of the sexual grooming.
Disposition
51The appeal against conviction is dismissed. Leave to appeal sentence is granted but the sentence appeal is dismissed.
“Janet Simmons J.A.”
“David Watt J.A.”
“B.W. Miller J.A.”
