WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences.
(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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 212, 212, 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
(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) MANDATORY ORDER ON APPLICATION
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 complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 OFFENCE
(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.
Court Information
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Dennis Connolly
Before: Justice D. A. Harris
Heard on: March 6, 7, 10, 13, 14, 15, 16, 17, 20, 21, 22, 27, 28 and 29, 2017
Reasons for Judgment released on: May 30, 2017
Counsel
Christina Lynch — counsel for the Crown
Amy Breese Davies & Owen Goddard — counsel for the accused Dennis Connolly
HARRIS D.A. J.:
INTRODUCTION
1Dennis Connolly is charged with assault with respect to ADM and with sexual assault and sexual interference with respect to each of 13 complainants.
2Mr. Connolly waived the limitation period with respect to certain counts and Crown counsel then elected to proceed summarily on all counts.
3Mr. Connolly pled not guilty and we held a trial.
4At the beginning of trial, Crown counsel applied for a number of orders.
5She applied for orders pursuant to section 486.2(1) of the Criminal Code permitting the 14 complainants and a number of other witnesses to testify outside the courtroom by means of closed circuit television and for orders pursuant to section 486.1(1) of the Code permitting them to testify with a support person present. Counsel for Mr. Connolly consented to both orders and I granted the applications. It was also agreed that these orders were to apply to a number of witnesses who were being called as part of the defence case.
6Crown counsel also applied for orders pursuant to section 715.1 of the Code that video-recorded statements by these witnesses be admitted into evidence, subject to adoption by the respective witness.
7Counsel for Mr. Connolly initially agreed to this application with respect to all of the witnesses. She later argued that RR did not adopt her statement and that I should not admit her video statement into evidence. I ruled that her video statement would be admitted, with reasons to follow at the end of the trial. Those reasons are included in this judgment.
8I also allowed the section 715.1 application with respect to the other Crown witnesses as well as certain witnesses who were called by the defence.
9Finally, Crown counsel applied for an order that the evidence given by each sexual assault/sexual interference complainant be accepted as evidence of discreditable conduct on the part of Mr. Connolly or similar fact evidence and be considered with respect to all such charges in order to establish that the actus reus occurred.
10Both counsel agreed that this application should be argued after all of the evidence had been heard. Accordingly counsel did in fact argue this issue at the same time as they made their final submissions with respect to the trial itself.
11Accordingly, I will be addressing all three issues here. I will deal with them in the following order:
- The application pursuant to section 715.1 of the Criminal Code;
- The similar fact application; and
- My Reasons for Judgment dismissing all charges against Mr. Connolly.
REASONS FOR RULING RE SECTION 715.1 OF THE CRIMINAL CODE
12Section 715.1 of the Criminal Code sets out the conditions for admissibility of the proposed video-recorded statements:
715.1 (1) In any proceeding against an accused in which a victim or other witness was under the age of eighteen years at the time the offence is alleged to have been committed, a video recording made within a reasonable time after the alleged offence, in which the victim or witness describes the acts complained of, is admissible in evidence if the victim or witness, while testifying, adopts the contents of the video recording, unless the presiding judge or justice is of the opinion that admission of the video recording in evidence would interfere with the proper administration of justice.
13There is no issue that almost all of these conditions were met. All of the witnesses were under 18 at the time of the alleged offences. Their statements were video-recorded within a reasonable time. Every witness other than RR adopted their statements at trial.
14The only issue to be determined by me was whether RR adopted her statement.
15Cory J. addressed the test for adoption in the Supreme Court of Canada case, R. v. C.C.F. He noted that the term "adoption" is capable of several meanings. However, in the context of s. 715.1 the proper interpretation should be one which accords with its aim and purpose.
16Cory J. rejected the proposition that the same meaning of adoption should be used in the context of the video-statements of a child as was applied to prior inconsistent statements. Adoption is not a term with a static legal meaning which must apply in all circumstances. The strict adoption test for prior inconsistent statements was necessary to ensure a reasonable degree of reliability before allowing the statements to be admitted for the truth of their contents. However, section 715.1 has built-in guarantees of trustworthiness and reliability which eliminate the need for such a stringent requirement for adoption.
17These guarantees include: (a) the requirement that the statement be made within a reasonable time; (b) the trier of fact can watch the entire interview, which provides an opportunity to observe the demeanor, and assess the personality and intelligence of the child; (c) the requirement that the child attest that she was attempting to be truthful at the time that the statement was made.
18He went on to say that the more narrow approach:
…would prevent a child who has little, or no memory of the events from "adopting" the video and it would therefore be inadmissible under s. 715.1. However, it is precisely in this situation that the video is most needed. Children, particularly younger ones, are prone to forget details of an event with the passage of time. A videotape made shortly after the event is more likely to be accurate than the child's viva voce testimony, given months later, at trial. It is quite possible that a young child will have a recollection of going to the police station and making the statement and of her attempt to be truthful at the time yet have no memory of the unpleasant events. This is particularly true where the elapsed time between the initial complaint and the date of trial is lengthy. If effect is to be given to the aims of s. 715.1 of enhancing the truth-seeking role of the courts by preserving an early account of the incident and of preventing further injury to vulnerable children as a result of their involvement in the criminal process, then the videotape should generally be admitted.
19After the video-statement has been admitted, any questions which arise concerning the circumstances in which the video was made, the veracity of the witness' statements, or the overall reliability of the evidence, will be matters for the trier of fact to consider in determining how much weight the video-statement should be given.
20If, in the course of cross-examination, defence counsel elicits evidence which contradicts any part of the video, this does not render those parts inadmissible. Obviously a contradicted video-statement may well be given less weight in the final determination of the issues. However, the fact that the video is contradicted in cross-examination does not necessarily mean that the video is wrong or unreliable. The trial judge may still conclude that the inconsistencies are insignificant and find the video more reliable than the evidence elicited at trial.
21RR testified that she was telling the truth when she made her video-statement. However, she had since reflected on what she had said and decided that she had made a number of errors. Firstly, she had not seen Mr. Connolly touch any other student in an inappropriate fashion. Secondly, she believed that any contact that Mr. Connolly had with her had been unintentional and not sexual in any way.
22After considering all of the above, I allowed the Crown's application with respect to her video-statement. She had testified that she was telling the truth when she gave her statement. Any subsequent changes in her recollection of events would simply go to weight.
23As it turned out, the changes in RR's recollection were such that, at the conclusion of the trial, Crown counsel asked me to dismiss the counts involving RR.
RULING RE PRIOR DISCREDITABLE CONDUCT / SIMILAR FACT EVIDENCE
24The Supreme Court of Canada reviewed the law with respect to evidence of prior discreditable conduct or of similar acts in R. v. Handy.
25In that decision, Binnie J. wrote:
The starting point ... is that the similar fact evidence is presumptively inadmissible. It is for the Crown to establish on a balance of probabilities that the likely probative value will outweigh the potential prejudice.
26That then requires an assessment of the probative value and the potential prejudice arising from the proposed evidence. I will deal with the latter point first.
27With respect to potential prejudice, it is necessary to evaluate both moral prejudice (i.e., the potential stigma of "bad personhood") and reasoning prejudice (including potential confusion and distraction of the jury from the actual charge against the respondent).
28Clearly, the potential for prejudice is not as significant in judge alone trials such as this one. I should be capable of recognizing the risk of either moral prejudice or reasoning prejudice. I should be equally capable of avoiding both types of prejudice. If I was not and I was unable to set aside the potential moral prejudice arising out of the similar act evidence, it would be necessary for me to declare a mistrial now and recuse myself from the case, as I have already heard the proposed similar act evidence. Such is the dilemma facing all judges trying these cases without a jury.
29The issue of probative value is more complex.
30The evidence must be relevant and material before it may be admitted. The Ontario Court of Appeal said in R. v. L.B. that evidence is relevant:
…where it has some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would appear to be in the absence of that evidence.
31The evidence is material if it is directed at a matter in issue in the case.
32To determine that, I must understand the purpose for which the evidence is being proffered. It is therefore necessary for Crown counsel to identify the issues in question. Then, if I admit the evidence, I will be able to use it in relation to those issues only.
33Crown counsel has proposed that the evidence of discreditable conduct be admitted to in order to establish that the actus reus occurred. More particularly, she argued that "the evidence of each complainant in relation to the other complainants is probative of this issue as it demonstrates a specific propensity on the part of Mr. Connolly to use his status as a teacher and the opportunity that it gave him to engage in the sexual touching of the female complainants, in his classroom while other students were present".
34I must however keep in mind that it is not enough for Crown counsel to simply propose that the evidence be introduced for a previously enumerated purpose.
35In R. v. Handy, supra, Binnie J. stressed that the "issues in question" are not categories of admissibility. Their identification is simply an element of the admissibility analysis which, as stated, turns on weighing probative value against prejudice.
36I must therefore consider the strength of the proposed evidence.
37Counsel for Mr. Connolly argued that I should not allow the Crown's application because the evidence of the respective witnesses was tainted by collusion.
38In R. v. Handy, supra, Binnie J. wrote that it is "part of the trial judge's 'gatekeeper' function to consider this issue because collusion, if established to the satisfaction of the trial judge on a balance of probabilities, would be destructive of the very basis on which the similar fact evidence was sought to be admitted". That basis is "the improbability that [so many] women would independently concoct stories with so many similar features".
39He then went on to state that:
In my view, the trial judge cannot assess "the objective improbability of coincidence" without addressing the issue of whether the apparent "coincidence" is in fact the product of collusion. Admissibility is a question of law for the judge alone.
40This is not limited to deliberate collusion. The Ontario Court of Appeal stated in R. v. C.B. that:
Collusion can arise both from a deliberate agreement to concoct evidence as well as from communication among witnesses that can have the effect, whether consciously or unconsciously, of colouring and tailoring their descriptions of the impugned events.
41In R. v. T.C., Feldman J.A. wrote that:
In this case, the potential for tainting of the evidence arose from the way in which the complainants came forward and gave their statements to the police. Only JL came forward independently to the police. The others came forward either after they heard about charges against the appellant or after being contacted by the police because they were former speech therapy patients of the appellant. In other words, they only came forward when there was some suggestion that the appellant was involved in sexual wrongdoing with speech therapy patients. Since the focus of the coincidence identified by the trial judge was the fact that the victims were all male pre-teen and young teenage speech therapy patients of the appellant, if the self-identification of the victims in that category was tainted, the cogency of the unlikelihood of that coincidence could be significantly undermined.
42There is a similar problem with the evidence being tainted in this case.
43Mr. Connolly was the primary grades music teacher at an elementary school in Burlington. Following the initial accusations made by ADM, Mr. Connolly was told to go home and not return to the school.
44Rumours about him then started spreading around the school immediately. Every student who testified acknowledged that many students immediately began speculating on why Mr. Connolly was absent, and a host of rumours quickly became widespread, including:
- Mr. Connolly slapped a student;
- Mr. Connolly hit a student in the head;
- Mr. Connolly choked a student;
- Mr. Connolly broke a student's arm;
- Mr. Connolly was touching girls in a way that made them uncomfortable;
- Mr. Connolly was touching girls inappropriately;
- Mr. Connolly was touching girls on their privates;
- Mr. Connolly would touch girls bums when they came to his desk to play the recorder;
- Mr. Connolly would touch girls inappropriately during Just Dance;
- Mr. Connolly was tickling girls on their privates during Poor Little Bug on the Wall.
45This rumour mill was very active before any of the complainants came forward to speak to the police investigators.
46In that regard, it is important to note that counsel for Mr. Connolly was not arguing that nothing had occurred. Her argument was that any events that did occur were innocent every day contact between Mr. Connolly and his students that should not be characterized as assaults let alone as sexual assaults. It would, however, be natural for the complainants to characterize the actions of Mr. Connolly as improper once it became known that he was "doing these things to all of the girls". Then once they had, in their own minds, characterized his acts as being sexual assaults, it would be natural for them to recall similar events involving them.
47I do not know who started the rumours about sexual touching here. Each witness denied that it was them. Each one identified a different person. Further I do not know exactly who had heard precisely what by the time that they spoke out about the alleged offences. I certainly cannot rely on the witnesses themselves in this regard. Collectively, their stories were all over the place.
48What I do know is that the rumours were circulating and that every complainant either had heard them to varying degrees or should have heard them. This leaves me unable to conclude that there could only be one reasonable explanation for the fact that so many students would independently concoct stories with so many similar features. There is a second explanation, being that they may have heard the stories before they spoke out.
49As a result I find that the proposed disreputable conduct / similar fact evidence would have very little, if any, probative value.
50In conclusion, despite the limited prejudicial effect that this evidence would have, I am not satisfied that it is outweighed by its probative value. The application to introduce this disreputable conduct / similar fact evidence on a count-to-count basis is dismissed.
51I will point out however that my decision in this case would have been the same even if I had allowed the application. That is how little weight I would have attached to the similar fact evidence.
REASONS FOR JUDGMENT
INTRODUCTION
52All 14 complainants, five of their mothers, one other student, the school principal, and a Children's Aid Society worker testified as Crown witnesses.
53Mr. Connolly, five students, and two teachers testified for the defence.
54Mr. Connolly denied committing any criminal offences. Accordingly, the principles in R. v. W(D) are applicable.
55If I believe the testimony of Mr. Connolly I must find him not guilty.
56Even if I do not believe his testimony, if it leaves me with a reasonable doubt, I must find him not guilty.
57Even if his testimony does not leave me with a reasonable doubt about his guilt, if after considering all the evidence that I do accept, I am not satisfied beyond a reasonable doubt of his guilt, I must acquit.
58In determining this, I must keep in mind that Mr. Connolly, like every other person charged with a crime, is presumed to be innocent, unless and until the Crown has proven his guilt beyond a reasonable doubt. He does not have to present evidence or prove anything. It is not enough for me to believe that he is probably or likely guilty. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. Conversely it is nearly impossible to prove anything with absolute certainty and the Crown is not required to do so. Absolute certainty is a standard of proof that does not exist in law. However I must remember that "the reasonable doubt standard ... falls much closer to absolute certainty than to proof on a balance of probabilities".
59This is a tough standard and it is so tough for very good reason. As Cory J said in R. v. Lifchus: "The onus resting upon the Crown to prove the guilt of the accused beyond a reasonable doubt ... is one of the principal safeguards which seeks to ensure that no innocent person is convicted".
60I cannot say for certain that I believed everything that Mr. Connolly said in court. On the other hand, I cannot say that I disbelieved him. I certainly cannot articulate acceptable reasons for disbelieving him.
61There were some inconsistencies in his evidence but nothing that caused me serious concern. It is certainly not unusual for witnesses, even truthful ones, to slip up in this fashion.
62The evidence of the Crown witnesses was certainly not so compelling as to lead me to conclude that Mr. Connolly was lying. Some of these witnesses were not credible. None of them were reliable enough for me to be satisfied of guilt beyond a reasonable doubt. I will say more about this later.
63In assessing the credibility and the reliability of the evidence of the various witnesses, I have distinguished between credibility and reliability. Credibility relates to a witness's sincerity, whether she is speaking the truth as she believes it to be. Reliability relates to the actual accuracy of her testimony. In determining this, I must consider her ability to accurately observe, recall and recount the events in issue. A credible witness may give unreliable evidence. Accordingly, there is a distinction between a finding of credibility and proof beyond a reasonable doubt.
64Finlayson J.A. stated in R. v. Stewart that:
I am not satisfied, however, that a positive finding of credibility on the part of the complainant is sufficient to support a conviction in a case of this nature where there is significant evidence which contradicts the complainant's allegations. We all know from our personal experiences as trial lawyers and judges that honest witnesses, whether they are adults or children, may convince themselves that inaccurate versions of a given event are correct and they can be very persuasive. The issue, however, is not the sincerity of the witness but the reliability of the witness's testimony. Demeanour alone should not suffice to found a conviction where there are significant inconsistencies and conflicting evidence on the record.
65The distinction between credibility and reliability is very pertinent in this case where I am satisfied of the sincerity of most of the complainants; that they believed what they said. My concern is with the reliability of their beliefs. I will deal with this at greater length later in these reasons.
66At this point I will say that my decision with respect to the credibility of the witnesses is based, in part, on their demeanour while testifying. I am well aware that a finding of credibility should never be based on demeanour alone, especially where there are significant inconsistencies and conflicting evidence on the record. The credibility and reliability of a witness must be "tested in the light of all the other evidence presented".
67I also stress that while I am satisfied that I may rely on the demeanour of the complainants as a factor in assessing their credibility, I consider it to be of very little, if any, assistance in assessing the reliability of their evidence.
68In assessing the credibility of a witness, it is appropriate to examine the inconsistencies between what the witness said in the witness box and what he or she said on previous occasions. It is also appropriate to examine inconsistencies with what other witnesses said. Inconsistencies on minor matters or matters of detail are normal and do not generally affect the credibility of a witness, particularly a young witness. But one or more inconsistencies involving material matters can justify concluding that the witness is neither credible nor reliable. In determining this, it is necessary to look to the totality of the inconsistencies.
69Crown counsel has argued that none of the complainants had a motive to fabricate the allegations against Mr. Connolly. I would agree that this would appear to be correct with respect to most of them.
70The absence of any motive to fabricate an allegation is a proper matter for consideration in the course of the fact finding process. It is, however, only one of the factors to be considered by me. I cannot simply conclude that because there is no apparent reason for a witness to lie, the witness must be telling the truth. Rather, I must assess the credibility and reliability of the complainant's evidence in the light of all of the other evidence. Nor can I automatically equate a lack of evidence of motive to fabricate to the proved absence of motive to fabricate.
71I must be mindful as to how I should treat the evidence of the "child witnesses". I note the following basic principles with respect to the evidence of child witnesses.
72Every witness, irrespective of age, is an individual whose credibility and evidence should be assessed according to criteria appropriate to his or her mental development, understanding, and ability to communicate.
73It is improper to view the evidence of children as being inherently unreliable and therefore to be treated with special caution. The statutory requirement that a child's evidence be corroborated was repealed long ago. The repeal of these provisions does not prevent a judge from treating a child's evidence with caution where such caution is merited. But it does revoke the assumption that children's evidence is less reliable than the evidence of adults.
74Further, it may be wrong to apply adult tests for credibility to the evidence of children. Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection.
75It is necessary to take a common sense approach when dealing with the testimony of young children and not impose the same exacting standard on them as on adults. A flaw, such as a contradiction, in a child's testimony should not be given the same effect as a similar flaw in the testimony of an adult. While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it.
76This is not to say that courts should not carefully assess the credibility of child witnesses or that the standard of proof should be lowered when dealing with children. The credibility of every witness must be carefully assessed but the standard of the "reasonable adult" is not necessarily appropriate in assessing the credibility of young children. Still, "Protecting the liberty of the accused and guarding against the injustice of the conviction of an innocent person require a solid foundation for a verdict of guilt, whether the complainant be an adult or a child."
77I will now address the evidence in this case.
78In light of my ruling on the discreditable conduct/similar fact application, I will assess each set of allegations in isolation and not rely upon one to corroborate the other. The allegations respecting each complainant will be approached separately, as if they comprised 14 discrete trials.
79However, much of what I am about to say will apply to more than one allegation and in those instances, I will try to refer to it once only. This is certainly the case with respect to much of the evidence given by Mr. Connolly.
THE EVIDENCE OF MR. CONNOLLY
80I will begin by reviewing his evidence regarding background facts which are not in issue here.
81Mr. Connolly got into teaching as a second career, after his first wife died of cancer in 2000. He liked working with children and thought teaching would give him an opportunity to spend as much time as he could with his six year old daughter. At the time of trial, he was 59 years old and remarried.
82In 2015, Mr. Connolly was the primary grades music teacher at an elementary school in Burlington. He taught music to 14 classes: one grade 5 class, two grade 4 classes, three and a half grade 3 classes, four grade 2 classes, and three and a half grade 1 classes. Each class had music twice a week. Music classes for students in grade 5 and up were normally taught by Mr. M, who was qualified to teach band instruments.
83Mr. Connolly had taught music to a number of the complainants for more than the one year.
84He taught music in a room that was across the hall from the office. The classroom had a large carpet in the middle of the floor. There was a white board at the front of the class that Mr. Connolly projected music and videos onto from a projector at the back of the room. The projector was plugged into a laptop on Mr. Connolly's desk, also at the back of the classroom. Mr. Connolly kept a set of three chairs between the projector and his desk, on top of the wires running from the projector to his laptop, so students would not trip.
85Mr. Connolly explained the set-up of the classroom in his testimony. The position of his desk at the back of the room was largely dictated by the location of the whiteboard at the front of the classroom and the fact that the sidewalls of the room were folding walls that would occasionally be moved for school events. The desk needed to be at the back of the room to be close to the projector, and placing it there also made it easy to push the desk against the back wall and out of the way if the folding walls were moved for an event. He could have put the desk in either corner at the back of the room, but he chose the side with more space. It just so happened that the area he chose to place the desk was visible from the doorway to the classroom. There were also black cabinets in the classroom that were bolted to the wall at the back of the class for safety reasons. They could not go along the side walls.
86In the 2015-2016 school year, the grade 1-3 classes began the year playing international drums and other percussion instruments that were loaned to the school. The drums left the school in early October and Mr. Connolly started teaching the younger classes about dynamics, tempo, and pitch. From that point on, the class would sit on the floor. In a typical music class, the students would come into the classroom, sing a few warm up songs, and then start the class.
87Mr. Connolly would sing songs with the class to teach them about music. He selected the songs out of a binder called Musicplay. One of the songs Mr. Connolly sang with his class was Poor Little Bug. He estimated that in his career he had used about 80 percent of the songs in the binder. The Musicplay binder suggests Poor Little Bug be used to teach dynamics, tempo, and pitch. Mr. Connolly acknowledged there were other songs that could have been used for that purpose.
88Mr. Connolly started singing Poor Little Bug with his grades 1, 2, and 3 classes in October. It was one of the warm up songs in the class and they would sing it three times each period. Everyone in the class, including Mr. Connolly, would sit with their legs crossed on the floor. The students would sit in a semi-circle around Mr. Connolly, and there would be on average three rows of students around him. Students were free to choose where they wanted to sit, and girls tended to choose to sit in the front row.
89The song had accompanying hand movements that Mr. Connolly had learned at a workshop. Before singing the song, he would ask his students if they could define dynamics, tempo, and pitch. The student who answered correctly would get to pick how the class sang the song: loud or soft, fast or slow, and high or low. Mr. Connolly testified that when they were given the option, 90 percent of the time the class wanted to sing the song fast.
90Mr. Connolly sometimes rewarded good behaviour by letting his class play Just Dance at the end of the period. Mr. Connolly would search for Just Dance videos on YouTube and would project them onto the whiteboard. Students would dance along to the music. Some students would watch the video from Mr. Connolly's desk, either because the carpet area was crowded or their view of the whiteboard was blocked. Others would come up to Mr. Connolly's desk to request songs. Just Dance was done more often with the grade 1-3 classes, and less frequently with the grade 4s and 5s.
91Students could choose whether they wanted to participate in Just Dance. Students who wanted to sit out were expected to sit at the back of the classroom, out of the way, up against the black storage lockers by Mr. Connolly's desk. There would usually be a few students who opted to sit out.
92Mr. Connolly's grade 4-5 classes also started the year playing international drums. They started to play the recorder in October. Chairs would be set up in rows on the carpet of the classroom, with an aisle in the middle for the projector. There would be rows of three chairs on either side of the aisle, and, depending on the size of the class, there would be as many as five rows.
93Mr. Connolly started out by teaching his students how to read music and play proper notes on the recorder. He would then teach the class a song. The first song he taught his students was Hot Cross Buns. He would teach the song to the class and they would learn to play it together. After some time learning the song, Mr. Connolly would give his class advanced notice that there would be a test on the song. Students would have to perform the song at the front of the classroom and the rest of the class would sit as an audience. Mr. Connolly would project the music for the song onto the white board and he would remain at the front of the class to set the beat for the song. Mr. Connolly did this by clapping his hands together.
94Before a test, Mr. Connolly would give his class free time to practice. During free practice time, students were allowed to sit wherever they wanted, in groups with their friends. Everyone would practice their recorders at the same time, and students would talk to their friends. It was noisy in the classroom. Mr. Connolly would walk around the room to make sure students were practicing. He would then sit at his desk, where students could come up to do a dry run of the test. Whether students came up to Mr. Connolly's desk to practice was voluntary. Mr. Connolly would sit in the chair at his desk and have the music for the song on his laptop. Students would play the song one at a time, while others waited in line for their turn.
95November 16, 2015 was one of those test days. It was also the day when ADM accused Mr. Connolly of assaulting him.
THE ALLEGED ASSAULT ON ADM
96I did not believe ADM.
97I suspect that he may have believed that he was telling the truth but his evidence was unreliable to such a degree that he was not credible.
98According to him, he was doing nothing wrong when Mr. Connolly suddenly slapped his face in front of the whole class.
99Most of the students who were there testified that ADM was acting up and disrupting the class. Mr. Connolly also testified to this. He also testified that he did not slap ADM or touch him in any way.
100None of the students testified that they saw Mr. Connolly slap ADM on the face. Some said that they had at some point, either in their initial statement to the police or during some part of their testimony. However, in the end they all said that they did not see a slap.
101AM came closest but even he fell short on this. Further his story had to change in an unbelievable fashion for him to get as close as he did. He initially testified that Mr. Connolly hit ADM on his back in the shoulder area. In order for him to make this conform with a slap to the face, he reworked his evidence to suggest that somehow Mr. Connolly's hand must have slid from ADM's back around to his cheek. I did not believe this.
102I also did not believe the explanations that various witnesses provided to explain why they had not seen any slap.
103LP testified that she left the classroom to go to the bathroom. This explanation fell apart however during cross-examination as it became apparent that she could not have been out of the classroom long enough to go to the bathroom, use it and return. Further, nobody else testified to her leaving. Some in fact testified to actions by her that would have placed her in the classroom at the time of the alleged slap.
104Others said that they were looking away at that particular moment. They were looking away despite the fact that they were supposed to be acting as an attentive audience for the student who was taking his test at the time. I did not believe them either. It was too much of a coincidence that everyone was looking away at that precise moment.
105Further with respect to ADM, he had a number of opportunities to report the alleged assault, either to the Principal or to the gym teacher or to his homeroom teacher. He did not report anything however until it became apparent that he was going to be sent to the principal's office for the second time that day. I find that it was very plausible that he accused Mr. Connolly of assault in order to deflect blame away from himself.
106I note also that when he went home, he forgot to mention the assault to his parents. Apparently it was not that important.
107Other witnesses testified that ADM bragged that he would get Mr. Connolly fired. ADM denied this. There were other inconsistencies between his evidence and that given by other witnesses. I shall not list all of them, however. I shall simply say that there were more than sufficient reasons for me to not believe ADM.
108Mr. Connolly testified that on November 16, 2015, he went up to get the grade 5 students from their home room and brought them down to the music room. He gave the class five minutes to practice in their seats before starting the test. Students did not come up to his desk that day to practice.
109When the test got underway, ADM was disruptive. He was turning around and talking loudly to his friends. The first couple of times this happened, he told ADM to stop. Later, when a student named C. was doing his test, ADM yelled out, "is it nap time yet?" The class burst into laughter.
110Mr. Connolly became frustrated at this point and told ADM that he was tired of him constantly interrupting and being disrespectful, and he said the class was not going to be able to get through all of the tests that week. He added that he had been really hoping to hand out the new instruments on Friday, but with the way it was going he did not think he was going to be able to do that.
111ADM told Mr. Connolly that he did not care. Mr. Connolly became angry and said that he did care and that he thought the rest of the class cared too. He was not yelling but he was talking in a frustrated tone. He told ADM that if he did not care, he should go for a walk, get a drink, go to the washroom, and take a walk outside of class. ADM said it was not his fault and that AM had been kicking him. Mr. Connolly said he did not think AM could reach ADM from where he was sitting, and LP interjected that AM had been leaning over and tapping ADM. She also said that AA had been kicking ADM's chair. Mr. Connolly sent AM and AA out into the hall too.
112He did not send ADM to the office because he did not think that it would do any good. He had tried that at least once before in the year to no effect and he knew that other teachers were constantly bringing ADM to the office. He thought ADM was just bored and needed a break.
113After they were gone, Mr. Connolly simply carried on with the music tests. ADM, AM, and AA came back at the end of class to get their things and then they went to their next class. During the next nutrition break, Mr. Connolly went and spoke to Ms. B about ADM, as he had done many times in the past.
114Ms. B came down to Mr. Connolly's classroom later in the nutrition break and told him that ADM had accused him of hitting him. Mr. Connolly was surprised by the allegation and wanted to go to the principal right away, which they did. He taught the rest of his classes that day and completed lesson plans before leaving. He never returned to the school.
115Mr. Connolly denied hitting ADM or grabbing him. He did not touch him at all that day and certainly did not slap him across the face. He also denied swearing in class or otherwise losing control. He simply asked ADM and his two friends to leave and then carried on with the tests.
116I found Mr. Connolly's evidence regarding his interactions with ADM to be credible.
117His description of the peripheral details was corroborated in whole or in part by the other witnesses.
118He candidly admitted to being extremely frustrated and upset by ADM's behaviour.
119His evidence was not seriously shaken by cross-examination.
120Based on all of the evidence, I am not satisfied beyond a reasonable doubt that Mr. Connolly assaulted ADM and that charge will be dismissed.
SEXUAL ASSAULT / SEXUAL INTERFERENCE CHARGES
121I will be subdividing these complaints by grades since there are a number of comments that are applicable to most if not all the members of each grade.
122However, I will first make some observations that apply to all of these complainants.
123As I discussed earlier, the evidence of all of the complainants was tainted to varying degrees by collusion.
124In addition, not one of them reported any misbehaviour on the part of Mr. Connolly prior to November 16, 2015.
125They had all previously received instruction at home and / or at school regarding the difference between good touches and bad touches and they had all received instruction that they should report any bad touches to either a parent or to a teacher that they trusted. Despite this, not one of them had reported anything to either a parent or another teacher.
126Further, not one of them had said anything to a friend.
127In that regard, I am very much aware that the law of recent complaint was abrogated many years ago. I also have no preconceived notions as to how an innocent victim of a sexual assault might react. However, I cannot overlook the fact that, amongst other explanations, this behaviour on the part of every one of these complainants is reasonably consistent with a belief on their part that Mr. Connolly had not done anything wrong.
128The same inference can reasonably be drawn from the fact that many of the complainants repeatedly chose to sit or stand near Mr. Connolly, thereby making it possible for him to keep doing whatever he had (or had not) been doing with them. I note that some of them were actually quite eager to sit near to him.
129I am also mindful of the fact that all of the alleged sexual touching was said to have happened in front of a full class of students without anyone else seeing anything. I will refer later to those specific instances where witnesses testified that they had seen something.
130Students were lined up to get help with their recorder-playing. That meant that other students were waiting their turn only a few feet away when Mr. Connolly allegedly placed his hand on a complainant's bum.
131Students were sitting side-by-side in a semicircle while singing Poor Little Bug and they were paying attention to what Mr. Connolly was doing with his hands throughout that song.
132Students sitting out Just Dance were gathered near each other in one area of the classroom.
133It is a very reasonable inference that nobody saw any improper touching during these times because there was none to see.
134I will now address the complaints against Mr. Connolly, grade by grade.
135I will then review his evidence regarding those complaints at paragraphs 205 to 214.
THE GRADE 5 CLASSES
136PL, LP, RR and CC were all in grade 5. The first three were in the same class, along with ADM and AM.
137The allegations against Mr. Connolly all involved him placing his hand on the bum of each girl while she was standing beside him at his desk while they sought help with respect to playing the recorder.
138Crown counsel quite properly requested that I dismiss the charges involving RR after she recanted her original complaint against Mr. Connolly. She also testified that she had never seen Mr. Connolly touch another student either.
139PL testified that Mr. Connolly touched her on the bum every time she went to his desk since she was in grade 4. However, she never reported the allegations to anyone because she had not viewed the touching as a "big deal." It only became a big deal after everybody started talking about what Mr. Connolly did.
140Further, she admitted that she lied to the police to make her story more believable. She told the police twice that students were required to go up to Mr. Connolly's desk. In court, she acknowledged that this was not true and that she had said it because she realized that it would not make sense for her to continually go up to Mr. Connolly's desk, over a period of more than a year, if he was sexually abusing her each time she did. She told a lie to make her story more believable.
141PL also testified that ADM was behaving himself prior to the alleged assault by Mr. Connolly. She and ADM were the only witnesses who suggested this.
142I found the evidence of PL to be neither credible nor reliable.
143LP told the police that she was touched once, and that it happened on the very day Mr. Connolly assaulted ADM. But she agreed that on the day of a music test, students would not be given an opportunity to go up to Mr. Connolly's desk to play their recorders. Faced with the contradiction, she claimed she "quickly wanted to go up and show him." She also said that there were a few other students in line with her that day.
144I have already referred to her evidence about leaving class to go to the bathroom.
145Finally, she claimed that she personally saw YD get touched on the bum twice. YD testified that she was never touched.
146I found the evidence of LP to be neither credible nor reliable.
147CC was in a different grade 5 music class taught by Mr. Connolly. He had been her music teacher in previous years as well.
148CC said the alleged assault happened the year before, when she was in grade 4. She thought it happened around March. She was unsure how many times Mr. Connolly touched her, saying "maybe like once or twice but not more than twice". She described that Mr. Connolly used one hand to touch her leg. His fingers "did not really do anything" but there was "a little bit" of hand movement. She estimated that the touching lasted for five seconds, or a short period of time.
149CC testified that she had detailed discussions with a friend named EF. They both disclosed to each other they had been touched during Just Dance. EF said she had been touched and CC said "Oh really? It happened to me as well." CC testified that she had more than one conversation with EF. The conversations made her feel more certain that she was right about what happened. If she had been the only complainant it might have been an accident but once she heard from EF that it had happened to someone else she became convinced that it definitely had happened to her.
150Mr. Connolly was not charged with anything involving EF. EF did not testify.
151In light of the element of tainting, and CC's failure to perceive what had happened as something wrong before that, I find that her evidence is not reliable enough to convince me beyond a reasonable doubt that Mr. Connolly touched her improperly.
THE GRADE 4 CLASSES
152MB, EH and KL were friends with each other. Three were in the same class with Ms. M and the other was in Ms. M's switch class.
153MB claimed Mr. Connolly "tapped" her vagina one day when she sat out of Just Dance. She said she was sitting on his lap at the time, although she did not recall how she got there. There were five other girls standing at the back of the class when this happened. No witness testified to seeing her sitting on Mr. Connolly's lap.
154In subsequent music classes, they carried on as though nothing had happened.
155MB remembered what had happened to her after hearing her friend EH say she was touched during Just Dance and MB said, "Yeah that happened to me before".
156After taking everything into account, I find that MB's evidence is not reliable enough to convince me beyond a reasonable doubt that Mr. Connolly touched her improperly.
157EH said she was touched "inappropriately" during Just Dance. In addition, she repeatedly said in her video that Mr. Connolly touched her "inappropriately." She never elaborated on this.
158Further, she said that she was sitting at the back of the classroom at the time. Despite initially agreeing that students who sat out were supposed to sit by the black metal lockers, she claimed that Mr. Connolly somehow snuck up behind her, crouched down on his knees, and started touching her "inappropriately" before she noticed he was there.
159EH stated in her video interview that she did not report the allegation because she went to an after school program that day where she had a lot of fun, causing her to forget to tell her parents. In cross-examination, it was put to her that she must have remembered what happened the next time she went to music class and saw Mr. Connolly. She denied this. In fact, she said it never occurred to her again until she heard her friend JB talking about Mr. Connolly sexually abusing girls in the change room at school. That was the moment when she remembered what happened to her.
160At trial, she testified for the first time that Mr. Connolly "tapped" her vagina. Coincidentally, she had talked to MB, and MB told her that Mr. Connolly had tapped her on the vagina.
161After taking everything into account, I find that EH's evidence is not reliable enough to convince me beyond a reasonable doubt that Mr. Connolly touched her improperly.
162DL stated in her video statement that Mr. Connolly "always touches us in the private part" and that she went to him and he started doing it while he was sitting at his desk. The touching started "like this year or something like that" or "when I was in grade 4 or something".
163She claimed that EH, MB, and KW all told her Mr. Connolly had touched them on the bum while they practiced playing the recorder, a claim which all three girls denied.
164She first told her friends she had been touched on the bum after they told her Mr. Connolly had done it to them.
165She did not report the touching when it first started, because it was "just really embarrassing and I didn't really want to tell anyone." However, she did not explain why she did not say anything after all of her friends started talking about it.
166DL also could not explain why she kept voluntarily going to Mr. Connolly's desk to practice playing the recorder if she and her friends thought he was abusing children. She said that after she was touched, she would only go up for help if she "really needed it."
167After taking everything into account, I find that DL's evidence is not reliable enough to convince me beyond a reasonable doubt that Mr. Connolly touched her improperly.
168KL was the only grade 4 complainant outside of Ms. M's class, but she was good friends with EH, MB, and DL.
169She said in her video statement that she was touched by Mr. Connolly every time she went up to his desk for help. At trial, she claimed for the first time that she was also touched on the bum when she went up to his desk during Just Dance.
170She did not report the touching earlier because she did not think it was a big deal. The touching became a big deal after she heard other girls talking about Mr. Connolly touching their bums. That is when she thought back and determined she had been touched inappropriately too. The more she heard it from other girls, the more convinced she became.
171After taking everything into account, I find that KL's evidence is not reliable enough to convince me beyond a reasonable doubt that Mr. Connolly touched her improperly.
THE GRADE 3 CLASSES
172EL, KC, and MG were all friends in Ms. P's class. They all claimed they were touched while singing Poor Little Bug. Mr. Connolly repeatedly touched their vaginas and bums as they sat on the carpet in plain view of their entire class.
173I make certain observations about the song and the circumstances in which it was sung later at paragraphs 191 through 203. These were part of my reasoning when assessing the evidence of all of the grade 3 students and the single grade one student.
174EL said Mr. Connolly tickled her vagina and her bum, and she said she saw him do it to her friends. Mr. Connolly would "just put his hand under" in order to touch her bum during the song. EL said she spoke to her friends MG, IK, and KC about Mr. Connolly and they all told her that they were touched during Poor Little Bug.
175EL reported a vivid memory of seeing MG get tickled on the bum after falling over during the song. MG denied this ever happened.
176MG claimed Mr. Connolly would tickle her vagina every time they sang Poor Little Bug.
177She initially said that she saw him do the same to her friends (and only her friends) KC, EL, and AVM. In cross-examination, however, she admitted that she had never seen Mr. Connolly touch them; she had only heard from them that he had done it.
178KC claimed Mr. Connolly would put his hand on her thigh and leave it there during the song. She claimed he would leave his hand there in front of the whole class after the tickling part of the song was over.
179The Crown did not produce any other witness from Ms. P's class to corroborate the claims of these three friends. The defence called two witnesses, IK and NH, who said that they did not see anyone tickled on the bum or vagina.
180EL, MG, and KC also did not satisfactorily explain why they would continue to sit at the front of the circle, where Mr. Connolly could tickle them, if he was repeatedly touching their privates.
181EL initially claimed students were free to sit where they wanted, but when asked why she would continue to sit in the front, she changed her story and claimed for the first time that Mr. Connolly would "yell" at students who did not sit in the circle.
182When MG was asked the same question, she claimed for the first time that she thought she would get a better mark in music class if she continued to sit up front although no one had said anything to her to make her think that.
183KC claimed that Mr. Connolly would reach behind the first row of students and leave his hand on her thigh. She denied the suggestion that she could sit elsewhere if she did not want to be part of the tickling.
184EL also alleged she was touched during Just Dance. She said that Mr. Connolly touched her bum when she went up to his desk to request a song. She said MG was there, but MG denied seeing anything during Just Dance. EL also claimed MG was touched during Just Dance, but MG denied this as well. EL also recounted a detailed story where NH (a boy) was touched during Just Dance and yelled at Mr. Connolly to stop because he is "really sensitive." NH denied this ever happened.
185AS was in another grade 3 class but was close friends with EL and MG.
186AS said that when Mr. Connolly was her teacher, she liked singing the song. She and her friend A tried to sit at the front of the circle every time they sang it. She had no problem with anything that happened until, after hearing rumours about Mr. Connolly, AS thought back and remembered two times he touched her thigh. Before the rumours, she said that she had forgotten about it.
187After taking everything into account, I find that the evidence of EL, KC, MG and AS is not reliable enough to convince me beyond a reasonable doubt that Mr. Connolly touched them improperly.
THE GRADE 1 STUDENT
188ZE was the only complainant from grade 1. She alleged Mr. Connolly tickled her on her vagina once during the song Poor Little Bug, in front of her whole class. The Crown did not call anyone else from ZE's grade 1 class to corroborate her claim.
189The risk that ZE's memory was tainted by rumours is real. Two of her classmates went to the same babysitter as EL, and a third grade 1 student (in a different class) went there as well. EL testified that she told the girls at the babysitter that she was tickled on the vagina during Poor Little Bug.
190ZE's mom testified that she was surprised when ZE disclosed the allegation to her because she had not reported it earlier. They had watched a video that covered the subject of reporting bad touches and she had talked with her daughter about it. ZE clearly understood. Up until then, ZE seemed to really like Mr. Connolly and his music class.
191After taking everything into account, I find that the evidence of ZE is not reliable enough to convince me beyond a reasonable doubt that Mr. Connolly touched her improperly.
POOR LITTLE BUG ON THE WALL
192At this point I wish to make certain comments with regard to the improbabilities in the allegations of sexual touching during the singing of Poor Little Bug by both of the grade 3 classes and the single grade 1 class.
193The first problem is with regard to the amount of time available for sexual touching to occur.
194To better demonstrate this, I have included the words and the music for the song.
195This shows that the entire song is contained in only eight bars sung at 4/4 time. The line, "No one to tickle his toes" is contained in a single bar. Depending on the tempo used, it would take, at most, between two and five seconds to sing that line. Witnesses agreed that the students preferred to sing the song fast rather than slow.
196That is not enough time for Mr. Connolly to have done what the complainants alleged he did. Certainly, it would not have allowed time for his fingers to linger anywhere such as KC suggested.
197This is even more evident when one considers the accompanying hand movements for all of the lines.
198The line, "no one to wash his clothes" was accompanied by a hand-washing movement of both hands at chest or shoulder height.
199The line, "no one to tickle his toes" was accompanied by moving the fingers across the floor in a fashion similar to one moving ones hands up or down a keyboard.
200The final line "poor little bug on the wall" was accompanied by the hands scurrying up an imaginary wall in front of the person, again with much of this being at chest height and higher.
201So, in a matter of seconds, Mr. Connolly's hands had to go from shoulder height down to the floor, scurry across the floor and then return to chest height again, with all of the alleged sexual touching taking place during those brief moments in the middle.
202I also have difficulty with the complainants being able to specify which parts of their bodies (if any) were touched.
203All of the girls were sitting cross-legged (my term) or "criss-cross applesauce" (their term) when these events allegedly happened. These girls were either 6 years old (ZE) or 8 (the grade 3 girls). They were small and they were flexible. Their right toes would be pretty much adjacent to their left knees and vice versa. It would be very difficult for someone to touch their toes without also touching their knees. Further, their thighs and their vaginas would also be close enough that it might be open to the girls to conclude that Mr. Connolly had touched them there and not on their toes or knee, especially after they learned that he was touching many other girls inappropriately.
204On the other hand, it would have been impossible for him to have touched them on their bums while they were seated in that position.
EVIDENCE OF MR. CONNOLLY RE SEXUAL TOUCHING
205Mr. Connolly explained that students sat in a semi-circle around him, usually with three rows in the circle during Poor Little Bug.
206The girls tended to sit at the front of the circle. During the line "No one to tickle his toes," Mr. Connolly would run his hands along the floor from right to left, imitating a spider crawling along the floor. The students in the front row would do the same. In sweeping his hands across the floor, he might "tickle" students on their shoes, hands, or possibly their lower legs.
207He categorically denied ever touching a student on the thigh, vagina, or bum as part of the song.
208In cross-examination, he acknowledged it was possible that he touched a student on the knee, but he did not think so because his hands would never come up off the floor during the tickling motion.
209He also denied touching students during Just Dance. He acknowledged that students would often come to the back of the classroom to watch the video on his laptop or request certain songs. He did not put his arm around students when they came back to his desk during Just Dance. He did not allow them to sit on his lap. He never touched any student's thigh. He either sat at his desk and watched the students, or he would get up and dance with them on the carpet.
210During recorder practice, he would get up and walk around the class, checking in on the groups, having them play for him, and giving them tips. This would take up at least half of the time allotted to practice time. After that, he would sit at his desk and listen to students who wanted to play the recorder for him. It was completely voluntary on the student's part, there was no incentive for practicing at his desk. On average there would be 4-6 students lined up at his desk and they would be at the side of his desk facing him.
211When it was a student's turn to play for Mr. Connolly, he would motion them to stand close to him. It was noisy in the class and difficult to hear their recorders unless his ear was practically right next to the instrument. Students would read the music off of his laptop or their notebook, and Mr. Connolly would tap out the beat for them. He did not use a metronome because students need to see the beat in addition to hearing it. He denied that he would ever simply tap his foot.
212Mr. Connolly acknowledged that he would occasionally touch students who came up to his desk. If they were not standing close enough to him, he would take them by the arm or put a hand on their back to guide them closer to him. This was a momentary touch that would last a couple of seconds. He would not leave his hand on students while they practiced.
213Mr. Connolly did not recall specifically who came back to his desk and how often, nor did he remember who he may have touched on the arm or the back. However, he was clear that he never touched a student on the bum. Nor would he put his hand on their hip or rub their back.
214I have already commented on my assessment of Mr. Connolly's evidence. I shall not repeat those comments here.
LESSER INCLUDED OFFENCE OF ASSAULT
215Crown counsel argued that, should I find Mr. Connolly not guilty of the sexual touching offences, I should still find him guilty of the lesser included offence of assault in certain instances where the evidence showed that he had touched a student in a non-sexual way but without her consent.
216Counsel for Mr. Connolly argued that any touching done by Mr. Connolly was not an assault. Any physical touching would instead fall into a category of "incidental contact" arising out of situations in life where contact with others is almost inevitable. This might include making one's way through a crowded school hallway and bumping into someone or brushing by them. This might also overlap with the next category of honest but mistaken belief in consent. We assume that others will tolerate a certain amount of such contact in our day-to-day interactions with them. Another example of this might be tapping someone on the arm or taking hold of their hand to get their attention so that we might speak to them.
217I agree with this latter characterization of any touching that was done by Mr. Connolly here.
CONCLUSION
218I am not satisfied that the Crown has proven any of the offences beyond a reasonable doubt. Any physical contact he had with any of his students did not constitute an assault let alone a sexual assault or sexual interference.
219Accordingly, all of the charges are dismissed.
Released: May 30, 2017
Signed: Justice D.A. Harris
