Her Majesty the Queen v. A.M., 2012 ONSC 2595

COURT FILE NO.: SCA(P)1161/11

DATE: 20120517

ONTARIO

SUPERIOR COURT OF JUSTICE – ONTARIO

SUMMARY CONVICTION APPEAL COURT

B E T W E E N:

HER MAJESTY THE QUEEN

T. Kim, for the Respondent

Respondent

• and -

A.M.

D. Humphrey, J. Makepeace, for the Appellant

Appellant

HEARD: January 23, 2012

JUDGMENT

[On appeal from the conviction of Ready J. dated February 8, 2011]

Hill J.

INTRODUCTION

1After a trial, the appellant was found guilty of sexual assault and sexual exploitation. He was sentenced to 90 days’ imprisonment, two years’ probation, and various collateral orders. A.M. was the 16-year-old complainant’s high school math teacher.

2Mr. M. appeals against conviction on the following grounds:

(1) that the trial judge erred in treating a suggestion in a question during cross-examination of the complainant as evidence said to be materially inconsistent with the defence and then using that alleged inconsistency adversely to the appellant’s credibility

(2) that the trial court erred in failing to address improbable components of the complainant’s evidence including her evidence that she was kissed and touched and told by the appellant “wait until he leaves” while a classmate sat in a chair in front of her, and material inconsistencies within her evidence and between her testimony and the evidence of other witnesses

(3) that the trial judge erred in attaching no weight to the good character evidence adduced by the appellant in support of his credibility as a witness.

FACTUAL BACKGROUND

Prior to May 29, 2009

3In the spring of 2009, the 16-year-old complainant was a “solid B student” at F[…]School in Mississauga. She was born in the Philippines and spoke Waray. The complainant took ESL (English as a Second Language) courses in her mother country and in Canada. She wanted to go into nursing or medicine by going to university or perhaps to college and then to university.

4The complainant was struggling to achieve a passing grade in grade 11 functions, a mathematics course. The appellant was her teacher in this second semester subject. She had a 57 grade in the course by the end of May 2009. Her parents were not placing pressure on her. They hoped she would pass. She was prepared to go to summer school or to retake the course if necessary.

5The appellant testified that he had no special relationship with the complainant – “[s]he was just another kid in the class”. He considered the complainant to be a very quiet and reserved student. The complainant described her teacher as “nice”. She “liked him” and he “taught good math” which she understood most of the time.

6The appellant’s classroom was on the school’s ground level with windows overlooking the parking lot. Opposite the wall with windows was the wall with the only doorwall to the hallway. That door was toward the front of the room and even with the teacher’s desk.

7There was evidence at trial that the appellant was generous with his time in helping students with extra help at lunch hour or at times after class. The appellant testified in-chief that whenever a student had a question the student would raise his or her hand, for example for help in understanding a test question. The complainant was a quiet student who, according to the appellant, rarely asked questions.

8On the evidence, the appellant was known to be friendly and informal with students. He teased students including the complainant. The complainant described the teacher as openly giving one-arm hugs to students. In her statement to the police, she described these hugs being given mostly to girls. In her videotaped statement to the police, admitted at trial, the complainant stated that she had received such a hug from the appellant. The complainant informed the police that beginning in May of 2009, sometimes during lunch period in the school cafeteria, the appellant would “pop out of nowhere” coming up behind her and scaring her. They would then laugh about it. According to the complainant, the appellant did it with others too, “[m]ostly females”. C.W.W., one of the complainant’s school friends, testified that she had seen the appellant come up behind the complainant and tap her on the shoulder to try to shock her – it was “a friendly thing”.

9Two to five days prior to Friday, May 29, 2009, the appellant, who was the complainant’s grade 11 math teacher, purported to give her a detention for failing to do her homework. At trial, the appellant testified this was intended as a joke and not an attempt to be alone with the complainant. While the complainant took it as such she attended the appellant’s classroom the next day at lunchtime where she received about 20 minutes’ assistance with math questions which she found helpful. On the complainant’s evidence, she attended because she was directed to do so. The appellant testified that she attended entirely of her own accord after asking two school friends, A.L. and C.W.W., to come along. The complainant informed the trial court that, being a shy person generally, she felt more comfortable being with her friends. According to L. and W., they accompanied the complainant without being asked to do so. The appellant permitted them to remain during the extra-help session.

10In his evidence in-chief, the appellant stated that the only occasion where the complainant sought his assistance with her math work was this lunch-time extra help session – “[o]therwise she would never ask any questions”. In cross-examination, for the first time, the appellant testified that he gave the complainant help during math test #6 to lead her toward getting a correct answer. He was walking around the classroom during the test when he pointed out a mistake she had made and, without giving her the answer, helped her to get to the next step. He “probably” helped other students as well during test #6. The complainant was not asked about this. On the appellant’s evidence, the complainant once or twice asked for help during that test. The appellant testified that after test #6 he whispered to the complainant in class toward the end of the test that “she shouldn’t be telling everyone that [he] helped her because [he’d] have to help every single person”. To the appellant’s recall, the complainant “probably nodded”. The complainant was not cross-examined on this alleged exchange. In the appellant’s words, although he always offers “[e]xtra help”, “I didn’t want to spend the whole period helping everybody”. The appellant testified that after test #6 he believed the complainant told no one about the help he had given her during the test.

The May 29 Math Test

11The alleged sexual offences occurred in the school on Friday, May 29, 2009. At the outset of the complainant’s testimony she informed the court that:

I hardly remember that much anymore but some of it, yes, about the kissing part on the cheeks, I still remember that.

12After adopting her June 1, 2009 videotaped statement to the police, it was admitted pursuant to s.715.1 of the Code and is summarized infra at para. 50.

13Math test #7 was scheduled for school period #5 on May 29, 2009. It was the final period of the day commencing at 1:35 p.m. and ending at 2:55 p.m. The complainant was seated in the back corner of the classroom against the interior wall. Students were required to spread out when writing a test. The complainant testified that the appellant directed her to take that particular seat. The appellant’s evidence was that she chose that seat on her own. B.P., another student struggling with his math marks, was seated at the desk directly in front of the complainant. According to the appellant’s in-chief evidence, the classroom door was normally open and was during the test – “I did keep it open” and it was open “after the dismissal time at 2:55”. In cross-examination, the appellant testified that the door was open “[m]ore or less” throughout the test. He may have closed the door “if there was noise in the classroom”.

14During the test, the appellant sat at his desk. He also walked around the classroom checking students’ work. A couple of times he briefly left the room. As described more particularly below, the appellant gave help to the complainant and to B.P. during the test but, on his evidence, only after the student raised his or her hand to request assistance.

15The appellant testified that during the regular class time he noticed that one of the complainant’s recorded answers was grossly incorrect. The whole class was present. He obtained his calculator and, at her desk, showed her the final answer to the problem saying it was the type of answer she should get. He bent slightly over the low desk of the student to communicate. In his evidence, the appellant stated that he did not demonstrate the method of arriving at the answer - it “was more direction than anything else”. In cross-examination, the appellant stated, “I showed her the answer”, “the final answer”. The complainant erased her answer and tried the problem again. In his view, she did not have an opportunity to write the answer down. On the appellant’s evidence, the complainant put her hand up and asked him if the answer she recorded was correct to which he replied that it “looked good”. With the appellant’s help, the complainant arrived at the right answer.

16P. too received help from the teacher during the period #5 test. He considered the appellant to be a good teacher. He recalled the appellant coming by his desk when he was seen to be having difficulty. To his recall, the teacher came without him raising his hand. To P.’s recall, the appellant provided him the formula to solve one of the problems. He had forgotten the formula. He was not given the answer. The appellant recalled that after the student raised his hand he gave him a hint to help him along but not the formula. The student should have had the formula memorized. The hint, which the appellant did not consider to be inappropriate or unfair to other students for a number of reasons, may have been communication that the relevant formula the student needed was the one applied to an earlier question.

17When the period-ending bell rang at 2:55 p.m., the appellant announced that students requiring extra time to complete the test could remain. He would give them “a little more time to finish up”. To his recall, five to ten students took advantage of the opportunity including the complainant and P.. The appellant’s intention in doing so, on his evidence, was an effort to avoid students failing his course.

18When P. got up to hand in his paper, the appellant noticed a number of blanks. He encouraged the student to make an effort to complete some of the unanswered questions in order to earn part marks. To P.’s recall, he received help from the appellant two or three times after period #5 ended.

19Ultimately, only the complainant and P. were left working on their tests. The complainant testified that she stood up at a point to hand in her test. When she was about to approach the teacher, but still near her desk, she was directed to sit down. In her in-chief evidence, the complainant stated that she was directed to sit and stay a bit longer by the appellant speaking in his normal teaching voice. In cross-examination, the complainant stated that the direction came about as a result of “like a gesture” from the appellant. The complainant was unaware whether P. knew that this occurred as she was not looking at him. P. testified that he did not see the complainant get up and approach the appellant’s desk. The appellant denied that he directed the complainant to remain. On his evidence, the complainant only stood up once, at the end, to give him her test paper.

20The appellant testified that he went to the complainant’s desk at one point when she raised her hand. She was having trouble with another question. He helped her but could not recall at trial what her question was.

21The complainant testified that the appellant came to the right side of her desk, leaned close to her and, in a low voice, asked how she was doing. When she responded, “okay”, the appellant pinched her right cheek and smiled. On the complainant’s evidence, she interpreted his smile as referring to the calculation she was working on as being incorrect.

22The complainant testified that the appellant brought his calculator to her desk at one point to help her. On her evidence, the teacher gave her “the real answer”.

23The complainant testified that the appellant went from her desk to see P.. The teacher assisted him with his work. According to the complainant, she only heard snatches of their discussion. The appellant then returned to her desk. As he looked at her paper, on the complainant’s evidence, she asked, “Is this alright?” receiving the reply, “Not now. Wait until he leaves”. The complainant informed the trial court that her teacher then pinched and kissed her right cheek. She was unable to say whether B. heard what the teacher said. At the time, the complainant thought it was simply a friendly gesture. In her evidence, she described herself as “a bit naïve”. She wanted to complete her test and go home. B.P. testified that while he knew the appellant was assisting the complainant, he would not necessarily have heard what the help the complainant was receiving from the teacher.

24The school hallway surveillance video records B.P. leaving the classroom at about 3:41 p.m. The complainant was unable to say whether the classroom door remained open. The appellant testified that once P. left, he told the complainant she could have five minutes more. According to the complainant, after P. left, the appellant sat on a desk diagonal to her position and asked why she brought friends to the earlier lunch-time detention/extra help session. He asked, “Do you not like me?” On the complainant’s evidence, she told the appellant that she liked him as a teacher but had wanted her friends to be with her.

25On the appellant’s evidence, he wanted the complainant to complete her test so he could go home. The appellant testified that as he sat on a student desk near the complainant. Asked at trial whether he asked her why she brought friends to the detention/extra help session, receiving the answer that she simply wanted company, the appellant testified that while he was unsure, he did not think he asked the complainant about this subject “at the test”. He also informed the trial court in cross-examination that the topic “probably” did come up. According to the appellant, the complainant began a discussion about grade 12 math class asking whether he would like to have her in his class. He said, “Sure, why not”. When he directed her to finish her test, she asked him for assistance with a further problem. According to the appellant, he informed her that he was unable to provide help with that question without disclosing the entire answer. On the appellant’s evidence, the complainant persisted. When she asked for the first letter, he gave it to her. She requested the next letter as well. He provided it too. In his evidence, he agreed that this afforded “a significant hint” and a “pretty strong hint”. The complainant solved the problem. He wanted to give her a break so that she would pass.

26In cross-examination, the appellant was questioned as to whether the help given to the complainant was special:

Q. … so you didn’t provide this kind of help during test days to any other student other than M.C.?

A. To that level, no.

The appellant, again in cross-examination, stated that the help given the complainant on test #7 was “similar” to that he gave her during test #6.

27To the complainant’s recall, having finished her test, she stood up and informed the teacher that she was done. According to the complainant, at the back of the room, the appellant offered to check her paper. He then gave her a one-arm hug with his left arm pulling her closer to him. On the complainant’s evidence, the look he gave led her to believe that her answers might be incorrect. She was instructed to re-check her answers. As she stood, she rushed to change one of her answers.

28The complainant provided this account of what next transpired. The appellant placed his arm around her back, rested his hand on her stomach, slid his hand to her lower back, and then down to the top of her buttocks with a quick swiping motion also described as a glancing contact or touch. There was no rub, grab or pinch. She froze not knowing what to do. She was scared. She said nothing. She rushed to complete her test. The appellant re-checked her paper. He again gave her a one-arm hug before kissing her on the right cheek and on the right side of her forehead. She knew it was the appellant’s lips not his cheek because she felt his moustache. He next kissed her near her lips. He placed one hand on her chin and rubbed her lips with his thumb, before asking, “Can I kiss you?” She replied, “No”. The appellant then inquired, “Why do you not love me?” Although she wanted to reply negatively, she was scared – she answered, “Maybe”.

29The appellant testified that he gave the complainant help during the test to a level he did not provide for other students in the class. The help to P. was at “a lower level”. He, at no point, told any other student not to tell that he had assisted them. On the appellant’s evidence, he only helped the complainant because he believed on the basis of things said by some of her classmates, including A.L., that she was too scared to ask for help. L. was not questioned on this issue at trial. The high school’s vice principal testified that giving a student a formula during a test would be unusual as students are expected to have them memorized. As well, while it might be appropriate to give as much as fifteen extra minutes to complete a test, a one-hour extension would be unusual unless the student was a special education student or there existed specific mitigating circumstances.

30The appellant testified that when the complainant wrote down her final answer and stood up he walked toward her saying, “So, I’m not scary after all, eh?” While at the side of her desk, he said this because he had heard from other students that the complainant found him scary. On the appellant’s evidence, the complainant responded by saying, “A. still says you’re crazy”. The appellant testified in-chief that he then, on the basis of a “reaction thing”, placed a hand on each of her temples for “[a] couple of seconds probably” as he said, “Oh, but I love you guys”. The complainant said nothing. He asked why A. considered him scary and the complainant shrugged her shoulders. In cross-examination, the appellant stated that he said, “I like you guys very much” and when asked why he had his two hands on the student’s head, he replied, “I don’t exactly know”. The complainant was not questioned at trial as to whether the appellant held her head while speaking to her.

31The complainant testified that she finished her calculations. When the appellant looked at her work, he said, “Good enough”. The appellant testified that he looked at her paper and said, “Okay, this looks good. Alright, let’s go”. They then left the classroom. The hallway surveillance video records their departure at about 3:53 p.m.

After the Test

32The complainant informed the trial judge that as she walked down the school hallway, the appellant called her name and motioned her to him. She walked in his direction. Once she arrived at his location, he leaned toward her and whispered, “It’s our secret”. She said, “Okay” and retraced her steps back down the hall. The surveillance video shows the complainant and the appellant walking in opposite directions in the hallway. The complainant can then be seen turning around, with the appellant motioning her to return to his position. She does so where the appellant can be observed leaning forward toward her. They then separated.

33The appellant testified that as the complainant walked down the school hallway, he locked the classroom door and headed in the opposite direction. He then twice summoned her back by yelling out and, when she arrived at his location, he bent forward within inches of her face and, in a low voice, not a whisper, said “Remember” with the complainant completing the sentence: “Yah, yah, I know, it’s a secret that you helped me”. On the appellant’s evidence, when he spoke to his student he was inches from her face but not leaning against her ear while speaking. The appellant testified that this was the purpose of calling the student back – the help he extended to the complainant was “probably unfair to other students” and he didn’t want her to tell.

34On his in-chief evidence, he leaned forward to be heard over the noise of vacuum or polishing machines being used in the area by school janitors (“the janitors were cleaning so there’s noise”; “that’s the reason” he bent close to the complainant). The appellant testified that janitors generally work in pairs. He also stated that janitors take up different areas of the school to clean. Cross-examined upon the school video depicting the appellant bent to the area of the complainant’s ear and cheek, the appellant admitted to being close to his student stating that the angle of the camera gave an impression of closer proximity than actually existed. The appellant testified that he had not thought of simply speaking louder. He denied that he spoke in a low voice so that no one else would hear. Under cross-examination questioning, the appellant acknowledged that the video showed only one janitor who was emptying trash bins and not operating a floor polisher or other machine. He had no recall whether he had seen a janitor pushing a cleaning machine that day but, in his experience, “that’s how they clean the classrooms”.

35Review of the surveillance video reveals the following.

36A number of students began to flood into the hallway where the appellant’s classroom was located shortly after 2:55 p.m. At about 2:57 p.m., the door of the appellant’s classroom opened and students began to exit into the hallway. The appellant can be seen briefly in the doorway of his room at 2:57 and 2:58 p.m. At 2:59:05 p.m., the appellant pulled his classroom door shut. At 3:00 p.m., three further students left the classroom with the door left open. Another student left at 3:01 p.m. and the classroom door was pulled shut from the inside. Another student left at 3:02 p.m. and closed the door behind her.

37For several minutes after 2:55 p.m., there were dozens and dozens of students crowding the hallway, talking, and opening and closing lockers. By 3:04 p.m., only seven students remained in the hallway. For some time, students and staff continued to use the hallway.

38At 3:15 p.m., the hallway was virtually deserted. At 3:16 p.m., the appellant exited the classroom leaving the door open and spoke briefly with two female staff members. He next chatted with three male students going down the hall. At about 3:18 p.m., the appellant re-entered his classroom. In turn, two of the students he had been speaking to in the hallway stepped into the doorway of his room between 3:19:03 and 3:19:12 with the appellant apparently just inside the doorway of the room as he can be seen extending his right arm to the shoulder of the last student as the student stepped back out of the doorway. The classroom door remained open.

39At 3:21:12 p.m., a male student left the appellant’s classroom and went down the hall. There was then a group of five or six students toward the far end of the hallway. The video shows the appellant in the doorway of his classroom looking through the narrow glass rectangle in the door briefly watching in the direction of his student going down the hall and the group of students further down the hall. The classroom door remained open.

40At about 3:24:30 p.m., the appellant can be seen at the doorway of his classroom. By 3:24:34 p.m. the appellant was back in the room.

41At about 3:28 p.m., a school custodian or janitor commenced dry-mopping the hallway floor at the far end of the hall furthest from the appellant’s classroom. At 3:29:10 p.m., the appellant closed his classroom door. At that point, the janitor and four or five students were down the hall. At about 3:29:37, the janitor brought a trolley into the hallway which had two more mops or brooms and a receptacle into which he could empty garbage cans from various classrooms. The janitor mopped the hallway until about 3:36 p.m. when he disappeared from sight as he entered an adjoining hallway. The odd student was still using the hall.

42By 3:37:21 p.m., the same janitor was back in the hallway and continuing to mop or sweep the floor. Between 3:39 and 3:41 p.m., the janitor entered a classroom about three or four down from the appellant’s classroom and on the opposite side of the hall. Two garbage pails from that classroom were emptied into his trolley. The janitor was using a mop to clean classroom floors taking his mop inside those rooms.

43At 3:41:40 p.m., B.P. opened the door of the appellant’s classroom and exited closing the door behind him. Only the janitor was in the hallway at the far end. P. walked down the hall and left. At 3:42:25, the appellant opened his classroom door and left leaving the door open. He had papers in his hand. At 3:43:30 p.m., the appellant re-entered his classroom leaving the door open. At 3:53:28 p.m., the complainant, wearing her backpack, left the classroom and began to walk down the hall. Immediately afterward, at 3:53:30 p.m., the appellant exited the classroom with a paper in his hand and closed the classroom door. The appellant walked in the opposite direction from the complainant and briefly out of the hallway altogether. Two or three seconds later, he re-appeared and raised his right arm and appeared to speak to the complainant as she turned her head back toward him. As the appellant stood by his closed classroom door, the complainant returned to where he was standing. No one else was in the hall. Between about 3:54:06:50 and 3:54:08:79 p.m., the appellant leaned forward close to the complainant’s face. By the time the janitor re-entered the hall from another classroom at 3:54:10:30 p.m., the appellant was again standing upright and by 3:54:11 he and the complainant were turning away from one another. They then walked in opposite directions and left the hall.

Disclosure

44The complainant said nothing to her parents on the weekend – she felt scared and embarrassed and didn’t want them to know. She first disclosed to others on the next school day, Monday, June 1, 2009 in the school cafeteria during lunch period just before fifth period math class. She was seated with L., W. and S.D.. At trial, the complainant was unable to precisely recall how the relevant conversation began although it may have been when she made reference to seeing a movie in which a teacher kissed a student. A.L. formed the opinion that reference to the movie was simply a cover story to get into the discussion. The complainant related events of the prior Friday including that she had been kissed on the cheeks by the appellant. L. recalled his friend saying that the appellant put his arm around her, and asked “Do you love me?” before kissing her on the cheek and lips or “something like that”. Interviewed by the police, W. stated that the complainant related to her that the teacher told her that at one point during the math test as she approached the appellant’s desk he told her to return to her seat. As well, the complainant reported that the teacher touched her inappropriately in her waist area, tried to kiss her on the cheek and somewhere close to her lips, said he loved her and tried to grab her.

45The complainant testified that she confided in her friends because she felt alone hiding the secret of what had occurred. She was scared. She believed she might feel better if she spoke to someone. On her evidence, she still felt too embarrassed and afraid to disclose full details. She provided only a “general synopsis”.

46On the encouragement of her school friends, who said what happened was “wrong”, the complainant went to the school chaplain, Mr. Frendo, to make a report. W. and L. accompanied her. The witnesses described their friend as upset, sad, somewhat shaken up, awkward and starting to cry. The complainant spoke to the chaplain. He had not met her before. She testified to being nervous and uncomfortable. Mr. Frendo testified that the complainant related a summary of the incident including that the appellant tried to kiss her and had an arm around her shoulders. He recalled the complainant as very upset with a broken-up voice, appearing ashamed, and breaking down in tears. Refreshing his memory from notes made later on June 1, Mr. Frendo testified that the complainant related to him that she was given extra time for a math test by the appellant and that he made an attempt (“tried”) to kiss her cheek and lips. At a point, the teacher put his arm around her. He told her it was their secret. The complainant testified that she told the chaplain that the appellant had kissed her. Though upset, nervous and uncomfortable, according to the complainant she prepared a written statement at Mr. Frendo’s request. A.L. saw her writing in the chaplain’s office. The chaplain did not recall requesting her to do so.

47The complainant’s statement reads as follows:

June 01, 2009

I was doing my math test, Friday, May 29, 2009 there were two people left, me and another guy. As I was writing my test, he comes up to me and then he checked up on me and tells me something which I forgot. After that, he kissed me on the cheeks and then walked away. Times past, he was helping the other guy as he was writing his test, I wanted to go home, so I finished my test quickly and I did, as I stand up to give my test to him, he told me to stay a bit. He takes out a graphing calculator and showed me what would be the right answer, which then made me stay since he gave me a chance to be able to change my previous answer. So I did, and then the other guy finished and was able to go home, and there I was all alone and he sits on the table just beside me. He asked me why I brought my friends at lunch for help, and I told him that I wanted them there and they wanted to come with me. I forgot the conversation we were having, but after that he comes up again and kissed me in the cheeks. Then, I finished, I stood up and he looks at it and then kissed me on the cheeks nearly on my lips, then he said “Can I kiss you?” I told him “No”, so he stopped and said, “But I love you. Don’t you love me?” I was shocked when I heard it, I didn’t know what to say, I told him “Maybe”, which I mean to be no but didn’t want to say anything that might make him mad. And then finally he let me go out of the class, as I was leaving he called me and told me, “It’s our secret”, and I didn’t know what to say, I just told him “Okay”.

48Mr. Frendo directed the complainant to see the school’s principal and two vice principals. She did so telling them what had occurred. On the complainant’s evidence, she was asked to read her statement. Vice principal Sicoli testified that to his recall she did not read a statement but gave an account of what happened and responded to their questions. He recalled the complainant as very soft-spoken, reserved, nervous and anxious. She may have shed a few tears. Mr. Sicoli testified that the complainant reported staying overtime to complete a math test. At some point when she stood to leave she was asked to stay. He asked why she brought friends to the extra-help lunch session. There was a second kiss on the cheek and subsequently a third kiss, close to the lips, as she was standing. The appellant asked if he could kiss her. When the appellant asked if she loved him, she said, “Maybe”. Afterward, the appellant stated, “This is our secret …”.

49The school principal contacted the police and a vice principal telephoned the complainant’s father.

50On June 1, commencing at about 5:35 p.m., the complainant provided a videotaped statement to a female police officer. The statement finished at 6:38 p.m. The statement was admitted at trial pursuant to s.715.1 of the Code. In her statement, the complainant provided these details:

(1) during the math test, the appellant walked around the classroom after B. and her were the only remaining students

(2) at one point, the appellant crouched near her and asked how the test was going – when she said okay he pinched her cheek

(3) after the appellant checked on B., he returned to her desk – because “he helps [her] out sometimes with test”, the complainant asked if one of her answers was right – the appellant leaned in toward her and said, “let’s wait until he’s [B.] gone” and pinched and kissed her cheek – she was not bothered as it seemed like a friendly thing

(4) when she stood up to hand in her test paper, she was directed to sit down (“he’s like uh, uh, uh, sit down, I want you to stay for a bit”; “he told me … I want you stay for a bit”)

(5) later, with B. still working too, the teacher brought his calculator to her desk to assist her in answering a question (“like he showed me … the right answer”; “He showed me the graphic calculator … and the answers. Like this is what you’re supposed to get”) - subsequently he sat on a desk beside her after B. had left and asked why she brought her friends to the earlier homework help session – after she responded, the appellant asked, “Do you not like me?” – she said she liked having her friends around

(6) when she finished her calculations, she stood up to hand in her paper – as he asked to check the paper and directed her to re-check an answer, he gave her a “buddy hug or something” shoulder to shoulder – she was continuing to do a calculation as she stood - as to what happened next, the complainant, along with demonstrations, stated:

I was writing like standing up writing kinda thing. So he was like behind me. And he was like-, he was touching me (indicates with hand). And then it slowly went down to my butt like-, he like s-, just quickly swipe it. And then so I felt uncomfortable then. So I just wanna write so fast. And I did and then I kinda finished up and then he checked it again. And then he smiled like something wrong with my calculation kinda thing. And I was like okay, he, he, he kissed me just randomly on the cheeks. And then he kissed me again somewhere else. And then the last time he kiss was right over here, almost on my lips (indicates with hand). And then that made me even more uncomfortable. And then he told-, he asked me “can I kiss you?” And I was like “no”. And he’s like “okay, why not, I love you”. And, and then I was like-, it was just like-, I was just shocked and then he’s like “why not I love, I love you”, right. And then he’s like don’t-, “why, don’t you not love me?” And I was like-, uh, uh, I-, I wanna say “no” but then I’m too afraid ‘cause he’s my teacher, you know. I just wanna get out of the room so I say “maybe”. I didn’t want to say “no”, and he just ask some random like q-, like questions o-, over again why I don’t love him. I just wanna go home. So he’s like okay.

(7) according to the complainant, in this sequence the appellant held her chin in his hand and rubbed his thumb under her lips, and she was hugged tightly, squeezed tight (“it was so tight like … I couldn’t like breathe …” – she became very uncomfortable

(8) the complainant stated that after leaving the classroom, as she walked quickly down the hallway, the appellant called her back and when she returned to his location, he said, “It’s our secret” and she said, “okay”

(9) on June 1, she did not give much in the way of details to her friends at lunch and did not give the chaplain all the details either.

51The complainant testified that after the initial disclosure to her friends, the matter was not again discussed with them. C.W.W. testified that after June 1, 2009, the complainant did not again speak of the incident. A.L. testified that he learned some further detail following June 1.

Character Evidence

52At trial, the defence called five teachers from F[…] School and a former student the appellant had coached in cricket and badminton. The evidence disclosed the appellant to be an honest and respected educator and, in the teaching community and among students, the appellant had a reputation for honesty and integrity. In cross-examination, the witnesses testified to surprise that the appellant revealed an answer to a student during a test adding, however, that the entirety of the prevailing circumstances would be an important consideration.

REASONS OF THE TRIAL JUDGE

Appeal Ground #1 – Counsel’s Question Treated as Evidence

53During defence counsel’s cross-examination of the complainant, this exchange took place:

Q. And when you were out in the hallway, and when Mr. M. brought you back, signalled for you to return to the classroom, you’re both standing in the hallway, Mr. M., I’m going to suggest, said this to you, “Remember you can’t tell anybody that I helped you on the test.” Do you remember him saying that to you?

A. No.

Q. And do you remember you’re responding by saying, “Yeah, Yeah, I know it’s our secret”?

A. No.

Q. You didn’t say that?

A. I, I, I – as far as I can remember he said it’s our secret and I said okay and then I, I went over to my locker.

Q. That’s fine. But you, you’re not, you’re suggesting you don’t, you don’t recall having any discussion whatsoever about Mr. M. saying the fact that he helped you was the secret?

A. Not at that day.

Q. When, when did that conversation, if at all, take place?

A. Before the test, like a long time ago.

Q. Before May 29?

A. Yeah.

54In her reasons for judgment, the trial judge stated:

The defence counsel put to M.C. that the accused said, “Remember, don’t tell anyone I helped you on the test.” This was the exact words that counsel put to her for her comment. She denied this. It is interesting to note that the accused himself testified about the conversation in the hallway, and he testified that he said only one word, and that was “Remember”, and that that was all he said and then M.C. added the other words.

This is a major internal inconsistency within the defence as to what was said in the hallway and what evidence, accurate evidence, was put to M.C. for her comment. And it diminishes the accused’s credibility on his explanation as to what occurred in the hallway and why it occurred, and what he said to M.C..

Appeal Ground #2 – Alleged Failure to Appreciate or Adequately Scrutinize Problematic Aspects of the Crown’s Case

55After hearing extensive submissions from trial counsel, the trial judge reserved her judgment for about a two-month time period. Transcripts of the trial evidence were available to the trial judge during her deliberations.

56In a 40-page judgment, the trial court self-directed on the W.D. principles relating to the prosecution’s burden of proof. In its reasons for judgment, the court devoted about 15 ½ pages to analysis of the appellant’s evidence and about 18 ½ pages to that of the complainant.

57The trial judge disbelieved the appellant’s evidence. She identified contradictions in his testimony. In particular, the court found the appellant’s evidence relating to the degree of help extended to the complainant on the math test to be evasive and inconsistent. The appellant gave special help to the complainant and in return took unwanted sexual liberties with her. His explanation regarding the hallway conversation was implausible and unworthy of belief – it was in fact to convey that their sexual contact was to be their secret. In addition, the court concluded that the appellant was evasive to some questioning, non-responsive and argumentative. In some instances, the trial judge afforded the appellant’s evidence less weight on points upon which the complainant had not been cross-examined.

58As to the complainant’s evidence, the court found it to be credible in content and presentation. For reasons expressed by the court, it was held that the disclosure process was reasonable in all the circumstances. The substance of the complainant’s account was detailed, without exaggeration, and relatively consistent over time. The court declined to find that the complainant’s version of events became an evolving fabricated account. The trial judge accepted the complainant’s evidence relating to her emotions and the level of detail she intended to convey as she spoke to various individuals on June 1, 2009. The complainant was found to have no motive to fabricate. The trial judge concluded that the movie described by the complainant did not influence the truth or reliability of her evidence. Nor did she over-react or misinterpret anything said or done by the appellant during the math test. The court addressed other criticisms of the complainant’s evidence raised by defence counsel in his closing submissions including alleged inconsistencies between her reporting statements, the likelihood of P. being aware of what was transpiring at the desk behind him, the limits of the complainant’s recollection of events about a year after the relevant events, and the alleged implausibility of sexual contact with a student in the classroom with the door open.

59The trial judge concluded that on the whole of the evidence the appellant helped the complainant to the degree he did on the math test, in the context of a lengthy extension to finish the test leaving them alone together in the classroom, in order “to facilitate sexual contact with her”. The court stated:

This sexual contact was a quick swipe to the butt; numerous kisses on the right cheek; professions of love to her; and questions as to whether she felt the same way; and a question that from which it can be reasonably inferred he wanted to kiss her on the lips. She said, “No”. Upon the two leaving the classroom, he called her back to remind her of the secret, which was the events that had occurred inside the classroom, and they were of a sexual nature.

As to the second count on the information, he was her teacher. There is no doubt about that. He was in a position of trust. She was of the age of 16. She had no interest of a sexual nature with her teacher, and she felt that the relationship was merely teacher and student. She did not consent to the contact of a sexual nature that occurred in the classroom, and in order for him, from the evidence, to carry out this contact, the teacher used his lips and his hands.

Accordingly, the count of sexual exploitation as well as the count of sexual assault have been proved beyond a reasonable doubt and findings will be made.

Appeal Ground #3 – Attaching No Weight to Character Evidence

60After summarizing the character evidence adduced by the defence at trial, the trial judge concluded:

Accused’s counsel on his behalf argued I should give this evidence full weight towards the areas of the accused’s credibility and the propensity to commit a sexual assault.

In all due respect to defence counsel, I am of the opinion that the case of Lizzi, [1996 21269 (ON SC), [1996] O.J. No. 3235 (Gen. Div.)] does not modify the case of Profit [(1993 78 (SCC), 85 C.C.C. (3d) 232 (S.C.C.)]. The ground of appeal in Lizzi was the improper rejection of character evidence. They were not allowed to call it, not the weight to be given to it or how it was to be used. Comments by … Justice Crossland J., in the case of Lizzi that it was not a case of sexual assault in private is, in this court’s estimation obiter.

I am persuaded by and bound by the decision in Profit. Paragraph number one of that decision, partway through, states:

As a matter of common sense, but not as a principle of law, a trial judge may take into account that in sexual assault cases involving children, sexual misconduct occurs in private and in most cases will …** be reflected in the reputation in the community of the accused for morality. As a matter of weight, the trial judge is entitled to find that the propensity value of character evidence as to morality is diminished in such cases.

In the alternate, it could be argued, on these facts that this act took place in private, and it is still of a private nature, because it was not done in front of other persons or other students. Why would I come to that conclusion?

1. M.C.’s desk was against the wall and it was not close to the door, but it was on the same wall where the door to the classroom is located. A person at the door looking in might not see her and the accused located at her desk along the wall. This is a classroom; it is one hour after school is out and it is a Friday afternoon. Only the janitor is working down the hall, no one else appears to be around. The accused and the complainant are the only two people in that classroom. Accordingly, on those facts, it could be said that the act took place in private and is still of a private nature.

Accordingly, I attribute little or no weight to the accused, M.’s reputation for honesty, integrity and moral integrity in the community. It does not assist with his credibility or the issue of improbability on this type of offence.

** Should have said, not [note in original transcript]

POSITION OF THE PARTIES

The Prosecution at Trial

61At trial, the Crown submitted that its case was proven beyond a reasonable doubt. Crown counsel argued that the complainant was a sincere and credible witness, and that contrary to the defence position that the complainant had been highly inconsistent over time in describing what transpired, she was quite consistent respecting the central aspects of her account. It was submitted that the acts and statements of the appellant as described by the complainant, in fact and law, established the commission of the alleged crimes.

62The prosecution noted the reasonableness of the complainant’s explanations for not only the manner and timing of her disclosure but also her move from un-detailed disclosure to detailed reporting with demonstrations in her police videotaped interview. It was noted that the complainant provided a coherent, detailed account of what transpired.

63The Crown submitted that the evidence supported a scenario where the appellant gave special and unfair help on a math test to the complainant both in terms of assistance with answers and an abnormally lengthy extension to the point of being alone with his student. He expected in return to be able to take physical liberties with the shy and reserved complainant – acts which constituted a sexual assault of increasing seriousness once alone with her in the classroom. It was said that the complainant had no motive to fabricate.

64The prosecution noted the complainant’s upset demeanour on June 1, 2009 when speaking to her co-students and to school officials. Also noted was B.P.’s confirmation of unsolicited help from the appellant during test #7.

65Crown counsel at trial submitted that it was open to the trial judge to afford less weight to the appellant’s evidence on matters about which the complainant was not questioned, for example, the appellant’s assertion that the complainant asked for first and second-letter hints for a test answer, that any touching was limited to holding her head at the temples, and that help was given on test #6 with a request to keep it between themselves.

66It was argued by the Crown at trial that the appellant’s evidence was at times non-responsive, vague and argumentative. Counsel pointed to certain inconsistencies in the appellant’s evidence as well as the implausibility of the appellant’s evidence relating to the “hallway conversation”. If the complainant was helped in test #6, and he believed she told no one about that help after he asked her not to, why would it be necessary to caution her again about the help on a subsequent math test? Why would the appellant need to lean in close to the complainant’s face and speak in a low voice when there were no machines being operated in the vicinity? It was submitted that given the brief time for conversation between the appellant and the complainant, as disclosed by the surveillance video, the complainant could not have said all the words attributed to her by the appellant.

67As to the character evidence called by the defence, it was submitted to the trial judge that what occurred in the present case was essentially a sexual assault in private considering such circumstances at the time (late on a Friday after classes ended) and location (at the back of a classroom away from the door and windows) of the events and the emptied classroom. The prosecution noted that the character witnesses generally found it surprising that the appellant would give an answer on a math test to a particular student only. It was argued that the character evidence was of little weight on the issue of the appellant’s propensity to commit the alleged crimes as well as the issue of his credibility as a witness.

The Defence at Trial

68The defence argued at trial that the prosecution case faltered on the complainant being incredible and unreliable. Alternatively, it was submitted that the appellant’s evidence raised a reasonable doubt or, if it did not, that on the whole of the evidence a reasonable doubt as to guilt existed.

69It was submitted that the appellant was a believable witness. He was a person of good character and a respected teacher. There was no reason to disbelieve his denials.

70Defence counsel (not Mr. Humphrey or Ms. Makepeace) submitted to the trial judge, using examples, that the complainant’s version of events was an evolving one with additional details added over time. For example, the complainant did not tell school officials that the appellant touched her upper buttocks area. The witnesses W. and Frendo testified that the complainant told them that the appellant only “tried” to kiss her. It was further argued that inconsistencies existed between various accounts provided by the complainant. The asserted omissions and inconsistencies were characterized as “fatal” contradictions.

71Appellant’s counsel at trial argued that there were implausabilities in the complainant’s evidence. There was no proven history of grooming the complainant for sexual contact. To accept the complainant’s evidence, sexual contact simply occurred out of the blue. With P. in the classroom, pinching the complainant’s cheek, kissing her and talking only feet from P. about waiting until he was gone, all risked that student seeing or hearing inappropriate subject matter. There was also the risk that a staff member, student or janitor could pop into the classroom at any moment prior to 3:53 p.m. The complainant’s account of the appellant asking if he could kiss her, after allegedly kissing her, made no sense. The complainant did not report the matter to her parents.

72The defence submitted that there was nothing nefarious about the appellant giving help, such as it was, to the complainant during math test #7. As a teacher, the appellant wanted her to pass. Test #7 would be important to the student’s overall grade. To give a student a break in these circumstances was not unusual. It was submitted that the help provided related to the process of solving a problem and not the giving of an answer. Only enough assistance was given to allow the student to “guess” at the correct answer. Therefore, it could not fairly be said that any special relationship was being cultivated by the appellant.

73It was submitted that the appellant’s evidence as to what was said in the school hallway after the test ought to be accepted in the terms described by the appellant in his testimony.

74The defence argued before the trial court that the complainant may have been “influenced” by the movie she told her co-students she had seen – it is not clear “the extent to which that may or may not have influenced her thinking”. It was further argued that the complainant may have misinterpreted events in the classroom:

… that maybe that’s how she approached Mr. M. so that if anything by way of conversation or contact may have taken place, there is the possibility that she may have misinterpreted Mr. M.’s intentions. That’s ultimately the position of the defence, that Mr. M., by his admission, acknowledged the nature of the contact that he had, certainly denied anything else that she suggests …

75It was submitted at trial that much of what the complainant described could not objectively be described as the commission of a sexual assault. While the appellant’s admission of touching the complainant’s temples might amount to a technical assault, it was not a sexual assault.

76The defence argued before the trial court that “[t]he door was open” to the classroom and, because it was “a very public classroom”, the ratio of the Profit case did not “wholly apply”. There was no allegation of clandestine activity behind closed doors. The good character evidence was deserving of weight for both reasons for which it was admissible on behalf of an accused person.

On Appeal – The Appellant

77On behalf of the appellant, Mr. Humphrey submitted that the credibility of the principal witnesses, the appellant and the complainant, was the central issue at trial. With the complainant’s evidence uncorroborated, the trial court was obliged to exercise particular care in assessing witness credibility.

78It was submitted that cumulatively taking the three alleged errors on the part of the trial court into consideration, the verdicts in this case were fundamentally and fatally flawed.

79As to the first ground of appeal, described as the most substantial ground of appeal, it was argued that the trial judge erred in setting up a purported inconsistency within the defence, one negatively impacting on the appellant’s credibility, between the appellant’s sworn evidence and the contents of a question by defence counsel in cross-examination of the complainant. Counsel’s question was not itself evidence and it was further inappropriate to assume that the contents of counsel’s question were “accurate” evidence. It was submitted that, “[t]he mere possibility that counsel’s questions could be treated as evidence against the accused creates … obvious and insurmountable obstacles to a fair and efficient trial”. The “inconsistency” was not advanced by the Crown in closing submissions and, during oral argument, the court did not disclose that it was contemplating drawing a negative inference against credibility in this manner which would have, fairly, permitted the defence to address the subject. It was submitted that the trial court’s reasoning cannot simply be interpreted as a Browne and Dunn comment on a failure of the defence to accurately cross-examine the complainant upon the contents of the hallway conversation which the appellant subsequently described in his own testimony. The complainant was cross-examined about the conversation and while there may have been some lack of precision in defence counsel’s questioning, the appellant cannot be held responsible for that circumstance. The trial court’s erroneous reasoning was significant to assessment of the appellant’s credibility having been characterized as “a major internal inconsistency within the defence”.

80The appellant’s second ground of appeal asserts that the trial judge erred in failing to consider significant inconsistencies and inherent improbabilities within the complainant’s evidence within the context of differential standards of analysis applied to her evidence and to that of the appellant. In effect, it is said, the court chose to ignore evidence that was problematic for the prosecution while undertaking a higher standard of scrutiny to the appellant’s evidence. It was incumbent upon the trial judge to carefully scrutinize the complainant’s evidence, the substance of the prosecution’s case, respecting inconsistencies and improbabilities which could not be considered collateral or incidental. However, the court failed to adequately address, reconcile or resolve fundamental contradictions and defects in the evidence relied upon by the Crown:

(1) the improbability of the appellant pinching and kissing the complainant’s cheek with P. seated only a few feet away with the court inexplicably dismissing that circumstance on the basis that the majority of the alleged assaultive behaviour occurred after P. left the classroom

(2) with P. having no recall of the complainant being told to sit down and remain in the classroom after she first stood up to hand in her test paper, this contradiction and the import of an “absence of confirmation” had to be analyzed and resolved

(3) the complainant’s allegations were inconsistent and became more aggravated over time with additions over successive accounts of events – the court “failed to address” these issues.

81Turning to the third ground of appeal, it was submitted that good character evidence is often one of the few avenues available to a criminal defendant to defend himself. The appellant acknowledged the ratio of the Profit decision holding that character evidence should be afforded little weight when considering the propensity of persons in positions of trust to commit sexual abuse in circumstances shrouded by secrecy. It was submitted that the decision’s reasoning was inapplicable in this case as not all that was alleged in the prosecution case occurred in private – P. was present for a time, the classroom door was open with the potential for others to enter, and the classroom had windows facing the parking lot. Alternatively, if the principle in Profit was applicable, the trial judge erred in its interpretation of that judgment by conflating the propensity and credibility prongs of the good character analysis to afford no weight to either. It was accordingly submitted that the court erred in ignoring the probative value of the good character evidence in support of the appellant’s credibility generally.

On Appeal – The Crown

82As to the first ground of appeal, the Crown submitted that the impugned passage of the trial judge’s reasons, properly interpreted, was intended to convey the court’s view that relevant to assessment of the appellant’s credibility was the failure of the defence to cross-examine the complainant to give her a real opportunity to respond to what would become the defence position regarding the hallway conversation. While the court may not have used the best wording, and while it may have been preferable to have expressly raised the issue during closing submissions, the court had a discretion to take this approach on Browne v. Dunn principles. The suggestion in cross-examination of the complainant of the circumstances of what was said and by whom was fundamentally different and misleading when contrasted with the appellant’s testimony on the point where he attributed to the complainant raising the notion of “secret”. It was further submitted that in the absence of a claim of ineffective assistance of counsel, the defence cannot now resile from what may have been a tactical decision as to how to cross-examine the complainant. In any event, it was argued there was no substantial wrong or miscarriage of justice occasioned by the trial judge’s approach – the court identified an inconsistency in the “defence” position not within the appellant’s own testimony and the court otherwise amply supported its adverse credibility findings respecting the appellant.

83Turning to ground #2, the Crown submitted that there is no merit in the soup of alleged errors (misapprehension of evidence, failure to consider relevant evidence, insufficient reasons, unreasonable verdict, unfair differential assessment of prosecution and defence evidence, etc.) advanced by the appellant. This court is in effect being asked to retry the case on what is essentially a disagreement with the trial judge’s findings of fact. Contrary to the appellant’s position, the trial court’s reasons for judgment were diligent and balanced. A trial judge is not obliged to address every piece of evidence, inference or argument which may assist the defence. The trial judge fully considered the significance of the complainant’s assertion of sexual contact with P. in the classroom in the context of the relevant evidence including that student’s location in the room and the volume of the appellant’s voice as described by the complainant. On the point of the complainant being directed to take her seat and to remain in the classroom after she stood to hand in her paper, along with P.’s evidence of not seeing or hearing anything in this regard, it was submitted that the trial judge was not obligated to reconcile this evidence. She was not asked to do so by any of the closing submissions. Finally, the defence assertion of an evolving fabricated version of events by the complainant was more than adequately analyzed over several pages of the court’s reasons for judgment.

84As to the alleged errors respecting the good character evidence, it was submitted that the trial court properly took into account that with sexual misconduct generally occurring in private it will not be reflected in a person’s reputation in the community of the accused for morality. The trial court did not err in concluding that the factual circumstances of Friday, May 29, 2009 in the appellant’s classroom amounted to a situation of privacy. As well, where as in this case there are no credibility issues apart from the central sexual assault allegations, the two purposes for the admissibility of good character evidence, propensity and credibility, “are largely inseparable”. At the end of the day, the character evidence was inconsistent with the appellant’s own admission of giving unfair help to the complainant on her math test and then wanting to keep it secret. Given the extensive reasons for finding the appellant to be an incredible witness, the character evidence could be of little significance to the court’s ultimate conclusions.

ANALYSIS

Ground #1 – Whether Counsel’s Question Treated as Evidence

General Principles

85Juries are routinely instructed that the contents of a question of counsel to a witness are not evidence unless the witness agrees with the suggestion or proposition in the question: R. v. Zebedee (2006), 2006 22099 (ON CA), 211 C.C.C. (3d) 199 (Ont. C.A.), at paras. 113-4 (leave to appeal refused, [2000] S.C.C.A. No. 461). The evidentiary rule is of course the same for judge-alone trials.

86The rule in Browne v. Dunn (1893), 1893 65 (FOREP), 6 R. 67 (H.L.) is designed to provide fairness to witnesses and to parties in a trial: R. v. Giroux (2006), 2006 10736 (ON CA), 207 C.C.C. (3d) 512 (Ont. C.A.), at para. 42. In general terms, the rule anticipates that notice will be given to a witness on a material or significant factual point when the opposing party will seek to impeach that witness by subsequently leading evidence on the point. In other words, the cross-examiner ought to question the adversary’s witness to allow an opportunity for him or her to respond or to give an explanation.

87Failure to examine a principal witness in these circumstances (for example, a complainant) may result in the trier of fact affording less weight to the evidence of the subsequent witness on the relevant point thus impacting on the credibility assessment of that witness (for example, an accused): see R. v. Paris (2000), 2000 17031 (ON CA), 150 C.C.C. (3d) 162 (Ont. C.A.), at para. 22; R. v. Marshall (2005), 2005 30051 (ON CA), 77 O.R. (3d) 81 (C.A.), at para. 64.

88The extent of the application of the Browne v. Dunn principle is within the discretion of the presiding trial judge and is very much dependant on the factual circumstances of a particular case: R. v. Lyttle (2004), 2004 SCC 5, 180 C.C.C. (3d) 476 (S.C.C.), at p. 493; R. v. Blea, 2012 ABCA 41, at para. 35.

Discussion

89In cross-examination of the complainant, the suggestion was put to the witness that this 19-word exchange occurred in the school hallway after the appellant summoned her to return to speak to him:

Appellant: “Remember, you can’t tell anybody that I helped you on the test.

Complainant: Yah, yah, I know it’s our secret”.

The complainant disagreed with defence counsel’s suggestion, responding that their conversation was:

Appellant: “It’s our secret.

Complainant: Okay.”

90The complainant’s evidence in this regard was consistent with her June 1, 2009 hand-written statement at the school and her videotaped interview with the police the same day. Accordingly, the defence had pre-trial disclosure of what the complainant’s trial evidence was likely to be.

91Then, in his evidence, the appellant testified that the hallway conversation was in these terms:

Appellant: “Remember …

Complainant: Yah, yah, I know, it’s a secret that you helped me.”

This version of the conversation was not put to the complainant when she testified.

92The appellant was cross-examined by Crown counsel who played part of the school surveillance video for the witness and who suggested that the time period during which the appellant was bent toward his student in the hallway was less than two seconds. The appellant disagreed stating that it was for “a few seconds”. The import of the prosecutor’s examination was that insufficient time existed for twelve (12) words to have been spoken as represented by the appellant’s rendition of their conversation as opposed to the four (4) words described in the complainant’s evidence.

93Accordingly, the appellant’s testimony not only significantly reduced the number of words spoken below the suggested conversation put before the complainant in cross-examination but also transferred the idea of no one being told (“you can’t tell anybody”) as first emanating from the complainant (“it’s a secret”).

94The passage from the trial judge’s reasons for judgment quoted above at para. 52 is within a section of the judgment commencing at p. 14, “The hallway evidence”. Although the trial judge actually misquoted defence counsel’s cross-examination question (exact quote of question at para. 51 above), this appears to be of no moment. The trial judge characterized the difference between the question put to the complainant in cross-examination and the version first revealed in the appellant’s in-chief testimony as “a major internal inconsistency within the defence” as to the hallway conversation and the “accurate evidence … put to [the complainant] for her comment”.

95Both counsel on appeal agreed that the impugned passage in the reasons is awkwardly worded. The appellant advances an interpretation that the trial court erroneously compared a non-evidentiary source (the content of defence counsel’s cross-examination question) to an admissible evidentiary source (the appellant’s testimony) to identify a contradiction then assuming that first source was the accurate one and not the appellant’s trial evidence. The Crown, on the other hand, submitted that the trial judge is presumed to know the law and that the proper interpretation is that the court is saying that there is an inconsistency within “the defence”, not within the evidence itself and that, fairly read and understood, the reasons misspeak the court’s real intention by not saying “what evidence, [in]accurate evidence”, was suggested to the complainant for her comment – essentially an appropriate Browne v. Dunn comment.

96There is a case to be made for either interpretation. Given the ambiguity in the court’s language, I am prepared to consider the matter on the basis advanced by Mr. Humphrey in his argument. The appellant’s position most closely aligns with the ordinary and natural meaning of the words spoken by the court. That said, I am not satisfied that the error standing alone was consequential in terms of the impact upon the result. In the end, the error was harmless having regard to the failure at trial to put the appellant’s final position regarding the hallway conversation to the complainant, and the overall detailed and supportable conclusions of the trial court respecting the credibility of the principal witnesses. It cannot reasonably be said that the verdict might have been different but for the legal misdirection.

Ground #2

General Principles

97There was no real dispute between the parties relating to the parameters of legitimate review by the summary conviction appeal court including the following:

(1) in determining whether a verdict is unreasonable or unsupported by the evidence, one a properly instructed trier of fact acting judicially could reasonably have rendered, the appeal court is required to review, analyze and within limits weigh the evidence in the entirety of trial record: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36 – an appellate court may also find a verdict unreasonable if the trial judge has drawn an inference or made a finding of fact essential to the verdict that (1) is plainly contradicted by the evidence relied on by the trial judge in support of that inference or finding, or (2) is shown to be incompatible with evidence that has not otherwise been contradicted or rejected by the trial judge: R. v. R.P., 2012 SCC 22, at para. 9 – a verdict is not necessarily unreasonable simply because the trial judge has made errors in his or her analysis or expresses a misstatement of evidence: R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, at para. 58; R. v. T.T., 2009 ONCA 613, at para. 33

(2) this court’s review is obliged to recognize the trial judge’s inestimable advantage of having heard and seen the witnesses: R.P., at para. 17; Biniaris, at para. 36; R. v. Watson, [1998] O.J. No. 1491 (C.A.) (QL), at para. 1 – this provides the trial judge a singular advantage in assessing credibility: R. v. C.L.Y. (2008), 2008 SCC 2, 227 C.C.C. (3d) 129 (S.C.C.), at para. 21; R. v. Cloutier (2011), 2011 ONCA 484, 272 C.C.C. (3d) 291 (Ont. C.A.), at para. 86

(3) whether a witness is credible is a question of fact: R.P., at paras. 10-11 – appellate courts may not interfere with the findings of fact made and the factual inferences drawn by a trial judge unless they are clearly wrong, unsupported by the evidence or otherwise unreasonable: R. v. Clark, 2005 SCC 2, [2005] 1 S.C.R. 6, at para. 9

(4) the functional objectives of giving reasons in a judge alone trial will generally be fulfilled if the court’s decision reveals what the court decided and why: R. v. M.(R.E.) (2008), 2008 SCC 51, 235 C.C.C. (3d) 290 (S.C.C.), at para. 17 – reasons do not need to meet a standard of perfection: R. v. H.S.B., 2008 SCC 52, [2008] 3 S.C.R. 32, at para. 2

(5) because reasons for judgment are expected to be responsive to the live issues in the case (R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245, at para. 20), simply reciting the evidence and stating a conclusion will generally be inadequate: Northwestern Utilities et al v. Edmonton (City), [1997] 1 S.C.R. 684, at p. 706

(6) where credibility determinations are essential to resolution of the case, a court’s reasons must sufficiently articulate how credibility concerns were resolved: R. v. Dinardo (2008), 2008 SCC 24, 231 C.C.C. (3d) 177 (S.C.C.), at paras. 2, 26; R. v. Braich, 2002 SCC 27, [2002] 1 S.C.R. 903, at para. 23 – in some cases, the failure to explain or to justify a credibility finding may disentitle a trial judge to the appellate deference ordinarily accorded such findings: R. v. Y.M. (2004), 2004 39045 (ON CA), 71 O.R. (3d) 388 (C.A.), at para. 20 (leave to appeal refused, [2004] S.C.C.A. No. 340); Dinardo, at para. 26

(7) more detail may be required in reasons where the trier is required “to resolve … contradictory evidence on a key issue”: M.(R.E.), para 44; Dinardo at para. 27; R. v. D.R., 1996 207 (SCC), [1996] 2 S.C.R. 291, at paras. 53-5; R. v. Wadforth (2009), 2009 ONCA 716, 247 C.C.C. (3d) 466 (Ont. C.A.), at paras. 65, 67, 72 – where the evidence is contradictory, “the appellate court should ask whether the trial judge appears to have recognized and dealt with the contradictions”: M.(R.E.), at para. 55 – “[f]indings on credibility must be made with regard to the other evidence in the case, thus the need to make at least some reference to the contradictory evidence”: Wadforth, at para. 67 – it is incumbent on the decision-maker “to explain, even in succinct terms, how he [or she] resolved … difficulties” in a witness’ testimony “to reach a verdict”: Dinardo, at paras. 29, 34

(8) a trial judge owes it to an accused to explain why he or she was convicted including a discernible explanation as to why the accused’s evidence was rejected: R. v. J.J.R.D. (2006), 2006 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.), at paras. 35-6, 38-9

(9) in R. v. Newton (2006), 29 M.V.R. (5th) 11 (Ont. C.A.), at para. 3, the court stated:

Attacks on the adequacy of trial judges’ reasons have become routine on appeals in criminal matters. Many of these challenges proceed on the premise that if counsel for the appellant can point to any piece of evidence that may have assisted the accused, or any inference that may have assisted the accused, or any legal argument that may have assisted the accused which was not specifically alluded to by the trial judge, it follows that the reasons are inadequate. This premise could not be more wrong. Reasons for judgment must clearly tell the losing party why he or she lost and must provide for meaningful review. If those ends are not met, any shortcomings in the reasons are not per se cause for reversal.

and in giving reasons for judgment a trial judge is not obligated to review every piece of evidence (Watson, at para. 3; R. v. Nazim, 2010 ONCA 475, at para. 1; R. v. B.S.M., [2003] O.J. No. 2452 (C.A.)(QL), at para. 13) or to “detail his or her finding on each piece of evidence or controverted fact”: (M.(R.E.), at para. 20) or to “answer each and every argument made by counsel in reasons for judgment” (Newton, at para. 4; Dinardo, at para. 30) or to review every inconsistency (Cloutier, at para. 105; R. v. Lihou, [2006] O.J. No. 3710 (C.A.) (QL), at para. 1) as a trial judge has a discretion to identify and deal with those inconsistencies which he or she considers to be particularly significant: R. v. F.W.T. (2001), 2001 24128 (ON CA), 151 C.C.C. (3d) 50 (Ont. C.A.), at para. 37

(10) reasons for judgment evidencing a misapprehension of evidence may lead to reversible error – a misapprehension of evidence may relate to a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to evidence: C.L.Y., at para. 19; R. v. Bains, 2012 ONCA 305, at paras. 11-15; Cloutier, at para. 60; R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 538 – this is “a stringent standard” as the misapprehension of evidence “must go to the substance rather than to the detail” of the matter in the sense that it must be material rather than peripheral to the reasoning of the trial judge: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2; R. v. Iamkhong, 2009 ONCA 478, at paras. 48-9 – it “does not amount to a misapprehension of the evidence to make an adverse determination in respect of the appellant’s credibility”: R. v. Horavitch, 2008 ONCA 296, at para. 5

(11) in order to further the objectives of giving reasons as well as the appearance of justice, a trial court is expected to engage in even-handed treatment of the evidence adduced by the Crown and the defence, not a higher standard of scrutiny upon defence evidence - as recognized in R. v. Howe (2005), 2005 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59, this argument or some variation on it is common on appeals from conviction in judge alone trials where the verdict is determined largely on the trial court’s credibility assessments of the accused and a complainant:

This is a difficult argument to make successfully. It is not enough to show that a different trial judge could have reached a different credibility assessment, or that the trial judge failed to say something that he could have said in assessing the respective credibility of the complainant and the accused, or that he failed to expressly set out legal principles relevant to that credibility assessment. To succeed in this kind of argument, the appellant must point to something in the reasons of the trial judge or perhaps elsewhere in the record that make it clear that the trial judge had applied different standards in assessing the evidence of the appellant and the complainant.

see also R. v. C.M., 2010 ONCA 55, at para. 3; R. v. J.G.R., 2009 ONCA 116, at para. 12: F.W.T., at paras. 23-4 – where the court is entirely uncritical of a complainant’s evidence including implausibilities and inconsistencies while subjecting an accused’s evidence to searching scrutiny, the court may in effect be tilting the balance of proof: see R. v. Gostick (1999), 1999 3125 (ON CA), 137 C.C.C. (3d) 53 (Ont. C.A.), at paras. 12-6, 19; T.T., at para. 28.

Discussion

98The experienced trial judge had the advantage of seeing and hearing the witnesses. She received extensive oral submissions from counsel. She did not issue an ex tempore judgment electing to reserve judgment to write reasons with the benefit of her bench book, transcripts of the trial evidence and considered deliberation.

99Having read and re-read many times the trial judge’s reasons for judgment in the context of the evidence at trial and the position of the defence in closing submissions, I am unable to conclude that the reasons are inadequate, that the defence and prosecution cases were differentially analyzed, that material inconsistencies or improbabilities were overlooked or inadequately considered, that the reasons as a whole were legally insufficient, or that the verdict itself was unreasonable.

100At trial, the appellant claimed to have no special interest in the complainant. However, quite apart from the evidence of the prosecution witnesses and the school surveillance videotape, on his own testimony, the appellant:

(1) gave the complainant, who he knew to be shy and reserved, help during math test #6 and asked her not to tell others that he had done so

(2) gave the complainant help on the May 29, 2009 test including showing her a “final answer” and at another point giving her what was described as “a significant” or “pretty strong” hint leading to the complainant also getting that answer right

(3) agreed that the help he gave the complainant on math tests was beyond that given by him to any other student and that it could be considered “unfair”

(4) granted the complainant what was nearly a one-hour, exceptional extension past the end of the school day to complete a math test ultimately leaving her as the sole remaining student in the classroom on a Friday afternoon

(5) at that time, was alone with a female student for 12 to 13 minutes in a classroom and, for some of that time, at a location in the room not proximate to the windows and not directly visible from the classroom door

(6) at that time, touched his female student by holding her head at the temples for a reason he could not explain while saying that he loved her and her friends

(7) despite giving help to the complainant on math test #’s 6 and 7 in front of the class, the appellant’s position was that his purpose in speaking to her in the hallway was only to request that she not tell others about the help.

101The real evidence, the school surveillance videotape, a source of evidence not dependant on the reliability of any witness’ evidence, may be inferred to be at odds with aspects of the appellant’s evidence, establishing as it does that:

(1) the appellant’s classroom door was not open during the test prior to the 2:55 p.m. bell and was, at times thereafter, closed including by the appellant

(2) after 3:21 p.m., the only students remaining in the classroom were P. and the complainant with the complainant being the only student there between 3:41 and 3:53 p.m.

(3) commencing at 3:28 p.m. until 3:53 p.m., a single janitor, not a pair of janitors, was working in the long hallway where the appellant’s classroom was situated

(4) at no point is a motorized vacuum or floor polisher visible – the janitor was dry-mopping both the hallway and the classroom floors

(5) when, on the appellant’s evidence, he spoke in a low voice to the complainant in the hallway the janitor’s trolley was clearly visible a few feet away raising the inference that the janitor was nearby

(6) the recorded time during which the appellant is bent down to the complainant’s face speaking to her was exceedingly brief.

102Over a number of pages of her decision, the trial judge evaluated the appellant’s evidence. She found it to have been a contrivance – not credible in content or presentation. Her conclusion rested on a number of specific examples drawn from the evidence, improbabilities in Mr. M.’s testimony as well as the at-times evasive nature of his testimonial responses. The court found the appellant’s evidence was unworthy of belief and did not, on the whole of the record, raise a reasonable doubt. It cannot be said that this amounted to an unreasonable or unsupported conclusion.

103The trial judge did not engage in unfairly disproportionate scrutiny of the defence evidence compared to the approach taken with the prosecution evidence. Spending a near equal amount of the reasons dealing with the complainant’s evidence, the trial judge analyzed a number of relevant issues, drew inferences and conclusions and explained her reasoning process. For example, the court considered the complainant’s uncertainty in how she came to commence her disclosure to her friends on June 1, 2009, the inconsistency in the evidence as to whether she prepared a written statement at the request of the chaplain or the school administrators, the impact if any of a movie she viewed, motive to fabricate, the potential for the complainant to have misinterpreted any actions or statements of her teacher, the risk of exposure or detection with persons remaining in the school at the relevant time, the “tried” to kiss issue, and the delay in making a complaint.

104Turning to the three specific examples raised by the appellant, I am unable to agree that error has been established on the part of the trial judge.

105First, as to the improbability of the appellant engaging in sexual contact with the complainant while P. was seated just ahead of her in the math classroom, the trial judge expressly analyzed this issue at pp. 2 and 34-5 of her reasons. The trial court, entitled to believe some, none or all of a witness’ evidence, was within its authority to conclude that any implausibility relating to this issue did not in fact diminish the complainant’s evidence as to what transpired after P. left the room.

106As to the second issue of whether the complainant was directed to return to her desk and to sit down at a point when P. was still in the room, the complainant said this occurred, P. did not see or hear this as he worked on his own test paper, and the appellant denied that he gave any such direction. The trial court found as a fact that P. was engaged in concentrating and working on his test trying to finish. Despite the appellant’s subsequent denial, in earlier cross-examination of the complainant at trial, the defence suggested the event did occur:

Q. But, at that point, shortly around dismissal time I’m going to suggest, Mr. M. said that he wanted you to sit back down and try again?

A. Yes.

In closing submissions, experienced defence counsel did not submit that the trial court ought to consider or reconcile this evidence.

107As to the final point, a submitted inadequate consideration of what was described as an evolving and ever-more aggravating account of what transpired on the part of the complainant, I am not persuaded that any criticism can justifiably be accepted as to the manner in which the court addressed this issue. At pages 27 to 33 of her reasons, the trial judge expressly dealt with a number of the additions and increased detail in the version of events described over the span of a few hours. In her evidence, the complainant did not suggest that on June 1, 2009 she attempted to, or indeed did, give the same detail across her lunchtime disclosure, written statement, discussion with the chaplain and then school administrators, and finally in her videotaped statement. Indeed, in her videotaped statement, the complainant stated that she provided her friends “[n]ot that much” detail and “not all” was told to the chaplain. The complainant was upset. She “elaborated” with the administrators and then gave her most detailed statement to the police. Throughout, there was a consistency about the appellant kissing her. In a lengthy interview alone with a female police officer directing her to give the “entire picture”, the complainant gave a detailed account including with demonstrations of how she was touched when seated and standing – disclosure quite consistent with her trial testimony. The trial judge, as she was reasonably entitled to do, concluded that the core of the complainant’s story was credible and the addition of details was acceptably explained by the witness and not fabrication.

108The trial judge’s reasons reveal that she was aware of flaws, deficiencies or limitations in the complainant’s evidence. She dealt with many of them. She was not obliged to deal with them all. The trial judge’s reported assessment of the credibility of the complainant’s one day of testimony was objectively reasonable. Credibility findings respecting the appellant and the complainant not in accord with the views of the defence do not thereby become unreasonable or ill-considered. There is no suggestion, nor could there reasonably be, that the trial judge did not carefully adhere to the W.D. framework of reasoning. Ultimately, the trial judge concluded that the appellant gave the complainant something extra or special in order to take something extra or special.

Ground #3 – Attaching No Weight to Character Evidence

General Principles

109An accused may introduce good character evidence at trial by calling witnesses to speak to this issue. Such evidence, on the basis of a common law exception in favour of the accused to the general rule excluding evidence of propensity, is confined to evidence of general reputation within the community with respect to the relevant trait or traits: R. v. Mohan (1994), 1994 80 (SCC), 89 C.C.C. (3d) 402 (S.C.C.), at para. 31; R. v. Béland, 1987 27 (SCC), [1987] 2 S.C.R. 398, at pp. 412-4; R. v. McNamara (1981), 1981 3120 (ON CA), 56 C.C.C. (2d) 193 (Ont. C.A.), at pp. 348-50 (aff’d, 1985 32 (SCC), [1985] 1 S.C.R. 662); R. v. W.A.A. (1997), 1996 3087 (MB CA), 112 C.C.C. (3d) 83 (Man. C.A.), at para. 20; B. Heller and H.C. Rubel, “The Use of Character Evidence at Trial” (1987-88), 30 C.L.Q. 320, at pp. 322-4.

110Where good character evidence is properly admitted, it may be capable of supporting the accused’s credibility and may circumstantially enhance the improbability that he or she committed the offence(s) charged: R. v. Charlebois, 2000 SCC 53, [2000] 2 S.C.R. 674, at para. 29; R. v. F.E.E., 2011 ONCA 783, at para. 67; R. v. Dees (1978), 1978 2269 (ON CA), 40 C.C.C. (2d) 58 (Ont. C.A.), at p. 65.

111In appropriate cases, good character evidence may be sufficient of itself to raise a reasonable doubt: R. v. Smith (2001), 2001 20968 (ON CA), 161 C.C.C. (3d) 1 (Ont. C.A.), at paras. 99-101.

112The personal opinion of a witness is not evidence of general reputation for a particular trait: R. v. Close (1983), 1982 1914 (ON CA), 68 C.C.C. (2d) 105 (Ont. C.A.), at pp. 112-3.

113In R. v. Profit, 1993 78 (SCC), [1993] 3 S.C.R. 637, at pp. 637-8, the court held that as a matter of common sense, a trial judge may take into account in sexual assault cases involving children that sexual misconduct occurs in private and in most cases will not be reflected in the reputation in the community of the accused for morality.

114On occasion, the purposes for which character evidence is introduced, improbability and credibility, may be “inextricably interwoven” with one another: R. v. Flis (2006), 2006 3263 (ON CA), 205 C.C.C. (3d) 384 (Ont. C.A.), at p. 397 (leave to appeal refused, [2006] S.C.C.A. No. 120). For example, in R. v. R.B., 2005 30693 (ON CA), [2005] O.J. No. 3575 (C.A.) (QL), at paras. 27-8, the court stated:

The trial judge went on to tell the jury - in accordance with R. v. Profit, 1993 78 (SCC), [1993] 3 S.C.R. 637, 85 C.C.C. (3d) 232 at 248 (S.C.C.) - "because sexual offences primarily take place in private, they are often not reflected in a person's reputation in the community".

The appellant's real complaint is that the trial judge did not also tell the jury that, though the propensity value of character evidence may be diminished in sexual misconduct cases, the credibility value of character evidence is not so diminished. I am not persuaded that this instruction was called for. Defence counsel did not ask for it. There were no credibility issues in this case apart from the central sexual assault allegations. Thus, the two purposes for which good character evidence is admissible were largely inseparable. Regardless, the trial judge's charge was adequate.

115In a particular case, a question may arise as to the applicability of the common sense observation in Profit, for example, where it might be said that most of the sexual conduct described at trial occurred in public places: R. v. Strong, [2001] O.J. No. 1362 (C.A.) (QL), at para. 10; R. v. Lizzi (1996), 1996 21269 (ON SC), 2 C.R. (5th) 95 (Ont. Ct. Gen. Div.), at pp. 99-100.

116J. Sopinka, S.N. Lederman, and A.W. Bryant, The Law of Evidence in Canada (2nd ed.) (Toronto: Butterworths, 1999), at § 10.35 state:

The following is the appropriate form for questions concerning reputation:

Q. 1 Do you know the accused?

Q. 2 How long have you known him or her?

Q. 3 In what circumstances have you known him or her: (Witness must identify the community, i.e., work place, church, neighbourhood, etc.)

Q. 4 Do you know his or her reputation for (identify relevant character trait)?

Q. 5 Please describe that reputation.

117Evidence of witnesses called by the defence, whether described as character or simply circumstantial evidence, that the accused did not engage in sexual relations with other young females “is of virtually no probative value”: F.W.T., at paras. 44-51.

Discussion

118Some aspects of the good character evidence were problematic. Defence counsel did not clearly identify the contours or size of the community about which the character witnesses purported to speak. Counsel questioned the witnesses as to whether they received complaints about the appellant. Counsel led his own witnesses in re-examination. The witnesses were surprised to learn that the appellant showed a student an answer during a math test.

119In closing submissions, defence counsel described the appellant as “by reputation … an excellent individual” about whom there had been no complaints. He had a reputation for honesty and integrity. Because the alleged events occurred in a location where “the public has access”, there could be no limitation on the use to which the good character evidence could be put.

120Privacy is a relative and contextual concept. The trial judge concluded that it was appropriate to consider that the alleged events took place in relative private with a minimal risk of discovery. There was a reasonable basis for her conclusion considering the following circumstances:

(1) most of the alleged sexual misconduct occurred when the appellant and the complainant were alone in the classroom

(2) the area of the complainant’s desk, the scene of the alleged events, was at the back of the room furthest from the windows and incapable of being seen by looking through the classroom door

(3) it was a Friday afternoon – by 3:15 p.m., the hallway was virtually deserted – the complainant was alone with the appellant from 3:41 to 3:53 p.m., long after the final class period ended

(4) the extraordinary extension granted to the complainant to complete her math test, almost an hour after the final bell, left the appellant alone with the complainant

(5) contrary to the appellant’s evidence about the open classroom door, and the submissions of defence counsel at trial about an open door to a public classroom, the door was closed prior to 2:55 p.m., left open by students with the appellant again closing the door at 2:59 p.m., the door was again left open at 3:16 p.m. but closed between 3:29 and 3:41 p.m.

121Considering the problematic aspects of the character evidence, the lack of credibility issues apart from those relating to the alleged sexual assault transaction, and the extensive reasons and support for the court’s disbelief of the appellant, I am unable to say that the trial court’s treatment of the good character evidence amounted to reversible error.

CONCLUSION

122Despite the very able submissions of Mr. Humphrey, the appeal is dismissed.

123If voluntary arrangements cannot be made for the appellant’s surrender to serve the remainder of his sentence, compulsory process will issue at the request of the Crown.

HILL J.