Warning
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the 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.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Ontario Court of Justice
Date: 2023 07 07 Court File No.: Windsor 22-91
Between:
HIS MAJESTY THE KING
— AND —
A.R.
Before: Justice C. Uwagboe
Heard on: July 4, 5, 6, 2023 Reasons for Judgment released on: July 7, 2023
Counsel: Jennifer Comand, Counsel for the Crown Dean Embry & Shannon Darby, Counsel for the Defendant, A.R.
Uwagboe J.:
[1] The matter before the Court involves multiple allegations of sexual misconduct including sexual assault and sexual interference on the part of the accused, A.R., who was employed as a substitute teacher for the Windsor-Essex Catholic District School Board on the 16th and 17th day of December 2021.
[2] The case commenced with five complainants. On Crown application, counts 1 and 2 in relation to R.L. were withdrawn. Four complainants remain, each alleging a count of sexual assault and a count of sexual interference on the part of A.R.
Summary of the Allegations against A.R.
[3] It is alleged that A.R. was employed as a substitute teacher on Thursday, December 16th, 2021, and Friday, December 17th, 2021, just prior to the Christmas break. On the 16th of December, it is alleged, that following the morning gym class, A.R. cupped the breast of S.C. from behind her in order to “spin” her around to tell her that she did very well at volleyball that day.
[4] S.C. testified that she told her friend, A.B., also a complainant in this matter, about what happened after gym. S.C. offered in her evidence that the class was behaving. S.C. testified that aside from the cupping of her breast after gym class, A.R. proceeded to touch her and other students in inappropriate ways. S.C. suggested that the inappropriate touching was both to girls and boys in the class adding that A.R. ran his fingers through H.’s hair and told him that “he doesn’t bite” in front of the class for everyone to see.
[5] S.C. alleged that she was touched inappropriately by A.R. on her hair, cheek, shoulder, arm and thigh while she was seated at her desk. It was further alleged that this sexual touching was not unique to S.C., as A.R. touched her friends’ (the remaining complainants) hair, arms, shoulders and backs in similarly disturbing ways. S.C. had to stick up for A.B. telling A.R. not to touch her and that it made her uncomfortable. This apparently prompted frustration from A.R. and he asked S.C. if she wanted to go to the principal’s office.
[6] It was suggested that some of the group of friends determined that they would give A.R. the benefit of the doubt but that if he kept touching them then it would be for another reason other than being friendly.
[7] There were varying narratives as to what was discussed and when, but there is some evidence that there was a plan of action developed following the events of December 16th that were put into action on December 17th following recess. The group of 5 complainants decided to attend the Child Youth Worker’s office to tell her about their complaints once A.R. touched R.L.’s braids and others’ bodies again.
[8] Ultimately, the complainants were paraded individually before the principal, Mr. M., to be interviewed and A.R. had to leave school and was later arrested on the strength of these allegations.
[9] I am mindful that the Court must pay careful consideration to the evidence of children and that their evidence may not come across the same way as an adult’s would. Careful consideration must be paid to this fact in assessing the credibility and reliability of their accounts.
[10] A defence was not called in this case.
Position of the Parties
Crown
[11] The Crown did not bring a similar act application for a number of reasons, one likely due to the presence of significant evidence of collusion on the part of the witnesses. That said, the Crown encouraged the Court to be mindful of the fact that the presence of collusion is not necessarily consistent with a lack of credibility or reliability. Each witnesses’ account must be viewed separately. Inconsistencies may exist on peripheral matters and the Court must determine whether they rise to material inconsistencies. The Crown submits that each witness came across as credible, none of them were confused about being touched, or the manner in which they were touched. The Crown provided R. v. Green, 2021 ONSC 6578 to the Court to highlight the sensitivity of the upper thigh touching on a female to a violation of sexual integrity. The Crown acknowledged some inconsistency between court statements and police statements.
The Crown further submits that there was no embellishment of the touching that took place adding that the areas and the way they were touched “anyone would think it was sexual in nature.” S.C. was the most serious of the allegations and any belief of her account supports conviction. The Crown fairly states that the other three (3) complainants were not as egregious as S.C.’s complaint. The Crown alternatively submits that a conviction for simple assault could be made on the evidence adduced if the Court is not satisfied with a finding of sexual purpose.
Defence
[12] The Defence submits that the evidence of all complainants was fraught with inconsistency and collusion. The evidence as a whole was inconsistent internally and externally and not worthy of belief because it lacked credibility and reliability. The Defence submits that the Crown failed to advance a consistent narrative. There is no evidence to support sexual intent and the sexual assault evidence falls short and is otherwise unreliable. The Defence points to specific frailties in each witness’ account and submits that individually each account falls short of the Crown burden. The evidence of S.C. specifically evolved over time and that she was neither credible nor reliable as a witness. The collusion instigated by S.C. was prevalent and palpable influencing the experience of each of the other complainants. S.C.’s subsequent distancing of her actions at trial was purposeful and misleading. Like the others, her evidence cannot support a conviction on the charges before the Court.
Common Ground
[13] Both parties agree that sexual interference requires specific sexual intent and sexual assault does not require the same level of intent, but the touching must be intentional. To be sexual in nature it must violate sexual integrity or be for the purpose of sexual gratification.
[14] Both parties agree that S.C. is central to the events before the Court.
Approach
[15] In this Court’s view, it is important to assess the evidence of each witness separately. I agree with the Crown that the three complainants, apart from S.C., are on the lower end and I think it is prudent to assess their evidence first and deal with S.C.’s last.
Analysis
[16] For the reasons that follow, on the counts of sexual assault and sexual interference related to E.B.; A.A.; and A.B.; I find that the Crown has failed to prove their case beyond a reasonable doubt. I agree with Defence that the Crown in their submissions couched the evidence collectively without application for similar fact and failed to establish for this Court a cohesive narrative for each complainant – this was likely as a result of how underwhelming their evidence was in relation to the very serious charges before this Court.
[17] The evidence of each witness was assessed both individually and in context with the evidence as a whole. I will deal with these witnesses in the reverse order they were called in, after which, I will address the counts and findings in relation to S.C.
E.B.
[18] E.B. testified last on the trial. She was seated next to S.C. at all material times and provided her account of the events that transpired to the Court.
[19] I found her evidence to be credible and reliable. She was not evasive. She did not embellish her evidence or confound her account of events with that of any other witness. She was consistent. I found her to be genuine in her effort to assist the Court in its truth-seeking exercise. In short, I found her to be honest. She was the youngest of the Crown witness being 13 years old.
[20] I find as a fact that she was touched once on the shoulder by A.R. Notwithstanding that, I find that her evidence falls short of supporting a conviction for sexual assault or sexual interference. Nothing about her account would support a finding of a violation of sexual integrity or an inference of sexual gratification on the part of A.R.
[21] Her evidence as a whole was helpful to this Court in making sense of the events before the Court. I accept her evidence.
[22] E.B. suggested that the class really did not do much work. She specified that they were preparing for the assembly for the retirement, to which they would attend by google meet and then present in the gym when it was their turn. It is noteworthy that she did not account for a gym class or volleyball.
[23] She described a singular event when she was touched on the shoulder by A.R. She testified that he called her sweetie. She described detail around the event of him coming to her from his desk but could not recall whether she asked him to come or if he went to her on his own.
[24] She described feeling uncomfortable with being touched by him primarily because she did not like to be touched by strangers. She offered no context to the touching that would suggest a sexual underpinning. She specifically advanced that he did nothing with his hand when it was on her shoulder adding it was there for 1 – 5 seconds.
[25] It was her belief that he touched A.B.’s back at one point but did not see him touch anyone else. It is of note that she was seated directly beside S.C. She sat in the back corner by the door with S.C. to her left. She testified that she and S.C. are no longer friends.
[26] In describing S.C.’s account, she advised that she was told by S.C. that A.R. touched her shoulder and moved his hand down to her chest. It is of note that this account was shared by others but denied by S.C. She added that she was told that A.R. was touching other people’s thighs. She relayed that to the police. This account is consistent with the note of S.C. but inconsistent with her evidence of how she was touched on her thigh. I will address that later. It is also noteworthy that E.B. did not observe any event of A.R. touching the thigh of S.C.
[27] E.B. described the class as rambunctious which is consistent with the description of the principal, Mr. M. Specifically, she said: “We were kind of a crazy class; we were kind of all over the place; guys were misbehaving; guys act out especially when there is a substitute.” I found this account inconsistent with the evidence of S.C. that the class was behaving. E.B. was honest in stating that H. got in trouble and that she also got in trouble for talking to S.C. when she wasn’t supposed to – this account was absent from the narrative offered by S.C. E.B. did not provide evidence of A.R. running his fingers through H.’s hair and telling him that he didn’t bite.
[28] Trouble was clearly not limited to the boys. E.B. testified that aside from her getting in trouble herself, A.B. kept coming to sit with she and S.C., and A.R. had to tell her repeatedly to take her seat. This is consistent with A.B.’s account and inconsistent with the account of S.C.
[29] E.B. denied meeting with others prior to Friday when they met prior to going to Ms. S., the Child Youth Worker.
A.A.
[30] The Court heard from A.A. A.A.’s account of events demonstrated substantial collusion on the part of the complainants before the disclosure to the child youth worker, after speaking to the principal, prior to speaking to police, and after speaking to the police, right up to the moment she testified at trial.
[31] I did not find her account of events to be reliable and have concerns regarding the credibility of her account given her more recent corroboration with S.C. There are parts of her evidence that were helpful including the events of collusion with the parties. As a whole there were material inconsistencies in her evidence, particularly in regard to how she was touched. Her initial disclosure of how she was touched was more benign than the embellished account she offered for the Court.
[32] Her evidence leaves me with a reasonable doubt.
[33] A.A. told the Court that the only time that the class attended the gym was for the assembly. Her account does not provide for gym class or volleyball as offered by S.C.
[34] Similar to E.B., she supports the suggestion that the class was rambunctious adding that they had their lunch privileges taken away by their regular homeroom teacher. She further denies the pairing of desks as offered by S.C.
[35] She testified to none of the boys being touched. I reject this sweeping generalization. There was insufficient evidence from this witness to arrive at such an absolute conclusion. Moreover, the evidence is inconsistent with the evidence from others that he was in contact with many students which I accept as a fact.
[36] A.A.’s evidence was embellished as to how she was touched by A.R. She offered to the Court that she was touched across her shoulder across the back of her neck and down her left arm. Her evidence of his hand travelling down her arm was not offered to police. When confronted with her transcript of her account, she disclosed that it came to her the day before she testified and that she had discussion about that with S.C. in the courthouse elevator prior to her testimony, notwithstanding they were told not to discuss their evidence. She advised the Court that she acted on the advice of S.C. in adding this part about the hand moving down her arm in her testimony in court. I found this revelation disturbing to say the least.
[37] She alleged that she was touched 4 – 5 times on Thursday before the end of the day. I do not find her assessment of events reliable and even if the number of times were true it is not significant enough to support the inference of sexual purpose over the course of an entire school day with multiple periods. A.A. added that she told him to stop because she was uncomfortable but allowed for the fact that she was not specific to touching. She would often find herself in dissociative states and needed extra help with schoolwork and allowed for at least 2 - 3 events when he would have attended to her in respect of her dissociative state.
[38] I specifically reject her evidence that she watched A.R. continuously on the Friday and observed him to be glaring at her chest and that he had no opportunity to touch any other student that day.
[39] A.A. offered that she found out about S.C. being touched following the assembly when she lost sight of her and was later advised that A.R. touched her breast by pointing something out and grabbing her breast to spin her around.
[40] She was confronted with her transcript and her account of the touching of S.C. was different in a material way. Her account suggested a touching to the shoulder that moved down to the chest while S.C. was at her desk. I appreciate that this is all hearsay, but her evidence in general was not consistent and it supported this Court’s finding that her evidence was unreliable.
[41] She described multiple events where they discussed the details of touching and shared stories. She excluded E.B. from these discussions on cross but included everyone in-chief. It is significant and concerning that she places the responsibility of the plan to make up a story prior to going to Ms. S. squarely on the shoulders of S.C. She describes a plan formulated on Thursday evening through chat on Instagram where S.C. formulated the plan and further that she is the one that executed it on Friday. She denies a meeting in the hall.
[42] Of all of her evidence, the discussions surrounding the plan for Friday made the most sense. That said, it is clear to me that her embellishment of her evidence was a product of these discussions and the fervour created by the rumours circulated about A.R. in her friend group.
A.B.
[43] The evidence of A.B. was a prime example of the impact of collusion on the evidence of a witness.
[44] I find as a fact that A.R. touched A.B. but the evidence offered about the nature of the touching was unreliable and clearly impacted by the conduct of S.C. to the extent that I am left in a reasonable doubt on the counts alleged. Moreover, the substance of the touching experienced by A.B. does not rise to the level of sexual assault or sexual interference.
[45] A.B. testified that A.R.’s touching of her body initially did not bother her. She testified that her impression of the touching that occurred was directly impacted by the comments and suggestions offered by S.C.
[46] She testified that the class was loud. She was touched a total of 6-7 times with 3 of those times being on Thursday. Her evidence was completely unreliable as to what day events occurred on. This lack of reliability was beyond misremembering a day. The narrative itself was impacted by this in-chief in ways that made her story nonsensical to this Court.
[47] She advised the Court that her “eyes were opened” as to what was going on by S.C. She provided evidence that A.R. touched the boys and the girls. I found nothing remarkable about the touching offered by A.B. to the other students. She testified to becoming concerned only after speaking to the other girls. She testified that they “each added to each others conversation” prior to disclosing the touching to Ms. S.
[48] She testified to becoming aware of S.C. being touched. As she understood it, A.R. dragged his hand from her shoulder down to her chest when coming from the gym. When challenged by the fact that this was not told to the police, she retreated from a recollection of gym class at all. In fact, she could not recall if A.R. was present on the day of the assembly. It is noteworthy that her account does not accord with S.C.’s testimony of how she was touched but it bears striking resemblance to what other witnesses were told about how that touching occurred by S.C.
[49] A.B. testified that she went to the back on Friday and had to be told by A.R. to go back to her seat multiple times. On one of these occasions, he put his hand on her back and S.C. told him not to touch her. This was followed by A.R. asking S.C. if she wanted to go to the office. This event is consistent with the account of E.B. who’s evidence I accept. This version of the exchange was left out by S.C.
[50] A.B. also offered in her evidence that it was S.C. that found the Instagram account of A.R. and suggested that the girls he coached soccer for were at risk. I found this evidence to be truthful and I accept it based on the impact it had on A.B. in her testimony.
[51] S.C., like A.A., provided numerous accounts of collusion between the parties at various points both before and after the disclosure to the principal.
[52] She was inconsistent with the evidence surrounding G. and her involvement in the matter. She changed her evidence to suggest that it may have been A.A. that came up with the story to get out of class. It is noteworthy that A.A. clearly places that responsibility on S.C.
[53] The impact of S.C. on A.B.’s evidence was palpable. A.B. testified to S.C. telling her that something like this had happened to her before and that she was “familiar with how this happens.”
(1) A.B. testified that the touching of her back did not worry her; she was more worried about the touching of S.C.’s chest; (2) That the soccer image that S.C. found on Instagram worried her more; (3) When S.C. told her that this has happened before it worried her more; and (4) Specifically, S.C.’s experience worried her more.
[54] She testified that S.C. knew what his next move would be:
(1) He would continue to touch them; and (2) Next the touching would escalate.
[55] All of this precipitated A.B. telling her parents.
[56] There is simply no way that a conviction of any sort could arise from the evidence of A.B.
S.C.
[57] S.C.’s allegation of touching is far more serious as it relates to the touching of her breast. The Defence did not call evidence to refute the allegation. The allegation like the others must be viewed on its own merit as to whether it is capable of belief beyond a reasonable doubt. The allegation brings to bear elements of a violation of sexual integrity and potentially sexual gratification if believed.
[58] I assessed S.C.’s evidence carefully, and having assessed her evidence I found it to bear hallmarks of both internal and external inconsistency. In other words, her account was unreliable on material points of how she was touched and inconsistent with the evidence of other witnesses, that I do accept, surrounding her narrative. Further, I found S.C.’s evidence to be evasive, manipulative, misleading and not worthy of belief. For the following reasons I reject her evidence on both counts and am left with a reasonable doubt also on the submission offered by the Crown for simple assault.
[59] I reject her evidence that A.R. stopped her by turning her around by her breast after gym class. The preponderance of evidence before this Court suggests that there was not a gym class that day due to the assembly that took place. I considered the submission that she may have been mistaken by gym and the assembly, but the touching was inextricably interwoven with a narrative of volleyball play that was not supported by any witness in this trial. Although I found the manner in which she alleged being touched awkward, it is possible, but given the other frailties in her evidence including her evolving narrative as to how she was touched, I simply cannot accept her account beyond a reasonable doubt.
Class Behaviour
[60] S.C. pointed out in her evidence that the class was behaving. In the view of this Court that evidence is not consistent with the account of other witnesses’ evidence, that I do accept, in respect of the behaviour of the class. There is no question that the class was rambunctious, consistent with their reputation and how witnesses in the class reported their behaviour. It is the view of this Court that S.C. chose to offer this evidence to paint A.R. in a more negative light and herself in a more positive one. It is noteworthy that the evidence suggests that he had asked her whether she wanted to go to the office when she told him not to touch A.B. - when A.B. was not where she was supposed to be for the third time that day. This account was simply absent from S.C.’s narrative. Instead, she offered to the Court that A.R. put his hands on her shoulders and said nothing. S.C. offered also that A.B. was never on the ground at the back and that she was allowed at the back. This account was not supported by A.B. or E.B. who were right there, and both indicate that she was asked whether she wanted to go to the office and that A.B. was not allowed to be there. I also do not accept her account that A.R. ran his fingers through H.’s hair and told him that he does not bite in front of the whole class. Not one other witness made this grand observation.
Thighs
[61] I found her evidence to be evasive when she was challenged about her escalating narrative about thigh rubbing. It is clear to this Court that she did not tell the police that her thigh was rubbed. Further, her video statement clearly depicts her grabbing onto the lower portion of her thigh firmly when asked how she was touched by police. I find it incredible that she would now offer to this Court that the reason that she did not disclose the rubbing on not one, but two occasions, was that she was not asked. The question from the officer could not have been more clear and her answer and corresponding gesture in her video could not have been more complete. I reject her suggestion to this Court that there were 2 occasions of rubbing that she remembered only in August of 2022, after receiving her subpoena. Even the journal recording of the rubbing of the thigh seems to suggest it was an observation she saw happen to others, consistent with the rumours E.B. testified to. I find that she embellished her evidence on this point. Neither of the thigh rubbing events were observed by any other witness including E.B. who was supposedly sitting right beside her. These inconsistences were material and bear negatively on her reliability and credibility.
[62] I reject S.C.’s evidence that it was A.B. that found the Instagram image of A.R.’s soccer team. It is clear that S.C., again, made effort to distance herself from her actions before this Court which clearly influenced her friends around her to join her efforts against A.R. I also find that it was S.C. that came up with the plan to go to Ms. S. as suggested by A.A. S.C. of course denied any of that happening. I find that S.C. had several discussions with others about A.R. in an effort to recruit them in complaint.
Inconsistencies
[63] S.C. was inconsistent in her account of whom she told about the breast touching after it occurred. At trial, she said it was A.B. because they were closer friends. In her statement to police, she suggests that it was E.B. because they were closer friends. This inconsistency would be less material if it were not for the fact that it was evidence about the first person she told after she had her breast cupped by her teacher.
Influence
[64] I found the evidence of A.B. to be compelling on the narrative of S.C.’s experience with this type of behaviour and her suggestion that she knew what would happen next. As I watched the evidence of A.B. on this point, I could see that this had such a profound impact on her that she had to tell her mother which prompted a call to the school. S.C. of course denies this exchange, but I find it consistent with her efforts to whip her friends into a panic over A.R.
Conclusion
[65] It is not for this Court to determine whether the contact A.R. made with the students was consistent with school board regulations. It is the purpose of this Court to determine whether his conduct rose to the level of criminal sexual acts beyond a reasonable doubt.
[66] The circumstances before this Court are regrettable and unfortunate. I can offer no stronger repudiation of the allegations that were levied against you, A.R., other than to find you innocent of all charges before the Court.
[67] The charges are dismissed.
Released: July 7, 2023 (Original Signed by Justice C. Uwagboe) Signed: Justice C. Uwagboe