WARNING

The court hearing this matter directs that the following notice should be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. —(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) Mandatory order on application. — 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 complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 Offence. —(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.

Court Information

COURT FILE No.: City of Burlington 3440/12

DATE: 2014-07-24

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

M.R.

Before: Justice Stephen D. Brown

Heard on: December 9, 10, 11, 17, 18, 2013 and April 7, 2014

Reasons for Judgment released on: July 24, 2014

Counsel:

• Amanda Camara for the Crown
• Melanie Webb for the accused M.R.

REASONS FOR JUDGMENT

Brown, J.:

Introduction

[1] M.R. is charged with five counts on an information alleging historic assaults against two complainants, T.B. and A.M. in the City of Burlington, and further with one count of sexual assault against K.M.T. alleged to have been committed at the City of Kitchener-Waterloo between July 1, 2010 and September 31, 2010. The information should have been amended to state September 30th as the end date because of course September only has 30 days. This was not done and was an oversight by everyone including myself until my very competent and helpful judicial secretary Ms. Marinier pointed this (as well as many of my other grammatical and spelling mistakes) out to me after having proofread the judgment.

[2] The defendant was, at all material times, the figure skating instructor of the complainants when the assaults were alleged to have occurred, and the ex-instructor of K.M.T. when that sexual assault in Kitchener was alleged to have occurred. Ms. Webb, on behalf of the defendant, waived the limitation period for summary conviction offences.

[3] The Crown proceeded summarily on all counts and a six-day trial was held before me.

1.0: Evidence at Trial

1.1 Evidence of A.M.

[4] A.M. was 22 years of age when she testified at this trial. She is presently employed as a figure skating coach at a figure skating club in Burlington, indeed the same one that she trained at when the accused was her coach. She has been doing this for about four years and is in the process of completing her Level 1 coaching certification according to the system established by Skate Canada.

[5] She began taking figure skating lessons at age five in the fall of 1996 with the defendant as her coach. She remained with him as her coach until the fall of 2006 when she was aged 15. She became a competitive figure skater. At her most competitive level she was skating for one hour three times per day, five days per week when she was aged 15.

[6] At the start she looked upon him as an authority figure, a teacher and later she came to look upon him as a parental figure. Her father had left her when she was quite young and she soon came to treat the defendant as a father figure. She trusted him implicitly. She describes this relationship at page 15 of the December 10, 2013 transcript as follows:

Q. Was there anything else that you wanted to add to that answer, or were you finished answering?

A. As I said, my Dad left when I was five and I started being coached by M. when I was five. And he stepped in as that father figure role for me in my life and I felt over the years he had built up a, a level of trust with me, not only as a coach to athlete relationship, but a father/daughter type of relationship. And I always kind of trusted what he did because I didn't really ever question if there was anything wrong with it because I did look at him as a father. And, as I got older, I kind of thought about whether some of the comments he made or the things that he did were appropriate or not, but I never second guessed it because I looked at him as this father figure in my life and that he was just an affectionate person and that's how he showed how he cared about me. And, obviously, that's an unhealthy relationship to have with a coach, because he wasn't my Dad. And I felt that the level of trust that I had with him was taken advantage of and used in a way that I didn't know any better. And when my parents fired him, it was a big shock to me because I had already lost one father figure in my life and I was now losing another one, basically over the course of overnight. And I didn't know who I was without him in my life and I saw a psychologist for a good - up until 2012 - from - a good six years after my parents fired him.

[7] She said that her relationship with him changed when she started to go through puberty. She recounts that he seemed to take a greater interest in her physical development during this period and she testified to one incident when K.M.T., S.K., and K.D. and M.G. were present with her on the ice and he would label their breasts by comparing them to different sizes of fruits. For instance, smaller breasts were labelled as tangerines, while he described larger breasts as grapefruits.

[8] She said that he made these comments a 'handful' of times over the years when she was between 13 and 15 years old.

[9] She said that the comments caught all the girls off guard and that they thought they were "kind of weird". She never spoke to him about the comments.

[10] She said that she was 11 years of age when she first stayed at his home. Her parents were away for a hockey tournament for her brother and he volunteered to let her stay at his house with his family so that he could take her to her skating lessons.

[11] At this time she slept in the spare bedroom in his townhome in Burlington. His wife and his daughter, who was about six years younger than A.M., were at home and she believed they were sleeping. A.M. was about 11 years old at the time.

[12] She recounts that one evening she was in her bed but not asleep when the following took place as found on page 6 of the transcript of December 10, 2013:

Q. And did anything ever happen that made you uncomfortable while you were sleeping over in his home?

A. There was one time I stayed there and I was laying in bed - just - I should have been asleep, but I wasn't - and he had come home from being out late and, as far as I knew, A. and his daughter were asleep, and....

Q. Who's A.?

A. His wife.

Q. Okay.

A. And I saw my door open and I didn't really know what to do, so I just stayed still and pretended to be asleep. And I figured he was just checking up on me to make sure that I was asleep and thought that he would close the door after that and he didn't. He walked in the room and shut the door behind him and walked over to the side of my bed and sat down and didn't really move for about five, ten minutes. And then leaned over to me and hovered there for a little while and just looked at me and then kissed me on the forehead and rubbed my back. And then he got up and left and shut the door behind him.

Q. When he rubbed your back, was that over your clothes or under your clothes?

A. I don't remember.

[13] On that occasion she testified that he did not say anything to her.

[14] A.M. recounts another incident when she was over at the defendant's home but did not sleep over. The following excerpt from the transcript of December 10, 2013 describes this event commencing at page 8:

…But one time I went there to - I was invited there to listen to music for my short program. And I was laying on the floor on my side, looking at a stack of CDs and he came up behind me and laid behind me as if to spoon someone - so if I was laying here, he was laying directly behind me.

Q. So, you've just - for the record, you've just held out your right hand and put your left hand right beside it?

A. Yeah. So if my right hand is me, he was directly behind me. And I was just kind of looking through the CDs listening to the music and he was stroking my hair.

Q. When he was laying beside you, was his body physically touching yours?

A. Yes.

Q. And what room were you in at the time?

A. We were in the living room.

Q. And how long did he lay beside you?

A. I don't know for sure, but I would assume about half an hour. A. was making dinner in the kitchen.

Q. Did you see A. while he was laying beside you?

A. Yes.

Q. Did she ever say anything to you or to Mr. R., in your presence, while he was laying beside you?

A. Not to do with what was going on - just to make conversation.

Q. Did you eat dinner at their home that day?

A. Yes.

Q. And how old were you?

A. I had a short program, so I was probably thirteen.

[15] She stated that when she was about 13 or 14 years old she had a shirt with the words "Von Dutch" on it. She would wear this shirt at her lessons three or four times per month. When he had a private skating lesson with her he would refer to her breasts as "Von" and "Dutch" every time she wore the shirt.

[16] She stated that he was constantly commenting on their attire. If their pants were too tight he would say that. If their midriffs were showing he would tell them to pull their top down to cover it or change their top, and if the top was too low he would tell them to pull it up or change it. He would sometimes say she looked nice when he liked her outfit.

[17] A.M. said that these comments were made almost on a daily basis. This occurred regarding their dress both on and off the ice.

[18] Commencing at page 10 of the December 10th transcript she described how the defendant was 'physical' with her. She testified:

Q. Did Mr. R. ever come into physical contact with you while you were skating on the ice?

A. Yes.

Q. Can you describe for us how that would happen?

A. If we were doing a walk through of a spin or a jump, he was a very hands-on coach. So, he would put our bodies - or, my body into the position that we should be in or we should aim to be in in the element that we were practicing. So, if it was a spin, he would hold one of our legs up - or, one of my legs up, and support my stomach so that I could hold the position. It's difficult to describe.

Q. When he would hold one of your legs up in one of these spins, where would his hands be on your body?

A. Usually one hand - it depended on the element or the spin - but usually one hand would be across my stomach and the other would be on the inside of my groin.

Q. On the inner side of your groin - is that what you said?

A. Yes.

Q. And how long would his hand stay there?

A. However long it took him to explain what he was trying to explain - usually a couple of minutes.

Q. And were you comfortable with that?

A. I was until I started to get to the age where I was starting to feel uncomfortable with comments. And then, once I was in those kinds of positions, I would feel a little bit uncomfortable and kind of wiggle my way out of it so that I could just go and do the element and not have to stand there and be held in a position.

Q. And how often would his hands - would he physically touch you while you were practicing these elements?

A. Every day. Every lesson.

Q. Would he ever make any verbal comments to you during these lessons that made you uncomfortable?

A. Not that I can remember, but I would assume so.

Q. But you don't remember what that, that was?

A. I don't remember the exact comments.

Q. Did you ever try and - did you ever speak to Mr. R. about the physical contact and if it was making you uncomfortable?

A. No.

Q. While he was touching you, did you ever indicate to him that - or, physically indicate to him in any way that you weren't comfortable with what was happening?

A. Usually, if I was uncomfortable, I would try and wiggle myself out of the position to try and just stand upright and listen to the instruction, instead of being held in the position and listening to the instruction. So, that was my cue, I guess, to state that I was uncomfortable.

Q. Did you ever speak to the other skaters about Mr. R. physically touching you or making comments to you? Did you ever speak to the other skaters?

A. Yes. We used to talk about it sometimes.

[19] She travelled with the defendant to Saskatchewan in 2003, 2005 and 2006 for a competitive competition called Sask Skate where elite skaters were chosen to compete. She was unaccompanied by her parents there, but would go with the defendant and two or three other girls. The defendant would have his own hotel room and the girls would share a room. She does not recall anything inappropriate happening at these events.

[20] She also described in direct examination that she was uncomfortable with Mr. R. holding her closely when they were ice dancing and said that, although that occurs in competitions, she was just being taught recreational ice dancing and felt that the closeness was unnecessary.

[21] She testified that M.R. would frequently speak to her on the ice by pressing his body close to hers and by placing his forehead on hers and having a conversation in a normal tone, sometimes about skating but other times about personal matters such as when she appeared to be upset and he would ask her what was bothering her. He never talked to her about his personal problems.

[22] She testified that she and K.M.T. had a falling out after the defendant was fired as her coach in 2006. She says she did reconnect with her and spoke to her last year after they were contacted by the police to give interviews to them regarding the defendant. She said they told each other that they had been contacted, but did not discuss the matter further.

[23] She said that after the defendant was fired, she had other coaches and they were not "hands on" like Mr. R. was. She said that they would explain the moves or an exercise that the skaters were to do and that is how she now coaches her students.

[24] She related that she never confided in her mother or other family members, and when her mother asked her if the defendant made her uncomfortable she would say "No, he is only doing his job and trying to make me a better skater." Now, however, she is of the view that his level of touching was excessive and that other coaches do not touch students like that and that she does not do it with her students.

[25] In cross-examination she testified that her father left her when she was five years old and that she would see him about once a year until she was ten, at which time her parents got back together. Even for the six years that her father was back with her mother from her age of ten to sixteen she stated that she still regarded Mr. R. as more of a father figure because he had not abandoned her as her father had.

[26] She confirmed that on her two or so visits to the defendant's home she was never alone with him, and his wife and daughter were always in the house.

[27] She agreed in cross-examination that the defendant's daughter was only about three years younger than she was rather than six years as stated in direct examination.

[28] She testified that when she was having her lessons with Mr. R. where she indicates that he was acting inappropriately there would be four to five other coaches on the ice at the time and about 20 students.

[29] She said that during all of the times that she had lessons with Mr. R., and that would have been hundreds and hundreds of lessons, no other coach ever came up to him and accused him of acting improperly.

[30] When asked by Ms. Webb about any coaches that commented to her about this, she gave three names. Those names were Clare Kelly, Shelley Barnett and Lisa Velenosi. It was vague as to what those people said, but she agreed with Ms. Webb when she said, "None of these coaches ever intervened during your lesson or spoke to you and told you that it wasn't right the way it was going."

[31] Both Ms. Kelly and Ms. Barnett were coaches of A.M's about five years ago.

[32] A.M. stated that these comments started after she had left Mr. R. and were made to her mother. Since the Crown called none of these witnesses, that statement is hearsay and I ascribe no weight to it.

[33] When asked why her parents fired the defendant as her coach, she said that her mother was tired of the 'mind games' that he was playing, that she thought he was playing A.M. against the other girls and that he was taking an interest in her outside of skating.

[34] She thought that at the competitive level he would favour other girls over her in devising their skating programs. When A.M. would speak to him about this he would tell her she was not ready for the type of program some of the other girls had. She believed him at the time and defended him when her mother would make these types of accusations.

[35] A.M was a very successful skater winning over 100 medals. She won a national event in 2003. After 2003 some of the other skaters started to eclipse A.M. in awards and performance. One of those skaters was K.M.T. who ultimately went on to skate internationally and was extremely successful, ultimately winning an Olympic medal.

[36] A.M. felt that K.M.T. became his star student and was upset with Mr. R. about this. She felt that he favoured K.M.T. over her. This was a difficult dynamic because they trained together every day and travelled together, but ultimately they were still competitors.

[37] It came out in cross-examination that after they gave their statements to the police she met with K.M.T. and they discussed what they thought was inappropriate conduct by the defendant that they had both experienced. A.M. related to K.M.T. that the defendant had once come into her room when she was sleeping at his house and kissed her on the forehead and rubbed her back. K.M.T. apparently stated to A.M. "that she had also stayed at his house, but that she had been told to take off articles of clothing and that A. was also involved." A.M. stated that these conversations took place when they were in a restaurant by themselves in the fall of 2012. K.M.T. was never asked about this when giving her evidence, so I ascribe no weight to it.

[38] A.M. also discussed these incidents with her mother, M.J.M., before the police statements when she was contacted by the police and asked to give a statement. Although no discussion was had of the incidents until after the police statements that both she and her mother gave, she said she did discuss with her mother what she told the police after her interview.

[39] Regarding the incident of him coming into the bedroom she was sleeping in at his house she stated that this occurred when she was 11 or 12 years of age. She thought that he sat on her bed for five to ten minutes and then leaned over and kissed her on the forehead. He then rubbed her back for a while. When asked if his wife ever did the same thing she could not recall. She acknowledged that he was a father figure to her at the time.

[40] She confirmed that he would frequently take her to school after her morning lesson and pick her up from school for her afternoon lesson, frequently at her mother's behest.

[41] In cross-examination it was established that during the incident when she was laying on the floor in his living room looking at CD's to use for a routine the defendant's wife was present in the kitchen at the time, which was two steps away from the living room.

[42] In cross-examination it was brought to A.M.'s attention that there was nothing in the code of ethics of Skate Canada that prohibited a coach from physically touching a student while giving a lesson.

[43] It was pointed out to A.M. that in her police statement she never told the police that the defendant had touched her groin during his on-ice lessons, only that he had touched her leg, and she agreed with this but maintained that he had touched her groin and the bottom part of her stomach during certain lessons.

[44] She admitted to Ms. Webb that she told the police in her statement that he was a 'very hands on' coach but never said 'excessively hands on' as she testified to in direct examination. She said that no other coach that she had was as hands on as he was and that she felt at this point in time that his touching was excessive.

[45] She acknowledged that up until about two weeks before she gave her statement to the police on October 19, 2012 she would not have thought that the defendant had assaulted anyone, including herself, and that there was nothing wrong with what he did. She attributed this to the fact that she was still under his "trust and authority" even six years after leaving him as her coach. She said that was one reason that she was in therapy for six years.

[46] She said that she felt that Mr. R. controlled her and that in a way she was under his spell after 10 years of coaching.

[47] She acknowledged that in February of 2012 she asked Mr. R. to allow her to sit in on some of his lessons as a 'mentor' to her coaching studies. She stated that although a lot of his coaching was 'inappropriate' he knew his stuff. She acknowledged that there were a number of other coaches at the skate club who she could have asked to observe them teach, but after first saying that none were available she admitted that there were none that she wanted to observe coach. She made a point of saying that the students that she observed him coach in the spring of 2012 were seven or eight years old and not girls that were going through or had gone through puberty.

[48] Ms. Webb then entered a series of exhibits that were cards of thanks expressing affection and endearment that A.M. had sent to the defendant and his wife over the years that he coached her.

[49] In re-examination by Ms. Camara, A.M. stated that the conversations that she had with K.M.T. after her statement did not influence her testimony in this proceeding and that the cards of endearment that she sent to the defendant were not sent after he made the comments comparing breast size to the size of fruits.

[50] They then went through the code of ethics and A.M. pointed out the ethical breaches that she thought Mr. R. had committed. I will allude to these in my analysis later in this decision.

1.2 Evidence of M.J.M.

[51] M.J.M is the mother of A.M. and was an active parent in the skating club. She sat on the board of directors and ultimately became president of the club.

[52] She confirmed that her daughter started skating with the defendant from the age of six until she was 16.

[53] In the earlier years she would frequently attend her daughter's lessons, but as she got older it was less frequently as the defendant discouraged parental attendance for the more competitive skaters and because M.J.M also had a full-time job.

[54] When her daughter was aged 11 and onward she said the most disturbing thing that she saw was when the defendant would pin her daughter against the boards and then talk to her. He would do this to her daughter and other students and it appeared to her that he would lean his weight against them while they were at the boards and talk to them. She could not hear what was being said.

[55] She said she spoke to the defendant in 2004 and 2005 about this and expressed her displeasure, and that she may have spoken to him about it on one other occasion.

[56] She said that her daughter matured quickly in 2003 over a six-month period during the time that she was competing in the nationals.

[57] When she mentioned to the defendant in 2004 that she thought he was exerting too much control over her daughter he told her not to worry about it and that she was overreacting.

[58] In 2005 she spoke to him a second time and thought that he was being too physical with her daughter, hugging and kissing her and pinning her against the boards. She said that the pinning against the boards would last three to five minutes and that she felt uncomfortable watching it and spoke to him again. He again dismissed her concerns.

[59] She said that he would hug and kiss her daughter in front of other coaches and that both the defendant and his wife were very tactile and affectionate coaches. They would do this in front of other coaches and parents as if to state that this conduct was acceptable.

[60] On some occasions he would hear the defendant say to her daughter, "You look hot".

[61] She said that on many occasions that she could not recall if she felt that the defendant's conduct towards her daughter made her feel uncomfortable. She frequently spoke in direct and cross-examination of vaguely articulated concerns of emotional and psychological control and manipulation by the defendant towards her daughter, but did admit that she allowed him to coach her daughter for ten years, although the earlier years were better than the later ones insofar as her concerns about his controlling behaviour.

[62] She stated that her daughter's friendship with K.M.T. ended after they fired the defendant because anyone who went against the defendant and his wife were ostracized and intimidated and excluded by coaches and students. As such, her daughter had to go to Toronto to continue her lessons with another coach even though M.J.M. was the president of the skating club.

[63] She exhibited bitterness to the defendant and stated that he subtly favoured other students over her daughter. In one competition in Burnaby, British Columbia, she stated that her daughter was leading at one point and then the defendant changed one of her programs that resulted in her daughter losing her lead in that competition.

1.3 Evidence of T.B.

[64] T.B. was 18 years old and a university student when she testified at the trial.

[65] She was a student of M.R. from the age of six until the age of ten when she moved to England for a couple of years and thereafter when she returned to Burlington. Her younger sister, V.B., was also a student of the defendant and was a year younger than T.B. They took their lessons together.

[66] She testified that from age six to ten, she did not particularly like the lessons with M.R. because he was strict and not very kind to her until she was about nine years old and she left shortly after this.

[67] She resumed her lessons in April 2009 when she and her sister tried out for the synchronized skating team, but they had to improve their individual skills before they could do that so she was taking a minimum of two singles lessons a week from him to improve her skills. M.R., his wife and another coach would take turns giving her and her sister lessons, but they usually had at least one lesson a week from the defendant.

[68] She stated that M.R. was much kinder to them when they got back from England. He would comment on how they looked pretty today and other compliments, which was a complete change from the way he was before they left for England.

[69] Initially she appreciated these comments and felt comfortable with them, but then she described a conversation that took place during a lesson in October 2010 that her sister was present for that made her uncomfortable.

[70] During a dance lesson there was a discussion with her and her sister and perhaps another student at the boards. The defendant said to T.B. that she was more curvy and that he liked curvy. He then looked at her sister and said, "You are more straight. Straight is pretty too, but I like them curvy." She said he was talking about edges, but she thought that he was talking about their physical figures.

[71] After this, every time he would compliment her and call her pretty or say that he liked her hair, that would make her feel self-conscious and uncomfortable. He would give her these compliments every time she had a lesson with him.

[72] She also described how during their dance instruction he would be forceful and dance closely to her, sometimes with their chests touching. She said that he would push her shoulders to get her close to him and that this would last for a good part of the dance. She compared this to her present coach's method of dance instruction where they would always keep a personal space from her during dances.

[73] She also described what she presumed was inappropriate touching when he was instructing. During camel spin instruction he would place his one hand under the thigh of her elevated leg and his other hand just under her chest and he would almost attempt to lift her. She told him not to pick her up, but he would still try to during instruction for this spin.

[74] She vaguely described several instances of this type of touching and stated that it made her uncomfortable and that she mentioned it to her mother and that she then turned very cold toward him hoping that he would desist. She noticed this type of behaviour more often after he started complimenting her on her appearance.

[75] She would sometimes be so upset with this that she would leave the lesson early. She cannot recall whether her mother was there on some of these occasions, but she does remember discussing this with her mother on rides home from her lessons. She did not discuss it with her younger sister.

[76] She never spoke to other skaters about her concerns.

[77] In March of 2011 she said that her mother told the defendant that her daughters did not want to skate with him anymore. He subsequently sent her an email complaining about the unprofessional way that they had discharged him as their coach.

[78] In September 2012 she was contacted by the police and gave them a statement about her experiences with the defendant when she was his student.

[79] She testified that her subsequent coaches would not touch their inner thighs or stomach when teaching them spins and that they would just lift up the skate blade to get them to raise their leg higher. As well, ice dancing was done with the partners approximately one foot apart. Her coach after M.R. was Jennifer Beauchamp who was in her 20's and had just recently received her coaching certification. She was a synchronized skating coach and not a coach who taught jumps and spins and spirals.

[80] On cross-examination she acknowledged that there were always at least 15 to 25 other skaters and several coaches on the ice during these times that she felt that she was being touched inappropriately and that there were always other spectators, including parents, in the stands when the lessons were occurring. T.B. stated that she was only focused on her lesson and was not paying attention to the other skaters, so she does not know whether they would have noticed anything. She never paid attention to how the defendant would teach other girls their spirals or spins.

[81] She also agreed with Ms. Webb that the skaters would be dressed for the cold of the arena with jackets and gloves on during the lessons.

[82] She also agreed with Ms. Webb when asked whether she knew that some technical requirements by Skate Canada in judging ice dancing required partners to be close together and that marks can be deducted if they are too far apart.

[83] She agreed on cross-examination that her mother made a point of attending most of the lessons after she voiced her concerns to her mother.

[84] She also agreed on cross-examination that when she became cold and aloof with the defendant he stopped taking her for lessons and she would take lessons more and more with the other two coaches, Don and A.. She agreed that she felt that he did not want to coach her because of her attitude towards him.

1.4 Evidence of V.B.

[85] V.B. is the younger sister of T.B. and was 17 years of age when she testified.

[86] She confirmed much of the evidence of her sister, including M.R. making the comments about the 'straight and curvy' type of skating. She made an hourglass figure with her hands when describing her sister's physique, but cannot recall if M.R. made a similar gesture in the conversation. She said he made the comments a few times. She said that in the dance lessons he would dance quite closely to her sister and that their chests were touching at times.

[87] She says his comments made her feel uncomfortable, but she did not say anything because he was in a position of authority at the time.

[88] She can recall discussing it with her mother and sister on a number of occasions on the way home from the lessons.

[89] Ms. Camara attempted to elicit from this witness that there was similar touching done to her by the defendant, but because the Crown had elected not to get this evidence in as similar fact, Ms. Webb objected and I upheld that objection ruling that she could only elicit evidence of observations that this witness made about the physical touching of her sister.

[90] This witness started to testify about hearsay and rumours about the defendant but was properly curtailed and, overall, her evidence did not add much to this trial.

[91] In cross-examination it was apparent that the witness had little recollection for detail about the particulars of the conversation around 'curvy or straight' and could only recall that the conversation made her uncomfortable.

[92] I have kept in mind that the recounting of these details, events and emotions frequently occurred when both girls were driving home from the lessons with their mother discussing their perception of these incidents and that, therefore, the possibility of 'tainting' must be factored into the matrix in my analysis.

1.5 Evidence of L.B.

[93] L.B. is the mother of the previous two witnesses. She confirmed that her daughters took figure skating lessons from the defendant and his wife and another coach prior to the family moving to England in what she says was 2005. She says that the defendant and his wife coached their daughters during the period prior to the family moving abroad.

[94] She was always present for their practices then and saw nothing untoward.

[95] When they returned to Burlington in 2009 and started back with the figure skating she was mostly present with her daughters when they had lessons. In 2010 she was present less frequently as she was attending her youngest son's extracurricular activities.

[96] She recalled that in October of 2010 her daughters were upset, with T.B. being in tears after one lesson.

[97] She discussed this with a number of members of the skating club, including the defendant's supervisors, and ultimately went to the police to make a complaint. She tried to get another coach to coach her daughters but to no avail; no one was available.

[98] So, in my view rather perplexingly, she resumed having the defendant coach her daughters and paid for that. She said that she gave them the 'tools of what isn't appropriate touching or conversation and how to stand up for themselves'.

[99] The essence of the remainder of this witness' testimony can be illustrated by this excerpt from her evidence starting at page 86 of the December 9, 2013 transcript where she states:

Q. Okay. And were you present once their lessons resumed?

A. Yes, and I gave them the tools of what isn't appropriate touch, what's appropriate conversation and to - how to stand up for themselves and...

Q. Okay.

A. ...not take what made them feel uncomfortable.

Q. And did you – when you were present, did you yourself ever physically see M.R. touch T.B. in an inappropriate manner?

A. Not T.B., but V.B., I did.

Q. Okay. Did you yourself ever see M.R. touch T.B. in any way, not V.B., T.B.?

A. You know, when – when they would do, like, do the dancing, I would see him kind of pull her physically closer to him, but I didn't really notice any touching until after she had told me about what happened.

Q. Okay. I gather later in the season, the skating stopped with M.R.?

A. Yes.

Q. And were you involved in ending M.R. being the girls' coach?

A. Yes, I was - yeah.

Q. Okay. Did you ever have a conversation with M.R. about that?

A. No, not about the situation, I – I just went up - you know, I felt bad – like, I was there with them, but I felt bad that I let them stay in a situation that they didn't feel comfortable with.

Q. So, how did you communicate to M.R. that you no longer wished him to coach your daughters?

A. Well, that day he had V.B. up on the boards doing – she's double jointed so - and I figure skated all my life, so she doesn't need to have her – her – you know, for the spiral, her leg placed in a such a way and he was doing that and his hand was rubbing up and down her leg, so I just got up and I thought that's it, I can't tolerate this anymore. So, I just went around and T.B. was off the ice and so I just mentioned to T.B., you know, we're not going to do this anymore. So, she wanted to come up with me, V.B. was – had come off the ice at this time, because it was just about the end of lessons anyways. V.B. did not want to come up, so V.B. came up – or T.B. came up with me and I just – M.R. was in the middle of a lesson, that's how upset I was and I said we're not – no longer having you as our coach.

Q. And what was his reaction to you?

A. There wasn't much of a reaction, he was kind of shocked, he was completely shocked, I think, and...

Q. Did he say anything to you?

A. Not that I can remember.

Q. Okay.

A. I think I was just too upset with myself for letting them have him as a coach.

[100] In cross-examination with Ms. Webb, this witness agreed that the incident with her daughter T.B. being in tears was in October 2010 but that her mother did not end the coaching relationship with the defendant until March 2011. She did, however, attend each lesson after that and watched him like a hawk. She got legal advice from a family member, yet it was not until the last day that she stormed up to him and discharged him in March 2011 that she mentioned any inappropriate touching and was unable to communicate that inappropriateness effectively in her evidence. Something set her off, yet I was unable to discern what it was on the evidence before me other than her daughter being 'double jointed' and some evidence about her being 'against the boards'.

[101] In my view, this witness did little, if anything, to advance the Crown's case and indeed did some damage to it. Although this mother is alerted to her daughters' stated concerns about inappropriate touching in October 2010, she continues to retain the defendant as a coach while hawkishly watching all of her daughters' lessons, getting legal advice and discussing the matter with the police, yet she does not discharge his services until March 2011. This would seem to contradict T.B.'s evidence that she was being inappropriately touched on the ice in full view of her parent, other students and coaches for a full five months before her mother fired the defendant.

[102] She appears to have justified this by stating that she talked to other people in the skating club and then had a budding realization that this was not an appropriate coaching style. It appears to me that her opinions regarding this were formed or reinforced by people that have not testified at this trial and I, therefore, discount her opinions and observations markedly, having, in my opinion, been influenced by the politics of the club or other factors that I have no business venturing into on the record before me in this trial. The reason for her bias is not clear to me on the evidence, but its visceral existence is apparent and does negatively impact on my assessment of her credibility.

1.6 Evidence of K.M.T

[103] I will say at the outset that I was extremely impressed by this witness. I found her to be frank, honest and extremely credible. No one witness will be perfect in recounting exact details from events of many years, months or even weeks or days ago, but I found this witness to be overall an accurate and honest historian of the events that she testified to.

[104] She was direct, funny, spunky and overwhelmingly honest, in my view, in her testimony before me.

[105] Because of the s. 486.4 order that I have made, there is an order that any information that could identify this witness is prohibited from publication.

[106] Yet some of this information that would serve to identify her is essential to my analysis.

[107] K.M.T. has dedicated her life to the sport of figure skating. She would skate for five or more hours a day for up to six days a week since she was a young girl. This dedication paid off for her and her country and she has achieved significant success in her endeavours.

[108] She made herself, her family, her country, her friends and her coaches proud of her. She acknowledges that all of these people have contributed to her success in some way or another. One of her coaches was the defendant, M.R.

[109] At the time that she testified before me for the first time (she was later recalled on a Brown v. Dunne issue) she was 21 years of age in December 2013.

[110] The defendant started as her skating coach in July 2005 when she was 13 years of age and it extended until 2008. During this period she would skate with him between four and five hours a day for six days a week.

[111] Towards the end of her association with the defendant she would be at his home four to five times per week. He would pick her up after school and would take her to the arena. Sometimes he would require her to 'nap' at his house in between lessons and school.

[112] She recalls one incident when she was in grade ten and age 14 when she had spilled some chemicals on herself at school and she called him to come and pick her up. When she went to his house she took a nap in his bed. When she woke up she recalls him being in bed with her facing her about six inches from her. No parts of their bodies were touching at that point.

[113] When she was asked in direct examination if there were any other times that he was in bed with her she said that she 'believed so' but could not provide details of this. She estimated that this occurred between five to ten times. She did not speak to him about this.

[114] She recalls one incident when she was 14 of sleeping in his bed and she awoke to find him taking a picture of her. Her skirt had risen up and her underwear and buttocks were visible in the picture. She cannot recall if his wife was home at the time or whether he took the picture with a camera or a cell phone. He said that he had sent the picture to his favourite student. She did not think that this was funny and told him so. He thought that it was funny. She never told anyone about this.

[115] She was friends with the defendant's daughter and sometimes would have sleepovers with her. Sometimes the defendant's daughter was not present. She recalls that the defendant would sometimes kiss her goodnight on the head when she slept over.

[116] She stated that she would buy her skating dresses for competitions and that he would decide which one should be worn during certain competitions.

[117] She said on one occasion when she was 14 she had bought a pink tie-dyed dress with a cross on the back. When she was wearing the dress on one occasion on the blue line at the arena the defendant, while facing her, put both of his hands on her ribcage and shook her for a couple of seconds. He said to her words to the effect that he 'liked the way her boobs shook' when she wore that dress. She testified that she had begun to develop at that age and that his comment, she thought, was wrong, but she was young and respected him and did not say anything to him about this. At the time, she said that there were other people present in the building and that her mother was there to witness that.

[118] She stated that she became uncomfortable with his shows of affection after her lessons. She said that it started with handshakes, then he started hugging her and then he would hug and kiss her on the head and occasionally on the cheek. She was made fun of by other girls in the change room because of this.

[119] She never told him to not do this, but thought that her body language would signal this as she would become tense when he did it.

[120] K.M.T. described an incident when she went to a Sask Skate competition in September or October of 2006 with the defendant and A.M. where the defendant asked her to sleep in his room because he did not think that she was getting enough sleep in the shared room with A.M.

[121] She described an event that made her feel uncomfortable in Vancouver in 2008 when she was at the Nationals. The defendant thought she was grumpy so he came into her hotel room and sat on the bed with her and rubbed her arm with his hand for about less than a minute. At the time her mother was in the room with her. She did not express her displeasure with this to the defendant at the time.

[122] She testified that she was uncomfortable with him rubbing her arms or back during a lesson. Sometimes they would have a discussion mid-lesson and he would then rub her arms or back during the discussion.

[123] When the Crown asked her describe this, the following exchange took place commencing at page 14 of the December 11, 2013 transcript:

Q. Okay. How long would he do that for? How long would he rub your arm or your back?

A. It would vary, I suppose, but I mean there were often times when, you know, we would – I guess not have stopped the lesson, but be discussing something at the side of the rink.

Q. And that's when he would be rubbing your arms or your back?

A. Typically, yeah.

Q. So, it wasn't that – was it ever at the time when he was assisting you to do a skill?

A. I...

Q. Any of the rubbing of the back or your arms, was that while you were trying to learn a particular skill?

A. No. I mean, he – he would have touched me to teach me skills, but not inappropriately, just to help.

[124] I think that the last part of this excerpt is important because it shows, from a witness who I find to be very credible, that the defendant never, in her experience, touched her inappropriately during the teaching of skills.

[125] This conflicts with the evidence of T.B. and A.M.

[126] As well, K.M.T. does not recall a discussion comparing the girl's different sized breasts to different fruits as described by A.M. in her testimony. Had this event occurred as described by A.M., it should have been a memorable one for K.M.T. and I would have expected her to corroborate that incident.

[127] K.M.T. testified about how controlling the defendant became. Even after she ceased being his student he apparently continued to try to direct her in some ways. In 2009 he saw her at a competition leaving with a male and texted her that she should not hook up with that person because she was too good for him.

[128] She did testify about an incident that occurred in Kitchener in 2010 when she met the defendant at an arena after he had ceased being her coach.

[129] Count 3 of the information alleges that the defendant committed a sexual assault against K.M.T. in the City of Kitchener-Waterloo in a time spanning July 1 to September 31 [sic], 2010. This allegation is best described by the witness herself as found on page 15 of the December 11, 2013 transcript where she states in direct examination:

Q. Was there ever an occasion where M.R. physically touched you when you were wearing either your skating dresses or skirts or your clothes?

A. Yeah. There's a – a time I can recall after I was done skating with him in – it would have been 2010 and it was at a competition in Kitchener Waterloo. And he recalled – or, I guess, he noticed that I had my hair done and turned me around and looked at my butt and then turned me back around and looked at my chest and said I was looking good. And then, he had noticed that I had lost some weight and put his hand in my skirt and started motioning that it was loose, because I had lost weight.

Q. Where did that happen?

A. In the lobby of the Rim Park Arena.

Q. Of the – sorry the lobby of?

A. An arena called Rim Park, it's where I skate currently.

Q. Okay. Where is that?

A. Kitchener Waterloo.

Q. And that was in 2010?

A. Yes, in July or beginning of August. In that week.

Q. And was there anybody else present when that occurred?

A. There were many people in the lobby, but one of my friends had seen it and so she came over and said that my current coach needed to see me immediately to sort of relieve me of the situation, I suppose.

Q. What was your reaction to that happening?

A. I was just kind of shocked, I think.

[130] She testified that she did not say anything to the defendant at this time but she moved away. Even though her friend who was present and engaged in a ruse to get her away from the defendant, no other witness was called to corroborate this testimony even though I would have thought that it would have been easy to do so. It is also noted that these acts occurred in a public building when numerous other people were present.

[131] K.M.T. described the controlling nature of the relationship that the defendant exerted over her. She described instances where he would not allow her to go to a friend's birthday party because it was too close to a competition, that she was not allowed to date, talk to certain people, and he would dictate who she could associate with.

[132] She said that she had received offers to skate pairs, a form of competition that she later went on to excel at, but that he had not passed those opportunities on to her or her mother and that he had discouraged her from this facet of the sport.

[133] He told her that she would not be good at pairs and that her coaches that ultimately succeeded him in 2008 would make her 'anorexic' and that they would not be good for her.

[134] This was borne out to be gross underestimation of her abilities as she did move on to achieve very high awards in international skating competitions representing her country admirably.

[135] She described her relationship with A.M. and how they had been friends but then drifted apart. I sensed that it was an unnatural relationship to maintain in young girls who are friends but also fierce competitors. They drifted apart before she left as the defendant's student in 2008. She stated that she had discussed her concerns with A.M. when they were in Saskatchewan but that she had only discussed it briefly. They both discussed that they thought that the defendant was controlling and did not permit them to associate with people that they would have otherwise wanted to.

[136] She testified that she did not know T.B. or V.B., the two other witnesses in this trial.

[137] In cross-examination, K.M.T. agreed that the defendant was a coach who was very competent and who taught her skills that allowed her to advance to the level that she achieved. In other words, he "knew his stuff".

[138] She agreed that he was like a second dad to some of his students and that he would drive them to and from school and lessons and was generally there for them.

[139] In cross-examination it became apparent to me that K.M.T. thought that the defendant was far too controlling in the lives of these young girls, himself included. The fact that he would dictate who they could or could not talk to was of some significance to her and was an example of this control that crossed boundaries.

[140] Ms. Webb brought out in her cross-examination the discipline and focus that is required to be an internationally competitive athlete and for the most part K.M.T agreed with her. K.M.T. did, however, point out that the defendant was, to use my term, 'hyper-controlling' and that she resented this. This did not serve to diminish my assessment of her as a very credible witness in that, despite this criticism of the defendant, this was offset by her very frank and honest answers when she did credit his skills. She acknowledged his contributions to her success by thank you cards that she sent to him and his wife that are entered as exhibits in this trial.

[141] She freely agreed that it was important to be well rested before competitions and that it may not have been inappropriate for the defendant to have required and ensured that she was well rested.

[142] It was acknowledged by K.M.T. that she preferred her current coach's approaches to teaching her skills and supporting her in her successes and setbacks. Yet, all that I received from the cross-examination is that there is a vast difference in their respective styles of coaching and that K.M.T. thinks, and probably rightfully so, that her present coaches' methods are superior to that of the defendant's.

[143] She resented, and still to this day resents his hyper-controlling method of coaching and I suspect she knows that she would have had a more normal and balanced life in her teen years if she had not been so much under his control and direction.

[144] Certain things that the defendant did during his coaching tenure were creepy, inappropriate and disturbing to her.

[145] She readily admits that she did not confront him with her concerns because of her respect for him at the time and the power imbalance that existed between a young teenaged girl with a dream of excelling in a sport and a coach who at the time would, to her, be the key to that success.

[146] The cross-examination of K.M.T. did not, in my view, diminish her credibility, and in many ways it served to enhance it. This is not meant to be a criticism of Ms. Webb who was thoroughly prepared and explored many areas that addressed the issues in this case. K.M.T. was simply an exceptional witness.

[147] For instance, the complainant was cross-examined on the inappropriate photo taken of her where she stated that she was lying on her front and the photo showed her dress pulled up on the bed with her buttocks showing. When shown a photograph that was Exhibit 8, it shows her lying on her back rather than on her front as she described, in a less revealing, although still embarrassing, position. She is wearing the same clothing that she described in direct examination.

[148] Her response that this was another photo that was taken on that date but not the one she described in her direct evidence as showing her exposed buttocks was given in an honest way and it does not diminish her credibility and, in my view, only enhances it.

[149] It shows a photo of a young girl asleep on a bed with some of her underwear showing under her skirt. It is questionable why she would be photographed in this pose by her coach and it is understandable that if this photo exists after all these years, then other photos may have been taken on the same day that would corroborate exactly what K.M.T. testified to. In cross-examination she did state that the wife of the defendant was in the room when the picture was shown to her.

[150] In dealing with the issue of the allegation that would be counts one and two on the information, being that the defendant committed a sexual assault on K.M.T. and committed sexual exploitation as well, Ms. Webb put to K.M.T. that in her statement to the police she did not state that the defendant said that "Your boobs shake in that dress and I like it", simply that "Your boobs shake in the dress." The following excerpt from the transcript of December 11, 2013 illustrates this exchange:

Q. All right. I want to talk to you about the incident – just a moment. Okay. I want to talk to you about this incident where you – at the Mainway arena, where you said that he had his hands on your ribcage?

A. Mm-hmm.

Q. And in your evidence, you said that he said that he liked the way my boobs shook?

A. Mm-hmm.

Q. And then my friend, the Crown, asked you, were those his exact words and you said you can't say those were his exact words?

A. Well, I suppose I should have said that I would like to look at my statement, but…

Q. Okay. Well, actually, I'm going to give you a copy of your statement right now. I was just about to do that, we've anticipated that. I'm going to show you page 35 and if I can perhaps direct you to halfway down the page where it says I was wearing a pink tie dye.

A. Do you want me to read it?

Q. No, just to yourself.

A. Oh, all right.

Q. All right. Does that refresh your memory?

A. Mm-hmm.

Q. All right.

THE COURT: You have to answer yes or no.

A. Yes. Sorry.

MS. WEBB: Q. All right. So, did he – he didn't say I like it, did he?

A. Clearly not.

Q. Clearly not. So, you agree that you gave your statement to police back then and you're agreeing today that he – that he didn't say, "I like it."?

A. No, I guess not. My memory was clearer at this point so - He just said, "Oh your boobies shake in this dress." Which is wildly appropriate ( sic ).

[151] Although the transcript quoted above (that I had not approved) uses the cautionary "( sic )" at the end of the last sentence, I think that it was intentionally said by the witness in that way to inject sarcasm into her answer. I find that to be a more plausible explanation in light of all of her testimony rather than the fact that she misspoke. I find that was a benign and playful response to the question and her ready admission to this discrepancy does not detract from her credibility, but only enhances it.

[152] Ms. Webb then went on to have K.M.T. talk about how some coaches chose or have input in choosing appropriate dresses for skating competitions and that the dresses cannot be too risqué.

[153] As well, she had K.M.T. agree that sometimes 'nipple guards' are used with certain skating outfits to ensure that attention is focused on the skater's performance rather than her nipples that may become erect and noticeable due to the cold of the environment and the sheerness of the fabric of the dress.

[154] When the Crown was allowed to recall the complainant regarding a Browne v. Dunne issue, she stated that she wore the dress in the National skating competition without any 'nipple guards' being required.

[155] She also stated that in regard to the photos that were taken of her sleeping, it was not as a result of the defendant ever stating to her that he had taken the photo to prove that she needed naps.

1.7 Evidence of M.R.

[156] The defendant testified in this case.

[157] He is 49 years of age and has been living in Burlington for the past 19 years with his wife and his daughter aged 19. He has been married for over 23 years.

[158] He also has two adult stepchildren.

[159] He is a Level 3 certified figure skating coach. Skate Canada, the figure skating governing body in Canada, recognizes four levels of certification. Level 1 allows coaches to teach introductory or beginning students. Level 4 allows coaches to coach at the Olympic level. At Level 3, the defendant can coach in tournaments up to and including World Championships. He has been a figure skating coach for 30 years, but that ended when he was charged with these offences.

[160] He stated that it took him about 10 years to rise from a Level 1 coach to a Level 3 coach and that is probably faster than some coaches progress.

[161] He started coaching at the Burlington Skating Center in 1987.

[162] He estimates that he has coached over a thousand students since he began coaching, a mix of boys and girls, but primarily girls.

[163] While he was teaching he would generally teach from 7:00 a.m. until 9:30 a.m. and then from 2:30 p.m. until 9:30 or 10:00 p.m. in the evening. At times, he was on this schedule for seven days per week, however he usually taught six days per week.

[164] He explained that one of the primary things that a coach is concerned about is the health of the athlete; for instance, is the student getting a suitable amount of sleep and proper nutrition?

[165] In dealing with competitions, the defendant explained that there are dress codes that are specified in the International Skating Union rule book. Dresses must be modest and functional and safe.

[166] He stressed the importance of a dress in a competitive skater's program. It is a part of a theme that the skater tries to convey by their appearance, their movements on the ice and the music in the program. The choosing of a dress for a national level skater is a collaborative effort, but ultimately the coach has the final say. If the dress were inappropriate for any reason the coach would mention this to the student, their parents or both.

[167] For practice, the skaters and coaches dress warmly in layers. The defendant testified that he would normally wear jeans, covered by ski pants and a large coat with two or three layers underneath and a hat and gloves. The female students would generally wear two or more leggings and then covered by yoga-style pants and layered outerwear that could be removed as the lesson progressed.

[168] He described the arenas where he coached as being quite cold, with large ice surfaces. The club had an upper limit of 28 students on the ice at any time and up to a dozen coaches. He was never alone with the students on the ice. In two of the three arenas there were public viewing stands that allowed family or friends to watch the lessons.

[169] He testified that he recalls teaching T.B and her sister V.B. for a total of about four years; two years, followed by them leaving for England and then two years after their return. He recalls that he stopped teaching them around March 2011.

[170] T.B., throughout the time that he taught her figure skating, was at the beginning levels of figure skating. She was not a competitive skater.

[171] He readily admitted complimenting T.B. on her appearance or her clothes from time to time or telling her that she looked pretty because he thought it was important. He stated in his evidence at page 20 of the December 17, 2013 transcript:

I think it's a reasonable thing to do to another human being. They're - they look nice, they've made an effort to look nice, you compliment them and says, "That's a nice sweater", or, "Your hair looks nice today." Or, conversely, if they aren't feeling well you might say, you know, "How are you feeling?"

[172] He never had any idea that she was uncomfortable with this at all.

[173] Regarding the "curvy or straight" conversation that V.B. testified to, the defendant had the following explanation. He said at page 21 of the December 17, 2013 transcript as follows:

Q. Can you tell us about that conversation?

A. Sure. T.B. was learning this axel, which is a jump. It is - it is the first jump that is of consequence. Not that the other ones are inconsequential, but it's the first jump of sort of an advanced nature that she would've come across. And I was talking to her about the requirements to succeed in landing an axel, and in the course of the conversation we talked about different body types and how they affect the outcome of a - of the effort of landing the axel.

Q. Okay. What did you mean by, "Different body types"?

A. Some body types are curvy, in other words the, the child may have been going through or have gone through puberty. Some kids are not, so I - you know, you would say that they still have an adolescent body or a straight body or a stick body or however you would describe it. So, the requirements of the jump don't change, but how you teach it sometimes does, depending on what kind of body type you're dealing with.

Q. Okay. So, when you spoke to T.B. and you had a conversation in which you used the word, "Curvy", what were you - what did you mean? What was...

A. I was trying to explain to her that with a curvier body you have to get a little higher in the air, you're not going to spin quite as fast so you've got to maximize your flight time, you've got to make sure that you're tight n the air, as tight as you can get to your body, pulling your arms in to increase the inertia so you spin faster. So, we would've been discussing the, the way that a body type can affect a jump.

Q. Okay. And did you say anything to the effect of, "T.B., you're curvy and I like curvy"?

A. I would've said something - I do remember saying - I, I did not want to give her the impression that curvy was in some way me telling her she was fat or needed to lose weight, so I do recall saying to her, "Not that there's anything wrong with being curvy. There's nothing wrong with being curvy. We can - we can still make the jump happen if you can do what you need to do to accomplish it.

Q. Do you recall if V.B. was present for the conversation?

A. I do not recall.

Q. Do you recall T.B.'s reaction, if any, to the conversation?

A. I don't recall there being any reaction, no.

Q. So, do you recall if, at any time, T.B. ever expressed any discomfort with those remarks?

A. No.

Q. Were you at all aware that she was becoming uncomfortable?

A. I was not aware.

[174] From pages 23 to 33 of the December 17th transcript, the defendant explained in great technical detail that need not be reproduced in this judgment how it was necessary for him during his teaching of different types of jumps and spins to touch various parts of the skater's body, including their thighs, back and stomach. I note that this evidence differs from the opinion expressed by A.M. in her evidence where she stated that she does not touch her students during her coaching and her other coaches did not do this. However, I note that A.M. is a relatively inexperienced coach who has is only obtaining the Level 1 certification that would allow her to teach beginners, whereas the defendant is certified as a Level 3 coach who had taught for 30 years and taught elite athletes up to and including National competitions. I also note that the Crown did not call any other coaches at or above the defendant's level of qualification that testified before me that the degree and manner of touching that the defendant admitted to was not an incidental or necessary part of figure skating coaching.

[175] I am, therefore, unable to state that the explanations given by the defendant were not reasonable in all the circumstances.

[176] Similarly, his explanation for the closeness of the ice dancing with T.B. made sense to me in the manner in which he described it. Again, I have no evidence before me from equally qualified or greater qualified coaches that this explanation for his touching T.B.'s chest during the teaching of the ice dancing moves that he described was inappropriate or unusual.

[177] The defendant testified as to his teaching of A.M. He testified that he taught her over a ten-year period and that she progressed from a beginning level skater to a nationally competitive-level skater.

[178] He described his coaching relationship with A.M. as a mix of an easygoing relationship and a difficult one. They each had their ups and downs.

[179] He admitted that during their coaching relationship he would occasionally hug A.M. and also kiss her on the head if she had performed well.

[180] On page 42 of the December 17th transcript he describe it as follows:

Q. Part of your encouragement of A.M. and maybe other skaters, do you hug your students typically?

A. Yeah, occasionally.

Q. Occasionally. When do you hug them?

A. If - I remember actually the first double-axel A.M. ever landed. That's a major jump in a skater's career. It typically is about a two-year journey to get there. When she landed her first one we definitely hugged because it was a huge moment.

Q. Would you kiss your students?

A. Occasionally.

Q. Okay. And when would that happen?

A. When A.M. came third at Junior Nationals I definitely gave her a kiss in the "Kiss and Cry" because it was such a great performance.

Q. Sorry, what's the "Kiss and Cry"?

A. The "Kiss and Cry" is the area that you go to receive your judgment from.

Q. So, is that the same, when we look - when we see the Olympics and we see the skaters waiting for their scores...

A. That's the "Kiss and Cry".

Q. Okay. All right. So, you would be sitting there with your student...

A. Mm-hmm.

Q. ...and - I mean, I - it's called "Kiss and Cry" because you might kiss your student or your might cry?

A. That pretty much depends on how the skate went.

[181] He also stated that over the course of their relationship he developed into a type of father figure to her. Her mother would frequently ask him to attend A.M.'s dance recitals and school band performances, which he did do. He was aware that A.M.'s father had abandoned her at that time.

[182] He recalled one incident when A.M. was staying over at his home when she was 11 or 12 and her mother was away with A.M.'s brother at a hockey tournament. He said he got home at about 10:30 after coaching, had dinner and went up to check on his daughter and A.M. who was sleeping alone in another room. He said he would have gone into her room to make sure she was okay, pulled her covers up over her shoulder, given her a kiss on her forehead and patted her shoulders. He denied rubbing her back or staying in her room for the length of time that A.M. stated.

[183] When asked if he recalled any incident regarding a grapefruit, he said that he recalled once describing to her how to do a proper spin. He thought that she was not pulling her arms in tightly enough so he told her to imagine that she was holding a grapefruit pressed against her chest and to imagine trying to squeeze the grapefruit with such force that juice comes out of it during the spin.

[184] When asked if he ever commented on his students breasts he responded in the following way on page 48 of the December 17th transcript:

Q. Okay. So, is there - at any point did you ever comment on A.M.'s breasts or girls' breasts in general?

A. In relation to grapefruit?

Q. Well, in relation to anything. Did you ever make comments about that in any context? I'm not...

A. In terms of - yeah, in terms of their dresses and things like that. Yeah, we would've had to have dealt with that, and we would've had to have - and we would've been talking about it from a biomechanical point of view.

Q. What about if they were - if A.M. or somebody was wearing something that you weren't comfortable with, how would you express that to them?

A. I would ask them to either zip up their sweater or go put something on because I - my exact words would've been, "I don't wanna have to look at that through a lesson so would you, please, go cover up."

[185] With regards to pinning A.M. against the boards, he denies doing this. He states that the environment on the ice is a very noisy one with music and other people talking and that occasionally he would be close together with A.M. at the boards so that they could talk and be heard or talk and not have someone else overhear the nature of their conversation. He denies ever pushing A.M. up against the boards and does not recall any conversations that he had with her mother about this.

[186] In response to M.J.M's evidence that she overheard him saying 'you look hot' to her daughter, he stated commencing at page 53 of the December 17th transcript the following:

Q. Okay. Can you tell us about that?

A. And I, I would say that I'm not sure how - whether she was in a position to overhear anything simply because the parents are not allowed back into the area where the skaters are. So, when the skater is preparing to compete they've come off the ice for their warm-up, their name has been called - or in between the time the, the previous skater finishes and the time their name is called the skater is standing on the ice, the coach, or I am standing on the other side, obviously not on the ice, and one of our little rituals, A.M. and I, was that I would shake her hand and say something like, or exactly like, "Congratulations, you're a good skater." And I would give her a few little reminders of things she needed to think about. So, in other words, I, I would give her a pep talk. They tended not to be very technical in nature. It would be something like, "You're ready. You look amazing. You look hot. You're skating great. Go out there and show them what you got."

Q. And did A.M. express any concern or discomfort with the way you were holding her hand or, or shaking her hand or, or any of those comments at that time?

A. Over the course of our - her competitive career she never did.

Q. When you were teaching her skills were there times that you had to hold her in position?

A. Absolutely.

Q. As you would with T. B.?

A. Mm-hmm.

Q. Okay. And did A.M. ever express to you her belief that she didn't want you to hold her that way?

A. No.

Q. Did you ever notice her trying to wiggle herself out of it?

A. No.

Q. Well, if she had done it would you draw any conclusion from it?

A. Well, I would've asked her what, what was the issue; what's wrong.

Q. Okay. And do you recall - you don't - so, you don't recall her ever doing that?

A. No.

[187] He mentioned that in November 2006 A.M. left him and commenced with another coach, but a couple of years later she asked him to reteach a dance lesson, which he did, and she also asked to observe some of his lessons as part of the mentoring process for her Level 1 certification.

[188] Regarding K.M.T., the defendant testified that he coached her from 2005 until January 2008. She was 14 years of age when he first started coaching her and she was already a competitive skater.

[189] Similar to A.M., he recalls hugging or kissing K.M.T. when there was a big moment in a competition or practice or if she needed a hug of consolation after a setback.

[190] He had no idea that she was uncomfortable with this and, if he had known, he would have stopped.

[191] He described how K.M.T's mother and he were concerned that she was not getting enough rest. Her mother had even considered taking her television out of her room, he said. He described her outlook on this as being a 'badge of honour' that she did not need much sleep. So he would encourage her to get as much rest as she could, sometimes in between practices at his home.

[192] He admitted that on occasion she would nap at his home because she lived in another city. He said that it was possible that he may have fallen asleep while she was napping in his bed, although he does not have a recollection of this. The television that the family members preferred to watch was in his bedroom because the other television was located in an unfinished basement and another smaller one was in the kitchen.

[193] Regarding the event where he photographed her while she was sleeping, he said that he did this to confirm to her that she did need to rest in the day. He denies that she asked him to delete the photo or that she was upset with him taking it. He denied taking more than one photo of her while she was sleeping.

[194] Regarding K.M.T.'s evidence about him holding her by the rib cage and shaking her, he does not recall this incident but admits that it is possible that it happened. He opines that he could have been assessing the integrity of the dress and its appropriateness for competition or practice. He suggests that he may have been trying to assess whether he should recommend that she wear a bra with a particular dress or not. He does not recall any comments that he made to K.M.T. about her nipples showing through the dress, but he does recall discussing this with other students and that at times he would suggest that they wear nipple shields to make the dress more appropriate.

[195] He has a vague recollection of the dress that K.M.T. described, but does not have a specific recollection about the incident that she described.

[196] He was rather surprised when her mother advised him in January 2008 that K.M.T. was going to try out to be a pairs skater when he knew that she had a promising future as a single skater. He did not know that there was an interest in pairs skating until that time.

[197] He does not recall the incident that K.M.T. testified to that she said occurred in the arena in Kitchener Waterloo. He did state that he would run into her from time to time after she switched to pairs at various arenas. He did recall that when her mother had asked for input on her pairs coaches when she was going for tryouts, he did mention that those coaches were known to have very thin skaters and that could be an issue.

[198] In cross-examination he admitted it is a possibility that he may have made a comment to K.M.T. about her weight, that she looked good when he met her at the Kitchener Waterloo arena and that he may have turned her around to have a look at her, but he denies that he would have put his hand inside her clothing and admits that would have been an improper thing to do.

[199] He denied in cross-examination ever calling the dress that K.M.T. says he called "the nipple dress" any such thing, although he admits that it is possible that he had a conversation with her about her nipples showing in that dress and would have then recommended that she wore nipple shields while wearing that dress.

[200] The defendant denies ever laying down beside A.M. and stroking her hair while she was selecting music for her program as she described. He does recall her being over at his house on one occasion where she was selecting music, but denies her description of the event.

[201] He denied pinning A.M. against the boards and having his head touching hers. He did admit to talking to her closely, but denied pressing into her. He does not recall any conversation that A.M.'s mother said that she had with him about this, but did state that he had "thousands" of conversations with her over the time that he was coaching her daughter.

[202] Despite a rigorous and thorough cross-examination by Ms. Camara, he denied that any touching of his students was done for a sexual purpose and that, to one degree or another, his touching was all incidental or necessary for him to teach them the skills that he was paid to do.

[203] He also denied that he was controlling and that he was grooming the children he taught because he was attracted to female adolescent girls.

[204] He flatly denied ever comparing girls' breast sizes to different types of fruits and he as well denies calling A.M.'s breasts "Von" and "Dutch" when she wore a sweater with that name on it, as she had testified to.

[205] The case for the defence was then closed and the matter was put over to February 27, 2014 for submissions. Ms. Camara raised what she thought was a Browne v. Dunn issue and during submissions I applied the principles stated by the Court of Appeal in R. v. Dexter, 2013 ONCA 744 and allowed the Crown the opportunity to recall A.M. and K.M.T. to put certain evidence to them about the grapefruit allegations because they were not cross-examined on this issue by Ms. Webb.

[206] When the matter returned on April 7, 2014 it was also brought to my attention that another witness who had not been present during the trial evidence but who was present during the first day of submissions had given a statement to Ms. Webb. Accordingly, with the consent of Ms. Camara this witness was allowed to testify.

1.8 Evidence of K.D.

[207] K.D. was 23 years of age when she testified in this trial. She was a student of M.R. and commenced with him in 1995 and ended in 2006 when she was 15 or 16 years of age.

[208] She knew A.M. and K.M.T. and skated with them at times when they were having lessons. She would generally take two or three lessons a month with A.M. and the defendant.

[209] She did not recall any comments made by the defendant about breast sizes of the girls, but she did admit that sometimes the girls would joke amongst themselves about their different breast sizes.

[210] She does have a recollection of M.R. giving instruction in spins for skaters to believe that they had something like an orange and that they were to pull in with their arms tightly as if trying to squeeze the juice out of the orange. She later remembers the girls joking amongst themselves saying that one girl should believe she was trying to squeeze melons because she had larger breasts and one girl should pretend that she was making grape juice because she had smaller breasts.

[211] She cannot recall who specifically made the comment, but says that it could have been herself, M.G. or A.M.

[212] She said that Mr. R. may have laughed at the comment, but did not add anything himself.

[213] She said that she wrote a statement out when she heard the reference to the fruit in closing submissions and that it did not accord with her recollection of the incident. She believes the incident happened in 2002 or 2003 when she was 12 or 13 and A.M. would have been 11 or 12.

[214] In cross-examination she admitted to having great affection for the defendant as he was her coach for 10 years and played a big part in her life.

[215] She also agreed in cross-examination that there were times when M.R. would speak to girls individually in the lessons and she did not hear what he was saying.

[216] In cross-examination the following excerpt is significant, beginning on page 19 of the April 7, 2014 transcript:

Q. You'll agree with me you, you've spoken about your recollection of conversations with the girls that were being coached and M.R. about holding your arms close to your chest, pretending that you're squeezing a piece of fruit?

A. Mm-hmm.

Q. But you don't have a specific recollection of who was the one who were making the comments, who started the conversation, you'll agree with me on that?

A. Yeah.

Q. And that you've indicated it might've been you...

A. Mm-hmm.

Q. ...right? You have to say, "Yes" or "No."

A. Sorry, yes.

Q. And you'll, you'll agree it might've been this other woman, M.G.?

A. Yes.

Q. It might've been A.M.?

A. Yes.

Q. But it — you'll also agree with me it might've been M.R. as well?

A. I don't believe he was — I — from what I recall it was us girls that were joking around about it. It wasn't M.R. who made the comment in direct reference to our breasts being a fruit. It was one of us that may have — or that would have made that comment, not M.R. He made the initial reference to holding a fruit in the middle of your chest, but I don't recall him making the comment himself.

Q. But you'll agree with me your recollection as to who it was who made the comment, you don't recall exactly...

A. Right.

Q. ...who it...

A. Yes.

Q. ...was, right?

A. No, I agree with that, yeah.

Q. So it's certainly possible that M.R. was among the, the possibilities of the person who might've made those comments?

A. Yeah.

Q. So it's possible?

A. Yeah, I, I guess it's possible.

[217] Although the witness conceded the possibility, I was left with the distinct impression that she was doing this to try to be as fair as possible to the Crown and I truly doubt that she would have volunteered to testify had that been her recollection of the conversation and the defendant had made those inappropriate comments.

[218] When A.M. was recalled and it was put to her by the Crown that the defendant had testified that he was suggesting that they imagine they were squeezing a piece of fruit during a spin, she replied that she disagreed with that.

[219] On page 21 of the April 7th transcript she stated:

Q. Do you recall him ever using that — you know, pretending that you're squeezing a grapefruit to describe how to hold your arms?

A. No. It was — either you pull your arms in or you don't. You don't line up your students and put them in order of the sizes of the fruits from biggest to smallest.

[220] I note that this conflicts with K.D.'s evidence and goes further than her trial evidence when she stated that he made the comments but did not say that he lined the girls up according to their breast sizes. This is something that I would think would be vividly remembered by K.D. if it had happened that way, rather than a vague recollection of the girls joking among themselves about respective breast size.

[221] When it was put to her that the defendant had felt it necessary to get close to her to speak to her in the noisy environment of the arena, she stated that was not necessary and that she had several coaches who had been able to communicate effectively on the ice with music playing while keeping a respectful distance.

[222] K.M.T. was recalled and asked about the so-called "nipple dress" that she wore to the National Championships. It was put to her that the defendant testified that he might have made a comment about her nipples showing in that dress and that corrective action in the way of nipple guards should be made to the dress. She disagreed and said that no corrective action was suggested or made to the dress.

[223] She also denied his assertion that he showed to her the photograph that he had taken of her in the bed in relation to a discussion about her need to get more sleep.

2.0 Analysis

[224] The central issue in this case is credibility. To arrive at my decision, I have analyzed the evidence presented in this case with the following principles in mind.

[225] One, the accused is presumed innocent unless and until proven guilty beyond a reasonable doubt. The burden of proof remains on the prosecution throughout the trial. The accused has no burden to disprove any elements of the charges. The standard of proof that the Crown is required to meet in any criminal trial is a very high one indeed.

[226] The standard more closely approaches absolute certainty than the standard of proof on a balance of probabilities. In R. v. Starr, 2000 SCC 40, Mister Justice Iacobucci, stated for the majority at paragraph 242:

242 In my view, an effective way to define the reasonable doubt standard for a jury is to explain that it falls much closer to absolute certainty than to proof on a balance of probabilities. As stated in Lifchus, a trial judge is required to explain that something less than absolute certainty is required, and that something more than probable guilt is required, in order for the jury to convict. Both of these alternative standards are fairly and easily comprehensible. It will be of great assistance for a jury if the trial judge situates the reasonable doubt standard appropriately between these two standards. The additional instructions to the jury set out in Lifchus as to the meaning and appropriate manner of determining the existence of a reasonable doubt serve to define the space between absolute certainty and proof beyond a reasonable doubt. In this regard, I am in agreement with Twaddle J.A. in the court below, when he said, at p. 177:

If standards of proof were marked on a measure, proof "beyond reasonable doubt" would lie much closer to "absolute certainty" than to "a balance of probabilities". Just as a judge has a duty to instruct the jury that absolute certainty is not required, he or she has a duty, in my view, to instruct the jury that the criminal standard is more than a probability. The words he or she uses to convey this idea are of no significance, but the idea itself must be conveyed....

[227] In this case, the defendant has testified. I have instructed myself in accordance with the principles of the Supreme Court of Canada stated in R. v. W.(D.), [1991] 1 S.C.R. 742, 63 C.C.C. (3d), 397. There, Mister Justice Cory for the majority indicated that in a case where credibility is important, the trial judge is required to instruct the jury or himself, if it is a judge alone matter, that the defendant must be acquitted if the defendant's evidence is believed.

[228] The defendant is entitled to an acquittal even if the trier of fact disbelieves his evidence but his evidence raises a reasonable doubt with respect to his guilt.

[229] Thirdly, even if the trier of fact is left in no doubt by the evidence of the accused, the trier of fact must, nevertheless, ask himself, on the basis of the evidence which he does accept, if he is convinced beyond a reasonable doubt by that evidence of the guilt of the defendant.

[230] In assessing a witness' credibility and reliability, I must consider the witness' perception, memory and sincerity. I must consider the witness' ability to observe, store, recall and report evidence accurately, reliably and truthfully. I must consider the witness' interest or bias, if any, including animosity. In assessing evidence of a witness, I try to listen carefully to their testimony and make observations of the witness while they are on the stand. I have to take into account that appearing and testifying in court can be a very stressful occasion for many persons and that witnesses can exhibit this in many different ways.

[231] As a result, I do not place as much weight on a witness' appearance or demeanour on the stand than the analysis of their evidence. I prefer to apply a threefold test to the testimony of the witness. I look to see if the testimony is internally consistent; that is, does the evidence fit together and is one piece of their evidence consistent with another? Secondly, is the testimony of a witness externally consistent? Does it fit with other known or accepted facts? Does it fit in with other evidence or testimony that is accepted or believed? Finally, does the testimony have a ring of truth to it? Does it stand the test of common sense?

[232] In short, the real test is in determining if the evidence of the various witnesses is credible. The question is, is it in harmony with the preponderance of the probabilities that a practical and informed person would readily recognize as reasonable in that place and in those conditions?

[233] I can accept some, all or none of a witness' evidence and I am required to weigh all of the evidence. This is not a credibility contest where I have to pick the version of one witness and, by doing so, reject that of another.

[234] The fact that I do not allude to a certain witness or a portion of a witness' testimony or submissions of counsel or case law cited to me does not mean that I have not considered that in arriving at my decision.

2.1: Analysis of the Count of Assault against T.B.

[235] The defendant is charged with an assault against T.B. contrary to s. 266 of the Criminal Code that is alleged to have happened between April 1, 2009 and May 17, 2011. This spans the time that T.B. returned from England and started to take lessons from the defendant again. She alleged that the defendant made inappropriate comments about her body type and that of her sister, suggesting that hers was a curvy body type and her sister's was straight. He is alleged to have said, "I like them curvy". This was alleged to have been said in the presence of her sister, V.B. The defendant denied making these comments, but did recollect that he may have made a comment about body type when explaining the biomechanics of spins while jumping.

[236] This evidence was led by the Crown no doubt to show that the defendant's motivation for the latter behaviour which occurred during the dance instruction was sexually motivated, but I do note that he was not charged with a sexual assault against this complainant.

[237] I found that the defendant's testimony about the ice dancing instruction and the tension demonstration that would sometimes lead to the participants' chests touching to be compelling and that it made sense. To me, it had the ring of truth to it and it was a logical explanation and was well described by him in his evidence.

[238] As well, it was done openly in an arena where numerous students, coaches and parents were present and, therefore, I am prepared to accept that any touching of the chests that occurred in this incident was purely accidental and incidental to teaching the skill that he was paid to do. The description of an aggressive pulling in as described by T.B. is, in my view, a misapprehension of a teaching technique that, on all the evidence before me, I accept was an appropriate one in the circumstances. I highly doubt that M.R. would engage in inappropriate touching with all of these people around. I also accept Ms. Webb's submissions that these were instances where M.R. was wearing gloves and T.B was wearing shirts, a sweater, pants, tights and gloves.

[239] I accept his evidence that he was not aware of any adverse reaction from the complainant and that, if he were, he would have stopped the activity or taken steps to explain its purpose in greater detail to T.B.

[240] Similarly, I find the allegations of the defendant inappropriately touching T.B. while she was getting instruction to be unfounded on the evidence that I accept. I adopt the observations that I made of her mother's evidence, L.B., in paragraphs 93 to 102 of this judgment. T.B.'s evidence was not enhanced or advanced by her mother, whom I found to be a biased and unreliable witness whose conduct in allowing the defendant to continue coaching her daughter from October 2010 until the following March 2011 did not make sense to me.

[241] As well, L.B., who watched the defendant 'like a hawk' on every occasion after the October incident was reported to her by T.B., was asked specifically if she ever saw any inappropriate touching of her daughter, T.B., and she indicated that she did not other than the ice dancing closeness. It is to be noted that she did testify about M.R. rubbing the thigh of her daughter, V.B., while he was up against the boards with her and that is what caused her to storm up to him and discharge him. However, V.B. is not a complainant in any count on the information before me.

[242] I accept the defendant's descriptions given in his evidence about the necessity for placing his hands where he did during instructions on spins and axels. It was well explained, although somewhat technical, and I accept these explanations. I, as well, do not accept that T.B. told the defendant to not pick her up during any of these lessons. I accept that she was a relatively inexperienced and novice skater and may not have understood the necessity for some of the touching as described by the defendant in his evidence which I do accept.

[243] With respect to T.B.'s evidence that her new coach did not instruct her in the same physical manner as the defendant did, I acknowledge that her new coach was a relatively inexperienced coach who did not teach jumps and spins and spirals. I also accept that there would be different coaching styles from one coach to another. The defendant described himself as a 'hands on' coach and readily acknowledged that some other coaches are less 'hands on'.

[244] I can accept that figure skating is a very physical sport and that it requires skaters to put their bodies in positions that are somewhat unnatural and challenging. The physics and biomechanics of the sport would from time to time require the placement of hands or the movements of the skaters' bodies in ways that the defendant suggested in his evidence, both to teach the skill and to ensure safety.

2.2: Analysis of the Count of Assault against A.M.

[245] I had some difficulty with the evidence of this complainant. There was a bias and resentment with her towards the defendant that was palpable. She accused him of being controlling of her.

[246] She admitted that up until about two weeks before she gave her statement to the police on October 19, 2012 if anyone had asked her she would have said that M.R. never assaulted anyone. It was only during that two-week interview and after she had a meeting with K.M.T. and knew that the police were investigating him that she made the allegations that she has against the defendant. At trial, she stated that was because he exercised such power and control over her, but I keep in mind that she had not had him for a coach for several years before this. I also keep in mind that she had issues of abandonment with her father and that the defendant filled a void in her life and in her mind at least he filled the role of a father figure.

[247] She also resented his preference as perceived by her of other skaters over herself. This resentment is manifest in her testimony on re-direct where she states at page 60 of the December 10th transcript the following:

MS. CAMARA: Madam Clerk, may I see Exhibit number 1, please.

Q. When - my friend showed you what's been marked as Exhibit number 1 - it's the Professional Coaches Code of Ethics. You referenced the highlighting on the document?

A. Yes.

Q. Could you explain for us how you viewed the highlighted portions of this - and I can provide it back to you - but how you viewed the highlighted portions of this document, relevant to how M.R. treated you - and I'll give you the document back.

A. Okay. In the first section that was highlighted, it states that - "Exhibited the important character traits of honesty, integrity, fairness, reliability, dependability and co-operation when dealing with all participants in the sport". I didn't always feel like I was treated fairly. And although he was - I thought that he was an honest person, I didn't really see that he treated everybody with fairness. Second part also says "Treats everyone fairly within the context of their activity". Again, I don't think that that was the case. "Refrain from engaging in conduct which constitutes personal harassment or abuse of power". I think that pertains exactly to my statement because it was exactly that - an abuse of power. The period of time that I was with him, I obviously viewed them as second parents and as I began to get older and realize that some of what was going on was obviously not appropriate, is personal harassment and an abuse of power. And "Refrain from engaging in conduct which constitutes discriminatory or sexual harassment" - that was obviously evident when I talked about comparing our breast sizes, because that is sexual harassment and discriminatory against everybody, because all skaters are - everybody's different. Everybody has different sizes. Everyone comes in - "Place the emotional and physical wellbeing of the athlete ahead of personal desire to win" - I have never felt like there was a desire to win with me, necessarily - maybe with, with others. So, I don't know - putting his personal wellbeing in front of mine for other skaters to succeed further.

[248] She had been one of the defendant's most elite skaters and was very successful under his coaching. However, it appears that her success was somewhat eclipsed by that of K.M.T. and she resented the defendant for this and thought that he showed preference to K.M.T. over her and that affected her ability to win competitions. It also soured the friendship that she had with K.M.T.

[249] In cross-examination A.M. was asked about warm cards of endearment and thanks that A.M. had sent to the defendant and his wife over the years as this was evidently at odds with her testimony about the defendant assaulting her. In re-direct in an attempt to repair this damage, Ms. Camara asked the following question and received the following reply at page 60 of the December 10th transcript:

Q. And do you recall - I mean, you were shown a number of different cards and, and letters that you wrote to M.R. and his wife - do you recall specifically ever writing a card or a letter after the comments were made to you about comparing your breast size to pieces of fruit, for instance? Do you recall ever sending him cards after that?

A. No.

[250] This is clearly not an honest answer because Exhibit 7 was written by her in 2006 and it is my understanding from all of the evidence and the evidence of K.D. that the fruit comparison comments were made when A.M. was 12 or 13 years of age which would have been in 2003 or 2004. She was born in […] 1991 so that glowing letter of thanks was written to the defendant when she was 15 years of age, after the time, on her evidence, that she stated he started to take an interest in her body as she went through puberty and two to three years after the breast size comments were allegedly made by him. It was also written the same year that her parents abruptly terminated the defendant as her coach.

[251] This same bias pervades the evidence of her mother, M.J.M., who testified in this trial.

[252] I did not find M.J.M. to be a credible witness.

[253] Her displeasure with M.R. seemed to be directly proportional to her daughter's diminished competitive standing and the number of competitions that she won. If she was doing well, she was happy with the coach. If she was not, then she was displeased with him.

[254] As president of the skating club, her authority to approach the defendant and direct him to not act in the inappropriate manner that she thought was obvious was apparent, yet she did not do anything other than, on her own evidence, tell him on a few occasions that she was unhappy with his conduct.

[255] She talked of intimidation and favouritism and at one point alluded to the plentiful and enthusiastic supporters of the defendant from the skating club that attended the trial.

[256] Indeed, at times they exhibited inappropriate behaviour that I had to correct during the trial, conduct such as rolling the eyes, laughing, talking during witnesses' testimony and generally bullying behaviour.

[257] This gave me a glimpse of the rather dysfunctional workings of this highly competitive club's members and what I saw I did not like.

[258] There was an aura of intimidation of witnesses that I felt was, at times, quite visceral. The glares and looks of disapproval from the gallery of the defendant's supporters while Crown witnesses were testifying was quite off-putting and I found that it was a challenge for me to put aside my opinions of their presence and not to attribute their poor courtroom conduct and let it influence me in my analysis to the detriment of the defendant.

[259] Much as soccer hooligans are a wart on the face of their county and their supported team, the support for the defendant seemed to be of the same class, although somewhat more genteel and refined if only in their own minds.

[260] The bias exhibited against M.R. during this trial made both M.J.M and A.M., in my view, ineffective witnesses in advancing the Crown's case, and coloured and tainted their evidence so that I give it little weight in the analysis.

[261] I find that A.M.'s description of the incident where the defendant had her sleep over at his home and entered her room, kissed her and pulled up her sheets and patted her on the arm, as I find he did, is not an assault and was done as a show of affection, even if misplaced and inappropriate.

[262] Regarding A.M.'s account of the incident where she was selecting music at his home and that he came and lay down behind her and 'spooned' her and stroked her hair, I find that this was implausible and unlikely and I reject her evidence regarding this account. I note that on A.M.'s evidence, the defendant's wife was present during this time in the kitchen that was only a few steps away and was carrying on a conversation with them.

[263] This type of conduct would not, in my view, have occurred in full view of his wife for the time and duration as suggested by the complainant or at all.

[264] For reasons similar to my reasons in rejecting the allegations against T.B., I find that the improper touching of the complainant as alleged is unfounded.

[265] It is noted that in her evidence at trial, A.M., for the first time, stated that the defendant had touched her on the groin when he was instructing her in a skill. In her police statement she admitted that she did not mention that he placed his hand on her groin, only on her leg. This is an inconsistency that hurts her credibility, in my view.

[266] I also note that this alleged conduct occurred in a public arena, with parents, friends and other students and coaches present, and if inappropriate behaviour such as this was taking place I would have expected to have heard evidence from other witnesses about it.

[267] I finally note that K.M.T., whose evidence I do find credible, stated that even though she had many complaints and criticisms of the defendant's behaviour, he never touched her inappropriately while teaching her skills to her. She took many joint lessons with A.M. and was at the arenas, no doubt, on numerous occasions when A.M. was being taught. They were friends at one point. They were the defendant's elite students and, for a time, of roughly equal skill and ability and accomplishments.

[268] Although they agree on the hyper-controlling nature of the defendant, and I find as a fact that they did so in their meeting before they gave their police statements, A.M. never apparently mentioned to K.M.T. these concerns of inappropriate touching during instruction.

[269] More importantly to my analysis, K.M.T., who was rightfully disturbed by certain aspects of the defendant's behaviour and would have been hyper-vigilant to his conduct or physical touching of her or other students, did not waiver from her evidence that the defendant did not touch her inappropriately at any time during their lessons while teaching her skills.

[270] I accept the evidence of the defendant in preference to that of the complainant, A.M., regarding the pinning against the boards of A.M. and placing his head against hers while they were having conversations during practice. I accept the defendant's explanation that he wanted to be closer to A.M. so that he could be properly heard in the noisy environment that they were in and I accept that this may have invaded her personal space, but I cannot find that this makes out an assault as alleged by the Crown.

[271] I find that his touching of A.M. during instruction was, on the evidence before me that I accept, a necessary and integral part of his skills instruction and that there was an implied consent to this touching given by the complainant.

[272] That she never verbally complained to him and that he did not pick up on her body language and tenseness when she was uncomfortable with his hands-on approach is not something that I find can be held against him or informs the analysis. He is not a mind reader and cannot be expected to be.

[273] His inability to pick up on a student's reticence with a teaching style may be a criticism of him as a coach, but it cannot serve to elevate his conduct to that of a criminal nature.

[274] I cannot with any comfort conclude that the Crown has proven to their requisite standard of proof beyond a reasonable doubt that the defendant committed any assault against A.M.

2.3: Analysis of the Counts of Sexual Assault against K.M.T.

[275] I accept the evidence of the witness, K.M.T., wholeheartedly and I found her to be a refreshing, truthful and candid witness. She openly admitted her dislike of the defendant's behaviour and I accept her conclusions that it was inappropriate and unnecessary. Yet, she did credit M.R. with advancing her career and easily admitted that he 'knew his stuff'.

[276] Some of the acts of the defendant that have been related to me in this trial, and indeed that he has admitted to, I find troubling.

[277] The taking of the photographs of K.M.T. while she was sleeping was disturbing and the fact that he kept it until the trial of this matter is also perplexing.

[278] If he had taken the picture for the sole purpose of showing that she needed to nap during the day, then why would he not have taken it, shown it to her and then deleted it?

[279] I prefer K.M.T.'s evidence to that of the defendant's that there was more than one photo taken and that one showed a view under her skirt that more prominently displayed her buttocks than the one that was entered as an exhibit at this trial.

[280] Even if the picture was taken to illustrate, as the defendant asserted, that K.M.T. needed to rest during the day and indeed did so, a picture of her sleeping without showing her underwear would have sufficed. However, doubting as I do the evidence given on this issue by the defendant, this conduct, although distasteful and inappropriate, is not the subject of a criminal charge against the accused.

[281] As may have been signalled earlier on in my review of the evidence, I found K.M.T. to be a very credible and delightful witness.

[282] Generally, where her evidence differs from that of the defendant's, I prefer her evidence to his.

[283] However, accepting her evidence at its highest, I fail to see where a sexual assault has been made out to the requisite standard of proof beyond a reasonable doubt.

[284] Most sexual assaults coming before this court involve allegations of acts that were conducted surreptitiously and furtively and that did not involve acts conducted in a public space with witnesses present. The sexual assault against K.M.T. allegedly occurs in a public arena in Kitchener Waterloo with a witness that was present and observed the incident and interacted in it that the Crown chose not to call.

[285] Certainly, inappropriate conduct has been established to my satisfaction. Why on earth would he think that it was appropriate for a man of his age in his position as a coach and mentor to lie down in his own bed with a young teenaged girl and watch television while she was sleeping as he testified may have occurred?

[286] That he fell asleep in his bed and that K.M.T. woke up to see him six inches from her face would have surely been shocking to her and that is something that he should have anticipated and avoided.

[287] However, there are no allegations of inappropriate touching during this incident and, therefore, there can be no sexual assault if the foundational assault is not present.

[288] His kissing and hugging of K.M.T. cannot, in my view, be seen as anything other than a celebration of her accomplishments or a consolation of her setbacks as described by the defendant. It may have been excessive and uncomfortable to her, but this was not communicated to him and it is not unusual in this sport when an athlete accomplishes a goal or experiences a setback.

[289] This is illustrated by the evidence at this trial that the 'kiss and cry' area is an area where the skater goes to receive their score, and whether the conduct that follows is kiss or cry depends primarily on their performance.

[290] The stroking or rubbing of K.M.T.'s arms or back, as described by her, in a public arena with numerous people present, however off-putting to her, does not, in my view, rise to the level of a criminal offence.

[291] Although I do not necessarily accept the defendant's evidence that the grabbing of K.M.T. by her ribcage and the shaking of her on the blue line in a public arena was an assessment of the appropriateness of a dress that she intended to skate in that he says showed her nipples, I am unable on the second prong of the W.D. test to say that his evidence does not raise a reasonable doubt in my mind.

[292] I cannot rid my mind of the possibility that he was assessing the dress to determine whether it was one that she should wear a bra with or utilize nipple guards on, even as uncomfortable as I am with that assessment being conducted by an older man on a young talented skater.

[293] I suspect that the incident as described by K.M.T. was more accurate and truthful, however this suspicion does not elevate my analysis to allow me to cross the threshold from probably guilty to guilty beyond a reasonable doubt.

[294] Similarly, with regards to count three of the information that M.R. committed a sexual assault on K.M.T. when he put his hand inside her skirt after having met her in the Kitchener Waterloo arena and commenting on how she had lost weight, I acknowledge that this was understandably an uncomfortable and unsettling experience for K.M.T.

[295] However, I cannot accede to Ms. Camara's able submission that this was a sexual assault. Again, it was done in a public area and K.M.T.'s friend was present and took some steps to intervene. Yet, I heard no evidence from this witness about this incident that should have been readily available. That evidence may have served to inform me as to whether this was just a boorish comment on a previous student's weight loss when weight was always a consideration with elite skaters.

[296] Was it necessary to spin the complainant around while looking at her chest and buttocks as she testified to? No.

[297] Was it necessary to insert his hand into her skirt to show a looseness of her clothing to emphasise this perceived weight loss? Certainly not.

[298] Had K.M.T. testified that the defendant had touched or squeezed her buttocks or massaged her or done anything other than insert his hand into the seam of her skirt that was loose, then he would have had an exponentially greater exposure to a conviction on this count than he has on the evidence before me.

[299] What I find happened, accepting the evidence as credible from K.M.T. as I do, is that he acted in a boorish, inappropriate and insulting manner, but not one that fits the definition of sexual assault.

[300] I need not and shall not engage in a pseudo academic analysis of the case law that has been provided to me by counsel. Suffice it to say, I have considered and reviewed all of those cases and they do not necessarily merit mention in this case. We all know what an assault is and what a sexual assault is.

[301] We know what the principle of de minimus means.

[302] This is a fact-driven case based on an assessment of the credibility of witnesses and an interpretation of basic principles of law as applied to the standards mandated by cases that establish the necessity of the Crown proving a case beyond a reasonable doubt.

[303] It is not meant to be an educational exercise for law students on the subtleties of de minimus non curate lex or implied consent.

[304] It is meant to be a map of my reasoning that I have taken to reach my conclusions directed to the parties involved. It may be a somewhat convoluted and murky journey, yet I hope that in the end it is seen as a just and considered one.

[305] There are no winners in this case, only losers. M.R. has probably had his reputation irrevocably destroyed despite my findings in this case and indeed by the mere laying of charges of this nature against him.

[306] Young women and their parents who have testified before me in this trial that have had my cold and critical eye focused on them may feel stung by my criticisms of shortcomings in their evidence. I wish to console them if I can in that my criticisms of their testimony or demeanour is not meant to denigrate them, but only to critically assess the evidence before me in a way that I am bound to by my oath as a judge.

[307] Each of them in their own individual way have shown courage in coming forward and reporting wrongs that they felt have been committed. The society of this sport is one that I have struggled to understand. What breeds excellence in this sport also engenders a hyper-political and unnatural environment for young teenagers to develop in.

[308] I wish to end by extending my gratitude to both counsel involved for their very fair, helpful and professional conduct of this case.

2.0 Conclusion

[309] For all of the above reasons the defendant, M.R., is found not guilty on all counts in the information.

[310] I am releasing these reasons in advance of the next scheduled court date to the parties.

[311] As such, I propose to not read these reasons aloud but simply append a signed copy of these reasons to the information and it will, therefore, not be necessary for the defendant or his counsel to appear at the next court date. I will put on the record that, as a result of the reasons attached, all charges against the defendant are dismissed.

Released: July 24, 2014

Signed: "Justice Stephen D. Brown"