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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

DATE: 20221108 DOCKET: C68615

Doherty, Hoy and Paciocco JJ.A.

BETWEEN

His Majesty the King Respondent

and

Robert Lavergne Appellant

Counsel: Howard L. Krongold and Jolene Hansell, for the appellant Andrew Hotke, for the respondent

Heard: October 26, 2022

On appeal from the convictions entered by Justice Catherine Kehoe of the Ontario Court of Justice, dated October 9, 2019.

Doherty J.A.:

[1] The appellant taught industrial arts at a high school for many years. The Crown alleged he sexually assaulted two of his students. D.R. testified the appellant assaulted her on one occasion between September 2004 and June 2005. L.G. testified the appellant assaulted her on many occasions between September 2014 and June 2016.

[2] The appellant testified. He denied the allegations made by D.R. and L.G. He did acknowledge that on one occasion, L.G. “cracked” him on his behind as she walked by him. He instinctively responded by giving L.G. “a swat” on her behind. The appellant testified he immediately realized his conduct was inappropriate and apologized.

[3] The appellant was charged with one count of sexually assaulting D.R., one count of sexually assaulting L.G., and one count of sexually exploiting L.G. The trial judge found the appellant guilty on all charges. She imposed a 14-month sentence to be followed by 2 years probation on the sexual exploitation charge. Applying the “Kienapple” principle, she stayed the conviction on the sexual assault charge involving L.G. The trial judge imposed a sentence of 3 months consecutive on the sexual assault charge involving D.R. In total, the appellant received a 17-month jail sentence, to be followed by 2 years probation.

[4] The appellant appealed conviction and sentence. The sentence appeal raises a constitutional issue, and Paciocco J.A. ordered the sentence appeal heard separately with other cases raising the same issue. The sentence appeal remains outstanding. The conviction appeal is the only appeal before this court.

[5] On the conviction appeal, the appellant alleges the trial judge misapprehended the evidence in two material respects and that she failed to properly apply the burden of proof. The alleged misapprehensions of the evidence apply only to the allegations involving L.G. The appellant submits that the error in respect of the burden of proof does not impact on the convictions relating to L.G., but does require the quashing of the conviction in respect of D.R.

[6] The trial judge summarized the evidence at length in her reasons. It is unnecessary to do so here.

[7] D.R. testified that she was in the appellant’s transportation technology class between September 2004 and January 2005. She considered him to be a “really great” teacher. She recalled, however, that on one occasion after she had wiped her dirty hands on the back of her coveralls, the appellant “smacked” her on the “butt”, saying “oh you’re such a dirty girl”. He smirked and walked away.

[8] D.R. indicated she was shocked by the appellant’s action. She decided not to say anything because she believed the appellant was a good teacher and she did not want to get him or herself into any trouble. Years later in the spring of 2018, she read in a newspaper that a teacher at the high school had been charged with sexual assault. She wondered if it was the appellant and called the police. She eventually gave a statement and the charge was laid.

[9] D.R. testified that apart from the single incident, the appellant did not do anything improper to her or in her presence. She did not see any inappropriate conduct by him in the classroom and she never heard the appellant make inappropriate sexual comments to anyone.

[10] The appellant recalled that D.R. had been a student in his class. He remembered little else about her. He denied that he ever hit her across the buttocks or referred to her as a “dirty girl”.

[11] L.G. testified that she was in the appellant’s auto mechanics class in 2014-15 and in 2015-16. L.G. and many other students also spent lunch hours in the appellant’s classroom or the adjoining storage area taking part in various activities, some of which were supervised by the appellant. L.G. and her classmates would also go the appellant’s classroom before and after school.

[12] L.G. testified that almost from the outset, the appellant repeatedly touched her in inappropriate ways when she was in his class. He made several lewd and improper comments. L.G. insisted that everyone in the classroom could see what was going on and could hear what the appellant was saying. She described some of her interactions with the appellant in detail.

[13] The actions described by L.G. included:

• unwanted hugs;
• the slapping or grabbing of her “butt”;
• massaging her shoulders in an inappropriate way;
• groping her breast under her shirt on one occasion;
• putting his hands on her inner thigh, near her crotch, to demonstrate “pressure points” on her body;
• coming up behind her and grabbing her around the waist;
• on one occasion, sliding out from under a vehicle on a device known as a “creeper” and looking up between her legs;
• saying things to her like she had a “nice rack” and a “nice ass”; and
• flipping her upside down in the air so that her face was close to his crotch.

[14] K.F., a friend of L.G.’s, testified that he was in the appellant’s class with L.G. between 2014 and 2016. He confirmed some of L.G.’s evidence, including her testimony that the appellant repeatedly slapped or touched L.G.’s buttocks. K.F. also testified to the incident in which the appellant flipped L.G. upside down. K.F. recalled that incident as occurring at the same time that the appellant put his hands on L.G.’s inner thigh to demonstrate “pressure points”.

[15] During his testimony, K.F. was confronted with school records which indicated that, while he was in the appellant’s class, he was never in the class at the same time as L.G. K.F. expressed some uncertainty as to exactly when he and L.G. were in the appellant’s class together, but remained adamant that they were in the class together. K.F. also gave evidence about being in the appellant’s classroom before school, at lunch, and after school.

[16] K.F. discussed the details of L.G.’s allegations with her and other classmates after the police investigation began and before he testified. He insisted those discussions did not impact on his memory of the relevant events and that he was testifying from that memory.

[17] K.W.’s evidence was offered as similar-fact evidence. She was in the appellant’s class and in the welding club. According to her, the appellant would hug her every day and at times rub her shoulders. She did not want to be touched by the appellant, but did not feel she could say anything. She saw the appellant hugging L.G. on one or two occasions.

[18] K.W. testified that the appellant talked a lot about his sex life and made jokes about K.W. and her boyfriend’s sex life. These comments made her feel uncomfortable. On another occasion, he asked K.W. if she was 18, indicating she was “more mature” than the other girls her age.

[19] K.W. did not report what the appellant did to anyone. Eventually, she spoke to L.G., who put her in contact with the police. K.W. testified that she was uncertain about pursuing charges against the appellant because she was not sure that what happened to her was serious enough to warrant criminal charges.

[20] L.G. told K.W. about the details of what L.G. claimed the appellant had done to her.

[21] The appellant testified. He acknowledged that he would hug his students, including L.G. and K.W. On occasion, he would squeeze their shoulders to get their attention. The appellant ran his classroom in a way that he thought would make the students feel comfortable and not pressured. He allowed the students to bend, if not break, many of the rules, let them swear, spoke about topics relating to sex, and passed out condoms. The students were routinely in his classroom before school, at lunch, and after school. The vast majority of the appellant’s students were male. He testified he treated male and female students in the same manner.

[22] The appellant admitted that he taught the students the location of various “pressure points” on their bodies. These instructions apparently had something to do with self-defence. He demonstrated pressure points on both the male and female students. He would ask their permission before doing so.

[23] According to the appellant, L.G. was a happy-go-lucky student who would often give him hugs. He demonstrated pressure points on L.G. from time-to-time. As indicated above, he did acknowledge that on one occasion he slapped L.G. on the buttocks. He immediately apologized.

[24] The appellant denied all other allegations that he improperly touched L.G. He also denied making comments to her about her anatomy.

[25] The trial judge came to the following conclusion with respect to the appellant’s conduct toward his students:

The similar fact evidence and the trial evidence establish a pattern of behaviour by Mr. L. of grooming, physical contact, sexual comments and inappropriate sexual touching with female students. Mr. L. “relaxed” rules, exchanged phone numbers with students, offered to and drove students home, initiated unwanted hugs, held “life lesson” talks, passed out condoms, swore and allowed swearing in his class, and made sexual comments … I accept K.F.’s evidence which corroborates L.G.’s evidence that Mr. L. did make comments about orgasms in his class. I find that this pattern defies coincidence or that D.R. and/or L.G. are lying or “misremembering” what Mr. L. did to them.

Grounds of Appeal

A. The Alleged Misapprehension of the Evidence

[26] The appellant alleged two material misapprehensions of the evidence. One arose out of L.G.’s evidence, and the other related to K.F.’s evidence.

The Alleged Misapprehension of L.G.’s Evidence

[27] K.F. described an incident in which the appellant lifted L.G. into the air and turned her upside down. As he was holding her, he touched her on the inner thigh near her crotch, to demonstrate certain pressure points.

[28] L.G. described an incident in which the appellant grabbed her and turned her upside down. Her head was near his crotch. She referred to a different incident in which the appellant touched her inner thighs near her crotch, purporting to demonstrate certain pressure points. On her recollection, the two events were separate.

[29] In summarizing the evidence, the trial judge wrongly referred to L.G. as testifying that the “flipping” and “pressure point touching” events were part of the same incident. According to K.F. they were, but according to L.G., they were separate incidents.

[30] The trial judge’s error with respect to the content of the evidence of K.F. and L.G. was not material to the outcome. K.F.’s recollection that the two occurrences were part of the same incident, compared with L.G.’s recollection of two separate incidents, may detract, to some extent, from the value of K.F.’s evidence as confirmatory of L.G.’s allegations. The difference in their recollections, however, falls far short of eliminating the significant confirmatory value of the evidence.

[31] The value of the evidence rested not in whether the events occurred together or separately, but in whether these occurred at all. Both events were highly supportive of the Crown’s position that the appellant acted in an inappropriate and sexual manner in his interactions with L.G. Whether the appellant’s conduct occurred as part of one incident, or involved two separate incidents, was far from the most salient feature of the evidence. The two witnesses described very similar activities, both of which involved what could reasonably be found to be highly inappropriate sexual behaviour.

[32] We also do not accept the submission that the difference in the accounts of K.F. and L.G. somehow gives added force to the appellant’s claim that K.F.’s evidence was tainted by his earlier discussions with L.G. It does not follow that because two witnesses give very similar evidence describing certain events, but their evidence differs in one aspect, that the recollection of one of the witnesses is more likely to have been influenced by inadvertent tainting as a result of communications between the two witnesses.

[33] On the evidence, there was a real concern that K.F. and L.G. had colluded in respect of their evidence, or that K.F.’s evidence was subconsciously tainted by his conversations with L.G. The trial judge was alive to the possibilities of collusion and tainting. She rejected the evidence of one Crown witness, having concluded that his recollection was tainted by conversations about the relevant events with K.F.

[34] The trial judge accepted K.F.’s evidence that he was not deliberately shaping his evidence to accord with things L.G. had told him. Although the trial judge did not expressly refer to the possibility of inadvertent tainting of K.F.’s evidence, I cannot accept that she did not consider that issue. Clearly, she was alive to, and appreciated, the risk of collusion flowing from the conversations among the witnesses. Her failure to advert specifically to tainting in addressing K.F.’s evidence cannot be taken as an indication that she did not consider that possibility when assessing K.F.’s evidence.

Did the Trial Judge Misapprehend K.F.’s Evidence?

[35] The trial judge found that K.F.’s evidence that when he was in the appellant’s class with L.G., he saw the appellant touch or strike L.G.’s buttocks repeatedly corroborated L.G.’s evidence to the same effect. The appellant argues that this finding failed to take into account the unchallenged evidence in the school records that, while K.F. was in the appellant’s class, he was never in his class at the same time as L.G.

[36] There was a great deal of evidence that students were constantly in the appellant’s classroom before school, at lunch, and after school, as well as when they were actually taking his class in his classroom. The appellant treated his classroom as an “open house” for students and bent school rules. According to the school records, K.F. and L.G. were not enrolled in the appellant’s class at the same time. During one semester, they both took his class, but one was enrolled in the morning class, and the other in the afternoon class.

[37] The appellant was often present in the classroom outside of class hours and regularly interacted with his students. The trial judge’s reasons are not entirely clear. She may have been referring to K.F. as being in the appellant’s classroom with L.G., but not necessarily in the same class.

[38] Regardless of whether K.F. and L.G. were actually registered in the same class, there was ample opportunity on the evidence for K.F. to have been in the appellant’s classroom at the same time as L.G. and observed the conduct he described.

[39] The corroboration finding arising from K.F.’s testimony that he had observed the appellant touch or strike L.G.’s buttocks did not turn on whether K.F. was registered in the same class of the appellant’s that L.G. attended.

B. The Misdirection on Reasonable Doubt

[40] The trial judge acknowledged that the case turned entirely on credibility. She instructed herself on the three-step approach laid down in R. v. W.(D.) , [1991] 1 S.C.R. 742. The trial judge described the three-part analysis in W.(D.) as follows:

a. If I believe the accused’s evidence, I must acquit.

b. If I reject the accused’s evidence, has a reasonable doubt been raised on the evidence I do accept, including the defense evidence;

c. If I reject the accused’s evidence, has the Crown proven all of the elements of each offence beyond a reasonable doubt on the evidence I do accept, including the defense evidence.

[41] The second step of W.(D.) as described by the trial judge does not reflect the instruction laid down in W.(D.) . Under the W.(D.) instruction, the second step requires that the jury be told even if they reject the appellant’s evidence, in the sense that they do not believe the evidence, they must go on and consider whether they are left in a reasonable doubt by that evidence, considered in the context of the entirety of the evidence. If so, they must acquit.

[42] The appellant correctly acknowledges that a misstatement of the three principles summarized in W.(D.) does not automatically mean that the trial judge erred in her application of the reasonable doubt standard to the evidence. If on the entirety of the reasons, it is clear that the trial judge not only disbelieved the appellant’s evidence, but unequivocally rejected that evidence as incapable of leaving the trial judge with a reasonable doubt, the reasons demonstrate a proper application of the burden of proof. The misstatement of one of the steps in W.(D.) does not, in that circumstance, amount to reversible error: see R. v. Rattray , 2007 ONCA 164 , at paras. 16-19 .

[43] The appellant concedes that on a reading of the entire reasons, it is clear that the trial judge rejected the appellant’s evidence in respect of L.G. as incapable of belief. It follows there was no misapplication of the burden of proof on the counts pertaining to L.G.

[44] The appellant submits, however, that the reasons do not allow the same conclusion with respect to the allegation involving D.R. The appellant submits that the reasons do not demonstrate that the trial judge not only considered whether she believed the appellant’s version of the relevant events, but also whether she was satisfied that the appellant’s version must be rejected as incapable of belief.

[45] We cannot accept this submission. To succeed, the appellant must convince us that the trial judge took two fundamentally different approaches when assessing the appellant’s guilt in respect of the charges involving the two complainants. As the appellant acknowledges, the trial judge appreciated how the reasonable doubt standard was to be applied to the allegations involving L.G. There is nothing in the reasons to suggest that the trial judge did not understand that the reasonable doubt standard applied to all of the allegations in the same way.

C. Conclusion

[46] The conviction appeal is dismissed.

Released: “November 8, 2022” “DD”

“Doherty J.A.”

“I agree. Alexandra Hoy J.A.”

“I agree. David M. Paciocco J.A.”