R. v. T.G., 2019 ONCJ 665

WARNING

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

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

486.4(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

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

486.4(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

486.4(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

486.4(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15 ; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5 ; 2012, c. 1, s. 29 ; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18 .

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

486.6(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15 .

ONTARIO COURT OF JUSTICE

DATE: September 17, 2019

BETWEEN:

Her Majesty the Queen

— and —

T.G.

Judgment

Counsel:

• T. D'Eri, G. Hendry — Counsel for the Crown
• O. Goddard, J. Nasseri — Counsel for the Defendant

Judge: Felix J.

Table of Contents: R. v. T.G.

• Preface
• I. Introduction to the Oral Portion of the Judgment
  • A. Climate of Physical Touch
  • B. The Focus of the Trial
  • C. Criminal Offences – Sexual Assault and Sexual Interference
  • D. The Pathway of Reasoning
  • E. The Decision on Each Count
• Part One
• I. Introduction to the Written Portion of the Judgment
  • A. The "Grade School Complainants"
  • B. The "Historical Complainants"
  • C. Single Summer School Complainant
  • D. The Information
  • E. Organization of this Judgment
• PART TWO
• I. Discreditable Conduct Application – "Similar Fact Across Counts"
  • A. Procedural Considerations
  • B. Position of the Applicant
  • C. Position of the Respondent
  • D. Ruling on the Application
  • E. Outline of this Ruling
• II. The Test for Admissibility – The Handy Template
  • A. General Considerations
  • B. Discreditable Conduct Evidence is Presumptively Inadmissible
  • C. Material Issue(s) in Question
  • D. Required Degree of Similarity
  • E. Nexus
  • F. Admissible versus Inadmissible Propensity Evidence
  • G. Discreditable Conduct need not be Conclusive of Guilt
  • H. Considerations in Cases of Child Sexual Abuse
  • I. Collusion
  • J. Balancing Probative Value versus Prejudicial Impact
• III. Application to this Case
  • A. The Material "Issue(s) in Question"
  • B. The Defendant's Testimony and the "Material Issues in Question"
  • C. Collusion and the "Grade School Complainants"
  • D. Collusion and the Historical Complainants
  • E. The Weak Nexus Between the Historical Complaints and the Complaints made by the Grade School Complainants
  • F. The Probative Value Associated with the Admission of the Historical Complainant Counts is outweighed by the Prejudicial Impact
  • G. The Probative Value Associated with the Admission of the Summer School Complainant count is outweighed by the Prejudicial Impact
  • H. Decision
• PART THREE
• I. The Offences: Assault, Sexual Assault, Sexual Interference
  • A. Sexual Assault
  • B. Sexual Interference
  • C. Assault
• Part Four
• II. The Credibility and Reliability of the Defendant
  • A. Credibility and Reliability
  • B. Central Position of the Defendant
  • C. The Examinations: Prejudicial Evidence
  • D. Credibility and Reliability of the Defendant: Conclusion
• Part Five
• I. Factors Impacting the Credibility and Reliability of the Complainants and Child Witnesses as a Group
  • A. Introduction
  • B. The Impact Associated with the Dismissal of the Discreditable Conduct Application
  • C. Credibility and Reliability
  • D. The Proper approach to Child Witnesses
  • E. Animus/ Motive to Fabricate / Bias
  • F. Collusive circumstances as a reliability concern
  • G. Collusive Circumstances as a Credibility Concern
  • H. The Approach to s.715.1 Statements followed by the Police
  • I. The Examinations: Direct Examination
  • J. The Examinations: Characteristics of Cross Examination
  • K. Impact of Cross-examination
  • L. The Relevance Objection: Cross-examination premised on Stereotypes
  • M. Cross-examination on the issues of Delayed Disclosure and "Avoidance Behaviour"
  • N. The Circumstances Surrounding Disclosure – Witness C.M.
  • O. Prior Consistent Statements
• Part Six
• I. Introduction
• II. Count 1 and Count 9: Complainant E.S.
• III. Count 3 and Count 11: Complainant G.B.
• IV. Count 4 and Count 12: Complainant L.C.
• V. Count 5 and Count 13: Complainant M.V.
• VI. Count 6 and Count 14: Complainant A.S.
• VII. Count 7 and Count 15: Complainant B.H.
• VIII. Count 8 and Count 16: Complainant H.G.
• IX. Count 17 and Count 24: Complainant B.D.
• X. Count 18 and Count 25: Complainant M.S.
• XI. Count 20 and Count 27: Complainant P.P.
• XII. Count 21 and Count 28: Complainant S.M.
• XIII. Count 22 and Count 29: Complainant M.R.
• XIV. Count 23 and Count 30: Complainant J.F.

PREFACE

[1] This was a lengthy trial numbering many days. At the end of the trial the Crown and Defence provided very detailed written submissions. The Crown submissions are 45 pages long. The Defence submissions numbered 206 pages, are densely written, and include 1271 specific footnoted references to the record at trial. These submissions were augmented by detailed oral submissions on the last day of the trial – July 29, 2019. This Court has spent the last six weeks reviewing the evidence at trial including the digital record, transcripts, and the exhibits.

[2] Today I will render judgment concerning the trial in this case. The trial was lengthy. My judgment at trial is almost two hundred pages long. Because it would take probably two or three court sitting days to read the entire judgment, I have decided to read out a small part of the decision today. Then I will file my written judgment with the Information and the Clerk of the Court for distribution.

[3] There are several interested members of the public, family and friends of the defendant and the complainants, and the media here today. The purpose of this brief oral summary of my written decision is to give an overview of the central issues. This brief oral summary will not address the detailed analysis for my decision. In the written judgment I have done my best to be comprehensive and address all of the reasons for my judgment. After providing this oral summary, I will move straight to a decision on each of the counts before the Court.

I. Introduction to the Oral Portion of the Judgment

[4] This case is about a teacher in an elementary school and his physical interaction with children who he either taught or coached in sporting activities.

[5] The allegations involve accusations that the defendant touched twelve female students and one male student in a sexual manner. Nine of the complaints concern conduct alleged during the 2017-2018 school year. One complaint is about conduct alleged during summer school in 2017. Three of the complaints concern conduct dating back almost a decade. In all of these circumstances, it is clear that the defendant was in a position of trust or authority over the children and the children were too young to consent to sexual contact.

[6] Several central issues will predominate this judgment. I will address in this oral portion of the judgment, upfront, early, so that the issues may be clearly framed.

A. Climate of Physical Touch

[7] It is clear, on all of the evidence at trial, that the defendant engaged in the physical touching of students on a regular basis. This is admitted by the defendant. The defendant acknowledged physical touching, such as a pat on the shoulder or a hand on the waist, as examples of physical touching devoid of sexuality or sexual intent. From the defendant's perspective, this was a normal part of the school environment and his approach to teaching. The central message of the defendant's testimony was that while he engaged in the physical touching of students, he never touched a student in a sexual manner, or with sexual intent in his mind.

B. The Focus of the Trial

[8] The focus of this trial was not whether it was wrong for the defendant to have engaged in any form of touching of his students. This trial is focused on whether or not, separate and apart from any touching of students, the Crown has proven beyond a reasonable doubt that the defendant engaged in sexual touching of his students.

[9] The physical touching of any child in society is something that merits examination, particularly in circumstances where the person doing the touching is in a position of trust or authority. Children are vulnerable members of our society and any circumstance of physical contact with a child may invoke some scrutiny.

[10] I recognize that even the touching of students characterized by the defendant as non-sexual, may cause reasonable members of the community to be concerned, suspicious, or upset. For example, there would seem to be no good reason for a teacher to place a grade six female student on his lap or knee during the school day. I understand why even reasonable and objective members of the community might deem such physical contact with children as inappropriate, unprofessional, and suspicious.

[11] All that being said, it is critically important, at this early juncture, to make it crystal clear, that this criminal Court is not focused on judging whether or not the defendant acted "inappropriately" or "unprofessionally". While almost every witness described the defendant as "too touchy", "too friendly", and "creepy", this cannot be the focus of this Court. This is a criminal trial, and I must maintain a resolute focus on whether the Crown has proven the defendant guilty of criminal misconduct – not professional misconduct. The examination of whether the defendant's behaviour amounts to professional misconduct is perhaps a question for a regulatory body.

[12] It is also important at this early stage of the judgment to explain that I am well aware that teachers have physical contact with students. It should be very clear, that the judgment in this case does not purport to criminalize the incidental, accidental, or innocent touching of students by teachers generally. The judgment in this case is definitively not a general statement to teachers that physical touching of students is always wrong or there is no justification for touching a student. Nothing in this judgment should be taken as a condemnation of teachers who physically touch their students. This case is not focused on incidental, accidental, or innocent touching of students. This case is focused on allegations of sexualized touching of students, interspersed amongst the phenomenon of frequent non-sexual touching of students.

[13] For me as the trial judge, the question is strictly whether the Crown has proven beyond a reasonable doubt that the defendant engaged in sexual touching of the students as specifically alleged in the charges before this Court.

C. Criminal Offences – Sexual Assault and Sexual Interference

[14] Neither the Crown nor the Defence dispute the basic elements of the criminal charges before the Court. A sexual assault is a non-consensual intentional touching of another person in circumstances where the sexual nature of the contact is objectively apparent to a reasonable observer. A court must examine the entire context of the circumstances and objectively assess whether or not the touching was sexual based on the part of the body touched, the nature of the contact, words used, and gestures. Sometimes a sexual assault is fairly obvious where it is predicated upon the part of the body touched (e.g. the touching of a woman's breast). Sometimes a sexual assault involves touching of a more ambiguous nature. In either circumstance, the offence of sexual assault does not require that the Crown prove that there was a sexual purpose accompanying the touching. The crime of sexual interference is designed to protect children from sexual contact with adults. The Crown must prove that a non-consensual intentional touching of a child under the age of sixteen years was accompanied by specific intent mens rea and a sexual purpose.

[15] The circumstances surrounding the defendant's touching of students in this case present complex legal issues. In the environment of frequent physical touching described in this case, a number of students have complained about both "inappropriate" touching and sexual touching. Some of the touching alleged is plainly sexual. For example, testimony that the defendant touched or squeezed the buttocks of a young female student, if accepted, is perhaps obviously a sexual assault. On the other hand, some of the touching described by other complainants is not plainly or obviously sexual. For example, testimony that the defendant put his arm around the waist of complainant, while perhaps "unprofessional" or "inappropriate", might not, on an analysis of all of the circumstances, immediately convey a sexual nature to an objective observer.

D. The Pathway of Reasoning

[16] A trial judge has a duty to show the pathway of reasoning used to determine guilt or innocence. The normal rule in a criminal trial is that the Court may only consider the admissible evidence available on a particular count when evaluating guilt or innocence. The Information before the court contains thirty counts involving multiple complainants. On a multiple-count Information, the Court may not use the individual allegations of misconduct on each of the multiple counts to decide the case in a global or holistic way: R. v. S. (P.L.), [1991] S.C.J. No. 27. The Court cannot simply rely on the combined force of the evidence of many complainants to conclude that the coincidence of so many children making similar but false allegations is too great, therefore the defendant must be guilty. The only way for the Court to engage in such reasoning, is if the Crown brings an application – a discreditable conduct application across the counts – asking the Court to do just that.

[17] The Crown brought the discreditable conduct application seeking to have this Court rely on the pattern of acts and behaviour exhibited by the defendant in relation to all of the complainants to help prove the criminal allegations. The Crown argued that the defendant is not simply a "physical person" or a "touchy person". The more ambivalent touching coincided with a sexual purpose just as much as the overtly sexual touching. The Crown argued that if one examines all of the complainants, and all of the counts, a pattern emerges showing that the defendant's physicality is intentional and a precursor to sexual offences. The Crown's position is that the defendant is not simply a person who engaged in the non-physical touching of students. Even when touching students in a manner that might not scream out "sexual assault", he was engaged in such touching as a prepatory step to his overall aim of sexualized touching of students. Finally, the Crown argued that the discreditable conduct across the counts would provide context and support for the evidence of the many complainants in this trial.

[18] The Defence opposed the application. The Defence position was that the complainants have discussed the details of their personal allegations with each other such that a climate of collusion existed prior to their complaint to the police. In such circumstances, the Defence submitted that the independent reliability of the complainants had been compromised and this was fatal to the merits of the Crown application. As for the trial proper, the Defence submitted that the record produced demonstrated that the climate of collusion eroded the credibility and reliability of the complainants such that the Crown could not prove any of the allegations beyond a reasonable doubt. The defendant testified and denied any sexual touching or sexual purpose. The Defence submitted that in these circumstances, the Crown had not met the high criminal burden of proof on any of the allegations.

[19] Evidence of discreditable conduct is presumptively inadmissible. The Crown has the burden to establish that the discreditable conduct application should be granted. In this case, based on the record before me, the Crown has not met the burden to establish that the discreditable conduct evidence should be admitted at trial. The Crown did not prove that the presumptively inadmissible discreditable conduct evidence should be admitted. The Crown failed to rebut the issue of collusion on a balance of probabilities, and the evidence otherwise did not meet the test for admission.

[20] As a result of this preliminary ruling, this Court was not permitted to use the defendant's acts in relation to other complainants, to assist with determining the defendant's guilt is the manner submitted by the Crown. Where, for example, I heard testimony that the defendant simply placed his arm around the waist of a child and nothing more, I did not have access to the entire record of his conduct in relation to all of the complainants, to potentially inform my assessment of his mental intent, and assist with determining if this was a criminal offence. The Crown failed to establish that the discreditable conduct evidence across the counts was admissible in law.

[21] The failure of the Crown to establish the admissibility of the defendant's conduct across all of the counts, in relation to all of the complainants, is a pivotal factor in the ultimate findings at trial. I am required to assess each count based on the admissible evidence available on that count. I am not permitted to use the defendant's discreditable conduct in relation to all of the complainants when assessing each individual count.

[22] All of the students testified that the defendant touched them inappropriately and in most cases sexually. The defendant denied each and every circumstance. This means that credibility issues must be resolved by consideration of the evidence as a whole. The Supreme Court of Canada has provided guidelines for how a trial judge is to analyze credibility issues in W.(D). v. The Queen (1991), 63 C.C.C. (3d) 77 (S.C.C.):

• First, if you believe the evidence of the accused, obviously you must acquit.
• Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
• Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[23] The core position of the defendant is that:

1. At no time did he touch a complainant where the circumstances would objectively support a perception that the touching was sexual in nature; and
2. At no time did he touch a complainant with a sexual purpose in mind.

[24] With respect to step one of W.(D)., I do not believe either of these central positions advanced by the defendant. While I believe certain aspects of the defendant's testimony which I will outline in this judgment, I reject his core position. If I believed either or both of the "twin denials" in his core position, I would find him not guilty of all of the counts before the Court. Acceptance of either or both of these testimonial defences would mean that the Crown had not proven sexual assault or sexual interference beyond a reasonable doubt.

[25] With respect to step two of W.(D.), it is not enough to simply disbelieve the defendant and therefore find him guilty because of that simple disbelief. That would be an error in law. I must also evaluate the defendant's evidence as a whole to determine whether it leaves me with reasonable doubt, notwithstanding the fact that I do not believe his core position. I will explain in this judgment why the defendant's evidence does not leave me in a state of reasonable doubt.

[26] Rejection of the defendant's core position and the recognition that his evidence did not leave me in a state of reasonable doubt means I must move on to the third step of the W.(D.) analysis. Notwithstanding my views of the defendant's testimony, I must examine what, if any, evidence I accept provided by the Crown's case to determine whether or not the Crown has proven the defendant's guilt beyond a reasonable doubt.

[27] I will explain why I do not believe the defendant's denials by referencing factors that impact his credibility and reliability (Part Four of this judgment) and factors that impact the credibility and reliability of the complainants (Part Five of this judgment). In the final part of this judgment, Part Six, I will detail the evaluation of each criminal allegation, count by count, without resort to the discreditable conduct record produced at trial. With these preliminary considerations in mind, I will now provide my decision on all of the counts.

E. The Decision on Each Count

[28] As I explained at the outset, I have rendered judgment in lengthy written form. At this time, I will provide my decision on each count.

Counts	Complainant	Finding
1 & 9	E.S.	Guilty
2 & 10	S.M.	Not Guilty
3 & 11	G.B.	Guilty
4 & 12	L.C.	Not Guilty
5 & 13	M.V.	Guilty
6 & 14	A.S.	Guilty
7 & 15	B.H.	Guilty
8 & 16	H.G.	Not Guilty
17 & 24	B.D.	Guilty
18 & 25	M.S.	Not Guilty
20 & 27	P.P.	Guilty
21 & 28	S.M.	Not Guilty
22 & 29	M.R.	Not Guilty
23 & 30	J.F.	Guilty

Part One

I. Introduction to the Written Portion of the Judgment

[29] The defendant stands charged with a series of sexual offences related to his employment as a teacher and sports coach. The allegations involve the defendant touching a number of students in a sexual manner at school.

[30] There are three groups of complainants in this case. Given the publication order, I have simply named these groups: "the grade school complainants", the "historical complainants", and the "summer school complainant" rather than set out the particular schools involved.

A. The "Grade School Complainants"

[31] In March 2018, the defendant was arrested and charged in relation to several allegations of sexual assault and sexual interference between September 2016 and February 2018. These charges related to a number of child complainants at a school where he was a teacher and coach of sport teams. These complainants were in grade six or seven at the time of the investigation. They were all approximately aged ten to twelve at the time of the police investigation and the provision of their video statements to the police. By the time of trial, these complainants were approximately one year older.

[32] At trial, each of these complainants used the CCTV video room, adopted their s. 715.1 video statement to the police, and testified pursuant to a promise to tell the truth. When I refer to this collection of complainants, I term these the "grade school complainants".

B. The "Historical Complainants"

[33] On March 19, 2018 the Durham Regional Police Service distributed a media release upon the arrest of the defendant. Thereafter there was publicity on the internet and news media concerning the defendant. As a result of this publicity, additional persons came forward with historical allegations dating back almost a decade.

[34] On April 18, 2018 the police arrested and charged the defendant a second time concerning a new group of complainants. The focus of this group of complainants concerned allegations about conduct that occurred when they were aged nine, ten, or eleven and in grade six during a time period covering 2010 to 2012. These witnesses attended a different school than the grade school complainants and the summer school complainant. All of the complainants and witnesses called in support of these allegations were aged 18 at the time of the investigation and 19 at the time of trial. These witnesses testified in open court. I term these complainants the "historical complainants".

C. Single Summer School Complainant

[35] Finally, there is one complainant who testified concerning events that occurred during summer school (July 2017) when she was taught by the defendant. I term this complainant the "summer school complainant".

D. The Information

[36] The Information contains one count of sexual assault contrary to s.271 of the Criminal Code of Canada and one count of sexual interference contrary to s. 151 of the Criminal Code in relation to each complainant. Each pair of counts is framed in an identical fashion save and except for the name of the complainant and the date. The Crown withdrew counts 19 and 26 in relation to one complainant at the outset of the trial due to the unavailability of the complainant. In written submissions at the end of the trial, the Crown invited the Court to dismiss counts 2 and 10 in relation to complainant S.M.

[37] This leaves the following counts in relation to the "grade school complainants":

• E.S. – Counts 1, and 9
• G.B. – Counts 3, and 11
• L.C. – Counts 4, and 12
• M.V. – Counts 5, and 13
• A.S. – Counts 6, and 14
• B.H. – Counts 7, and 15
• H.G. – Counts 8, and 16
• B.D. – Counts 17, and 24
• P.P. – Counts 20, and 27

[38] The following counts relate to the "historical complainants":

• S.M. – Counts 21, and 28
• M.R. – Counts 22, and 29
• J.F. – Counts 23, and 30

[39] The single "summer-school complainant" is represented by:

• M.S. – Counts 18, and 25

E. Organization of this Judgment

[40] A trial court has a responsibility to provide clear reasons for a decision. This judgment cannot, and will not, reproduce the vast record. This judgment cannot and will not address every single submission made by the Crown and Defence. It is impossible to reduce every single composite step in decision-making to writing. Similarly, particularly in a lengthy trial, it is not possible to outline every piece of evidence, every argument, or every nuance at trial. Rather, the focus will be on the findings of fact and the analysis relevant to the legal issues and the criminal burden of proof.

[41] The judgment is organized in the following parts:

1. Part One – Introduction to the Written Portion of this Judgment;
2. Part Two – Discreditable Conduct Application;
3. Part Three – The Offences: Sexual Assault and Sexual Interference;
4. Part Four – The Credibility and Reliability of the Defendant;
5. Part Five – The Credibility and Reliability of the Complainants; and
6. Part Six – Judgment on each count.

PART TWO

I. Discreditable Conduct Application – "Similar Fact Across Counts"

A. Procedural Considerations

[42] Prior to trial, the Crown properly applied to admit discreditable conduct across the counts on the Information: R. v. Tsigirlash, 2019 ONCA 650, at paras. 26-27. The parties requested that the discreditable conduct application be addressed at the end of the evidence, during submissions, rather than at the end of the Crown's case: R. v. Last, 2009 SCC 45, 2009 S.C.C. 45, at para. 34; R. v. C.(U.), 2009 ONCA 367, at para. 19. As such, the application was blended with the trial.

B. Position of the Applicant

[43] The Crown seeks the admission of the summer school complainant count and the historical complainant counts as discreditable conduct. The Crown submits that these four counts may be considered amongst themselves pursuant to this application. The Crown further submits that these four counts may be used as discreditable conduct in relation to the grade school complainant counts. The Crown does not request that the Court use the grade school complainant counts as discreditable conduct in any manner.

[44] The Crown submits that the discreditable conduct evidence is relevant to the credibility and reliability of the child complainants and witnesses and is specifically probative of the following:

• Whether the touching occurred as described.
• That the touching was intentional and not accidental.
• To rebut the argument of collusion.
• Whether the touching was objectively sexual in nature.
• Whether the touching was for a sexual purpose.

C. Position of the Respondent

[45] The Defence position is that the application should be dismissed because the Crown has not rebutted the comprehensive record of collusion impacting all of the complainants and has otherwise failed to establish the admissibility of the evidence.

D. Ruling on the Application

[46] The cross-examination by the Defence was comprehensive, wide-ranging, detailed, and deliberate. Both Defence counsel deftly handled the difficult task of cross-examining child witnesses. The level of preparation on the part of Defence counsel was evident, clear, and impressive. There was a clear Defence approach– mine the witnesses for as much evidence of collusion as possible in aide of undermining the Crown's discreditable conduct application. While there were certainly other impacts associated with this approach that I will detail later in this judgment, for now, it is sufficient to simply observe that the Defence created a formidable record of collusive circumstances. The lengthy cross-examination of every witness was focussed on producing the record of rumours, discussions, speculation, and communications in support of the Defence position that the collusive circumstances impaired the reliability (and potentially also the credibility) of the complainants in this case.

[47] For the reasons that follow, the application to admit discreditable conduct across the counts is dismissed.

E. Outline of this Ruling

[48] The organization of my Ruling on this application revolves around the test for admissibility outlined in R. v. Handy, 2002 SCC 56. I will begin by outlining the components of the test identified by the Court in Handy including:

1. Presumptive inadmissibility;
2. The material issue or issues in question;
3. The required degree of similarity;
4. Nexus;
5. The distinction between admissible and inadmissible propensity evidence;
6. Discreditable conduct need not be conclusive of guilt to be admitted;
7. Special considerations in cases of child sexual abuse;
8. Collusion; and
9. Balancing probative value versus prejudicial effect.

[49] After this brief summary, I will apply the Handy framework to the issues on this application. It should be noted that the Court did not employ a rigid, formulaic, step-by-step application of the components of the test for admissibility. The Court identified relevant factors at the outset, and then applied the factors relevant to the particular record in Handy. This ruling will follow a similar format. It is important that the relevant factors are adapted to the peculiar factual circumstances of the case.

II. The Test for Admissibility – The Handy Template

A. General Considerations

[50] The ultimate aim of a trial judge on a discreditable conduct application is to marshal the relevant evidence and consider the relevant factors enroute to the ultimate weighing of the probative value of the evidence versus the prejudicial impact associated with the admission of the evidence. The authoritative framework provided by Handy guides this analysis.

B. Discreditable Conduct Evidence is Presumptively Inadmissible

[51] The analysis begins with the recognition that discreditable conduct evidence is presumptively inadmissible. The presumptive exclusion of such evidence recognizes the inherent danger of using character evidence as circumstantial evidence of the defendant's propensity or disposition to perform the acts charged: Handy, at paras. 31,36.

[52] There is a narrow basis for admission of discreditable conduct evidence premised on a careful analysis of the issue to which the admission of the evidence is directed and a determination that the evidence is so ". . . highly relevant and cogent that its probative value in the search for the truth outweighs any potential for misuse. . .": Handy, at para. 41.

C. Material Issue(s) in Question

[53] A critical step in the Handy frame work is to ascertain the material issue or issues in question to which the discreditable conduct evidence is directed.

[54] As explained by the Court:

74 The issues in question derive from the facts alleged in the charge and the Defences advanced or reasonably anticipated. It is therefore incumbent on the Crown to identify the live issue in the trial to which the evidence of disposition is said to relate. If the issue has ceased to be in dispute, as for example when the fact is admitted by the accused, then the evidence is irrelevant and it must be excluded: R. v. Clermont, [1986] 2 S.C.R. 131 (S.C.C.), at p. 136; R. v. Bosley (1992), 18 C.R. (4th) 347 (Ont. C.A.), at p. 360; R. v. Proctor (1992), 69 C.C.C. (3d) 436 (Man. C.A.), at p. 447; R. v. Hanna (1990), 57 C.C.C. (3d) 392 (B.C. C.A.); and B. (L.) , supra, at p. 50. The relative importance of the issue in the particular trial may also have a bearing on the weighing up of factors for and against admissibility. Similar fact evidence that is virtually conclusive of a minor issue may still be excluded for reasons of overall prejudice.

[55] It is important to clearly set out the material issue(s) in question because the ultimate balancing of probative value versus prejudicial effect is informed by considering the specific material issue to which the discreditable conduct evidence is directed: R. v. Mahalingan, 2008 SCC 63, at para. 72; Handy, at paras. 69-70.

[56] The issue in question may not be characterized broadly as the general disposition or general credibility of the defendant: Handy, at para. 71-72. However, it is permissible for the material issue to focus on the pattern of similar behaviour that serves to confirm the evidence of multiple complainants: R. v. T.B., 2009 ONCA 177, at para. 22.

D. Required Degree of Similarity

[57] According to Handy, the probative value of the discreditable conduct evidence may increase depending upon the similarity between the other discreditable conduct and the alleged criminal conduct for which the defendant is on trial. Where the material "issue in question" is the essential element of identification, a high degree of similarity, akin to a signature, or a peculiar or distinctive propensity is required: Handy, at paras. 76-80. Where the issue is the actus reus, a more nuanced approach is required as explained by the Court at paragraph 78:

78 The issue in the present case is not identification but the actus reus of the offence. The point is not that the degree of similarity in such a case must be higher or lower than in an identification case. The point is that the issue is different, and the drivers of cogency in relation to the desired inferences will therefore not be the same. As Grange J.A. correctly pointed out 20 years ago in R. v. Carpenter (1982), 142 D.L.R. (3d) 237 (Ont. C.A.), at p. 244:

The degree of similarity required will depend upon the issues in the particular case, the purpose for which the evidence is sought to be introduced and the other evidence.

[58] In all discreditable conduct applications, the Court must assess the degree of similarity required. The assessment of the degree of similarity required must calibrated having regard to the material issue(s) in question.

E. Nexus

[59] The probative value of the evidence also depends on the nexus between the evidence of discreditable conduct and the offences to which that evidence is directed at proving: R. v. MacCormack, 2009 ONCA 72, at para. 49. As explained by the Court in Handy at paragraph 82:

82 The trial judge was called on to consider the cogency of the proffered similar fact evidence in relation to the inferences sought to be drawn, as well as the strength of the proof of the similar facts themselves. Factors connecting the similar facts to the circumstances set out in the charge include:

(1) proximity in time of the similar acts: D. (L.E.), supra, at p. 125; R. v. Simpson (1977), 35 C.C.C. (2d) 337 (Ont. C.A.), at p. 345; R. v. Huot (1993), 16 O.R. (3d) 214 (C.A.), at p. 220;

(2) extent to which the other acts are similar in detail to the charged conduct: Huot, supra, at p. 218; R. v. Rulli (1999), 134 C.C.C. (3d) 465 (Ont. C.A.), at p. 471; C. (M.H.), supra, at p. 772;

(3) number of occurrences of the similar acts: Batte, supra, at pp. 227-28;

(4) circumstances surrounding or relating to the similar acts (Litchfield, supra, at p. 358);

(5) any distinctive feature(s) unifying the incidents: Arp, supra, at paras. 43-45; R. v. Fleming (1999), 171 Nfld. & P.E.I.R. 183 (Nfld. C.A.), at paras. 104-5; Rulli, supra, at p. 472;

(6) intervening events: R. v. Dupras, 2000 BCSC 1128, [2000] B.C.J. No. 1513 (QL) (S.C.), at para. 12;

(7) any other factor which would tend to support or rebut the underlying unity of the similar acts.

F. Admissible versus Inadmissible Propensity Evidence

[60] The probative value of the propensity evidence increases, and potentially surpasses the prejudice associated with admission, when it is specifically focused on the material issue in question. As explained by the Court in Handy at paragraph 91:

91 References to "calling cards" or "signatures" or "hallmarks" or "fingerprints" similarly describe propensity at the admissible end of the spectrum precisely because the pattern of circumstances in which an accused is disposed to act in a certain way are so clearly linked to the offence charged that the possibility of mere coincidence, or mistaken identity or a mistake in the character of the act, is so slight as to justify consideration of the similar fact evidence by the trier of fact. The issue at that stage is no longer "pure" propensity or "general disposition" but repeated conduct in a particular and highly specific type of situation. At that point, the evidence of similar facts provides a compelling inference that may fill a remaining gap in the jigsaw puzzle of proof, depending on the view ultimately taken (in this case) by the jury.

The powerful inference associated with admission of the evidence is sourced in the improbability of coincidence and the ". . . observed pattern of propensity operating in a closely defined and circumscribed context.": Handy, at paras. 87-91, 110.

G. Discreditable Conduct need not be Conclusive of Guilt

[61] The Court rejected an approach requiring the proposed discreditable conduct evidence be virtually conclusive of guilt in order for it to be admitted. The Court explained that the admissibility test is akin to the circumstantial evidence test – that the circumstances are consistent with guilt and inconsistent with any other rational conclusion.

H. Considerations in Cases of Child Sexual Abuse

[62] There are particular considerations in cases of child sexual abuse as explained by the Handy Court at paragraph 42:

42 The "common sense" condemnation of exclusion of what may be seen as highly relevant evidence has prompted much judicial agonizing, particularly in cases of alleged sexual abuse of children and adolescents, whose word was sometimes unfairly discounted when opposed to that of ostensibly upstanding adults. The denial of the adult, misleadingly persuasive on first impression, would melt under the history of so many prior incidents as to defy innocent explanation. That said, there is no special rule for sexual abuse cases. In any case, the strength of the similar fact evidence must be such as to outweigh "reasoning prejudice" and "moral prejudice". The inferences sought to be drawn must accord with common sense, intuitive notions of probability and the unlikelihood of coincidence. Although an element of "moral prejudice" may be introduced, it must be concluded by the trial judge on a balance of probabilities that the probative value of the sound inferences exceeds any prejudice likely to be created.

I. Collusion

[63] The Handy Court analysed the issue of collusion as part of the assessment of the probative value of the evidence. The issue of collusion must be assessed by the trial judge at the admissibility stage: Handy, at paras. 109-113.

1. Why is the issue of collusion so important?

[64] The core assertion by the prosecution in relation to the admission of similar fact evidence asks the rhetorical question: What is the probability of coincidence involved when a multitude of complainants make a similar complaint about the sexual touching perpetuated by the defendant? Put another way, the prosecution asserts that it is highly unlikely that the complainants would en masse engage in similar false or inaccurate allegations against a teacher they loved. By bringing this application, the Crown is seeking the corroborative weight of the mass of complaints to establish the guilt of the defendant.

[65] The Defence submits that the prosecution's position is irrevocably impaired by the collusive circumstances impacting all of the complainants and witnesses. Collusion is a ". . . [c]rucial factor because the existence of collusion rebuts the premise on which admissibility depends. . .": Handy, at para. 110. Collusion rebuts the improbability of innocent coincidence thereby negating the probative value of the proffered similar fact evidence: Handy, at paras. 104-113; R. v. Arp, (1998), 129 C.C.C. (3d) 321 (S.C.C.) at p. 344; R. v. Burke, [1996] S.C.J. No. 27, at paras. 38-45; R. v. McDonald, [2000] O.J. No 3315 (C.A.), at para. 27.

2. Role of the trial judge

[66] The trial judge performs an important gatekeeper role and must analyse the evidence in support of collusion when considering the probative force of the similar fact evidence: Handy, at para. 106. The balancing of probative value and prejudicial impact necessarily involves a limited weighing of the evidence for this purpose: R. v. B. (C.R.), (1990), 55 C.C.C. (3d) 1 (S.C.C.), at p. 24.

3. "Air of Reality"

[67] An "air of reality" regarding collusion is established by evidence of "concoction or collaboration, not "contact or mere opportunity": Handy, at para. 111.

4. What constitutes collusion?

[68] The Ontario Court of Appeal provided an excellent definition of collusion in R. v. Clause, 2016 ONCA 859, at paragraph 81:

81 Collusion can arise both from a deliberate agreement to concoct evidence, as well as from communication among witnesses that can have the effect, whether consciously or unconsciously, of colouring and tailoring their descriptions of the impugned events: R. v. B. (C.) (2003), 167 O.A.C. 264, [2003] O.J. No. 11 (C.A.), at para. 40. As this court noted in R. v. F.(J.) (2003), 177 C.C.C. (3d) 1, [2003] O.J. No. 3241 (C.A.), at para. 77, the "reliability of a witness's account can be undermined not only by deliberate collusion for the purpose of concocting evidence, but also by the influence of hearing other people's stories, which can tend to colour one's interpretation of personal events or reinforce a perception about which one had doubts or concerns."

[69] Further, as explained in R. v. B.(C.), [2003] O.J. No 11 (C.A.) at paragraph 40, the definition does not necessarily imply sinister motivations:

40 Collusion can arise both from a deliberate agreement to concoct evidence as well as from communication among witnesses that can have the effect, whether consciously or unconsciously, of colouring and tailoring their descriptions of the impugned events. In this case there was evidence of, or at least the opportunity for collusion in the various discussions regarding the incidents reported by the complainants. Furthermore, taken together with the anger regarding the dismissal and pay issues between one complainant and the appellant and the joint lawsuit by the complainants for damages, there was clearly an air of reality to the possibility of collusion in this case.

[70] The definition of collusion, as it applies to a discreditable conduct application, may encompass inadvertent, innocent, and unintentional contact: R. v. Wilkinson, 2017 ONCA 756, at paras. 36-40; R. v. Dorsey, 2012 ONCA 185. Further, collusion may be sourced in external influences on the witnesses including pre-trial publicity: Dorsey; R. v. A.(H.), 2007 ONCA 530. Hearing other complainants' experiences may colour one's interpretation of personal experience and reinforce perceptions, doubts, and concerns: R. v. F.(J.) (2003), 177 C.C.C. (3d) 1 (Ont. C.A.), at para. 77.

[71] That there is evidence of an opportunity for witnesses to have colluded, communicated, or consulted, does not necessarily mean that the prosecution attempts to rebut the prospect of collusion must fail: R. v. Shearing, (2002), 2002 SCC 58, 165 C.C.C. (3d) 225 (S.C.C.) at paras. 43-44; R. v. W. (J.), 2013 ONCA 89. Simple awareness that others have made allegations does not necessarily establish collusion. The simple fact that one complainant knows that others have come forward with allegations, without knowledge of the details of the allegations, does not establish collusion: R. v. M. (R.), 2015 ONCA 9. Where the evidence supports mere opportunities to collude, the issue should be left to the trier-of-fact for ultimate assessment of the weight to assign to the admissible discreditable conduct: Shearing, at para. 44; Dorsey, at paras. 29-31.

5. Collusion – onus

[72] The Defence is not required to prove collusion occurred: Handy, at para. 113. Where there is some evidence of collusion, or at least an "air of reality" to the assertion of collusion, the Crown, as the proponent of the presumptively inadmissible evidence, bears the onus to establish on a balance of probabilities, that the similar fact evidence is free from the taint of collusion: Handy, at para. 12. Where the Crown is unable to rebut the assertion of collusion on a balance of probabilities, the similar fact application should be dismissed: R. v. J.T., 2018 ONSC 446, at para. 10; Wilkinson, at paras. 36-39.

J. Balancing Probative Value versus Prejudicial Impact

[73] When determining the admissibility of discreditable conduct evidence, the ultimate question is – has the Crown established that the probative value associated with receipt of the evidence outweighs the prejudicial impact associated with admission of the evidence: Handy, at paras. 49-51. The probative value associated with admission must outweigh the prejudicial effect: R. v. Goldfinch, 2019 SCC 38, at para. 64; Handy, at para. 50. The probative value of the evidence must outweigh the "moral prejudice" and "reasoning prejudice", as defined associated with its admission: Handy at paras. 31,42, 71-72, 83, 100.

[74] With all of these factors in mind, I will now apply the relevant features of the test to the facts of this case.

III. Application to this Case

A. The Material "Issue(s) in Question"

[75] The first relevant step in the Handy framework concerns the assessment of the material issue(s) in question.

[76] I accept the Crown submission that the proposed discreditable conduct evidence is reasonably probative of the issues outlined in support of admission:

• Whether the touching occurred as described.
• That the touching was intentional and not accidental.
• To rebut the argument of collusion.
• Whether the touching was objectively sexual in nature.
• Whether the touching was for a sexual purpose.

[77] These live issues permit the proper consideration of the probative value versus prejudicial impact associated with admission. But the analysis of the material issue(s) in question must also consider the larger record on the application.

B. The Defendant's Testimony and the "Material Issues in Question"

[78] The probative value of the proffered evidence must be assessed in the context of the material issues to which it is directed: Handy, at para. 73. In this case, the parties argued the application at the end of the trial. The defendant chose to testify on the blended application and trial. His testimony, to a degree, mitigates the probative value associated with admission:

1. He acknowledged that he engaged in regular non-sexual physical touching of students;
2. He acknowledged that he continued to engage in non-sexual physical touching of students even after receiving a warning from his Principal;
3. He acknowledged that he was in a position of trust or authority;
4. The defence conceded the essential element of identification;
5. He did not attempt to rely on any notion of consent as a specific defence to any of the allegations; and,
6. He did not ultimately rely on accidental touching as a specific defence to any of the allegations.

[79] It is also critical that the defendant generally acknowledged the background circumstances provided by the complainants relating to their allegations. He admitted that he had no challenge to the general circumstances testified to by each complainant. In so testifying, the defendant generally acknowledged each complainant's recount of the surrounding circumstances of touching and the foundational circumstances relevant to their articulation of contact with him, even while clearly disputing any sexualized contact.

C. Collusion and the "Grade School Complainants"

[80] The next relevant issue is the central issue litigated on this application – collusion. I find that there is an air of reality to the issue of collusion in relation to all the grade school complainants. The Crown, as the applicant, has not rebutted the spectre of collusion on a balance of probabilities.

[81] Defence counsel methodically and exhaustively cross-examined the complainants. This approach produced a dense voluminous record. Defence counsel have exhaustively outlined the multitude of conversations and discussions amongst the child complainants and witnesses in their detailed submissions.

[82] The Crown stipulated that the grade school complainant counts should not be utilized as discreditable conduct evidence. I agree. I will therefore only summarily outline the relevant factors concerning this group of complainants:

1. They were similarly aged female children and one male child;
2. They attended the same school;
3. They were split between grade 6 and grade 7;
4. Some of the children played on sports teams coached by the defendant;
5. Almost all of the children were directly taught by the defendant;
6. Each complainant testified to a very positive, subjectively-held view of the defendant;
7. Throughout the 2017-2018 school year, children at the school, including the grade school complainants, engaged in specific discussions about the inappropriate behaviour of the defendant;
8. The discussions at the school included opinions that the defendant was "too touchy", "too friendly", and "creepy";
9. The defendant went on a leave of absence in January 2018 due to illness. This absence provoked additional discussions amongst children at the school including discussions that his absence was related to his conduct;
10. The defendant's arrest in March of 2018 provoked a multitude of discussions amongst the complainants and witnesses in this case;
11. The defendant's re-arrest in April of 2018 provoked additional discussions;
12. A police media release provoked additional discussions;
13. Media publicity caused additional discussions; and,
14. The discussions involved the exchange of details amongst all of the grade school complainants and child witnesses from the same school.

[83] The unassailable conclusion based on the comprehensive record produced by the Defence is that all of the complainants and witnesses discussed experiences and observations with the defendant including at times the specifics of how he was touching children improperly and sexually. The discussions and exchange of information impacted all of the grade school complainants and witnesses. Specifically:

• The collusive circumstances impacted every complainant from the grade school group (complainants E.S., S.M., G.B., L.C., M.V., A.S., B.H., H.G., B.D., M.S., P.P.)
• The collusive circumstances also impacted the child witnesses (not complainants) called by the Crown (C.M., and K.B.)
• These collusive circumstances impacted the grade school complainants and witnesses prior to their police statements, after their police statements, and in some cases during the time period leading up to trial
• These discussions at times involved the exchange of particular details of the acts perpetrated by the defendant

[84] None of the child complainants or child witnesses colluded with bad intent. The resounding crescendo from all witnesses in this case was that the defendant was held in high regard. He was everyone's favourite teacher. He was "cool". He was approachable. He could relate to the children. His classes were fun. He appeared to care about his students. Every single child witness and child complainant endorsed a positive subjectively-held view of the defendant. None of these child complainants and child witnesses conspired to fabricate evidence against the defendant. But, the record demonstrates that every last one of them engaged in discussions including details about the defendant's conduct.

[85] The fact that these discussions occurred is neither shocking nor surprising. Everyone's favourite teacher was suddenly on a mysterious leave of absence. Then he was arrested by the police – twice. Then there was media coverage. Stories on the internet. How could it ever be the case that the children at a grade school would remain quiet and introspective about such circumstances. This would have been totally unnatural. A grade school is a small community. The idea of a leading educator being accused of touching children in a sexual manner would cause the entire student body to discuss the event, let alone teachers and parents.

[86] It is also not shocking that the child complainants and child witnesses may have exchanged details of what the defendant did to them. These children were beginning to bridge their childhood years to young-adult years. This is often a time when children begin to transition from reliance on parents to reliance on peer groups. There is nothing shocking or disturbing about the fact that these children sought comfort and reassurance from speaking to each other about what was happening to them.

[87] But these understandable circumstances also solidly support the Defence position on collusion. There is little doubt that rumour, speculation, and discussion occurred. It would have been entirely unnatural for the student body to remain mute in the face of such sensational circumstances.

[88] The lion's share of this trial concerned the allegations involving the grade school complainants. At the end of the trial, the Crown did not seek to use this body of evidence as foundation for prior discreditable conduct analysis. The Defence asserted that collusive circumstances rendered this body of evidence inadmissible. I agree with the submissions of the Defence. I disagree with the Crown position. The Crown did not rebut the issue of collusion on this record. I am satisfied that all of the grade school complainants and witnesses engaged in conversations involving details of the particular touching perpetrated by the defendant. The collusive circumstances eroded the premise upon which admission of the discreditable conduct relies.

D. Collusion and the Historical Complainants

[89] There is an air of reality to the collusion issue concerning the historical complainants. The Crown has not rebutted the issue of collusion sufficient for the admission of this evidence as discreditable conduct for any purpose.

[90] The historical complainants were not at the defendant's school in March 2018. These adult complainants were in University, faraway from Durham. While these complainants were not directly exposed to the storm of collusive discussions occurring at the defendant's school, they nonetheless engaged in discussions sufficient to find a climate of collusion enveloping their disclosure of allegations against the defendant. The climate of collusion included:

• That during high school, complainants S.M., M.R., and J.F. engaged in a group discussion on a McDonald's restaurant patio wherein they exchanged details about the defendant's inappropriate touching behavior.
• J.F. testified that every time the defendant's name came up in the years since exposure to the defendant's conduct, she would communicate to anyone present that she did not like the defendant. There is little doubt that such an approach would provide opportunities for further discussions about why she held these views. To the extent J.F. denied any conversations about the defendant, I deem her an unreliable historian on this issue.
• M.R. detailed conversations involving J.F. and M.R. and others about how the defendant was "creepy" and should not have been touching children. S.M. had a series of communications with others when she found out the defendant had been arrested. She also endorsed discussion with M.R. about the conduct of the defendant.

[91] The historical complainants have had approximately nine years to engage in discussions. This body of evidence, while no where near as substantial as that produced concerning the grade school complainants, is significant enough to establish collusion. As it pertains to the historical complainants, I would dismiss the application on the basis of collusion alone. But there is another concern with the admissibility of the historical complainant counts as discreditable conduct - nexus.

E. The Weak Nexus Between the Historical Complaints and the Complaints made by the Grade School Complainants

[92] In addition to my concerns about collusion, the nexus between the allegations made in March 2018, and the allegations sourced from the historical complainants dating back to 2009, is weakened by the passage of time.

[93] In this case, identification of the defendant as the person who interacted with the children is not in issue. The probative value of the discreditable conduct is premised on the supposition that the defendant was guided by the same motivations, impulses, and intent with respect to his physical touching of a number of students in both 2009 and 2018. The decade between the allegations made by the historical complainants and the grade school complainants objectively weakens this premise on the facts and circumstances extant in this particular trial: (See R. v. P.M.C., 2016 ONCA 829, at paras. 22-25 for a similar examination of this issue.)

[94] There were no intervening circumstances during this ten-year period. At the end of the prosecution case, the Crown successfully applied to admit discreditable conduct evidence in relation to a formal warning communicated to the defendant by his Principal. As I will discuss more fully below, the Crown did not seek to call evidence concerning proof of the underlying circumstances giving rise to the warning. The Crown did not call evidence directed at the defendant's alleged conduct in relation to a female student at the time. The only probative record produced was the content of the warning provided to the defendant. The underlying allegation was not proven. Given this record there are no relevant intervening circumstances. Given this gap in time, I am concerned about the probative value of this evidence supporting the Crown theory that the defendant was possessed of the same sexual impulses and motivations in both 2009/2010 and 2018.

F. The Probative Value Associated with the Admission of the Historical Complainant Counts is outweighed by the Prejudicial Impact

[95] Having balanced all of the relevant considerations, the probative value of admitting the historical complainant counts as discreditable conduct is outweighed by the prejudice associated with admission.

[96] My findings concerning collusion and the lack of nexus drive this conclusion. Other considerations include the fact that the defendant's testimony does not conflict with the overarching circumstances leading up to his impugned actions as described by each complainant. There is no need to admit discreditable conduct evidence to bolster the circumstances described by the complainants at trial. Further, there is no issue of identification in this case.

G. The Probative Value Associated with the Admission of the Summer School Complainant count is outweighed by the Prejudicial Impact

[97] While complainant M.S. was not subject to the collusive circumstances involving the group of grade school complainants or the group of historical complainants, she was subject to the impact of discussions with others concerning the conduct of the defendant which impacted her reliability as a witness at trial. It is also apparent that notwithstanding that she had no direct contact with the grade school complainants, there was nonetheless a climate of discussions about the defendant's conduct at her school after his arrest. M.S. related some of these discussions during her testimony. But these discussions did not involve other complainants at this trial.

[98] I find that the Crown has rebutted the issue of collusion as it pertains to complainant M.S. on a balance of probabilities. M.S. was exposed to opportunities to collude, but the evidentiary record does not support a finding that the collusive opportunities involved the detailed discussions.

[99] Nevertheless, I find that the probative value of admitting the single summer school complainant count as discreditable conduct is outweighed by the prejudice associated with admission because of the dissimilarity of her allegation.

[100] As outlined above, identity is not in issue. The factual circumstances surrounding each complainant's rendition of events is not disputed by the defendant – just the sexual nature and sexual purpose of any touching. The issue of similarity has to be analyzed within the context of the material issues in question: Handy, at paras. 76-78. I find that the approach to similarity outlined by Watt. J. A. in R. v. Durant, 2019 ONCA 74, at paragraphs 101-102 is focussed on the issue of similarity in the context of the test applicable where identification is the material issue in question.

[101] The allegation made by M.S. is manifestly dissimilar to any other allegation in this trial. No other complainant describes sexual comments associated with the touching. The incident allegedly occurred quite prominently in the front of the class. I acknowledge that in sexual assault cases, similar circumstances may suffice for the purposes of admission notwithstanding some dissimilarity in the nature of the acts: R. v. S.C., 2018 ONCA 454, at paras. 23-27. But the circumstances – a classroom – are more generic. But, after careful consideration of the record on this application, the allegations made by M.S. are too dissimilar and too generic to assist this Court with the issue of actus reus or mens rea: R. v. B.(R.), [2003] O.J. No. 4589 (C.A.), at paras. 61-64, aff'd R. v. Blake, 2004 SCC 69; R. v. A. F., 2010 ONSC 5824, at para. 72.

H. Decision

[102] For all of these reasons, the probative value associated with admission of the discreditable conduct evidence is outweighed by the prejudice associated with admission.

[103] The application is dismissed.

PART THREE

I. The Offences: Assault, Sexual Assault, Sexual Interference

[104] Given the submissions of counsel, the basic elements of the offences before the court are not disputed. I will address the essential elements briefly as a result.

A. Sexual Assault

[105] Sexual Assault requires the Crown to establish the following beyond a reasonable doubt:

• That the defendant intentionally applied force;
• The complainant did not consent to the force that the defendant intentionally applied;
• That the defendant knew that the complainant did not consent to the force that he intentionally applied; and,
• That the force that the defendant intentionally applied took place in circumstances of a sexual nature.

[106] The Supreme Court of Canada has provided clear guidance on how to evaluate circumstances of a sexual nature, the fact that sexual assault is a general intent offence, and the requisite elements of the offence: R. v. Chase, [1987] 2 S.C.R. 293, at para. 11; R. v. Jarvis, 2019 SCC 10, at paras. 50, 124-125; R. v. Ewanchuk, [1999] S.C.J. No 10. The test outlined in Chase is still the focus in most sexual assault trials involving touching:

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

[107] Relevant to this case, it is important to keep in mind that the "force" need not be forceful. Even a gentle touch will suffice: R. v. R.V., 2019 ONCA 664, at paras. 109-116. Finally, the Crown does not have to prove a sexual purpose for the touching: R. v. Trachy, 2019 ONCA 622, at paras. 70-74.

B. Sexual Interference

[108] The purpose of this section is to protect children from any sexual contact with adults: R. v. E.C., 2019 ONCA 688, at para. 14. Sexual Interference requires the Crown to establish the following beyond a reasonable doubt:

• That the complainant was under the age of 16 at the time of the offence;
• That the defendant intentionally touched the complainant whether directly or indirectly; and,
• That the touching was for a sexual purpose.

[109] Sexual interference is a crime of specific intent: R. v. B. J.T., 2019 ONCA 694, at para. 37; R. v. Bone, [1993] M.J. No. 222 (C.A.). The Crown must prove that the touching was done for a sexual purpose: Trachy, at para 70. While the defendant may have another reason for the touching, if he also has a sexual purpose, the offence is proven: B. J.T, at para. 37.

C. Assault

[110] A challenging issue in this judgment is assessing the defendant's liability for simple assault. At the end of final submissions, the Crown submitted that the defendant should be convicted of assault if his liability for sexual assault is not established. I am not satisfied beyond a reasonable doubt that the Crown has established the simple offence of assault in relation to any of the complainants. This is a function of several considerations.

[111] First, procedural considerations impact the fair trial rights of the defendant. During the blended application and trial, some of the complainant's testified to circumstances that were not clearly or objectively sexual in nature. This Court raised the issue of procedure with the Crown. At several points in the proceeding this Court required the Crown to stipulate their procedural intentions at the end of direct examination of the complainant (i.e., whether or not the Crown was maintaining a prosecution based on sexual assault and sexual interference). As this Court indicated at the time, given the blended nature of the proceeding, the Defence was entitled to know what record was being relied on concerning the application and what was the case to meet on the trial proper. Furthermore, the defendant was entitled to know what jeopardy he was facing prior to testifying. In these circumstances, the Crown maintained the prosecution as a sexual assault and sexual interference and referenced the discreditable conduct application. In my view, asking the Court to convict on assault in these circumstances works a procedural unfairness to the defendant. While I recognize that assault is both a lesser and included offence and an element of the offence of sexual assault, this procedural approach, on a blended application and trial, prejudiced the defendant's ability to respond to culpability for simple assault.

[112] Second, the defendant's liability for simple assault is unclear. Where I have found the defendant guilty of sexual assault, I have done so because I was satisfied beyond a reasonable doubt that sexual touching was accompanied by non-consensual assault. Perhaps because of the approach to the blended proceeding, there was little, or no examination narrowly focused on liability for assault. For example, the Crown called the Principal of the school as a witness, yet declined to examine her concerning school guidelines, directives, or conditions around the physical touching of students: (e.g., see R. v. Plews, 2010 ONSC 5653, at paras. 5-14). There was a narrow statement from the defendant's Principal that each September the teachers are generally cautioned with respect to their conduct involving the students. There was an oblique reference to a handbook. The Crown did not seek to expand upon this concept during direct examination. The handbook was not filed as an exhibit.

[113] Third, the notion of a limited zone of consensual physical contact between teachers and students was not addressed. The issue of consent is a nuanced and difficult issue in the context and circumstances of this trial. I am aware that when assessing the issue of consent, s.265(3) (d) of the Criminal Code bars consent obtained by reason of the exercise of authority. There is no question that the defendant was in a position of authority over each complainant. Each complainant should not be viewed as having consented to the application of force simply because of mere submission to physical touching from the defendant: R. v. A.E., [2000] O.J. No 2984 (C.A.), at para. 41. On the other hand, the determination of whether or not consent was vitiated by an "exercise of authority" may involve consideration of the "coercive" use of that authority: Plews, at paras. 360-369.

[114] Where I have found that the defendant touched a child such that the test in Chase has been met, I have difficulty finding that the assault element has been proven. Where the test in Chase has not been met, I have struggled with the issue of what exactly constitutes a simple assault based on the record produced in this case.

[115] I find, given the paucity of the record at trial, that there must be some level of physical touch permitted in the school. That the Principal referenced this obliquely is at least some foundation for this belief. That there might be a handbook governing this conduct pre-supposes that there is some zone of physical touch permitted. If there was an absolute prohibition – I would have expected the Principal to testify as such. Neither the Crown or Defence explored this issue thoroughly. The Defence was not required to explore it thoroughly.

[116] A criminal assault requires the Crown to establish the following beyond a reasonable doubt:

• That the defendant intentionally applied force;
• The complainant did not consent to the force that the defendant intentionally applied; and,
• That the defendant knew that the complainant did not consent to the force that he intentionally applied.

[117] The fulsome answer for liability is not found in the defendant's admission that he engaged in physical contact with students for the purpose of support and encouragement. The legal reality is that there must be some zone of permitted physical contact inherent in the teacher student dynamic. In order to prove an assault, the Crown has to prove that the defendant knew that the complainants were not consenting to contact. In the final analysis, the record is incomplete on this issue.

[118] Given the procedural approach to this issue, the approach to the issue by the parties, and the criminal burden of proof, there are gaps in the record necessary for this Court to fully analyse the defendant's culpability for assault. I am not sure that the Crown has proven both the actus reus and the mens rea associated with the criminal offence of assault. If there is any doubt in my mind, the criminal burden of proof and presumption of innocence requires me to acquit.

Part Four

II. The Credibility and Reliability of the Defendant

A. Credibility and Reliability

1. Background and experience

[119] The defendant is aged 40, married, with two small children. He has an extensive and admirable background as an educator and as a coach. He received his teaching certificate in 2001 and after that studied to complete his master's degree. He began teaching in 2003 as a supply teacher in night school with the Durham District School Board. His first permanent job with the board started in September 2004. He worked at his first school for approximately eight years. He worked at his second school, commencing in September 2011 and ending in January 2018, with his leave of absence. The defendant has taught almost every grade level. He has focused on science, physical education, and health.

[120] The defendant has an admirable background as a coach of various sporting activities. He viewed his extensive involvement in this area as an opportunity to give back to the students in a way that was meaningful for him. Playing sports had been something that defined his childhood. He was a successful coach. His object was to make it fun and competitive for the students and to assist students in the way that sports helped him with his life.

2. Demeanor

[121] There was nothing notable about the defendant's demeanour. I do not agree with any of the Crown submissions premised upon a change in demeanor during the defendant's testimony. The defendant presented as an intelligent witness. He answered questions and responded to the tone and pace of cross-examination appropriately.

3. Credibility

[122] A comprehensive consolidation of relevant law in relation to credibility in a sexual assault trial is found in Hill J.'s judgment in R. v. G.A., 2017 ONSC 7493, at paragraphs 136 – 158. I will not quote the lengthy comprehensive consolidation here. I simply acknowledge the detailed instructive guidance from that case. In additional to this guidance there are several basic principles that criminal law judges must keep in mind in every case.

[123] First, it is axiomatic that the prosecution must establish the defendant's guilt beyond a reasonable doubt. The defendant cannot be found guilty on any lower standard.

[124] Second, as outlined in this judgment, W.(D.) is an excellent framework for ensuring that this Court remains focused on the criminal burden of proof. I reject the defendant's denial of sexual touching or sexual intention because of a number of factors I will explain. But this does not end the analysis. Under the third branch in W(.D.) I must evaluate the evidence provided by the prosecution and determine what, if any, evidence I accept. Then, I must determine whether or not the evidence I accept establishes the defendant's guilt beyond a reasonable doubt. In navigating the test in W.(D). the analysis is not solely dependent on the rejection or acceptance of the defendant's testimony. I must consider any evidence relevant to the test, whether it emanates from the case for the Defence or the prosecution: R. v. M.P., 2018 ONCA 608, at para. 60.

[125] Third, I am entitled to believe all, none, or some of a witness' evidence: R. v. Francois, [1994] 2 S.C.R. 827, at para. 14; R. v. M.R., 2010 ONCA 285, at para. 6; R. v. Hunter, [2000] O.J. No. 4089 (C.A.), at para. 5; R. v. Abdallah, [1997] O.J. No. 2055 (C.A.), at paras. 4 - 5. In this judgment I will explain what parts of the defendant's evidence I accept, and what parts I reject. I will also explain with respect to each complainant what parts of the evidence I accept, and what parts I reject. In so doing, I will also explain my decisions regarding the weight I have accorded parts of the evidence: R. v. Howe, [2005] O.J. No. 39 (C.A.), at para. 44.

[126] Fourth, I must be cautious with the record produced in furtherance of both the discreditable conduct application and the trial. As there was a blended application and trial, having dismissed the application, it is important to steel myself from drifting into propensity-based reasoning. Even in response to Defence submissions premised on evidence across the counts, I may not use the discreditable conduct evidence to incriminate the defendant. I may not use the discreditable conduct evidence to rebut Defence submissions. I may not use the discreditable conduct evidence across the counts to bolter the credibility and reliability of the complainants. I am of course perfectly aware of the number of complainants and witnesses who have testified about the conduct of the defendant. I may not allow sheer numbers to allow my mind to essentially drift into propensity-type reasoning.

[127] Fifth, a determination of guilt or innocence must not devolve into a mere credibility contest or choice between competing prosecution and Defence evidence: W.(D.), at p. 409; Avetsyan v. The Queen (2000), 2000 SCC 56, 149 C.C.C. (3d) 77 (S.C.C.), at pp. 85-87. After considering the totality of the evidence, if I am unable to decide whom to believe as between the prosecution witnesses and the Defence witnesses, this state of mind translates into a reasonable doubt: R. v. S. (J.H.), 2008 SCC 30, at para. 12; R. v. Austin, [2006] O.J. No 4660 (C.A.), at para. 20.

[128] Sixth, I am aware that I must endeavor to fairly and evenly evaluate the defendant's evidence and each complainant's evidence: R. v. Bartholomew, 2019 ONCA 377, at paras. 30-31; R. v. Radcliffe, 2017 ONCA 176; R. v. Gravesande, 2015 ONCA 774.

[129] Finally, I have explained that I do not believe the defendant's denial of sexual touching or sexual intent. While disbelief on these core considerations is important in this case, I may not allow my disbelief to overshadow consideration of the criminal burden of proof. It is an error to move directly from mere disbelief of the accused's evidence to a positive finding of guilt: R. v. Dore (2004), 189 C.C.C. (3d) 526 (Ont. C.A.), at p. 527; R. v. H.(S.), [2001] O.J. No. 118 (C.A.), at paras. 4-6.

B. Central Position of the Defendant

[130] Earlier in this judgment I set out the test in W.(D). and explained that my evaluation of step one and step two of W.(D). was premised on my consideration of all of the evidence at trial. In Part Five and Part Six of this judgment I will explain what evidence, if any, I accept from each complainant and witness and why. Part of the explanation involves consideration of the evidence that I accept from the defendant and the evidence I reject from the defendant. I will address these issues in this part of the judgment – Part Four.

[131] The Crown did not specifically confront the defendant concerning each complainant and each impugned act. The Defence cites this as a lapse on the part of the Crown thereby suggesting that the defendant's core position of a denial deserves some credit. I do not agree. The failure of the Crown to confront the defendant on every single impugned act in this trial was not necessary. The defendant clearly and unequivocally denied any sexual touching, or touching accompanied by sexual intent, under any circumstance, involving any complainant. In these circumstances, it was not necessary for the Crown to ceremoniously confront per Browne v. Dunn, (1893), 6 R. 67 (H.L.).

[132] I reject the defendant's denial of sexualized touching or sexual intent. This rejection is premised upon the evaluation of several factors at trial that I must briefly explain so that my proper use of these factors is clear.

1. Admission of generalized physical touch

[133] The resounding crescendo of evidence from almost every witness at trial was that the defendant was perceived to be being "too touchy", "too friendly", and "creepy". The defendant, when he testified, endorsed a climate of generalized physical touching of his students.

[134] As I explained in the beginning of this judgment, I accept that at times, some level of non-sexualized physical touch may occur between teachers and students. This trial is not about a supportive pat on the shoulder or a high-five after a great play in a basketball game. This level of physical touch is common in the school environment and would not attract general scrutiny let alone the scrutiny of a criminal court.

[135] It is still a significant feature of this trial that the defendant engaged in frequent physical contact with students. The defendant endorsed touching students on their shoulder, back, waist, and arms. He endorsed circumstances where he might rub or pat a student's back in consolation. The circumstances where he would touch students in a non-sexual physical way occurred frequently according to his testimony:

Q. And let me ask you, sort of, this general touching that you've talked about, how often was this happening?

A. It, it definitely wasn't happening as often as we've heard, sort of, in this trial to make it sound like it was happening every time I saw somebody or every single day. I mean, it happened. I was definitely a caring and touchy teacher just, you know, for lack of a better word, but it was, you know, maybe a couple times a week. It wasn't every time I saw a student. It wasn't every time I was in the gym or every time I was in the classroom.

[136] During cross-examination, the defendant testified that he had engaged in a multitude of circumstances concerning non-sexual physical touching of the complainants in this case – too many to count.

[137] The defendant testified that physical touching occurred for the purpose of support, care, and encouragement and was devoid of sexuality. The climate of physical touch, endorsed, and acknowledged by the defendant when he testified, provokes several conclusions.

[138] First, even on a count-by-count analysis, more than one child witness in this case testified that no other teacher at the school touched them in a similar manner to that exhibited by the defendant.

[139] Second, the defendant participated in, and promoted a climate of physical touch with students such that this became normalized behaviour. The notorious nature of this conduct made this simply part of his persona.

[140] Finally, the defendant's approach persisted, notwithstanding a specific formal warning from his Principal a few years prior to these allegations. The defendant was not in the same position as any other teacher. He was a teacher who had been specifically warned about his physical contact with students. As the defendant explained, he did not fundamentally change his approach after the warning from his Principal.

2. Accidental or incidental touch

[141] At times, cross-examination appeared focused on the suggestion that the defendant's physical stature was a relevant and material factor. Further, during submissions, Defence counsel cautioned the Court concerning how mere inches might mean the difference between a sexual touch and a non-sexual touch and that the placement of this touch by a complainant might be unreliable. In this manner, the issue of accidental touch or incidental touch was obliquely raised.

[142] The defendant's testimony did not support findings of accidental touching. The defendant did not testify that any of the impugned acts of touching were accidental or inadvertent. He clearly delineated the difference between the impugned touching attributed to him, and intentional physical touching associated with teaching gym, coaching sports, and the more limited justification for physical touching in the classroom.

3. Limited confirmation of each complainant's version of events

[143] During his testimony the defendant generally confirmed the overarching circumstances surrounding the allegations made by each complainant while still denying any sexualized touching and accompanying sexual intent. He also, at times, specifically confirmed circumstances peculiar to a complainant's recount (e.g., he endorsed the testimony of G.B. and C.M. in relation to the circumstances in the staffroom as I have explained in Part Six of this judgment). As a result, the defendant, through his own testimony, provided some general corroboration of the allegations made by each complainant.

4. The Principal's warning

a) The Principal's testimony

[144] The defendant's Principal testified at trial about communicating a specific warning to the defendant about his behaviour in 2012 – five or six years prior to these allegations:

A. Absolutely. So the meeting - it was very specific and direct, so we begin by suggesting that he have a union rep present and [union rep] was present. I then shared that I have had reports about [the defendant] being alone in the classroom with female students, and I also shared that there was a report that he - another teacher had witnessed him walking down the hall with his arm around a student, and I advised at that time that these actions were completely inappropriate and could not continue.

Q. What else do you recall you telling [the defendant]?

A. I also, at that time, informed him that this conversation was really a conversation to protect himself and that we needed to consider this an official verbal warning that this is the first stage of disciplinary action, an official verbal warning, and that that's what this was, and that for his own protection and for the matter of perceptions, that it was strongly recommended that he could not be alone in a room with a student and nor be put in situations where others could judge that as professional misconduct.

Q. And when you say other situations, what do you mean by that?

A. Alone with a student potentially, having his arm around a student, some of the reports were poking students, so those types of physical contact couldn't - could not continue.

[145] The defendant returned five minutes later seeking clarification and his Principal provided further information:

A. So I stated that what was most important about the situation is that he really thinks about his actions and doesn't continue, and is aware of the perceptions he's sending, and not the people who have reported the incident.

Q. Okay. Now, you've made use of the word perceptions...

A. Mm-hmm.

Q. ...a couple times. What, what was your - what were you trying to convey in this meeting when you were using the term perceptions?

A. We understand - teachers understand that when they put themselves alone in rooms with students, what the perceptions can be, particularly a male student and a female student. So if a male student and a female student are alone in a room together without other people knowing, without other being - people being aware, there can be perceptions about the conduct and professional conduct, the ethical, the ethical responsibility that teachers have. And so we know that there can be questions about what that behaviour is when we put ourselves in those situations, so the perceptions are is that your behaviour could be inappropriate if you're in those situations because we know, we're advised strongly - we advise teachers in September every year within the staff handbook to ensure that they're not in rooms alone with students. And so if you put yourself in that situation, we know people could think that other things are happening.

b) Defendant's testimony

[146] During direct examination on June 24, 2019 the defendant explained:

Q. We've heard about a warning that you got in 2012...

A. . . . . I was in the office and [the Principal] asked if she could speak to me for a minute. And she also offered for my union steward or school steward to be present.

Q. All right. And where was the meeting?

A. In . . . the principal's office.

Q. Okay. And who was at the meeting?

A. It was myself, [deleted] the union steward/kindergarten teacher, [deleted] the principal, and [deleted] the vice-principal.

Q. All right. And so tell me about the meeting. How does the meeting start off?

A. It was, it was very direct, very quick. [The Principal] did 90 percent of the talking. She just said she'd gotten some information that I'd been alone with a student in a room and had my arm around them. And she, you know, cautioned me about doing that. And she said to be careful about perceptions and to protect myself. And that was, that was it.

Q. All right. And was there any kind of a back and forth in this meeting or?

A. I asked for details because, because I wasn't told when it happened or who was involved or anything, but she didn't provide any.

Q. Okay. And what did you say, sort of, in response to the warning that you were given?

A. I, I took it. I said, okay, thank you. You know, I'll do my best to not be alone with students and to have my arm around them if I am, and that was it. It was a very brief meeting.

[147] The defendant noted that there were no other consequences as a result of the meeting with his Principal. He explained his approach going forward:

A. I, I tried to make sure that I wasn't alone with students. It's sometimes impossible as a teacher, but I really did make efforts to not be alone with students and have my arm around them, especially if I was alone with them. But it didn't fundamentally change me. It didn't weigh on me every day. Again, I had no, no other issues with [the Principal]. She was my principal for two years after this and it never came up again, so I assumed that what I was doing was okay.

[148] The defendant was thoroughly cross-examined on this issue by the Crown:

Q. . . . [Y]ou'd agree with me that that meeting was a very, very pivotal moment in your life, right?

A. No, I don't.

Q. It wasn't?

A. No, it was not a pivotal moment in my life.

Q. You're a relatively - how long have you been teaching for?

A. Fifteen years.

Q. Fifteen years in your career. And you're called in and told that you need, you may want to consider having a union rep with you.

A. Yes.

Q. So you know things are serious.

A. I know it's an important topic, yeah.

Q. All right. This is not just a hey, your principal want to talk to you about where you're parking, or maybe make sure you're not late coming into class after lunch, right?

A. Right, but I've been in many of these meetings before as a union steward as well. They're not uncommon.

Q. And this was an allegation that was put to you that you were touching a student inappropriately, Sir.

A. No, I was told that I was alone with a student and had my arm around them. I was never told that I touched them inappropriately.

Q. You heard your ex-principal testify here Sir, right?

A. Yes, I did.

Q. And what she said. This is her testimony. She says what she told you on May 24th was that she had received some reports that you have been alone in your classroom with a female student, correct? Do you agree with that?

A. That's what the report was, yeah.

Q. All right. And that she testified and you heard her say, what she told you specifically is that yesterday you were walking down the stairs with your arm around the waist of a female student, right?

A. Yes.

Q. It's not being alone in a room with your hand or hand around the waist of a student, correct?

A. Correct.

Q. So you keep....

A. Not just that.

Q. Well you keep saying.....

A. Because it was the whole thing. I didn't delineate different parts of the meeting. I took the entire message together.

Q. Right. But there's two parts to this, right?

A. Yes. And neither time was it said that it was inappropriate, for the record. That's what I took issue with was that I was told it was inappropriate. It was never told to me that that was inappropriate. I was cautioned about perceptions. I was cautioned about protecting myself, about being alone with my student, having my arm around them. At no time was I told that it was inappropriate behaviour.

Q. What she told you is, I have to advise you that these actions are completely unacceptable and cannot continue.

A. That's what her notes say, yes.

Q. And that's what was said to you, Sir. Correct?

A. I don't remember specifically what was said.

Q. Well that was the whole thrust of this, right?

A. That was the gist of it, yeah.

Q. Right. That it is completely unacceptable and not appropriate to you either, one, be alone in the classroom with a student, correct?

A. Yes, try to be - not be alone with students, yes.

Q. And two, the conduct of you walking down the stairs with your arm around the waist of a female student, completely unacceptable and cannot continue, correct?

A. Correct. And I tried to not be alone with students and put my arm around them, and it was something that I've endeavoured to do after that. And I never - it didn't fundamentally change who I did things. I didn't take it as never, ever be alone with a student again. That's impossible. Never ever again touch a student. That's impossible.

Q. Let's back up a little bit here. What we're being told is it's two different things. And the one is, having your arm around the waist of a female student, not appropriate, not acceptable.

A. That was part of it, yes.

Q. All right. And it wasn't you couldn't do this only if you were - that you shouldn't do this when you're alone, you should not do that period.

A. It was presented as one situation, not as separate meetings about separate topics.

Q. Okay. When it's presented to you that - and this is what was read to you, and you've agreed with me on this. I have received some reports that you have been alone in your classroom with a female student, right?

A. That's.....

Q. That's said to you.

A. That was said to me. Yes, it was.

Q. So that's one incident, right?

A. Yes.

Q. And then the next part, and yesterday you were walking down the stairs with your arm around the waist of a female student. That's a second one, right?

A. Yes, but they were presented in the same meeting.

Q. Right.

A. I took the message as one message.

Q. But it's two very specific things you need to stop doing, right?

A. I was advised not, to be aware of perceptions and to protect myself. Yes, absolutely.

Q. My question to you was you were given direction on two things that were not appropriate, right?

A. Yes, alone and arm around a student. Yes.

Q. All right. And it wasn't an arm around the student when I'm alone, correct?

A. I took it as alone. I was alone on the stairs with the student. That was part of the contention that my principal expressed to me. I'm just telling you my memory, Sir.

Q. I'm going to suggest your memory's wrong on that, Sir.

A. Only one of us was there.

Q. Well actually, we've heard from the other person who was there.

A. One of us was there.

Q. And that's what she testified to and wasn't challenged on that front. So as a university educated professional teacher, you're taking this in terms of you should only, you can't have your arms around the waist of a student when you're alone? That's not what you're testifying here today.

A. I'm testifying that the meeting happened. I was cautioned not to be alone or have my arm around as student. I took that caution. She advised me to protect myself and to be aware of perceptions. I made best efforts to not be alone with students and have my arms around them. Did it fundamentally change how I taught, no. Did it ever come up again, no.

Q. Well, after this meeting, you probably can't even count the number of times you had your arm around the waist of a student, right?

A. No, I don't keep track.

Q. It's uncountable, right? It would probably be in the hundreds, right Sir?

A. I have no idea.

Q. Would I be off on that though?

A. I have no idea. I can't give you an answer to a question I don't know.

Q. Happened on a, at least, on a monthly basis, right?

A. Probably monthly, yes, sure.

Q. Probably even weekly, too, right?

A. I don't know if it would happen weekly. I doubt it.

Q. And it never popped into your mind, that meeting, that official verbal warning I was given, maybe this is not a good idea.

A. I never - it never came up again. I never had an issue again.

Q. I didn't ask you if it came up again. I'm asking about you.

A. Can you repeat the question, please?

Q. Yes, the question is, all those times that you find yourself guiding a student in with your hand around their waist right, or volleyball, touching a waist, touching children here and there on their waist, it never popped in your mind, I remember when my principal gave me an official verbal warning telling me this behaviour is unacceptable and must stop. That never popped back in your mind again?

A. I was not fixated on the meeting, no.

Q. I'm not asking if you're fixated, I'm asking if.....

A. Did it pop into my head...

Q. Yes.

A. ...no.

Q. No?

A. No.

Q. That meeting must have driven home to you that someone things I'm doing something that's not acceptable, right? That's pretty clear.

A. Yeah, somebody, but I wasn't told who or any of the circumstances.

Q. So you weren't sure at that point if it was a teacher or a student at the time. You didn't.....

A. I had no details beyond what you said where I was alone with a student, and I had my arm around her in the stairwell. That's all I was told about an entire situation. I had no information other than that.

Q. So, it could only really come from two places, right? Either another staff or a student, correct?

A. No, there's lots of people in the school. It could have come from a number of people.

Q. Well who else?

A. Most likely those two, but it could have come from.....

Q. Who else would it be other.....

A. It could have come from a janitor, come from a parent, it could come from a visitor, from a volunteer, from a superintendent, from a tech. There's lots of people in a school.

[149] The defendant testified that he understood the warning to be that he should not be alone with young female students and engage in the physical touching of young female students. In this way, he testified that the two elements of the warning were conjunctive, not disjunctive. Consequently, he endeavored to try not to be alone with female students as a result. But he also testified that the warning did not fundamentally change his approach to teaching. The implications of this approach were clear. He would continue to engage in physical touching – just not while alone with a student.

[150] I do not believe the defendant's evidence that he took the warning from his Principal literally and conjunctively in the manner he described. His Principal testified that every September the teachers were cautioned about the appropriate limits of physical touching with students. The defendant is articulate, intelligent, and well-educated. I don't believe his testimony that he suffered from deficient understanding or laboured under a unique and peculiar conjunctive interpretation of the Principal's warning.

[151] The warning was clear to any adult, let alone a teacher -- do not physically touch your students in the way reported because it is unacceptable and inappropriate behaviour.