R. v. Abi-Samra, 2018 ONSC 7600

minicounsel

COURT FILE NO.: 16-RA19457

DATE: 2019/04/02

BETWEEN:

HER MAJESTY THE QUEEN

Applicant

– and –

NAOUM ABI-SAMRA

Respondent

A. Kortenaar, for the Applicant

N. Weinstein, for the Respondent

Heard: September 24 to 27, October 2 and 4, 2018 (at Ottawa)

Restriction on Publication

By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this application as the complainant may not be published, broadcasted or transmitted in any manner. This application complies with this restriction so that it can be published.

By court order made pursuant to section 539 of the Criminal Code, evidence taken at the preliminary inquiry shall not be published in any document or broadcast or transmitted in any way until the end of the trial.

AMENDED application to admit similar fact evidence COUNT TO COUNT

The text of the original Application to Admit Similar Fact Evidence Count to Count released December 28, 2018 was amended on April 2, 2019 and the description of the amendment is appended

KANE j.

1Mr. Abi-Samra is charged pursuant to ss. 271 and 151 of the Criminal Code that he:

(a) between September 1, 2013 and January 30, 2014 committed a sexual assault on K.H.;

(b) between September 1, 2013 and January 30, 2014 touched with a part of his body for a sexual purpose, K.H. who was then under 16 years of age;

(d) between January 25 and March 15, 2016 touched with a part of his body for a sexual purpose, K.M. who was then under 16 years of age;

(e) between February 1 and March 15, 2016 committed a sexual assault on S.L.; and

(f) between February 1 and March 15, 2016 touched with a part of his body for a sexual purpose, S.L. who was then under 16 years of age.

2The Crown as to each complainant’s allegations of sexual assault in the alternative seeks conviction of the defendant of the included offence of common assault.

3The Crown brought a count to count similar fact application at the close of its case at trial.

4The witnesses during this trial were the three complainants and S.H., the mother of K.M. The defence elected to not call evidence.

5The audio visual recording of each of the three complainants’ interview by police was introduced without objection into evidence.

6S. 715.1 of the Code provides that where the victim or witness is under 18 years of age at the time of the alleged acts, video recording made within a reasonable time after the alleged offense in which the victim or witness describes the acts complained of is admissible in evidence if the victim or witness while testifying adopts the contents of the video recording unless the judge determines that the mission thereof would interfere with the administration of justice.

7Any questions subsequent to the admission of the video statement into evidence regarding the circumstances in which the statement was made, the veracity of the witnesses statements, the overall reliability of the evidence, are matters for the Court to consider in determining how much weight the statement should be given: Connolly, para 19 and R. v. F. (C.), [1977] S.C.J. No. 89 (S.C.C.) para 46.

Background

8Mr. Abi-Samra was a high school mathematics teacher. He taught mathematics to each complainant in separate grade 10 classes in the same school during one semester in the case of K.H. or part thereof in the case of K.M. and S.L.

9The allegations by K.M. were reported to the school on or about March 11, 2016. That led to Mr. Abi-Samra being suspended at school and then charged in March or April, 2016.

10The school arranged for the interview in that school of existing and former students of Mr. Abi-Samra and had students write a statement as to any alleged improper conduct by him. That led to interviews by police of the complainants S.L. and K.H. and the laying of the charges based on the allegations.

11The age of each complainant at the time Mr. Abi-Samra allegedly touched them, at the time of giving a statement to police and upon testifying in this trial, respectively, are:

Date of Event Police Statement Testifying at Trial

K.M. 15 15 18

S.L. 15 16 18

K.H. 15 17 19

12Mr. Abi-Samra at the time of the alleged events in 2013 and 2016 would have been approximately 57 and 59 years of age according to exhibit 1.

13Relevant only as to what the defendant’s understanding might have been in 2013 and 2016 regarding what his employer considered to be inappropriate touching of females, is a mediated resolution of a complaint in 2010 by a younger female teacher against the defendant at another Ottawa high school where they worked at the time. The female teacher reported to their employer that Mr. Abi-Samra had stroked her buttocks on one occasion and squeezed her buttocks one month later.

14The complaint to the employer proceeded to mediation in which the female teacher communicated her allegations regarding what she considered had been inappropriate and sexual touching of her. The female teacher and Mr. Abi-Samra in mediation signed a final settlement agreement pursuant to which Mr. Abi-Samra did not admit responsibility but agreed not to be alone thereafter with that other teacher.

15The employer following the mediation:

(a) provided Mr. Abi-Samra with a copy of the school board’s policy regarding sexual harassment; and

(b) required Mr. Abi-Samra to participate in training as to harassment which he subsequently completed.

16The 2010 allegation by a teacher and the above disposition thereof is not evidence as to whether the defendant is guilty of the sex charges in issue.

K.M.

17The Crown as to counts 3 and 4 relies upon specific touching by Mr. Abi-Samra of K.M. when she was 15 years old and in grade 10, namely that he between late January and March 10, 2016, placed his hand on the upper thigh of K.M.

18Many people might describe K.M. as attractive.

19K.M. testified in a factual straight forward manner. She described herself as head strong. She did not appear to seize opportunities to overstate her allegations against the defendant. She readily admitted several points favourable to the defence during cross-examination.

20K.M. testified she did not like being touched outside of competitive sports which she played in high school. That disposition is not normally problematic for a grade 10 student during an intellectual, non-physical class such as mathematics.

21K.M. described Mr. Abi-Samra as having a high energy, exuberant personality who often expressed excitement if a student demonstrated math proficiency, or anger and sarcasm towards male students in particular if they were not making an academic effort or were not attentive.

22K.M. had been told by other students prior to the start of her math class with the defendant that Mr. Abi-Samra was “touchy/feely”.

23K.M. testified that she had difficulty in math at the start of grade 10 which the defendant noted and became the basis for her having more one on one involvement with Mr. Abi-Samra who was her math teacher during two months between late January and March 9, 2016. She acknowledged she needed the added instruction Mr. Abi-Samra provided to her which caused her math capability to improve.

24During regular math class the defendant implemented a program in which:

(a) the defendant would tutor K.M. daily during the class while the teacher in training taught the class to the other 26 students in the class; and

(b) K.M. would sit with the defendant at his desk during the class which he would review her math work and answer her questions.

25K.M. during the math class would sit at the edge of the defendant’s desk daily on an angle and partially behind his desk where he was seated at his computer. He would then move closer to her to review the math work she was performing.

26The other 26 students in the class sat at their desks and would come to the defendant and return to their desk if they had a question. K.M stated the defendant continued to have her sit daily during the class at his desk even after she felt her math capabilities had improved.

27At the defendant’s suggestion, K.M. also attended one or two early morning and approximately five lunch hour math assistance meetings with the defendant. She testified that the defendant at the early morning sessions would say hello, tell her he was happy that she was there and would then touch her arm or shoulder with some pressure. K.M. acknowledged the defendant did not touch her inappropriately at these two early morning sessions when she was alone with him.

28Two other female students were in attendance during K.M.’s meetings over the lunch hour with the defendant. These other students were either writing a test or working on their own. Two or three male students came on one or a few occasions and spent some time in that room while K.M. was present during the lunch hour working with the defendant.

Progression

29There is evidence as to the defendant touching and speaking to K.M. during the two month period he taught her which is relevant context but not conduct upon which the defendant is charged.

30K.M. testified that the defendant touched her shoulder and her hand on the first day of the semester in late January 2016, told her she had a nice smile and that she was really nice. She wondered why he was touching her but she noticed that he was touching other students and some students had told her prior to the commencement of that semester that he was a very touchy person.

Touching

31K.M. found that the defendant’s conduct towards her progressively got worse from late January until the beginning of March 2016. Initially she testified his touching of her was sporadic and occurred within the context of him encouraging her. It included him patting her shoulder and shaking or squeezing her hand when she arrived in or left the classroom.

32K.M. testified that:

(a) after one or two weeks of class, the defendant then began to touch her face, rubbed her arm and rubbed her thigh;

(b) the defendant’s touching of her increased and happened daily at each class;

(c) that after three to four weeks in the semester, the defendant’s touching of her increased, “was full on”, became constant, namely touching, rubbing or caressing her shoulders and touching her face;

(d) that approximately once per class, he would softly touch her cheek and would lean over and pinch her waist with his fingers which she understood was his attempt to make her smile and that when she did smile, he told her she had a nice smile and that she was kind and nice;

(e) that the defendant in each class would slowly with pressure rub her upper arm for two or three seconds at the start or end of helping her with her math;

(f) that the defendant frequently during class put his hands on the top of her shoulder blades and on her back while she was at her desk; and

(g) that the defendant touched her each class or complimented her upon her appearance.

33K.M. testified the defendant’s knee frequently touched her knee while she did work at his desk and as he leaned over to see her work. This touching lasted five to ten seconds she stated until she moved her leg away. Sometimes his knee would touch her knee she stated three or four times per class. She considered once an accident, but not three times.

34K.M. agreed that:

(a) she and the defendant had to be physically close behind his desk to work on her math;

(b) the knee touching was happening as he was leaning over her paper; and

(c) when the knee touching occurred, the defendant did not acknowledge that issue, did not look at her and did not apologize.

35K.M. stated the defendant twice pinched her waist to try to make her laugh because she wasn’t smiling. He would touch her thigh, her shoulder, her hand and would whisper to her that he wanted to be part of her life forever and that he loved her. One of the boys in her class asked K.M. if she was okay and whether the defendant was making her uncomfortable. She responded that it was complicated.

36K.M. testified that when she would walk up to his desk, the defendant would reach out his hand so they could shake hands, but he would then just hold and squeeze her hand and say “hi, how are you, I missed you”. He then would say that she looked very tired, that he missed her, that he wanted her to be in his presence and he would then squeeze her hand.

37K.M. testified that the defendant’s:

(a) touching of her was more intimate than his touching of other students;

(b) touching of other students in her class consisted of high-fives or his touch of their shoulder or arm; and

38K.M. testified the defendant during the class:

(a) touched and caressed her arm, her thigh, her back, her shoulder blades, her knee and her face;

(b) would rub her back after he finished helping her;

(d) held her hand and just squeezed it; and

(e) sometimes pinched the back of her hand.

39K. M. testified that:

(a) while she sat at his desk, the defendant would explain a question to her and she would then work on the math assignment;

(b) sometimes he would touch her when she got something right in math or needed help with something;

(d) after she posed questions, that is when his touching of her would start;

(e) sometimes he would grab her shoulder and say “you’ll get it,” or he would rub her thigh saying “good job”; and

(f) sometimes he would rub her face.

40K.M. testified the defendant drew a heart on one of her workbooks or her test after she said she understood his math explanation and he then smiled at her.

41K.M. testified the defendant:

(a) frequently asked her why she was sad or not smiling;

(b) kept touching her on her shoulder and her thigh specifically as he tried to cheer her up and make her smile; and

(c) would get insulted when she wasn’t smiling, would get mad and withdrawn when she said she just wanted to work on math and he would then for a period stop helping her.

42K.M. testified that the touching of her progressed to daily, constant touching of her and intimate remarks which led to her reporting this to her parents on March 10, 2016 and her mother then reporting it to the school on March 11, 2016.

43K.M. testified the defendant’s touching of her face:

(a) was a soft touch to her cheek with his fingers;

(b) happened on average once per class;

(d) nevertheless, made her feel odd because it was intimate.

44K.M. testified the defendant rubbed her upper arm every class for two or three seconds slowly with pressure at the end of helping her. He frequently touched and rubbed the top of her shoulder blade on her back at her desk, sometimes several times per class.

45K.M. in cross-examination agreed that:

(a) some of the touching of her, other than the thigh touching, was in response to her doing well with a math problem;

(b) sometimes if she was having difficulty in math, she understood the defendant touched her in sympathy or as encouragement; and

(c) sometimes when she did well in math, the defendant purposely at his desk touched her arm, her shoulder and her hand with an open and visual gestures.

46K.M. however stated that some of that touching occurred when their conversation was not math related.

47K.M. testified they had non-math related conversations in which the defendant would say that she looked tired, asked her how she was, was she okay and he would then touch her.

48K.M. testified she told six of her girlfriends about her concern that the defendant was touching her a lot. Her girlfriends she testified told K.M. that the defendant was very touchy, that he touched them also but, K.M. testified, not in the ways he was touching her.

49K.M. did not testify that defendant rubbed the back or touched the face or upper thighs of male students.

Comments

50K.M. testified the defendant repeatedly said personal things to her including: “you’re really nice”, “you have such a nice smile”, “don’t ever stop smiling.” She stated the defendant’s comments then became more intense.

51K.M. testified the defendant daily said personal things to her which made her feel uncomfortable including:

(a) approximately every second class, that he loved her and that she had a kind and pretty smile, to which she would respond, “like, can we move on”, to which he would reply “no, no, like I really love you”;

(b) at his desk, that she was beautiful;

(d) that he just wanted to kiss her right then, but he couldn’t because he was not allowed to, and once said that twice in the same class;

(e) that she was an angel and should not ever stop being an angel, often in non-math related conversations; and

(f) he on one occasion talked for 10 or 15 minutes, like a speech, saying that he just wanted to be part of her life, that if he could just have that small part of her life and that she would remember him forever, to not eliminate him from her life because he wanted to be part of her life forever; which made her feel “creeped out”.

52K.M. testified the defendant would become annoyed when she in response to his personal comments and questions asked if they could simply concentrate on math, to which he would then ignore and stop helping her.

53K.M. testified a number of the above comments were said independent of any math work she was doing.

54She agreed that his comment that he could kiss her right then but was not allowed to was said with optimistic energy in response to her having solved a math problem and that the defendant looked happy when he said that.

55K.M. did not testify she heard the defendant saying he loved or wanted to kiss a male student in the class.

Charged Conduct

Touching of Thigh

56K.M. testified that the most intimate touching of her was when the defendant on two or three occasions put his hand with pressure on her upper thigh and rubbed it until she moved her leg away. She never saw the defendant touch another student in this way.

57She felt his touching of her thigh was of a very intimate location and out of context as she was not then being “rewarded” for her math work as these touches occurred for example as the defendant read her paper or while speaking or listening to someone else. This thigh touching would continue she stated until she moved her leg away.

58K.M. testified this touching of her upper thigh made her feel very uncomfortable as the touch location was very close to an area of her body she considered to be very private, there was no reason as to her math work for that touch and she had never seen another teacher, beyond an occasional handshake or high-five, touch a student like the defendant was touching her.

59On one of these occasions, K.M. had arranged for a friend to attend the lunch hour math meeting with the defendant. The defendant, K.M. and her friend sat at a student desk with K.M. on one side and her friend and the defendant at opposite ends of that desk top. As her friend described a math problem to the defendant, K.M. testified the defendant while listening to her friend talk, reached over and placed his hand, with a little pressure but not a concrete squeeze or grab, on K.M.’s upper thigh for five to six seconds while he looked at and listened to her friend verbalize her math issue. She testified his hand was approximately one hand width away from the crease or joinder of her upper leg to her torso. His hand she stated remained on her upper thigh until K.M. moved her leg away in response to which the defendant said nothing.

60K.M. testified that as he touched her upper thigh on this occasion, she was surprised, scared and looked at him however he did not look at her.

61As to this touching of her thigh, K.M. testified the defendant was intentionally being intimate. She stated she was fine with a hand shake or a high-five from him but not this kind of touching.

62K.M. testified the defendant touched her thigh on one or two other occasions as she sat at his desk in class during which he said nothing and made no eye contact with her. K.M. testified she on these occasions responded by moving her leg away.

63K.M. testified the defendant’s hand on her thigh on the other one or two occasions was also out of context as he touched her as he was reading or thinking and not in positive response to her math performance. She testified that his touch of her thigh on one of these other occasions was at his desk, lasted less than five to six seconds and was at a lower location on her thigh closer to her knee than the above described event.

64K.M. testified she could not recall the details of the third thigh touch she referred to.

Reporting

65K.M. on March 9, 2016 told her mother about the defendant’s actions towards her. K.M.’s mother reported the matter to the school on March 11, 2016. K.M was interviewed by police on March 16, 2016.

66Mr. Abi-Samra was suspended by his employer and then charged by police.

67On April 19, 2016, a media source reported the defendant had been charged with sexual assault of a student. That news report led to discussion amongst students, media representatives attending the school, attempting to speak to students and being directed by school administrators to remain off school property. In response to the media reporting of the defendant being charged with sexual assault, some students at the school demonstrated their support for the defendant.

68The evidence is that K.M. did not discuss the defendant’s alleged misconduct towards her with anyone after speaking to her mother and then to police.

69The evidence is that she never spoke to the other two complainants about the defendant.

70There is no evidence to suggest that K.M.’s reporting of these allegations to her parents and police was discussed with or influenced by others.

71K.M. was not challenged in cross-examination with any material inconsistencies between her trial testimony versus what she stated at the preliminary inquiry or in her statement to police.

S.L.

72The Crown in support of counts 5 and 6 relies upon specific alleged touching by Mr. Abi-Samra of S.L. in grade 10, namely that he touched the breast of S.L. on one occasion and placed his hand on her upper thigh on another occasion between January 25 and March 15, 2016.

73Context involving the defendant and S.L. although not proof of the charges is a relevant considerations as argued by each party.

74Many people might describe S.L. as attractive.

75S.L. testified in a straightforward timid manner, made several admissions suggested during cross-examination beneficial to the defence and did not appear to overstate her allegations against the defendant.

76S.L. testified she was in Mr. Abi-Samra’s daily math class with about 13 girls and two or three boys and that the course began mid-January, 2016. It was in the same calendar year but a different math class than K.M. attended.

77S.L. described the defendant as an enthusiastic, energetic, friendly and popular math teacher who was motivated to help his students.

78S.L. testified that she and three other girls sat together at the front of the classroom. She described herself and these three girls as pretty, happy and outgoing. She testified the other girls in her class sat individually, were quieter, less outgoing and were different.

79S.L. stated Mr. Abi-Samra interacted mostly with her and the three girls she sat with at the front of the class.

80S.L. testified she initially had some difficulty in math and Mr. Abi-Samra as a result had her sit with him behind his desk during math class in order to work with her, even after she felt her math skills had improved.

81Mr. Abi-Samra twice offered that she could come and meet him alone at lunch time and he would work with her on math. His first offer of such was when he had his hand resting on her thigh. He repeated that offer to her two days/classes later. She did not accept these offers.

Touching

82S.L. testified that Mr. Abi-Samra started to touch her after the first two weeks of the course. Initially he touched her face, her back and touched her head almost every day. She stated this touching of her was always with a compliment in reference to her math work such as “good job”, which she interpreted as encouragement and did not think much of at the time.

83S.L. testified the defendant also touched primarily two or three other girls in her class.

84S.L. testified that Mr. Abi-Samra’s touching of her increased in intimacy over time and included him:

(a) touching her head, her hair or her face daily in class;

(b) brushing her cheek softly with his open hand;

(c) walking by her in class and placing his hand on her head and messing up her hair or holding and streaming a strand of her hair as he walked away to speak to another student;

(d) squeezing her thigh on one or two occasions in response to her statement that she understood the math question or explanation;

(e) pinching her cheeks and her nose with two of his fingers or knuckles for no particular reason as he passed by her in class;

(f) daily rubbing or lightly tapping of her arm and her back as she walked into the classroom or as he was checking her math work. She saw him do this to some of the other girls but not to the boys in her class; and

(g) in response to her raising a question, he would come to her desk and put his arm around her.

85S.L. stated that the defendant’s touching of her hair, hands and head was him being enthusiastic and friendly, but she thought it was weird. She stated however that she did not at the time consider his touching of her breast and upper thigh as friendly gestures.

86S.L became concerned and uncomfortable with the increased daily touching of her by the defendant and the nature of that touching of her.

87S.L. did not see Mr. Abi-Samra touch other girls in the class as he for no apparent reason touched her in the following ways as he walked by her at her desk:

(a) he placed and moved his hand on her head messing up her hair;

(b) softly brushed her cheek with his open hand:

(d) touched or complemented her about her hair.

88S.L. testified the defendant hugged her approximately three times per week as she sat at her desk while she asked him a math question and he responded thereto. S.L. testified she saw him hug some other students in the same way.

89S.L. testified that Mr. Abi-Samra:

(a) hugged her regularly on her side, with his arm around her back and arm, which would last for five to ten seconds while she stood at the whiteboard or upon entering, leaving or during the class. On some of these occasions, his finger tips on his hand around her arm touched her breast;

(b) hugged her from the side by putting his arm around her upper arm and squeezing it about three or four times per week as she arrived in or left the class room. He hugged some of the other girls like this as well;

(c) hugged her at her desk approximately three times per week as she showed him her work or asked him a question and he gave an explanation; and

(d) he sometimes brushed against her leg as he walked by her in the classroom.

Compliments

90S.L. testified that Mr. Abi-Samra once a week as she would enter or leave the class would complement on her appearance and that of three other girls in the class. His compliments to her and to three other female students in the class whom S.L. described as pretty, including him saying that:

(a) he liked her hair and on occasion would touch her hair upon stating this;

(b) she had nice eyes; and

Charged Event - Breast Touching

91S.L. testified that on one occasion, she and two other girls were working together and had completed a math calculation or problem at the white board. They were standing at the time and called Mr. Abi-Samri over to review their work. The three students and the defendant S.L. stated stood together facing the white board as he reviewed their work. The defendant she stated was enthusiastic and encouraging in response to their accurate work result.

92As they spoke facing the white board on this occasion, S.L. saw Mr. Abi-Samra rub the backs of the other two girls.

93While S.L. was looking at the board, the accused stood behind her and inserted his open hand by wiggling his fingers in-between and lifting her lowered right arm away from her torso and, placed his open hand against the side of her right breast. S.L. testified she then felt the defendant’s chest move against her back. Shortly thereafter, she stated, the defendant drew his hand back slightly, closed it into a fist and left his closed hand against her breast while he continued to talk about mathematics with the three students.

94S.L. testified this touching of her breast lasted approximately ten seconds until she turned around.

95S.L. testified she told her girlfriend and a few girls about this breast touching incident.

96Her impression at the time she stated was that this touching of her breast was perhaps an accident and unintended. She now feels however that it may have been intentional and not an accident as he never apologized.

97S.L. at trial testified that she interpreted this quick transition of his open hand against her breast into a closed fist, as an indication the defendant knew he had his hand against her breast which he then continued to touch with his closed fist.

Charged Event - Thigh Touching

98S.L. testified that on one occasion she was having difficulty in class with a math problem, that she went to the defendant for help and that she and he then sat behind his classroom desk. She testified the defendant complimented her work and placed his hand on her upper thigh and increased his grip thereon as he spoke and looked at her. She described his hand on her thigh as not moving, not a grab nor a caress, however he tightened his grip a bit and kept his hand on her thigh after she stated she understood his explanation, perked up her back to signal she was about to stand and leave his desk.

99His hand she testified on this occasion was approximately one of her hand’s width away from her leg and torso joint which she considered to be a very private area. She testified his hand remained on her upper thigh for approximately two minutes until she stood up and returned to her desk.

100S.L. testified the defendant on this occasion, despite her comment that she understood and her stiffening her back, continued to hold her thigh as he complimented her improved math performance and stated that with continued progress, she could be a student in his more advanced math class the following year.

101S.L. stated that the other students present in the class would have been unable to see his hand on her thigh which occured behind his desk which had closed sides.

102S.L. testified that she felt very uncomfortable on this occasion, thought it was very weird that the defendant touched her in this private area and because he was a teacher.

103S.L. testified that as he touched her thigh on this occasion, the defendant:

(a) continued to talk about mathematics;

(b) stated she could meet him over lunch hour for extra math instruction;

104S.L. agreed nothing overtly sexual occurred as he touched her thigh on this occasion other than the inappropriate location of his hand on her thigh.

105S.L. in cross-examination agreed that Mr. Abi-Samra was a popular, enthusiastic, energetic and friendly mathematics teacher who was motivated to help the students however she felt his touching of her was weird by a teacher.

106S.L. agreed that his head rubbing and patting her on the head was him being enthusiastic and affection however she still felt it was weird. She admitted that the his touching of her hair and patting her on the shoulder was the defendant being friendly and that such touching occurred in front of other students, but she then contrasted those actions with his touching of her thigh.

107S.L. as to the charged breast and thigh touches in cross-examination stated the defendant might have known or may not have known that he was touching those parts of her body.

Reporting

108S.L. testified she did not raise the subject of his touching with the defendant because she did not know how to raise it, what to say to him, did not wish to offend him and she had seen him touching other students.

109S.L. testified she did not report this touching to her parents as she did not know how to bring it up.

110S.L. testified that at the time, she understood that rape was a sexual assault but did not know whether his touching of her constituted sexual assault. She therefore did not raise the issue other than discussing his touching with a few of her friends. Upon learning the defendant had been charged with sexual assault, S.L. realized that his touching of her must also have been a sexual assault.

111S.L. saw a news article that the defendant who was then absent from school had been charged with sexual assault. She stated some journalists then came to the school and attempted to speak to students. S.L. stated that in response to this news, some students made posters expressing their support of the defendant.

112S.L testified that she remained quiet in response to this activity and did not speak to other students about her experience with the defendant.

113She testified that the school arranged for the attendance of three social workers prior to the release of the media story about the defendant being charged.

114S.L. testified the social workers spoke to students individually and asked whether anything inappropriate by the defendant had happened to them and if so, to write a statement as to what had occurred. S.L. wrote a statement regarding her experience on the day of or the day after publication of the April 19, 2016 news article about the defendant.

115S.L. testified police then called her home and spoke to her mother who then discussed the matter with S.L. and encouraged her to speak to police. S.L. agreed to and was then interviewed by police on April 28, 2016. She was 16 years old at the time of that police interview.

116S.L. testified she did not speak to K.M. or K.H. about the defendant.

K.H.

117The Crown as to counts 1 and 2 relies upon specific alleged touching by Mr. Abi-Samura of K.H. in grade 10, namely that during the September to December 2013 academic term, he on separate occasions touched the buttock and breast of K.H.

118K.H. testified at 19 years of age about her experience with the defendant who was her math teacher during the fall semester in 2013. She was 14 and turned 15 years of age in October, 2013. She was 17 on April 21, 2016 when she gave her statement to police.

119K.H. testified that:

(a) the defendant at the time was her favorite teacher and that her mathematics skills improved as a result of his teaching; and

(b) there were between 10 to 15 students in her class, of which two or three were boys.

120K.H. spoke quickly while testifying and during her police statement. Her articulation of things was clearer during her trial testimony as compared to her statement to police.

121K.H. described herself as “babbling” during her statement to police, was having difficulty expressing herself and finding words as:

(a) she was very nervous because she was being interviewed by police;

(b) her mother was present during her police interview; and

122Many people might describe K.M. as attractive.

123K.H. in her police interview stated the defendant was touchy-feely. She saw him touching other students in a non-sexual manner but had seen the defendant hug a particular female student from another class several times which K.H. thought was weird.

124K.H. stated to police that the defendant would often hug female students that went up to him, whereas he would just touch the shoulder or put his arm around the shoulder of male students.

125K.H. stated that everyone thought his general touching of students was his personality so no one really thought much more about that level of touching. She interpreted that touching of students as a signal of support as he congratulated them for correct math work.

126K.H. testified she saw the defendant rub the mid-back of other girls and pat male students on the back. She stated however that she did not see the defendant touch other students as he touched her, namely on her buttock, her breast and her lower back

127K.H.’s mother, S.H., for some reason was physically present in the interview room throughout the recorded police statement by K.H. The mother spoke on several occasions during that police interview including saying that:

(a) as a teacher, the defendant had no business playing with K.H.’s hair; and

(b) K.H.’s report that the defendant touched her in her first semester of grade 10 would mean October, 2013 when K.H. had just become 15 years of age.

Charged Event - Buttock Touching

128K.H. testified Mr. Abi-Samra touched her buttocks on one occasion in mid-October, 2013, just before or just after she became 15 years old.

129K.H. testified that on this occasion she went to Mr. Abi-Samra at his desk in class with a math question, placed her work assignment book on his desk, bent over slightly to show him her work and explained her question. The accused responded to her question which she made notes of as he spoke.

130During this event, K.H. testified that Mr. Abi-Samra, using his arm, drew her by her waist beside him whereupon he lightly rubbed her mid-back in circular motions for approximately 10 to 15 seconds. She testified the defendant similarly rubbed the back of other female students and patted the backs of male students.

131K.H. testified the defendant then rubbed her lower back for approximately five seconds with his hand, then lightly rubbed the top of her buttocks in a circular motion and then lightly squeezed her right buttock with his open hand for approximately three to five seconds. She testified that he then resumed rubbing her mid back until the end of their conversation.

132During the above touching, K.H. testified she looked at the accused who smiled at her as he spoke.

133K.H. testified this touching of her buttock caused her to feel violated, uncomfortable, taken advantage of and to freeze however she ignored the incident and did not respond thereto.

134K.H. testified she at the time felt this touching of her buttock was intentional, unrelated to the math work being discussed, however she did not want to believe it was intentional nor deal with that reality.

135K.H. testified the other students then in the class would not have been able to see this touching of her buttock as their vision would have been blocked by an elevated science laboratory platform in between them and she and the defendant.

136K.H. told police she was standing when the defendant touched her buttock, that she felt awkward when this happened but did not think anything of it then as she thought his touch of her buttock was a mistake.

137K.H. testified at trial that her thinking about whether or not this buttock touching was intentional or not, changed as she later considered the fact that the defendant did not apologize as would normally occur as it is not appropriate to touch someone there.

Charged Event - Breast Touching

138K.H. testified Mr. Abi-Samra touched her breast in approximately mid-November 2013, just after she became 15 years old.

139K.H. testified Mr. Abi-Samra on this occasion came to her at her desk, smiled and then rubbed the top of her shoulders adjoining her neck with massage-like pressure while he asked if she understood the math assignment she was doing.

140K.H. testified she had long hair at the time extending down to the level of her breasts. K.H. testified that as he spoke to her on this occasion, the defendant for the first time took a strand of her hair close to the front of her face and twirled her hair strand around his finger downwards to the level of her left breast which he then lightly squeezed the top half of with his bottom three fingers slightly bent in a cup shape. She testified the defendant then resumed twirling a strand of her hair upwards with his finger, then congratulated her on her math work, patted her shoulder and walked away.

141K.H. stated the defendant looked at her with a smile as he touched her breast but made no comment about his touching or anything sexual in nature. She testified she doubted other students present in the class would have seen the defendant touch and squeeze her breast as they were working on their own math assignments and the male student in the desk next to her desk at the time was talking to another student.

142K.H. testified that at 15 years of age, she at the time believed this touching of her was intentional but she did nothing about it as she wanted to believe it was accidental because she liked the defendant, liked the school and enjoyed going to school.

143K.H. during her police interview stated the touching of her breast occurred in conjunction with the defendant rubbing her back but she could not remember when her breast was touched.

144In her police interview, K.H.:

(a) could not remember the circumstances as to how the defendant touched her breast, whether this occurred at his desk, at her desk and whether he at the time was standing or seated;

(b) however stated that her hair at the time was long, that the defendant was touching her shoulder and her hair and that his hand then “like slipped down to my” breast and then “went back to playing with my hair”, which has similar elements to her trial testimony;

(d) stated the top part of his hand touched but did not grab her breast, then went back up and that was all of the detail she could remember;

(e) did not think anything of it, beyond a “like, what the hell, that’s awkward”, but thinking back on it, she felt most people would have apologized however he said nothing;

(f) as to his intention, stated “Maybe it was a mistake, whatever”, that she at the time didn’t think he was doing it on purpose, that she thought it was just a mistake, so she decided to “just play it off, like a mistake, awkward, like…, however looking back on it, most people would apologize but he never did”;

(g) stated other students were in the class when the defendant touched her breast. Her back on this occasion was to the other students who she felt could have seen the touching however she doubted that they were watching; and

(h) the defendant thereafter continued to touch her back and then hugged her quickly. He also would come over and tell her that he loved her, that she was beautiful and that he said those things to a lot of people.

Inconsistencies Alleged

145K.H. stated at the primary inquiry that at the time of the defendant touching her, she did not realize his touching was wrong and that she thought it had been accidental, not intentional. That acknowledgement is general and not specific to the range of touching she alleged occurred. It does not reflect the discomfort she reported to police.

146As to her trial testimony that this touching she believed was intentional and her statement to police that maybe his touching of her was a mistake, K.H. stated that at the time, she deep down did not want to believe that the touching was intentional, namely, she wanted at the time to believe it was a mistake but did not know completely that it was a mistake and she deep down believed it was intentional. She admitted she could have but did not say at the preliminary inquiry that deep down she believed that touching was intentional.

147She testified at trial that she believes she like most young people pushed the events of the defendant touching her out of her mind and simply pretended that the touching was accidental.

148K.H. testified she minimized what she said to police as she was very anxious during that interview and not comfortable explaining in the presence of her mother where and how the defendant touched her.

149K.H. testified her increased clarity as to the two events in issue is a result of being forced to recollect these events to her mother, then to police, at the preliminary inquiry, at trial and this repeated telling of events increased her recollection of the detail at the preliminary inquiry and then in her trial testimony.

150K.H. at trial testified the touching of her buttock proceeded the subsequent touching of her breast, but acknowledged she had been unable to recollect their sequence in her police statement or at the primary inquiry.

151K.H. at trial disagreed that she had changed her preliminary inquiry testimony as to the defendant’s touching of her as accidental compared to her trial testimony that it was intentional. She stated she at the time wanted to believe the touching was a mistake and her present interpretation of his actions as intentional is based upon the fact that he was smiling at her as he touched her, the length of the touches and as to the breast incident, that he then resumed rubbing her back.

152K.H. in addition testified the defendant must have known he was touching her breast and buttock, in the same way as she knows by the feel of her hand what object, like a coffee cup, she is touching. K.H. stated the defendant must have had the same interpretive capacity to know the parts of her body he was touching. She stated in addition that as to the touching of her buttock, the defendant squeezed it as compared to his prior and subsequent rubbing of her back.

153K.H. testified at trial that the defendant lightly squeezed her buttock. In her police statement she said that he touched her buttock but did not grab it.

154She agreed in cross-examination that her demonstration to the officer of how the defendant touched her breast indicates a very quick touch versus her trial testimony indicating a lengthier cupping and squeezing of her breast. K.H. explained this difference is due to the fact she was then 15 years of age, was uncomfortable in discussing or demonstrating such matters during the interview particularly in presence of her mother.

155During her police statement, K.H. stated she could not recall exactly how the defendant came to touch her breast. This is compared to the detail of her trial testimony which stated that the sequence was the hair twirling downwards, followed by his squeeze of the top of her breast with three fingers in a cup shape, followed by his finger twirling of her hair upwards.

Reporting

156K.H. testified that she did not report the breast and buttock touching by the defendant even to her classmates as she was 15 years old at the time, did not want to be questioned or doubted about her allegations and just wanted to push it out of her mind and continue on in her schooling.

157K.H. testified that in the spring of 2016 she learned at school that the defendant had been suspended from teaching. She then learned that the defendant had been charged upon seeing the news article. She stated that she previously had told her mother that the defendant was very “touchy/feely” and then sent her mother a screenshot of the news article as to the defendant’s arrest. She and her mother than had an exchange of text messages about the subject.

158In those texts, K.H. states to her mother that the defendant had touched her buttock however she thought it was an accidental touch. Her mother urged her to report her experience with the defendant however K.H. was reluctant to do so, that she wouldn’t call and that her mother could call for her

159K.H. provided a recorded statement to police on April 21, 2016 at 7:30 a.m. She testified she was very nervous and anxious in giving that statement as:

(a) that was her first encounter with police;

(b) her mother was present during her interview; and

160K.H. was diagnosed with anxiety as a young child and continued to suffer from that condition including weight loss. She missed the second school semesters in grades 10 and 12. She also had attendance issues in the second semester in grade 11.

161K.H. discussed her school attendance problem during a few psychotherapy sessions subsequent to the news story about the defendant being charged and her April 21, 2016 police interview.

162K.H. at the preliminary inquiry testified she had an “ah-ha” moment during these therapy sessions in coming to the realization that the defendant’s touching of her breast and buttock were intentional and not accidental.

163K.H. at trial testified that the “ah-ha” moment in therapy was her realization that her attendance difficulty at school was due to her anxiety about the defendant’s touching of her and her fear of the defendant again being her professor. She testified she thereupon came to the realization outside of psychotherapy, that the defendant’s touching of her was intentional and not mistaken.

164K.H. originally reported that her mother had sent her the news article of the defendant being arrested. Upon seeing their text messages shortly before trial, K.H. corrected that at trial in confirming, as stated in the texts, that she had sent the news article to her mother and not the reverse.

165Like the other complainants, K.H. testified she did not know the other two complainants and had not discussed her or their experience with the defendant with the other complainants.

Similar Fact Application

General Exclusion

166Similar fact evidence is presumptively inadmissible. It will not be admitted unless the Crown establishes on a balance of probability that its probative value in relation to a specific and important issue in the case outweighs its potential prejudice: R. v. Handy, [2002] 2 S.C.R. No. 57, paras. 31 and 55.

167Evidence of misconduct beyond the charges which does no more than blacken the character of the accused is inadmissible. That exclusion generally prohibits circumstantial character evidence as proof of conduct, namely to allow an inference from the similar facts that the accused has the propensity or disposition to do the type of act charged and is thus guilty of the charge. The dangers thereof are:

(a) reasoning prejudice, namely that the jury may be confused by the multiplicity of incidents and put more weight than is logically justified on the similar fact evidence; and

(b) moral prejudice, being the risk of conviction based on or for bad character or personhood: Handy, paras. 31, 39 and 40.

168Evidence of only general propensity or disposition inferred from similar facts is generally excluded due to its potential for prejudice, distraction and time consumption, which disadvantages will almost always outweigh its probative value: Handy, para. 37.

169This is a trial by judge and not by jury. That reduces the risk of prejudice as confirmed in case law.

170The similar fact evidence sought to be introduced is not simply to blacken the defendant’s character.

Narrow Exception

171Prejudicial similar fact evidence of discreditable character and propensity evidence about the accused beyond the misconduct charged is generally inadmissible unless the prosecution on a balance of probabilities establishes that:

(a) the probative value of such evidence as to a particular issue in the case outweighs its potential prejudice and thereby justifies its admission;

(b) the similarities or common characteristics between the conduct charged and the similar fact evidence are such that, absent collusion, it would be an affront to common sense to suggest that the similarities were due to coincidence; namely the improbability that so many complainants would independently concoct stories with so many similar features;

(d) the probative value will exceed prejudicial weight where the force of similar circumstances defies coincidence or other innocent explanation; and

(e) the inferences sought to be drawn must accord with common sense, intuitive notions of probability and the unlikeliness of coincidence: Handy, paras. 41, 42 and 47, 50, 51, 64 and 104.

172Propensity reasoning on its own is not prohibited and is usually inevitable. What is prohibited is propensity reasoning based solely upon the general bad character revealed through the similar fact evidence of discreditable conduct: Handy, para. 68.

173The probative value of similar fact evidence relates to the proof of a trial issue. The prejudicial effect thereof however relates to trial fairness. Probative value and prejudice pull in opposite directions on the issue whether it be admitted. That conflict must be resolved in the admissibility decision: Handy, paras. 148 and 149.

174The Crown submits it would be an improbable coincidence that the three complainants who did not speak to one another and did not share the details of what had happened to them with the other complainants, could independently fabricate evidence that happens to be so similar, including the touching of the upper thigh, the stroking of their hair, side hugging and touching of the breast. The allegations of wrongdoing by the defendant of and by each complainant the Crown submits are sufficiently similar to make it improbable that the acts alleged did not occur.

175The defence submits there is no validity to the Crown’s argument as to improbable coincidence given the evidence that the defendant while teaching hugged students on many occasions which supports the possibility that he on occasion unintentionally touched or grazed the body of a student.

176The evidence however indicates more intimate touching of each complainant compared to other students. That evidence alleges more than a momentary touch or grazing of the complainants.

177The defence points to the testimony of S.L. and K.H. at the primary inquiry when they testified that at the time of being touched that each believed the defendant’s touch of her thigh, buttock and breast were accidental and that their then perception at 15 years of age must weigh against the Crown’s improbability of coincidence argument and in support of the possibility that such touching was accidental and not intentional.

178S.L. and K.H.’s perception at the time as according to their above testimony was more complex than suggested by the defence.

179The defence points to S.L. and K.H.’s altered perception in their trial testimony from the preliminary inquiry that the touching was intentional and submits this altered change in perception negatively impacts their reliability which should create a reasonable doubt and prohibits the use of their testimony as similar fact evidence.

180I refer again to the above testimony of S.L. and K.H. as to their mixed feelings at the time of being touched.

181The court would expect better, more accurate appreciations of whether touching of their body was intentional or accidental if the complainants were older and had more experience with intimate touching;

182S.L. and K.H. in reporting alleged improper touching in April 2016 did so contrary to and despite the signs of protests in support of the defendant by some of their peers. They should have known that their then reporting of improper intentional touching would be contrary to that support of their peers.

183The defence submits that two incidents of the thigh touching, the two incidents of breast touching and one incident of touching a buttock amongst the three complainants are numerically insufficient to support the introduction thereof as similar fact, count to count evidence as the defendant on the evidence touched many students. This argument ignores the distinction between intimate and non-objectionable touching.

184The evidence of each complainant is not limited to general bad character evidence. Each testified as to the defendant’s popularity as a teacher in their class. It rather is evidence of the defendant exercising a level of touching of young female students and his touching of each complainant in a similar sexual and intimate manner during math class, in an environment which he controlled, often behind his desk and in the context of the complainant seeking or receiving his assistance for a deficiency in the subject.

Relationship to Relevant Trail Issue

185General disposition of the accused is not a trial issue. General discreditable disposition or character evidence independent of a trial issue is a prohibited purpose and creates moral prejudice: Handy, paras. 71 and 72.

186The probative value of the similar fact evidence is dependent upon its ability to advance or refute a disputed relevant trial issue derived from the facts alleged and/or the defences advanced or reasonably anticipated: Handy, paras. 73 and 74.

187Identifying credibility at large as the issue to which the similar facts are linked may be too broad and risks admitting evidence of mere disposition.

188Credibility is an issue in most criminal trials. Evidence that blackens the character of the accused may enhance the complainant’s credibility. The question is which of the constituent elements of the offence charged does the credibility issue relate to for which the Crown seeks introduction of the similar fact evidence: Handy, paras. 115-120.

189Issues at trial to which the similar fact evidence may be relevant and probative include:

(a) whether the complainant’s account of the abuse is credible; and

(b) whether the actus reus of the offences charged in fact occurred: R. v. J.W. [2013] ONCA No. 654, para. 41;

or as expressed in R. v. B.(R.) (2005), 2005 CanLII 30693 (ON CA), 77 O.R. (3d) 171 (Ont. C. A.) paras. 10-11:

The question to be decided was whether the sexual assaults occurred. The similar fact evidence was probative of the actus reus of the offences, which in turn depended on the credibility of the complainant’s evidence about the assaults…. (as quoted in R. v. T.B. 2009 ONCA 177 at para. 24.)

190The issue as sometimes expressed is whether the accused’s conduct with the similar fact witness(es) was indicative of a situation-specific pattern of behavior, making it more likely that he/she had engaged in the same conduct with the complainant: J.W. para. 49.

191The Crown specifically seeks introduction of the similar fact evidence as to the following trial issues:

(a) whether the touching occurred as described. This relates to whether the actus reus of the offence occurred that engages the question of the complainants’ credibility as indicated above in J.W. and B.(R.). The Crown submits the fact that the defendant had previously assaulted others in a very similar fashion is a specific disposition inference based on the improbability of coincidence and that each complainant is being truthful about the nature of the misconduct in issue;

(b) whether the touching was intentional or accidental. The Crown acknowledges the necessity to prove beyond a reasonable doubt that the touching by the defendant was intentional and not accidental. The Crown submits that the repeated touching of similar parts of the body of three individuals rebuts the possibility that the touching was inadvertent or accidental and that the similarity of the evidence tends to show deliberate, intentional touching;

(c) whether the touching was objectively sexual in nature as to the charges of sexual assault. The Crown acknowledges it must prove beyond a reasonable doubt that the touching was of a sexual nature. The Crown submits each complainant testified that the defendant’s touching of them in those locations was a violation of their intimacy and that the similarity of such feelings of each complainant rebuts the possibility that they were mistaken as to the feeling of sexual violation; and

(d) as to the charges of sexual interference, whether the touching was for a sexual purpose. The Crown acknowledges it must prove beyond a reasonable doubt that the touching was for a sexual purpose. The Crown submits that the number of times the touching occurred and the defendants accompanying expressions of love and compliments as to their beauty show a pattern which extends beyond mere congratulations, encouragement or consolation. The Crown submits the sheer number of times the inappropriate touching occurred tends to prove it was for a sexual purpose.

Touching – First Element

192The Crown submits that the uncontradicted evidence of each complainant establishes the first essential element, namely that each complainant was touched by the defendant as alleged. The defence does not dispute this as to K.M. and S.L. As to K.H.’s credibility and reliability, the Crown submits this complainant’s reporting was consistent as to where the defendant touched her. The evidence of each complainant therefore establishes it is argued the defendant’s pattern of behaviour which involved touching a female student in his class which is consistent with the similarity of touching alleged by each complainant.

Touching was Intentional, Not Accidental – Second element

193The Crown submits the defendant’s intention to touch each complainant as occurred and that such touching was not accidental is established by the estimated duration of the touch of each complainant and the context thereof, namely:

(a) K.M. - A lengthy touching of her thigh as the defendant listened to the math question being communicated by the complainant’s friend;

(b) S.L. - 10 seconds on her breast as the defendant inserted his hand in between her arm and her torso and moved his chest against her back as he stood reviewing the completed math work on the whiteboard performed by the complainant and two other female students, and two minutes on her thigh as he spoke to and looked at her; and

(c) K.H. - 10 to 15 seconds on and a squeeze of her breast and three to five seconds on her buttock following the defendant’s rubbing of her mid back and then her lower back as she sat on a chair beside him at his desk in the classroom.

Touching for Sexual Purpose – Sexual Interference

194The Crown submits that the circumstantial evidence as to the defendant’s intention establishes that his touching of each complainant in issue was intended for a sexual purpose. The defence acknowledges this element is established if the court concludes that the defendant touched the breast or buttock of a complainant.

195The Crown submits that the defendant’s intentional touching of each complainant was for a sexual purpose based upon the following circumstantial evidence:

(a) the sexual or intimate parts of the body touched of these 15-year-old girls as charged compared to the defendant’s limited, non-sexual, un-affectionate pat on the back of male students;

(b) the defendant’s regular hugging of the complainants and certain other girls in the class, his touching of their face, his squeezing of their nose with his fingers, his rubbing of their backs or shoulders, his touching of their hair as he walked by or stood beside them absent any mathematical context, his compliments of their eyes, hair, clothing and their personality; his retention of K.M.’s hand beyond his initiated simple handshake; his repeated placement of his knee against the knee or leg of K.M. and

(c) the defendant’s expressions of affection and love to certain 15-year-old female students including K.M., his wish to kiss her as well as his written communication of the affection he felt in drawing a heart on her paper;

demonstrate the defendant’s sexual attraction towards and his touching of these attractive 15-year-old female students which establishes that his touching of the complainants in issue occurred intentionally and for a sexual purpose.

196The court concludes that proposed similar act evidence relates to relevant and important trial issues as articulated above, including the defence argument that the touching charged was accidental and not intentional.

Probative Value

197Similar fact evidence will generally be probative where the trier of fact is able to legitimately infer that coincidence is objectively improbable on the basis of the defendant’s prior similar misconduct in closely comparable circumstances: R. v. J.W. [2013] ONCA No. 654, para. 41.

198It is objectively improbable that it is only coincidental that the defendant repeatedly complimented the three complainants on their physical appearance and touched these three 15-year-old girls more frequently and intimately compared to the other students in their classes while he provided each of them with daily instruction at his desk.

199Determination of sufficient probative value to be admitted requires evaluation of the degree of similarity of the alleged acts to decide whether the Crown has proven the objective improbability of coincidence: Handy, para. 105.

200The strength or probative value of the similar fact evidence may be assessed by identifying and considering:

(a) the strength, reliability, credibility and “air of reality” of that evidence, including any evidence of collusion: Handy, paras. 102, 112 and 134;

(b) whether or not such evidence extends beyond mere propensity to and whether it relates and is relevant as required to an existing trial issue derived from the alleged facts and the defences advanced or reasonably anticipated, including the importance of that issue to the issues at trial: Handy, paras. 51 and 69-75;

(c) the factors which connect or distinguish the similar fact evidence from the charged conduct to a trial issue other than propensity: Handy, para. 51; and

(d) whether or not the two set of facts are connected. Connecting factors include consideration of matter such as:

(i) proximity in time;

(i) whether the similar fact evidence is distinctively similar in detail;

(ii) the number of occurrences of the similar acts;

(iii) the circumstances surrounding or relating to the similar acts;

(iv) distinctive features unifying the similar acts and the offence charged; and

(v) any other events or factors which tend to support or rebut the underlying unity of the similar acts and the offence charged: Handy, paras. 51 and 76 – 84, as summarized in R. v. K. (C.P.), 2002 CanLII 23599 (ON CA), [2002] O.J. No. 4929 (O.C.A.), para 30.

201The court’s analysis and consideration whether to admit should halt if the similar fact evidence is not capable of supporting the inferences sought by the Crown: Handy, para 136.

202If the accused while opposing admission of the similar fact evidence does not deny that it occurred, the absence of denial enhances the probative value of the similar fact evidence: J.W. para. 50. In this regard, the defendant in this case, subject to the issues of reliability and whether the touching was intentional or accidental, does not deny the alleged touching of the complainants.

Degree of Similarity Including Proximity in Time, Detail Similarity, Circumstances, Number of Occurrences and Distinctive Unifying Factors

203Similarity or connectedness is the principal factor as to probative value, namely the degree of distinctive features or uniqueness as to the issue in question: Handy, para. 76.

204Not all connecting factors are required or exist in each case: Handy, para. 84.

205Similarity does not require strong peculiarity or unique distinctiveness between the events being compared, however, the presence of “calling cards”, “signatures”, “hallmarks” or “fingerprints” are persuading and describe propensity at the admissible end of the spectrum because the pattern of circumstances in which the accused is disposed to act in a certain way are so clearly linked to the charged offence that the possibility of mere coincidence, mistaken identity or mistake in the character of the act is so slight as to justify consideration of the similar fact by the trier, since it is no longer “pure propensity” or “general disposition”: Handy, para. 81 and 91.

206Not every dissimilarity is fatal. Similar fact evidence need not be conclusive as to the issue: Handy, para. 97.

207The search for similarities is a question of degree. Substantial dissimilarities however may weaken probative strength and aggravate prejudice by compounding confusion and distraction: Handy, para. 127.

208Where the similar fact evidence is introduced as to the issue of identity, distinctive features amounting to a “signature” may be required. Less cogent similarities may be sufficient to render the similar fact evidence admissible if its introduction relates to the issue of actus reus. The cogency of similar fact evidence may arise from the repetitive and predictable nature of the conduct in closely defined circumstances: Handy, para 81, J.W., para 54 and R. v. Cresswell, 2009 ONCA 95, para. 9.

209As to the test whether the similarities are truly compelling, the level of similarity between sexual acts, although relevant, are often not as compelling as the circumstances surrounding the incidents. A kiss versus a hug may not be as relevant given the sexual nature of each. One act occurring in a bedroom versus another in a basement may simply be attributable to privacy opportunity: R. v. L.B., [1977] O.J. No. 3042 (C.A.).

210The count to count similarities include the following:

(a) each female complainant at the time was 15 year old, grade 10, mathematics student of the defendant;

(b) each of the complainants was experiencing difficulty in mathematics and as a result needed and received one on one instruction and time with the defendant teacher; and

211The charged touching of the complainants has similarities and differences with the alleged touching of two of their upper thigh and breasts versus the touching of the buttock of only one. The defence further argues these are insufficient in number.

212There is no minimum number of occurrences required.

213Similarities experienced by each complainants include::

(a) their academic dependence on the defendant to address their similar then math difficulties and the resulting physical proximity the defendant created to address that issue;

(b) the alleged touching of each complainant occurred without sexual comment or apology by the defendant;

(c) the defendant praised each complainant as to their physical appearance and touched each of them beyond the contact charged;

(d) the upper thigh touching with pressure of K.M. and S.L. is virtually identical;

(e) there is alleged breast touching unrelated to math instruction or performance as to S.L. and K.H.; and

(f) the complainants were each children at the time in an environment controlled by the defendant.

214There are sufficient distinctive similarities to create probative value that the touching complained of is not coincidentally similar. The degree of similarity has probative value.

Reliability, Credibility and “Air of Reality” of the Evidence

215A judge on a similar fact application may consider the credibility of the similar fact evidence where its admissibility is dependent upon probative value: Handy, para. 134.

216The defendant submits:

(a) K.M. and S.L at the time when the defendant touched their thigh had different interpretations. K.M. was offended and felt the defendant’s touch was intentional whereas S.L. interpreted it as an accidental touching. Their contrary interpretations therefore are not similar fact probative evidence as to the issues of whether the touching on that part of their bodies, in the case of sexual interference, was for a sexual purpose or in the case of sexual assault, whether the act objectively was sexual. It is submitted that such contrasting testimony has no similar fact probative weight as required to exceed its prejudicial value;

(b) K.M.’s then aversion to physical contact with others made her relationship with Mr. Abi-Samra who frequently touched students problematic, unlike the more accepting nature by S.L. and K.H. of the touching by that teacher which made their relationship with that teacher and their interpretation of his conduct different from and not similar to that of K.M., with the result their evidence should not properly be admitted as similar fact evidence; and

(c) the trial testimony of S.L. and K.H. is inconsistent to their statements to police and/or at the preliminary inquiry wherein they stated that at the time of the touching, they initially considered the touching by Mr. Abi-Samra was accidental or unintentional versus their contrary belief after he was charged and at trial that such touching was intentional and their trial testimony to that effect renders their testimony unreliable, prevents that evidence bolstering the evidence of another complainant’s testimony of the defendant improperly touching her. The resulting lack of probative value of such testimony thereby prevents it exceeding its prejudicial effect and defeats admission of this evidence as similar fact evidence.

217The defence submits that the testimony of K.H. is unreliable and therefore lacks sufficient probative value as similar fact evidence to exceed its prejudicial impact as:

(a) her statement to police was very vague, lacked particulars and included several instances of her stating she could not remember things. That vagueness is in stark contrast to her detailed and specific recollection of details during her trial testimony;

(b) K.H.’s complaint, unlike the other two complainants, was only made years subsequent to the events and as a result of a news story in 2016 that the defendant had been charged;

(c) her complaint was made after electronic exchanges with her mother who suggested the touching identified might have been inappropriate;

(d) K.M. admitted she misled her mother as to the touching by Mr. Abi-Samra;

(e) K.H.’s original version of whether she or her mother sent the other the news story about the defendant being charged changed between her testimony at the preliminary inquiry and at trial;

(f) K.H.’s version that she had previously told her mother about the defendant improperly touching her and her mother acknowledging K.M. having told her that in April 2016 text messages between them are contradicted by such text messages;

(g) K.H.’s statement to police was very vague, lacked particulars and included several instances of her stating she could not remember things. That vagueness is in stark contrast to her detailed and specific recollection of details during her trial testimony;

(h) K.H.’s statement to police of how and where her breast was touched is very different than her testimony at trial;

(i) K.H. in her police statement indicated her initial interpretation that the defendant had touched her accidentally which she then contradicted at trial in testifying that she believed that touching was intentional;

(j) K.H.’s preliminary inquiry testimony that her realization during physiotherapy after learning the defendant had been charged that his touching of her as charged was intentional then changed at trial when she testified that such realization moment was not whether he had so touched her intentionally, but rather that his touching of her was the reason she stopped attending the second school semester in 2016 and 2017;

(k) the trial testimony of K.H. and her mother demonstrate collusion between them; and

(l) the trial testimony of K.H.’s mother, intended to corroborate K.H. reporting at the time about the inappropriate touching by the defendant to the mother, is not supported by the evidence and is not credible.

218Justice Hill in R. v. Plews, 2010 ONCJ 370, para 377, as to credibility and reliability on a similar fact application at trial indicates the review thereof at the application stage is preliminary with the full determination thereof to occur in the court’s ultimate determination of those issues in deciding whether the accused has committed the offences charged.

219The complainants each testified and corroborated the testimony of the other two complainants:

(a) that the defendant was a popular math teacher who energetically complimented math comprehension and was energetically critical, particularly to males, for lack of comprehension or misconduct;

(b) that the defendant frequently touched students upon entering, leaving and during his math class but touched the females versus males in different locations and in different ways; and

(c) their immediate reaction upon being touched was to consider that touch as possibly accidental and not intended and sexually related, but then reasoned and concluded his touching in that manner was intended.

220Counsel agree that the test on a charge of sexual assault as to the existence of a sexual context of the assault is accurately stated in R. v. T., 1985 ABCA 51, para 19 as follows:

(a) it is essentially an objective test in the mind of a reasonable observer viewed in light of all the circumstances;

(b) the victim’s observations as to any accompanying act, word, expression, and gesture may assist in determining whether the act had a sexual aspect

(d) a victim’s standards may be unduly sensitive judged by contemporary standards.

221The perception of these 15-year-olds at the moment accordingly is relevant but not necessarily determinative. That correspondingly diminishes the potential weight of S.L.’s and K.H.’s subsequent consideration and conclusion that the touching was intentional.

222Surrounding circumstances as to these complainants’ immediate interpretation or appreciation as what the defendant intended at the time of touching them includes the following:

(a) S.L.’s and K.H.’s initial interpretation as to the then unstated intentions of the adult male who touched them was speculation on their part;

(b) each complainant upon being touched was 15 years old. Female children of that age commonly have less experience to evaluate and interpret such intimate touching and the intentions of a 50-year-old male in a position of authority who they otherwise like, enjoy and academically need; as compared to a 25 to 35-year-old female who may have been involved in one or more prior affectionate or intimate encounters or relationships;

(c) the 50-year-old defendant at the time was head of the mathematics department in their school and their math teacher, a subject each complainant was experiencing difficulty with which could impact their academic advancement; and

(d) it is not uncommon for 15-year-old students to place considerable trust in an adult teacher and defer to the actions and decisions of that adult authority, who would determine whether they would pass or fail the subject course.

223S.L.’s, K.H.’s and K.M.’s relevant but initial interpretation as to whether the defendant intentionally or accidentally touched them remains their speculation as 15-year-olds and is of limited weight.

224The evidence is the defendant upon touching each complainant said nothing. He allegedly withdrew his fingers from S.L.’s breast which might indicate his open hand was inserted against her breast but he then maintained his closed hand against her breast.

225Interpreting this alleged touching as accidental is problematic as most or all 50-year-old males are aware of what they are doing as they place and then leave their hand, with or without pressure, on the upper thigh of a female they are not in a personal relationship with, approximately one hand width from the entrance to her vagina, twirl a girl’s hair downwards and then place their hand upon and lightly squeeze the breast of such a female or squeeze the buttock of a female.

226Each of the touches in issue occurred in a quiet, academic and non-physical setting and on the evidence, did not occur in conjunction with the defendant verbally congratulating the complainants upon their then mathematical performance. The testimony of each complainant indicates the touches in issue were then independent of any academic intellectual event.

227It is inaccurate to state that S.L. and K.H.’s full police statements and preliminary inquiry testimony contradict their trial testimony.

228The nature of the alleged touching, the location thereof, the duration of the touching and S.L.’s and K.H.’s then feelings of surprise and embarrassment due to the part of their body being touched contradicts their then interpretation, or resignation, of the contact being a momentary accidental touch or graze of the defendant’s hand.

229Despite her aversion to being touched, K.M. rationalized her acceptance of some of the initial less intimate touching by the defendant.

230These are reliability issues as to K.H.’s testimony.

Number of Occurrences of Similar Acts

231The defence submits this count to count similar fact application must be dismissed on the grounds that the thigh touching of K.M. and S.L. are on the evidence only two of the many instances of Mr. Abi-Samra touching female students’ knees, hugging them and messing up their hair. These many occasions of touching by him it is submitted leads to the possibility of occasional unintended grazing of students or touching them thereby eliminating the weight of the count to count similar fact evidence to constitute too many instances of improper touching to be accidental or beyond coincidence.

232An alleged pattern of similar fact conduct may gain in strength with the frequency of its occurrence: Handy, para. 128.

233This defence argument ignores the difference between a knee versus a female breast or buttock. It ignores a momentary graze versus placement of the hand for an extended period on an intimate part of another’s body.

234The admissibility of similar fact evidence is not however a number exercise as:

(a) the question is not the number of similarities or the number of witnesses presented by the Crown. The question is whether the defendant’s conduct towards the similar fact witness was indicative of a situation specific pattern of behaviour such that it was more likely that he had engaged in the same or similar conduct with the complainant; and

(b) consideration cannot be limited to the number of similarities versus the number of dissimilarities. Consideration must include a contextual consideration of their qualitative nature, value, force and the issue to which the evidence is directed: J.W., paras. 49 - 54.

235For the above and reasons previously stated, I would not dismiss this application as to this requirement.

Time Proximity of Similar Acts

236The possibility of maturing and character reform increases over time and may undermine the premise of continuity of character. Time remoteness may affect relevance and reliability: Handy, para. 122.

237The alleged touching of K.M. and S.L. occurred in the same academic term whereas that of K.H. occurred two years earlier. This is not a case of reporting many years later.

238There is sufficient time proximity between these three sets of alleged acts.

Collusion

239Collusion between the complainant of the charged offence and the other person alleging the similar facts evidence prevents introduction of the latter evidence as it destroys the argument that they are too similar to be credibly explained by coincidence: Handy, para. 104.

240The court in Plews, para 378, states:

(a) some discussion between a complainant with friends and family as to unwanted touching by an adult is not unexpected; and

(b) a complainant should not be criticized for not reporting or speaking to others.

241The issue as to collusion is concoction or collaboration, not contact with or the opportunity to concoct or collaborate: Handy, para. 111 and J. W., paras. 36 and 37.

242Collusion in the similar fact analysis is broader than the deliberate collusion as determined by the Ontario Court of Appeal in R. v. B. (C.), 2003 CanLII 32894 (ON CA), [2003] O.J. No. 11 (Ont. C. A.) para. 40. It includes a deliberate agreement to fabricate evidence as well as communication among witnesses which can have the effect consciously or unconsciously of colouring or tailoring their descriptions of the events in issue: R. v. Connolly, 2017 ONCJ 370.

243The evidence of each complainant establishes that there was no communication or collusion between the complainants as to their allegations of misconduct by the defendant. The similar fact evidence should not be excluded on the basis of collusion as there was none as between the complainants.

244The defence instead submits that the evidence of S.L. and K.H. is tainted as they only communicated their allegations against the defendant upon learning that he had been charged with sexual misconduct. See R. v. Rem however, paras 49 to 51 and 105, where the court determined that each witness despite news stories and lots of rumours, recounted their own memory and thereupon convicted the accused.

245The defence does not submit collusion or tainting in regards to K.M.

246The issue is as to possible tainting of the evidence of S.L. and K.H. as their allegations came forward after publication of the news article that Mr. Abi-Samra had been charged, the resulting attendance of media at the school, discussion of that subject amongst students generally and demonstrations by some students with placards in support of the defendant in response to him being charged.

247Potential for tainting may arise from the way in which the complainants gave their plea statements, namely they came forward either after they heard about the charges or after being contacted by police because they were former patients of the defendant: R. v. C. (T.) 2005 CanLII 371 (ON CA), [2005] O.J. No. 24 (O.C.A.) para. 58 and Connolly para. 41.

248If the self-identification of the victims was tainted, the cogency of the unlikelihood of that coincidence could be significantly undermined: C. (T.) para. 58 and Connolly para. 41.

249S.L. testified that she went home in response to the commotion at school created by the news report of the defendant being charged, the attendance by media at school and the demonstration of support by some students. Her departure from school thereby limited her exposure to school activity.

250S.L. and K.H.’s subsequent report of wrongdoing was it is noted in opposition to the signs of student support at school for the defendant which counters the defence argument that events tainted their allegations against the defendant.

251S.L. and K.H. had elected to not report the defendant’s touching prior to the report he had been charged. That is relevant evidence but does not contradict or necessarily override their explanations that they as 15-year-olds simply, in isolation, elected to “move on” and not confront this popular teacher.

252The court’s difficulty with the reliability of K.H.’s testimony as herein after indicated renders academic whether her allegations were tainted by the news of Mr. Abi-Samra being charged and the resulting discussions and protests in his favor at the school. I would in the alternative however hold that the evidence is insufficient to support a conclusion that her testimony was tainted by such events against the defendant as her reporting of wrongdoing was contrary to the signs of support by her peers at school in support of the defendant which supports its credibility.

Prejudice

253The Crown as to prejudice points to this being a judge alone trial thereby substantially reducing the risk of prejudice. The Crown further submits the probative value outweighs any potential prejudice given the high level of similarity between the misconduct alleged against these three complainants.

Reasoning Prejudice

254Distraction of the trier from the offence charged in dealing with multiple allegations or incidents by another in different circumstances resulting in the consumption of additional time are important considerations.

255The risk of reasoning prejudice is considerably reduced and generally minimal in judge alone trials: J.W., para. 57, R. v. Roks, 2011 ONCA 526, para. 94 and R. v. T.B., 2009 ONCA 177, para. 27.

Moral Prejudice

256Moral prejudice is the risk of an unfocussed trial and a wrongful conviction involving the forbidden chain of reasoning which infers guilt from general disposition or propensity, namely that if believed, the evidence shows the accused has discreditable tendencies. The risk is a verdict based on prejudice rather than proof: Handy, para. 139.

Reduced Prejudice in Judge Alone Trial

257The risk of a moral or reasoned prejudice is greatly reduced in a judge alone trial as in this case, as stated by Borins, J.A. in R. v. T. B., 2009 ONCA 177, and relied upon in J.W., para. 57:

27… As trial judges are presumed to know the law and the proper and improper uses of evidence, it seems counterintuitive that similar fact evidence could be excluded in a nonjury trial based on the trial judge’s determination that the evidence infuse him or induce him to put more weight on it than is logically justified.

28In his lecture entitled “Similar Fact Evidence” in Special Lectures 2003: The Law of Evidence (Toronto: Irwin Law, 2004), Rosenberg J.A. wrote, at p. 414:

The similar fact rule is very much driven by the jury system and the danger that laypersons will give undue weight to frail but highly prejudicial evidence. A similar view was expressed by this Court in R. v. W (L), 2004 CanLII 33349 (ON CA), [2004] O.J. No. 4163, (C.A.) at para 9:

It is important to keep in mind that the risk of prejudice was much reduced because of the fact that this was a trial by Judge alone …

33… This was a nonjury trial, in which the danger that an accused would be convicted solely on the basis of his general bad behaviour was not a significant concern. Moral prejudice is not a significant risk in a judge-alone trial.

258Reasoning prejudice and moral prejudice raise legitimate concerns in a jury trial, but less so in a judge alone trial: T.B., para. 26.

259Prejudice could be restrained by limiting the extent and nature of the similar fact witness’s evidence to be led: Handy, para. 142 and R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670.

260I would not in this judge alone trial on the above authorities dismiss this count to count, similar fact application due to the risk of moral or reasoning prejudice.

Conclusion

261On balance and after hearing the evidence of each complainant, the Crown has established that the evidence of each complainant is not deprived of a safe level of independence and is not impermissibly compromised by tainting which would prohibit its introduction as similar fact evidence.

262This count to count similar fact application is granted as to the evidence and counts related to K.M. and S.L.

263There is an issue as to the reliability and therefore the probative value of the evidence of K.H. for the reasons stated by the defence above and as further analyzed below. The applicant as to using the evidence of K.H. and counts 1 and 2 as similar fact evidence is dismissed.

264The court will now proceed with the analysis of the charges against the defendant.

Charge Analysis

265Sexual comments made by a 50-year-old male teacher in a position of authority at the time of touching the breast, buttock or thigh of a 15-year-old female student may well indicate whether that touching was accidental, intentional and whether it as of a sexual nature or for a sexual purpose.

266The absence of comment by that male at the time of touching is, subject to the circumstances, not evidence that the touch was unintended or accidental.

267The touching events in issue occurred in the environment of teaching and learning mathematics. That subject involves intellectual analysis, not physical activity or activity occurring within a physically active environment such as a school gym class, a school team sport event or practice as was the case in some of the case law relied upon.

268The defence in argument acknowledge that if this Court finds that the defendant intentionally touched the breast or buttock of a complainant, there would in that case be no issue whether that touching was of a sexual nature and would thereupon lead to the legal conclusion that a sexual assault had occurred.

269The defence acknowledges that the issue whether the touch was of a sexual nature relates only to the charges based upon the defendant touching the thighs of K.M. and S.L.

Witness Credibility and Reliability

270Honest witnesses may convince themselves that inaccurate versions of a given event are correct and they can be very persuasive. The issue is the reliability and not the sincerity of the witness. Demeanour is a factor in assessing credibility but is of little assistance in assessing reliability. Inconsistencies between what a witness testifies to versus what they said on a previous occasion is an appropriate consideration in assessing a witness’s credibility. Inconsistencies on minor matters or matters of detail are normal and generally do not affect credibility witness. One or more inconsistencies involving material matters based upon a review of all of the evidence can justify concluding that the witness is not a credible or reliable: R. v. S. (W.) 1994 CanLII 7208 (ON CA), [1994] O.J. No. 811 (Ont. C. A.) para 19 and Connolly, paras 64, 67 and 68.

271The existence or absence of a motive to fabricate an allegation which the Crown argues applies to all three complainants, is an appropriate consideration but only one factor to consider in determining the credibility and reliability of the complainant’s evidence which must be considered in light of all of the evidence. It is not appropriate to conclude that the absence of a reason to lie results in the conclusion the witness must be telling the truth: Connolly, para. 70 and R. v. B. (K.G.) (1993) 1993 CanLII 116 (SCC), 79 CCC. 257 (S.C.C.) at 300.

K.M.

272Collusion or tainting is not as stated relevant regarding K.M.’s testimony.

Sexual Assault

273The Supreme Court in R. v. Ewanchuk 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330 at 347 and 363 and the Court of Appeal in R. v. Semchuk, 2012 BCCA 389, para. 13 held:

(a) the actus reus of sexual assault has three elements:

i) touching;

ii) the sexual nature of the contact; and

iii) depending upon the age of the complainant, the absence of consent;

(a) the sexual nature of the offense is an objective determination. An accused does not have to intend that the touching be of a sexual nature;

(b) the mens rea requirement is established by proof that the defendant intended to touch the complainant and knowledge of the complainant’s lack of consent

274The Supreme Court in R. v. Chase [1987] S.C.R. 293 held:

(a) sexual assault is an assault committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated;

(b) the issue as to whether the conduct in issue is of a sexual nature is an objective test, namely whether the sexual context of the assault based on all the circumstances is visible to a reasonable observer;

(c) the relevant context within this objective test includes the part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all circumstances surrounding the conduct:

(d) the intended purpose of the person committing the act if apparent from the evidence may also be a factor in considering whether the conduct is sexual;

(e) the existence of such a motive is simply one of many factors to be considered. The importance thereof will vary depending upon the circumstances; and

(f) the offense of sexual assault only requires a general intent, namely the intent to apply force, or to touch. A specific intent is not required: paras 11 and 12.

275The court in R. v. V. (K.B.), (1992) 1992 CanLII 7503 (ON CA), 52 O.A.C. 393, paras. 10, 11, 14 and 15; aff’d (1993) 1993 CanLII 109 (SCC), 82 C.C.C. (3d) 382 (S.C.C.) held that:

(a) a sexual assault does not require sexuality and may not even involve sexuality. It is an act of power, aggression and control;

(b) a sexual assault is an unacceptable intrusion or violation of the victim’s sexual privacy or integrity;

(d) the presence or absence of sexual gratification is but one of the overall contextual factors to be considered.

276The court in R. v. Plehanov, 2012 BCPC 563, paras 15 to 24, relied upon the Supreme Court’s decisions in Chase and Ewanchuk and the appellate decision in R. v. Lutoslawski, 2010 ONCA 207 (Ont. C.A.), aff’d 2010 SCC 49 (S.C.C.) in holding that:

(a) the actus reus of sexual assault has 3 elements consisting of:

touching;
the sexual nature of the contact; and
the absence of consent;

(b) with the first two of those elements being objective;

(c) the Crown, as to the sexual nature of the contact, need not prove that the accused had a sexual, improper or ulterior purpose; and

(d) the question rather is whether the touching of the complainant occurred in circumstances of a sexual nature such as to compromise the sexual integrity of thr complainant.

277The defence in argument stated it did not dispute that the defendant touched the thigh of K.M. at the lunch hour session that she and her friend attended, the location on her thigh or the physical nature and length of that touch including the level of force from his hand as testified to by K.M. This acknowledgment establishes the first element that the defendant touched her.

278The defence identified the issues as to counts 3 and 4 regarding the thigh touch of K.M. are:

(a) whether that touch pursuant to s. 271 was accidental or intentional;

(b) whether that touch pursuant to s. 271 was objectively of a sexual nature; and

279The defence argued the relationship between the defendant and K.M. was problematic as the evidence indicates that the defendant touched many students as his form of congratulation or affection towards them whereas this complainant was opposed to being touched. K.M. however in her testimony drew this same distinction as to the defendant’s touching of her.

280The defendant submits that K.M.’s aversion to being touched and the fact that the defendant touched her hand, waist and face on other occasions colours her perception as to his touching of her thigh and her interpretation thereof as it having been intentional accordingly carries no weight.

281The fact K.M. disliked being touched outside of sports does not impact the place, nature, duration and the context of the touch in issue.

282The defence acknowledges the objective person test as referred to in Taylor, para. 19 applies in determination whether the touching was of a sexual nature as to the charge of sexual assault.

283The defence points to the original interpretation, or resignation perhaps, of S.L. when the defendant touched her thigh as an event she did not consider as objectionable, in support of the allegedly unobjectionable nature of touching the thighs of S.L. and K.M. and to support the defence argument that the Crown, as to K.M., had failed to prove the touch of her thigh was of a sexual nature pursuant to s. 271 or done for a sexual purpose pursuant to s. 151.

284The defence’s reliance in the above argument to the comparable interpretation of S.L. as to her thigh being touched reinforces the court’s conclusion to admit similar, relevant count to count evidence of and between K.M. and S.L. which may strengthen or weaken the Crown’s case as to each complainant.

285It is not credible that a 50-year-old male places his hand on the upper thigh of a female with pressure for five to six seconds and does not intend to do so. The defendant knew at the time he was not touching her hand, wrist, arm or knee. This thigh touch of K.M. was intentional.

286Any objective observer would consider the defendant’s intentional placement of his hand on the upper thigh of K.M., approximately one hand’s width from her torso/leg joint, for the length of time involved, as he listened to K.M.’s friend describe a mathematics issue, to be touching of a sexual nature. There is no merit to a contrary interpretation in the context of this event.

287Intentional touching of a sexual nature therefore is proven on the criminal standard.

288The defendant accordingly pursuant to s. 271 is guilty under count 3 of sexually assaulting K. M. for this thigh touching during this lunch hour meeting.

289The above conclusion includes consideration of the similar fact evidence of S.L. as to the defendant’s touching of her thigh, but without consideration of the thigh touching evidence of K.H.

290The court in the alternative finds the defendant guilty of sexual assault of K.M. independent of that similar fact evidence of S.L.

Sexual Interference S. 151

291The offence of sexual interference requires proof of a specific intent to touch for a sexual purpose: R. v. Sears (1990), 1990 CanLII 10938 (MB CA), 58 C.C.C. 3d) 62 at 64 (Man.C.A.) and R. v. Michel, [1993] B.C.J. No. 321 (QL) (S.C.) at paras. 5-7.

292The court in Plehanov, paras 25 to 27 and 30, in relying upon the decisions in Sears, at 64 and Michel at paras 5-7 and R. v. B.(G.), [2009] BCCA 88, cites the essential elements of the offence of sexual interference are:

(a) s. 151 requires proof of a specific intent to touch for a sexual purpose;

(b) an accused who intends sexual interaction of any kind with the child and with that intent makes contact with the body of the child “touches” the child and is guilty of an offense. The Crown must prove the touching happened specifically for a sexual purpose. That however does not necessarily require that the sexual purpose be the accused own sexual gratification. The question is whether the sexual purpose is apparent from the circumstances;

(c) the only content required is that the touching be for a sexual purpose which is an issue to be determined on the facts; and

(d) the only intent required is that the touching be for a sexual purpose.

293Counsel appropriately cautioned the court to not speculate. Given the lack of direct evidence as to the defendant’s intent and the limited circumstantial evidence as to his intention in placing his hand on K.M.’s upper thigh I am not satisfied on a criminal standard as to the sexual purpose element under s. 151 in count 4.

294Count 4 accordingly is dismissed.

S.L.

295The defence does not dispute S.L.’s testimony that the defendant on the one occasion in issue touched the thigh of S.L. at his desk and touched the S.L.’s breast on another occasion with his open hand which he then withdrew into a fist shape, the location of that touching or the physical force applied.

296The defence as to counts 5 and 6 identified the issues involving the allegations of S.L. are:

(a) pursuant to s. 271, whether these touches of her breast and thigh were accidental or intentional;

(b) pursuant to s. 271, whether the touching of K.H.’s thigh or breast were objectively of a sexual nature; and

297The defence submits the evidence establishes a context of the defendant giving side hugs and messing up the hair of numerous female students in the classroom which was part of the defendant’s teaching mode and personal nature.

298There is no evidence what “teaching methodology” the defendant intended or used. The evidence is he touched several female students more frequently and differently than he touched male students.

299The evidence indicates that the defendant was an energetic, exuberant individual who frequently touched students and more particularly, female students. The defence submits that that level of touching supports the possibility of an occasional unintentional grazing touch including the two touches in issue.

300The defence points to S.L.’s admission at the preliminary inquiry that at 15 years of age at the time of the touches, she perceived the two touches in issue by the defendant were accidental and did not consider them intentional or of a sexual nature until she learned the defendant had been charged with sexual assault.

301The defence argues that this change in position by S.L. upon her learning that the defendant been charged with sexual assault:

(a) negatively impacts the reliability of her trial testimony that she believes the touching of her was intentional;

(b) which should therefore create a reasonable doubt as to the charges; and

(c) prevents the use of her testimony as similar fact evidence or materially reduces the weight and use of her testimony to bolster the testimony of another complainant.

302The alleged “change of position” relied upon by the defence must be examined carefully as to whether it relates to the frequent touching by the defendant which S.L. did not find offensive versus his touching of her breast and upper thigh which she negatively interpreted at the time. S.L.’s admission as to her interpretation of the defendant’s touching does not address this distinction.

303It is also relevant to keep in mind that there was approximately only six to eight weeks of S.L.’s math class taught by the defendant during which this touching occurred, the March 11, 2016 report to the school by the parents of K.M. and the defendant’s absence from the school prior to the April 19, 2016 news article stating he had been charged with sexual assault. This is not a case of a complainant adopting and maintaining a contrary interpretation of events for a material period of time and then changing that interpretation thereafter. Although the specific touching dates are unknown, the touching objected to by S.L. remained recent, particularly involving a 15-year-old.

304S.L. in her April 28, 2016 police interview was clear:

(a) that she did not think much about the defendant’s touching of her in the first two to three weeks of the course because he was similarly touching three other girls in the class and it was occurring as he congratulated them on their math performance; and

(b) that his touching then became a concern for her as it increased to daily touching and advanced to include being hugged, touching her face, nose, hair, the side of her breast and her upper thigh which made her feel really uncomfortable, caused her to ask herself what was he doing and led her to conclude that was “how he was, like just really touchy-feely”.

305The above statements to police, similarly repeated at the preliminary inquiry suggest resignation by a 15-year-old, not acknowledgement that her underlying feeling of discomfort in being touched like this was unjustified.

306The defence points to the fact that the defendant not only touched S.L.’s thigh but also the thigh of her friend A. and that of K.M. This is another of several instances during argument where the defence used similar fact evidence in support of his argument that the Crown had failed to meet the criminal standard of proof as to one or more of the criminal charges.

307S.L.’s statement to police and at trial are clear that the defendant was principally touching herself and three other girls in her class, not all the girls nor the three boys.

308As part of context, the defence points to the fact that the two touches in issue occurred in the classroom with other students present who could possibly have seen the touching and that there were no accompanying words outside of the subject of mathematics.

309The defence acknowledges the possibility that touching without comment may be a follow-up to earlier flirtatious comments but points to S.L.’s testimony that the defendant made similar comments to other female students and the testimony of K.H. that the defendant made comments like that to her which she placed no import on. The defence submits therefore that the court cannot conclude that the defendant’s comments to S.L. demonstrate his touching of her thigh is a follow-up to his previous flirtatious comments to her.

310The defence submits that based upon these actions and the surrounding context, the court can and should infer that the defendant thought nothing at the time of placing his hand on the thigh of S. L. and that that such touching therefore:

(a) was not intentional and was not objectively sexual pursuant to s. 271; and

(b) was not done for a sexual purpose as to s. 151.

311Although appropriate cross-examination, much of the preliminary inquiry examination of S.L. consisted of defence counsel making sometimes lengthy statements of fact, occasionally including multiple facts, and S.L. most often simply responding “yeah”, S.L. on a few occasions disagreed or adding a short qualifier to the statement put to her.

312S.L., then 17 years of age at the preliminary inquiry:

(a) stated that she like other students in her class was asked by the social worker to write a statement if anything odd had happened to her in her math class involving the defendant;

(b) stated that during the several weeks he was her math teacher, the defendant gave her side hugs, patted her on the back, ruffled and touched her hair, sometimes in the context of encouraging her math work but other times independent of math work;

(c) independent of the instances of touching she found troubling, stated as to the defendant’s general touching of herself and her class mates, that “they” thought he was an affectionate kind of person, found his touching a bit strange but it was happening to all her fiends so “we” didn’t think much about it which changed upon the defendant being charged with sexual assault;

(d) stated she at the time felt the defendant’s touching of her face was “more odd” as compared to his ruffling or touching of her hair or his rubbing of her back;

(e) stated that the defendant placed his hand on her thigh, one or two hand widths from the top of her leg, with pressure or a squeeze, for five to ten seconds after she stated she understood his math explanation with his hand still on her upper thigh, he then asked her again whether she was sure she understood his explanation and then continued to talk until she rose to return to her desk; and

(f) stated she at the time felt this thigh touching was “strange,” “inappropriate” and according to the friends she reported this touching to, was “weird”, but she did not consider it sexual.

313It is inaccurate to argue that S.L. admitted at the preliminary inquiry that she at the time, or at the preliminary inquiry felt that all touching of her by the defendant was accidental and not intentional.

314Even without seeing the object, one is often able to know what is being touched by its texture, shape and size, such as a knee cap versus the upper thigh of a female sitting beside the person doing the touching.

315The court concludes that the context involving the defendant’s placement of his hand with pressure or a squeeze on S.L.’s upper thigh after S.L. repeatedly acknowledged she understood the defendant’s explanation, the intimate location and duration of that squeeze and the objective analysis of that touch, as articulated above as to the thigh touching of K.M., lead the court to conclude that this thigh touch of S.L. was intentional and objectively of a sexual nature thereby constituting a sexual assault under s. 271.

316The evidence is that the defendant’s side hugged S.L. on several occasions and that in doing so, the tips of his fingers touched her breast on some of these occasions as he placed his arm and hand around her back and the outside of her arm.

317As to this occasion with the three female students and the defendant each standing looking at the whiteboard and the math work the students have performed, S.L. testified the defendant while standing behind her, inserted his open hand, not around the outside of her lowered arm, but in between her upper arm and her chest.

318The defendant clearly intended to hug S.L. when he inserted his hand between her lowered arm and rib cage. It is not credible that a male places his fingers and one half of his open palm against the side of the breast of a female as he draws her towards his body and does not then know he is touching her breast. This at least resulting knowledge of what he was touching is reinforced by the partial withdrawal of the fingers into a closed hand which remained against the breast as S.L. then felt the defendant’s body move into contact with her back.

319Even if one accepts that the male’s insertion of his hand with sufficient force to pry open her lowered arm was unintentional and that he then closed his fingers into a fist upon realizing his open hand was accidentally touching her breast, that does not explain why the defendant having recognized his unintentional touching of her breast, then knowingly maintained his closed hand or fist against her breast, as he then moved his upper body against S.L.’s back as she testified to.

320If his hand insertion between her torso and arm was accidental, the withdrawal of his fingers into a fist signals his realization that his open hand was touching her breast. The defendant thereby knowingly maintained his closed hand against her breast rather than fully withdrawing his hand if the original touching was accidental.

321The defence acknowledges that touching the female breast is an act of a sexual nature.

322This analysis leads the court to conclude the Crown has proven this closed hand touching of S.L.’s breast was with knowledge by the defendant, constituted touching of a sexual nature resulting in proof of a sexual assault under s. 271.

323The court on the criminal standard cannot conclude that the defendant pursuant to s. 151 touched the breast or thigh of S.L. for a sexual purpose thereby constituting sexual interference. Although there is some circumstantial evidence as to the thigh and breast touching of S.L. being for a sexual purpose, I lack the level of certainty as to the specific intent of such touching being for a sexual purpose as required in count 6.

324On this analysis, the defendant is guilty of sexual assaulting S.L. in his touching of her breast and/or her upper thigh. I reach this conclusion with consideration of the similar fact evidence of K.M. but not involving consideration of the evidence of K.H.

325In the alternative, I make the same determination of guilt in count 5 as to the thigh and/or breast touching of S.L. independent of the similar fact evidence of K.M.

326The charge of sexual interference regarding S.L. in count 6 pursuant to s. 151 is dismissed.

K.H.

327The defence submits that K.H.’s testimony is not reliable and that the two charges based upon her testimony accordingly must be dismissed.

328The defence identified the issues as to counts 1 and 2 regarding K.H. are:

(a) the lack of reliability as to K.H.’s testimony;

(b) pursuant to s. 271, whether the two touches relied upon were accidental or intentional;

(c) whether the touching of K.H.’s buttock or breast pursuant to s. 271 were objectively of a sexual nature which the defence accepts would be proven if the court concludes the defendant intentionally touched the breast or buttock of this complainant; and

(d) pursuant to s. 151 and the element of mens rea therein, whether either of the two touches were done for a sexual purpose.

329I found K.H. generally to be frank in her testimony. She did not appear to overstate. She conceded some points appropriately which were helpful to the defence during her trial cross-examination. I disagree that K.H. was combative and non-responsive in cross-examination at trial.

330This issue however is the reliability of K.H.’s testimony.

331The defence cites above instances of K.H. being inconsistent or contradicting her trial testimony that the defendant intentionally and purposely rubbed her mid, then lower back and then touched her buttock and on another occasion lightly squeezed her breast with his hand, as a result of which the defence submits her testimony is not reliable.

332The defence points to the text messages with her mother on April 19, 2016 in which K.H. sends the news clip to her mother about the defendant being charged with sexual assault, in which:

(a) in response to her mother’s question as to who the defendant had touched, K.H. replied “He touched my butt once but I thought it was an accident so I played it off because it was awkward”, “ and “I was in 10th grade LOOOL” “But ya he probably did worse”;

(b) the mother responds “Oh my” and states she just received an email from the school concerning the defendant being charged, the possibility of other victims and the availability of social workers at the school. The mother texts that K.H. will have to decide whether she wished to communicate or let go the fact the defendant touched her buttock;

(c) K.M. replies “Yeah I don’t know, it was my boob too”. The mother responds that touching her breast is different, states K.H. maybe should speak to the social worker to deciminate whether this was unintentional or something more and that touching of her breast makes it less accidental;

(d) K.M. responds “Yeah, thinking back on it”, that she just wants to throw up as the defendant was her teacher, the whole thing is disgusting and unsettling; and

(e) the mother responds that it is K.M.’s decision whether to report being touched by the defendant but it is the mother’s opinion that “where there is smoke, there is fire and guaranteed there are more students who were touched, so “now do you help get justice and/or move on. Only you can decide that.”

333K.H. in these texts states she at the time thought the defendant’s touching of her buttock was accidental. That perception at 15 years of age again pursuant to Taylor, para 19, is a relevant factor but not necessarily determinative depending on the circumstances.

334The mother’s text response as to the buttock touching of her daughter of “Oh my” is suggestive this was the first time she heard of the defendant touching her daughter. That is in contradiction to the testimony of K.H. and her mother that the daughter had previously told her mother that she defendant had touched her;

335K.H. at trial testified she always knew the defendant’s touching of her was intentional but did not admit that in the above text exchanges because she did not want to acknowledge that to her mother in order to avoid her mother becoming upset. The defence cites this as K.H. misleading her mother which is a reason the court cannot rely on K.H.’s trial testimony.

336K.H. at the preliminary inquiry stated that her mother sent K.H. the news clip of the defendant being charged and stated her mother asked K.H., whether this is was teacher her daughter had previously had spoken about. The texts indicate K.H. sent the news clip to her mother stating the teacher named was her former math teacher.

337The mother’s testimony that K.H. prior to the text messages had told her that the defendant had touched K.H. is problematic. The mother testified K.H. before their April 2016 texts had once told her the defendant had touched her. The mother testified that upon K.H. telling her this, the mother said nothing in response as she, the mother, was preparing dinner at the time and she and her boyfriend had just been arguing. The mother testified she did not later ask K.H. about this reported touching of her daughter as the mother had a lot of issues she was dealing with at the time.

338The defence cites the mother’s testimony as not credible and supports a conclusion of collusion between K.H. and her mother in order to corroborate K.H.’s alleged reporting of the touching at the time and prior to the April 19, 2016 news release which it is argued tainted K.H.’s reporting to police.

339As previously stated pursuant to Plew, delayed reporting by a young person is not uncommon. K.H.’s 2016 text statement to her mother of the defendant touching her however appeared to be a fresh revelation based upon the text response from the mother.

340K.H. in her police statement indicated she could not find the words to better describe the defendant’s touching of her breast. The defence submits the accuracy of this new recollection of detail and clarity versus a biased reconstruction version of events creates a reasonable doubt as to the reliability of K.H.’s testimony.

341K.H. at trial described the touch and light squeeze by the defendant of the top of her breast using his cupped hand and the use of three particular fingers and the defendant’s twirling of her hair around his fingers downwards to her breast and upwards after that breast squeeze. This constituted much more detail than in her police statement. One’s recollection of events normally deteriorates and does not improve with the passage of time.

342K.H. acknowledged she during her police statement at times provided little detail. She in fact stated to police that she had no further recollection. K.H. at trial stated her lack of specifics to police was due to her mother being present during that police interview and the fact it occurred at 7:30 a.m. which was unusually early for her and before she had had coffee but admitted she did not then drink coffee.

343K.H. stated at the preliminary inquiry that she had an “ah-ha” moment at a session with her psychologist after learning that the defendant had been charged with sexual assault in which she concluded that the defendant’s touching of her was intentional and not mistaken touching.

344K.H. at trial testified this “ah-ha” moment with her psychologist was not her realization that that the touching of her was intentional but rather her realization that the disturbance his touching caused her was the reason why she subsequently missed two school semesters.

345The defendant submits K.H.’s recollection of events, her subsequent belief the touching was not accidental and had caused her psychological problems which led to her missing school demonstrate her evolution in thinking over time from uncertainty to the defendant intentionally touching her. The defence points to the fact K.H. was diagnosed with anxiety in grade 4 and the fact she with the assistance of a psychologist identified the defendant as the cause of her problems in grade 10 demonstrates that she became biased by the news report of the defendant being charged which later led her to believe that touching was the cause of her mental health issues.

346I have a concern as to the reliability of K.H.’s testimony. There are too many differences between what she was able to and told police, her testimony at the preliminary inquiry versus her trial testimony on material and not just peripheral matters. That lack of reliability on the higher criminal standard creates a reasonable doubt and leads to the dismissal of counts 1 and 2.

Mr. Justice Paul Kane

Released: April 2, 2019

APPENDIX

The following amendments to the Application to Admit Similar Fact Evidence Count to Count (originally released on December 28, 2018) were made on April 2, 2019.

344~~S.L.~~ K.H. at trial testified this “ah-ha” moment with her psychologist was not her realization that that the touching of her was intentional but rather her realization that the disturbance his touching caused her was the reason why she subsequently missed two school semesters.

CITATION: R. v. Abi-Samra, 2018 ONSC 7600

COURT FILE NO.: 16-RA19457

DATE: DATE: 2019/04/02

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Applicant

– and –

NAOUM ABI-SAMRA

Respondent

AMENDED Application to admit similar fact evidence count to count

Mr. Justice Paul Kane

Released: April 2, 2019