Court File and Parties

Court File No.: 21-51 Date: 2023-05-26 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Gabriel Richer, Appellant

Counsel: Peter Chisholm, Counsel for the Crown Howard L. Krongold and Jolene Hansell, Counsel for the Appellant

Heard: November 16, 2022

Before: Bramwell, j.

Overview

1The appellant was charged with six counts of sexual assault, five counts of touching for a sexual purpose a person between the ages of 16 and 18 years over whom he had a position of trust or authority (sexual exploitation) and two counts of simple assault. [1]

2The appellant was a teacher, and the seven female complainants were grade eleven and twelve students in his classes. The incidents giving rise to the charges allegedly occurred at the school from September 2017 through December 2018. The evidence led at trial consisted of the seven complainants and eighteen witnesses. The witnesses were teachers, the vice principal, the principal, fathers of two of the complainants, a co-worker of one of the complainants, and classmates and/or friends of at least one of the complainants.

3The complainants and witnesses were cross-examined on their interaction with each other prior to the reporting of one complainant’s concerns to the principal and the later reporting of that same complainant’s concerns, by a co-worker, to the Children’s Aid Society (C.A.S.) and the police. An agreed statement of facts was filed relating to a conversation between at least two of the complainants, while they were gathered with a larger group of girls, that was overheard by the mother of one of the complainants.

4The evidence was heard over 7 days. At the conclusion of its case, the Crown applied for, and the appellant opposed the admission of evidence relating to the allegations of each complainant as similar fact evidence in support of evidence in relation to the allegations of the other complainants. The trial judge dismissed the similar fact application shortly after submissions in part due to what he found was the very real possibility that there had been contamination of the witnesses’ accounts because of the many discussions that had taken place among various witnesses and others about the appellant generally, his conduct, particularly towards female students, and the police investigation.

5Final submissions by counsel were heard over a day and a half. The following morning, the trial judge found the appellant guilty of sexual exploitation of two complainants, assault of three complainants and not guilty regarding two complainants. The appellant was also found guilty of two more counts, but they were stayed pursuant to the rule in R. v. Kienapple [2] .

6The appellant appeals his convictions on the basis that the trial judge failed to provide any meaningful analysis in rejecting the possibility that the witnesses’ evidence was inadvertently tainted and that the trial judge failed to consider the defence of implied consent before convicting the appellant of assault. [3]

7I find the trial judge’s reasons do not reflect sufficient analysis and articulation of his reasoning process regarding his ultimate dismissal of what he found was an extreme danger of inadvertent tainting of the evidence in this case. For the reasons that follow, I allow the appeal on this issue, set aside the appellant’s convictions and order a new trial.

Quashing One Conviction on Consent

8I was advised at the hearing of this appeal that the parties agreed that the conviction for assault against K.S. that was noted on count 5 of the Indictment was noted in error as the trial judge’s decision was clear that his intention was to convict the appellant of one count of assault regarding K.S., not two. Given that the conviction for assault is recorded on count 3 of the Indictment, the parties jointly asked that I quash the conviction at count 5. The conviction registered against the appellant on count 5 of the Indictment is accordingly quashed, on consent.

Facts

9In light of the disposition of this appeal, only the facts that are necessary to understand the nature of the evidence and the issues on appeal will be reviewed. [4] I am not assessing the credibility or reliability of the witnesses’ evidence or the overall strength of the evidence.

Allegations relating to K.S.

10K.S. testified that, when she was 16-17 years old and he was her high school teacher, the appellant repeatedly tapped her on the back and rubbed her back in a circular motion around her bra clasp, repeatedly touched the top of her leg in the mid-thigh area and on one occasion, came up behind her and put his arm around her in the hallway of the school. On that occasion, he pulled her towards him so that she was pressed up against him and he apologized to her for questioning her earlier about having taken so long while visiting the washroom during class time.

Allegations relating to J.U.

11J.U. testified that, when she was 16 years old and he was her high school teacher, on one occasion the appellant tapped the inside of her thigh which was bare because she was wearing a kilt as part of her school uniform, when they were alone together in his classroom, and she was seeking help from him with her schoolwork. She said that the appellant said something like “good job” or “atta girl” when he touched her thigh. On another occasion, he tapped her on the back of her leg, just under her buttocks during class and said, “good job.”

Allegations relating to C.T.

12C.T. testified that, when she was 18 years old and he was her high school teacher, the appellant put his hand on her left upper thigh and squeezed it slightly, somewhere between four and seven times when she went to his desk seeking help with her schoolwork. C.T. testified that the second time the appellant touched her leg, she asked him to stop and told him it made her uncomfortable. He responded that he was joking around, and she should not take it seriously.

13C.T. said that the appellant also placed his arm over her shoulder, like a hook, at times. On one occasion, he did this in the hallway outside of the classroom and commented on how well she was doing in his class. On another occasion, at her graduation ceremony, the appellant put his arm around her and made a joke about her not being his student anymore and that if she reached her goal of becoming a police officer and ever pulled him over, she should “let it go”.

14C.T. said that on one occasion she saw the appellant staring at her buttocks as she was squatting down in front of her locker. She asked him what he was looking at and he responded, “not much.”

15Lastly, on one occasion when C.T. went to the washroom during class and left her phone on her desk, she returned to find the appellant had sent her a text message. She did not know how he learned her number.

Allegations relating to C.G.

16C.G. testified that, when she was 16-17 years old and he was her high school teacher, the appellant on one occasion patted her on her the buttocks three times and told her that she should thank him for the fact that she was allowed to remain in his class when the original class was split into two to manage class size.

Allegations relating to M.M.

17M.M. testified that, when she was 17-18 years old and he was her high school teacher, the appellant grabbed her bicep for prolonged periods of time while she was asking him questions at his desk or when she saw him around the school.

18M.M. said that on one occasion, he rubbed her back for 5-10 seconds while she was sitting in a resource room with a friend working on homework. On another occasion, he pressed his body up against her while she was backed into a set of cupboards in a classroom.

Evidence relevant to inadvertent tainting

19The witnesses (other than the complainants) were the police investigator, students, teachers, principals or parents of students at the high school where the appellant taught during the relevant time, and C.M. who was a co-worker of K.S.. There was significant evidence lead about the discussions that took place between the complainants, between the complainants and their friends, between the complainants and, in some cases teachers or staff members and, in others, a parent. What follows is a summary of this body of evidence.

K.S. (complainant)

20K.S. testified that before the appellant started touching her, she was a little “creeped out” by him. This was partially because of what she had heard from other people about him. She may have heard rumours that he had touched students inappropriately, but she was not sure. She had heard rumours that the appellant owned a strip club and was a drug dealer.

21K.S. testified that, prior to class, on the last day she was in the appellant’s class, which was also the last time the appellant touched her, she was in Ms. D’s class and was hesitant to go to the appellant’s class. She was complaining to Ms. D and to C.T. (one of the other complainants) who was in the room at the time, that she didn’t want to go to the appellant’s class because she was “freaked out” or uncomfortable. She did not remember whether she went into specifics about the appellant touching her during this discussion. K.S. did remember that Ms. D. told her at some point that other students found the appellant creepy.

22On the last occasion that the appellant touched her, K.S. testified that she essentially became so fed up with and distressed by the appellant’s conduct towards her that she went to Ms. D., who she was close to and trusted, to disclose what had been happening. She also called her father and asked him to come and get her from school. When her father picked her up, she was in tears and told him what had been happening with the appellant. K.S.’ father then called the Vice-Principal of the school and demanded that K.S. be moved out of the appellant’s class.

23K.S. testified that she did not go into detail when she told her father about how the appellant had touched her. She just told him that the appellant would touch her sometimes when she was at his desk asking questions. Later in her evidence, K.S. said that before she was removed from the appellant’s class, she told her father and two friends, M.R. and R.G. that the appellant was touching her leg and back. She did not tell any of these people the frequency with which the touching was happening, and she did not go into specific detail with them.

24K.S. also testified that she told the teachers she spoke to about the incidents that she was uncomfortable in the appellant’s class but did not go into details about what had happened. She said this was because she never got in trouble in high school and was liked by all the staff. She did not want to cause any problems and worried that she’d be seen as a “bad kid” for going up against someone in power, that being one of her teachers.

25K.S. testified that she believed the way the appellant touched her was inappropriate from the time the touching started. She said there was never a question in her mind about whether the touching was arguably appropriate. Later in her evidence, K.S. said that she always found the touching weird but didn’t “think too much into it” at first but that she became increasingly bothered by it.

26The day after K.S. left the appellant’s class upset and called her father to pick her up, according to the Principal’s evidence, the Principal told K.S. that she would move K.S. out of the appellant’s class and into an online math class but said that she did not want K.S. telling other students that she had been allowed to go into an online class because then many students would want to do the same. K.S. testified about this exchange and said that she understood that the principal wanted her to keep quiet about what had happened with the appellant and that the matter was, essentially, being swept under the rug.

27K.S. believed that it was common knowledge in the school that she had been taken out of the appellant’s class and that there were “situations” happening with the appellant.

28In or around January 2019, approximately nine months after K.S. was removed from the appellant’s class, she was working at a local restaurant when the appellant came into the restaurant. Seeing him caused K.S. to have an emotional outburst which was seen by a co-worker, C.M. When K.S. told C.M. what had happened to her at the hands of the appellant and that, in K.S.’ view, nothing was really done about it at the school, C.M. obtained K.S.’ permission to report the matter to the local C.A.S. who in turn reported it to the police. Once the police investigation began, the appellant was suspended from his employment and left the school.

29D/C MacDonald received the CAS complaint and reached out to K.S.. She told D/C MacDonald that she wanted time to decide whether to proceed with a complaint so D/C MacDonald said he would contact her in a few weeks. D/C MacDonald asked K.S. during this conversation whether there were other potential complainants and she said there were. He asked for their names but K.S. indicated that she wished to speak to the others first about whether they wished to come forward. Either during this conversation or two weeks later when he took her statement, D/C MacDonald told K.S. to please not discuss the matter with other complainants and to let him do so himself. On the day of K.S.’ interview, she told D/C MacDonald about J.U. and C.T. as other potential complainants.

30K.S. testified that she spoke to the other girls that she believed were potential complainants after this initial conversation with D/C MacDonald. She thinks she brought it up to J.U. who said that she did not want to speak to the police.

31K.S. testified that at some point, she saw a Facebook post that referred to her school and said that there was a class at that school in which if one was a pretty girl, one would do well. She inferred that this was a reference to the appellant.

32K.S. said that she spoke to her father about whether she should give a statement to the police. She believed she also spoke to her friends M.R. and R.G.. She may have spoken to other people, but she did not remember.

33K.S. testified that at some point, she probably talked to J.U. (another complainant) about her concerns about the appellant. K.S. said she was friendly with C.T. and J.U. (other complainants) but did not consider them friends of hers. K.S. said that she did not know who B.P. (another complainant, the charges relating to whom were withdrawn by the Crown during trial) was. She said that she did not really know T.L., G.S., ( complainants on charges the appellant was found not guilty of) , C.G. or M.M. (other complainants). M.M. and G.S. were a year ahead of K.S. at school.

34K.S. testified that she did not keep her experiences with the appellant a secret. She also said if someone came and told her what had happened to them, she would just listen. She said that because it was a high school, if she told one person, that person likely told three people, who told even more people.

35In the meantime, while waiting to interview K.S., D/C MacDonald interviewed K.S.’ father to whom she had reported her complaints at the time they arose, and C.M, the co-worker. He did not tell either of these witnesses not to speak to K.S. about the incidents in question or what they had told D/C MacDonald.

J.D.

36K.S. (complainant) was a very good friend of J.D.’s and was in his math class at the time of some of the incidents with the appellant though she moved out of his class because of those incidents and into an online class. K.S. dated one of J.D.’s best friends. She was the only person he would talk to in math class, and they were good friends outside of school too.

37J.D. saw the appellant, multiple times, put his hand on K.S.’ knee when she was up at his desk getting help. K.S. would talk openly to him about this after every class. She would tell him how much she hated what the appellant did but that she didn’t know what to do about it because she needed the appellant’s help to pass the class. K.S. and J.D. discussed the option of K.S. switching to an online class and that is what she did. It was her idea and he thought it was a good one.

38J.D. heard rumours about the appellant. Some older students who had graduated said it was common to see the appellant at a bar on a school night and that he used drugs. J.D. did not hear rumours about the appellant’s conduct towards female students although there was definitely “something” that went around the school to the effect that the appellant was slightly creepy or a creepier teacher. J.D. thought the appellant’s touching of K.S. was creepy.

39J.D. believed some people liked the appellant and some didn’t. J.D. thought the appellant was a great teacher and very helpful.

40J.D. doesn’t know whether he spoke to his friend, K.S.’ boyfriend, about what was happening with K.S. and the appellant. He believed that K.S. was talking to her boyfriend about it but he didn’t know for sure.

41J.D. did not tell anyone in authority about the appellant touching K.S.

42J.D. didn’t know that K.S. had contacted the authorities until the police reached out to him. He had left high school and lost touch with a lot of people by that point. He didn’t discuss with K.S. what happened around her leaving the appellant’s class. He didn’t know that she had spoken to the principal, for example, about the appellant’s conduct. Once K.S. left the math class, he did not discuss the appellant’s touching of her with her again.

43J.D. did not discuss anything to do with the police with K.S. She did not tell him that she told police that he might have witnessed something.

44J.D. eventually learned that the appellant had left his position at the school, but he did not know when he learned that. He left school himself during that same school year.

45At no point was J.D. aware of any allegations of impropriety on the appellant’s part other than what he witnessed happening to K.S.

M.R.

46M.R. was a good friend of K.S. (complainant).

47M.R. said that overall, the appellant’s classroom was an uncomfortable place to be because she knew what had happened to other students. She felt lucky to have only been in his class in Grade 12 because the things she heard had happened to other students made her not want to be in his class.

48M.R. specified that she had heard, since Grade 9, that people did not want to be in the appellant’s class, that students felt they did not get the best education with him, and that people had been touched by him or felt uncomfortable because of things the appellant said or did.

49In Grade 11, the year before M.R. was in the appellant’s class, K.S. told M.R. that while seeking help from the appellant in class, he had touched her arm and upper thigh and made her uncomfortable. K.S. told her this either the day it happened or the day after, while the two of them were at M.R.’s house. K.S. was clearly upset as demonstrated by her tone of voice and body language.

50M.R. understood that K.S. did not stay in the appellant’s class after this happened and that the Principal’s solution was to put K.S. into an online class and to “kind of throw the situation kind of under the rug.” K.S. told M.R. that the compromise the Principal came up with was to put K.S. in an online class but that, in exchange, K.S. would not say anything to anyone about the situation. M.R. believes that K.S. told her this a couple of months later and that it took K.S. a little while to get up the courage to speak to the Principal about the issue with the appellant.

51M.R. spoke with K.S. about speaking to the police before M.R. went. However, she and K.S. didn’t really ever talk about what happened with the appellant after the initial conversation the day of or after it happened.

52M.R. spoke with K.S. after K.S. spoke to the police but they did not talk about the case itself. It was more about the experience of going to the police because neither had done anything like that before. They did not talk about the specific questions that the detective had asked.

53K.S. told M.R. that she had told R.G., their close mutual friend, about what the appellant did. M.R. did not speak to R.G. about it.

Mr. M.

54Mr. M. is a drama teacher at the school. He was a mentor to K.S. She was very involved in musical theatre at the school and sometimes sang at his church.

55One day, while he was on the stage during one of his preparation sessions, K.S. (complainant) and her friend R.G. came to him. K.S. was concerned and upset. She was not crying but was “worked up and emotionally confused.” She said that the appellant had touched her on her leg. Mr. M. said that the incident had to be reported to the Principal.

56Mr. M. understood that K.S. was going to report the incident to the Principal. He checked in with the Principal a couple of days later and she confirmed that it had been taken care of. Mr. M. did not think it was any of his business after that. He considered his duty to report satisfied.

57Mr. M. heard through gossip at the school how the matter had been resolved. Teachers and students were talking about it. He heard from K.S. a little while later what had happened. She mentioned an incident at the restaurant where she worked.

58Mr. M. did not discuss with K.S. whether she was satisfied with the resolution of the matter, but he heard from others that she was happy to be moved out of the class but was not thrilled about the way the whole thing was settled. He later corrected his evidence on this point and said that he must have learned from K.S. that she wanted more to be done.

59Mr. M. said that he learned about the restaurant incident when K.S. came to him and told him what had happened at her work, that her manager was calling the CAS and the police and that her father was involved. She also told Mr. M. that he should expect a call from the police.

60Mr. M. never had any other student come to him with concerns about the appellant.

61Mr. M. discussed with Ms. D. the fact that K.S. told him that the appellant had touched her leg. He did not ask Ms. D. what K.S. had told her.

62Mr. M. heard gossip from students and teachers that the appellant was creepy, but he would not tolerate such talk. He had a good relationship with the appellant.

63Mr. M. knew that Ms. D. had a negative view of the appellant.

C.T. (complainant)

64Upon being contacted by D/C MacDonald and asked to come in for an interview, C.T. (complainant) contacted the Vice-Principal of the school to make sure the police calling her was not a joke. She did not tell the Vice-Principal the reason the police had reached out to her. She was merely looking for confirmation that the name of the person who called her matched that of someone the Vice-Principal knew to be a police officer. The Vice-Principal told her that it was not a joke and that she should comply with the request.

65After C.T. spoke to the police, she told A.W. a friend of hers and a witness to some of the alleged touching, that she had spoken to police and that he might get a phone call from the police asking him to come in and give a statement about what he saw and heard. C.T. did not tell A.W. what she had told police.

66C.T. testified that she knew that A.W. had seen the appellant touch her leg in class because A.W. asked her about it shortly after it happened. She told him that they would talk about it after class which they did, at their lockers. C.T. told A.W. that he was correct, the appellant had touched her, but she told A.W. not to tell anyone because she was afraid of what would happen if she got the appellant in trouble.

67C.T. testified that she told her parents that there was a “situation” at school. She said that after the last time the appellant touched her, she went home and cried to her mother. She had told her mother previously that something was happening at school but that it was being taken care of.

68C.T. testified that on the same day that she left class because the appellant touched her and then went home to speak to her mother, she spoke to Ms. D. about the appellant touching her and that Ms. D. said that C.T. would have to tell someone about it. C.T. then got a call from the police and so she went in and gave a statement.

69C.T. also testified that she spoke to a male staff member in the front office of the school a few days after she was touched. She later testified that she spoke to Ms. D., the male staff member and her mother all in the same day.

70C.T. testified that she and K.S. (complainant) are distant cousins and knew each other through musical theatre but were not close friends. C.T. remembered a time when K.S. came into Ms. D.’s classroom crying. C.T. reported not wanting to be involved and so she excused herself and went into a practice room. She did not know what K.S. and Ms. D. were talking about other than that it was about the appellant because when K.S. came into the classroom crying, Ms. D. asked, “what’s wrong?” and K.S. responded, “[the appellant], again.”

71C.T. testified that before the appellant was her teacher, she had heard from prior students of his that he was unprofessional in some ways, that he was seen drinking and using cocaine in the back office of his classroom and that he passed students just to be rid of them. She did not know whether any of those rumours were true. The appellant’s poor reputation among students made her uncomfortable when he was her teacher.

72C.T. agreed that the appellant was overweight, wore an eye patch and sometimes sweated profusely but said that these things did not make her uneasy until he touched her inappropriately. She said that she did not assume anything from what others had said; she didn’t know what he was like as a teacher and she went into the classroom to learn.

73C.T. testified that she thought after she graduated that that was the end of the situation with the appellant, until she got a call from the police. She did not expect to be called by the police. She had graduated from the school and had not thought about what had happened with the appellant again and she didn’t speak to people from her high school anymore.

74C.T. testified that the reason she came forward and spoke to the police is that she knew she was not the only one the appellant had touched. In saying this, she was referring to K.S. (complainant).

A.W.

75A.W. did not hear either rumours or first-hand accounts from other students about the appellant’s alleged inappropriate conduct. A.W. testified that he spoke to two friends around the time of the police interviews about who was being interviewed. After the interviews were completed, A.W. said they all forgot about the situation. In his conversations with others about the interviews, A.W. testified that he did not tell anyone what he said in his interview. He also said that everyone knew the interviews were about the appellant touching girls.

Ms. D.

76Ms. D. is a music teacher at the school.

77C.T. (complainant) came to her class once crying, while she was teaching another class. C.T. sought and obtained Ms. D.’s permission to do her school work in Ms. D.’s office that day and said that she’d left the appellant’s class but that the appellant had approved her going to do her work in Ms. D.’s class. Ms. D. called the appellant who questioned why C.T. couldn’t go to the student success support worker instead of Ms. D.. When Ms. D. advised the appellant that it was fine with her for C.T. to work in her class, the appellant relented and so C.T. stayed.

78Ms. D. would often overhear students saying to other students that they didn’t want to go to the appellant’s class and that he was creepy. She did not ask these students why this was so. C.T. was one of the students she overheard saying these things. C.T. never disclosed anything directly to Ms. D. about the appellant.

79K.S. (complainant) came to Ms. D.’s class one day alone and crying, very upset, and ready to leave school. K.S. mentioned the appellant and Ms. D. “shut her down ‘cause she was worried about…union things” and she did not know whether K.S. and the appellant had perhaps had an argument. K.S. told Ms. D. that she had called her father who was on his way to get her and that her father would be speaking to the Vice-Principal.

80K.S. told Ms. D something about the appellant touching her leg with his hand. Ms. D. couldn’t remember whether K.S. told her this on the day she was upset in her class or in the days after that.

81Ms. D. walked K.S. to the front door of the school to meet her father. K.S. remained upset.

82After K.S. left, Ms. D. went to the office and noted that the Vice-Principal’s door was shut. The Principal was not at school that day, so Ms. D. went home. The next day, K.S. was pulled from the appellant’s class. Ms. D. learned this because she saw K.S. in the office that day and was told that K.S. would be taking an online course. Ms. D. was left with the impression that the matter was being dealt with and she was to “step back.” K.S. also told Ms. D. afterwards that her father had indeed phoned the Vice-Principal and that the Principal took her out of the appellant’s math class and enrolled her in an online class. Ms. D. has not discussed the matter with K.S. since.

83Ms. D. did not have the same relationship with C.T. (complainant) that she did with K.S. (complainant), with whom she was closer. C.T. would vent to her friends in Ms. D.’s class about C.T.’s boyfriend and about the appellant but she did not include Ms. D. in these conversations.

84Ms. D. had her own issues with the appellant because of what she felt was inappropriate attention he paid to her and touching of her after she separated from her husband. She agreed that she did not like the appellant. She did not like his appearance or his demeanour. She found him to be negative and that he complained a lot. She referred to him as creepy when speaking to the police.

85Ms. D. did not speak to the appellant about his behaviour towards her. She considered going to her union, but her colleagues and the Principal told her that it could be “messy” if she did. So, Ms. D. confirmed that she was “happy to tell…[her] story” to the police.

86From the time she first knew of him, Ms. D. heard rumours about the appellant including that students didn’t like him, colleagues didn’t like him and that he’d had a “DUI”. She heard these things mostly from colleagues. Students mostly complained about math or having the appellant as a math teacher.

87The only complaint she received directly, as opposed to overhearing people talking, was from K.S. (complainant).

88Ms. D. and K.S. discussed the fact that K.S. would be testifying at the trial but did not discuss the appellant. Ms. D. believed that K.S. was respecting the fact that complainants and witnesses were told not to discuss the matter.

89At some point, K.S. told Ms. D. that she had given Ms. D.’s name to the police.

J.U. (complainant)

90J.U. (complainant) testified that after the second time the appellant touched her, K.M., a friend of hers, came up to her in the hall after class and said “oh, that was kind of weird.” J.U. asked K.M. what she was referring to because she didn’t know what K.M. had seen or noticed and J.U. thought “she could have been talking about anything.” When K.M. referenced the fact that the appellant had touched J.U., J.U. agreed that it was weird. J.U. believes she then told K.M. it was the second time something like that had happened with the appellant. J.U. testified that she thought she talked to K.M. about the situation again the following year when she was in Grade 12.

91J.U. testified that when the appellant touched her the first time, she thought it was really weird and that it might have been an accident. She had no intention of going to the police about it. After the second incident, it crossed her mind to go to school authorities or the police about it, but she didn’t act on that thought. J.U. testified that she would not have spoken to the police if it was not for speaking to K.S. (complainant) who encouraged her to do so.

92J.U. testified that she was involved in another conversation about inappropriate touching by the appellant with a group of friends one day at lunch. She said she told them something brief about the appellant touching her in a way that “was weird” but that she did not go into detail. She believed she told this group of approximately five friends that the appellant touched her on her inner thigh, and they responded that that was weird.

93J.U. testified that she talked to K.S. (complainant) about what had happened with the appellant once, when J.U. and K.S. were in Grade 12, about a year after the appellant touched J.U. J.U. said she and K.S. were friends, not as close as J.U. and K.M. were but they would see each other outside of school sometimes and were in the same group of friends. J.U. understood that K.S. had had a similar experience with the appellant as she had.

94Further, J.U. testified that she was with K.S. and a group of people that were gathered at J.U.’s house before a hockey game in February 2019 and that K.S. “opened up about it more” at that time. J.U. said that K.S. did not go into detail about what the appellant did and that it was a sensitive topic for K.S. C.G. (complainant) was not present for this discussion. J.U. is confident that at the time of this discussion, K.S. knew what had happened to J.U. at the hands of the appellant. The group assembled around the table at J.U.’s house was not talking about J.U.’s experience and K.S. did not go into detail about what happened to her. K.S. was comforted by her friends. J.U. did not recall there being discussion of the police investigation at the time of this gathering at her house, but she thinks K.S. mentioned something about going to the police. J.U. testified that K.S. did not talk to the group about what questions the police had asked her. She also testified that she remembered K.S. telling them that the police asked her what she was wearing when she was touched by the appellant and K.S. found that to be an inappropriate question.

95M.L. is the mother of J.U. She overheard J.U. and a group of female friends, which included K.S., who were over at her house before a hockey tournament talking about the police investigation of the appellant. She heard the girls expressing annoyance at the questions they were asked by the police such as what they were wearing or where they had been standing when the appellant touched them. M.L. heard people in the group saying these questions made them feel like it was their fault that these things had happened to them. She also heard the girls talking about the fact that the appellant had gone into K.S.’s workplace which led to K.S.’s boss becoming involved which led the police to become involved.

96J.U. testified that when D/C MacDonald called her a few days after this gathering and asked her if she had anything to report, her response was “not really” because she “didn’t know what he was specifically talking about” and the fact that the police were calling made her a little nervous. Once the officer clarified that he was talking about the appellant, J.U. said she had something to report.

97J.U. testified that she hasn’t had any other direct conversations with anybody about having a similar experience to what she described the appellant doing to her, but she has heard a lot of stories. She said that the fact that events that happened to her didn’t necessarily confirm other people’s stories about the appellant because she didn’t witness what happened to them, but it did “make the rumours seem a little more true.”

98J.U. testified that she was not close friends at all with C.T. (complainant) and did not spend time in Ms. D.’s room. She was not present in Ms. D.’s room when K.S. (complainant) said she had an issue with the appellant touching her.

99J.U. testified that she was not close with B.P. (another complainant, the charges relating to whom were withdrawn by the Crown during trial). She was friendly with T.L. (complainant on dismissed charges) but not close friends. J.U. was more friendly with C.G. (complainant). They had a mutual friend that was a close friend of J.U.’s. She was in the same situation of having a close mutual friend with M.M. (complainant). J.U. played on the same rugby team as G.S. (complainant on dismissed charges) so was somewhat close friends with her.

100J.U. heard from G.S. (complainant on dismissed charges) about something happening with the appellant to M.M. (complainant) but did not know if it was true or not. She did not know the details, just that M.M. said that something had happened to her. The mutual friend that she shared with C.G. (complainant) told her that the appellant had touched C.G.’s butt.

101J.U. had heard rumours about the appellant from the time she started high school. She had heard that he had an impaired driving conviction, did drugs, including cocaine and touched girls inappropriately.

K.M.

102K.M. was a good friend of J.U. (complainant) and was in the class taught by the appellant, with J.U.. She heard “a slapping noise” one day when J.U. went up to the appellant’s desk to ask a question and when she looked up, she saw the appellant’s hand coming away from the back of J.U.’s leg as she stood beside the desk. The appellant was encouraging J.U. and laughing and J.U. was smiling. K.M. thought that what she had seen was a little bit inappropriate.

103K.M. and J.U. spoke about the incident right after class. K.M. doesn’t remember much of what was said but recalls telling J.U. that she thought it was “a little weird.” They were both “kind of weirded out by it a bit.” K.M. doesn’t remember whether J.U. was emotional during this discussion but she is confident that J.U. was not crying.

104K.M. disagreed that she was on “high alert” for inappropriate conduct by the appellant for the rest of the semester but stated that it was a known fact that there had been a few incidents with the appellant. K.M. stated that everybody knew about it. Others had told her that there had been uncomfortable situations involving other people in the appellant’s classes. She was not told specifics. It was a rumour that the appellant was inappropriate. K.M. declined to adopt the word creepy to describe the appellant.

105When K.M. spoke to the police, she knew that J.U. had spoken to them. J.U. told her that police were trying to reach her regarding the appellant and the time that she had seen him touch J.U.. She and J.U. did not talk about the specifics of what K.M. would tell the police.

106K.M. did not discuss the incident with the appellant with J.U. after the time they discussed it right after class and before K.M.’s interview by police. About a week to a month after the incident happened, K.M. told J.U. that if J.U. wanted to tell anyone about it, K.M. would support her emotionally. J.U. said she did not want to tell anyone. Later in her evidence, K.M. said that she had “less than a handful” of discussions with J.U. about the incident with the appellant. They were casual conversations, and she didn’t remember what was said but she confirmed that they were about what happened between J.U. and the appellant during class on that one occasion.

107K.M. knew at some point that the police were interviewing a few of her other friends but she didn’t remember whether she knew that at the time police reached out to her. At the time police reached out to her, she confirmed she already knew they had or were going to interview J.U..

108K.M. learned later that there were other allegations made against the appellant. She learned that M.R. and R.G. (friends of the complainant K.S.) had given an interview to police.

M.M. (complainant)

109M.M. was in the appellant’s class for second semester of Grade 11 and first semester of Grade 12.

110G.S. (complainant on dismissed charges) was one of her best friends.

111When the appellant touched her arm in Grade 11, at first she thought that perhaps she was being dramatic in her reaction but then she thought about the fact that she had heard about him touching other students. But then the appellant started touching her more and more and she concluded that there was intention behind what he was doing so she tried to avoid contact with him.

112M.M. spoke with her friend M.B. (also a friend of G.S. - complainant on dismissed charges) who was sitting beside M.M. on one occasion when the appellant came into a resource room where M.M. and M.B. were working on homework and came up behind them and rubbed M.M.’s back. M.M. believed that M.B. saw that and, after the appellant left the room, the two of them talked about how weird it was that he had done that and how uncomfortable it made M.M. feel.

113M.M. heard from quite a few girls that the appellant had done things to them. G.S. (complainant on dismissed charges) told M.M. that the appellant had grabbed her leg once. She told M.M. this on the day it happened and was angry about it.

114M.M. told her parents what was happening with the appellant. Her father, who was also a teacher at the school, brushed it off at first but became concerned when he saw how uncomfortable M.M. seemed around the appellant. M.M. told her father in the car one day, after getting upset at seeing her father talking to the appellant after school, about the appellant rubbing her back.

115M.M. told Ms. G., who was another teacher at the school and her basketball coach and happened to be her neighbour. M.M. felt close to Ms. G. and would get rides to school and games with her and she and other girls would hang out in Ms. G.’s classroom at lunch. At one of these lunch gatherings, a few girls brought up the subject of the appellant and they all talked about how he made them uncomfortable. G.S. (complainant on dismissed charges) was present for these discussions. Both M.M. and G.S. described for the group a few situations they’d been through with the appellant. M.M. remembers what happened with J.U. (complainant) being discussed which prompted a few girls to opine about how inappropriate the appellant’s behaviour was.

116These gatherings and discussions happened over the winter, before the appellant rubbed M.M.’s back.

117M.M. told Ms. G. that the appellant was creepy and described the things he did that made her feel that way.

118J.U. (complainant) told M.M., during one of the lunch gatherings in Ms. G.’s class during second semester of Grade 12, that she had been touched. Ms. G. was not in the room at the time.

119G.S. (complainant on dismissed charges) and J.U. (complainant) are the only two students who told her directly about the appellant touching them. She discussed it with G.S. “pretty often.” The main discussion was soon after the appellant grabbed G.S.’ leg. The appellant did this in Grade 11 but G.S. “carried it with her” and she and M.M. talked about it multiple times in Grade 12.

120M.M. did not hear any other specific rumours about the appellant.

121M.M. came to her own conclusions about the appellant. Going into Grade 12, as more incidents with him occurred, to her, they “added up.”

122M.M. spoke to M.B. (the mutual friend she shared with G.S. (complainant on dismissed charges) and who had seen a back rubbing incident) the summer before testifying and about a year after M.M. gave her police statement. M.B. told M.M. at that time that she didn’t remember the back rubbing incident. M.M. knew that M.B. had spoken to the police but did not discuss that fact with M.B., nor the fact that she herself had spoken to the police.

123M.M. spoke to G.S. (complainant on dismissed charges) about going to court and court dates but they did not discuss what either of them had told the police in their statements.

124M.M. and her father knew that each other were going to speak to the police during the investigation but they have not talked about what each told the police. The police told her not to speak to her father about what she said in her statement.

125M.M. knew K.S. (complainant) but was not friends with her.

126M.M. became friends with J.U. (complainant) after high school but they were not good friends in high school. She did not discuss the appellant with J.U. She and J.U. had mutual friends in high school.

127M.M. does not know B.P. (complainant on withdrawn charges), C.T. (complainant) or C.G. (complainant).

128M.M. was in T.L.’s (complainant on dismissed charges) math class but they were not friends.

G.S. (complainant on dismissed charges) [5]

129G.S. testified that she was good friends with M.M. (complainant) who was also her classmate in the appellant’s class. One day, they were sitting at a table together in class when the appellant put one hand on each of their backs, from behind, as they sat side by side. Right after he left the area, G.S. and M.M. talked about how they thought that what he had done was weird and creepy.

130G.S. and J.U (complainant). played rugby together. They were “kind of friends” but J.U. was in the grade below G.S. T.L. (complainant on dismissed charges) was also on the rugby team but was not friends with her.

131K.S. (complainant) was also in the grade below G.S. and G.S. did not know her, nor did she know C.G. (complainant).

132G.S. thinks she may have gossiped with her friends about the appellant touching her leg. A lot of people talked about how he was a bit weird around students and she thinks she brought up her own experience with him during these conversations.

133G.S. heard rumours about the appellant starting in Grade 10 including that he acted a bit weird around some students and looked at some students in a certain way. These rumours contributed to her feeling he was a weird teacher.

134In March 2019, when she was away at university, she heard from friends that the police were investigating the appellant. She spoke to some friends before giving her statement to the police. She and M.B. (also a friend of the complainant M.M.) discussed whether G.S. should make a statement to the police or not. She believed she also spoke to M.M. (complainant) around this time about the investigation before she gave a statement to the police.

135After she spoke to the police, she spoke to other friends from high school about how she felt about the situation and what she had told the police during her interview.

136G.S. said that she told the police that she did not want the appellant charged regarding anything that happened to her but that she knew that teachers are not supposed to touch students and so she wanted to give police the information she had.

C.G. (complainant)

137After the appellant touched C.G. in class, she walked by the desks of L.S. and L.K., two friends of hers and L.S. said that she had seen what the appellant just did and L.K., who was sitting beside L.S., smiled at C.G. and nodded. C.G. never discussed the matter again with L.K. but sometime after this exchange in class, she spoke to L.S. in further detail about it. L.S. asked C.G. what the appellant said to her at the time of the touching and C.G. told her exactly what happened.

138C.G. told her boyfriend what happened with the appellant the day it happened. She told him in detail. Her boyfriend and L.S. asked her whether she was going to report it. She said she wasn’t sure and explained why she wasn’t sure, and they seemed to accept that.

139C.G. and L.S. were good friends in high school but had a falling out at some point before the trial and were no longer friends.

140C.G. had heard a few female students saying that the appellant made them uncomfortable but no specific stories. She generally believed that people found the appellant creepy. He made her uncomfortable. He was not very well liked at the school, but she did not spend time around anyone who particularly did not like him.

141A couple of months after the appellant touched her, C.G. was in the library with a group of friends including L.S. People in the group were talking about the appellant and rumours that he had touched female students. L.S. brought up the fact that the appellant had touched C.G. C.G. then told the group what had happened with the appellant.

142It was suggested to C.G. that this discussion in the library lead C.G. to her conclusion that when the appellant touched her it had not been an accident. C.G. said that the discussion gave her comfort in knowing that she wasn’t the only one who felt uncomfortable and had been in this sort of situation with the appellant. She said that she decided on her own that the appellant’s touching of her was not accidental.

143C.G. knows K.S. and J.U. (complainants). They were friends in Grade 9 but were no longer friends at the time of the incident with the appellant, though they would talk occasionally at school.

144C.T. (complainant) was a grade older that C.G. C.G. did not really talk to C.T. or their mutual friends much.

145T.L. (complainant on dismissed charges) was a friend of C.G.

146C.G. knew that G.S. (complainant on dismissed charges) and M.M. (complainant) went to her school but never spoke to either of them.

147C.G. never discussed the appellant with K.S., J.U., C.T., M.M. (all complainants) T.L., or G.S. (complainants on dismissed charges).

148C.G. became aware that the appellant had left his employment with the school, but she did not know why. She did not learn the reason until the police reached out to her during their investigation. At first, she didn’t know why the police wanted to speak to her. She did not speak to any of her friends about the fact that the police called her, but she told her boyfriend.

149After she gave her statement to police, C.G. did not speak to people at school about what the investigation was about. People were talking about the fact that the police were investigating the appellant but she “kept her mouth shut” because the police had asked her to.

L.S.

150L.S. was a good friend of C.G. (complainant). She saw the appellant touch C.G.’s “butt” in a patting motion while C.G. was standing at the appellant’s desk. L.S. was shocked. She believed L.K. saw this too because she looked around after it happened, and he had a shocked look on his face. She believes C.G. left the class immediately after being touched. She and C.G. did not make eye contact.

151L.S. believed she and C.G. talked either after class that day or in or around the following day. C.G. might have been crying when they spoke.

152L.S. did not think she ever spoke to C.G. directly about the appellant patting her “butt.” She believed that she and L.K. talked about the incident after class or during lunch and that each confirmed to the other that they had seen what had happened. She thought C.G. was there for that conversation but not directly participate in it. L.S. was clear that she did not speak to C.G. in the classroom before she left that day.

153L.S. and C.G. had lost touch by the time of the trial.

154L.S. did not think that she and C.G. were ever in a group in which C.G. talked about what happened with the appellant, but they could have been.

155L.S. heard about another incident in which the appellant had apparently inappropriately touched another girl, but she didn’t know for sure whether she heard that before or after seeing what happened to C.G. She believed she heard about it after, but she remained unclear as to whether the incident involving the other girl happened before or after what she witnessed with C.G.

156Someone told L.S. that she might get a call from the police. This was the first she heard about a police investigation. She believed C.G. was there when she was told this, but she doesn’t think C.G. said anything.

N.K.

157N.K. was good friends with C.G. (complainant) when she learned that the appellant had touched C.G.

158N.K. described sitting at a table in the library with a group of students that included C.G. and a girl named A.B. N.K. did not remember who else was there although she believed L.S. (the friend of C.G. described under the preceding heading) was there. A.B. expressed views about women putting themselves in situations that resulted in them being sexually assaulted. C.G. got upset at these comments and told A.B. that nobody “asks for it.” C.G. then described what had happened to her at the hands of the appellant. She told the group that when the appellant’s class was split into two classes to manage class size, she went to the appellant’s desk to say thank you to him for being able to remain in his class and he groped her behind and said that she should thank him because he was the reason she was staying in that class.

159N.K. believes that a boy named N.C. (whose evidence is reviewed under a later heading) was there for this discussion and said that he had seen what happened to C.G. and that it was terrible and should never happen again.

160This was the first time N.K. heard about this from C.G.

161N.K. was also a student of the appellant’s. She would not sit on the stool when seeking help from him because he was known to touch girls’ knees and exposed skin when they would wear a kilt. She witnessed him do this to a girl once, while he called the girl “silly.”

162N.K. knew K.S. (complainant). She saw the appellant come up from behind and grab K.S.’s side, just below the ribcage with his hand once, while K.S. was at her lockers talking to a friend. He said “oh hi” or something along those lines. K.S. looked shocked and responded, “hi sir.”

163N.K. said she and some other students were confused about what was going on when the appellant left his employment at the school around the Christmas break. These students discussed it and speculated about why the appellant was not coming to work. There was an Instagram group that started speculating about the appellant. There were a lot of rumours going around.

N.C.

164N.C. and C.G. (complainant) had mutual friends but were not close friends with each other. He saw C.G. at the front of the class one day, getting help from the appellant and he saw the appellant with his arm around C.G.’s waist at her pelvic bone or belt area. He described it as a pat at her side or back area. N.C. thought this “seemed a little unprofessional.” N.C. believed L.S. (friend of C.G. described above) saw this too. C.G. looked uncomfortable when this was happening.

165N.C. does not remember discussing this incident with C.G. but remembers talking about it with L.S. and saying that it “was really weird.” He thinks L.K. was also in on this conversation with L.S. but he does not think C.G. was. He might have talked to others, including N.K. (described above) about the incident but he didn’t remember.

T.L. (complainant on dismissed charges) [6]

166In her evidence, T.L. did not mention any of the other complainants as being in her class or being her friend.

167T.L. said that before the appellant was her teacher, she heard rumours that he favoured girl students over boys, that he would look at girls’ “butts” and other rumours that she did not recall. T.L. agreed that the appellant was known as a “creepy” teacher even before she took his class.

168According to T.L., the appellant gave better marks to girls than to boys. She had heard this from others and felt that he gave her higher marks than she deserved. She also noted that she and others in her class observed that the appellant would sometimes take them outside to watch other students playing sports but that it would only be girls playing, never boys.

169T.L. testified that another student, A.M. saw the appellant touching T.L. in class one day and asked her about it in the hall after class. She told A.M. that it had happened on more occasions that A.M. had seen which prompted A.M. to tell her she should report it. T.L. responded that she did not think it was worth reporting because she didn’t know how often it happened to others. T.L. told A.M. that if it happened again, she would report it to a teacher or the principal.

170During the time period in which the appellant was touching her in class, T.L. understood that similar things had been happening to other girls for some time. She did not know whether any of the other girls had gone to any authorities about what had happened.

171At some point during the same school year that the appellant touched her, T.L. came to learn that he had also touched C.G. and J.U. (other complainants). She does not remember whether C.G. told her that directly. J.U. did not tell her directly. T.L. was friends with C.G. and she also noted that “situations like this tend to spread around a high school…you tell one person something and it goes around like wildfire.”

172T.L. later testified that C.G. (complainant) was a friend but not a close friend and that she discussed the appellant with C.G. in the same school year that she was being touched by the appellant. T.L. said that she had heard rumours about C.G. and the appellant, so she asked C.G. about it. C.G. did not tell T.L. that the appellant had touched her. T.L. doesn’t remember what C.G. told her but it was something about the appellant and inappropriate behaviour towards students. T.L. believes that she told C.G. what happened between the appellant and T.L.

173This conversation between T.L. and C.G. happened after the appellant had left the school and before C.G. spoke to the police. T.L. became aware that C.G spoke to the police at some point, but she was not aware of the police investigation or C.G.’s involvement in it at the time this conversation with C.G. took place.

174T.L. was not aware of the police investigation until the police contacted her. She does not know whether C.G. spoke to the police before or after she did. She believes it was at roughly the same time.

175After T.L. spoke to the police, she asked C.G. whether C.G. was giving a statement. T.L. asked C.G. this because T.L. felt C.G. felt that she should give a statement to police. T.L. testified that she was going to recommend to C.G. that she call police and say she wanted to give an interview. T.L. did not suggest to anyone else that they should be interviewed.

176T.L. spoke to E.C., her best friend about being interviewed at the police station. T.L. was worried about it and E.C. asked her what she was worried about so T.L. told her but did not go into details about the situation between her and the appellant.

177T.L. said the whole school talked about similar things happening with other girls. It was just something that everybody knew. She started hearing these rumours about the appellant touching girls at school the year before he was her teacher and she continued to hear them during the time period he was touching her.

178T.L. testified that when someone would speak to her about the rumours, she did not tell that person that similar things had happened to her too.

179The year after the appellant was touching her in class, T.L. was complaining about her then current math teacher (the teacher she had after completing the appellant’s class) in an outburst in front of the entire class in Ms. L.’s English class. She commented that she’d rather be in the appellant’s class and being touched by him than be in her current teacher’s class. Ms. L. followed up with T.L. and asked what she had meant by her comment. T.L. told Ms. L. that she was joking because she did not know at that time that there was a police investigation of the appellant underway and she did not want what had happened to her at the appellant’s hands to be brought to anyone’s attention because she was not ready to talk about it.

180T.L. knew that the appellant left his employment at the school in 2018 but she did not know why. She learned of the police investigation when Ms. L. took her aside and said that she, Ms. L. had made a police report.

181Before this conversation with Ms. L., T.L. had become aware that a student had reported the appellant’s conduct to authorities and that nothing had been done. She does not remember who that student was. She does not remember who told her this information, but she heard from a few people that “the girls at our school” were telling the Principal and the Principal was taking the girls out of the appellant’s class and putting them in an online class.

182T.L. considered K.S. (complainant) an acquaintance. They had a few classes together. She thinks they spoke twice in three years of high school. T.L. never spoke to K.S. about her experiences with the appellant.

183T.L. was friends with J.U. (complainant) in elementary school. They played on the same rugby team in high school. They exchanged pleasantries but that was it. T.L. did not discuss the appellant with J.U.

184T.L. has never spoken with C.T. or M.M. (complainants). T.L. has never heard of B.P. (complainant on withdrawn charges). T.L. was friends with the sister of G.S. (complainant on dismissed charges).

185T.L. testified that it seemed wrong to her that the appellant was touching girls inappropriately and getting away with it.

A.M.

186A.M. was in T.L.’s (complainant on dismissed charges) class taught by the appellant. He saw the appellant put his hand on T.L.’s thigh and his leg between her legs. After class, T.L. told A.M. that she was uncomfortable with what had happened, but she did not want him to tell anyone. A.M. did not tell anyone.

187A.M. spoke to T.L. after this discussion about the incident with the appellant, including after he gave his statement to the police.

188T.L. asked A.M. if it would be okay for her to give the police his name as someone who saw what happened.

189A.M. did not speak to E.C. about the situation.

Ms. L.

190T.L. (complainant on dismissed charges) arrived late to class one day. She was angry and venting about her then current math teacher. At that point, the appellant had not been at the school for a little while and nobody knew why.

191T.L. commented that she would rather have the appellant back as a teacher, even if it meant he’d be touching her legs, than have her current teacher, who was substitute teaching for the appellant. She said this out loud, in front of the class of twenty students. The class erupted with gasps and comments such as “Oh my God!” and “What?!” Ms. L. calmed the class down and shut down the discussion right away.

192About two weeks later, the Superintendent came to the school and told the teachers why the appellant was off work. Receipt of this information prompted Ms. L. to think about her duty to report and so she called CAS and the police to report what T.L. had said in her class. Prior to the meeting with the Superintendent, Ms. L. thought T.L.’s comment was simply an “off colour joke.”

193Ms. L. then raised with T.L. what T.L. had said and told T.L. that she, Ms. L., had spoken to the Principal and called CAS and the police. T.L. responded with surprise and said that her comment had been a joke. Ms. L. told T.L. that she did not know how the situation would unfold. T.L. then confirmed that although her comment had been a joke, the appellant had, in fact, touched her. She said, “this did happen.”

194Ms. L. testified that students complained that the appellant wasn’t fair in class and marked students who were strong in math less harshly than those who weren’t. Some students found him creepy. When she heard students describing the appellant as creepy, she would shut those conversations down.

195When the appellant left the school, Ms. L. heard some people talking about him having a heart issue. She was not aware of the students spreading rumours. They just kept asking where he was.

B.P. (complainant on withdrawn charges) [7]

196B.P. testified that after the appellant touched her in class, she asked a friend, who she knew had seen it, about the friend’s thoughts on what she’d seen, after class. The friend told B.P. that she didn’t think it was a “big deal” so B.P. brushed it off and did not think much of the incident after that.

197B.P. did not see any conduct towards others in her class with the appellant that she found concerning. There were rumours that the appellant was “a weird teacher”, that he went to bars after school and something about him and a nefarious website. As a result, B.P. kept her distance from the appellant.

Vice-Principal and Principal

198The Vice-Principal knew that he was not supposed to discuss the situation involving the appellant after he was interviewed by the police. He did not hear teachers talking about it in the staff room. He testified that the Superintendent held a staff meeting at the school after the appellant was suspended because of the police investigation. The Superintendent told the staff that they were not to discuss the matter as there was an investigation taking place. The Vice-Principal testified that he was surprised that, as far as he knew, there was not a lot of gossip among the students after the appellant left his position at the school.

199Similarly, the Principal testified that the teachers had been told that they were not allowed to talk about the situation with the appellant. She heard that one teacher or another had been called by the police to come in for an interview. She was told by the police not to speak to anyone about the investigation. The Principal said she did not hear of any discussions among students at the school about where the appellant had gone. She heard discussions about that among teachers and students at another school that was affiliated with her school but not at the school these events allegedly took place at.

D/C MacDonald

200D/C MacDonald testified that he did not tell any of the complainants, other than K.S., not to discuss their evidence with each other or with other witnesses. K.S. did not remember whether D/C MacDonald told her this.

201D/C MacDonald also testified that when he contacted the parents of any potential witness that he learned of who was under the age of 18 to ask that their child come in for an interview, he did not tell those parents not to speak to their child about what he had told the parents about the investigation.

Decisions Below

202The potential for inadvertent tainting of witnesses was a live issue that was front and center in this case. This was made clear in the trial judge’s ruling on the similar fact application and in his trial decision.

Similar Fact Ruling

203The Crown’s similar fact application was argued immediately after the close of its case. The trial judge heard oral submissions and received written materials from the Crown and written submissions from the appellant. At the conclusion of the Crown’s argument, the trial judge advised that he did not to hear from defence and delivered oral reasons for dismissing the Crown’s similar fact application.

204In dismissing the similar fact application, the trial judge commented:

…In effect, I’m prepared to find that there is so much information supporting the possibility, and I emphasize the very real possibility of contamination, but not collusion, that in view (sic) it would be extremely dangerous even in a judge-alone trial to permit this information to be presented.

205The trial judge went on to say that he would hear final submissions from counsel on the trial that afternoon and that he anticipated those submissions would include comments about the risk of witness collusion and contamination. He then stated:

…because in effect if there has been collusion, if there has been contamination, they may well bring about a great number of concerns in terms of the assessment of the evidence.

I’m simply indicating that I agree with the defence that there is sufficient tainting in this case. And it need not go any higher than what I’m setting it at. Innocent tainting which in effect brings us back to the wise words pronounced by the detective at the start of the hearing, “How am I expected to try to contain the discussions of a school of teenagers?” He could have added … “all of them having at least one cell phone.” So, the detective, I thought said it fairly and fully at the outset. There is, in this case, ample evidence that a number of witnesses have had the opportunity to discuss, and it’s discussed in the written [submissions and materials filed by counsel] and I simply need not go over that.

206Toward the end of his reasons dismissing the similar fact application, the trial judge said:

I don’t disagree significantly with the concerns about tainting by general rumours. I simply want to point out that when we get to the final submissions it is grist for submissions as to whether in fact there was tainting that brings about concerns that are such that the Crown will fail to demonstrate beyond a reasonable doubt the burden it has.

Trial Decision

207The trial judge’s decision was delivered orally, with written reasons released later the same day, the day after counsel made legal submissions,.

208The trial judge started by summarizing the relevant legal principles that apply in any criminal case as well as those applicable in sexual assault cases specifically. Among those principles and relevant to the present appeal, the trial judge noted that he was required to consider the evidence as a whole and its cumulative effect and that corroboration of the complainants’ evidence was not required. He also reviewed the factors he had to consider when assessing the credibility and reliability of the complainants and witnesses.

209He then summarized the submissions of each party, following which he reviewed the evidence and his findings with respect to each complainant and, ultimately, his conclusions regarding whether the appellant would be convicted of the charges regarding that particular complainant.

210What follows is a summary of the trial judge’s findings and conclusions on the issue of inadvertent tainting.

M.M.

211The trial judge noted that there had been an “evolution in M.M.’s thinking” in that she went from surprised and puzzled to quite uncomfortable because of the appellant’s touching of her. He noted that her father testified that he believed M.M.’s perspective on what had occurred to her had evolved a great deal.

212Under the heading of “the question of bias and contamination,” the trial judge noted:

The cross-examination made plain that by the time the young lady spoke to the police, there were a number of things that may have greatly impaired her earlier initial perception of her interactions with the defendant, and her ability to fairly “store these accurate memories” and to later fully and fairly recall them. Notably the passage of time and the many terrible rumours leaving aside the direct accusation levied by her friends about [the appellant’s] conduct. The defence was quite systematic in pointing out how many of her good friends were quite upset with [the appellant] and the reasons they expressed out loud and vehemently must have influenced her in transforming harmless contact into something more sinister.

213Later, under the heading “findings,” the trial judge wrote:

On the question of contamination, the Court finds that there is a legitimate fear that what she heard and what she was told might influence her, on a subconscious basis at the very least, to tailor her testimony against the defendant. Added to that was her own firm opinions as to [the appellant’s] lack of professionalism, to be brief. That said, at the end of the ultimate analysis of the facts and the governing case law and principles of adjudication in a criminal case, I am totally convinced that what she said about repeated touching of her arm and the one act of [the appellant’s] hand touching her back is credible and reliable and did take place.

In addition, as noted, [M.M.] spoke freely about the complaints involving [the appellant], a factor that the Court has had to weigh quite extensively to ensure that whatever conclusions I reached, in light of the burden of proof and standard for criminal prosecutions, was not skewered by her dislike of her teacher as “ramped up”, to use that expression, by reason of the on-going signal dislike of the defendant within her circle of friends. In this vein, she was quick to state that his appearance had nothing to do with her subjective dislike, but who admits to a bias or dislike in this context?

214His Honour went on to consider whether there was any corroboration of M.M.’s evidence and found that there was none even though he would have expected other witnesses to have corroborated her account given that the touching took place in front of others, often at the front of a busy classroom. Later in his reasons, the trial judge specifically rejected the notion that he could rely on M.M.’s upset demeanour when seeing the appellant, as reported by her father, to corroborate her evidence.

215The trial judge’s conclusions with respect to the potential for inadvertent tainting and the reliability and credibility of M.M.’s evidence were as follows:

This point [referencing the lack of corroboration] became precisely acute during the part of the cross-examination devoted to what might be termed [M.M.’s] evolution in thinking from annoyance and “uncomfort” to echo her repeated statement about “uncomfortable,” to a belief in a negative intention. I find that she has not unfairly or wrongly characterized what she endured, given the nature and number of arm touches and the totally unreasonable back rub involving teacher and student in a situation lacking any reason for any form of tactile contact to the back. I find that anyone in such a situation would conclude as she did, notwithstanding the negative information and likely contamination.

I must underscore that I have considered quite closely, and with great care, the many challenges raised by the defence grounded upon a bedrock of rumour, innuendo, salacious comments, precise allegations of misconduct advanced by persons for whom she has respect, and by many others, the possibility that “noble intent perversion” is at play, etc. At the end of my analysis, I find that although one cannot escape wholly the influence of such matters, as the Crown submitted on November 19, this young lady did testify fully, fairly, frankly and in a reliable way as to the core of her accusations of repeated physical contact.

…I directed myself to be quite vigilant as to the reliability and credibility of her testimony not only by reason of the mindset within the school as to the “creepy teacher” but her subjective negative view of this individual, which might easily have led to conflating innocent though annoying interactions and accidents into something nefarious.

216These passages make it clear that the trial judge was alive to the issue of inadvertent tainting and properly instructed himself as to the care he needed to take in assessing M.M.’s evidence because of it. However, they also make it clear that he simply concluded that despite what he had described as a “very real possibility” leading to an “extreme danger” in his similar fact ruling, the trial judge did not set out the basis upon which he concluded that the complainant’s evidence was credible and reliable despite the live issue of the potential for inadvertent tainting. It is a bald conclusion. What is missing is the “why?” and the “how?” behind the trial judge’s conclusion.

217I have paid particular attention to this passage in the trial judge’s findings:

I find that she has not unfairly or wrongly characterized what she endured, given the nature and number of arm touches and the totally unreasonable back rub involving teacher and student in a situation lacking any reason for any form of tactile contact to the back. I find that anyone in such a situation would conclude as she did, notwithstanding the negative information and likely contamination.

218While, at first blush, this would seem to be an indication that he is attributing her views about the nature of the appellant’s contact with her to the frequency with which it happened and not to the views of others as to its propriety, the problem is that the trial judge has already accepted, to engage in this reasoning, that the touching as the complainant described it, including the frequency of that touching, in fact occurred. This is problematic because it is circular reasoning in that it presumes what it seeks to prove.

T.L.

219Although the charges relating to T.L. were dismissed by the trial judge, I find it important to note he made the following comment with respect to her evidence and that of her friend and classmate, A.M., who was called to give evidence to corroborate T.L.’s:

I have considered fully the real concern that all of the defence (sic – I believe he meant to say Crown ) witnesses, including [T.L. and A.M.], presented false and unfair testimony, possibly subconsciously, due to what might be called “noble cause perversion”, influenced by a combination of deep friendship, if not affection, mutual work duties today, a desire to be chivalrous, and the pollution of so many rumours and complaints by female friends as to the harm visited upon them by [the appellant]. I find that this was not at play, in the final analysis, and that neither sought to influence the testimony of the other and that neither was in fact influenced by the web of bad character discussion.

220I find this to be another instance of the trial judge correctly instructing himself on the issue but then simply asserting that there was no such tainting at play without explanation as to why and how he arrived at that conclusion. I point this out because this paragraph not only discusses the evidence of T.L. and A.M. but refers to a concern about all the Crown witnesses.

C.G.

221Under the heading “the issue of collusion and contamination,” the trial judge noted:

[C.G.] had heard rumours about [the appellant] that were quite negative. In addition, the Factum makes plain at para. 17 that her allegations “took on a life of their own within the school setting.” [Defence counsel who wrote the defence Factum] also penned passages suggesting clear opportunities for contamination, at the very least, at para. 16, bullet point 7 and 9, para. 24 and 31. I have had to give these submissions signal consideration in terms of the reliability of the witness and of the supporting witnesses, to be identified, and to analyse the possibility that any of these grave concerns, not to mention “noble cause perversion” and other causes of unreliable testimony, have operate (sic) to at least raise a reasonable doubt.

222The trial judge considered the testimony of the witnesses L.S. and N.C. that seemed to support C.G.’s evidence.

223The trial judge found that all three of C.G., L.S. and N.C. were credible witnesses. He then went on to discuss their reliability and made the following comments:

On the subject of reliability, they all appear to describe the same scene, but anchor it in different contexts, so to speak, and [N.C.] makes reference to a different kind of touching, less physically invasive given where the teacher’s hand is described as touching, but quite troubling nevertheless. It is at this stage that typical gossip and the spreading of rumours may lead to contamination. It is possible that [N.C.] recalls a totally different situation and it is possible that [L.S.] has been influenced by the various discussions on [the appellant] to recall something she never saw. Neither of the supporting witnesses suggested a clear link to the question of [C.G.] having been told by her teacher that she need not switch classes.

Nevertheless, all three witnesses to this Count have described quite direct conduct by [the appellant] that involved the placement of his hand on the person of [C.G.], but in three different fashions. In my view, [C.G.’s] recall is the correct one, as supported by [L.S.] and [N.C.’s] testimony is helpful in pointing out that [the appellant] would touch the body of [C.G.] in a most inappropriate manner.

224The trial judge again properly instructed himself on the issue of inadvertent tainting as it related to C.G.’s evidence. He accepted it, in part because it was corroborated by witnesses, and he properly instructed himself on the issue of inadvertent tainting as it related to the evidence of the corroborating witnesses as well. However, after recognizing that at least some of the corroborative evidence may have been tainted, as illustrated by the comment that L.S. may have been influenced by the various discussions to recall something she never saw, he then used that evidence to corroborate C.G.’s evidence.

J.U.

225Under the heading “the question of bias and contamination,” the trial judge noted, in part, the following regarding J.U.’s evidence:

As noted earlier, [J.U.] stated that her classmate, [K.M.] witnessed the second incident, going to the point of raising the subject with her.

[J.U.] also admitted that she spoke to [K.S. – complainant] in grade 12. [J.U.] added towards the end of her testimony in chief that she discussed her experiences with friends and classmates, including [K.S.], and spoke to police in March of 2019.

This witness was at the centre of the various rumours, accusations and discussions, as helpfully pointed out by the defence in their factum of November 19, 2020, notably at pages 16 and 17 of the written agreed statement of fact presented about her mother’s knowledge of these matters. She had heard numerous stories suggesting both discreditable conduct and creepy behaviour, assuming there is a distinction. [J.U.] was certainly more inclined to believe part of the rumours after what she experienced.

226Under the heading “supportive testimony”, the trial judge noted, in part, the following about K.M.’s evidence:

The witness did discuss that matter with not only [J.U.] but with many others, requiring the Court to weigh her testimony with even more care and scrutiny, for fear of unconscious bias, “noble cause perversion” and all of the real concerns pointed out by the defence.

227The trial judge went on to find J.U. credible, in large part because she presented with no agenda to harm the appellant. She testified using neutral language and in a matter-of-fact way. She also readily acknowledged when she was not certain about something.

228His Honour went on to address the potential for inadvertent tainting as follows:

[J.U.] certainly agreed with the suggestion that the other accusations led her to reconsider her original perception of the matters. As a matter of law, however, her reconsideration was not germane to the question of law whether any undue influence, collusion, contamination, “noble cause perversion” might have been at play. I find that no such negative influences were in play in her case. And, as a matter of fact, this tended to demonstrate the degree to which she kept an open mind and was not influenced to any relevant degree by the potential contaminating influences that were at play.

On the question of contamination, I note that [M.R.] testified that [K.S.] indicated to her one incident of leg touching by [the appellant], and yet [M.R.] was a popular student and frequented many of the complainants and heard much of the gossip and rumours, and yet she was not influenced to exaggerate her remarks. This is not to suggest that all are immune to potential contamination, far from it, but merely to illustrate that wise beyond their years young accomplished students, as are obviously [M.R. and J.U.], can in fact resist the pernicious influence of rumours etc.

229In my view, the trial judge, having again correctly instructed himself regarding the potential for inadvertent tainting, simply made the bald assertion that it is not of concern when it comes to J.U.’s evidence. He did not provide any analysis as to why he arrived at that conclusion.

230Further, it should be noted that he references M.R.’s evidence and his apparent finding that she too did not fall prey to inadvertent tainting yet M.R. did not have any evidence to give that was relevant to the incidents involving J.U. M.R. gave evidence relating to K.S. It is also unclear what the connection is between a witness’ youth or academic status and their susceptibility to inadvertent tainting which is, by its very nature, a subconscious process.

231The trial judge considered the evidence of K.M. to corroborate that of J.U. but referenced the fact that K.M. had not actually seen the contact by the appellant with J.U.’s leg and the fact that J.U. and K.M. discussed the incident immediately afterwards. There was no analysis of the inadvertent tainting issue as it related to the evidence of K.M.

C.T.

232Under the heading of “the question of bias and potential contamination,” the trial judge noted the following:

[C.T.] remarked that [A.W.] was both a close friend and someone who sat nearby. Her twin brother and [A.W.] have been best friends since grade 8. In chief, the witness stated that [A.W.] saw the touching of her person that she experienced at the hands of her teacher and discussed it with her.

Further, [C.T.] had no hesitation in recounting how often she heard rumours about [the appellant], and they ran the gamut from drinking, drugs, favouritism in marking, but she added “I was there to learn, not judge.”

On the subject of duplicity, the young witness stated readily that she lied to [A.W.] about her plan or resolve to alert the authorities.

There is no doubt that [C.T.] was in the heart of all of the ongoing discussions about [the appellant], and I have had to warn myself fully as to the real dangers that this situation led her to be influenced in a negative fashion, as well as the critical assessment of the real possibility whether she herself wrongly influenced others.

To be brief, the Factum sets out at para. 16 a number of critical comments in this respect and they appear to be full and fair. I have also noted para. 21, para. 23 and para. 29.

233Under the heading “supportive testimony”, the trial judge discussed the evidence of A.W. and the fact that it corroborated that of C.T. in many respects. On the issue of inadvertent tainting relating to A.W., the trial judge wrote:

[A.W.] stated that he spoke to [C.T.] after an incident with [the appellant]. In general, he stated that he was a witness to back patting and to touching of the leg by means of [the appellant’s] hand. In fairness, it was described as a “pat.” He suggested that [C.T.] may have complained to him of “touchings” that he did not notice, if they in fact took place.

As in the case of most of the witnesses, he knew about the police investigation and shared quite openly that most students were discussing it in terms of “X” was called and interviewed, “Y” has been called to be interviewed and “Z” is waiting to see if will be interviewed.” These are my words to summarize his testimony.

234Having correctly instructed himself to consider the potential role of inadvertent tainting in the evidence of C.T. and the corroborative evidence of A.W., His Honour then made no findings with respect to that issue when concluding that the appellant was guilty of assault with respect to C.T.

235The trial judge started out under heading “findings” by concluding that “…the whole account that she [C.T.] gave as to what she said, and to whom, and from whom she received a complaint, is unreliable.” This is the only reference to C.T.’s discussions with others and their impact on the trial judge’s findings.

236In my view, there is nothing in the trial judge’s decision to indicate how he resolved the issue of the potential for inadvertent tainting in C.T. or A.W.’s evidence, let alone the basis for that resolution.

K.S.

237Under the heading of “the issue of collusion, contamination and bad character,” the trial judge noted:

Starting with the question of rumours, the witness remarked that stories were told that [the appellant] owned a strip club, was involved with drugs, etc. As for his appearance, the witness that (sic) she was not one to make superficial judgements of that nature. The quite detailed Defence Factum makes plain how [K.S.] was at the heart of the various discussions about [the appellant’s] bad character and need not be repeated at this time. Obviously, I have had to give great weight to the defence submissions that this “poisoned water supply,” so to speak, and that all potential witnesses have been contaminated as a result, whether they are aware of it or not.

238Under the heading “the relevant testimony of the other witnesses,” the trial judge notes in part:

…a person who has engaged in mendacity and mischief might well seek out supporting unfounded and false information with which to buttress a foundation of lies, etc. I have considered these possibilities throughout the trial.

239The trial judge also noted the importance of assessing the possibility of inadvertent tainting when it came to the evidence of the witnesses called to corroborate K.S.’s evidence and in particular her friend M.R. and her classmate J.D.

240In his findings relating to the charges involving K.S., the trial judge commented:

I must be critical of all witnesses, especially complainants exposed or exposing others to potential contamination. I find that K.S. was not very confident of her responses as to the frequency, based on her obvious look of uncertainty, and her lack of anchors for her memory.

I have noted the great lack of support from non-students for the conduct complained of, and how the lack of evidence supports pleas of unreliability and contamination, if not worse.

241The trial judge went on to find that the evidence of J.D., called to corroborate K.S.’ evidence, would not be given much weight as he lost his focus and concentration during a challenging cross-examination and “was not able to present much satisfactory information.”

242With respect to M.R., the other witness called to corroborate the evidence of K.S., His Honour noted:

[M.R]. was an honest and sincere witness, but she had no real anchors upon which to rest her memory, and the passage of time made it such that she spoke in generalities, and I doubt that anyone who did not take notes would have better, and many would have fared far worst (sic ). If, in fact, [M.R.] is correct in her memory of one touching of the thigh, then she demonstrates that the poisoned atmosphere did not reach her. I have warned myself to be cautious as the witness presented with little respect for the defendant prior to being told by K.S. of her situation, and her lack of respect for [the appellant] was only made worse after the complaint was voiced.

243There was no analysis or further discussion of the issue of inadvertent tainting or the role that it played in the reliability of K.S.’ evidence or the evidence of those witnesses called to corroborate her evidence.

244The trial judge then accepted K.S.’ evidence that she had been touched on the back repeatedly and on her thigh more than once. He went on to find that the Crown had not proven that the touching was for a sexual purpose beyond a reasonable doubt and so found the appellant guilty of assault on K.S.

Issues

245The appellant raises the following issues on appeal:

1. Did the trial judge fail to provide any meaningful analysis in rejecting the potential that the witnesses’ evidence was inadvertently tainted?

2. Did the trial judge err in failing to correctly consider the defence of implied consent in the instances that he convicted the appellant of assault?

246The respondent submits that the trial judge’s reasons, when read as a whole, are sufficient and clearly set out the multiple junctures at which he considered and instructed himself to be aware of the potential for collusion, contamination or inadvertent tainting in the evidence.

247The respondent submits that it would be inappropriate to allow a defence of implied consent in the context of a student teacher relationship and that the trial judge’s reasons make clear that, to the extent such an argument was being advanced, he would reject it as having no basis in fact in the evidence.

248In the analysis below, I will focus on the first issue. In my view, the resolution of that issue is dispositive of the appeal. In light of the disposition I would order, it is not necessary for me to address the second issue.

Analysis

What is inadvertent tainting?

249Inadvertent tainting, also referred to as innocent collusion, occurs when a witness’ testimony is influenced by hearing evidence from other witnesses. Through conversation with others, a witness may start to remember the situation in question differently or certain details differently or the witness may interpret differently what he or she heard or saw or felt, as a result of hearing the interpretations of others. The inadvertent or innocent nature of this form of witness contamination refers to the fact that it can happen without the witness ever intending to seek out information with a view to changing or aligning their own account. It can happen subconsciously, without the witness even being aware that his or her later account or interpretation of events has been subtly changed by hearing the views and accounts of others. [8]

250Inadvertent tainting should be distinguished from collusion which is the term used to describe the situation in which witnesses get together and decide together what they are going to say to the police and/or in court to appear to be telling a consistent and reliable story. [9]

251It is important to note that just because one witness has heard what someone else will say or believes happened, or has discussed another person’s recollections or interpretations, it does not necessarily mean that either witness is not telling the truth or that their evidence was tainted. [10]

252Outright collusion between witnesses is a credibility issue. If a court finds that witnesses have actively tried to “get their stories straight,” the ability of the court to find that those witnesses are honest and credible and are intending to tell the truth is compromised. Inadvertent tainting is a reliability issue. A witness whose evidence has been tainted, without him or her realizing it, through inadvertent tainting, may well be a credible witness who appears to be honest, forthright and telling the truth. The witness may well believe he or she is telling the truth. But the fact that his or her account has changed, even subtly, but in a relevant way, because of discussions with others, means that it may be less reliable. [11]

253As Justice Nordheimer wrote in R. v. C.G. [12] :

The key point is that, unlike [collusion] which corrupts the evidence of all participants, where [inadvertent tainting] has occurred, a close examination is required to determine what impact that innocent sharing of information may have had on the evidence of each of the witnesses who is a party to the exchange. As Sopinka, J. said in R. v. Burke , [1996] 1 S.C.R. 474, at para. 45 :

Under this approach, the trier of fact is obliged to consider the reliability of the evidence having regard to all the circumstances, including the opportunities for collusion or collaboration to concoct the evidence and the possibility that these opportunities were used for such a purpose. [Emphasis in original.]

Was the judge’s analysis of the evidence in light of the potential for inadvertent tainting sufficient?

254On the facts of this case and, particularly given the trial judge’s dismissal of the similar fact application largely as a result of concerns about what he described as the “extreme danger” posed by the “very real possibility” of inadvertent tainting affecting the evidence of the complainants, in my view, his subsequent analysis of the reliability of the complainants’ evidence and his articulation of the basis upon which he ultimately found it to be reliable despite these concerns is not sufficient.

255I am cognizant that the trial judge’s reasons are to be reviewed for their functionality, not their eloquence. Further, his reasons cannot be assessed as though they stand alone. Rather, they must be “examined in the context of the entire proceeding, especially the nature of the evidence heard and the arguments advanced.” [13]

256A trial judge’s reasons should be given deference by an appellate court when it comes to findings of credibility, absent palpable and overriding error. This is because the trial judge was there and saw and heard the evidence being called. The principle of deference also recognizes that it can be difficult for a trial judge to assess credibility and then to articulate the reasons why a witness is or is not believable. [14]

257It is also important to note that a trial judge is not required to set out every finding or conclusion that he considered in the process of arriving at the verdict. He need not “expound on matters that are well settled, uncontroversial or understood and accepted by the parties.” He need not “expound on evidence which is uncontroversial, or detail his or her finding on each piece of evidence or controverted fact, so long as the findings linking the evidence to the verdict can be logically discerned.” [15]

258The issue in this case is that the present state of the law, as I understand it, requires that in cases in which inadvertent tainting is found to be a live issue, trial judges must critically analyze any discrepancies and changes in the witness’ evidence or the possible intentional and unintentional effects of the potential tainting. [16]

259Again, as I understand it, where there is clear and considerable evidence of the potential that a witness may have been tainted, the trial judge must explain why he or she accepts the testimony of the witness in the face of the evidence of tainting or the potential for tainting. [17]

260In my view, it is not sufficient in cases such as this one, where the trial judge accepted that inadvertent tainting was a live issue and posed an extreme danger to the integrity of the evidence such that it was not safe to admit it for similar fact purposes, to dismiss that same extreme danger as having had no impact on the reliability of the witness’ evidence without clearly setting out his analysis as to why he has come to that conclusion.

261On my reading of the authorities presented to me on this appeal, this is particularly important when the case involves the risk of a slight reinterpretation of an event in which the potential for inadvertent tainting related to the allegations of sexual purpose, not the touching itself. [18] This argument was advanced in this case

262As I understand it, failure to engage in and set out this analysis is an error of law that requires this court to set aside the convictions. [19]

263I find that in his analysis regarding the allegations involving the complainant M.M., the trial judge clearly found at paragraph 46 of his reasons, that inadvertent tainting was a live issue. I also find that, as evidenced by paragraph 53 of his reasons, he simply concluded that there had been no tainting without explaining how he went from a finding that it was a live issue to finding that it wasn’t. Given where this case fell on the spectrum of subtle gradations in content and context, as it was described by appellant’s counsel, which made the spectre of inadvertent tainting loom particularly large, the evidence of the potentially tainted witnesses needed to be examined with particular scrutiny.

264I find that in his analysis regarding the allegations involving the complainant C.G., the trial judge referenced the issue of inadvertent tainting but did not address it in his analysis of C.G.’s evidence. While he found that her friend L.S.’ evidence corroborated C.G.’s, he also found that L.S.’ evidence may well have been tainted to the point that she was recounting something that she did not in fact see.

265With respect to the complainant J.U., the trial judge found her to be a credible witness and essentially therefore rejected the notion that her evidence had been inadvertently tainted. This is problematic because inadvertent tainting is a reliability issue. In other words, the evidence of the most credible witness can still fall prey to inadvertent tainting. Trial judges need to be alive to this and need to articulate the specific basis for finding that it was not a factor.

266With respect to the complainant C.T., I find that the trial judge mentioned the potential for inadvertent tainting but failed to do anything other than that. This does not reflect the level of critical analysis required when inadvertent tainting was something that the trial judge himself had repeatedly identified as a very real danger.

267With respect to the complainant K.S., I find that the trial judge identified the witnesses J.D. and N.K. as potentially corroborative but then dismissed their evidence as being entitled to very little weight. He found that M.R. was another potentially corroborative witness but found that she too was potentially tainted. Ultimately, in my view, the trial judge failed to explain how he resolved the tainting issue regarding M.R. and K.S. While he commented that if M.R.’s evidence about the touching was accepted, it would indicate that “the poisoned atmosphere did not reach her,” this is another example of circular reasoning that presumes what it seeks to prove. Further, M.R. was not a witness to the touching itself. She was only testifying about what the complainant K.S. had told her.

268I accept the submission of appellant’s counsel that given the nature of the allegations in this case, the context within which they arose and the discussions that took place around them, a critical analysis of the evidence, that squarely addressed the live issue of inadvertent tainting with clear and detailed reasons articulating that analysis was required. I find that the trial judge stated conclusions about the credibility of the complainants without analyzing whether, how and to what extent their reliability might have been impacted through inadvertent tainting. His statements were essentially conclusions, without reasons. [20]

269I say with great respect that, in my view, the trial judge, in a busy jurisdiction, was attempting to move a complicated trial forward to a conclusion and to give the parties a decision in as timely a fashion as possible. He did the best he could to distill a large amount of evidence from twenty-five witnesses down to a manageable volume in a short period of time. Unfortunately, his admirable efforts to deliver timely justice led to an honest but problematic overlooking of the fact that special care and attention needed to be paid not only to the potential for inadvertent tainting, to which the trial judge was so clearly alive but also the analysis through which he determined that the concern had been addressed and his articulation of that analysis.

270I am keenly aware that the trial judge did not have the benefit of receiving the cases that I received on this appeal. These cases relate to what I see as a fairly discrete branch of the law relating to inadvertent tainting and the special care that must be taken by trial judges grappling with this issues in cases such as this one where the interpretation of and later describing of events by complainants and witnesses, most of whom spoke to or received information from others about the same topic, were central.

Disposition

271For these reasons, I would set aside the convictions on counts 3,4,6,7,8,9 and 12 of the Indictment and order a new trial on those counts. As noted at paragraph 8 of these reasons, the conviction on count 5 is quashed on consent.

The Honourable Justice Lia Bramwell

Released: May 26, 2023

Footnotes

1During the trial, the Crown withdrew one of the simple assault counts involving an eighth complainant. This left the appellant facing twelve counts involving seven complainants.

2R. v. Kienapple , [1975] 1 S.C.R. 729

3The appellant’s Notice of Appeal asserted different grounds. The grounds set out in this paragraph are the grounds argued by the appellant during the hearing of the appeal and cited in the appellant’s factum and so they are the grounds I am considering on this appeal.

4I am not going to review, for example, the evidence of the complainants relating to the counts that the appellant was found not guilty of except as it relates to the issue of inadvertent tainting.

5The appellant was found not guilty of the charges relating to the complainant G.S. because the trial judge found that the Crown did not prove beyond a reasonable doubt what it was required to prove about the alleged sexual nature of the appellant’s touching of G.S.. In my view, her evidence and that of the witnesses called to corroborate her evidence is relevant on this appeal as it relates to the trial judge’s handling of the issue of the possibility of inadvertent tainting because of discussions had and information shared by all the various complainants and witnesses in the case and other members of the school community.

6The appellant was found not guilty of the charges relating to the complainant T.L. as a result of finding that T.L.’s evidence was unreliable for reasons other than inadvertent tainting. In my view, her evidence and that of the witness called to corroborate her evidence is relevant on this appeal as it relates to the trial judge’s handling of the issue of the possibility of inadvertent tainting as a result of discussions had and information shared by all of the various complainants and witnesses in the case and other members of the school community.

7The Crown withdrew the charges relating to the complainant B.P. during the trial. There was an agreement between the Crown and the appellant referenced on the record at trial that, because B.P. was only examined in chief by the Crown and was not cross-examined, her evidence could not be relied upon by the Crown. As a result, I am only considering the evidence of B.P. that relates to the issue of inadvertent tainting raised by the appellant on this appeal.

8R. v. Ricchio, [2022] O.J. No. 4982 (C.A.) , at para. 21 ; R. v. E.M.M., [2021] O.J. No. 3405 (C.A.) , at para. 19 .

9R. v. C.G., 2021 ONCA 809 , at paras. 28-32 .

10R. v. Ricchio, supra at para. 21 and R. v. E.M.M., supra, at para. 19.

11R. v. C.G., 2021 ONCA 809 , supra note 9 at paras. 30-32 .

12R. v. C.G., 2021 ONCA 809 , supra note 9 at para. 32 .

13R. v. J.J.B., 2013 ONCA 268 , at paras. 19-21 .

14R. v. J.J.B. , supra note 10, at paras. 22-23.

15R. v. R.E.M., 2008 SCC 51 , [2008] S.C.J. No. 52 , at paras. 18-20 .

16R. v. J.F. (2003) , 177 C.C.C. (3d) 1 (Ont. C.A.) at para. 88 .

17R. v. J.J.B. , supra at para. 89 .

18R. v. E.M.M. , supra note 7 at para. 28 and R. v. C.G. , supra note 8 at paras. 37-40 .

19R. v. J.F, supra note 13.

20R. v. T.D. (2013) 2014 ONCA 44 , 305 C.C.C. (3d) 526 (Ont. C.A.) at para. 99 .