Publication Ban Warning

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 or 486.6 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged 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) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order;

(b) on application made by the victim, the prosecutor or any such witness, make the order; and

(c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.

(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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;

(b) on application of the victim or the prosecutor, make the order; and

(c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.

(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.

(3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall

(a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order;

(b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and

(3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have

(a) informed the witnesses and the victim who are the subject of the order of its existence;

(b) determined whether they wish to be the subject of the order; and

(4) An order made under this section does not apply in either of the following circumstances:

(a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or

(b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.

(5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness.

486.6 (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor,

(a) the person knowingly failed to comply with the order;

(b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and

(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.

Court of Appeal for Ontario

Date: 2024-05-23 Docket: COA-22-CR-0257

Before: Brown, Coroza and George JJ.A.

Between: His Majesty the King, Respondent and B.R., Appellant

Counsel: Brian H. Greenspan and Naomi M. Lutes, for the appellant Raoof Zamanifar, for the respondent

Heard: May 17, 2024

On appeal from the conviction entered on June 10, 2022 and the sentence imposed on June 8, 2023 by Justice Robert F. Goldstein of the Superior Court of Justice, with reasons reported at 2022 ONSC 3443 and 2023 ONSC 3380.

Reasons for Decision

Overview

[1] The appellant, a former high school teacher, was convicted of sexual assault and sexual interference in relation to a former student, M.L. The trial judge acquitted the appellant of sexual assault and sexual exploitation in relation to another student, E.A.

[2] The conviction for sexual assault was stayed applying the Kienapple principle. The trial judge sentenced the appellant on the remaining conviction to 18 months’ imprisonment. The appellant appeals his conviction and seeks leave to appeal his sentence.

[3] At the hearing, we dismissed the appeal with reasons to follow. These are those reasons.

The Evidence

[4] At the time of the incident involving M.L., the appellant was 34 years old, whereas M.L. was 15 years old. The appellant had previously been M.L.’s English teacher and soccer coach.

[5] The charges stemmed from a meeting between the appellant and M.L. at a time when he was teaching at another school. There was no dispute that, in the spring of 2017, the appellant met M.L. at a shopping mall, drove her to a Starbucks, and then to his condominium. At that point the testimony of M.L. and the appellant diverged.

[6] M.L. testified that they parked in the condo’s underground parking lot, took the elevator to the appellant’s unit and sat beside each other on his couch, whereupon the appellant stroked M.L.’s thighs for 10 to 20 minutes, started to massage her neck, and then kissed her on the neck, at which time M.L. said she had to leave.

[7] The appellant denied they went into his condo unit. He testified that they parked on the street and their meeting took place on his outdoor patio at a table. He stated that, at one point, M.L. started to play with some papers on the table, during which she touched the appellant’s leg. He brushed her hand away and might have said some angry words. He suggested that she leave. The appellant denied touching M.L.

Conviction Appeal

[8] In detailed reasons, the trial judge concluded that he did not believe the appellant’s evidence about the incident, nor did it leave him with a reasonable doubt. He further found that he was satisfied beyond a reasonable doubt in relation to M.L.’s evidence.

[9] The appellant submits the trial judge made several errors in his credibility analysis that warrant appellate intervention.

[10] First, the appellant contends the trial judge’s rejection of his evidence was based primarily upon impermissible propensity reasoning, specifically an improper focus on the appellant’s admitted poor judgment in failing to maintain “professional boundaries” with M.L. We are not persuaded by this submission.

[11] As his decision makes clear, the trial judge rejected the appellant’s evidence for a number of reasons, including finding that M.L. could not have described the location of the kitchen counter in the appellant’s unit without actually having been in his unit.

[12] As to the portions of the reasons where the trial judge described the appellant’s conduct that contravened school policies about relationships with students – contraventions largely admitted by the appellant – the trial judge expressly recognized that the appellant could not be convicted for using bad judgment. However, as the trial judge noted in respect of one such contravention: “[T]he fact that he was well aware that he was breaching his professional obligations undermines his credibility in the particular circumstances of this case”. That was a permissible use of the evidence regarding the appellant’s breach of various school policies: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 64.

[13] As the trial judge’s reasons disclose, those instances of “bad judgment” were part of a sequence of events that started with a series of “overly personal and concerning” emails the trial judge found showed elements of grooming M.L. This led to arranging to meet M.L. at a place outside of the school at which the appellant taught, culminating to admittedly taking her to his condo building for a meeting, and followed by emails sent to M.L. that contained language of apology. We see no error in the trial judge’s reasoning.

[14] Next, the appellant submits the trial judge erred in his credibility analysis by applying uneven scrutiny to the evidence of the appellant and M.L. We are not persuaded by this submission. Based upon our reading of the trial judge’s reasons, we accept the Crown’s submissions that this ground of appeal is simply an invitation by the appellant that we re-try the case and use the claim of uneven scrutiny “as a catch-all for varied complaints about the weight that the trial judge attributed to problems with [the appellant’s] evidence versus M.L.’s evidence.”

[15] Finally, the appellant contends the trial judge erred by making findings based on what he viewed as an inconsistency in the appellant’s evidence, even though it was never put to the appellant in cross-examination. We see no error by the trial judge. He was entitled to assess the appellant’s credibility in light of all the evidence, including internal inconsistencies contained in the appellant’s narrative of the events.

[16] The appeal from conviction is dismissed.

Sentence Appeal

[17] The appellant was sentenced to 18 months in custody, together with three years probation. The appellant seeks leave to appeal his sentence, advancing two grounds of appeal: (i) the trial judge erred in principle by using the appellant’s previous good character as an aggravating factor; and (ii) the sentence was manifestly unfit because it was excessive and disproportionate. The appellant contends the appropriate sentence would be a conditional sentence or a custodial sentence in the six to twelve-month range.

[18] The appellant argues the trial judge erred in principle in his use of the appellant’s good character, which was conveyed through the large number of letters of support filed during the sentencing hearing. We see no error. As the trial judge properly stated, the appellant’s community support cut both ways, allowing him to take advantage of his ability to bond with students. Nor did the trial judge “double-count” the appellant’s breach of trust as an aggravating factor. As we read the trial judge’s reasons, his discussion of community support cutting both ways simply elaborated on his earlier identification of breach of trust as an aggravating factor.

[19] As this court has recognized on several occasions: prior good character evidence has limited significance when sentencing someone for a sexual offence because their background, and reputation, often “helps enable” its commission: R. v. M.V., 2023 ONCA 724, at para. 69; and, albeit in another context, an “offender’s prior good character and standing in the community are to some extent the tools by which they commit” their offences: R. v. Drabinsky, 2011 ONCA 582, 107 O.R. (3d) 595, at para. 167.

[20] Nor are we persuaded that the sentence imposed was manifestly unfit. In detailed reasons, the trial judge explained why a conditional sentence would not be appropriate in the circumstances. His imposition of an 18-month custodial sentence certainly fell within the range of available sentences in the circumstances. We see no basis to intervene.