WARNING
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences;
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall
(a) as soon as feasible, inform the victim of their right to make an application for the order; and
(b) on application of the victim or the prosecutor, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18..
486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Gilbert, 2015 ONCA 927
DATE: 20151230
DOCKET: C59443
Laskin, MacFarland and Rouleau JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Stephane Gilbert
Appellant
Frank Addario and Andrew Burgess, for the appellant
Hannah Freeman, for the respondent
Heard: May 25, 2015
On appeal from the conviction entered on May 22, 2014 by Justice John R. Sproat of the Superior Court of Justice, sitting without a jury.
Laskin J.A.:
A. Overview
[1] Stephane Gilbert appeals his conviction for the sexual exploitation of the complainant, N.M.
[2] The complainant first met Gilbert when she was in Grade 9. He was her music teacher and the conductor of the school band. At the time, he was in his late twenties. The complainant testified that, in June 2003, after she had finished her Grade 11 year, Gilbert kissed her on two separate occasions, once at her home and the next day at a park. Gilbert denied that he kissed her on either occasion.
[3] Under s. 153(1) of the Criminal Code, R.S.C. 1985, c. C-46, sexual exploitation is made out when a person in a position of authority toward a young person (16 or 17 years of age) touches that young person for a sexual purpose. Gilbert admitted that he was in a position of authority and did not dispute that the complainant was a young person at the time. Thus, the only issue at trial was whether the kissing took place. The trial judge believed the complainant, disbelieved Gilbert, and found him guilty.
[4] In his reasons for conviction, the trial judge relied on the following evidence he had earlier admitted: the similar act evidence of Manon Petit, another student that Gilbert kissed; and the complainant’s post-offence conduct evidence that after she graduated from high school, she and Gilbert had a continuing relationship, which included overnight visits and sexual intercourse at his one-bedroom apartment in North Bay.
[5] Gilbert raises four issues on his appeal:
Did the trial judge materially misapprehend the evidence?
Did the trial judge apply a harsher standard of scrutiny to Gilbert’s evidence than to the complainant’s evidence?
Did the trial judge err by admitting and then drawing unreasonable and speculative inferences from the similar act evidence?
Did the trial judge err by admitting and then drawing unreasonable and speculative inferences from the post-offence conduct evidence?
[6] Gilbert submits that we should answer yes to each of these four questions. He contends that, cumulatively, the trial judge’s errors deprived him of a fair trial. I do not agree with his submission. I would answer no to each of the questions and would dismiss the appeal.
B. Background
(1) Gilbert’s relationship with his students
[7] Gilbert was an affectionate person and took an interest in his students’ lives. The complainant testified that Gilbert talked with his students about “[w]hatever we wanted to talk about”, not just school-related activities. He hugged both his male and female students. And he communicated with them by email.
[8] When the complainant started Grade 10, her parents and the parents of another student spoke to Gilbert and expressed concern that his relationship with the students had become too familiar. He apologized to the parents and stopped emailing the students. But the trial judge accepted the evidence of the complainant and the other student that Gilbert “essentially told them they could carry on the relationship as before but to just be more careful in front of the parents.”
(2) The two kissing incidents
[9] In Grade 10, the complainant started feeling anxious and depressed. She did not have many friends and began confiding in Gilbert. She would go and see him virtually every day, before class, during lunch, and after class. He made her feel “special” and she liked having him as a friend. The more she confided in him and the closer she got to him, the more she became “dependent on him to be there for me when I needed him”.
[10] In the second semester of Grade 11, Gilbert told his students he was leaving to teach in Oman. The complainant was “extremely upset”. Gilbert told her he would miss her but they would stay in touch.
[11] The complainant testified that both kissing incidents occurred in June 2003, after the school year ended and a few days before Gilbert left for Oman.
[12] The first incident occurred after the complainant and Gilbert went out for lunch. When lunch was over, Gilbert drove her home and she invited him inside. She told him he could not stay long because her father would be home soon. So they said goodbye, and then she kissed him, and he kissed her back. That night they spoke on the telephone and Gilbert said he wanted to see her again before he left.
[13] The second incident took place the next day at a park. The complainant and Gilbert walked around, talked about their relationship, and, from time to time, kissed each other.
(3) Disclosure of the incidents
[14] The police became aware of the incidents eight years later, in August 2011. The complainant had been seeing a counsellor. Eventually the complainant told the counsellor about her relationship with Gilbert and identified him by name. The counsellor, in turn, contacted the Children’s Aid Society, who then contacted the police.
C. The Issues
(1) Did the trial judge materially misapprehend the evidence?
[15] Not every misapprehension of evidence by a trial judge justifies this court’s intervention. The misapprehension must be material. In R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at para. 56, Lebel J. discussed materiality and the test for appellate intervention:
For a misapprehension of evidence to be material within the meaning of the Lohrer test, it must go to a central element of the trial judge’s reasoning on which the conviction is based. As Binnie J. correctly stated in Lohrer, the standard described by Doherty J.A. in Morrissey is a stringent one. In other words, an error in the assessment of the evidence will amount to a miscarriage of justice only if striking it from the judgment would leave the trial judge’s reasoning on which the conviction is based on unsteady ground. [Citations omitted.]
[16] Gilbert submits that the trial judge materially misapprehended five pieces of evidence, and that, separately or cumulatively, these misapprehensions meet the test in Sinclair. They directly affected the trial judge’s credibility findings and his conclusion that Gilbert was guilty.
[17] The Crown submits that the trial judge did not materially misapprehend the evidence. I agree with the Crown’s submission. I will deal here with each alleged misapprehension.
(i) The conversation about the parents’ concerns
[18] Gilbert says the trial judge misapprehended his response to the parents’ concerns that he had become too familiar with his students. The trial judge said:
[The complainant] and the fellow student, whose evidence I certainly accept on this point, were clear that the accused essentially told them they could carry on the relationship as before but to just be more careful in front of the parents. The accused, however, in his evidence tried to put himself in a much more favourable light stating that he told them he would be respecting the parents’ wishes.
[19] Gilbert maintained that he did respect the parents’ concerns by cutting off email communication with the two girls. Although Gilbert did stop emailing, the trial judge’s observation above is consistent with the following testimony of the complainant:
And so he said that around our parents we would have to be a lot more careful about how we interacted, but that he really didn’t want to stop having the kind of relationship that he had with each of us, and that so in terms of the openness and the hugging, and the talking as friends, and that kind of behaviour that we had in grade 9, it continued but, for example, when my parents came to pick me up from band, then he would be different in front of them than he would be otherwise, and -- but other than in front of my parents, things continued the way they had between us. I was still going to the music room, and still talking to him, and that kind of stuff.
[20] The trial judge did not misapprehend Gilbert’s evidence. He simply did not accept all of it.
(ii) The complainant’s evidence about the location of the second kissing incident
[21] The trial judge said:
In a police statement she said the kissing in the park took place under a tree while in court she said it took place on a bridge. A romantic walk of the type described would typically involve kissing at more than one location, and she may have innocently mistaken the location or there may have been more than one location.
[22] The complainant was not consistent in her testimony about where the second kissing incident occurred. Gilbert argues that the trial judge resolved this inconsistency on a basis the complainant herself never suggested. When confronted with the inconsistency, the complainant testified that she did not appreciate the importance of details and that her memory had improved over time. She did not suggest that the kissing might have happened at more than one location.
[23] I do not view this difference between the complainant’s explanation for the inconsistency and that of the trial judge as amounting to a misapprehension of the evidence. From the passage quoted above, the trial judge did not fully accept the complainant’s explanation. Instead, he found that the inconsistency was “accounted for by the passage of time which can cause the memory of an honest witness to fade and blur.” That finding was available to the trial judge. Perhaps more importantly, this inconsistency was so minor it could not have impacted the trial judge’s credibility findings.
(iii) The number of kissing incidents with Manon Petit
[24] In his similar act ruling, which I will discuss later in these reasons, the trial judge said in several places that Petit and Gilbert kissed 40 times. In his reasons for conviction, he repeated the number 40:
With respect to the evidence of the previous year student, a conservative estimate based upon her evidence was that they engaged in kissing approximately 40 times. The evidence of the accused was that it was a handful of times to a maximum of ten. I think that the accused intentionally and inaccurately minimized the number of incidents.
[25] Gilbert argues that Petit never said she and Gilbert kissed 40 times, that she was never asked how many times they kissed, and that the trial judge never explained how he arrived at the number 40. And yet, Gilbert says, the discrepancy between 40 incidents and the 10 incidents he admitted to was central to the trial judge’s finding that he was not credible.
[26] I agree that Petit was not asked and did not testify about how many times she kissed Gilbert. I also agree the trial judge did not explain how he arrived at the number 40. But, as the Crown points out, 40 incidents is a reasonable figure in the light of Petit’s evidence that, between Easter and the last day of classes, they kissed almost every school day.
[27] But, even if 40 incidents is not an accurate figure, the important point is that, on Petit’s evidence, which the trial judge accepted, the kissing took place far more often than the “bit more than a handful… maybe up to ten” times Gilbert was prepared to admit to. Thus, although the trial judge ought not to have ascribed a specific number to the incidents of kissing between Petit and Gilbert, he did not misapprehend the substance or significance of the discrepancy between their accounts.
(iv) The complainant’s trips to North Bay
[28] In ruling that the complainant’s trips to North Bay were relevant, the trial judge held:
It is certainly open to the trier of fact to consider whether that evidence is accurate, and if so, whether or not this continuing relationship simply arose out of thin air after the return from Oman or whether it is more logical to regard it as a progression of the fact that the two had a pre-existing romantic relationship. I am satisfied the evidence has some significant relevance and probative value.
[29] Gilbert argues that in saying his continuing relationship with the complainant may have arisen “out of thin air”, the trial judge misapprehended the evidence. As Gilbert points out, though he and the complainant disagreed on whether kissing took place in 2003, they both agreed a “continuing relationship” existed in 2005.
[30] I do not view the above passage, which Gilbert impugns, as a misapprehension of the evidence. His real objection is to the inference available on that evidence, an inference the trial judge ultimately drew and relied on. I will deal with this inference when I discuss Gilbert’s submission on the admissibility of the post-offence conduct evidence.
(v) The timing of the first kissing incident at the complainant’s home
[31] The trial judge summarized the complainant’s evidence as follows:
In its totality I don’t interpret her evidence to be that she got the accused out of the house a minute before she expected her father to be home. I interpret it as her having encouraged him to leave before the earliest time she thought her father might be home. As she said in her evidence, she thought that there was a buffer she was leaving between when the accused left and when her father would return.
[32] Gilbert submits that this summary misapprehended the complainant’s evidence because at one point in her examination-in-chief she said: “No, as I said, I was worried because I knew that my dad would be home any minute, and so we really just kind of rushed out the door.”
[33] I do not agree that the trial judge misapprehended the complainant’s evidence. As the Crown points out, in the complainant’s cross-examination, she said that, although she was uncertain when her father was supposed to be home, she would have left a “buffer zone”:
Q. Which means that on that evidence, your father could have walked in the door one or two minutes after you and Mr. Gilbert, fair enough?
A. Yes, but it’s not like I told Mr. Gilbert to leave -- like say, for example, and like because I don’t remember the time so I am just going to say, for example, my dad had said, “I will be home by 5:00,” it’s not like I would have said at 4:58, “Okay, you have to leave now because my dad is going to be home in two minutes.” I like to give myself some credit and say I am smarter than that, and that I would have left that buffer zone, so maybe at 20 to 5:00, I said, “Okay, you really have to go now because my dad could be home at any second,” and then I would have kicked him out.
[34] The trial judge’s summary of the complainant’s evidence on the timing of the first kissing incident is consistent with the complainant’s testimony in cross-examination. The trial judge did not misapprehend her evidence.
[35] Gilbert makes the related submission that not only would the complainant be unlikely to invite Gilbert inside her house and start kissing him minutes before her father was due home, but Gilbert would be unlikely to stay in her house to kiss her once she told him her father would be home any minute. In short, Gilbert contends that his denial of this kissing incident “was more consistent with common sense”, while the complainant’s account “strains credulity”.
[36] I do not accept this submission. The trial judge weighed the evidence and the competing inferences available from it and rejected the defence’s position. That he rejected the defence’s position does not mean he materially misapprehended the evidence. Nor does it justify appellate intervention.
[37] I would not give effect to this ground of appeal.
(2) Did the trial judge apply a harsher standard of scrutiny to Gilbert’s evidence than to the complainant’s evidence?
[38] The “harsher standard of scrutiny” argument is, at heart, an attack on a trial judge’s credibility findings. For that reason, it is a hard argument to make successfully. The Supreme Court of Canada and this court have repeatedly said that a trial judge’s credibility findings merit a high degree of deference on appeal.
[39] To succeed on a “harsher standard of scrutiny” argument, an “appellant must point to something in the reasons of the trial judge or perhaps elsewhere in the record that make it clear that the trial judge had applied different standards in assessing the evidence of the appellant and the complainant”: R. v. Howe (2005), 2005 CanLII 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59.
[40] Though a difficult argument to make, it has been successful in a few cases in this court. Howe itself was one such case. There, the trial judge found that both the complainant and the accused had deliberately lied in their evidence. The trial judge then used the accused’s deliberate lies to reject his evidence entirely while he treated the complainant’s deliberate lies much more benignly and eventually accepted her evidence. This court intervened and ordered a new trial.
[41] Can Gilbert similarly point to something in the trial judge’s reasons that shows he applied a harsher or stricter standard to Gilbert’s evidence than to that of the complainant – “that he used two different measuring sticks”? See R. v. Phan, 2013 ONCA 787, 313 O.A.C. 352, at para. 74.
[42] Gilbert’s overall position is that the trial judge unfairly criticized him for simply denying the allegations against him while he overlooked or discounted many inconsistencies in the complainant’s evidence. I do not agree with Gilbert’s position. For the reasons I will discuss, I consider the trial judge’s treatment of the evidence of Gilbert and of the complainant to have been fair and balanced, and I consider his credibility findings to be reasonably supported by the evidence. Thus, in my view, Gilbert’s harsher standard of scrutiny argument must fail.
(i) Scrutiny of Gilbert’s evidence
[43] Gilbert challenges both the trial judge’s general approach to his evidence and the trial judge’s treatment of specific aspects of his evidence.
[44] First, the trial judge’s general approach. On more than one occasion the trial judge noted that in his evidence Gilbert “tried to put himself in a much more favourable light” or that he “tailored his evidence … to put himself in the most favourable light”. Gilbert submits that the trial judge’s observations are not a proper basis to reject an accused’s evidence because all accused will try to cast themselves in a more favourable light than will their accusers.
[45] The trial judge’s general observation that Gilbert was trying to put himself in a favourable light was fair. The trial judge did not reject Gilbert’s testimony simply because he denied the allegations against him. He rejected Gilbert’s evidence in part because Gilbert tailored his denials to make him seem more respectful of the appropriate boundaries between teachers and their students. Yet the evidence from the Crown’s witnesses, which after careful consideration the trial judge accepted, directly contradicted Gilbert’s testimony. It was the tailoring of his evidence, not simply his denials, that raised concerns about his credibility.
[46] Second, Gilbert’s complaints about the trial judge’s treatment of specific aspects of his evidence. Gilbert especially complains about two aspects of the trial judge’s reasons: (1) how the trial judge treated Gilbert’s evidence about when his going away party took place and (2) how he treated the inconsistency between Gilbert’s and Petit’s evidence about how often they kissed.
[47] Gilbert said he left town on the Saturday following the last day of exams and that his going away party took place a day earlier. If this timing was correct, Gilbert would have had no opportunity to have kissed the complainant as she alleged. The trial judge, however, rejected Gilbert’s evidence:
The accused testified to a timeline which essentially left him no time to have had a lunch or walk in the park with [the complainant]. There is documentation to evidence when he rented the U-Haul and left town. There is nothing that documents the fact that the party took place the night before his departure as opposed to earlier.
[48] Gilbert submits that the trial judge effectively required him to provide additional documentation to disprove the allegations against him. I view this passage in the trial judge’s reasons differently. The trial judge was not faulting Gilbert for failing to produce documents. Nor was he requiring Gilbert to disprove the complainant’s allegations. The trial judge merely commented that the documents Gilbert did produce did not foreclose his opportunity to get together with the complainant and engage in the two kissing incidents.
[49] I have already discussed the inconsistency between Gilbert’s evidence and Petit’s evidence on how often they kissed. This inconsistency was not “minor”, as Gilbert contends: it was significant and further supported the trial judge’s concern about Gilbert’s attempt to distance himself from his relationship with his students.
(ii) Scrutiny of the complainant’s evidence
[50] Gilbert argues that the trial judge took a much more lenient view of inconsistencies in the complainant’s evidence. He points to the following inconsistencies or contradictions, which he says the trial judge minimized:
• The complainant contradicted herself on where in the park the second kissing incident took place: either on the bridge or under a tree.
• The complainant contradicted herself on whether she had French-kissed with Gilbert in the park.
• The complainant contradicted herself on whether touching of the breast, buttocks, or genital area took place in the park.
• The complainant contradicted herself on whether her clothes came off on her first visit to North Bay.
[51] The trial judge did not ignore these contradictions. He addressed each of them and found that they were accounted for by the passage of time or the complainant’s inability to focus on details during her police interview. In the trial judge’s view, these contradictions were relatively minor and did not affect his overall assessment of the complainant as a “responsible, conscientious witness endeavouring to tell the truth to the best of her recollection.” That the trial judge treated the complainant’s contradictions in this way lends no support to Gilbert’s argument that he scrutinized her evidence less harshly.
[52] I would not give effect to this ground of appeal.
(3) Did the trial judge err by admitting and then drawing unreasonable and speculative inferences from the similar act evidence?
[53] The Crown applied to admit the similar act evidence of Manon Petit. The defence opposed its admission. After a voir dire, the trial judge ruled the evidence admissible. He gave lengthy reasons for doing so.
[54] On the voir dire, Petit testified that Gilbert was her music teacher and band leader during her final year of high school, from September 1999 to June 2000. She had turned 18 at the end of that September. She described Gilbert as “young”, “cool”, “open”, and “full of energy”. Around Christmas, she let him know she wanted to have a physical relationship with him. At first he said “no” as she was a student. But then, around Easter, she kissed him. She testified that she initiated the kiss. She said that, from then until the end of the school year in June, she and Gilbert kissed almost every day.
[55] The trial judge ruled that Petit’s evidence was relevant to whether the actus reus of the offence – Gilbert’s kissing the complainant – had taken place. And he concluded that the probative value of this evidence far exceeded any prejudicial effect.
[56] In his reasons for conviction, the trial judge relied on the similar act evidence. He said the evidence showed that “three to four years previously [Gilbert] had a character trait or propensity to, on approximately 40 occasions, engage in sexual contact with a student when the student offered it or asked for it.” He rejected the suggestion that this character trait had changed. He said that, if a teacher genuinely regretted having a sexual relationship with a student, the teacher would take steps to prevent it from happening again. But Gilbert never did.
[57] A trial judge’s similar act ruling is a discretionary ruling and is ordinarily entitled to deference on appeal. An appellate court should only intervene where the ruling is unreasonable or where it reflects an error in principle.
[58] Gilbert argues that the trial judge’s ruling admitting the evidence was unreasonable both because it was based on a misapprehension of the evidence and because the complainant’s allegations were “starkly different” from Petit’s. And he argues that the trial judge erred in principle when he used this evidence for a purpose different from the purpose for which it was admitted. I do not agree with Gilbert’s arguments. I will address each in turn.
(i) Alleged misapprehension of the evidence
[59] Gilbert claims that the trial judge misapprehended the evidence in two ways:
• The trial judge said that “[i]n both cases, the sexual aspect of the relationship with the students did not progress beyond kissing, which is itself quite unusual.” Gilbert says that, on the complainant’s evidence, the sexual aspect of the relationship did progress beyond kissing to sexual intercourse; in contrast, Petit said Gilbert refused to have sexual intercourse with her.
• The trial judge said that “[i]n both cases, the kissing and hugging continued as long as the two students were in proximity and available.” Gilbert says that, on the complainant’s evidence, she continued to have contact with Gilbert after she graduated and even had sex with him two years later; in contrast, Gilbert permanently ended his relationship with Petit before the end of the school year.
[60] The trial judge did not misunderstand either piece of evidence. On the first, the trial judge referred to the sexual aspect of the relationship with the students. In other words, he correctly understood that while each girl was a student, her relationship with Gilbert never went beyond kissing.
[61] On the second piece of evidence, the trial judge correctly focused on the proximity and availability of each student. The kissing with the complainant ended when Gilbert moved away to Oman. It did eventually resume, but only when the complainant was in university and able and willing to visit Gilbert in North Bay. The kissing with Petit ended when Gilbert was alerted about their relationship by an anonymous email and by another teacher. After this alert, Petit was, in effect, no longer “available”.
(ii) The “starkly different” allegations
[62] Gilbert contends that the complainant’s allegations were so different from Petit’s testimony that the trial judge ought not to have admitted the similar act evidence. Gilbert points to the following differences:
• When Petit kissed Gilbert, she was an adult and thus their sexual contact was legal. The complainant, on the other hand, was a minor.
• Petit was outgoing and confident; the complainant was shy and depressed.
• Petit repeatedly kissed Gilbert at school and their kissing stopped during the school year. The complainant kissed Gilbert on only two occasions while she was a student but then continued to have contact and even sex with him after she graduated.
• Petit pursued Gilbert relentlessly and he repeatedly turned her down before finally agreeing to kiss her. On the complainant’s evidence, however, Gilbert kissed her the first chance he got.
• Petit kissed Gilbert on school property; the complainant kissed Gilbert at her parents’ home and in a public park.
• The kissing between Petit and Gilbert occurred over three years before the kissing between the complainant and Gilbert.
[63] In the face of these differences, Gilbert submits that the only material similarity between the complainant’s evidence and Petit’s evidence was that both witnesses were his students. Gilbert contends that, in a case where the acts complained of otherwise differ, a student-teacher relationship by itself does not establish sufficient similarity to justify admission of similar act evidence.
[64] I do not agree with Gilbert’s contention. What admissibility requires is a “persuasive degree of connection between the events of alleged similar acts and the offence charged in order to be capable of raising the necessary inferences”: R. v. J.M., 2010 ONCA 117, 73 C.R. (6th) 78, at para. 91. Importantly, the similarities need not lie in the distinctive nature of the acts themselves, but “in the circumstances in which those acts occurred”: J.M., at para. 91.
[65] Here, the similar circumstances in which the kissing of Petit and the kissing of the complainant occurred showed the required “persuasive degree of connection” and strongly supported the trial judge’s ruling. The trial judge noted the following persuasive similar circumstances:
• The complainant and Petit were music students and Gilbert was their teacher.
• Both the complainant and Petit were in their late teens, 17 and 18 years of age respectively, when the kissing took place.
• In both cases, the kissing occurred when the student-teacher relationship was soon to end. In the complainant’s case because Gilbert was going to Oman; in Petit’s case because she was about to graduate.
• In both cases, the student initiated the kissing.
• In both cases, the sexual relationship did not extend beyond kissing while Petit and the complainant were students.
[66] Second, the trial judge considered most of the differences listed by Gilbert. For example, he addressed a principal difference the defence relied on: it was legal for Gilbert to kiss Petit but illegal for him to kiss the complainant. The trial judge acknowledged the difference, but observed, reasonably:
Again, while acknowledging this is a difference, in both cases the evidence would indicate that Mr. Gilbert was engaging in conduct which would expose him to severe sanctions. Even in the case of Ms. Petit, he would be subject to the loss of a job, his professional standing, and the ability to continue his teaching career.
[67] The trial judge also addressed the difference in where the kissing took place – on school property with Petit and off school property with the complainant. He reasonably found that “this is a distinction without much of a difference” since the kissing of Petit started during the school year, while the kissing of the complainant started after the school year had ended.
[68] The trial judge found that the differences Gilbert relied on at trial – which he also relied on in this court – did not undermine the “significant probative value” of the similar act evidence in the light of the “relatively high degree of connectedness between the evidence of the complainant on the charged offence, and the proposed similar fact evidence.”
[69] This finding is reasonable and draws support from the reasons of Binnie J. in R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 60:
The judge’s task is not to add up similarities and dissimilarities and then, like an accountant, derive a net balance. At microscopic levels of detail, dissimilarities can always be exaggerated and multiplied. This may result in distortion. At an excessively macroscopic level of generality, on the other hand, the drawing of similarities may be too facile. Where to draw the balance is a matter of judgment. [Citations omitted.]
[70] In other words, the assessment of whether similar act evidence should be admitted is qualitative not quantitative. Thus, I conclude that the differences or dissimilarities noted by Gilbert do not justify interfering with the trial judge’s ruling.
(iii) The purpose for which the trial judge used the similar act evidence
[71] Gilbert submits that although the trial judge admitted the similar act evidence of Petit for a permissible purpose – to assess whether the kissing alleged by the complainant took place – he then used it for a quite impermissible purpose – to impugn Gilbert’s character. Gilbert relies on the passage in the trial judge’s reasons I quoted earlier:
The similar fact evidence demonstrates that three to four years previously the accused had a character trait or propensity to, on approximately 40 occasions, engage in sexual contact with a student when the student offered it or asked for it.
[72] I do not agree with this submission. The trial judge cautioned himself that he could not use Petit’s evidence as evidence of Gilbert’s bad character:
The evidence of the previous year student is also a form of discreditable conduct. I caution myself that it cannot be used to reason that the accused is a bad person and therefore more likely to have committed the offence charged or that the accused is a bad person who should be punished for conduct not before the court.
[73] The trial judge properly limited his use of the similar act evidence to showing that Gilbert had a “character trait”, or a specific propensity, to “engage in sexual contact with a student when the student offered it or asked for it.” That character trait, which the trial judge found had not changed, was relevant to his determination that the kissing had taken place.
[74] For these reasons, I would not give effect to this ground of appeal. The trial judge’s ruling on the similar act evidence was reasonable and did not reflect any error in principle.
(4) Did the trial judge err by admitting and then drawing unreasonable and speculative inferences from the post-offence conduct evidence?
[75] At the beginning of the trial, the Crown applied to admit post-offence conduct evidence. The defence objected to its admission. The trial judge ruled the evidence admissible and later gave brief oral reasons for his ruling.
[76] The complainant testified that, after Gilbert returned from Oman, she twice visited him in North Bay. By then she was 18. On the first visit, toward the end of 2004, the two kissed but did not have sex. On the second visit, in early 2005, the two kissed and had sexual intercourse.
[77] Gilbert admitted that the complainant visited him in North Bay but said it was only once. He testified that she had been calling him often to talk about her depression and that he agreed to let her come and visit him. While there, she tried to kiss him. He kissed her for a few seconds before pulling back and telling her they had to stop. He denied having sex with her.
[78] Both Gilbert and the complainant agreed that, after the North Bay visit or visits, their contact petered out. They saw each other only once or twice and there was no sexual contact. Eventually, they drifted completely apart.
[79] The trial judge admitted the complainant’s evidence of the North Bay visits for three reasons, the first two of which were directed at assessing the complainant’s credibility:
• The evidence was relevant to assessing the significance of the complainant’s delay in reporting the kissing.
• The evidence was relevant to assessing whether the complainant had any animus towards Gilbert, which would provide a motive for her to lie.
• The evidence was relevant and probative “to appreciating the full trajectory of the relationship” – that is, “whether or not this continuing relationship simply arose out of thin air after the return from Oman or whether it is more logical to regard it as a progression of the fact that the two had a pre-existing romantic relationship.”
[80] In his reasons for conviction, the trial judge relied on and reiterated the relevance of this evidence:
Turning to the Northern Ontario visit, this is after-the-fact conduct, and in a previous ruling I discussed the relevance of this evidence and I use it for the purpose there described. The evidence of [the complainant] that there were two visits to Northern Ontario and that they followed the logical progression of a romantic relationship makes much more sense to me than the evidence of the accused that, living in a one bedroom apartment, he invited [the complainant], who he knew to be troubled, to travel a long distance to stay with him for four days.
[81] On appeal, Gilbert makes two submissions. First, the trial judge’s conclusions about the relevance of this evidence were speculative. It made as much sense for an adult woman to visit a former teacher with whom she had a close but platonic friendship as it did for a teacher to be in a progressive romantic relationship with a former student. As the reasonable inferences to be drawn from this evidence were equivocal, the evidence can have no probative value.
[82] I do not agree with this submission. The trial judge was justified in concluding that the post-offence conduct evidence had significant probative value. It had probative value because its absence “would leave the court with an incomplete and therefore distorted narrative regarding the events leading to the report to the police and on the subject matter of whether there was any indication of animus.”
[83] Also, the trial judge could reasonably infer from the post-offence conduct evidence that Gilbert and the complainant kissed when she was in high school and he was her teacher. Gilbert would be more likely to welcome her to visit him in North Bay if they had a previous romantic relationship. That another reasonable inference was available does not require exclusion of the evidence. Post-offence conduct evidence, like other circumstantial evidence, is admissible if it is relevant and if its prejudicial effect, if any, does not outweigh its probative value. This court said in R. v. Salah, 2015 ONCA 23, 319 C.C.C. (3d) 373, at para. 227:
Items of circumstantial evidence may give rise to more than one reasonable inference. This does not call for their exclusion. The threshold of relevance is met provided the evidence can reasonably show the fact sought to be inferred is slightly more probable than it would be without the evidence. [Citation omitted.]
Here, the evidence was relevant and probative for precisely the reasons set out by the trial judge.
[84] Gilbert’s second submission on why the post-offence conduct evidence ought to have been excluded is that it was highly prejudicial. It created a “trial-within-a-trial” on whether Gilbert and the complainant had sex, and it risked so-called moral prejudice or prohibited bad character reasoning.
[85] I do not accept this submission either. The trial judge expressly rejected the trial-within-a-trial argument. He found that the complainant’s brief evidence about North Bay would not present “any real risk of distracting the focus from the matters in issue to a collateral issue.” This finding was reasonable.
[86] Finally, the trial judge did not use the post-offence conduct evidence as evidence of Gilbert’s bad character. Instead, he used the evidence to assess Gilbert’s credibility, and, in particular, to reject his explanation that he had only platonic reasons for agreeing to let the complainant to visit him in North Bay. The trial judge’s use of the evidence for this purpose was proper.
[87] I would not give effect to this ground of appeal.
D. Conclusion
[88] I would dismiss Gilbert’s conviction appeal.
Released: December 30, 2015 (JL)
“John Laskin J.A.”
“I agree J. MacFarland J.A.”
“I agree Paul Rouleau J.A.”