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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court File and Parties

DATE: November 4, 2024 COURT FILE No: 21-0777 O N T A R I O C O U R T OF J U S T I C E

B E T W E E N :

HIS MAJESTY THE KING

-AND-

S.J.

Before: Justice M. G. March

Trial heard on: January 29, June 11 and 13, 2024 Reasons for Judgment released on: November 4, 2024

Counsel: Richard Morris, for the Provincial Crown Dean Embry, for S.J.

March, M.G., J. :

Introduction

[1] The accused, S.J., stands charged that between January 1 and June 30, 2015, he committed a sexual assault upon H.S. contrary to section 271 of the Criminal Code of Canada (“the Code”).

[2] S.J. was a high school teacher in Renfrew, ON. H.S. was one of his former students.

[3] In and about 2021, H.S. and other previous students of S.J. began speaking to police. They complained to the authorities about sexually inappropriate comments they attributed to S.J. and conduct he engaged in with them. Essentially, this is what this case is about.

[4] The matter proceeded over the course of three days. The Crown called two witnesses, A.C., an old, high school acquaintance of the alleged victim, H.S., and of course, H.S., herself.

[5] At the conclusion of the Crown’s case on June 11, 2024, the defence elected to call no evidence.

[6] Accordingly, the outcome of S.J.’s trial will turn almost exclusively on an assessment of the credibility and reliability of H.S.’s testimony.

The Relevant Evidence

A.C.

[7] When A.C. began giving her evidence on January 29, 2024, she was 26 years of age.

[8] She recalled that she graduated from high school in 2016 after completing a fifth year. She explained that she was doing extra classes as a “booster” for her grades. The accused, S.J., taught her five subjects over the course of her high school career.

[9] In Grade 10, A.C. began to have mental health issues. She was experiencing depression and anxiety. As she put it, “I didn’t feel I had anyone to talk to.” She described her mindset as though she was closing in on herself.

[10] She confided in S.J. one day outside of the classroom setting. He told her, “Whatever it takes to put that beautiful smile back on your face, you do it.” He provided her with his personal cell phone number and email address.

[11] While she was at university in 2017, A.C. contacted S.J. on National Teachers’ Day. She told him she was dating both men and women. He responded with words to the effect of:

“It’s a good thing I’m in my office because my pants are getting tight”.

[12] After some reflection, she emailed him to express her disappointment in him. She went on to block his cell number.

[13] Roughly six years after finishing high school, in March 2021, after coming across an article about an assault S.J. had allegedly committed, she began to think more about her past experiences with him. She came to realize that his actions and words during their teacher-student relationship were inappropriate.

[14] She decided she would get in touch with the principal of her former high school, D.L. To her knowledge, the principal went on to contact the police and Family and Children’s Services of Renfrew County.

[15] She explained that she had spoken to another former student, who always disliked S.J. Those discussions made her appreciate the impropriety of S.J.’s conduct.

[16] Under cross-examination, A.C. denied that her mental health condition affected her thinking in any way. She described herself as very self-aware in her “head” and her “body”.

[17] She added that there were occasions when S.J. offered to go for drinks with her when she was only 16. She estimated that this occurred approximately three times. She never accepted.

[18] She recalled as well that he messaged her and apologized to her. He did so again later in person.

[19] She allowed for the possibility that she, in one instance, asked him to go for coffee.

[20] She heard rumours that four to five other girls were also approached by S.J. under circumstances similar to hers.

H.S.

[21] When H.S. began giving her evidence on January 29, 2024, she was 27 years old. She was pursuing her Ph.D. in Neuroscience at Carleton University in Ottawa.

[22] She indicated that she graduated from high school in Renfrew in 2015 after doing a “victory lap”. S.J. was one of her teachers. She recalled that he taught her History in Grade 8, as well as Social Media in either Grade 10 or 12. She also assisted him during her fifth year of high school in compiling a yearbook.

[23] She explained that she began to feel depressed when she was in Grade 8. She talked to S.J. about it. She did so because she felt her parents and her friends did not understand her. She never sought out professional help, but later she did through a psychiatrist using Telehealth.

[24] She added that she felt her parents were supportive, but they did not fully appreciate her situation. She was more comfortable around S.J. She did not have to pretend how she felt around him.

[25] She did not speak to any other teachers until Grade 12 when her cousin died, and she went to see her principal, D.L. Prior to that point, she would confide in S.J. if she was struggling. She would sit in his classroom at lunch. Sometimes she would be there alone with him. She elaborated that their conversations progressed over the years.

[26] S.J. told her that if she was having a bad day, she could come have lunch with him. They began texting one another when she was in Grade 11. It was beginning to become more “personal”, but she always called him Mr. J. in class.

[27] Sometimes he would give her late slips if she were delayed getting to other classes, because she was spending too much time with him discussing her situation. He told her he was concerned about the optics, but she explained that she needed his company. She was not aware of anyone making an issue of it.

[28] She recalled that the relationship slowly became closer, but nothing significant happened. It developed naturally. He treated her like a friend, as they got to know each other more and more. However, things changed at the end of Grade 11 and going into her last year of high school.

[29] She remembered on one occasion being called into the principal’s office and being asked about the nature of their relationship. Both the principal and vice principal were present. She was “not fully honest” with them. She told them their text exchanges were just about school related things.

[30] In truth, she was discussing personal matters with S.J. regarding her mental health struggles and how her parents did not understand her. There was still nothing physical occurring in their relationship at that point. In her view, he was trying to help her.

[31] In her last year of high school, their relationship changed and took on a sexual dimension. She described a “slow progression” toward it. It was hard to pin down how it came to be.

[32] She turned 18 in September 2014. The sex did not start until the winter of her fifth year, after Christmas, in early 2015. It ended when she completed her school year in June 2015.

[33] She remembered how S.J. would compliment her about her body shape and appearance. He would tell her she had a “nice smile”. He alluded to how he would be with her, if they were closer in age. This made her feel “confused”.

[34] She “guessed” that she was “flattered” by S.J.’s comments at the time, but, in retrospect, she knew it was inappropriate for him to be saying those things to her as his student.

[35] He also shared stories with her about his own marriage, such as how his wife had cheated on him and how they now slept in separate rooms. His wife worked as a janitor at the school for most of her high school years. H.S. would occasionally say “hi” to her.

[36] H.S. recalled that the intimate aspect of her relationship with S.J. ended around June 2015 after her friend, S.B., and she went to his house for a barbecue.

[37] H.S. continued to see S.J. around town, but she no longer had “alone time” with him. She worked at a grocery store where she would notice him from time to time. They would still talk and text.

[38] She specifically recalled how he was quite concerned about her not telling anyone about the nature of their relationship.

[39] She was certain that he knew when her birthday was. He had previously wished her, “Happy Birthday”. He made it clear to her that he was aware of her age, although she could not recollect him saying anything about her 18th birthday.

[40] H.S. could not pinpoint how the intimate component of her relationship with S.J. started. It included oral sex and intercourse, but she was unsure as to when, specifically, the first occasion was.

[41] She described their bond as “confusing” in many ways. It started out with him as a mentor figure. Later, he would make comments about her appearance which made her feel as though she was “significant” or “special”.

[42] She thought that the first time they had sex included both oral and intercourse in the tuck shop at the school. She did not initiate it. He did. It was not necessarily something she wanted, with him being her teacher and she his student, but he was “interested” in her.

[43] Although H.S. was no longer in any class taught by S.J. during the winter term of 2015, they still worked on the yearbook together. He ran the project. She took orders from him. He would assign who would work on which section.

[44] She repeated that she did not recollect the first time anything of a sexual nature happened between them. However, she knew it was in the tuck shop in the school basement. His classroom was on the second floor at the opposite end.

[45] The sexual activity occurred more often in the tuck shop as opposed to the classroom. “Normally”, it was in the afternoon, but on a couple of occasions, they engaged in sex when she had a “spare”. There would be other people at the school in nearby classrooms.

[46] H.S. explained that the tuck shop did not have regular hours. It was a place where students could buy pizza, but it was also used for storing items. One could walk through the first door past the counter where the pizzas were sold to a second opening. There were shelves in the middle of that room, and old sports equipment, jerseys, decorations etc.

[47] S.J. and she would engage in sex in that back room in the corner. It was mostly out of the line of sight of others with no windows. He instructed her that if someone should come in while they were there, she was to “just pretend that she was looking at stuff”.

[48] She reckoned it happened maybe eight times in the tuck shop, but perhaps less. In the classroom there was only oral sex. She estimated it happened on roughly three occasions because somebody could have more easily walked in on them.

[49] They also had sex once in his house. It was when her friend, S.B., and she went there for a barbecue. His wife was not home. His son, E.J., was though, and he had two friends visiting with him downstairs.

[50] The intercourse happened in the kitchen/dining room area. S.B. was asleep or in one of the bedrooms. She had had too much to drink. S.J. had given her alcohol.

[51] H.S. was drinking as well. She did not believe she was “extremely intoxicated”, but she did not remember how much alcohol she had to drink.

[52] They engaged in the sexual activity on one of the chairs at the dining room table, or while they were just standing in the kitchen. She was “pretty sure” it happened in both places. She knew he performed oral sex on her, but she could not recall if she reciprocated.

[53] He was first to propose having sex with her, but she does not remember how it started. She was worried with people around, especially S.B. She believed it was “easy to get caught”.

[54] Indeed, on one occasion, S.B. walked out of the bedroom where she had been and S.J. took her back in. No one came upstairs.

[55] She believed that the sexual activity S.J. and she engaged in during the barbecue at his home was the last time they were ever intimate together. She saw him around town while she worked at the grocery store that summer of 2015. They may have gone for coffee together after she started university in the fall, but then their relationship ended. They stopped talking.

[56] She agreed with Crown counsel’s suggestion that she was “foggy”. She could not remember at all how they initiated the sexual activity during the barbecue on the last occasion. She could not recall its outset, just that it was happening. She felt “confusion”. She did not want it to happen.

[57] She explained that S.J. was someone in whom she confided a lot, “trusting” him. She guessed that she did not go out of her way to have sex with him. She was just going along with it. She did not resist. She did not outright say “stop” or “no”, but she emphasized that he was “in a position of authority”. She stated that she felt like she could not say anything.

[58] She never recalled being asked by him to engage in sex, nor did she ask him to have sex with her.

[59] He nevertheless warned her that if she told anyone, it would ruin his whole life.

[60] When referred by Crown counsel to the statement she gave to police in 2021, her memory was refreshed about how there was a discussion regarding her age in the conference room near the entrance to the school. Their conversation dealt in part with H.S. turning 18, and even though she continued to be a student, the sexual activity in which they were engaging would be less consequential as a result.

[61] Under cross-examination, H.S. confirmed that she gave her statement to police on May 17, 2021, around the same time as she spoke to her friend, S.B. H.S. reached out to S.B. because the school board had contacted H.S. and another student regarding S.J.

[62] H.S. agreed that she knew of A.C., but they were not friends. A.C. contacted her first, perhaps in March 2017, to ask if anything happened to her at the hands of S.J., but she denied that S.J. and she were sexually involved in any way. She told A.C., “No. Nothing happened.”

[63] H.S. was contacted again over Facebook by A.C. roughly a week or two before H.S. gave her statement to the police. H.S. knew from the second message from her that A.C. was intending to go forward to the authorities. H.S. did not remember if she continued to deny to A.C. the sexual activity she had with S.J. during that second contact the two women had. If H.S. did tell A.C. about what had happened, H.S. did not go into it to any extent.

[64] A.C. did ask about S.B. A.C. knew that H.S. and S.B. were good friends in high school. S.B. also had a close relationship with S.J.

[65] H.S. believed that S.B. met with the school board first. Once the school board contacted H.S., she ended up telling S.B. what happened, then H.S. told her parents about it as well the day afterwards. H.S. made clear to her parents it was something she did not want to have happen.

[66] H.S. recalled giving her statement to the police. It was video and audio recorded, but she did not watch it. She agreed that it started at 3:15 PM. and ended at 4:30 PM. Prior to testifying, she was provided the transcript of the statement to review and to refresh her memory.

[67] She could not recall leaving out any details she wished to provide to the police. She thought she had offered everything that was relevant. However, between the date she gave the statement on May 17, 2021, and testifying in Court on January 29, 2024, she remembered another occasion when she had sex with S.J.

[68] She described her relationship with S.J. as a close one. He taught her from Grade 8 to 11, but she reconfirmed that nothing sexual occurred over that time frame.

[69] She understood as early as Grade 8 that a sexual relationship between a teacher and student is inappropriate. By Grade 11, the relationship she had with S.J. had taken on a new complexion. There were texts and conversations of a more friendly and personal variety from day-to-day, but again, she confirmed there was nothing sexual.

[70] In Grade 12, he made a sexualized comment to her, but she could not remember what he actually said. She was in the classroom with him. She was wearing yoga pants. He said something about how her “butt” looked, but she was unable to provide any further detail than that.

[71] She confirmed that when she spoke to the police, she told them S.J. said she was “attractive”, but she made no mention of how her “butt” looked in yoga pants. In fact, she did not tell police anything he said about her body.

[72] The only words she could specifically remember were “yoga pants” and “butt”, and nothing else.

[73] As she put it, “It literally popped into my head. I can picture it. I was getting camera equipment out of the cabinet”.

[74] He made other comments that suggested to her he knew her age. The conversation included discussion about whether she was a minor or not, and that she was a student. This exchange occurred in the conference room at school near the administrative offices and the main lobby during the fall semester of her fifth year of high school because she was 18 by that point.

[75] She guessed that she was piecing this information together because nothing of a sexual nature happened before that winter. The sex did not occur until after January 2015. That was a “significant event”. She guessed it may have been as late as March 2015 that it turned sexual.

[76] It was over by the end of June 2015 with the last incident occurring during the barbecue at his home. The barbecue was planned after the students had graduated. Alcohol was offered to her friend, S.B., and her. H.S. allowed for the possibility that the barbecue occurred even later than June 2015.

[77] H.S. recalled that in the fall semester of her fifth year of high school, she was in the Yearbook class, but later in the winter semester, she was “like a volunteer”.

[78] She did not recall when he made the comment about her butt in the yoga pants. Nevertheless, it was the first sexual comment he made to her. She could not recollect the next thing of a sexual nature that happened after the comment. Nor could she recall any other specific comments, just general ones about how she looked.

[79] She was sure the first thing of a physical nature that happened was after January 2015, but she did not know when or what it involved. She did not agree that she had chunks or pieces of memory missing. They engaged in oral sex and intercourse in the tuck shop, but she “only really remembered the intercourse part of it”. As she put it, “I can picture that.” She remained “pretty sure” oral happened as well. She thought there was oral sex because “a lot of times, it started that way.”

[80] She denied that staff or students would frequently go into the conference room or the tuck shop at school.

[81] When H.S.’s cross-examination resumed on June 11, 2024, she indicated that she was not provided with a transcript of her evidence from January 29, 2024. She did, nevertheless, confirm that she gave a second statement to police on January 30, 2024. She had an opportunity to review the transcript of that statement prior to retaking the witness stand.

[82] Defence counsel recapped with H.S. that she told police on May 17, 2021, that she had sex with S.J. approximately ten times at the school in either the classroom or the tuck shop. Some of those occasions involved both oral and sexual intercourse. She also recounted for police that she had sex with him one time outside of school at his home during the barbecue, but she could not say when the barbecue occurred.

[83] She agreed that she could not provide details of the circumstances of these encounters; however, it was always S.J. who initiated it. They happened mostly after school and more often in the tuck shop.

[84] The one exception was the barbecue.

[85] She also testified about comments he made to her about her body of a sexual nature, but she could not really remember the specifics of those as well. When she gave her statement to police on May 17, 2021, she did not remember the occasion when he told her that her “butt” looked good in “yoga pants”. That recollection came to her as she was testifying.

[86] She added that she did not remember being asked specifically by police about that comment. Nevertheless, she agreed that she could not recall any specific words in 2021 used by S.J. in commenting on her body, nor when she was questioned by Crown counsel on January 29, 2024.

[87] She conceded that her memory was likely better about things that happened in 2015 when she spoke to police in May 2021, as opposed to testifying in January 2024. However, she maintained that while she testified, certain memories came to her.

[88] She agreed as well that she was asked whether there were any details she neglected to tell police about relevant matters in giving her statement in May 2021. She denied that there were any such details. She was being truthful in saying there were not. Yet she confirmed that there were missing details, which she spontaneously remembered.

[89] In addition, there were two events she recalled during the break in the trial between January and June 2024. The first was travelling to Ottawa with S.J. and stopping at a hotel or motel on the way back to have sex. The second was the nude pictures exchanged between S.J. and her of his penis and her genitalia. She acknowledged that she did not keep those photos, nor did she remember to provide those details in speaking to police on May 17, 2021.

[90] She explained that she remembered the hotel incident a few months after she gave her statement to police. She agreed this was important and significant.

[91] She assumed that she was thinking about her prior relationship with S.J. which caused her to retrieve that memory. She also reviewed Gmail chats between them which triggered her recollection of that incident; however, she conceded that the hotel was nowhere mentioned in the Gmail chats, nor anything else of a sexual nature.

[92] She then forgot about their stop at the hotel coming back from Ottawa. She agreed that she did not remember it, even when reviewing her statement to police before testifying on January 29, 2024. Again, this was an occasion where something came to her spontaneously while she was giving her evidence.

[93] She confirmed the sequence put to her by defence counsel that:

a) after giving her statement to police on May 17, 2021, she remembered going to the hotel with S.J.,

b) she then forgot about it, and

c) during or after Court on January 29, 2024, she remembered it again.

[94] She understood that it was an option to call the police to let them know right away what she had remembered, but she did not.

[95] She recounted that S.J. and she went to Ottawa at the end of May or the beginning of June nearing the end of the school year in 2015 to get a ukulele. They stopped on the way back home and had sex at the Stardust Motel. She could not remember the details of how that happened, or what exactly the sexual activity entailed. She simply remembered at one point being on the bed and having sex with him.

[96] She was unable to retrieve a memory of whether there was any discussion before or after, much the same as she could not do so for any of the other sexual encounters she had with S.J. Her recollection was devoid of any lead up to the incidents such as kissing or holding hands.

[97] She reconfirmed that the first incident she remembered of having sex with S.J. was in the tuck shop at school. He was seated on a stool, and she positioned herself above him.

[98] She conceded that she was unable to say what month in which it happened, only that it was after Christmas in the second semester of her final year of high school. Equally, she agreed that she initially testified that she did not recall the first incident, but it later came to her.

[99] She acknowledged that a huge line was crossed if a teacher so much as kissed her while she was a high school student. However, she agreed nothing stuck out in her mind. All she could remember about the first incident was the act of intercourse itself. In essence, she could not recall any of the multiple steps leading up to their attendance together in the tuck shop - how they got there, and how they left. She just assumed he initiated it.

[100] She agreed that it was extremely risky during this first incident to engage in sex during school hours, or even after classes had ended, but they did. She was not worried about people walking in on them. The only time she was worried that they may be caught in the act was when she was at S.J.’s home for the barbecue.

[101] She could remember a second incident of having sexual intercourse in the tuck shop, but not well. It involved the stool again. They assumed the same position; however, she could not recall how they got there, nor how they left. She could picture the room and being in that “sex position”, but she could not remember anything else about the sexual activity, nor for any of the other approximate six times it happened in the tuck shop.

[102] She had been trying to forget about them for the past ten years. They were traumatic experiences for her.

[103] She did not think the first and second incidents in the tuck shop were the same, but she agreed her memory of the second time was virtually the same as the first.

[104] She recalled the stool not being “high”, roughly chair height. It was metal, not wooden.

[105] She estimated that there were eight sexual encounters in the tuck shop and two in the classroom. She assumed after each of these incidents, there were discussions held between S.J. and her. She did not remember any of them, nor the details of what specifically occurred, including at the motel.

[106] She agreed that she told the police on May 17, 2021, that she had sex with S.J. on ten different occasions, eight in the tuck shop and two in the classroom. They involved oral and sexual intercourse. She was “pretty sure” all such incidents happened, but she could not remember much of the details.

[107] She could remember that S.J. once kissed her behind the green screen in the classroom, but that was all. She could not recall an instance of oral or sexual intercourse occurring in the classroom. She thought it happened, but she could not recollect any other details.

[108] Similarly, she did not remember the nude pictures S.J. and she exchanged until after his trial had started. She deleted them because she did not want to see them. She could not remember what time they would have been shared between S.J. and her.

[109] She denied that she had any sort of sexual relationship with S.J. after she began studying at Carleton University. She allowed for the possibility that they did have coffee on one occasion.

[110] She stayed in residence during her first year of university. She then moved off campus and lived on Meadowlands Drive in Ottawa. She did not remember having a relationship with him at that point in time. She did not recall him coming to her apartment. She did not think that S.J. and she were even talking at that point.

[111] She agreed that he may have known about her shopping cart she kept at the apartment for her empties because she was tutoring his son, E.J. Again, she did not think he came to visit, but it was possible. She denied that she had a sexual relationship with him while she was in her second year at Carleton.

[112] She explained that she was in a relationship with someone else at the time. She absolutely denied that she was shifting her recollection of sexual experiences she had with S.J. as a university student to when she was in high school.

[113] In reviewing the memories where she could provide some details of the sexual encounters she had with S.J., H.S. confirmed that she remembered:

a) he kissed her once in the classroom,

b) he had sexual intercourse with her twice in the tuck shop at the high school, and

c) once in his home during the barbecue.

[114] She could remember no details of any of the other incidents, although they happened on multiple occasions.

[115] She agreed that she could not recall any details of the oral sex they engaged in.

[116] Under re-examination, H.S. indicated that she thought she visited her high school again after the barbecue, but she did not have any real recollection of it. She liked soccer and knew a lot of the other players.

[117] She went on to explain that she tutored S.J.’s son, E.J., at the start of university in her first year, as well as perhaps partway through her second year. She helped him for roughly a year and a half with Physics every two weeks, or once a month, but not “super often”.

[118] E.J. started at Carleton University the year after she did. She remembered he was in residence while she was tutoring him.

[119] She confirmed that she stayed in residence for her first year, but lived for her second and third years of doing her undergraduate degree on Meadowlands Drive in Ottawa. She also had three roommates with her there at the time.

[120] She explained that perhaps two days after she gave her statement to the police, she received a text from S.J. He asked her if something happened, and if everything was good between them. She did not respond. There was no further communication with them thereafter.

[121] In allowing defence counsel to cross-examine on the one exhibit made at trial, the text exchange H.S. and S.J. had after she gave her statement to police, H.S. denied that it had anything to do with the existence of, or who she told, about a sexual relationship she shared with him while she was a Carleton student. According to H.S., there was no such relationship.

Crown’s Position

[122] Crown counsel argued that S.J. fostered a relationship with H.S. and groomed her while he awaited the arrival of her 18th birthday in September 2014. He did so with a full awareness of her mental health struggles. He would invite her to spend time with him over lunch hours and during “spares”. He gave her his personal email and cell phone number to encourage contact with her.

[123] In February 2015, S.J. turned 56. However, the age gap between H.S. and him did not deter him one iota. From January to June 2015, the relationship changed from flirtatious to sexual. On multiple occasions in the tuck room, twice in the classroom, once in his home during a barbecue, and once at a motel, S.J. seduced H.S. and engaged in sexual activity with her.

[124] In 2021, A.C., a person who H.S. knew from high school, reached out to her. A.C. too had been approached by S.J. while he taught her in high school. A.C. had the courage to go forward to police as a young woman in her early twenties. A.C. told H.S. of her intention. That was the genesis of H.S.’s complaint.

[125] When S.J. learned of what A.C. had done, out of concern his past would come back to haunt him, he texted H.S. to ask if they were “still okay”. The Court can safely infer that S.J. did so in the hope of securing her silence. It did not work. Around the same time as A.C. spoke to police, H.S. went forward to the authorities as well about S.J.’s treatment of her.

[126] The Crown relied on s. 273.1(2)(c) of the Code, the relevant portions of which read:

“ . . . no consent is obtained if the accused induces the complainant to engage in the [sexual] activity by abusing a position of trust, power or authority”.

[127] In essence, Crown counsel submitted that if H.S., by her words, acquiescence or conduct, appeared to have consented to the sexual activity in question, her consent was vitiated as a result of S.J.’s position of trust and/or authority over her.

[128] The Crown referred me to a decision authored by Fish J.A., as he then was, in R. v. Saint-Laurent (1993), 90 C.C.C. (3d) 291 (Que. C.A.) at 311:

As a matter both of language and of law, consent implies a reasonably informed choice, freely exercised. No such choice has been exercised where a person engages in sexual activity as a result of fraud, force, fear, or violence. Nor is the consent requirement satisfied if, because of his or her mental state, one of the parties is incapable of understanding the sexual nature of the act, or of realizing that he or she may choose to decline participation.

“Consent” is, thus, stripped of its defining characteristics when it is applied to the submission, non-resistance, non-objection, or even the apparent agreement, of a deceived, unconscious or compelled will. (my emphasis)

[129] The Crown urged upon the Court that H.S. was a credible witness. Her demeanour was serious throughout the time she gave her testimony. She was not histrionic. She was focused and tried diligently to answer all questions put to her accurately and honestly.

[130] Relying on R. v. E.H., 2020 ONCA 405, a case where young complainants said 400 times during their evidence that they did not know or could not remember, ultimately their lack of knowledge and memory was not fatal to a finding being made by the trier of fact that they were sexually assaulted by the accused.

[131] Crown counsel emphasized that the events in question happened almost ten years prior to H.S. giving her evidence. She tried to forget. She did not eagerly go forward to police. She was identified for police by another, A.C., as a person of interest. H.S.’s delay in reporting what S.J. did to her should not detract from her credibility.

[132] Regarding the frequency at which the sexual activity occurred, H.S. was consistent. It was eight to ten times. She was straightforward in how she answered the questions put to her by Crown and defence counsel. She was giving her best estimates. Her memory of the details was sufficient to allow this Court to make a finding of guilt beyond a reasonable doubt. The sexual intercourse happened on numerous occasions, as did oral sex.

[133] These were traumatic events for H.S. She did her best to summon her recollections of them from almost a decade prior. Crown counsel referred me to paragraph 38 of R. v. G.M.C., 2022 ONCA 2 for the following general propositions grounded in common human experience:

• observations made by witnesses in the course of traumatic events can be difficult to recall and to describe accurately at a later date;

• a witness cannot be expected to have a faithful memory of minor incidents that occurred during a traumatic event and the inability to recall a minor or insignificant event does not detract from the witness’s overall reliability or credibility;

• it is human nature to try to make sense out of bits and pieces of memories about an event, and this may impact the accuracy of a witness’s testimony concerning events.

[134] The Crown urged the Court to believe H.S.’s testimony. It was “not inconsistent with a person who was taken advantage of”.

[135] Furthermore, the Court should not have any great trepidation with H.S.’s spontaneous recollection of the motel incident, even if she remembered it, then forgot it and remembered it again. She was unsure, if she could disclose it, in the midst of giving her evidence on the first day of S.J.’s trial on January 29, 2024.

[136] Crown counsel contended that H.S.’s lack of memory was on peripheral details. She was a quiet, shy individual - someone who was uncomfortable in the witness box, but trying her best to tell the truth.

[137] The Crown emphasized there was no evidence of a sexual relationship which existed between H.S. and S.J. post June 2015. H.S. denied that anything of a sexual nature occurred between them while she was a student at Carleton University and living on Meadowlands Drive in Ottawa.

[138] In sum, the testimony of H.S. was credible and reliable to the point of allowing for a finding of guilt to be made against S.J. beyond a reasonable doubt.

Defence Position

[139] The defence did not take issue with the fact that there was a substantial gap in age between H.S. and S.J. Their relationship was a close one for a teacher and a student to have. It was out of the ordinary, but not extraordinary.

[140] S.J. made himself available to H.S. and other students who may have been struggling through their difficult teenage years.

[141] However, A.C.’s testimony can only be used as part of the narrative for explaining why and when H.S. went forward with her complaint to police. A.C.’s evidence cannot be relied upon to establish a pattern of behaviour on the part of S.J., or to demonstrate bad character.

[142] It must be remembered that H.S. admitted there was nothing sexual in the relationship she shared with S.J. until her final semester of high school. There can be no dispute about that fact.

[143] Further, a failure to demonstrate histrionics when testifying does not make a witness more credible.

[144] Defence counsel submitted that it would be unsafe to find S.J. guilty beyond a reasonable doubt due to H.S.’s lack of credibility, and the overall unreliability of her recollections. Indeed, her memory was quite plainly “damaged” and “frail”.

[145] By her own admission, H.S. lied to A.C. when she told her nothing happened between S.J. and her. A.C. herself was not an unbiased witness. She had read something about S.J.’s case, and may have been either consciously or unconsciously influenced by it when reflecting upon the relationship she shared with S.J. A.C.’s memories of it were thereby tainted.

[146] Regarding the text exchange between S.J. and H.S. after A.C. approached the police, the defence invited the Court to infer that a relationship of some sort had occurred between S.J. and H.S., but about which H.S. was unprepared to come clean.

[147] H.S. was flippant about defence counsel’s confrontation of her that S.J. visited her at her apartment while she was a student at Carleton University. How else would S.J. have known about the shopping cart she used for her empties? Yet H.S. was evasive about such a mundane fact. She reacted as such because the sexual relationship she had with S.J. while she was a university student did not jive with her testimony that nothing sexual between S.J. and her occurred after the June 2015 barbecue. She should have been able to simply say, “No, S.J. did not visit me at the apartment where I lived on Meadowlands Drive in Ottawa”. Instead, she was prepared only to leave open the possibility that he visited perhaps with his son, E.J., while his son was being tutored by her.

[148] More importantly, there were serious issues with H.S.’s memory. She testified about roughly twelve incidents of sexual activity occurring between S.J. and her. Eight took place in the tuck shop; two in the classroom, one at his home during the barbecue and one at a motel.

[149] The incidents involved sexual intercourse and oral sex. She agreed that the intercourse in the tuck shop took place where other classrooms were nearby, and when school could still have been underway. She agreed that this would have been incredibly “risky”.

[150] The development of H.S.’s and S.J.’s relationship from supportive to sexual was “bizarre”. She could offer no bridging memory on how it came to pass. She provided no details whatsoever regarding the mechanics for the sexual acts themselves. For example, with respect to the tuck shop, she had a “freeze-frame” recollection of intercourse occurring, but nothing preceding or following it. Her memory of the second occasion in the tuck shop was almost exactly the same.

[151] In the classroom, all she could say was that there was a kiss behind the screen. Nothing else stood out for her.

[152] With respect to the motel, she had a recollection of being on a bed having sexual intercourse, but again, nothing preceding or following.

[153] In essence, H.S. was incapable of providing any narrative to assist the Court to understand and make findings of fact about what she says S.J. did to her. The Court only received her assurances that something untoward happened. Her insistence that oral sex occurred was a prime example. Who did what to whom is completely absent.

[154] On a global assessment of her testimony, it is so sparse on details and filled with assertions that it can never approach the standard of proof beyond a reasonable doubt. It had no beginning and no end.

[155] Regarding trauma, defence counsel emphasized there was no evidence that H.S. suffered any. While she did say that she tried to forget, she never suggested she was traumatized.

[156] At its core, evidence, which meets the test for admissibility at a criminal trial, most commonly constitutes events which are observed or experienced by someone, committed to memory by him or her and then recounted under oath or solemn affirmation. The testimony H.S. gave cannot come close to being regarded along this vein. It cannot be scrutinized by the Court for its truth, or lack thereof. It certainly cannot be cross-examined upon.

[157] Crown counsel cannot characterize what H.S. does not remember as peripheral details. What she does not remember matters. It is the substance of the allegations S.J. is facing, yet in making out an offence of sexual assault, it is largely absent. This dearth of evidence cannot suffice to persuade the Court of S.J.’s guilt beyond a reasonable doubt.

[158] Defence counsel contended that the issues with H.S.’s memory are fatal to the Crown’s case. For instance, regarding the first time sexual activity was alleged to have occurred between H.S. and S.J., she testified on January 29, 2024, that she could not remember where it occurred and what it entailed. However, on June 11, 2024, when she resumed giving her evidence, she recalled, with no explanation why, that she now knew it was in the tuck shop and it involved sexual intercourse.

[159] Furthermore, she initially could not remember if there were any sexual comments made to her by S.J., just that she was “attractive”, but then spontaneously under cross-examination, she remembered it involved her “butt” in “yoga pants”. Defence counsel argued that such a memory cannot be a reliable one.

[160] Defence counsel also pointed out internal inconsistencies in the testimony of H.S. as well, the most significant example of which, he argued, was in respect of the motel visit. When asked by Crown counsel about whether anything untoward happened between S.J. and her outside of school, H.S. said there had not been. She reconfirmed this under cross-examination. Only at the conclusion of her first day of giving evidence did she remember going to the motel with S.J. in Ottawa.

[161] Of significance as well, H.S. knew she could contact police to provide further information should she remember anything else of relevance. She had no explanation for why she did not tell police about the motel when she remembered it, then forgot it, and later remembered it again. Defence counsel emphasized - her cycle of remembering, forgetting and remembering again, made no sense.

[162] Additionally, H.S. could not explain why she forgot about the nude photos S.J. and she exchanged, nor why she deleted them.

[163] Defence counsel queried how anyone can rely on the “ever evolving, new memories”, which seemed to come to H.S. from time to time without reason.

[164] As a result, it would be grossly unsafe for this Court to find S.J. guilty based on H.S.’s very unusual and “problematic” powers of recall.

[165] By way of reply submissions, Crown counsel argued that the Court ought to be loath to buy into any “folk wisdom” on how human memory works. H.S.’s recollections are unique and personal to her. She did her best to relate them to the Court.

The Issue

[166] In my view, this trial raises a single issue for resolution:

Is H.S.’s testimony sufficiently credible and reliable to displace the presumption of innocence and prove S.J.’s guilt beyond a reasonable doubt?

The Law

Assessing Credibility and Reliability:

[167] In R. v. A.M., 2014 ONCA 769, the Court of Appeal for Ontario offered general guidance to trial judges tasked with assessing the credibility and reliability of witnesses’ evidence as follows:

[8] Several basic principles inform our decision regarding the trial judge's reasons for judgment.

[9] First, every witness, irrespective of age, is an individual whose credibility and evidence should be assessed according to criteria appropriate to his or her mental development, understanding and ability to communicate: R. v. W. (R.), [1992] 2 S.C.R. 122, [1992] S.C.J. No. 56, at p. 134 S.C.R.

[10] Second, no inflexible rules mandate when a witness' evidence should be evaluated according to "adult" or "child" standards. Indeed, in its provisions regarding testimonial capacity, the Canada Evidence Act, R.S.C., 1985, c. C-5 eschews any reference to "adult" or "child", preferring the terms "14 years or older" and "under 14 years of age". An inflexible, category-based system would resurrect stereotypes as rigid and unyielding as those rejected by the recent developments in our approach to children's evidence: W. (R.), at p. 134 S.C.R.

[11] Third, despite this flexibility, there are some guiding principles. Generally, where an adult testifies about events that occurred when she was a child, her credibility should be assessed according to the criteria applicable to adult witnesses. However, the presence of inconsistencies, especially on peripheral matters such as time and location, should be considered in the context of her age at the time the events about which she is testifying occurred: W. (R.), at p. 134 S.C.R. See, also, R. v. Kendall, [1962] S.C.R. 469, [1962] S.C.J. No. 27.

[12] Fourth, one of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath: R. v. G. (M.), [1994] O.J. No. 2086, 93 C.C.C. (3d) 347 (C.A.), at p. 354 C.C.C., leave to appeal to S.C.C. refused [1994] S.C.C.A. No. 390. Inconsistencies may emerge in a witness' testimony at trial, or between their trial testimony and statements previously given. Inconsistencies [page540] may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.

[13] Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G. (M.), at p. 354 C.C.C.

[14] Fifth, a trial judge giving reasons for judgment is neither under the obligation to review and resolve every inconsistency in a witness' evidence, nor respond to every argument advanced by counsel: R. v. M. (R.E.), 2008 SCC 51, [2008] 3 S.C.R. 3, [2008] S.C.J. No. 52, at para. 64. That said, a trial judge should address and explain how she or he has resolved major inconsistencies in the evidence of material witnesses: G. (M.), at p. 356 C.C.C.; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, [2008] S.C.J. No, 24, at para. 31.

[15] Sixth, prior consistent statements of a witness are not admissible for their truth: R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, [2008] S.C.J. No. 10, at para. 7. Mere repetition of a story on a prior occasion does not make the in-court description of the events any more credible or reliable: R. v. Curto, 2008 ONCA 161, [2008] O.J. No. 889, 230 C.C.C. (3d) 145, at paras. 32, 35; R. v. Ay, [1994] B.C.J. No. 2024, 93 C.C.C. (3d) 456 (C.A.), at p. 471 C.C.C.

[168] More recently in R. v. Kruk, 2024 SCC 7, the Supreme Court of Canada commented on credibility and reliability assessments with these wise words:

[81] Assessments of credibility and reliability can be the most important judicial determinations in a criminal trial. They are certainly among the most difficult. This is especially so in sexual assault cases, which often involve acts that allegedly occurred in private and hinge on the contradictory testimony of two witnesses. The trial judge, while remaining grounded in the totality of the evidence, is obliged to evaluate the testimony of each witness and to make determinations that are entirely personal and particular to that individual. Credibility and reliability assessments are also context-specific and multifactorial: they do not operate along fixed lines and are “more of an ‘art than a science’” (S. (R.D.), at para. 128; R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621). With respect to credibility in particular, while coherent reasons are crucial, it is often difficult for trial judges to precisely articulate the reasons why they believed or disbelieved a witness due to “the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events” (Gagnon, at para. 20; see also R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 28; R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 81). The task is further complicated by the trial judge’s ability to accept some, all, or none of a witness’s testimony.

The Right to Silence and the Meaning of Proof beyond a Reasonable Doubt:

[169] On the accused’s right to silence, the Supreme Court of Canada in Kruk also had this to say:

[59] The overarching principle of the presumption of innocence, enshrined in s. 11(d) of the Charter, and the correlative principle of the Crown’s burden of proof, must always govern the fact-finding process. The presumption of innocence — a “hallowed principle lying at the very heart of criminal law” (R. v. Oakes, [1986] 1 S.C.R. 103, at p. 119) — requires the Crown to bear the onus of proving all essential elements of the offence charged, beyond a reasonable doubt, before a conviction may be entered (Osolin). Closely related to the presumption of innocence is the accused’s right to silence as enshrined in s. 11(c) of the Charter, which safeguards human dignity and privacy against processes or reasoning that would compel an accused person to incriminate themselves with their own words (R. v. Noble, [1997] 1 S.C.R. 874, at paras. 69-78).

[60] Various protections relating to the assessment and weighing of evidence flow from the presumption of innocence and the right to silence. Notably, an accused’s silence at trial may not be treated as evidence of guilt, as such reasoning would violate both principles (Noble, at para. 72).

[170] In my own case I decided last year, R. v. McLaren, 2023 ONCJ 92, I adverted, as I must, to the meaning of “reasonable doubt”. I wrote:

181. The standard of proof beyond a reasonable doubt is an age-old principle of criminal law in Canada and virtually every other common law jurisdiction. Triers of fact must be ever conscious of the high burden of proof placed upon the Crown, if ever the accused’s right to be presumed innocent is to be rebutted.

182. Recently, my colleague, Brochu J., in R. v. Hawryluk, (unreported), offered these helpful commentaries on the meaning of reasonable doubt:

[39] Like every person accused of a criminal offence, Mr. Hawryluk begins this trial presumed to be innocent of the offence with which he is charged. That presumption remains intact unless and until the Crown proves beyond a reasonable doubt that he is guilty. It is the Crown that bears the onus of proving the essential elements of the offence beyond a reasonable doubt. That onus never shifts to the accused.

[40] Intermingled with the presumption of innocence is the standard of proof required to displace that presumption. To secure a conviction in a criminal case, the Crown must establish each essential element of the charge against the accused beyond reasonable doubt. This standard of proof is very stringent. It is a standard far beyond the civil threshold of proof on a balance of probabilities.

[41] The expression “proof beyond a reasonable doubt" has no precise definition, but it is well understood. The Supreme Court of Canada outlined a suggested model jury charge in R. v. Lifchus, [1997] 3 S.C.R. 320. This is the definitive guide for criminal trial courts in Canada. It is worth setting out here verbatim:

• The term "beyond a reasonable doubt" has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning.

• A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.

• Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.

• On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.

• In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt.

[42] Three years later, in R. v. Avetysan, 2000 SCC 56, [2000] 2 S.C.R. 745, the Supreme Court of Canada clarified at para. 13 that:

In situating the criminal standard of proof, “it falls much closer to absolute certainty than to proof on a balance of probabilities”: Starr, at para. 242, per Iacobucci J.

Analysis

Findings of Fact, Credibility and Reliability:

[171] I recognize my fundamental role as trier of fact and law is to state what I am or am not convinced of beyond a reasonable doubt. I must do so based upon a full, balanced assessment of the testimony heard from all witnesses called at S.J.’s trial.

[172] Turning my mind to the evidence, I make the following observations:

a) A.C., the Crown’s first witness, reflected on comments made to her while she was S.J.’s student in high school. Some years later as a young, adult woman, she was influenced by another fellow student, who always disliked S.J. A.C. used to defend S.J., but this unnamed male acquaintance of A.C. caused her to question her opinion of S.J. and fundamentally changed her perspective on her former teacher.

b) A.C. then took it upon herself to speak to other former students, like her, to whom S.J. had paid a great deal of attention. H.S. was one such individual.

c) H.S., for her own reasons perhaps, was dishonest with A.C., much the same as she was with her former high school principal and vice-principal, about the true nature of the relationship she shared with S.J. as a high school student.

d) H.S.’s close friend, S.B., who was approached by the school board regarding concerns it had surrounding S.J.’s treatment of former students, also spoke to H.S. Over the span of a week or two, H.S.’s mindset changed as well. She went forward to police and gave her account of her experiences with S.J.

e) H.S.’s recollections were vague, and sparse in detail, but they seriously implicated S.J., her former teacher, as someone who abused his position of trust and engaged in sexual activity with her while she was 18 years old and still a high school student.

f) H.S.’s memories of the sexual acts in which she was involved with S.J. were far from vivid, intricate, coherent or complete. They were snapshots of multiple incidents where H.S. testified that S.J. and she had either oral sex, sexual intercourse or both. These events, H.S. indicated, happened mostly in the tuck shop of the high school, a few times in the classroom, once at a motel and lastly, a solitary instance at S.J.’s home during a barbecue.

g) There were also four significant inconsistencies or omissions arising from H.S.’s testimony. Firstly, she said during her questioning by Crown counsel that she could not remember the first instance in which S.J. and she engaged in sexual activity. Inexplicably later, she was sure it occurred in the tuck shop.

h) Secondly, she was insistent that S.J. always initiated the sexual contact; however, she could not provide details about the commencement of any of the dozen or so encounters they had. She had no recollection whatsoever of at least six times they went to the tuck shop together.

i) Thirdly, during her examination-in-chief, she denied that there was any sexual interaction between S.J. and her outside of the school setting, whereas later in the trial, she remembered stopping at a motel in Ottawa to have sex with S.J.

j) Lastly, she forgot about the nude photos she exchanged with S.J. and had no explanation for why she deleted them.

[173] As is apparent from the observations made above, I have used A.C.’s testimony for narrative purposes only. It served solely to explain the genesis of H.S.’s complaint to police. To utilize A.C.’s evidence otherwise would run the risk of admitting discreditable conduct at trial for an inadmissible purpose in the absence of a similar fact application, which the Crown chose not to bring. (see R. v. Handy, 2002 SCC 56)

[174] I wish to be clear on the issue of my finding on H.S.’s credibility as well. I am unprepared to label her as a liar in any way. Something terribly bad could have happened to her at the hands of S.J. while she was a high school student. Her recollections were largely irretrievable in terms of what occurred. This may be a function of trying to forget these experiences, the trauma they caused her, or both. However, on my overall assessment of her account of their interactions, I cannot be sure.

[175] My uneasiness arises more from what I find to be the unreliability of her evidence. For instance, at the beginning of her cross-examination, she testified that she could not recall leaving out any relevant details when she gave her statement to the police. She then suddenly remembered how S.J. commented that her “butt” looked good in “yoga pants.” This memory “popped” into her head.

[176] Perhaps it was the first sexual comment S.J. ever made to her, yet H.S. could not explain why it suddenly came to her out of the blue. I am certain she had time to think about what she was going to say to police before she gave her statement on May 17, 2021. Yet, this recollection escaped her like so many others.

[177] She was aware that she could call the police to provide a further statement if she remembered subsequent, relevant interactions she had with S.J. while she was a high school student.

[178] Along a similar vein, she forgot about the motel, remembered it after she gave her statement to the police, then forgot it again, only to remember it when she was testifying during the first day of S.J.’s trial. This is indeed a bizarre pattern of losing and regaining memories, which H.S. claimed to have experienced.

[179] The inadequacy of her powers of recall was perhaps most evident in her inability to remember the discussions and the multiple steps that led to their approximate eight attendances in the tuck shop to have sex. All she recalls are the acts of intercourse themselves. Moreover, she is unable to summon from the recesses of her memory a single detail about half a dozen or so of their attendances there. To my mind, it begs the question, did those six other times even happen? Did any happen? I simply cannot be sure, as the trier of fact.

[180] While I appreciate that H.S. may have been trying to forget what S.J. and she did, and she may have been traumatized by it, she is simply not a reliable historian. Her memory is extremely frail. It is almost totally devoid of details. In turn, its infirmity does not lend itself well for findings of fact to be made.

[181] Consequently, I am left to ponder and suspect that S.J. groomed H.S., won over her confidence with his charm and attention to her in her time of need, seduced her and very inappropriately had sex with her. My thoughts and suspicions, of course, approach nowhere near the level of certainty I must attain before finding S.J. guilty. I am, based on the totality of the evidence which I do accept, not convinced beyond a reasonable doubt that he did what he is alleged to have done.

[182] As a matter of logic, I do not see why I need deal with the position of trust and authority issue raised by the Crown. If I cannot even be sure anything untoward happened to H.S., because I cannot rely on her evidence, how can I have any confidence that he did anything to abuse the position of trust he occupied in relation to her?

[183] I make little of the defence argument that the sex H.S. testified S.J. and she engaged in happened in too “risky” a setting for it really to have occurred. I venture any high school teacher who contemplates sex with a student is someone prepared to take extreme risks. Yet sadly, in the real world, these things happen.

[184] I make nothing of defence counsel’s confrontation of H.S. that a sexual relationship developed between S.J. and H.S. during her early years at Carleton University. There is no evidence to substantiate any such affair existed.

[185] The undated text exchange between S.J. and H.S., which was the only exhibit made at the trial, was not, to my mind, as compelling as Crown counsel made it out to be. I cannot safely infer that, because S.J. asked H.S., “Are we still okay?”, he was seeking to secure her silence. He could have been, but not, must have been.

[186] Assuming S.J. knew, as he must have, that some of his former students were speaking to the police and the school board about his questionable conduct, he may have reached out to H.S. to find out what she would say if approached by the authorities. It could have simply been a ‘feeler’ he was extending to learn of her intentions. It was not necessarily a plea for her to stay quiet.

Conclusion

[187] For the above reasons, I must find S.J. not guilty of sexually assaulting H.S. contrary to section 271 of the Code.

DATED: November 4, 2024

March, M.G., J.