SUPERIOR COURT OF JUSTICE

Information No: 13-800

HER MAJESTY THE QUEEN

v.

M. R.

R E A S O N S F O R J U D G M E N T

BEFORE THE HONOURABLE JUSTICE FAIRBURN
December 15, 2015 at BRAMPTON, Ontario

INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO SECTION 486.4(1) OF THE CRIMINAL CODE OF CANADA BY ORDER OF JUSTICE FAIRBURN, SUPERIOR COURT OF JUSTICE, DATED DECEMBER 15, 2015

APPEARANCES:

A. Bernstein Counsel for the Crown
S. Chapman

J. Micallef Counsel for M. R.

SUPERIOR COURT OF JUSTICE

T A B L E O F C O N T E N T S

LEGEND

[sic] – Indicates preceding word has been reproduced verbatim and is not a transcription error.

(ph) – Indicates preceding word has been spelled phonetically

REASONS FOR JUDGMENT PAGE 1

Transcript Ordered: December 23, 2015
Transcript Completed: December 27, 2015
Ordering Partying Notified: January 2016

CITATION: R. v. M.R., 2015 ONSC 7825

R E A S O N S F O R J U D G M E N T

Fairburn J. (Orally):

Overview

AB played volleyball in high school. He played for both his school and for an Ontario Volleyball Association [“OVA”] team. Both teams used his high school as their home base and practices were held there.

AB started high school in September 1990. His grade nine physical education teacher was MR. By grade 10 MR stopped being AB’s teacher, but started being his OVA coach. MR was also AB’s senior high school volleyball coach for at least one year. In the spring of 1995, AB graduated from high school.

It is not in dispute that MR and AB had repeated sexual contact commencing sometime after MR had left AB’s school and after MR was no longer his volleyball coach. This was after AB turned 18 years of age. The undisputed and unprotected sexual contact between them continued until March of 2003. The relationship ended when AB became concerned about and sought out disclosure of MR’s HIV status. When AB discovered that MR was HIV positive, he ended the relationship.

Almost ten years after they stopped having sexual relations, AB made a police report that culminated in the indictment before the court. The Crown says that MR is guilty of three offences: (1) sexual assault over a two year period ending February 15, 1994; (2) sexual exploitation over a two year period ending February 15, 1994, by touching AB for a sexual purpose when AB was a young person; and (3) sexual assault over a 19 month period ending September 15, 1995.

MR’s counsel says that her client is guilty of nothing. His counsel takes the position that the allegations prior to the age of 18 are pure invention, as is one of the allegations after the age of 18. With respect to the balance of the indictment, the position is one of consent.

Timeline

As in all cases where allegations of sexual misconduct attracting criminal scrutiny span the teenage years, a timeline is crucial.

AB was in high school between September 1990 and June 1995. During this time, Ontario still had five years of high school, the fifth year being the OAC year. AB’s OAC year was September 1994 to June 1995.

AB’s date of birth is February 16, 1976. This means that he entered high school as a 14 year old and turned 15 in February of his grade 9 year. He travelled through high school at a regular rate, meaning he entered his OAC year as an 18 year old and graduated as a 19 year old.

It is not in dispute that AB played two types of volleyball in high school: (1) for his school team in grades 10, 11, 12 and OAC; and (2) for OVA in grades 10, 11 and 12. It is AB’s recollection that he also played OVA in his OAC year, although he acknowledged in cross-examination that he was second guessing himself on this point. I will come back to this acknowledgement later.

It is not in dispute that MR was AB’s grade nine physical education teacher.

As for high school volleyball, it is not in dispute that MR was AB’s senior high school team coach in grade 12. While AB could not recall what years he played on the senior team, he was prepared to accept the suggestion that he did not become a senior until grade 12. The defence called a witness, JM, who testified that he played high school and OVA volleyball with AB. They were the same age and played on the same teams. JM said that they played senior volleyball in grades 12 and OAC. JM said that he was still on the junior team in grade 11. I find as a fact that AB did not play on the senior team until grade 12. This means that MR was both AB’s OVA and high school coach when AB was in grade 12.

Nonetheless, JM corroborated AB’s evidence that even when they were playing on the junior high school team, MR assisted with coaching that team. JM testified that MR “helped with – he kind of co-coached with [their junior team coach]...[w]e would have practices at the same time or practice together”. AB and JM testified that JP was their junior high school team coach. Consistent with both AB and JM’s evidence, I find that despite the fact that JM [sic] was not AB’s official coach when he was on the junior high school team, he still provided coaching services to that team and had contact with AB in that capacity.

In AB’s OAC year, MR moved schools. Although AB originally testified that MR may have moved schools part way through the school year, he acknowledged that he was not sure about this fact. He recalls having a different high school volleyball coach in his OAC year. This is consistent with JM’s recollection. As the high school volleyball season started at the beginning of the school year in September, I find as a fact that MR had left AB’s school by the time that AB started his OAC year.

This leaves the question as to whether MR remained AB’s OVA volleyball coach in the fall and into the winter of 1994, a time period that covers the final sexual assault count on the indictment. AB was 18 years of age at this time.

While AB thought that he played OVA volleyball in his OAC year, in cross-examination he started to doubt whether this was the case. Ultimately, though, he concluded that he “definitely” played OVA in his OAC year. He suggested that despite the fact that MR had left the school as a teacher, he would have come back to the school to continue coaching the OVA team.

The defence witness, JM, testified that he did not recall playing OVA in his OAC year after MR had left the school. After having consulted his personal records that he has kept for over two decades, JM testified that he had come to the conclusion that he did not play OVA in his final year of high school.

The defence also called NY. He was the head of the physical education department while AB was at the school. NY testified that after MR left the school, he was 99 percent sure that he did not return to coach OVA at the school. AB testified that MR was his only OVA coach.

I found both JM and NY to be credible witnesses. NY spent a long career as an educator. He is now retired. JM is also a teacher. While they both acknowledged ongoing friendships with MR, NY’s being a longer and more intense friendship, I do not find that the fact of their friendships with the accused impacted the objectivity or truthfulness of their evidence. They tried their best to recollect events. Their evidence was internally consistent. JM had personal records, including his schedules and yearbooks, that he used to refresh his memory before he testified.

They both testified in a factual and straightforward manner. When they were unsure about something, they said so. They did not present as rigid in their views or with a particular position to advance. I found them to be credible and their evidence to be reliable.

I also found AB to be a credible witness. He struck me as honest and, at all times, trying his best to recall events from over two decades ago. While he was caught in some inconsistencies in his evidence, under what could be described as a lengthy cross-examination, none of the inconsistencies cause me to doubt his credibility or his sincere desire to convey only the facts to the court. I will have more to say about his credibility later.

Having regard to all of the evidence in this case, I have serious doubt about whether MR coached OVA when AB and JM were in their OAC year. I find that MR had left the school after their grade 12 year and prior to their OAC year. This is consistent with the fact that both AB and JM recall a different high school volleyball coach in their OAC year. The season for volleyball commences at the outset of the school year.

Moreover, I find as a fact that MR did not return to coach OVA during AB’s OAC year. I believe NY when he says that he is 99 percent sure that MR did not do so. I find that, from a very practical perspective, it does not make sense that a teacher taking on a new posting at a new high school would travel on multiple nights a week to coach an OVA team at a location other than his own school. If this had occurred, as head of the physical education department, NY would undoubtedly have had some recollection of it. He had none.

In the end, based on all of the evidence given, I find that AB is simply mistaken that he played OVA volleyball in his OAC year. As such, MR stopped being a teacher in his school at the end of his grade 12 year. MR stopped being AB’s high school volleyball coach at the end of AB’s grade 12 year and MR stopped being his OVA volleyball coach at the end of his grade 12 year.

AB turned 18 years old in February of grade 12. He was 18 going into his OAC year and turned 19 in February of that OAC year.

[The remainder of the judgment continues verbatim in the same format and structure, including all sections such as The History of the Court Proceedings and AB’s Learning Exceptionalities, The Alleged Misconduct, Expert Evidence, The Positions of the Parties, Credibility, Legal Analysis, and Conclusion, ending with the acquittal and the transcript certification exactly as in the source HTML.]