COURT FILE: CRIMJ(P) 640/14

DATE: 2015 12 11

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

A. J. Mathurin, for the Crown

• and -

W.B.

A. Bhangal, for the Defence

HEARD: October 26-29, 2015 at Brampton

REASONS FOR JUDGMENT

HILL J.

INTRODUCTION

[1] At trial, the complainant (A.C.) testified that when she was aged 6 and 7 years of age she was sexually touched by the accused who was a lunch monitor at her school in Mississauga (S[…] School). The time period of the alleged sexual misconduct is September 2012 to later November 2013.

[2] A.C. also testified that on one occasion during an overnight sleepover at the accused’s residence, the accused sexually assaulted her.

[3] In his testimony, W.B. denied any sexual impropriety with the complainant.

[4] As a 9-year-old, A.C. testified by closed circuit TV from a child-friendly room where she was seated in the presence of a support person. At trial, with A.C. adopting the contents of her December 3, 2013 videotaped statement to the police as true, the statement was admitted for the truth of its contents pursuant to s. 715.1 of the Criminal Code.

FACTUAL OVERVIEW

The Alleged School Incidents

Complainant’s Video Statement

[5] A.C. informed the police that she had been inappropriately touched in grades 1 and 2 always in the same classroom (Ex. #2 Classroom F). The alleged touching was over and under A.C’s underwear.

[6] In grade 1, the touching was “almost” every day.

[7] In her video statement, A.C. indicated that she was touched each school day commencing in September of her grade 2 school year with the exception of the Thursday and Friday before she gave her statement (November 28 and 29, 2013).

[8] In her Tuesday, December 3, 2013 videotaped statement to the police, A.C. stated that when she would go into the hallway of the school portapak during lunchtime, the accused, who was supposed to be looking after classes, would take her to a classroom and touch “her privates everywhere” and, in the complainant’s words, “I don’t like it”. More specifically, when she would venture into the hallway “to say hi”, or to go to the washroom or to look outside through a window, the accused would “grab” her by the hand at the 12:00 lunchtime and lead her to an empty classroom which was “pitch dark”.

[9] In her statement, A.C. described what is alleged to have occurred in the classroom:

And I tried telling him that because he, ‘cause um he goes through it and I try to lean back and forth and all these, and side to side, and I didn’t like it ‘cause I can’t get out. ‘Cause he hugs me to stay.

Um, well he touches my, he puts his hand down my pants…

…and he touches them there, or he touches my back.

And my butt and he, and yeah.

Um, he says do you like it? And um I’m so scared I sometimes I say yes but I’m so scared and he kisses me on the lips too.

And sometimes he does it with his privates to mine, so he’s like, do you know what twerking is?

Well it’s where his, where he uses his privates and he’s like that (demonstrates jerking motion with groin area).

Well when he does like that, it kind of, it scares me a little bit so I, and when he says yes um like at this goes on, the, the timing was like a couple of minutes or seconds. And um, and I don’t like it because it’s kind, ‘cause he’s not my dad or my mom or anything.

…W.B. just twerks ‘cause I think he loves me.

Well twerking is his privates, he’s using his privates to do mine.

But he uses his hand to touch his, so he grabs my hand and he makes, he does this to my hand (demonstrates pressing open fisted hand against groin area). So he grabs my hand and he, and he makes me touch his privates, but I try pulling my hand away but he, he, he still does it.

[10] In her videotaped statement, the complainant also spoke about the proximity of other persons when she was being touched:

…and my teacher’s not there and no kids see this nothing like that. But he just tells them to go inside [their classroom] if they’re out there [in the hall].

Trial Testimony – Grade 1

[11] In her in-chief testimony at trial, A.C. informed the court that the school lunch period for grades 1 and 2 began at noon with the first half hour in a classroom eating lunch and from 12:30 p.m. to 1:00 an outside recess time in the schoolyard weather permitting. The complainant also stated that the first half of the lunch period was 20 minutes in the classroom and 10 minutes in the hall “when the whole story takes place”.

[12] To A.C’s recall, there were 19 or 20 fellow classmates in her grade 1 class. Lunch was eaten in her regular classroom (classroom A). In the portapak school hallway, the accused was the lunch monitor for three classes.

[13] A.C. testified that she would go into the hallway after eating her lunch to say “hi” to the accused, to go to the bathroom in a pairing as only two students at a time, not one, were allowed to go further down the hall to the washroom. A.C. testified that sometimes she would enter the hall to look out the glass of the doors at the end of the portapak hallway. Later in her evidence, A.C. stated that she only did this in grade 2.

[14] To A.C.’s recall, the accused was responsible at lunch for four classrooms (A, B, C and D) each with about 19 or 20 students.

[15] Asked whether anyone else was in the hallway when she was there, A.C. testified that the classroom teachers ate in the teachers’ lounge or lunchroom at the front of the school. She did not see Ms. R.G., one of the teachers, in the hallway during lunch period. A.C. testified in-chief that she was unsure where her grade 1 science teacher, Ms. C.W., ate her lunch. A.C. did not see her in the hallway at any point during the lunch period. In cross-examination, A.C. denied that in her grade 1 year Ms. C.W. ate her lunch three to four days a week in her classroom (classroom D). “Sometimes” there were other kids in the hallway. The complainant recalled that the accused would remove misbehaving students from classrooms and put them in the hall to eat their lunch. On A.C.’s evidence, these pupils would remain in the hall “until the end of the lunch period”, also described as “for the entire lunch period”.

[16] As well, sometimes other kids, along with her, followed the accused about the hall. A.C. testified in-chief that the accused would direct the others, but not her, to get back in their classrooms. To A.C.’s recall, at times, a student teacher might be eating his or her lunch in a classroom in the portapak corridor. Also, students would obtain the accused’s permission to use a hallway drinking fountain starting before 12:10.

[17] Under cross-examination, A.C. testified that Ms. R.G., her kindergarten teacher, did not periodically visit A.C.’s grade 1 classroom during the lunch period to see her former students. To the complainant’s recall, her former teacher might come by later in the afternoon.

[18] A.C. recalled a chess club meeting in classroom E during some months of the school year. Rather than going outside for the latter part of the lunch period, club members stayed inside playing chess at 12:20. She had no recall of the teacher responsible for the chess club arriving prior to the outside recess bell to set up the chess boards and pieces. It was A.C.’s belief that club members set up their own chess boards.

[19] In cross-examination, A.C. testified that at times kids would leave a classroom during lunch to go in search of the accused when he was dealing with a class in another classroom. Sometimes they were wandering about the hallway unable to find the accused because he was with her in classroom F. In A.C.’s words, “they didn’t get to us” as they knew no one would be in classroom F.

[20] A.C. testified that the accused wore a bright yellow and orange uniform or vest when on lunch duty monitoring the portapak classrooms. He was easy to spot in the hallway.

[21] On A.C.’s evidence, after the noon lunch bell, students left their classrooms and entered the hall to retrieve their lunches from the area of the coat hooks. This process lasted one or two minutes so that by about 12:02 students would commence eating back in their classrooms. A.C. agreed in her testimony that the accused would then be going from classroom to classroom helping kids open their food and water containers, as well as trying to calm kids down. Twice in her evidence A.C. recalled lunch-eating generally being from 12:02 to 12:10 p.m. after which kids would start seeking permission to visit the washroom. In re-examination, A.C. said she could not recall when lunch-eating was over. When travelling in groups of two or four to the washroom, students would pass a second lunch monitor further up the hall. That monitor would hurry kids along so that others could be released to use the washrooms.

[22] A.C. testified that there was about a 5-minute period of students packing up lunch items, changing footwear and getting ready in the hallway prior to the outdoor recess bell to go for the outside part of lunch period during which the accused was helping kids get dressed and with tying shoelaces. Initially under cross-examination, A.C. maintained that the students were not through with lunch and lining up at 12:20 getting ready to go outside. The complainant testified that there was time for the accused to take her to classroom F and touch her up until 12:30 p.m. Challenged with this preliminary inquiry evidence, A.C. became uncertain about the timing of the in-door lunch period:

Q. And you have about what 15 minutes to eat lunch? Do you remember?

A. I would say 20.

Q. Okay. So 20 minutes to eat lunch and after that you guys all go outside to have recess?

A. Yes.

Q. And in terms of Mr. W.B. touching you it’s during that 20 minutes that he would touch you, right?

A. Yes.

Q. Not, not after 12:20. Not after like recess starts?

A. No.

Subsequently, still in cross-examination, A.C. stated that the indoor lunch period ended at 12:20 p.m. but that some days everyone did not get outside until 12:25. In re-examination, A.C. stated that on some days it was 12:25 before all the students finally made it outside.

[23] In cross-examination, A.C. testified that when she went into the hall at lunch to say “hi” she never knew “if he was going to do it”. On occasions when she was alone at the doorway of classroom A asking to use the washroom, the accused would say “no” and take her by the hand the whole length of the portapak hallway to classroom F.

[24] In cross-examination, the complainant testified that when the accused was taking her to classroom F, they would pass the door of classroom E and be in the hall situated between classrooms E and F when he instructed other kids in the corridor to return to their classrooms. Also in cross-examination, the complainant stated that beginning in October 2012 of her grade 1 year, she was touched almost daily – 24 of 25 school days per month.

[25] In her in-chief testimony, A.C. variously described the time spent with the accused, when he took her into classroom F, as a few seconds, 30 seconds or a couple of minutes. In cross-examination, A.C. maintained that she was in classroom F with the accused at least 2 to 3 minutes on each occasion. The classroom lights were off and they were in “pitch dark” which was darker than dark. In cross-examination, counsel questioned A.C. about her testimony from the preliminary inquiry:

Q. And was it always pitch dark right from the first time that he started doing this back in October of Grade One, right to the….

A. Not always pitch dark.

Q. Usually pitch dark.

A. Yeah.

Q. Like usually meaning almost always, but a few wasn’t, is that?

A. Yes.

The complainant then agreed that about 10 days a month the blinds were up when she was taken to classroom F. She also agreed that light from the hallway came through the door of this classroom.

[26] In her evidence, A.C. stated that she struggled to move away so as not to be touched. In A.C.’s words, “I wanted to get out…because I didn’t like it at all”. She recalled the accused telling her to be quiet as someone might hear them and that it was a “secret” she should not tell anyone or he would be in trouble.

[27] A.C. testified that when she was taken to classroom F the classroom door remained half or wholly open. They were positioned at the “middle of the door” also described as “in front of the door” or “near the door”. The witness inconsistently marked their location on Exhibit #’s 5 and 7B.

[28] On A.C.’s evidence, when she left classroom F she would return to the classroom where her class ate lunch and act “normal”. Sometimes when she emerged from classroom F, there would be two or three kids in the hallway looking for the accused – this happened in grade 1 and 2 at a frequency of one or two days out of every five. According to A.C., when she left classroom F in grades 1 and 2 she would often see the female lunch monitor up the hallway with her bright yellow/orange vest.

[29] A.C. testified that when she was in grade 1 she told no one what was going on as she was really scared, she thought the touching would stop, and she knew no better.

[30] The 49-year-old accused informed the court that he has been in a long-term common law relationship and has two children, J.1 and J.2. After some years of working in sales, with his spouse having good employment at IBM, he assumed the role of a stay-at-home dad.

[31] The accused was first involved at the S[…] school as a volunteer when J.1 was in senior kindergarten with Ms. R.G. as her teacher. When his daughter was in grades 1 and 2, he took on a paid position as a lunch monitor. There was no training for the position. He wore a bright orange and yellow vest. He supervised the indoor lunch period from noon to 12:20 and then had yard duty for the remainder of the lunch period from 12:20 until afternoon classes commenced.

[32] The accused testified that the school principal spoke to him about school rules and policy including not hugging the kids and never leaving students alone. In cross-examination, the accused changed ʹno huggingʹ to ʹno touchingʹ.

[33] The accused testified that when J.1 and A.C. were in grade 1 in the 2012-13 school year, he had lunch-time responsibility for four classrooms – Ms. S.’s classroom A, Ms. B.’ classroom B, Ms. A.’s classroom C and Ms. C.W.’s classroom D. Each of the classrooms has windows as well as window glass in the classroom door. To the accused’s recall, this involved monitoring close to 80 students.

[34] In terms of the lunch period schedule, the accused informed the court that a lunch bell rang at noon. Students then emptied from their classrooms to the hall to get their lunches. Milk cartons were also distributed for those enrolled in the school milk program. This phase took at least 2 to 3 minutes before students were back in their classrooms eating lunch. According to the accused, he helped some kids in each classroom with their lunch and liquid containers for at least a 5-minute period. This was also a time of chaos – the accused rotated between the four classrooms keeping things calm sometimes staying a few minutes with a “naughty class”.

[35] The accused testified that while some students sought to go to the washroom as early as 12:05, after 5 to 10 minutes of eating, more students sought permission to go in pairs to the washroom. The accused informed the court that from noon until 12:20, there were students in the portapak hall coming from or going to the washroom, getting something from a knapsack, waiting to see him once he finished in one of the classrooms, or wanting to go outside. At times, the accused would be in the hall calling down to his fellow lunch monitor about 35ʹ away to hurry his kids along who had gone to the washrooms. The accused put students who were misbehaving or refusing to calm down in the hall on a chair to eat their lunch – this averaged about three kids a day. Some kids would listen to direction while others did not.

[36] The accused testified that the kids would then get ready from 12:15 to 12:20 to go outside. At this time, he was particularly busy helping the grade 1 kids. Once the 12:20 bell rang, and the students were lined up, he went outside for yard duty. On bad weather days, the entire lunch period was spent indoors.

[37] The accused testified to no recall of touching students by way of guidance – in his experience, his voice was sufficient. He would bend down to their level in speaking. On occasion, a student would grab his arm or shirt to say ʹcome this wayʹ. If a student took his hand, he would pull his hand away as the school wanted no touching, it didn’t look right and he felt uncomfortable as they were not his own children.

[38] As to the presence of teachers in the portapak hallway at lunch, the accused testified that, three or four days a week, Ms. C.W. ate her lunch in her classroom (D). He would still visit her classroom to monitor the students eating their lunches. Only occasionally, would one of the other teachers eat in her classroom. To the accused’s recall, other teachers were in and out of their classrooms all the time for example to get something from their desk. In the accused’s words, there was “always traffic” going on in the hall. Supply teachers covered classrooms in the hallway on an average of one or two days a month – these teachers ate lunch in the classroom not in the teachers’ lounge.

[39] The accused testified that grade 8 student volunteers coming to help teachers would also be in the hallway during the lunch period. These helpers would only be present with a teacher such as Ms. C.W.. When spills occurred, the accused would seek out a janitor from the nearby custodian’s office. The accused recalled seeing the janitor in the hall, perhaps once a week, cleaning during lunch periods.

[40] The accused informed the court that the school’s chess club met at lunch in classroom E in the spring of the school year. To his recall, the club’s supervising teacher and two grade 8 students would arrive at classroom E at about 12:10 to set up the chess sets for a 12:20 start.

[41] The accused testified that A.C. was often in the hall at lunch following him around in close proximity. He never held her hand. Other students would be in the hall asking questions or wanting to see him. He did no see A.C. looking out the windows in the portapak exit doors to the outside.

[42] The accused testified that in the 2012-13 school year he at no point took A.C. to classroom F and never sexually assaulted her. He at no point asked her to touch his privates.

[43] R.G., a teacher at the S[…] school since 1999, testified that in September and October of 2012 she would often go down to see her senior kindergarten graduates in their grade 1 classroom A at lunch between noon and 12:20 p.m. This may have occurred as many as eight times in September, a little less in October, and then on other occasions throughout the year.

[44] Ms. R.G. testified that she at no time saw the accused alone with any student. She at no point saw the accused holding A.C.’s hand – she would have recalled that. The accused always seemed to be surrounded by children. From what she saw, it was busy – a kind of organized chaos involving a lot of children. She observed the accused going in and out of classrooms. It seemed to her that kids were “always” in the hallway. With washroom trips underway, kids going to the hallway without permission for something forgotten in a backpack, teachers and janitors coming and going, students out in the hall for misbehaving, and kids “around you all the time”, “it’s busy”. She saw the accused cycling between classrooms – in her view, the accused was kept “very busy” – he had “a big job” demanding one hundred percent of his attention.

[45] The witness testified that it is not unusual for an adult in the school system to have a posse following them about and touching them. Young children reach out and touch you.

[46] To the witness’ recall, there were occasions when a teacher might remain in her classroom for the whole lunch period to have lunch and finish something up. Supply teachers ate lunch in the classroom.

[47] Ms. R.G. recalled her experience that with the outside weather becoming cooler, student preparations to go outside began as early as 12:13 on some days.

[48] In Ms. R.G.’s view, the accused could not disappear for even 30 seconds without students looking for him. A two-to-three minute absence would be considered “a very long time”.

[49] C.W., a teacher at S[…] since 1996, testified that in 2012-13 she taught a grade 1 class in classroom D. She knew the accused as the lunch monitor that year for her hallway.

[50] Ms. C.W. testified that in this school year she had a student named Jerell. He could be aggressive toward other students. She generally ate her lunch in her classroom as this student required near full-time supervision and there was no education resource worker. At lunch, she also moved back and forth to classroom C where she taught science. Whenever she saw an interaction in the hall with a child having a problem, she would help out.

[51] Ms. C.W. sometimes saw other teachers in their classrooms at lunch. Supply teachers ate lunch in their own classroom.

[52] In terms of persons in the hallway, Ms. C.W. recalled pairs of students coming and going from the washroom, kids in the hall with the accused resolving problems, students put out in the hall on chairs to eat their lunch, and kids accessing their backpacks for something to play with or returning a lunch bag. Ms. C.W. had older-grade student helpers assisting her a couple of days a week in the lunch period.

[53] Ms. C.W. had no recall of seeing the accused and A.C. together or seeing anything unusual involving these two parties. She did not recall ever seeing the accused in the vicinity of classrooms E and F. She would see the accused in the company of one to five children. In her view, with dozens of young children to help and to keep safe, the accused had much to do.

[54] Ms. C.W. testified that in the school environment, while not encouraged, little kids would commonly come around you for a hug. It was a touchy situation as it could be misconstrued. The witness had no specific recall of ever seeing the accused in physical contact with one of the students. Any interactions the accused had with students appeared to her to be appropriate.

[55] Ms. C.W. testified that in the spring of 2012, the French teacher who ran the chess club one day a week would commence setting up the approximately 40 chess boards at least ten minutes prior to 12:20 if not as early as noon.

[56] Ms. C.W. testified that classrooms A to F all had windows and glass in the classroom doors. The witness testified that classroom F, with the window blinds down, would not be pitch dark unless it was dark outside – so noon to 12:20 one could see around that room.

[57] In the witness’ view, it was “highly improbable” that the accused, three to four times a week, could disappear with a student for 30 seconds to three minutes.

[58] Ms. C.W. testified that given the young age of the students in the portapak classrooms, one could not be absent for two minutes without an uprising and chaos. If the accused wasn’t doing his job you would know. Diligence in quick patrolling was necessary. As a result, she observed the accused moving from classroom to classroom.

Trial Testimony – Grade 2

[59] According to A.C.’s evidence, there were 21 students in her grade 2 class. In the second grade, her class left their regular classroom (classroom F) and went to a second classroom (classroom C) to eat their lunch. The accused was also responsible for looking after the students of classrooms A and B each with 19 or 20 students.

[60] On the complainant’s evidence, her lunch period in grade 2 and the circumstances of who was in the hallway were much the same as when she was in grade 1. She was sexually assaulted daily in classroom F.

[61] A.C. testified in-chief that she had no recall of a special needs student with behavioural difficulties in her grade 2 class. The complainant was not familiar with Ms. M.H.. She had no recall of seeing Ms. R.G. or Ms. C.W. in the portapak hallway during her grade 2 lunch periods.

[62] In cross-examination, A.C. stated that she did recall a special needs student, Jerell, in her grade 2 class. That student often threw food on the floor at times requiring a janitor’s attendance from the custodian office at the entrance to the portapak hallway. The janitor also came to clean up other spills. A.C. recalled that Jerell had a separate lunch monitor but had no recall where that person was stationed during lunch.

[63] In cross-examination, A.C. testified that during the indoor lunch period, the accused monitored three classrooms and attempted to calm students down. Again, to A.C.’s recall, “bad kids” were placed in the hall to eat lunch “for the entire lunch period”. There were “usually” at least one or two kids in trouble out in the hall eating their lunch. In grade 2 as well, kids were also in the hall looking to speak to the accused or wandering from classroom to classroom to locate him.

[64] In grade 2, as in grade 1, there was a second lunch monitor up the hall by the washrooms. Asked in cross-examination whether, when she and the accused exited classroom F, there were students coming down the hall toward them from the washrooms, A.C. stated: “I don’t remember”.

[65] In cross-examination, A.C. testified that she was touched every school day in the fall of 2013 except the Thursday and Friday before going to speak to the police (on Dec. 3/13).

[66] Under cross-examination, A.C. admitted that her homeroom teacher, Ms. A., was away for a couple of weeks. A supply teacher took over who ate her lunch in classroom F when A.C.’s class moved to classroom C to eat their lunch. A.C. then admitted that she was not touched during this time period.

[67] M.H. testified that she worked daily as an educational resource worker at the S[…] school in the 2013-14 school year. During this year, she had responsibilities relating to a special needs grade 2 student, Jerell.

[68] Ms. M.H. confirmed for the court that beginning in September 2013, Jerell’s homeroom class was in classroom F. He ate lunch with his class in classroom C. On the witness’ evidence, classrooms D and E were unoccupied. Ms. M.H. ate her lunch between noon and 12:20 in classroom E where she could see straight out into the hallway. She at no time noticed the accused and A.C. walk past her door at lunch. By 12:15, students were lining up to go outside. After lunch, she escorted Jerell outside for his outdoor recess.

[69] Ms. M.H. was familiar with the accused as the lunch monitor for the classes in the portapak hallway. Another lunch monitor handled the hallway at nearby classrooms 107, 108 and 109.

[70] Ms. M.H. testified that “sometimes things arose” with Jerell. Fairly often she was required to deal with him in classroom C or she would bring him to classroom E where she could watch him. On occasion, A.C. came to classroom E to play with Jerell. On the witness’ evidence, at times she was outside classroom E looking back toward classroom C making sure that Jerell was doing what he was supposed to do or simply awaiting for a call about Jerell.

[71] Ms. M.H. recalled seeing the accused the “odd time” around the exterior of classroom E – perhaps on three to five occasions. The witness recalled students walking with the accused in the hallway at lunch. She observed A.C. “every once and a while” walking down the hall with the accused as he did his rotation between classrooms. “Sometimes”, perhaps once a week, the witness noticed that A.C. would hold the accused’s hand. Other students too were ordinarily present but usually no more than three. At times, other students also held the accused’s hand. The witness saw nothing unusual going on. At trial, the witness had no specific recall of just seeing the accused and A.C. together although in the witness’ view it seemed that A.C. was most frequently one of the students with the accused – not daily, but perhaps a couple of times a week.

[72] The witness testified that she never saw A.C. on her own by the exit doors near classrooms E and F. She never observed the accused and A.C. enter a classroom together. She at no time saw them exit classroom F. To Ms. M.H.’s recall, Jerell was at times one of the students put out into the hall to eat his lunch.

[73] Ms. M.H. described the portapak hall as a busy primary area.

[74] On the accused’s evidence, during the grade 2 year for J.1 and A.C., he had responsibility for Ms. S.’s classroom A, Ms. B.’ classroom B, and Ms. A.’s classroom F. According to the accused, his duties in the 2013 school year were the same as the prior year as were the circumstances of who was in the hall during the lunch period.

[75] To the accused’s recall, in her grade 2 year, A.C. would be in close proximity to him in the hallway – she wanted to hang around with him. There would on average be three or four other kids also hanging around, following, circling and huddling with him although all were told to return to their classrooms. The accused had no recall of ever being alone with A.C. in the portapak hall.

[76] The accused testified that in the fall of 2013 he never took A.C. alone to classroom F and never sexually assaulted her. He never asked her to touch his privates.

[77] The accused recalled Ms. A. being replaced by a supply teacher for a couple of weeks at some point in September 2013. The supply teacher ate her lunch each day in classroom F. Janitorial assistance was necessary from time to time. In this school year, the accused again sought assistance of a fellow lunch monitor up the hall to keep the pairs of kids moving who had been released for a washroom visit. Ms. C.W. testified that she, not a lunch monitor, controlled the hall outside classrooms, 107, 108 and 109 in the fall of 2013.

[78] The accused testified that a teacher, Ms. M., was one of the teachers who was in and out of the literacy room which it appears may have been a fall 2013 use for classroom D. The accused saw Ms. M.H. eating her lunch in classroom E. When Jerell misbehaved, he would be given a chance to settle down. If he did not, he would be put on a chair in the hall where Jerell was generally happy as were some other kids when they were in the hall.

[79] On some days, the accused would take Jerell to classroom E. On three or four occasions, A.C. went with Jerell to that classroom for the remainder of the lunch period.

[80] To the accused’s recall, on a daily basis in the fall of 2013 there would be an average of three “chair sitters” put out of classrooms and into the hall for misbehaving.

[81] Ms. C.W. described classroom D as a math and science storage room in the fall of 2013. She would visit this resource room about once a week during the lunch period.

The Sleepover Incident

Complainant’s Video Statement

[82] In her videotaped statement, A.C. described an incident during a Wednesday, November 27, 2013 sleepover at the accused’s residence:

But ‘cause I was at a sleepover on Wednesday and um let’s say, well I was on, I was on like this side of the bed and J.1 was in the, and on the other side, so I was in the middle and J.1 was on the other side where the door is and W.B. was on, W.B. was on this side and J.1 was too scared and W.B. said, and J.1 said to Wil-, to um W.B. can you go turn my light off? And J.1. was too scared near the door so I moved and then W.B. said move over to me ‘cause he wanted to be beside me and um he cuddled me and he touches my bum. And I didn’t like it. He should be, you know I don’t know why he followed me. I wanted to move but he probably didn’t want me too.

Trial Testimony – The Sleepover

[83] L.C., A.C.’s mother, recalled four or five “play dates” when A.C., her son Cole and her would get together with the accused and his family at the accused’s home. This occurred in a 1 ½ year period while A.C. was in grades 1 and 2. On one occasion, the accused’s wife was present.

[84] L.C. testified that she understood that the accused was essentially a stay-at-home father while his wife was the primary breadwinner.

[85] L.C. informed the court that a couple of weeks prior to the sleepover, her daughter asked for it. This was not the first time A.C. had asked about such a sleepover. She was persistent. A couple of days before the November 27, 2013 date, which was a play date, after discussing the matter with the accused, she provided an affirmative answer. To L.C.’s recall, the accused stated that he was not too open in general to having children over to his house. He reported that A.C. had asked him about a sleepover. It was arranged that A.C. and J.1 would sleep together in the master bedroom.

[86] A.C. testified in cross-examination that she and J.1 were friends. On A.C.’s evidence, the sleepover was their parents’ and J.1’s idea not her idea. A.C. denied that she had pestered her mother for a sleepover. A.C. testified that with the accused helping her brother, Cole, with problems at school, the accused came to know her family. To A.C.’s recall, there had been two or three get-togethers at the accused’s residence. She met the accused’s spouse.

[87] In her in-chief evidence, A.C. testified that at the sleepover she and the accused’s daughter, J.1, were in the accused’s bed. When the girls were in the bed he came to the room, said “move over” and got onto the bed. On A.C.’s evidence, the accused cuddled her touching her bum on the outside of her clothing for one or two minutes while saying nothing. She felt too scared to say anything as she was not there with her mother. To A.C.’s recall, the accused then left and went to sleep in J.1’s bed. In cross-examination, A.C. testified that before leaving the bedroom the accused said that she, not J.1, could come downstairs if unable to fall asleep.

[88] Under cross-examination, A.C. testified that after her mother left and she and J.1 tucked themselves in in the master bedroom, the accused came a few times to see them as they remained awake and talking. According to the complainant, the accused twice got into bed and cuddled her.

[89] The accused recounted at trial the assistance he had extended to L.C. in attempting to ensure that her son Cole was not bullied at school His son was friends with Cole. There were ongoing communications between him and L.C. about this subject.

[90] Over the months, there were play dates with his family and L.C.’s family and other families as well.

[91] To the accused’s recall, L.C. phoned him in November 2013 about a possible pizza day when they could get together with their kids. A date was set for about a week later. To his recall, L.C. texted him to say that A.C. was bothering her about a possible sleepover and to inquire if A.C. had spoken to him as well. The accused testified that in fact A.C. had been bothering him too. There had not been sleepovers involving anyone at his home. He was not keen on the idea. With L.C. not seeking to include her son in the potential sleepover as he was a bed-wetter, the accused felt that a sleepover could be unfair to Cole. In cross-examination, the accused added that with his wife away he did not favour a sleepover. Ultimately, an agreement was struck for a sleepover on Wednesday, November 27, 2013.

[92] The accused testified that the sleepover decision was mutually arrived at with L.C. He did not seek to have a sleepover as an opportunity to be alone with A.C.

[93] The accused testified that L.C. left his house at about 9:15 p.m. on the Wednesday. J.1 and A.C. went upstairs to get ready for bed. A.C. had a phone conversation with her father. He instructed J.1 about turning off the lights in the bedroom and going to sleep. On the accused’s evidence, he went to the master bedroom only once, between 11:30 p.m. and midnight. He pulled the sheets back over J.1 whom he described as a “crazy sleeper” and, because A.C. was close to the edge of the bed, he tapped her shoulder and told her to move over which she did. He then went to sleep in J.1’s bedroom. He did not cuddle A.C. on the bed and at no point touched A.C.’s privates or bum. He never spoke to A.C. about coming downstairs.

The Disclosure Process

[94] Under cross-examination, A.C. acknowledged that when she was in kindergarten her mother told her about inappropriate touching relating to her private parts. She was instructed to tell her mother if anything like this occurred. Her mother reinstructed her on this subject in senior kindergarten. Her mother repeated this information at the outset of grades 1 and 2.

[95] According to A.C., when in grade 2, she decided to tell her mother what was occurring, not because she considered it to be a secret but because she couldn’t take it anymore. In her videotaped statement to the police, A.C. stated that she told her mother on the sleepover Wednesday that the accused had been inappropriately touching her.

[96] L.C. testified that after leaving her daughter at the accused’s home on Wednesday for the sleepover, she next saw A.C. on Thursday after school at the babysitter’s home. L.C. testified that the complainant went to school on Friday.

[97] In cross-examination, A.C. testified that she told her mother on Thursday, November 28, 2013 what happened at the sleepover. The reference in her video statement to reporting the matter on Wednesday was her mistake. A.C. testified that she was sure however that after disclosure to her mother on Thursday that she remained home from school on Friday, November 29. This was the day she recalled going to see the police.

[98] On L.C.’s evidence, during the evening of Thursday, November 28, she was in her mother’s room watching TV and chatting with her mother. A.C. was in the livingroom watching TV. At a point, to the witness’ recall, A.C. came in and asked to cuddle on the bed as L.C. continued to chat with her mother.

[99] According to L.C., A.C. disclosed that the accused “sometimes touches my privates”. To L.C.’s recall, A.C.’s demeanour was very matter of fact – she just came out with the statement. L.C. also interpreted her daughter’s behaviour as evidencing a sense of relief as though a weight had been lifted off her shoulders. L.C. phoned A.C.’s father and it was decided to speak to A.C. in more depth on the weekend. L.C. testified that her daughter attended school on Friday. L.C. discussed the matter further with A.C.’s father on Saturday and Sunday. A.C. was taken to the family doctor on Monday and on Tuesday, December 3, 2013, the matter was reported to the police.

[100] In cross-examination, A.C. agreed that sometimes her mother called her “a little liar” and that she would on occasion lie until her mother produced proof that she had lied. To her recall, her mother also described her as having “attitude”. L.C. testified that she never referred to her daughter as a little liar. She did, however, describe her as “bossy” - she was a child with a strong personality who liked to have her own way. In cross-examination, L.C. did not disagree that she may have called A.C. out on a lie.

Character Evidence

[101] In his evidence, the accused stated that he had a criminal record check before he was hired as a school lunch monitor. During his volunteer year with the senior kindergarten class, Ms. R.G. never approached him with any concerns about his work. She recommended him for the lunch monitor position when it was advertised. To his knowledge, there were no complaints from any teacher about his work.

[102] Ms. R.G. testified that the accused was well liked by the students. When he was a volunteer in her class, he went above and beyond what was required. To the witness’ knowledge, there were no issues with the accused’s performance as a lunch monitor – there were no complaints and no reasons for concern. He was respected by the kids.

[103] Ms. C.W. considered the accused to be well respected. He was capable. She was happy with his performance. There were no complaints about the job he was doing. The witness was shocked to hear of the criminal allegations against the defendant. From her knowledge of the accused in the school, she would “definitely” state that he would not have done what is alleged.

POSITIONS OF THE PARTIES

The Prosecution

[104] On behalf of the Crown, Ms. Mathurin submitted that the prosecution has proven guilt on all charges beyond a reasonable doubt. Counsel emphasized that this is very much a credibility case.

[105] It was submitted that the accused’s evidence should be disbelieved for a number of reasons including the following:

(1) the accused gave inconsistent evidence as to whether the school policy simply banned hugging or any touching of students

(2) evidence suggested that there was no second lunch monitor down the hall during A.C.’s grade 2 year

(3) the accused’s testimony sought to distance himself from the complainant’s family

(4) the accused strained to suggest that he had never touched a student by way of guidance or assistance

(5) after denying being touched by any of the students, the accused finally admitted that there may have been occasions of his arm or hand being touched – the accused struggled to distance himself from any physical contact

(6) the evidence of Ms. C.W. should be accepted that there is abundant physical contact between young school kids and adults

(7) contrary to the accused’s evidence, the complainant and Ms. M.H. both credibly testified that the accused did hold hands with A.C.

(8) the accused’s evidence was exaggerated in his description of grade 8 volunteers roaming the halls during the noon to 12:20 time period

(9) in his evidence relating to the sleepover, the accused refused to admit that the idea, given that it was held at his house, was his decision in the end

(10) only in cross-examination did the accused advance his wife’s absence from the residence as a reason for his lack of comfort with holding a sleepover.

[106] Crown counsel argued that the accused appeared to extend special treatment to A.C. by allowing her to be down the hall by the exit doors.

[107] Crown counsel submitted that Ms. R.G. and Ms. C.W. were argumentative witnesses. As well, Ms. R.G. got the accused a job at the school and with Ms. C.W. eating her lunch in classroom D during A.C.’s grade 1 year, if the sexual abuse occurred, both witnesses would see themselves as bearing some responsibility for what occurred.

[108] It was submitted that any good character evidence relating to the accused, such as it was, did not succeed in raising a reasonable doubt about the accused’s guilt.

[109] It was submitted that the court should accept the complainant’s evidence. Given A.C.’s youth, the court should bear in mind that the complainant’s actions, articulations, perceptions and memory must be viewed in the context of her being a child.

[110] Ms. Mathurin acknowledged some inconsistencies existed between A.C.’s trial evidence and both her video statement and preliminary inquiry testimony. It was said that whatever deficiencies there may be in aspects of A.C.’s evidence that the core story of her allegations relating to the sleepover incident and sexual abuse at school were relatively consistent throughout her testimony. In addition, there was absolutely no evidence of a motive on the part of A.C. to fabricate an account of sexual abuse.

[111] It was submitted that the opportunity existed between noon and 12:20 on school days for the accused to slip away with A.C. for 30 seconds to three minutes to classroom F. With the busy and chaotic conditions of the indoor lunch period in several classrooms, as opposed to a situation of complete calmness, there was less chance that the accused would be missed.

[112] As to the presence of others in the portapak hall during lunch, other adults, including witnesses in this trial, would have no reason to take particular notice, or to commit to memory, events in the hall. It is also said that the accused and A.C. entering classroom F would not stand out for those misbehaving students put in the hall to eat lunch.

[113] The delayed reporting by A.C. can be explained by her belief that the touching would stop.

The Defence

[114] On behalf of the accused, Mr. Bhangal submitted that on the whole of the record the trier of fact ought to accept the accused’s evidence or in the alternative find that it raised a reasonable doubt.

[115] It is said that the accused was a forthright witness throughout his testimony. His evidence regarding discharge of his extensive duties between 12:02 and 12:15 p.m. each school day, and his evidence respecting the usual presence of others in the portapak hallway in that time period, is corroborated by other witnesses. In effect, there was no real opportunity for the accused to have committed the alleged sexual assault on a daily basis in classroom F. The good character evidence supports the accused’s evidence.

[116] It was submitted that on the accused’s evidence, on account of his personal comfort level, and his preferred approach of bending down and using his voice, he had minimal physical contact with the young students. If from time to time there was contact, including with A.C., he would have no reason to specifically recall such contact.

[117] Mr. Bhangal pointed to inconsistencies and changes in A.C.’s evidence including on the subjects of the timing of the indoor lunch period, and, the two-week period of a student teacher eating lunch in classroom F in the fall of 2013. The defence has no onus to demonstrate a motive to fabricate on A.C.’s part.

[118] It was submitted that A.C.’s evidence suggesting that the portapak hallway was effectively emptied out when she was grabbed and led to classroom F is contrary to the weight of the evidence. Ms. R.G. and Ms. C.W. were credible witnesses confirming important aspects of the accused’s testimony about ongoing traffic in the hallway.

[119] There were students, and at times teachers or a janitor in the hallway at lunch. Kids were always around the accused. Another lunch monitor was frequently nearby. The hall was a busy location. It is not reasonable to believe that the accused could slip unseen into classroom F, or not be sought out by students at that location, given the traffic in the hallway including the daily chair-sitter students in the hall until the end of the lunch period.

[120] It is asked how the accused could grab A.C. and daily lead her past Ms. C.W.’s grade 1 classroom D and past Ms. M.H.’s grade 2 lunchroom in classroom E without either of these persons having a memory of this occurring. As well, in A.C.’s grade 1 year, the French teacher was in classroom E at least by 12:10 on days when the chess club met.

[121] It was submitted that it is simply not reasonable to believe that A.C. would go into the portapak hallway on a daily basis to seek out the accused given that, on her evidence, this would inevitably lead to sexual touching which she maintained she did not want or like in any way. The delay in reporting alleged abuse tells against the credibility of the complainant’s account.

[122] It was further submitted that the lack of credibility of A.C.’s uncorroborated account alleging daily sexual touching at school carries over to the sleepover allegation. The weight of the evidence is against A.C.’s position that she was not the one pressing for the sleepover. The court can further conclude that A.C. is wrong about not going to school on Friday, November 29, 2013. While the accused could have denied any physical contact with A.C., he provided the court a credible account of the circumstances of touching her to move her to the centre of the bed.

ANALYSIS

General Principles

[123] "Credibility is a central issue in many criminal cases": R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595, at para. 55. The court may believe all, none or some of a witness' evidence: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 65; R. v. Francois, 1994 CanLII 52 (SCC), [1994] 2 S.C.R. 827, at para. 14; D.R. et al. v. The Queen (1996), 1996 CanLII 207 (SCC), 107 C.C.C. (3d) 289 (S.C.C.) per L'Heureux-Dubé J. (in dissent in the result), at p. 318; R. v. M.R., 2010 ONCA 285, at para. 6; R. v. Hunter, [2000] O.J. No. 4089 (C.A.)(QL), at para. 5; R. v. Abdallah, 1997 CanLII 1814 (ON CA), [1997] O.J. No. 2055 (C.A.)(QL), at paras. 4, 5. Accordingly, a trier of fact is entitled to accept parts of a witness' evidence and reject other parts, and similarly, the trier can accord different weight to different parts of the evidence that the trier of fact has accepted: R. v. Howe, 2005 CanLII 253 (ON CA), [2005] O.J. No. 39 (C.A.)(QL), at para. 44.

[124] The vast majority of sexual assault prosecutions turn on the evidence of the two principals – the complainant and the accused: R. v. M.(S.C.), [2007] O.J. No. 1624 (C.A.), at para. 3. However, a verdict of guilty may, in appropriate cases, be safely founded on the evidence of a single witness, regardless of the offence or offences charged: The Queen v. G.(A.), [2001] 1 S.C.R. 439, at pp. 453-4; Vetrovec v. The Queen (1982), 1982 CanLII 20 (SCC), 67 C.C.C. (2d) 1 (S.C.C.), at p. 8.

[125] A determination of guilt or innocence must not, however, devolve into a mere credibility contest between two witnesses or a bipolar choice between competing prosecution and defence evidence. Such an approach erodes the operation of the presumption of innocence and the assigned standard of persuasion of proof beyond a reasonable doubt: W.(D.) v. The Queen (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.), at p. 409; Avetsyan v. The Queen (2000), 2000 SCC 56, 149 C.C.C. (3d) 77 (S.C.C.), at pp.85-87. However, as recognized in R. v. Chittick, 2004 NSCA 135, [2004] N.S.J. No. 432 (C.A.)(QL), at paras. 23-25:

It is not an error for a judge to make a finding of credibility as between the complainant and the accused, particularly where they provide the bulk of the evidence as to what happened. This is a necessary part of the judge's duty. While it is not the end of the journey of decision-making, it is a necessary intermediate step along the way. Indeed, the first two elements in a proper jury instruction on this issue as set out in W.(D.) assume that the jury should decide whether or not they believe the exculpatory evidence of the accused. Those first two steps are:

First, if you believe the evidence of the accused, obviously you must acquit.

Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Accordingly, it was not an error for the trial judge here to assess the credibility of the accused in relation to that of the complainant.

An error under the W.(D.) principle is committed where the judge treats the matter as concluded once this assessment of credibility has been completed. To do so misses the third and critical step in the application of the burden of proof. As described in W.(D.), that last crucial step is as follows:

Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[126] It must be emphasized that mere disbelief of the accused's evidence does not satisfy the burden of persuasion upon the Crown: see W.(D.), at p. 409. In other words, to use disbelief of the accused's evidence as positive proof of guilt by moving directly from disbelief to a finding of guilt constitutes error: R. v. Dore (2004), 2004 CanLII 32078 (ON CA), 189 C.C.C. (3d) 526 (Ont. C.A.), at p. 527 (leave to appeal refused, [2004] S.C.C.A. No. 517); R. v. H.(S.), [2001] O.J. No. 118 (C.A.), at paras. 4-6. The court must be satisfied on the totality of the evidence that there is no reasonable doubt as to the accused's guilt. The obligation of W.(D.) analysis was summarized in R. v. Minuskin (2004), 2003 CanLII 11604 (ON CA), 181 C.C.C. (3d) 542 (Ont. C.A.), at p. 550:

It is important to stress that trial judges in a judge alone trial do not need to slavishly adhere to this formula. This suggested instruction was intended as assistance to a jury and a trial judge does not commit an error because he or she fails to use this precise form of words. Nor is the trial judge expected to approach the evidence in any particular chronology, for example, looking first at the accused's evidence and then at the rest of the evidence. It should, however, be clear from an examination of the reasons that at the end of the day the trial judge has had regard for the basic principles underlying the W. (D.) instruction. One of those principles is that it is not necessary for the trier of fact to believe or accept the defence evidence for there to be a reasonable doubt. Even if the trier of fact believes the prosecution witnesses, the evidence as a whole may leave the trier of fact with a reasonable doubt. As it was put by Cory J. in W. (D.) at p. 757, the trier of fact must acquit even if he or she does not believe the accused's evidence because they have a reasonable doubt as to the accused's guilt "after considering the accused's evidence in the context of the evidence as a whole".

See also R. v. Turmel, [2004] B.C.J. No. 2265 (C.A.), at paras. 9-17.

[127] The court must be satisfied beyond a reasonable doubt on the issue of credibility where the case turns on the evidence of two conflicting witnesses: R. v. Selles (1997), 1997 CanLII 1150 (ON CA), 101 O.A.C. 193 (C.A.), at pp. 207-8; M.(N.) v. The Queen, [1994] O.J. No. 1715 (C.A.), at para. 1 (affirmed 1995 CanLII 95 (SCC), [1995] 2 S.C.R. 415). Where there are significant inconsistencies or contradictions within a principal Crown witness' testimony, or when considered against conflicting evidence in the case, the trier-of-fact must carefully assess the evidence before concluding that guilt has been established: R. v. S.W. (1994), 1994 CanLII 7208 (ON CA), 18 O.R. (3d) 509 (C.A.), at p. 517 (leave to appeal to S.C.C. refused, [1994] 2 S.C.R. x); R. v. Oziel, [1997] O.J. No. 1185 (C.A.), at paras. 8, 9; R. v. Norman (1993), 1993 CanLII 3387 (ON CA), 87 C.C.C. (3d) 153 (Ont. C.A.), at pp. 172-4.

[128] Assessment of a witness' credibility includes evaluation of his or her demeanour as testimony is provided to the trier(s) of fact in the courtroom - this includes "non-verbal cues" as well as "body language, eyes, tone of voice, and the manner" of speaking: R. v. N.S. (2010), 2010 ONCA 670, 102 O.R. (3d) 161 (C.A.), at paras. 55, 57, affd 2012 SCC 72, [2012] 3 S.C.R. 726. However, a trier's subjective perception of demeanour can be a notoriously unreliable predictor of the accuracy of the evidence given by a witness: Law Society of Upper Canada v. Neinstein (2010), 2010 ONCA 193, 99 O.R. (3d) 1 (C.A.), at para. 66; R. v. Smith, 2010 ONCA 229, at para. 11; R. v. G.G. (1997), 1997 CanLII 1976 (ON CA), 115 C.C.C. (3d) 1 (Ont. C.A.), at pp. 6-8; R. v. P.-P.(S.H.) (2003), 2003 NSCA 53, 176 C.C.C. (3d) 281 (N.S.C.A.), at paras. 28-30; R. v. Levert (2001), 2001 CanLII 8606 (ON CA), 159 C.C.C. (3d) 71 (Ont. C.A.), at pp. 80-2. Demeanour evidence alone cannot suffice to found a finding of guilt: R. v. K.(A.) (1999), 1999 CanLII 3756 (ON CA), 123 O.A.C. 161 (C.A.), at p. 172.

[129] The fact that a complainant pursues a complaint cannot of course be a piece of evidence bolstering his or her credibility -- otherwise it could have the effect of reversing the onus of proof: R. v. A.(G.R.) (1994), 1994 CanLII 8756 (ON CA), 35 C.R. (4th) 340 (Ont. C.A.), at para. 3; R. v. Islam, [1999] 1 Cr. App. R. 22 (C.A.), at p. 27.

[130] To the extent that credibility assessment demands a search for confirmatory evidence for the testimony of a principal Crown witness, such evidence need not directly implicate the accused or confirm the complainant's evidence in every respect - the evidence should, however, be capable of restoring the trier's faith in the complainant's account: Kehler v. The Queen (2004), 2004 SCC 11, 181 C.C.C. (3d) 1 (S.C.C.), at pp. 5-6; R. v. Betker (1997), 1997 CanLII 1902 (ON CA), 115 C.C.C. (3d) 421 (Ont. C.A.), at p. 429 (leave to appeal refused, [1998] 1 S.C.R. vi); R. v. Michaud, 1996 CanLII 211 (SCC), [1996] 2 S.C.R. 458, at p. 459; R. v. K.M., 2012 ONCA 319, at para. 38.

[131] It may be that in the circumstances of a particular case, the defence wishes to raise the issue of delayed complaint as counting against the veracity of the complainant's account of assault. The significance or evidentiary relevance, if any, of the complainant's failure to make such a complaint is contextual and will vary from case to case depending upon the trier of fact's assessment of the evidence relevant to the failure to make a contemporaneous complaint: The Queen v. D.(D.) (2000), 2000 SCC 43, 148 C.C.C. (3d) 41 (S.C.C.), at pp. 64-7; R. v. M.(P.S.) (1993), 1992 CanLII 2785 (ON CA), 77 C.C.C. (3d) 402 (Ont. C.A.), at pp. 408-409; see also, R. v. H., [2011] EWCA Crim 2753, at para. 6.

[132] The existence or absence of a motive by the complainant to fabricate is a relevant factor to be considered: The Queen v. K.G.B. (1993), 1993 CanLII 116 (SCC), 79 C.C.C. (3d) 257 (S.C.C.), at p. 300; R. v. Greer, 2009 ONCA 505, at para. 5; R. v. Prasad, [2007] A.J. No. 139 (C.A.), at paras. 2-8; K.(A.), at p. 173; R. v. Jackson, [1995] O.J. No. 2471 (C.A.), at paras. 4, 5. I make this observation, sensitive to the fact that the burden of production and persuasion is upon the prosecution and that an accused need not prove a motive to fabricate on the part of a principal Crown witness. Evidence of a witness' motive to lie may be relevant as well to the accused qua witness: R. v. Laboucan, 2010 SCC 12, at paras. 12, 15, 22; R. v. Murray (1997), 1997 CanLII 1090 (ON CA), 99 O.A.C. 103 (C.A.), at paras. 11-14.

[133] The testimony of a youthful witness cannot be said to be inherently unreliable. Otherwise, a negative stereotype improperly supplants abolition of the corroboration rule in the testimonial competence regime. The testimony of a young witness is to be understood with an eye to common sense as exactitude and detail may be missing from a child's recall as the world is experienced differently from an adult: B.(G.) v. The Queen (1990), 1990 CanLII 7308 (SCC), 56 C.C.C. (3d) 200 (S.C.C.), at pp. 219-220 per Wilson J.; Marquard v. The Queen (1993), 1993 CanLII 37 (SCC), 85 C.C.C. (3d) 193 (S.C.C.), at p. 201 per McLachlin J. (as she then was); R. v. H.C. (2009), 2009 ONCA 56, 241 C.C.C. (3d) 45 (Ont. C.A.), at para. 42.

[134] An 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 generally confined to evidence of general reputation within the community with respect to the relevant trait or traits: R. v. Mohan (1994), 1994 CanLII 80 (SCC), 89 C.C.C. (3d) 402 (S.C.C.), at para. 31; R. v. Béland, 1987 CanLII 27 (SCC), [1987] 2 S.C.R. 398, at pp. 412-4; R. v. McNamara (1981), 1981 CanLII 3120 (ON CA), 56 C.C.C. (2d) 193 (Ont. C.A.), at pp. 348-50 (aff’d, 1985 CanLII 32 (SCC), [1985] 1 S.C.R. 662); R. v. W.A.A. (1997), 1996 CanLII 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.

[135] Where 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 CanLII 2269 (ON CA), 40 C.C.C. (2d) 58 (Ont. C.A.), at p. 65.

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

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

[138] In R. v. Profit, 1993 CanLII 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.

[139] On occasion, the purposes for which character evidence is introduced, improbability and credibility, may be “inextricably interwoven” with one another: R. v. Flis (2006), 2006 CanLII 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 CanLII 30693 (ON CA), [2005] O.J. No. 3575 (C.A.), at paras. 27-8, the court stated:

The trial judge went on to tell the jury - in accordance with R. v. Profit, 1993 CanLII 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.

[140] In 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.), at para. 10; R. v. Lizzi (1996), 1996 CanLII 21269 (ON SC), 2 C.R. (5th) 95 (Ont. Ct. Gen. Div.), at pp. 99-100.

[141] In order to find guilt in a circumstantial evidence case, the trier of fact must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty: R. v. Griffin and Harris (2009), 2009 SCC 28, 244 C.C.C. (3d) 289 (S.C.C.), at paras. 33-4. Inference must be carefully distinguished from conjecture or speculation. At all times, in assessing circumstantial evidence, a trier must be alert to explanation or contradiction or inference pointing toward innocence. The trier of fact must assess the reliability and credibility of any underlying direct evidence as well as whether that evidence reasonably supports the circumstantial inference to be drawn while always having regard to the scope of inferential bridges or gaps the trier is invited to make.

[142] Circumstantial evidence is not to be evaluated piece by piece but rather cumulatively. With circumstantial evidence based on reasoning or inference-drawing through probability (R. v. Arp (1998), 1998 CanLII 769 (SCC), 129 C.C.C. (3d) 321 (S.C.C.), at para. 64), a trier of fact’s application of logic, common sense and experience to the evidence engages consideration of both inherent probabilities and inherent improbabilities and, not infrequently, eliminating the unlikelihood of coincidence: C.(R.) v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at paras. 33-40, 47-8; R. v. Yousif, 2011 ABCA 12, at para. 5; In re B (Children), [2009] 1 A.C. 11 (H.L.), at paras. 5, 15, 70.

[143] In considering the whole of the evidence in a circumstantial case, and in particular the search for alternative “innocent” explanations other than the prosecution’s theory of guilt, the court is not limited to inferential explanations based on “proven facts” but rather may take into account, as to whether reasonable doubt exists, alternate rational possibilities grounded in the evidence: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at paras. 57-8; Fontaine v. Loewen Estate, 1998 CanLII 814 (SCC), [1998] 1 S.C.R. 424, at para. 33; R. v. Bui, 2014 ONCA 614, at paras 22-9; R. v. Campbell, 2015 ABCA 70, at paras. 51-3; R. v. Dipnarine, 2014 ABCA 328, at paras. 22-28; R. v . Pryce, 2014 BCCA 370, at paras. 6-12; R. v. Maxie, 2014 SKCA 103, at para. 35; R. v. Robert (2000), 2000 CanLII 5129 (ON CA), 143 C.C.C. (3d) 330 (Ont.C.A.), at paras. 14-25.

[144] Further, while there is no obligation upon an accused to demonstrate the existence of an exculpatory hypothesis or other rational explanation other than guilt, it does not reverse the burden of proof upon the Crown to ask whether such explanations, as may be pointed to, amount to nothing more than speculation, conjecture or irrational inferences : R. v. Mufuta, 2015 ONCA 50, at paras. 22, 26, 47-9; Griffin, at para 35; R. v. C.(D.) (2012), 2012 SCC 48, 290 C.C.C. (3d) 64 (S.C.C.), at paras. 25, 28; R. v. Figueroa (2008), 2008 ONCA 106, 232 C.C.C. (3d) 51 (Ont.C.A.), at paras. 35, 42.

[145] An accused’s opportunity to commit an alleged offence, both in physical and temporal terms, is a circumstance which may achieve particular importance in some cases. Closely related is consideration of the reasonableness of the exercise of any such opportunity given the associated risks of detection: see R. v. Dimmick, 2015 ONCA 402, at paras. 5-6; R. v. N.L.P., 2013 ONCA 773, at paras. 28-31, 75; R. v. A.S. (2002), 2002 CanLII 44934 (ON CA), 165 C.C.C. (3d) 426 (Ont. C.A.), at para. 37; R. v. C.P., [2004] O.J. No. 4732 (C.A.), at para. 14 (leave to appeal refused [2005] S.C.C.A. No. 44).

Fact-Finding & Conclusions

[146] Not surprisingly, counsel for the parties in this six-witness case viewed the credibility of witnesses as critical to the determination of a verdict. From observation of the witnesses, their demeanour while testifying provided little in the way of insight into the credibility and reliability of their evidence.

[147] That said, on assessment of the totality of the trial record including the weight of the evidence, the probabilities and improbabilities of the accounts of the complainant and the accused, and the force of the accepted evidence from independent witnesses, it cannot be said with the necessary degree of confidence that the prosecution has proven the alleged charges.

[148] Turning first to problematic aspects within A.C.’s evidence, these matters fall to be considered:

(1) the complainant, for most of her testimony maintained that the indoor lunch period lasted until 12:30 p.m. expanding the lunch time in which she could have been assaulted before changing her evidence to agree to a 12:20 end time

(2) A.C. testified both that the time spent in classroom F with the accused was for seconds only, and, that each stay in that room lasted at least 2 to 3 minutes

(3) in describing the location of the alleged assaults in classroom F, A.C. variously described the situs as in the middle or in front of the classroom door or further into the interior of the room

(4) while testifying in-chief to no recall of a special needs student in her grade 2 class or of being familiar with Ms. M.H., in cross-examination A.C. did recall Jerell as a special needs child in her grade 2 class.

(5) having told the police she was inappropriately touched by the accused every day in grade 2 excepting immediately before her interview, and having repeated that account during her in-chief testimony and initially in cross-examination, A.C. then changed her evidence to acknowledge that for a 2-week period when Ms. A. was absent in the fall of 2013 she was not touched.

(6) A.C. informed the police that when she was assaulted in classroom F it was pitch dark, an assertion repeated in her trial testimony until confronted with her preliminary inquiry evidence when A.C. changed her evidence to say that nearly half the time the blinds were up in classroom F.

[149] Ms. M.H. was a generally credible witness although she appeared to struggle at times while testifying to retrieve the details necessary to respond to the questions posed by counsel.

[150] Ms. R.G. and Ms. C.W. were entirely credible. Contrary to the prosecution submissions, they were neither argumentative nor, I am satisfied, biased in favour of the accused consciously or unconsciously. Their evidence, as accepted by the court, contradicts certain aspects of the complainant’s account. Apart from the teacher witnesses’ evidence describing the portapak hallway as busier than described by A.C., their evidence is accepted on these matters:

(1) contrary to A.C.’s evidence, Ms. C.W. did eat her lunch most days of the week in classroom D in the complainant’s grade 1 year

(2) contrary to the complainant’s testimony, Ms. R.G. did periodically visit A.C.’s grade 1 class during the indoor lunch period

(3) contrary to A.C.’s evidence that classroom F was pitch dark when the blinds were down, that room, as described by Ms. C.W., was never “darker than dark” during daytime.

[151] On the latter point, there was no suggestion in A.C.’s evidence that the door to classroom F was closed. Clearly there would have been ambient light from the hall.

[152] At various points in her evidence, A.C. sought to explain changes or discrepancies by suggesting that, in cross-examination, counsel had confused her with his questions. Having observed the witness closely and having tracked the clear and gentle presentation of counsel, as an explanation, this was entirely unpersuasive.

[153] The evidence exposes no reason for A.C. to have fabricated an account of sexual abuse at the hands of the accused. A.C. presented as an articulate youngster. There is a degree of detail in the complainant’s account of sexual abuse at her school including her reference to “twerking” and her partial re-enactments in her video statement. There is also, despite the above-described difficulties with A.C.’s evidence, a degree of consistency relating to her core allegation of abuse by the accused at the school. Ms. M.H. confirmed the complainant’s account that on some occasions the accused held her hand. These features of the case might permit forgiveness of at least some of the described problems with A.C.’s evidence for example on account of the witness’ youth.

[154] Be that as it may, other aspects of the case remain troubling in assessing the truthfulness of A.C.’s evidence including:

(1) the described actions of A.C. in continuing to seek out the accused at lunch despite the predictability that such conduct would result in sexual touching that she did not want

(2) A.C.’s delay in disclosing the alleged abuse to her mother despite L.C.’s express instructions to her daughter to inform her of any sexual touching by another person

(3) the opportunity for the alleged sexual touching to have occurred considering the totality of the circumstances such as location, timing and the proximate presence of other persons.

[155] On the first issue, in her video statement, A.C. described how she squirmed or moved to get away when she says the accused touched her. She told the officer, “I don’t like it”, “I didn’t like it” and that she was “so scared”. In her trial testimony, the complainant again described trying to move from being touched and stated, “I wanted to get out…I didn’t like it at all”. With A.C.’s description of the near-daily frequency of the alleged touching, over about 9 months in grade 1, and over 2 months in grade 2, for over 200 instances of touching, the question becomes, ‘Why would A.C. seek out the accused each day in the portapak hallway when it would inevitably lead to something happening that scared her and that she did not like?’

[156] That unanswered question is inextricably linked to A.C.’s delay in reporting the alleged sexual touching to her mother. There is no indication that L.C. and A.C. did not have a normal mother/daughter relationship. L.C., on more than one occasion, told her daughter to tell her if her privates were touched by another person. One of the reasons advanced at trial by A.C. for her non-disclosure, that she “knew no better”, cannot be accepted in light of the very specific discussions her mother had with her on the subject of inappropriate touching. Despite not liking what was happening to her, on the evidence, A.C. took 14 months to make a report. This feature of the case is not easily answered by saying that A.C. hoped/thought the alleged touching would terminate or that she was scared.

[157] Perhaps the most significant impediment on the record here to finding that the Crown has proven its case, is the matter of “opportunity” as it was described by counsel. From the accused’s perspective, this aspect of the case in effect had two interrelated themes:

(1) almost in alibi-like terms, for a 20-minute time period (noon to 12:20 p.m.) the accused was fully occupied with dozens of pupils for whom he was responsible in their respective classrooms and the hallway but not in classroom F.

(2) the complainant’s account of over 200 near-daily instances of sexual touching in classroom F would implicate a high risk of discovery.

[158] On the evidence accepted by the court, the accused’s indoor lunch period duties were 20 minutes in duration until 12:20. The first 2 to 3 minutes involved students retrieving lunches from the hallway, perhaps picking up a milk order, and then returning to class to begin eating. On a daily basis, the accused then circulated between 3 or 4 classrooms calming things down and assisting some students to open lunch and liquid containers. On the evidence, this took about 5 minutes. In the accused’s rotation between classrooms, on a daily basis, he put misbehaving students on chairs in the hall to eat and began to field requests for washroom visits. On this schedule, by the time the 12:15 lineup process began for students to go outside, it is difficult to see how the accused could disappear with one pupil for 2 to 3 minutes into classroom F at the end of the portapak hallway.

[159] The portapak hall was by no means a huge hallway. The accused was highly visible by virtue of his orange and yellow monitor’s best. A second lunch monitor was positioned at times only 35 feet distant assisting the accused to move the washroom traffic along. In addition, on the evidence accepted by the court, as particularly described by the accused, Ms. C.W. and R.G., the hall was busy during the indoor lunch period including:

(1) each day, misbehaving students ate their lunch on chairs in the hallway which A.C. acknowledged was until the end of the lunch period

(2) in A.C.’s grade 1 year, Ms. R.G. visited A.C.’s class during the lunch period frequently in the fall and then occasionally throughout the year

(3) during the lunch period, students would exit their classrooms and enter the hall to retrieve items from their backpacks or to place something in such receptacles

(4) at times, teachers would remain in their classrooms to eat their lunch and to work

(5) on occasion, teachers would pop back to their classroom to pick up something from their desk

(6) a janitor from the nearby custodian’s office might be in the portapak area cleaning or to attend to a spill

(7) in A.C.’s grade 1 year, Ms. C.W. would on occasion help out with a student in the portapak hall

(8) pairs of students would be cycling between their classrooms and the washrooms prior to outdoor recess

(9) a student could be in the hall to use a drinking fountain

(10) in A.C.’s grade 1 year, the French teacher running the chess club would be in the hall by 12:10 on club meeting days

(11) Ms. R.G.’s evidence confirmed the accused’s testimony that there were always kids around him in the hallway

(12) it seems reasonable that any supply teacher eating his or her lunch in a classroom in the portapak hall would step out to use a washroom at lunch

(13) in A.C.’s grade 2 year, Ms. M.H. would on occasion wait by the door of classroom E listening for disruption by Jerell in classroom C

(14) as testified to by Ms. C.W., in A.C.’s grade 2 year, when classroom D was a resource supply room, teachers would access the room at lunch.

[160] What is readily apparent from this evidence is that during lunch period the portapak hall was a busy location with student and adult traffic some of which would be unpredictable in terms of when it would be in the hall. In addition, to grab a student’s hand and lead her every day to classroom F at the end of the hall would risk detection having regard to these facts:

(1) in A.C.’s grade 1 year, Ms. C.W. ate her lunch in classroom D most days of the week

(2) in the spring of A.C.’s grade 1 year, the French teacher was setting up in classroom E at 12:10 on chess club meeting days

(3) in A.C.’s grade 2 year, Ms. M.H. was in classroom E during the indoor lunch period

(4) to conceal repetitive visits to classroom F, the accused would have to enter and exit that classroom unseen.

[161] At trial, Ms. C.W. and Ms. M.H. did not report seeing the accused and A.C. in the area of classroom F. Yet, the accused, with his bright uniform, would have had to pass the doors of their rooms on a daily basis to have committed the assaults as described by A.C. In addition, with some misbehaving students each day eating lunch in the hall until the end of the lunch period, these children would have been in a position to see the accused take A.C. into classroom F and to tell kids looking for the accused where he had gone. In addition, for the many days when the classroom F blinds were up, anything going on in that main floor room would be visible through the room’s windows to anyone outside.

[162] A.C.’s evidence of the sleepover is not confirmed by other evidence. This is not a call for corroboration but recognition that the troubling aspects of A.C.’s account of serial sexual abuse at her school mandates a degree of caution respecting the witness’ additional allegation.

[163] While A.C.’s video statement seems to describe a single instance of sexual touching at the sleepover, at trial A.C. testified to two incidents on the bed. In terms of risk of detection, in A.C.’s version given to the police, she maintained that J.1, the accused’s daughter, was awake in the bed when the accused cuddled and touched her (the complainant).

[164] On L.C.’s evidence accepted by the court, confirming at times evidence from the accused, I find as fact that:

(1) contrary to A.C.’s evidence, she was the one who was persistent in wanting to have a sleepover

(2) disclosure by A.C. was made to L.C. on Thursday, November 28, 2013 not the prior day as testified to by A.C.

(3) the complainant attended school on November 29 contrary to A.C.’s evidence.

[165] Turning to the accused’s evidence, he unequivocally denied sexual touching of A.C. at school or during the sleepover. To the extent that there was good character evidence of his reputation in the school, this could be seen as supportive of his account although, in the circumstances of the present case, it is unnecessary to resort to that evidence to determine a verdict.

[166] Points raised in argument by Ms. Mathurin, said to diminish the truthfulness of the accused’s evidence, are well worthy of consideration. This included in particular the accused broadening the scope of the school policy from a prohibition against hugging pupils to one prohibiting touching, the witness’ incremental testimonial disclosure of physical contact at times with some students, and the evidence of A.C. and Ms. M.H. that the accused had held hands with A.C. There was, in my view, no troubling or improbable aspects of the accused’s evidence relating to the sleepover.

[167] On careful assessment of the accused’s evidence, in terms of its content and presentation, and the degree of its resonance with the accepted evidence of the witnesses C.W. and R.G., there exists a reasonable doubt respecting the allegations.

[168] In any event, on the whole of the evidentiary record, apart from the accused’s testimony, for the reasons earlier discussed, the prosecution case is incapable of discharging proof of the allegations beyond a reasonable doubt.

CONCLUSION

[169] The accused is acquitted of all counts in the indictment.

Hill J.

DATE: December 11, 2015

COURT FILE: CRIMJ(P) 640/14

DATE: 2015 12 11

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: R. v. W.B.

COUNSEL: J. Mathurin, for the Crown

A. Bhangal, for the Defence

REASONS FOR JUDGMENT

Hill J.

DATE: December 11, 2015