Her Majesty the Queen v. Trachy

Citation: 2019 ONCA 622 | 147 O.R. (3d) 250

Court: Court of Appeal for Ontario

Judges: Doherty, Benotto and Huscroft JJ.A.

Date: July 23, 2019

Case Summary

Criminal law — Sexual offences — Accused requiring his young female violin students to remove their bras and touching their breasts while measuring from collarbone to nipple — Accused charged with sexual interference, sexual exploitation, sexual assault and indecent assault — Accused testifying that he was motivated solely by desire to ensure that students had properly fitted shoulder rest for violin — Trial judge acquitting accused on all counts on basis that touching was not for sexual purpose — Crown's appeal allowed in part — Sexual purpose not required element of sexual assault or indecent assault — Trial judge conflating issue of touching for sexual purpose with that of touching in circumstances of sexual nature — Trial judge failing to consider whether complainants' sexual integrity was violated by accused's touching of their breasts — Acquittals for sexual assault and indecent assault quashed and convictions entered.

The accused, a violin teacher, was charged with sexual assault, indecent assault, sexual interference and sexual exploitation. He required his young female students to undo their blouses and remove their bras, touched their breasts and measured from the top of the collarbone to the nipple. On occasion, he asked the students to play the violin while disrobed. The accused did not deny that the touching occurred but testified that he was motivated solely by a desire to ensure that the students had properly fitted shoulder rests for their violin. The trial judge found that the touching was not for a sexual purpose and acquitted the accused on all counts. The Crown appealed.

Held: The appeal should be allowed in part.

While a sexual purpose is a required element of sexual interference and sexual exploitation, it is not a required element of sexual assault or indecent assault. Indecent assault and sexual assault are assaults committed in circumstances of an indecent or sexual nature such that the sexual integrity of the victim is violated. They are general intent offences that do not require proof of sexual purpose or sexual gratification on the part of the accused. The trial judge conflated the issue of touching for a sexual purpose with that of touching in circumstances of a sexual nature. He failed to consider whether the complainants' sexual integrity was violated by the accused's touching of their breasts. A reasonable observer viewing the accused's admitted conduct in touching and manipulating the breasts of young women would perceive a sexual context to the conduct. The acquittals on the sexual assault and indecent assault charges were quashed, and convictions entered. The acquittals on the charges of sexual interference and sexual exploitation were affirmed.

Appeal

APPEAL by the Crown from the acquittals entered by T.J. Carey J., sitting without a jury, 2018 ONSC 2666 (S.C.J.).

Counsel:

• John Patton, for appellant
• Matthew R. Gourlay, for respondent

The judgment of the court was delivered by

Judgment

[1] BENOTTO J.A.:

The Crown appeals the respondent's acquittal of 44 counts of sexual offences arising from his conduct while teaching violin to young girls.

[2]

The Crown alleged that during violin and viola lessons, the respondent required his young female students to undo their blouses and remove their bras. He touched their breasts and measured from the top of the collarbone to the nipple. On occasion he asked the students to play the violin while disrobed. Twenty-one women testified to this effect. To a large extent, the respondent acknowledged his conduct, but testified that he was motivated by a desire to ensure that his students had properly fitting shoulder rests for the violin.

[3]

The respondent was charged with sexual assault, indecent assault, sexual interference and sexual exploitation. After a 13-day trial, the trial judge found that the touching was not for a sexual purpose and acquitted the respondent of all charges including those for which sexual purpose is not an essential element. Sexual purpose is a required element of sexual interference and sexual exploitation. It is not a required element for sexual assault or its predecessor indecent assault.

[4]

I would allow the appeal in part. I would set aside the acquittals on the sexual assault and indecent assault charges and enter convictions in their place, but uphold the acquittals on the sexual interference and sexual exploitation charges.

Facts

[5]

The respondent is now 73 years old. He began teaching the violin as a teenager in 1960 and continued up until his retirement in 2009.

[6]

The underlying events with respect to the charges now before the court were alleged to have taken place between 1971 and 1993.

[7]

Twenty-one former female students testified. It was agreed that all of the counts against the respondent related to his conduct in measuring his female students for rests that support the violins.

[8]

The respondent testified that the shoulder rests were helpful to his violin students and that measuring their bodies was necessary to achieve a proper fit. He acknowledged that he had his female students undo their blouse on the left side and remove the bra. He then would use a ruler to measure from the top of the collarbone to the nipple and from the jaw to the collarbone. He would also measure the underside of the breast. In some cases, he would ask his female students to play disrobed to ensure that the rest was properly fitted. He denied any sexual intent in the measurements and said it did not give him sexual gratification. He measured only his female students, not the males. He did not measure his daughter although she was a student of his.

[9]

He testified that after he was charged in 1991, he took the door off his music room and no further measurements of students were ever made.

The Trial

The Evidence

[10]

The trial judge's reasons do not address the detailed evidence of the complainants in relation to the sexual assault and indecent assault charges. This evidence grounds the charges so I summarize the complainants' testimony followed by that of the respondent.

Summary of Each Complainant's Testimony Followed by the Respondent's

(1) M.A. (count 30 — indecent assault)

[11]

M.A. had lessons with the respondent from age 12 to 16. At her initial lesson he told her that the next time he would measure her for a shoulder rest "in such a way that my breast would be exposed"; specifically, "he would have to measure my bare breast". She had "dread in the car on the way there" as she was just developing, and she was the only person who had ever seen her breasts. The respondent opened her shirt about four buttons down, completely exposing her bare breast to his view, and using a ruler he "measured my left breast . . . from the collarbone down to the nipple". His hands touched her breast "as he was manipulating the ruler".

[12]

The respondent testified that he did not take issue with what M.A. "said about what happened".

(2) E.W. (count 42 — sexual assault)

[13]

E.W. took violin lessons from the respondent between the ages of eight and 16. When she was 12 or 13, he said "You're developing now, and I need to measure you for a rest." He gave her a shoulder rest and she played. He then had her remove her sweater while he examined her left breast, touching her bare skin. He commented about red marks and watched her play in her bra. Sometimes he would take a ruler and measure down the length of her breast to her nipple, even though shoulder rests did not extend that far. These incidents happened repeatedly — approximately two dozen times over two years. She also spoke about an incident when he tickled her waist as she was walking up the stairs.

[14]

The respondent agreed with her evidence regarding tickling and acknowledged taking the measurements but said he did not remove "all of her clothing".

(3) N.D. (count 31 — indecent assault)

[15]

N.D. began her violin lessons with the respondent when she was 12 or 13 years old. He asked her to wear a buttoned shirt with a bra which unclasped at the front. He said his theory was that if she was measured without clothing, "the shoulder rest [would] fit my body no matter what I wore". She was enticed by his promise of a personalized engraved shoulder rest. The following week, he asked her to completely remove her shirt and bra. She felt exposed and cold. He then measured with a ruler from her clavicle "down to my nipple and then he went around the side to my nipple, and then he lifted up my breast and he put the ruler underneath and measured from my rib, ribcage to my nipple". He actually "lifted my breast up to sit on the ruler". Both breasts were exposed.

[16]

The respondent agreed that he asked her to take off her blouse to expose her left breast. He agreed that he measured her from her clavicle to her nipple.

(4) K.B. (counts 36 and 37 — sexual assault; count 38 — sexual interference; counts 39 and 40 — sexual exploitation)

[17]

K.B. began taking violin lessons with the respondent at the age of seven. Once her breasts developed at age 14, he began touching her. It continued monthly. The respondent would put his left hand on her chest underneath what she called a "chest rest" while he used his right hand to make adjustments. On occasion while he was checking he would also measure. This involved him unbuttoning her shirt and using a ruler to measure "the distance between my chest, my collarbone and my chest . . . [t]o the nipple". She wore a bra but his hands would come in contact with her breast as he measured "from the collarbone to my nipple and then from under". While doing so he would "cup" her breast.

[18]

The respondent agreed that he measured her but said it was done over her clothing, once every two months, and that it did not involve "cupping".

(5) N.D. (counts 2 and 3 — sexual assault; count 4 — sexual interference; count 5 — sexual exploitation)

[19]

N.D. took violin lessons from age 12 to 15. Shortly after she started, the respondent made a mould for a shoulder rest. She was required to remove her shirt and leave it hanging at her waist. She was not yet developed enough to be wearing a bra. A "casting agent" was placed over her collarbone and left shoulder. It hardened and then was removed ostensibly to create a shoulder rest. This happened "more than 10 times" which seemed "abnormal". She was required to unbutton her shirt or remove it if it did not have buttons. The respondent would then touch her breasts by the "patting of his fingers" which pressed into her breasts "mostly on the outside of my left breast". As he touched her breasts, he would say things to stroke her ego. He would also ask her "to play with my shirt off and sometimes he would sit behind me at his desk and I was instructed not to turn around". "Sometimes it would be quite brief and other times it would be more extensive."

[20]

The respondent did not remember N.D. being a student of his. When asked if he touched her in the way she described, he replied "No, I don't remember her." However, in general, the respondent acknowledged making moulds for approximately four or five of his students. This involved placing the mould on the student's body, patting it down, forming it to the left side and shaping it to her skin.

(6) F.K. (count 1 — indecent assault)

[21]

F.K. took violin lessons from the respondent between ages nine and 16. She said he asked her to "undo my blouse and expose my breast. I was surprised when I was asked not to wear a bra because it was easier to do the fittings." He would measure her from collarbone to her left shoulder, "and then down the front of me to the end of my breast". He would "do this measurement either with his hands or [with] a small ruler", and sometimes the breast would be exposed. During this process he would also have her play the violin with her breast exposed and walk around watching her. He explained that he was looking for marks on her body, even though when she played the instrument, it was not "held down low enough so that it would engage the breast area". She also had specific memories of a number of events. The first was when, as the fitting occurred, he told her to look at the ceiling. The second one was when he said "Good thing I'm ambidextrous" when he switched the ruler to his other hand. The third was when he used his forefinger or thumb to rub "the end of my nipple" saying "I want to see where the end of you is". He also used the ruler such that it rubbed her nipple. The last specific memory was arriving to see a number of shoulder rests laid out and the respondent saying she needed to have a fitting for each one. She felt "this dread about what I knew was going to be happening". She continued:

By the end of the lesson I had my shirt off on the left side, so I was naked on the left side. I remember playing and him walking around me and one of the reasons why this memory is so distinctive to me is I remember the shirt that I was wearing. It was a blue shirt. It was, at that time in my life my favourite shirt and I was extremely upset when I went home, and I threw out the shirt.

[22]

F.K. questioned what was occurring as "neither the violin nor the rest, the shoulder rest, touched my left breast or my left nipple and I did not understand why he was measuring there". The respondent agreed that he measured her, but denied most of the specific events she testified about. He did not recall if her blouse was undone, but did recall that it was on her body.

(7) F.B. (count 32 — indecent assault)

[23]

F.B. was recruited by the respondent to learn to play the viola as her brother received violin lessons. She ended up getting lessons for free. Shortly after they commenced the respondent said she had to be measured for a shoulder rest and she was required to wear a blouse which opened at the front. When the measurement occurred she opened her blouse on request and he took a wooden ruler "and proceeded to place it on my skin to measure from my left clavicle down to the tip of my nipple . . . he put the ruler inside the bra and pulled the bra forward to be able to visualize the nipple". A couple of lessons later, "not satisfied with the measurements he had gotten the first time . . . he suggested to me that he really felt it was very important" to do it again. She resisted as in the interim she had told her mother who advised her to not "put yourself in a position where he can do that again". However, he ended up being "a little more aggressive about doing it", and "he just kinda, you know, took my, my top and moved it to where he wanted it and he actually put his hand underneath my breast to put the ruler underneath the breast to measure from the rib cage out to the nipple". In doing so, "he cupped my breast with his hand from within my bra". This occurred even though the viola rest did not touch her breast.

[24]

The respondent agreed that he told her to unbutton her shirt. He stated that he used a wooden ruler and measured her from her clavicle to her left nipple. He denied cupping her breast.

(8) A.G. (count 20 — sexual assault)

[25]

A.G. took both viola and violin lessons from the respondent. During viola lessons, when she was about 12, as she started to develop, he said "he would need to, from time to time, have me expose my left breast and he would need to take some measurements". She tried each time to wear the same pink top that buttoned up the front. He would ask her to unbutton it, then take her bra strap off her left shoulder and measure with a ruler "from my clavicle to, my nipple on my left breast". Sometimes he would use his hand to "push against the breast and watch it react". He also sometimes asked "me to play something. So, then I would, move to the music stand and play something and he would sit at his desk and watch me play with, my breast exposed." This behaviour occurred at most of her weekly sessions as she remembered "that for a period it felt like it was the rule, like it was going to happen most of the time".

[26]

The respondent agreed that he measured her.

(9) S.K. (count 41 — indecent assault)

[27]

S.K. took lessons from the fall of 1975 to the spring of 1976, when she was 15 and well developed in the breast area. A single incident occurred which caused her to end the lessons. The respondent "made a pretense of needing to measure me for something related to my violin and got out a ruler", saying "the essential distance was between my collarbone and my nipple". She was required to open her blouse and he "put the ruler into my bra so he could get that measurement". She felt creepy, bizarre, dirty, ashamed, stupid and gullible.

[28]

Although the respondent had no memory of S.K. he acknowledged that there were situations when he measured under a student's breast using a ruler to determine the size of the breast.

(10) G.D. (count 19 — indecent assault)

[29]

G.D. took violin lessons from age 11 to 14. As her breasts started to develop at age 12 or 13 the respondent told her she needed a shoulder rest or a larger violin and said he was going to measure her. Without further discussion "[h]e opened my shirt and put the ruler down my shirt and put his hand down my shirt. And his hand was on my left breast and his fingers were on my nipple moving the ruler to my nipple."

[30]

The respondent agreed that he examined and measured her left breast.

(11) E.P. (count 33 — indecent assault)

[31]

E.P. took lessons at 16 years old. The respondent asked her to unbutton her blouse. She unbuttoned a few buttons on her own before he opened her blouse and commenced measurements. He used a ruler, measured her collarbone and then "my left breast so along the side, and then he would gently lift my very small breast and put the ruler underneath and sort of be making measurements to how far the nipple came out on the ruler . . . he was also sort of lifting the nipple and pulling it out along the ruler". He measured her right breast too, commenting that there was a difference in the size. These types of measurements happened for six or seven lessons with the focus usually being on her left breast. But, "both breasts would be exposed whether he was touching the right or not, the shirt was completely opened during these measurements". She felt very uncomfortable being "kind of sick to my stomach".

[32]

The respondent did not recall measuring E.P., although he said her evidence was possible.

(12) J.S.F. (counts 23 and 24 — sexual assault; count 25 — indecent assault; counts 26 and 27 — sexual exploitation)

[33]

J.S.F. commenced violin lessons with the respondent at nine years of age. She also learned to play the viola commencing at around age 13 or 14. When she was required to have a "measurement" he would lock the door. The idea, she was told, was to "help women hold their instruments up higher". She was told to wear a buttoned shirt which she undid on request, exposing her left breast. He then measured her "bare breast" by placing "a ruler underneath of my breast and held the breast in place on top of the ruler". There was also "an epoxy or a substance used for a mould that was warmed up that was placed on my chest to take a mould of my chest". The mould went across her collarbone down her breast to her nipple. The moulding occurred more than once while the measurement occurred at least ten times. Embarrassed, she "would look away and wait for it to be finished". She remembered "there being one or more times where I would hold the violin up so that he could see the position of the rest on my bare chest". While measuring "he would place his hand on my breast and just sort of shift it so that it was placed on the ruler and he would hold the breast in place". At the time she didn't know it was wrong, only figuring it out in her early 20s. As she struggled through substance abuse issues, she ended up calling the respondent's home on several occasions with the intention of taking him to court and suing. During her cross-examination she was confronted with audio recordings of some of those telephone calls.

[34]

The respondent agreed that he used his hands and a ruler to measure J.S.F. He also agreed that he made a mould.

(13) K.K. (count 49 — sexual assault)

[35]

K.K. commenced viola lessons with the respondent at age 12 or 13. On her first lesson, the respondent undid the buttons on her blouse. With her breast exposed in a training bra she froze in shock and stared at a piano in the room. She heard clicking of adjustments and then felt him patting around her collarbone followed by patting "around the side of my breast, under my breast, over top of my breast . . . over the nipple". He used a ruler, as well, between stages of patting and used his fingertips. She immediately questioned the behaviour knowing "it wasn't normal", as "I don't know what the rationale was for undressing or unblousing me".

[36]

The respondent agreed that he "patted" around her collarbone and breast, used a ruler and did it in the way she described.

(14) M.B. (counts 34 and 35 — sexual assault)

[37]

M.B. commenced violin lessons with the respondent at age nine. At around age ten she transitioned from a sponge to a shoulder rest. She was in a training bra when the measurements occurred:

I would have to unbutton my blouse and pull my bra strap down over my shoulder. And at that point in time he would measure from my collarbone down to my nipple. And he would place his hands underneath my breast and around the sides of my breast and he would -- his hand would cover my breast and touch my chest area.

[38]

She recalled that he had used a hard item, which bothered her nipple. This happened routinely, even though her shoulder rest was "never adjusted". She stopped lessons at age 16. On one occasion, around the same time the measurements started, he took "a piece of mould he had to heat and [placed it] along her collarbone". It was like putty and was used with her shirt and bra on.

[39]

The respondent agreed that he examined her left breast.

(15) K.O. (count 43 — indecent assault (under the last name Z. which was her married name))

[40]

K.O.'s parents were told that she would be measured for a shoulder rest, which was, in the respondent's words, "a bit of a rough process". He separately implied to her that she needed to wear something that would unbutton. This caused her to be uncomfortable: "a voice in me that it just -- it didn't make sense". The next two lessons she did not comply with his wardrobe requests. The first occasion he had a "look on his face, he was a little angry". The second occasion he closed the door and told her to remove her top. When she had, he approached and slid down the strap of her camisole on her left side. She looked away, numb, feeling "the ruler underneath my breast. I remember him touching the top, putting the ruler on me and feeling how cold it was . . . he measured me right to the, right to the nipple." His hand was underneath her breast as the ruler went "just straight down to my nipple . . . I just remember the warmth of his hand." A short time later, when the "small" shoulder rest was in, she was "shocked that I had to take my clothes or my shirt off, and I was shocked that my breast was even touched or exposed or measured when it clearly had nothing to do with the shoulder rest".

[41]

The respondent did not recall measuring this student.

(16) A.S. (counts 12 and 13 — sexual assault; count 14 — sexual interference; count 15 — sexual exploitation)

[42]

A.S. started violin lessons with the respondent in kindergarten at age five and continued through high school to age 19. When she was around 11 or 12, as her breasts began to develop and she started wearing a bra, he raised the issue of measurement for a shoulder rest. The result was that "he would remove my undergarments, my shirt, and would often need to play without any upper clothing on so he could observe me playing with it properly. He also took a mould of my breast to make sure that it, according to him, would fit the rest properly." The measuring of her left breast and playing without upper clothes on happened frequently, but not every lesson. She "would remove my upper clothing and I would play the majority, if not all of my lesson without any upper clothing on and he would be, either behind his desk observing me play or he would be beside me touching my breast, measuring my breast" with a ruler or his hands. In addition, "he would measure different parts of my breast, the side, the front, underneath. He would also touch it with his hands, move it around. He would move it on the ruler, move it off the ruler." He measured from "my collarbone to my nipple" and the front section of her breast. He would come up and touch her in this fashion a few times during any given lesson. This occurred even though the position of the shoulder rest was several inches above her breast and nipple. The moulding only occurred once. The behaviour ended around 1992 or 1993. She was "not comfortable with it then. I am not comfortable with it now."

[43]

The respondent agreed that he touched her left breast and moved it around to facilitate the taking of measurements. He denied touching her on more than one occasion during any given lesson.

(17) S.G. (counts 6 and 7 — sexual assault; count 8 — sexual interference; count 9 — sexual exploitation)

[44]

S.G. took lessons from approximately age ten to age 16, ending in June of 1992. She recalls being measured together with her sister, J.G., sometimes prior to her individual lessons and sometimes in the middle of playing. "He was using light fingertip touching, pushing, I guess, under, under our breasts and slowly moving up to the breast and under the chin area." Occasionally, he touched her nipple. "I hated every moment of it." She viewed it as "sexual in nature and that's what made me feel it was inappropriate".

[45]

The respondent agreed that he measured her but did it over top her clothes, and never in the presence of her sister.

(18) H.S. (counts 16 and 17 — sexual assault; count 18 — sexual exploitation)

[46]

H.S. received violin lessons from the respondent from age eight until she went off to university. Her breasts developed early. In her early teens, around age 13 or 14, the respondent told her she was to be measured to fit her body type and that a mould would be taken -- "my mom had given permission, as far as I knew to fit me with a rest". His request to her was more specific, that she attend with a blouse that could be undone and a bra that opened at the front "so that my chest was bare or exposed, I would have to unbutton my blouse, undo my bra . . . Because it was bare and exposed, he would put the ruler down all the way from my shoulder to my nipple area. There was often another piece of plastic that held my breast like underneath my breast." On occasion she "felt so uncomfortable that I thought if I just wore a bra and a tight t-shirt that that would suffice". But on some of those occasions he just proceeded to pull open her t-shirt, pull the bra, then "put the ruler down my top all the way to my nipple". She had a vivid recollection of a time it occurred at her home when her parents were at work. She was "asked to go upstairs to my bedroom to take off my bra and come down without a bra on with my blouse unbuttoned down the front", which led to the respondent measuring "once again with a ruler, shoulder to nipple". The moulding occurred many times although she never received a rest as a result of the process. The material was warmed up and, after she had undone her blouse and bra, placed on her shoulder "down past her nipple".

[47]

The respondent agreed that he measured her eight to ten times.

(19) J.V. (count 28 — indecent assault; count 29 — sexual assault)

[48]

J.V. commenced violin lessons with the respondent at age 23, after having given birth to her first child. She did not do so for long, but then she had further sessions after her second child. Shortly after the lessons started the respondent counselled her to be measured for a customized shoulder rest. He warned the contact would be intimate involving unbuttoning her blouse and exposing her left breast, the measuring to "be done from the nipple to the shoulder". As "everything was new" to her she "took his word". The measuring happened more than twice. He used a ruler "at the end of the breast, like the nipple, and up to the shoulder. He came up and measured and definitely touched my nipple." Then, she recalled, "I'd be playing with my left breast exposed and he would watch, see how much I had to move the violin or adjust." When she returned after her second child was born, she went through the process again as he said her body had changed. At the time she thought it was a clinical experience she had to get through. "When I think about it now, no, because I don't know that the breast has any bearing on other than the very upper portion of your breast where the rest would sit upon your chest." She eventually ended the measurements by saying "I have a shoulder rest, I think we can make it work. I don't play in the nude, so my clothing, my bra, everything changes every time I play. So, we will not do the measuring."

[49]

The respondent agreed that he told her she would have to expose her left breast. He agreed that he measured her with a ruler, but added that J.V.'s husband was present in the room during the measurement.

(20) J.G. (count 10 — sexual assault; count 11 — sexual exploitation)

[50]

J.G. is S.G.'s younger sister. She took violin lessons from the respondent between the ages of seven and 14. After the onset of puberty, she and her sister were told they needed to have a "bar" to hold the violin and they would be measured for it. The measurements happened a number of times while J.G. and S.G. were in the same room: "he walked over to us and he would use like a kneading or probing manner in a semi-circular fashion". Over her clothing he would touch the outside or underside of her breast with his hands and fingers. He likely only touched the left breast but he did not use any measuring device. She was visibly upset and felt awkward, she "hated it", but "just endured" owing to his status and her family dynamics.

[51]

The respondent agreed that he measured her, but did so over her clothes without any kneading or probing motions. He also denied measuring J.G. in the presence of her sister.

(21) J.K. (count 21 — indecent assault; count 22 — sexual assault)

[52]

J.K. started violin lessons with the respondent at age five and continued until she was 11 or 12. Measuring started at puberty at around age nine. She could not recall if any measuring tape or ruler was used. The respondent would run his hands under the violin under the shoulder rest touching the middle of her breast over her clothes. He would push her breast with his fingers. He would also move her shirt to the side. It happened frequently, but not every lesson. She felt very uncomfortable: "it's an area of the body that shouldn't be touched". She didn't tell because "as a child I thought I would probably get in trouble for letting it happen".

[53]

The respondent agreed that he ran his hand along her chest, and used a ruler to measure her from her collarbone to her nipple.

The Expert Evidence

[54]

Jerzy Kaplanek was qualified to give opinion evidence in the area of music teaching for violin and viola, specifically the use of rests and other supports and the need for measuring or touching the student in the course of fitting for such a device.

[55]

Mr. Kaplanek is a musician, performer and associate professor of Music at Wilfred Laurier University. He specializes in violin and chamber music. He has been teaching violin for 25 years.

[56]

He described the three points of connection between the musician and the violin: the jaw, collarbone/shoulder and the fingers. He explained that there is no need to take measurements. In particular, there is no need to measure students from the collarbone to the nipple with respect to fitting for a rest. There is no need to touch a student's breast. The rest would not go as far as the breast in any event. He has never heard of a theory to measure students without clothes. There is no reason to observe students with a breast exposed.

[57]

In short, in Mr. Kaplanek's opinion there was no pedagogical reason to do the measuring, the touching or the undressing.

Similar Fact Application

[58]

During the trial, the Crown brought an application to use the evidence of each of the individual complainants as similar fact evidence to bolster the overall credibility of their allegations.

[59]

The Crown wished to use each count to demonstrate a pattern of behaviour to show that it was more likely that the behaviour occurred, and that it was sexually motivated. The defence position was that this was unnecessary because there was no real issue that the touching occurred. The defence also argued that cross-count reasoning would not assist in determining the reason for the touching.

[60]

The trial judge accepted the defence position. He reasoned that "the general facts of the way that the touching occurred [is] not a major issue in this trial to be determined. The fact that there was touching at the time of the lessons it is really not the issue." He therefore concluded that the probative value of the evidence was neutral: "the number of incidences and the repetition don't assist with whether or not this was legitimate activity or criminal activity for a sexual purpose".

[61]

The similar fact application was denied.

Reasons for Judgment

[62]

In entering acquittals on all counts, the trial judge found that the respondent's touching of his female students was not done for any sexual purpose. He accepted that the respondent's "intent was to help his female students play better and be better supported by fitting and designing rests that would support the violin and shoulders down to the mid-chest area". He further held:

When I examine all of the circumstances of the measuring and mould-making I am unable to conclude that a reasonable observer at the time that [the respondent] was teaching would have concluded that there was any sexual or carnal context to the measuring. The students were told they were going to be measured and what it would entail . . . Looked at as a whole, the evidence supports that [the respondent] was an innovative, talented violin player and teacher. He made no inappropriate comments; the touching of his students was minimal and done so only to assist in getting the measurements he felt were necessary for the proper fitting of the rests that were a new innovation during the 1970s and 1980s. They are now widely used.

[63]

The trial judge found the Crown's witnesses, including the expert witness and all the complainants except for J.S.F., credible. However, he was not persuaded by the expert evidence that "the actions of [the respondent] could only have been for a sexual purpose".

Positions of the Parties

[64]

The Crown submits that the trial judge erred in entering acquittals on all counts. With respect to the sexual interference and sexual exploitation counts, the trial judge failed to give sufficient weight to the Crown's evidence, such that he did not properly determine the respondent's guilt or innocence. With respect to the sexual assault and indecent assault counts, the trial judge erred in law by misapprehending and, therefore, failing to apply the constituent elements of the offences, in particular by equating the lack of touching for a sexual purpose with a purported lack of touching in circumstances of a sexual nature. The Crown submits that the acquittals should be set aside and convictions entered in their place. Alternatively, the Crown requests a new trial.

[65]

The respondent submits that this is really an "unreasonable acquittal" appeal. The arguments advanced by the Crown are factually based. Insofar as the trial judge accepted the evidence of the respondent, the trial judge was bound to acquit in accordance with the first branch of R. v. W. (D.). Alternatively, the respondent submits that the proper remedy for any fatal legal error is a new trial, since the trial judge did not make the necessary factual findings to permit this court to enter convictions on appeal.

Analysis

[66]

The trial judge accepted the evidence of the respondent that the touching was not for a sexual purpose. It was open to the trial judge to make this factual finding. Having done so, he was bound to acquit the respondent of the sexual interference and sexual exploitation charges, because sexual purpose is an essential element of both offences. However, as I will explain, the trial judge erred in law by relying exclusively on that finding to acquit the respondent of the sexual assault and indecent assault charges. The acquittals on those charges therefore cannot stand.

[67]

I begin by discussing the scope of the Crown's right of appeal against acquittals. Then, against the backdrop of the offences charged, I explain the trial judge's error of law. I conclude by addressing the appropriate remedy.

Appeal Against Acquittals

[68]

Subsection 676(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46 provides that the Crown's right of appeal against acquittals is restricted to questions of law alone. Jurisprudence establishes that such questions include the following: misinterpretation or misapplication of salient legal standards, including the elements of the offences; assessing evidence based on erroneous legal principles; making findings of fact not based on the evidence; failing to give legal effect to findings of fact or of undisputed facts; failing to consider all the evidence bearing on guilt or innocence; failing to properly admit evidence; and, failing to provide adequate reasons: R. v. Fitton; R. v. Audet; R. v. Ewanchuk; R. v. Graveline; R. v. Walker; R. v. Lutoslawski; R. v. H. (J.M.).

[69]

The Crown has raised a question of law as the basis for the appeal against the acquittal on the sexual assault and indecent assault counts. The Crown alleges that the trial judge did not apply the correct elements with respect to these offences. I therefore reject the respondent's submission that the issue is an "unreasonable acquittal" as it applies to these counts.

The Offences Charged

[70]

There were four offences charged: sexual interference, sexual exploitation, indecent assault and sexual assault. Sexual interference and sexual exploitation are age and relationship-based offences. They are designed to protect the sexual integrity of young persons in their interactions with adults. The actus reus for sexual interference is the touching of a young person. The actus reus for sexual exploitation includes the touching of a young person by a person in a relationship of trust or authority. The mens rea for both offences is the specific intention to touch for a sexual purpose.

[71]

Indecent assault is the predecessor to sexual assault. On January 4, 1983, the Criminal Code was amended to replace indecent assault with the offence of sexual assault. For purposes of this appeal, the impugned conduct is capable of satisfying the elements of both indecent assault and sexual assault, which will often be the case as the Supreme Court observed in R. v. Chase, at p. 301 S.C.R.:

While it is clear that the concept of a sexual assault differs from that of the former indecent assault, it is nevertheless equally clear that the terms overlap in many respects and sexual assault in many cases will involve the same sort of conduct that formerly would have justified a conviction for an indecent assault. The definitional approach to indecent assault, also an offence not defined in the Criminal Code, therefore offers a guide in our approach to the new offence, as recognized by Laycraft C.J.A. After many years of dealing with the concept of indecent assault, the courts developed the definition, "an assault in circumstances of indecency". This, of course, was an imprecise definition but everyone knew what an indecent assault was. The law in that respect was reasonably clear and there was little difficulty with its enforcement. In my view then, a similar approach may be adopted in formulating a definition of sexual assault.

[72]

Indecent assault and sexual assault are assaults committed in circumstances of an indecent or sexual nature such that the sexual integrity of the victim is violated. They are general intent offences that do not require proof of sexual purpose or sexual gratification on the part of the accused. To establish sexual assault, the Crown must prove beyond a reasonable doubt that the accused intentionally touched the complainant without consent in circumstances of a sexual nature. In contrast to sexual purpose, the test to be applied in determining whether the conduct is of a sexual nature is objective. In Chase, at p. 302 S.C.R., the court confirmed that:

The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: "Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer". The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force, will be relevant.

[73]

The objective test requires the court to look to all the circumstances surrounding the conduct to determine on an objective basis whether it was of a sexual nature and violated the sexual integrity of the complainant: R. v. Litchfield, at p. 345 S.C.R. While the intent or motive of the accused may be a factor in considering whether the conduct was sexual in nature, the Supreme Court in Chase went on to state, at p. 302 S.C.R.:

It must be emphasized, however, that the existence of such a motive is simply one of many factors to be considered, the importance of which will vary depending on the circumstances.

[74]

The mental element in sexual assault and indecent assault is the intention to touch. Proof of sexual purpose is not required because the "factors which could motivate sexual assault are said to be many and varied . . . To put upon the Crown the burden of proving a specific intent would go a long way toward defeating the obvious purpose of the enactment", which is to protect the sexual integrity of all persons: Chase, at pp. 302-303 S.C.R. As the Supreme Court stated in R. v. Ewanchuk, at para. 28:

Society is committed to protecting the personal integrity, both physical and psychological, of every individual. Having control over who touches one's body, and how, lies at the core of human dignity and autonomy . . . It follows that any intentional but unwanted touching is criminal.

The Legal Error

[75]

The trial judge erred in law by determining that the respondent's lack of sexual purpose was determinative of the sexual assault and indecent assault charges. In short, he confused the sexual purpose of the respondent with the sexual nature of the conduct. The trial judge's reasons demonstrate this. At the outset of his reasons, he set out the parameters of the case:

It is agreed by counsel that all of the counts against [the respondent] relate to his conduct in measuring his female violin students for rests used to help support the violins or violas of [his] students. The Crown contends that these girls and women students were touched by [him] for a sexual purpose and the so-called measurements were simply a ruse to enable [him] to touch his female students for his own sexual gratification.

[76]

The trial judge then correctly quoted the applicable legal test from R. v. Lutoslawski:

The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: viewed in the light of all the circumstances, is the sexual or carnal context of the sexual assault visible to a reasonable observer?

[77]

He also referred directly to the passage from Chase at p. 302 S.C.R. that sets out the circumstances relevant in determining whether the impugned conduct in a case of sexual assault has the requisite sexual nature:

The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct . . . will be relevant . . . The intent or purpose of the person committing the act, to the extent that this may appear from the evidence, may also be a factor . . . It must be emphasized, however, that the existence of such a motive is simply one of many factors to be considered[.]

[78]

However, the trial judge then conducted "an assessment of [the respondent's] evidence as it is relevant to the objective determination of the sexual nature of his conduct". He concluded that "any touching of [the respondent's] female students was not done for any sexual purpose and that his intent was to help [them] play better". On this basis, he said that he "is unable to conclude that a reasonable observer" would have "concluded that there was any sexual or carnal context to the measuring".

[79]

In this way, the trial judge conflated the issue of touching for a sexual purpose with that of touching in circumstances of a sexual nature. This is evident from his conclusion:

None of the circumstances presented in this court lead me to conclude that a reasonable observer would perceive a sexual purpose in [the respondent's] measuring, recording of the measurements, observing his students playing or in the making of moulds for rests in the shoulder and upper breast.

[80]

Even if a "reasonable observer" would not perceive a sexual purpose in the respondent's conduct, this is not dispositive of whether or not he committed sexual assault or indecent assault. Sexual purpose is not an essential element of either of these offences. The trial judge therefore erred in law in treating the absence of sexual purpose, which required that the respondent be acquitted on the sexual interference and sexual exploitation charges, as requiring his acquittal on the indecent assault and sexual assault charges as well.

[81]

This error of law is further demonstrated by the fact that the trial judge made only passing reference to the testimony of the complainants. He made no specific reference to their evidence except in very general terms that they "[a]ll agreed that any touching of their bodies above or below clothes were ( sic ) within the context of being measured". He called the touching "minimal and done so only to assist in getting the measurements". There was no analysis with respect to the sexual integrity of the complainants and whether that integrity was violated by the respondent's touching of their breasts. The trial judge did not address the position of trust between the child-students and their teacher. He did not address the sexual nature of the touching.

[82]

The respondent submits that his lack of sexual purpose justified acquittal on the sexual assault and indecent assault charges, even though sexual purpose is not a required element of the offences. He likened his situation to that of a doctor conducting an examination that the doctor mistakenly believes is medically necessary. He points to R. v. Marshall, where this court reversed a physician's sexual assault conviction arising out of the allegedly inappropriate examination of a patient's genitals. He submits that, just as the court treated the medical as opposed to sexual purpose of the touching as an important factor in Marshall, the trial judge in this case was entitled to rely on the respondent's belief in the pedagogical validity of the measuring to acquit him of sexual assault and indecent assault.

[83]

I do not agree. In Marshall, the appeal was based on three broad points: (i) the trial judge's misapprehension of material evidence; (ii) the fact that there was conflicting medical evidence about the necessity of the examination; and (iii) concerns about the credibility and reliability of the complainant. There is nothing similar here. Marshall does not support the proposition that, where touching of a sexual organ occurs, a lack of sexual purpose means the touching did not occur in circumstances of a sexual nature.

[84]

As Lutoslawski makes clear, the sexual nature of the touching is determined by an objective standard. The question is whether a reasonable observer would perceive a sexual or carnal context to the touching in light of all the circumstances.

[85]

A reasonable observer viewing the respondent's admitted conduct in touching and manipulating the breasts and nipples of young girls and young women both over and under their clothes would perceive a sexual context to the conduct. These were largely girls who were in the process of developing breasts, and who were alone with the respondent in a private room with the door closed. Their sexual integrity was violated, regardless of the respondent's purpose. The acquittals on the sexual assault and indecent assault charges therefore cannot stand.

The Remedy

[86]

Section 686(4)(b)(ii) of the Criminal Code permits an appellate court on appeal from a judge alone to "enter a verdict of guilty with respect to the offence of which, in its opinion, the accused should have been found guilty but for the error in law". In that event, the court is authorized to either sentence the accused directly or remit the matter back to the trial court for sentencing: R. v. Skalbania. In my view, but for the trial judge's error of law, the respondent would have been convicted of the sexual assault and indecent assault charges: see R. v. Cassidy, at pp. 354-55 S.C.R.

[87]

The respondent agreed that he intentionally touched the breasts of his young female students. They were too young to consent. He did not touch the boys' chests, nor did he touch the breasts of his own daughter. The sexual integrity of the complainants was violated. But for the error by the trial judge, the "concrete reality" of this case establishes proof of the sexual and indecent nature of the touching beyond a reasonable doubt.

Conclusion

[88]

The trial judge erred in law by acquitting the respondent on the sexual assault and indecent assault charges. The evidence establishes that those charges have been proved beyond a reasonable doubt and but for the error of the trial judge, there would have been convictions. I would therefore set aside the acquittals and enter convictions on the following counts:

• 23, 24 (J.S.F.)
• 30 (M.A.)
• 42 (E.W.)
• 31 (N.D.)
• 36, 37 (K.B.)
• 1 (F.K.)
• 2, 3 (N.D.)
• 32 (F.B.)
• 20 (A.G.)
• 41 (S.K.)
• 19 (G.D.)
• 33 (E.P.)
• 49 (K.K.)
• 34, 35 (M.B.)
• 43 (K.O.)
• 12, 13 (A.S.)
• 6, 7 (S.G.)
• 16, 17 (H.S.)
• 10 (J.G.)
• 21, 22 (J.K.)

[89]

Although the respondent did not recall touching N.D. (counts 2 and 3), E.P. (count 33), S.K. (count 41) or K.O. (count 43), the trial judge clearly believed the evidence of these complainants. Their evidence is consistent with the pattern of behaviour that was described by the other complainants and acknowledged in general terms by the respondent. As the trial judge said in his similar fact ruling: "The fact that there was touching at the time of the lessons it is really not the issue." I would therefore enter convictions on these counts as well.

[90]

In accordance with the request by the Crown, I would set aside the acquittals and enter a stay on counts 28 and 29. J.V. was 23 years old at the time she was touched by the respondent, and there is an issue with respect to consent.

[91]

The trial judge's finding of fact that the respondent lacked a sexual purpose is entitled to deference. The acquittals on the sexual exploitation and sexual interference charges must stand.

[92]

I would exercise the discretion under s. 686(4)(b)(ii) to remit the matter back to the Superior Court. The appearance of fairness requires that a different judge of the trial court determine the sentencing.

Appeal allowed in part.

Notes

1. In 1993, the respondent was found guilty of two counts of sexual exploitation, with respect to two students who were not complainants in this case. He received a 60-day intermittent sentence. In 2005, he was given a pardon. Neither the details of the allegations underlying the 1993 convictions nor the reasons of the trial judge were before the court in this case.

2. I recognize that in regards to counts 23 and 24, the trial judge found J.S.F. to be an unreliable witness, largely because of actions she took to extort money from the respondent several years after the assaults occurred, and her subsequent claim at trial that she did not remember doing so. However, the trial judge made a palpable error in finding that J.S.F. had therefore not been "inappropriately touched" by the respondent. The respondent in fact acknowledged using both his hands and a ruler on J.S.F.'s breasts, consistent with her testimony.