WARNING

The court hearing this matter directs that the following notice 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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Ontario Court of Justice

Date: November 14, 2017

Between:

Her Majesty the Queen

— and —

M.L.

Before: Justice André L. Guay

Heard on: August 15, 2016 and December 6 and 7, 2016

Applications 276.1 and 276.2: February 27, 28, April 19, 20, 21, June 8 and 9, July 25, 2017

Reasons for Judgment released: November 14, 2017

Counsel:

Julie Lefebvre — counsel for the Crown

John Norris and M. Conway — counsel for the defendant M.L.

GUAY J.:

Introduction

[1] On June 9, 2015, the accused, M.L., was charged with sexually assaulting SS pursuant to s. 271 of the Criminal Code of Canada. He was also charged with touching SS, a person under the age of 16 years for a sexual purpose, contrary to s. 151(a) of the Code, inviting SS, a person under the age of 16, to touch his body for sexual purpose contrary to s. 152 of the Code and, when in a position of trust with respect to her, touching SS with a part of his body contrary to s. 153(a) of the Code. On April 20, 2017, during the course of the trial, the Crown stayed the two counts relating to touching a person under the age of 16.

[2] The accused, the complainant's high school teacher, pled not guilty to the charges against him, maintaining that he had never had any sexual involvement with her but rather that he had acted as a mentor for her throughout the period of the alleged offences. As there was no witness to the events underlying the charges, the main issue in this case is one of credibility.

[3] To determine credibility in this matter, a careful analysis of a number of questions has to occur. Among these questions are the following:

(a) when did the alleged sexual relationship between the parties start and when did it end;

(b) how did the alleged sexual relationship between the parties arise and what caused it to terminate;

(c) what alleged sexual activity took place;

(d) where did the alleged sexual activity take place;

(e) was there opportunity permitting the alleged sexual activity to occur;

(f) is there evidence, forensic or otherwise, which corroborates some or all of the complainant's allegations.

The Complainant's Story

[4] On June 5, 2015, the complainant confirmed to her father that she had been involved in an inappropriate sexual relationship with the accused, her former grade 10 automotive technology teacher. This disclosure was prompted by a computer friend of hers residing in another city in eastern Ontario.

[5] This was not the first time that there had been an allegation of sexually inappropriate conduct towards her by this teacher. In February 2015, allegations that the accused had given the complainant money to buy a dildo led to a meeting between school officials, the complainant and the complainant's parents where they sought to have the accused dismissed from his teaching position. Given the complainant's denial about the accused's involvement, the matter went no further and the accused was permitted to continue teaching at the complainant's high school.

[6] On June 5, 2018, however, new and far more serious allegations were made by the complainant involving alleged acts of fellatio, cunnilingus and sexual intercourse between her and the accused. At this time, the complainant was in grade 11 but was not taking any courses from the accused. She was, however, constantly in attendance in his classroom, the school's automotive shop, where she spent a lot of her leisure time and worked on cars in the automotive shop. The shop was divided into two sections basically, one section being a traditional classroom and the other being, for all intents and purposes, a body shop with a welding sub-room component.

[7] The complainant, then 16 years of age (her 16th birthday fell on […] 2014), gave two statements to the police (not filed in evidence but the subject of cross-examination). In her evidence she testified how, until the fall of 2014, she had had a normal student-teacher relationship with the accused. She explained how this relationship had become a sexual one after the accused gave her money to buy a dildo. The use of the dildo was to have been her way of remaining faithful to her boyfriend, CD, who was away studying in London, Ontario. The accused said that she had gone to the accused for advice about how to handle her sexual needs and that he had recommended that she purchase a dildo. In short order, she alleged, and in reply to her question about how to use it, he offered to show her how.

[8] The evidence established that the dildo was purchased by the complainant on November 12, 2014, from a store in a local mall not far from her high school.

[9] On that occasion, the complainant was accompanied by her best friend, D.W. (also known as "DK"). DK testified about this event at the trial.

The Complainant's Evidence

[10] The complainant testified that instead of showing her how to use the dildo, which she allegedly forgot to bring with her to their first pre-arranged meeting, the accused had sexual intercourse with her. While she was unable to confirm that she told the police that the alleged intercourse with the accused had occurred four or five times, she did admit to telling them that it ended in mid-December 2014, when her boyfriend returned to Sudbury to resume his schooling. Challenged on what she told the police about the frequency of her intercourse with the accused, the best the complainant could do was to say that she did not remember. In other areas of cross-examination, she would also maintain that she had no recollection of the events in question.

[11] The complainant took the police to the place where the alleged sexual intercourse took place in the vicinity of the village of Skead on the outskirts of Sudbury. While her evidence at trial was that the accused would pick her up on Wednesdays after school, a block away from her home, usually between 3:30 p.m. and 3:45 p.m. in his Subaru vehicle, this was clearly not what she told others about the frequency of her intercourse with the accused.

[12] The complainant testified that there had been four other acts of sexual contact between her and the accused, two occurring in or about the accused's classroom premises (the auto shop), and two occurring at the rear parking lot of College Boreal, a local community college in Sudbury. She did not mention these events to her principal and her superintendent at their disclosure meeting on September 18, 2015, some months after these events took place.

[13] At trial, the complainant gave quite a different version about what she alleged had happened between her and the accused, often being unable to recollect dates or events. When pressed on how she had come to purchase the dildo, her evidence about how this happened and what the accused knew about it lacked credibility. The complainant testified that the accused had slipped her $100 to purchase the dildo because she did not have enough money from her babysitting work to pay for it. She testified that she had texted the accused from the store where she purchased the dildo and sent him a picture of it. She subsequently testified that she had texted the accused and sent him a picture of the dildo on her way home on the bus after the purchase. Evidence was found to corroborate this either in the data dump from the complainant's cell phone or from the accused's cell phone records. The police were unable to recover her alleged text message on this matter from her cell phone records which they scrupulously vetted. Nor, for that matter, were they able to recover nude pictures of herself she allegedly sent to him on either his cell phone or hers.

[14] The accused would testify that the complainant never sent a picture of the dildo to him and that he had only later become aware of it when it was either shown or mentioned to him in class. He would maintain that the money he lent the complainant was intended by him to financially assist her with the purchase of a ticket to travel to London to see her boyfriend during the Christmas holidays.

[15] The complainant testified that around the lunch hour at school a couple of days after the purchase, the accused offered to show her how to use the dildo. This was, she insisted, what led to their first act of intercourse in Skead a short time later. The complainant testified that when she was picked up by the accused for the purpose of showing her how to use the dildo, she forgot to bring it because she was in a hurry. I find it hard to believe that she could have forgotten to bring the dildo to this meeting, the very reason for which was for him to show her how to use it. This evidence does not fit with the complainant's evidence that the accused had earlier told her to bring the dildo to school and keep it in her locker. If this event was arranged for the purpose alleged by the complainant, one must question why she would then suddenly have gone with him to an out-of-town location to engage with him in an act of full-blown intercourse. While anything is possible in human relationships, this would have been both a quantum and unforeseen leap in a forbidden relationship between a student and her teacher. This does not fit with the cautious albeit enthusiastic profile of the accused disclosed by the evidence.

[16] More problematic in this matter are the questions of when exactly the alleged sexual conduct between the accused and the complainant began and when it ended. The complainant gave different versions of these dates. At one point, she indicated that it started days after the purchase of the dildo and, later, that it started two weeks after she purchased the dildo. She also testified that the first act of sexual intercourse between her and the accused occurred after her birthday on […], 2014. If we look at the date on which the dildo was purchased, this according to the evidence being November 12, 2014 and the complainant's evidence regarding the accused's alleged offer about how to use it, we cannot reconcile her evidence on these important points. Having sex with your teacher, a person more than twice your age, when you have just recently turned sixteen, is not a matter the important details of which you cannot recall, especially within a relatively short time of their occurrence, as was the case here.

[17] The complainant's evidence about the sexual intercourse occurring after her birthday presents a further evidentiary problem in that the one thing she was consistent about was that her sexual relationship with the accused lasted for a period of three months. She testified in cross-examination that she was "exactly 110% sure that it (the sexual intercourse with the accused) lasted three months". Her testimony was that this sexual intercourse came to an end when her boyfriend, CD, returned to Sudbury to resume his education. She was really never certain about when her boyfriend did return to Sudbury from London. This is a crucial point because either the complainant knows the date with a degree of certainty or her evidence becomes problematic and her credibility suffers.

[18] Elsewhere in her evidence, the complainant seemed to settle on February 2015 as signalling the end of her sexual relationship with the accused. This was notwithstanding that her relationship with her boyfriend, CD, had resumed upon his return to Sudbury and had lasted until they broke up in late January or early February 2015. In reviewing the complainant's evidence then, no clear evidence emerges about the date on which the complainant's alleged intercourse with the accused stopped.

[19] The complainant, 17 years of age when she testified, was 16 when the events complained of in this matter allegedly unfolded. While one must give some weight to the fact that she was a young 16 year old at the time, the events alleged were of such a nature that one cannot but be puzzled that some of the key elements of the accused's alleged conduct and her relationship with him are not clear in her mind. I am not speaking here about specific dates but, even allowing for the fact that the complainant's memory was apparently less than perfect, her inability to recall the dates on which key events unfolded in this matter makes one wonder whether she was imagining some or all of them occurred. By changing her evidence at different times as to when her alleged sexual relationship with the accused began and ended, she raised the possibility that her allegations could be seen as fabricated. Given the proximity of the alleged events to the time of her testimony at trial, it is reasonable to expect that when challenged on the veracity of her allegations, the complainant would have had a clearer recollection of when her alleged relationship with her teacher began, when it came to an end and what brought it to an end.

[20] The complainant's initial statement to the police that sexual intercourse with the accused took place only four or five times is in stark contradiction to her evidence at trial that it took place every Wednesday for a period of three months. This evidence is in even greater contrast to her initial disclosure to her high school principal that it took place every second day after school. If the alleged sexual intercourse with the accused did commence after her birthday on […], 2014, and ended upon the return of her boyfriend at the end of December or early January 2015, as the complainant at one point maintained, then we have those acts of intercourse only occurring over a period of six weeks or so, bearing in mind the fact that the acts of sexual intercourse were not alleged to have occurred during the two-week Christmas break occurring between December 19, 2014, and the first week of January 2015. The complainant's evidence that the alleged sexual intercourse with the accused was still taking place after her boyfriend returned to Sudbury throws serious doubt on her allegation that it stopped upon her boyfriend's return.

The Accused's Evidence

[21] The accused elected to testify and in doing so quickly denied all of the complainant's allegations. After recounting his professional history, the accused related how he began teaching at the complainant's high school in 2012 and how she had been a student in his grade 10 transportation class. While, according to the accused, the complainant was not a student of his in the 2014-2015 academic year, he recounted how she spent increasingly "more and more and more time" in and about his classroom, including the automotive shop. Her attendance there in the 2014-2015 school year was constant, occurring during the lunch period as well as other periods of the day when she was free or might choose to skip classes she was supposed to be attending.

[22] The accused had been a mechanic for many years prior to becoming a teacher, so it was natural that he would take charge of the school's automotive program. The accused's established a very successful lunch hour program in the automotive shop's premises and many students were in attendance at that program throughout the year. The school day started at 8:20 a.m. and finished at 2:20 p.m. The evidence established that a number of students were continually in attendance at the automotive shop both before school started and for approximately two hours after the final bell rang for the day at 2:20 p.m.

[23] When asked what he did after the school day finished, the accused indicated that he used the time for cleaning up, doing corrections and working on automobiles with interested students who had remained in the auto shop to work on their cars or other cars in the shop. When asked to assess the complainant, his opinion was that she excelled at the technical aspects of automotive work but was not academically a strong student.

[24] The evidence indicated that the accused was very personable and that his passion was working with at-risk students. The evidence also established that he not infrequently lent students money to buy food and to purchase car parts with which to repair their cars. In this light then, the $100 or so loan made by him to the complainant, while not trifling, was not unusual. While his practice of lending money to his students was uncommon among teachers, it does fit with the accused's strong commitment towards them, even students who were not strictly his responsibility. The accused was very open in talking to students about school problems and their personal issues and appeared very concerned about the social vacuum in which a number of students at the school found themselves.

[25] The accused's professional life took a turn for the worse when, in February 2015, rumours began to circulate in the school that he had given the complainant money to purchase a dildo. These rumours reached her parents and they attended a meeting at the school on February 23, 2015, with the school principal, P.M., and her vice-principal, M.S., to discuss the matter. At this meeting, the complainant denied that the rumours were true and the matter was resolved; the accused was allowed to continue teaching.

[26] By June 5, 2015, matters again came to a head. On that date, the police were called in and the complainant made much more serious allegations against the accused. She told the police that she had been involved a sexual relationship with the accused, her teacher, since October 2015, at which time she would only have been 15 years of age. This complaint quickly led to his arrest by the Sudbury police. The police asked for and received the complainant's cell phone. From it, they were able to extract some 7000-8000 text and other messages. They did so with a view to discovering evidence substantiating the complainant's allegations.

The Cell Phone Data

[27] The texts and messages retrieved from the complainant's cell phone were the object of the accused's application for access pursuant to s. 276.1 of Criminal Code. Having reviewed all of these messages for this purpose, I was surprised to discover how very little information these texts and messages revealed about the accused's alleged relationship with the complainant. Notwithstanding the Crown's attempt to identify in these texts and messages a covert relationship between the accused and the complainant, I found that they did not establish any sexual contact or communication between them. While these texts and messages were the focus of the Crown's attack on the accused's credibility, I find that they did nothing to undermine it.

Character Allegations Against the Accused

[28] The accused was confronted with information that he had picked up the complainant and her friend, D.W., at a local mall shortly before Christmas 2014. He was also accused of paying for that friend's tattoo. These allegations were intended to help establish the accused's propensity to relate inappropriately to young female students. On both occasions, as it turned out, the accused had insisted on his wife's presence on these occasions. The evidence disclosed that the accused's involvement with the two girls was at all times professional, flowing perhaps from his possibly excessive zeal to serve his students. I accept the accused's evidence with respect to these events, particularly as they were corroborated by the testimony of his spouse, P.L.. With respect to these matters, I found her evidence to be credible, notwithstanding her clearly positive spousal relationship to the accused.

[29] Despite the Crown's rigorous cross-examination of the accused, I find that he offered a reasonable explanation for the various allegations brought against him. If he is to be faulted for his conduct towards his students, it is arguably for his failure to establish an appropriate distance between himself and them. More than one student noted the complainant's familiarity with the accused and the fact that she constantly pestered him, venturing along with others to access his classroom desk and encumber his working area with her personal effects and even her birth control pills.

The Evidence of Third Parties

[30] The accused called a number of persons, mostly students, to testify in his support. He also called his wife, P.L., in his defence.

P.L.

[31] P.L. impressed me as a thoughtful and honest person. She testified that she worked out of her home office for an insurance company, noting that the desk from which she carried out her work during the day overlooked the front of her home. She noted how at all times during the day she could see her husband's grey Subaru parked in their driveway. She testified that it was usually always there and that she would have known if her husband was using it or not. She said that he did not use the car to go to work, preferring instead to walk to work and back each day. P.L. described her husband as a creature of habit, noting that, and this is consistent with the evidence of others, he would regularly come home around 5:00 p.m. from school each day. She did not recall him taking the car after school and driving it away except on rare occasions and then usually for school-related purposes. This is notable given that the estimated time it would have taken for him to meet the complainant, do what she alleged and return home was agreed to be in the range of three hours. I find that if an illicit relationship with the complainant had been going on over a three-month period every Wednesday after school starting in mid-November 2014, she would have noticed it; she did not. It is also reasonable to infer that even if there had only been four or five episodes of sexual intercourse between her husband and the complainant in Skead during the same time frame, she would surely have been asking him what was going on.

[32] As noted earlier, P.L. gave the lie to the allegation that the accused had had inappropriate contact with the complainant and her friend, D.W., on two occasions. One of these occasions took place when both she and her husband assisted D.W. with the purchase of a tattoo in December 2014. This tattoo was intended by D.W. to be her Christmas present for her mother. I accept that P.L. accompanied D.W., the complainant and her husband to the tattoo parlour and that he lent D.W. the balance of the money she needed to pay for the tattoo (approximately $45) when she discovered that she did not have quite enough money to pay for it herself.

[33] The other incident alleged against the accused involved the pick up of both the complainant and D.W. at a local mall. I accept that the girls called on the accused for assistance to get them home after finding themselves in danger at a local drug house. In this and the other incident, the accused acted professionally in seeking out his wife's accompaniment in order to assure the propriety of his actions as the teacher of the two girls. There was nothing in either of these events suggesting that there had been any inappropriate intention or conduct on the accused's part.

[34] While deceit and infidelity are not unknown in marriage, there is nothing in P.L.'s testimony or in the accused's reported behaviour towards her during this period suggesting that she was concerned or ought to have been concerned about his relationship with one of his students and, in particular, the complainant. There is nothing to suggest that the accused's relationship with his wife was in trouble and that there might therefore be a motive on his part to seek emotional or sexual gratification elsewhere, especially with one of his students.

Accused's Former Students

[35] The accused called a number of his former students, both male and female, to testify about his relationship with the complainant and the rest of his students in general. What emerged from their evidence is a picture of a hard-working and very committed, enthusiastic teacher, who very much enjoyed his teaching career and supporting the students who came to him for assistance.

[36] Even the complainant herself continued to describe him as a great teacher and a person to whom she had turned for guidance and assistance on a variety of personal matters including, on one occasion, the matter of an STD she had contracted. The advice the accused gave her about this matter when she came to him about it in May 2014 appears to have been good advice. What is puzzling in this respect is that having supposedly taken the accused's advice to heart, the complainant allegedly went on to engage in fellatio with him on more than one occasion, including one during which he was alleged to be having a herpes outbreak, without any protection.

A.S.

[37] A.S., a grade 12 student at the complainant's high school was taught transportation technology by the accused in the fall of 2014 when he was in grade 10. He reported that he was in the accused's class every day for the whole year and that after school, he often stayed behind to work on car repair projects. He also said that he was in the automotive shop area two out of every three days a week with other students. He described the atmosphere there as "upbeat". A.S. testified that he would usually leave the school between 4:00 p.m. and 5:00 p.m. at the same time as the accused and would walk some way home with him. He was the young man who accompanied the accused to a TMTA automotive meeting at the Howard Johnson Hotel on Brady Street in Sudbury in March 2014.

[38] When asked about the complainant, A.S. testified that she liked to get the accused's attention a lot and was or always seemed to be present. He testified that the accused treated the complainant like any other student in his class. He noticed that the complainant would always follow him around the classroom asking questions and that the accused would try to redirect her to other tasks. She would, he noted, nevertheless keep bothering him. A.S. said that the complainant liked to talk about her personal problems in front of the class and the accused, but that the accused would try to redirect her away from the subject by bringing up different subjects. Asked about whether he had ever noticed the accused's car at school, he said he had noticed it there, but that it was "very, very rare" for this to occur.

A.N.

[39] Another of the accused's students, A.N., took shop from the accused in the fall of 2014. He testified about the very good atmosphere prevailing in the accused's class. He recalled how the accused had helped him to obtain a part needed to repair his older model Volkswagen vehicle at a reduced price.

[40] When asked about the complainant, A.N. indicated that she was not the kind of person he wanted to hang out with because she appeared to be very self-centred. Alluding to the complainant's inclination to engage in drama, to which she herself admitted. A.N. remembered that if there was something going wrong in the auto shop, it had to be about her. When asked how the accused responded to the complainant's behaviour, he said that he would tell her to sit and calm down.

R.G.

[41] R.G., yet another of the accused students, testified that during his Grade 10 year in 2014-2015, he took automotive mechanics from the accused. Every day after school was dismissed, he recalled, he would come to the auto shop and work with the accused repairing cars. His parents would usually come to pick him up around 4:30 p.m. each day. He and the accused, he said, would leave the shop at the same time, with the accused walking home.

[42] R.G. described the complainant as outspoken, particularly about personal relationships. He testified that when such topics were broached by her, the accused would shut her discussions down right away. In his opinion, if students came to the shop area when they ought not to have been there, the accused would try to send them back to their class. Failing this, the accused would allow them to stay but, he would put them to work. R.G.'s testimony on this point is consistent with that of other witnesses.

[43] The evidence of these students who reported to being regularly in attendance at the auto shop after school frequently if not daily day is consistent with that of other witnesses. While there is always the possibility that the accused engaged in sexual intercourse with the complainant after school hours elsewhere or in a secluded place on school property, it is important to remember that establishing that this occurred is not a matter of concluding that it could happen. To come to this conclusion, the evidence must show that it did happen beyond a reasonable doubt.

D.W.

[44] The court heard from the complainant's best friend at the time, D.W.. She had been the accused's student in her grade 9 class when she took an auto mechanics course from him. D.W. recalled how the doors to the accused's classroom were always open. She was in attendance in the accused's classroom every day where, she said, the accused helped a lot of students.

[45] Reflecting on what she had observed of the relationship between the complainant and the accused, D.W. testified that she had never observed anything sexual going on between them. "Nothing", she testified, struck her as odd in the complainant's relationship with the accused. The accused, she recalled, did not treat the complainant differently than any other student in his class. One would have expected this not to be the case if the complainant's relationship with the accused was as intense as alleged by the complainant. D.W. described the accused's class as a "refuge" and the atmosphere in that class as "welcoming", noting that he preferred students who did not belong in his class to go elsewhere.

[46] When asked about the purchase of the dildo, D.W. said that she could not really say why the complainant had asked to borrow the money from the accused. She said that she "assumed" the accused had given it her to buy a dildo. She thought it weird that the accused had given her money for that purpose. Asked about whether she had seen the text the complainant allegedly sent to the accused about the purchase of the dildo, she testified that she had never seen such a text, but rather that the complainant later told her that she had sent the accused one.

[47] When questioned about the use of code words to speak about sexual matters in the classroom, D.W. confirmed that students in the automotive program used "car parts" language to describe sexual body parts and that this happened all the time in class. Her testimony did not establish, however, the use of such language by the accused and, in particular, by the accused with the complainant.

[48] By virtue of her close relationship with the complainant, one would have expected this witness to throw more light on the alleged sexual relationship between the complainant and the accused while in attendance at high school. D.W. left the high school to take part in a co-op program in the period between February 2015 and June 2015. It is clear, then, that she was or could have been a witness to some of the events which transpired in this matter prior to February 2015.

[49] Notwithstanding D.W.'s past and continuing relationship with the complainant, it was clear from her evidence that the complainant did not disclose any wrongdoing to her on the part of the accused during the course of this matter. It was only after the police had been called to the complainant's home on the evening of June 5, 2015, that D.W. would have had more knowledge about what had been alleged by the complainant.

N.C.

[50] More troubling for the complainant's credibility was the evidence of her friend, N.C.. The complainant went to see N.C., a former student at the complainant's high school, before she left for Alberta in the late summer of 2015. N.C. had been a student of the accused and still thought well of him. She took what she described as a "high skills major" with him in grade 11 during the 2014-2015 school year.

[51] N.C. spent a lot of time in the school's auto shop during this period. She recalled how she attempted to protect the accused's privacy from other students hanging around his desk when he was otherwise occupied. She testified that the accused had been present in class when the complainant raised the issue of having an STD before the complainant's boyfriend left for London, Ontario in the fall of 2014. It was her recollection that rather than discussing this matter in open class, the accused reminded the complainant that such a matter was a personal matter respecting which she should be speaking to her parents and her doctor. The accused, she stated, did not feel that other students should be hearing about this in class.

[52] On the matter of when CD, the complainant's boyfriend, left Sudbury for London, she recalled this being in September 2014. When asked when he returned, it was her evidence that this occurred around December 17, 2014. While N.C. acknowledged that her recollection on this point was aided by what she had seen on Facebook, I note that she showed herself to have a very good memory about the events to which she was a witness in this matter. Since this information is consistent with the date provided by the accused in his testimony, I accept it as the date on which CD did in fact return to the complainant's high school in Sudbury. This date is significant in understanding the credibility of the evidence in this matter.

[53] Of great interest in N.C.'s testimony was her discussion with the complainant before the complainant left Sudbury to go to Alberta at the end of the summer of 2015. N.C. testified how, in the past, she had been sceptical about what the complainant would disclose to her. She testified that she was a person to challenge what the complainant often said, in the belief that she would not initially, always get from the complainant's the exact story about what was happening or had happened in her life.

[54] At a meeting which took place at her place of work prior to the complainant's departure for Alberta, N.C. testified, the accused told her that her former teacher had touched her leg "inappropriately". N.C. recounted how she had challenged the complainant in order to get the true story about what had happened from her. Having done so, N.C. recalled that the complainant eventually admitted that what she had said about the accused had not happened and that her boyfriend (the boyfriend from Pembroke) had made her do it and had made her go to the cops. "I remember saying", N.C. testified, "that I would have asked the complainant at the time that if what she told the police was not true, why was she not going to tell them". According to N.C., the complainant told her that "she could not go back on her words because her boyfriend had made her do it." Asked why she herself had not gone to the police with this information, N.C. stated that she did not believe it was her responsibility to do so and also that she was not sure about what had happened as a result of the complainant's allegations. It was, N.C. said, the complainant's responsibility to go to the police, noting that she had offered to accompany the complainant to the police to talk to them about what she had previously against the accused.

[55] Again here, we have evidence of the complainant not only diminishing what she initially alleged against the accused, but then admitting that even that story (about him touching her leg inappropriately) was untrue. This evidence comes from a witness I find highly reliable. The Crown tried to impeach her credibility by attempting to establish that she was at one time the complainant's close friend but was now no longer so. I accept the evidence of N.C. that she remains a friend of the complainant, even if not as close as when they were in attendance at the same high school. This, I note, is the not uncommon experience of most of us. The friends we have in high school are not lifelong friends generally, simply because we lose close contact with them over time.

P.M.

[56] P.M. was at the time of these events the principal of the high school where the accused taught and the complainant was a student. She was present at both official school meetings which were called with respect to this matter, the first held in February 23, 2015, and the second occurring on September 18, 2015. It was at the first of these meetings which involved the complainant, her father and the school vice principal, Mr. M.S., that the dildo issue was discussed.

[57] Asked what the complainant had told the parties to the February 23, 2015 meeting, Ms. P.M. testified that the complainant admitted that she had received money from the accused but that it was not for the purchase of a vibrator but rather for food. According to Ms. P.M., the complainant also told the parties that the accused was unaware of what she was going to use the money for.

[58] By the September 18, 2015 meeting, with Board superintendent, Terry Papineau now in attendance, however, Ms. P.M. testified that the complainant told the meeting quite a different story. Relying on notes made on that occasion, she recalled the complainant stating that she had had sexual intercourse with the accused and that it was he who suggested the use of a vibrator as a solution for the temporary satisfaction of her sexual needs while her boyfriend was away studying in London, Ontario. On that occasion, according to Ms. P.M., the complainant informed the parties that she had texted the accused later on the evening of the purchase and had, when seeing him in person, informed him that she did not know how to use the vibrator. Again, according to Ms. P.M., the complainant told those at the meeting that the accused had offered to show her how to use the vibrator and she had agreed. Further, Ms. P.M. testified, the complainant told the meeting that the accused told her to bring the vibrator to school and store it in her locker.

[59] In addition to these things, Ms. P.M. stated, the complainant told the parties about her sexual encounters with the accused, saying that they took place every second day after school between the months of October 2014 and February 2015. Later, in cross-examination, the complainant would testify that she was absolutely sure that her sexual intercourse with the accused lasted three months. By the time she testified at trial, the frequency of her sexual activity with the accused had been whittled down to once a week on Wednesdays.

[60] Ms. P.M. recalls that when the complainant was asked why the sexual activity stopped, she informed the meeting that after her parents and particularly her father heard rumours about what had been going on, she and the accused had mutually decided to stop having sexual intercourse. She would also testify elsewhere that she and the accused had mutually decided to stop having intercourse when her boyfriend, CD, returned Sudbury at the end of December 2014 or early January 2015.

[61] Ms. P.M. testified that the complainant said she had sent nude photographs of herself to the accused while he had sent her a picture of his penis. As noted earlier, these pictures, if they ever existed, were not able to be recovered from her cellphone by the police and were not introduced in evidence. While such pictures may have been overridden and therefore rendered incapable or very difficult of being recovered by the police forensic unit, it is hard to understand why, if the complainant was involved in an affair with her teacher, she would have deleted the nude picture of himself he allegedly sent to her. In his case, given the dildo rumours and the involvement of school authorities in the matter, this would have been expected out of a sense of self-preservation. It is interesting to note here that even after being encouraged by her long distance boyfriend in Pembroke to preserve all texts and other messages from the accused, very little saved by the complainant on her cell phone revealed or indicated the existence of a sexual relationship between her and the accused.

[62] Lastly, Ms. P.M. recalled the complainant telling those at the September 18, 2015 meeting that she and the accused used "car part" code words to discuss sexual matters between themselves. The complainant would say in cross-examination that she and the complainant did not use sexual code words to communicate with each other. Rather, she said, expressions related to the prevailing weather conditions would have been the way to arrange their meetings. There was, it must be noted here, little indication than what the complainant alleged here actually took place.

Analysis and Conclusion

[63] In their final submissions, counsel agreed that the central legal issue in this matter was that of credibility. A secondary issue was that of the use of prior inconsistent statements made by the complainant to a number of parties known to her about her allegations.

Prior Inconsistent Statements

[64] The law with respect to the use of prior inconsistent statements establishes that the prior inconsistent statements of a witness are not to be introduced in evidence for the truth of their contents but rather to impeach the credibility of that witness. Using, however, a principled approach with its indicia of necessity and reliability, prior inconsistent statements can be introduced in evidence for the truth of their contents providing the probative value of doing so outweighs the pejorative effect of doing so.

[65] The evidence in this case contained a number of prior inconsistent statements made by the complainant. These statements were used by the accused strictly to impeach her credibility rather than being introduced to establish the truth of their contents. My task with respect to the use of such statements was rendered simpler by her responses to questions put to her about prior inconsistent statements made by her. Her inability to even remember making a number of such statements, true or not, including statements to the police, school officials, family members and close friends, in conjunction with her evasive and contradictory testimony about prior inconsistent statements she did remember making, went a long way to destroying her credibility in this matter.

[66] My initial impression when I first heard the complainant's testimony was that her allegations were plausible and offered sufficient particularity to render them credible. As to the evidence of the accused, I also found his version of the events not unreasonable. I find that the accused's willingness to talk to the police at length when he was charged without the presence of counsel added to his credibility. So did the fact that, while under no legal obligation to do so, he exposed himself to strenuous cross-examination by the crown at trial. The information provided by him on these occasions only served to support his credibility.

[67] As I listened to the complainant's cross-examination, the weakness of the Crown's case became more and more apparent. There were a number of times when the complainant responded to questions put to her with the response: "I don't remember". One can understand that witnesses, later found to be truthful, will often not remember some details about events respecting which they are testifying. When a witness too often or on key issues gives the response "I don't remember", the accuracy of his or her memory and the veracity of his or her evidence will be placed in doubt.

Credibility

[68] The next problem encountered in assessing credibility is the consistency and clarity of a witness' testimony. In her testimony, the complainant showed a marked weakness in remembering key dates and key events related to her allegations against the accused. Her varying and contradictory responses to the question about how long her sexual relationship with the accused lasted were, for example, most troublesome. When asked in cross-examination to confirm the period during which she engaged in intercourse with the accused, she stated that she was "110% certain" that it had lasted three months. Her evidence on this and related matters would indicate the contrary. Her attempts to guess how she should reply to questions fairly put to her led her from confusion to even greater confusion. An example of this is when she responded that her affair with the accused had resumed after her boyfriend's return from London, Ontario. The whole thrust of her evidence had been that her affair with the accused started after her boyfriend left for London and ended when her boyfriend returned to Sudbury from London.

[69] The evidence of N.C. confirmed that her boyfriend returned to Sudbury around December 17, 2014, shortly before Christmas. Using this information to establish the duration of the affair the complainant had with the accused puts the commencement of the affair, which she said lasted three months, back to early October 2014. The affair, I find, clearly followed the acquisition of the dildo on November 14, 2014.

[70] The complainant told the police that her sexual relationship with the accused started after her birthday on […], 2014. She had originally stated that it had started in October 2014. This is what she told those present at the September 18, 2015 meeting. This, however, would mean that if the affair lasted three months, it would not have continued into March 2015. The evidence suggests that by the end of February 2015, it was unlikely she would have been continuing her alleged affair with the accused. Arguably, she would have had to have terminated it when her boyfriend came back to Sudbury and resumed it after they broke up towards the end of February 2015.

[71] While the court appreciates that the complainant, a young adult when she testified, might not have had a good a memory of the events alleged by her, she cannot rely on her youthfulness to justify her forgetfulness, particularly considering the remarkable nature of the events constituting her allegations. Having an affair with your teacher at 16 years of age would hardly be a forgettable experience. Providing too many versions of what has happened to you is perhaps the best way to make people doubt the truth of anything you are saying. In this respect, I am cognizant of the Ontario Court of Appeal decision in R. v. A.M., 2014 ONCA 769, setting out the principles to be followed in assessing the credibility of a witness. I have been mindful of the need for consistency between what the complainant said to the court and what she has either acknowledged saying elsewhere previously or what has been established as having been said by her to others. I have also borne in mind the Court's direction respecting the necessity of assessing the complainant's credibility by adult standards given her age at the times she testified in this matter.

[72] The most remarkable thing about this case is the almost total lack of corroboration respecting the complainant's allegations. If the complainant and the accused had engaged in the rough, no-condom, sex the complainant alleged, one would have expected the Crown to introduce forensic evidence to assist in proving that fact. The Crown proffered no such evidence. Had such evidence been obtained by the police, it would have gone a long way to corroborating the complainant's allegations.

[73] Secondly, little if any probative evidence was discovered in the 7000-8000 or so text and other electronic messages retrieved from the complainant's cell phone establishing with any degree of certainty a sexual relationship between her and the accused. This material was carefully reviewed for the purposes of the s. 276.1 application under the Criminal Code. Not much extra was found relating to communication between the complainant and the accused other than what had basically been retrieved by the forensic analysis officer, Constable Steven Nizzero, and reproduced by the police in a book of Extracts (see Exhibit 13). There was, in fact, little of substance with respect to the allegations against the accused discovered in the text, e-mail and other messages which were produced to the court from the Data Dump records obtained from the complainant's cell phone by the police. Rather, my sense was that the material from that source supported the accused's version of what had happened rather than detracting from it.

[74] One would have expected the witnesses who were or had been close to the complainant emotionally to shed light on what had occurred between her and the accused. For some reason known only to her, the complainant did not tell anyone what was happening between herself and the accused, not even her best friend, D.W. or her other friends and family members. When the complainant finally began to divulge to third parties, excluding the police, what had allegedly gone on, her only consistent allegation was that the accused had touched her leg inappropriately. Even this she retracted in her meeting with her friend N.C..

[75] I found N.C. as well as the other defence witnesses called in the case to have been very credible witnesses. I accept their evidence and, in particular, the accuracy even if not the truth of N.C.'s evidence about the statements made to her by the complainant.

[76] Pursuant to the principles outlined in R. v. W.(D.), I must determine credibility on the following principles:

(1) if I believe the accused, I must acquit;

(2) even if I do not believe the accused but the accused raises a reasonable doubt, I must acquit;

(3) even if I do not believe the accused and the accused has not raised a reasonable doubt but the Crown has not proven its case against the accused beyond a reasonable doubt on the whole of the evidence, I must acquit.

The principle most applicable in this instance is, in my opinion, the second principle. The accused has clearly raised a reasonable doubt about the veracity of the complainant's allegations. The accused's evidence and the evidence of the other witnesses has strongly combined to establish that the complainant's allegations have not been proven by the Crown beyond a reasonable doubt. This it always remains for the Crown to do. The Crown has failed to do so in this case.

[77] For these reasons, then, I acquit the accused on the charge of sexual assault pursuant to section 271 of the Code. As well, I acquit the accused on the charge of sexual assault by a person in a position of trust or authority to the complainant pursuant to section 153(a) of the Criminal Code of Canada.

Released: November 14, 2017

Signed: "Justice André L. Guay"