Court File and Parties

COURT FILE NO.: CR-21-30000234-0000 DATE: 20230608

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – B.R.

Counsel: Jason Balgopal, for the Crown Dean Embry, for B.R.

HEARD: April 14, 2023

Pursuant to section 486.4(1) of the Criminal Code, the identity of any complainant in this proceeding, or any information that could identify any complainant in this proceeding, may not be published in any document or broadcast or transmitted in any way.

R.F. Goldstein J.

Overview

[1] B.R. was a teacher. M.L. had been one of his students. I found B.R. guilty of sexual assault and sexual interference in relation to M.L. B.R. now comes before the court for sentencing. Crown and defence counsel agree that based on the Kienapple principle, I should stay the sexual assault count and sentence B.R. on the count of sexual interference.

The Facts

Circumstances of the offence

[2] The facts are set out in detail in my reasons for conviction: R. v. B.R., 2022 ONSC 3443.

[3] In the fall of 2015 M.L. was a student in B.R.’s grade 9 English class at Marshall McLuhan Catholic Secondary School in Toronto. BR was also the soccer coach for part of the year. B.R. switched to teach at a different school after the 2015-2016 school year, but B.R. and M.L. stayed in touch. She thought he was a “pretty great” teacher.

[4] After the 2015-2016 school year M.L. and B.R. stayed in touch. They had occasional email correspondence. Eventually they agreed to meet in March 2017, when M.L. was 15.

[5] They arranged to meet after school one day. M.L. took the bus to Scarborough and met B.R. at a plaza. She testified that they exchanged text messages to arrange the meeting. They met at a plaza and went to a Starbucks. M.L. testified that they went through the drive-through. B.R. then drove them to his condo. They took the elevator to his condo and went inside. B.R. said that it was good that she wasn’t wearing her school uniform as there were people in the elevator. M.L. was wearing leggings and a t-shirt.

[6] I accepted M.L.’s evidence that she was in his condo. I rejected B.R.’s evidence that they sat on his patio and did not go inside. I also accept M.L.’s evidence that B.R. parked in the parking lot and remarked that it was good she wasn’t wearing her school uniform. At para. 6 of my reasons for judgment I set out what happened next:

M.L. testified that they went into his condo. She recalled that he had a den. In the den he had photos of African-American people he admired, and quotes. She put her Starbucks drink on the counter. She sat down on his couch. She recalled that it was a black leather couch. B.R. turned on a soccer game. She recalled that he liked Chelsea. He sat beside her. He began touching her thigh, rubbing it up and down. She felt frozen. Her heart was beating. He was making comments about how much he liked her thighs. He touched her for 10-20 minutes. In cross-examination, M.L. could not say exactly how long it was but it was a long time. In chief, she continued to testify that the touching was on top of her leggings. He did not touch her vagina but he did touch close to her underwear line. She sat down on the carpet. He made some comments about her feeling tense and moved to massage her back and shoulder area. She did not want it to happen. He did not ask if he could touch her. He told her he reminded her of his ex and kissed her on the back of the neck. She kind of blanked out while he was kissing her neck. She wasn’t sure what to do. She testified that she eventually told him that she had to go. He drove her to a subway station somewhere in the east end. He told her to “be careful in Scarborough”. She then went to her boyfriend’s house.

Impact on the victim

[7] M.L. filed a victim impact statement. She was 15 years old when the assault happened. She blamed herself and felt shame, sadness, and disappointment. She attempted suicide and was diagnosed with post-traumatic stress disorder. She felt she couldn’t trust anyone. She experienced humiliation on social media. She did get through university and graduate, but not without therapy. It took her some time to understand that what happened was not her fault, and that she was not to blame.

Positions of the Crown and Defense

[8] Mr. Balgopal, for the Crown, argues that the court should impose a sentence of three years. He concedes that there might be a path for two years in custody and three years of probation. The crime was a very serious breach of trust by a teacher in relation to a student. Although Mr. Ross is obviously a good candidate for rehabilitation, he argues that the principles of denunciation and deterrence must be at the forefront of sentences involving children and especially involving children with persons in a position of trust.

[9] Mr. Embry, for his part, seeks a conditional sentence on behalf of B.R. He concedes that sexual offences involving children must involve stiff sentences, but he argues that the sexual touching in this case is at the minor end of the scale. It involved one occurrence. This is a unique and extraordinary case considering the unusual amount of community support for B.R. He has shown dedication to his community, and to teaching. He recognized the errors of judgment he has made. Under these unusual circumstances, the court ought to consider and impose a non-custodial sentence.

Case Law

[10] Both Crown counsel and defence counsel relied on several cases. I need only refer to a few of them.

[11] The leading case involving sexual offences against children is R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424. The Supreme Court stated at the commencement of its reasons:

… we send a strong message that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families, and communities. Sentences for these crimes must increase. Courts must impose sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, as informed by Parliament’s sentencing initiatives and by society’s deepened understanding of the wrongfulness and harmfulness of sexual violence against children. Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching and ongoing harm that it causes to children, families, and society at large.

[12] Friesen pleaded guilty to sexual interference and attempted extortion. He had consensual sex with a woman. He then asked that she bring her four-year old daughter into the bedroom. He then engaged in serious sexual abuse of the child, including attempted sexual intercourse and forced oral sex. The child screamed and left the room. Friesen then threatened to expose the mother if she did not continue to permit him to continue the abuse. The sentencing judge sentenced him to a 6 year sentence. The Court of Appeal reduced the sentence to 4 ½ years. The Supreme Court restored the 6 year sentence. The Supreme Court noted that sexual offences against children have a ripple effect – children learn not to trust, which undermines the wider social fabric: para. 61. The Court refused to set “inflexible quantitative guidance” but stated at para. 114:

Nonetheless, it is incumbent on us to provide an overall message that is clear (D. (D.), at paras. 34 and 45). That message is that mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances. We would add that substantial sentences can be imposed where there was only a single instance of sexual violence and/or a single victim, as in this case, Woodward, and L.M. In addition, as this Court recognized in L.M., maximum sentences should not be reserved for the “abstract case of the worst crime committed in the worst circumstances” (para. 22). Instead, a maximum sentence should be imposed whenever the circumstances warrant it (para. 20).

[13] The Supreme Court also noted that there is no “hierarchy of physical acts for the purposes of determining the degree of physical interference.” Touching should not be assumed to be less physically intrusive than other forms of sexual activity, such as cunnilingus or penile or digital penetration: para. 146. The message of the Supreme Court is that sexual violence against children, even seemingly “minor” sexual acts, can still be devastating. Sentencing courts should not assume that simply because the sexual act involved “mere” touching it is not serious.

[14] In R. v. M.M., 2022 ONCA 441, the accused was 31 years old and the complainant 15. The complainant was the foster daughter of the accused’s aunt. They “sexted” and eventually the complainant sent photographs of her breasts to the accused. She also sent a video of her masturbating. The accused conceded that the images were child pornography. The trial judge found that the accused was in a position of trust with the complainant. The Court of Appeal agreed. The trial judge imposed a 15-month conditional sentence. The Crown appealed the sentence. The Court of Appeal found that it was an error by the sentencing judge to impose a conditional sentence in the circumstances. The Court stated that the Supreme Court’s instructions from Friesen “could not be clearer: sexual offences against children must increase.” The Court of Appeal went on to state at para. 16:

Conditional sentences for sexual offences against children will only rarely be appropriate. Their availability must be limited to exceptional circumstances that render incarceration inappropriate – for example, where it gives rise to a medical hardship that could not adequately be addressed within the correctional facility. It would not be appropriate to enumerate exceptional circumstances here and we make no attempt to do so. Suffice it to say that no exceptional circumstances are present in this case. A sentence of imprisonment should have been imposed.

[15] In R. v. Shilling, 2021 ONCA 916, the accused was the complainant’s step-father. He was obviously in a position of trust. He committed two serious sexual acts when the complainant was between 11 and 14. The trial judge convicted him of sexual assault and sentenced him to 4 ½ years in custody. The accused had a prior conviction for sexual assault. The Court, noting that mid-single digit penitentiary sentences are normal for sexual offences against children, upheld the sentence.

[16] In R. v. Roper, 2020 ONSC 7411, the complainant was 9 years old. The accused was the domestic partner of the victim’s mother. He was, therefore, in a step-parent relationship with her, an obvious position of trust. The trial judge found three incidents of sexual touching. In two of the incidents the accused touched the complainant’s vagina (once while sticking out his penis) and in one of the incidents he touched and manipulated the complainant’s nipples. The accused was a 50-year old first offender gainfully employed as an auto-body mechanic. The trial judge sentenced him to 5 ½ years in the penitentiary.

[17] In R. v. B.M., 2023 ONCA 224, the Court of Appeal again applied the principles in Friesen, and again affirmed that conditional sentences for sexual offences involving children will very rarely be appropriate. The accused sexually abused two children – a girl and a boy – over a period of 43 months. He was in a relationship with the father of the children. He began to live with the children. The sexual abuse of the boy including touching and anal penetration; the sexual abuse of the girl included vaginal penetration without a condom and ejaculation. The girl sent intimate images of herself to the accused, at his request. The accused pleaded guilty to two counts of sexual interference. The trial judge imposed a conditional sentence of two years less a day. The Court of Appeal found that this sentence was erroneous for several reasons, including the fact that the trial judge failed to give effect to the primary sentencing principles of denunciation and deterrence. The Court of Appeal found that the aggravating factors in the case were “horrific”: para. 40. There was a gross breach of trust. The harm was significant. The Court of Appeal substituted a sentence of seven years in custody, less time served on the conditional sentence.

[18] R. v. Green, 2020 ONSC 3786, is a case with many features that are similar to this case. The accused was a high school teacher. The complainant was a 14 year old student in his class. In one incident he touched the complainant’s upper thigh, squeezed it, and slid his hand further up her leg. In the second incident, he touched her breast. He then told her not to say anything. He had occasionally asked the complainant to see him alone after class. He had made sexualized comments to her on several occasions. The trial judge found that the accused had groomed the complainant. He had done so through comments about her body and her appearance, asking her to confide in him, and sharing his personal history with her. He was obviously in a position of trust. The complainant was later diagnosed with an eating disorder and PTSD. After a very detailed and thorough review of the cases, Gomery J. concluded that an appropriate sentence would be 18 months in custody followed by three years of probation.

[19] In R. v. D.S., 2021 ONSC 3972, the accused was a close friend of the family. He lived in the basement of the family home. The accused was convicted of sexual assault by a jury. After a detailed consideration of the evidence, the trial judge found that there had been one incident of sexual touching in a car, and one in a basement. He could not find beyond a reasonable doubt that the accused had penetrated the complainant with his penis. At the time of the offences the complainant was 13 years old, and considered he accused as an uncle. The trial judge rejected a conditional sentence and sentenced the accused to 15 months in prison.

Mitigating and Aggravating Factors

[20] There are several statutory aggravating factors in this case. They include the fact that M.L. was a child under 18 years old; that B.R. abused a position of trust; and that the offence had a significant impact on M.L.’s health: Criminal Code, s. 718.2(a)(ii.1), 718.2(a)(iii), 718.2(a)(iii.1).

[21] An important aggravating factor in this case is the breach of trust involving sexual touching of a former student by her teacher. Even though M.L. was no longer his student, she was still a student, and she was still a child. M.L. described the effect that this loss of trust had on her:

Knowing that you, my teacher had done what you did made me feel as though all teachers were secretly monsters, everyone was just putting on a mask. In fact not just teachers, but people. How could I trust anyone when someone that people thought was a good guy did what he did? Not just people but me, I couldn’t trust anyone but the hardest part was I felt like I couldn’t trust myself or my judgement anymore.

[22] It is also highly aggravating that B.R. groomed M.L. by creating a personal relationship with M.L. and then taking advantage. I mentioned grooming at paras. 38 to 44 of my reasons for judgment. I will excerpt some key portions:

I agree with Crown counsel that aspects of the emails show elements of grooming of M.L. by B.R. There are comments in the emails that go well beyond what one would expect of a student-teacher relationship, even a close student-teacher relationship…

It is notable is that B.R. tells M.L. in the emails to keep in touch, that he misses her, and that he hopes to see her soon. A further email chain became more personal:

December 22, 2016, 12:57 am, M.L. to B.R.:

I have not had the chance to come and visit you yet so I have taken this opportunity to show you some writing… I am struggling to stay on top of things. As wilyman describes my attitude as “lazy but has potential.” I need to visit you ASAP because I need to ‘fix up’ as us teenagers say so I need Ross’s words of wisdom. This year I have been slacking and I need to get back on track so feel free to inspire me with words of wisdom.

Miss you and hope all is well…

December 25, 2016, 11:42 am, B.R. to M.L.:

… MERRY CHRISTMAS (first and foremost),

You must know that I really do miss ya as weird as that may sound. It must be our scorpio connection for sure. In a good way as much as I’m loving it here it sort of feels incomplete. I have to say I looked forward to seeing you everyday before so it does feel odd.

You really need to visit me ASAP… let me know if you’re ever in the area over the break or after and hopefully we can catch up somehow…

You have always be someone special in my eyes that when her time was ready she would shine so “keep jumping through the hoops” and your “time” will come.

Talk to you soon,

p.s. I apologize for any typos… it’s the Baileys lol

[23] Again, I agree with the Crown that this email also has elements of grooming. It is very personal. B.R. referenced drinking alcohol – which he admitted in cross-examination was inappropriate with a student. He reiterated that he missed her. It is true that M.L. reached out to B.R. and indicated that she needed to visit, but B.R. clearly reciprocated, as the following email demonstrated:

March 8, 2017, 3:44 pm, B.R. to M.L.:

I miss you too… honestly it makes me so happy to hear from you… the kids here have been really good to me can’t complain but of course there is no duplicate like yourself.

I actually have three Grade 10 Religion classes right now..yes Religion…but to be honest it’s pretty good because I can just talk and talk and talk lol. You know me.

We need to have a serious pow wow…

Asides from school I started back doing some serious writing again (I think I mentioned last year I was doing that when I was off).

You know what’s crazy…as much as McLuhan is a bit of a blur right now I think if I were to see you it would kill me…in a good way but it would remind me of how much I miss McLuhan.

Anyways seriously lets try to keep in touch more even if you aren’t anywhere near Scarb…I meant it when I said text me so we can talk more often…

Miss you a million.

[24] B.R. then provided his phone number. I agree with the Crown that this email is also evidence of grooming. B.R. indicated that M.L. was special to him. He told her he missed her – in this case a million. He told her she was unlike any other student. He shared personal details with her, such as pursuing his own writing and the effects of his knee injury. In effect, he told her that she was important to him and that he was eager to see her – to have a “powwow”. Crown counsel described the behaviour as a bit like fishing – you drop the lure in the water and wait for a bite. I think that there is some truth to this analogy. It is true that M.L. seemed eager to see him, but it was his responsibility to deal with that professionally.

[25] It is both mitigating and aggravating that B.R. is a respected member of the community with great support from friends, family, and colleagues. I will explain, but deal first with mitigation.

[26] B.R. is a first-offender – he has never been in trouble with the law. According to his partner, he is a caring father, son, and partner. He takes care of his child full-time. He also cares for his elderly parents. I have reviewed the enormous number of letters filed in support of B.R. Those letters came from his colleagues (some of whom had been his teachers when he was a student), friends, former students, and family members, including, as I said, his partner. I reviewed the letters in detail. They are glowing in support of him. I will only mention a few.

[27] B.R.’s partner of 7 years, Ms. Markle, wrote a strong letter of support. She and B.R. have a very young son together. She speaks of him in glowing terms as a partner and a father. He has taken on the care of his young son and is currently the full-time caregiver. He has also taken on the care of his elderly parents. He has a close circle of friends that he has maintained for many years and constantly helps out. He was an outstanding teacher and his career defined him. He also spearheaded Black History Month at Senator O’Connor Catholic High School, where he moved after Marshall McLuhan. She asked that the Court consider the undue hardship that would ensue if were incarcerated.

[28] Gordon MacLean is a former Toronto Catholic District School board (TCDSB) teacher. He taught B.R. when B.R. was in his Grade 5/6 class. He later became B.R.’s colleague when B.R. became a teacher himself. He described B.R. as reliable, hardworking, an excellent athlete, and a good student. He obviously admires B.R. Another former teacher, Bonita Richard, described how B.R. overcame adversity to grow up into a mature and caring teacher himself. She described him as kind and hardworking. She also described him as respectful of colleagues, parents, and students. Michael Morrow is a retired Superintendent of the TCDSB. He described B.R. as a man with a true commitment to helping others, one who made a valuable contribution to the school community. Elaine Barret is head of the English Department at Marshall McLuhan. She is another teacher who was both B.R.’s teacher, and later his colleague. As a student, she found him to be an eager student who worked hard to achieve high academic and athletic standards. As a colleague, she described him as intelligent, hard-working, and humble. Luisa Cangelosi was Principal at Marshall McLuhan when B.R. was a teacher there – and where he taught M.L. She described him as an exemplary teacher, dedicated, hardworking, and a person who went the extra mile to help struggling students. She encouraged him to prepare for a vice principalship. Robert Di Zio is a retired teacher. He worked with B.R. at Senator O’Connor. B.R. transferred from Marshall McLuhan to Senator O’Connor in 2016. Mr. Di Zio was head of the Religion and Family Studies Department and B.R. taught the Grade 10 Religion course. He also coached basketball with B.R. Mr. Di Zio found B.R. to be a professional and effective teacher and coach.

[29] B.R.’s godmother, Sharon Joseph, wrote a letter. She runs a social services agency in Toronto and has worked with the Peel Catholic District School board. She described him as a person who is dependable and reliable and a good family man. She says that he has good potential and is always ready to help others.

[30] Two former students wrote letters of support for B.R. I was particularly struck by the lengthy letter of support written by Rimay Isayas Yohannes. Mr. Yohannes is a Youth Worker in Regent Park. He was a student at Senator O’Connor. He wrote that as a young Black man, “it was not until [B.R.] came to Senator O’Connor that I was able to see a man who looked like me, came from the same environments as me and still, modelled what it means to be principled and selfless.” B.R. inspired him and many other students. He became a role model and had a tremendous effect on Mr. Yohannes’s development and future career.

[31] Several of B.R.’s friends also wrote letters. His close friend Michael Reyes, who is also a teacher, described how they met during their Grade 9 orientation. They grew up in Malvern, a challenging area of Scarborough. He described B.R. as dedicated to his studies, his parents, his family, and his friends. It shows in the way that he takes care of his parents. He described how B.R. has become an outstanding parent. He also described B.R.’s faith. They share an interest in Bible studies and Gospel music. His good friend Chris Searles – who is also a teacher – described B.R.’s dedication to his profession, which he saw as a calling. He described B.R. as a wonderful family man with both his parents and his new son. His friend Mariela Burkett has known B.R. since he was 14. They grew up together and become friends as fellow “book nerds”. She wrote that she would trust him with anything. His friend Gregory Young stated that B.R. is of good moral character. He mentioned that B.R. has volunteered at election time as a poll worker for Elections Canada to give back to the community. Aaron Brandford has known B.R. for over 15 years and has worked as an educator. He found B.R. to be a “shining example” of what a quality educator looks like. He described B.R. as inspiring, fair but firm, a trustworthy friend, and a devoted partner, father and son.

[32] There are several other letters in the same vein that I have not mentioned.

[33] I turn to the aggravating aspect of B.R.’s popularity and esteem in the community. One of the reasons he was able to commit this crime was because he was such a popular and successful teacher. His support in the community cuts both ways. He was able to bond with students who liked and respected him, just as he was able to bond with teachers who liked and respected him when he was a student. He took advantage of that with M.L. In that respect, he is not unlike the fraudster who uses his respect and position in the community to win the trust of his victims: R. v. Drabinsky, 2011 ONCA 582 at para. 167. Indeed, M.L. commented on it in her victim impact statement.

Sentence Imposed

[34] In sentencing B.R., I must apply the primary sentencing principles of denunciation and deterrence: Criminal Code, s. 718.01. The actual sexual touching in this case falls at the low end of the spectrum. It involved touching M.L’s leg over top of her clothing, close to her underwear line, and a kiss to the back of her neck. It ended when M.L. left B.R.’s condominium. On the other hand, as the authorities tell us, the fact that the circumstances of the touching were in themselves seemingly minor is not determinative – a non-intrusive sexual assault can still cause tremendous harm. This case is a good example of that principle. M.L. was 15-year-old teenager – still a child, although not a young child, but also not a fully-formed adult. To M.L., B.R. was a trusted authority figure. The sexual assault, while seemingly minor, involved a very significant breach of trust. It was devastating to M.L. The harm was significant. Moreover, it was not just a momentary lapse by B.R. It involved elements of grooming and planning.

[35] B.R. obviously has great rehabilitative potential given his obvious intelligence and work ethic. That said, it is something of a mystery to me that B.R. committed this offence. He was popular, respected, and highly successful. He is a Black man from Scarborough who overcame disadvantages to become a respected member of an important profession. I watched him testify. Although I found him not credible on key points, it is obvious that he is highly intelligent, well-educated, and articulate. It is easy to see why he was so popular. He showed some of the charisma that made him a popular teacher. He was making a real career and life for himself and his family. He will obviously now be unable to work as a teacher. The TCDSB fired him when this court convicted him of sexual offences involving a student. When I read the letter from Rimay Yohannes, I could not help but feel that it is in many ways tragic that young Black men like Mr. Yohannes will be deprived of the role model that B.R. was and could have continued to be as a teacher, but for this crime.

[36] When I balance the nature of the sexual touching, the breach of trust, B.R.’s previous good character (although, as I have said, it cuts both ways), the harm to M.L., and the principles of sentencing, I am not satisfied that a penitentiary sentence is warranted in this case. I must, therefore, determine whether a conditional sentence should be imposed. A court may impose a conditional sentence pursuant to s. 742.1(a) of the Criminal Code:

742.1 If… the court imposes a sentence of imprisonment of less than two years, the court may… order that the offender serve the sentence in the community… if

(a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2

[37] I do not believe that if B.R. served his sentence in the community it would endanger the safety of the community. That said, I find that a conditional sentence would insufficiently deter and denounce a crime of sexual interference committed by a teacher on a student. The Court of Appeal has emphasized that conditional sentences for sexual offences involving children will rarely be appropriate. Conditional sentences are restricted to exceptional circumstances: R. v. M.M. at para. 16. There are no exceptional circumstances here justifying a conditional sentence.

[38] I am aware that, regrettably, a custodial sentence will cause hardship for B.R.’s family. His partner, son, and parents all depend on him. It is a legitimate concern. The result is unfortunate. At the end of the day, however, these collateral consequences cannot be allowed to overwhelm the primary sentencing principles of denunciation and deterrence and lead to an unfit sentence.

[39] B.R. is sentenced to 18 months in custody on the count of sexual interference, along with three years probation. The terms of probation will be as follows:

• He will report to a probation officer within 3 business days of release from custody and thereafter as required;
• He will have no communication, directly or indirectly, with M.L and will not be within 100 meters of any place that he knows her to attend school, work, or live;
• He will take counselling as directed by his probation officer, and sign any releases necessary for his probation officer to monitor his progress.

[40] There will be the following ancillary orders:

• A DNA order pursuant to s. 487.04 of the Criminal Code as sexual interference is a primary designated offence;
• An order pursuant to s. 109 of the Criminal Code for ten years;
• An order pursuant to s. 161(b) of the Criminal Code for five years;
• An order pursuant to s. 743.21(1) of the Criminal Code prohibiting communication with M.L. or any member of her family while B.R. is incarcerated; and,
• An order pursuant to s. 490.012(1) of the Criminal Code placing B.R. on the sex offender registry for 20 years. I am aware that on October 28, 2022 the Supreme Court of Canada struck down that section as unconstitutional in R. v. Ndhlovu, 2022 SCC 38. The Court suspended the declaration of invalidity for one year, so the court must make the mandatory SOIRA order.

Released: June 8, 2023 R.F. Goldstein J.