R. v. Green, 2021 ONSC 6578

COURT FILE NO.: 19-SA4367

DATE: 2021/10/04

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DARREN GREEN

Anne Fitzpatrick for the Crown

Lorne Goldstein for Mr. Green

HEARD: June 14 to 17, 2021

SUBJECT TO ANY FURTHER ORDER BY A COURT OF COMPETENT JURISDICTION, AN ORDER PURSUANT TO S. 486.4 OF THE CRIMINAL CODE HAS BEEN MADE IN THIS PROCEEDING DIRECTING THAT THE IDENTITY OF the COMPLAINANT AND ANY INFORMATION THAT COULD DISCLOSE SUCH IDENTITY, INCLUDING THE NAMES OF OTHER CROWN WITNESSES, SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR BROADCAST IN ANY WAY.

VERDICT

justice Sally Gomery

[1] Darren Green is charged with two counts of sexual assault and two counts of sexual interference contrary to ss. 271 and 151 of the Criminal Code (the “Code”). The charges stem from two incidents between September 1 and December 31, 2015 when the complainant CV was a fourteen-year-old grade nine student at Sir Robert Borden High School. She took an “Exploring Technologies” course taught by Mr. Green. CV alleges that, during two after-class meetings between the two of them, Mr. Green groped her upper thigh and touched her breast.

[2] The only two witnesses at the trial were Mr. Green and CV. Their accounts of their interactions were remarkably consistent for the most part. I will therefore begin by setting out the uncontested facts and then review the points on which they disagreed.

Uncontested facts

[3] In September 2015, CV was starting her first semester at Sir Robert Borden. She was largely deaf in one ear due to a childhood illness. This affected her ability to take in and process oral information. Despite this, she had always excelled academically and was valedictorian when she graduated from middle school. She also played several sports competitively or recreationally.

[4] Mr. Green was 51 years old in September 2015. He had been teaching full-time for ten years. He had two undergraduate degrees, one in physical education and math and the other in education. He had worked in the golf course industry for many years before getting a job as a high school teacher. In the “Exploring Technologies” elective taken by CV, he taught photoshopping, computer design and woodworking. He also coached some sports teams at Sir Robert Borden.

[5] CV was not initially enrolled in Mr. Green’s technologies course. She switched in a few days into the semester because there was a scheduling conflict on her original class timetable. Mr. Green and CV had not met before September 2015, but she knew of him through her sister, EV. EV had taken a course with Mr. Green a year or two earlier, when she was in grade 12. He had given her a good grade even though she had skipped many classes. Mr. Green had also written a reference letter for EV.

[6] A short time after the Fall 2015 semester started, Mr. Green singled CV out for attention. During classes, he addressed her as “sweetheart”, “pretty” and “beautiful”. He once told her that her pants looked good on her. He would also sometimes stand very close to her and speak into her ear.

[7] Mr. Green also sometimes asked CV to stay after class to talk to him alone in the classroom. During one of the first after-class meetings, he disclosed to CV that his brother had committed suicide, asked her personal questions and gave her advice about her career and her relationships. He told her that she was sensitive and needed someone. He asked her if she was sexually active. At some point during one of the after-class meetings, Mr. Green told CV not to tell anyone about their talks and their “relationship”.

[8] The first alleged incident giving rise to these charges took place when they were alone after class in October or November 2015. Mr. Green told CV that physical contact was important for teenagers. He said that, because of this, many girls her age look for a “bad, older boy” when they should be looking for “someone like him”. CV’s evidence about the touching that occurred during these comments, and other statements he allegedly made during this incident, diverged from Mr. Green’s account.

[9] The second alleged incident took place during another after-class discussion a little later in the semester. Mr. Green told CV that she was a good person with a big heart, and he put his hand below her collarbone. They again gave different accounts of what occurred next.

[10] They had no further one-on-one meetings alone after the second incident. CV got an excellent mark in the technologies class and never took another course with Mr. Green. They did, however, see each other in passing in the school hallways. When CV was in grade eleven, he approached her to ask about her younger sister, who had just started at Sir Robert Borden. Mr. Green told CV that, if her sister was as sensitive as she was, she might also benefit from talking to him. CV did not pass on this suggestion from Mr. Green and instead told her younger sister that she should avoid him.

[11] CV disclosed her allegations against Mr. Green to another teacher in January 2019, after speaking to a female classmate who said that he had sexually assaulted her. After a discussion with two teachers and with the mother of a friend who is a police officer, she filed a police complaint a few days later.

Contested facts

[12] The accounts provided by CV and Mr. Green differed with respect to her mental health in the Fall 2015 semester, the reasons for their after-class meetings, and what exactly occurred during the two incidents.

CV’s mental health in Fall 2015 and the reason for the after-class meetings

[13] Mr. Green testified that his interactions with CV in the Fall of 2015 were motivated by his desire to help a student in a state of acute distress. He said that, when she began the technologies class, CV was a “dishevelled mess … whose career was not going well”. He perceived her as very sensitive and “downtrodden” by her poor relationship with her peers. He said that he observed her trying unsuccessfully to join groups of students in the class or to overhear what they were saying about her. He also testified that he saw her repeatedly falling off her desk in class or tripping on school stairs in a bid for attention and sympathy. He characterized these falls as “fake” and said that CV gave an “extra roll” while on the floor after falling off her desk. He also referred to an episode where she was “bawling at a bandsaw” without explaining exactly what this referred to.

[14] Mr. Green, whose brother had committed suicide, testified that he recognized CV’s actions as a cry for help. He said that he wanted her to “focus on him” as her interactions with her classmates brought her “nothing but pain”. He viewed himself as her champion and support. He was also concerned that her mental state might give rise to safety issues when the class started using heavy machinery in mid-October. He complimented CV on her appearance in class and called her flattering nicknames in order to give her the positive affirmation that she was not getting from her peers. He stated that she was “very happy and bubbly” when he gave her these compliments and thanked him.

[15] Mr. Green said that he asked CV to meet with him after class initially to find out why she had repeatedly feigned falling from her desk. He asked for further after-class meetings because he thought that she was at risk of suicide or another form of self-harm. He denied that CV might have felt compelled to accept his invitations to meet because he was her teacher. He said that she could have left at any time and added: “It’s not like she didn’t welcome the advice I was giving her”. He also denied that the classroom door was closed during these meetings.

[16] In her testimony, CV denied that she was ever suicidal or that she engaged in attention-seeking behaviour in the first semester of grade nine. She acknowledged that she was “pretty high strung” and very anxious about grades because she hoped to enroll in an accelerated pre-med program at Queen’s University, and all of her high school marks would be considered in the admission process. As a result, she was “very distraught” if she was not successful even on a quiz. Her hearing problem made her the target of some school gossip (although she denied that this happened as early as 2015) and she and her best friend in middle school had drifted apart. CV denied, however, that she was depressed in grade nine, or that she faked falling in class or elsewhere. Her anxiety was mostly focused on academics as opposed to any personal problems.

[17] CV acknowledged that she was “extremely clumsy” when she was fourteen years old. She attributed this to a growth spurt and to always being in a rush. She admitted that she sometimes tripped while going downstairs. She also recalled once slipping and falling in the computer lab area in Mr. Green’s classroom. She said that she cried when the wooden stool she built as a final project in the technologies course fell on the floor and broke. This took place in January 2016, however, after the interactions between CV and Mr. Green at issue in this case.

[18] CV testified that she became uncomfortable with Mr. Green after he began singling her out in class early in the semester. In addition to complimenting her personal appearance, he would put himself very close to her and put his hand over hers on the computer mouse. The first time he asked her to stay after class, he sat very close to her. He told her that his brother had killed himself and that CV was like his brother, whom he regretted not helping. CV testified that she was very uncomfortable because she had not asked for this conversation. She did not respond to Mr. Green’s personal comments. She stated that she was overwhelmed and did not know what to do. She had been taught to respect teachers and did not want to make him angry or do anything that would lead to a bad mark in the course.

[19] After this meeting, CV testified that she went to the guidance counsellor to ask about switching out of the technologies class. She did not give him a specific reason for wanting to switch and was told that she could not change courses without a valid excuse.

[20] According to CV, Mr. Green frequently asked her to stay after class. She made up reasons to refuse most of the time but felt she could not say no every time because he was her teacher.

The first incident

[21] CV testified that, one day after class, Mr. Green talked to her about the need to have physical contact when you are an adolescent. He grabbed her thigh and she froze. He said that some girls in high school seek an older bad boyfriend, “but really they should be looking for someone like me”. He then squeezed her leg. It was at this point that he asked her if she had ever had sex before. According to CV, he also asked her how she felt when she was turned on or “horny”. CV stated that, as he made these comments, Mr. Green leaned in very close to her face and put his hand higher on her leg, reaching down on her inner thigh. She then got up and left the classroom.

[22] When giving her police statement in January 2019, which was admitted into evidence pursuant to s. 715.1 of the Criminal Code, CV stated that Mr. Green told her, when she left the classroom, not to tell anyone what had occurred. CV testified that she had heard about cases where women spoke up and no one believed them. No one had told her what to do in a situation like this. So she did as Mr. Green instructed.

[23] CV recalled that she did not go to class for a couple of days after this first incident. When she returned, Mr. Green continued to make comments to her during class. CV also recalled that she once heard him smell her hair and neck as he stood close behind her, and then told her “you smell nice today”. Mr. Green denied this last allegation.

[24] As already mentioned, however, Mr. Green admitted to making many of the statements alleged by CV. This included asking her whether she was sexually active during a one-on-one after-class conversation. He said that he asked this question to find out “where she is in life”, and viewed it as appropriate because he taught physical education, although not to CV. He also admitted that he told CV that physical contact is important for teenagers. He explained at trial that, in his view, CV clearly needed support and that adolescents miss being touched as they were when they were babies or children. Finally, he admitted telling CV that girls look for an older, bad boyfriend when they should be looking for someone like him. Mr. Green denied, however, that he was implying that they should pursue a romantic or physical relationship. He stated that when he referred to someone like him, he meant that CV should be looking for a boyfriend with his professionalism and drive.

[25] Mr. Green denied that he ever asked CV what aroused her. He also denied that, during the discussion about physical touch and the qualities she should seek in a boyfriend, he touched CV’s thigh. He recalled instead that she touched her own thigh during this conversation.

The second incident

[26] CV told the police that, during the second incident, Mr. Green told her again that she could not tell anyone about them because other people would not understand the relationship they had and how close they were. He told her that he was turned on by her. He said that what was really important was “what’s in here” and gestured towards her heart. Then he said that she was a “very, very sensitive girl” and that she needed someone. He asked about her career plans. When she said she wanted to be a doctor, he said she was too fragile and sensitive, and should plan to be a nurse instead. Mr. Green kept talking about how important the heart is and put his hand on her chest. He started moving it lower until he was touching her breast above the nipple. She then pushed his hand off, stood up and left. While she was leaving, he again told her not to tell anyone.

[27] Mr. Green gave a story consistent with CV’s account in many respects. He admitted that, during one of their discussions, he told her that she needed someone and not to tell anyone about their “relationship”. He also admitted that he told her that she should become a nurse rather than a doctor. At trial, he explained that he did not think that she had the aptitude or personality to become a doctor. Finally, Mr. Green admitted that, during their last after-class encounter, he placed his hand just below CV’s collarbone for a second or a second and a half after telling her that she had a big heart. He said that he made this physical gesture because the tone of her voice during their conversation reminded him of his brother’s voice before he committed suicide.

[28] Mr. Green denied, however, that any part of his hand touched her breast or that CV pushed his hand away. He denied that he touched CV for a sexual purpose or that he derived any sexual gratification from doing so.

What the Crown must prove to establish that Mr. Green sexually assaulted CV

[29] Mr. Green is presumed innocent of all charges. In order to find him guilty, I must be satisfied, beyond a reasonable doubt, that he intentionally committed the acts alleged. If the case presented does not meet this very high standard, I must acquit him.

[30] Section 271 of the Criminal Code does not define sexual assault. In its recent decision in R. v. R.V., 2021 SCC 10, at para. 51, the Supreme Court of Canada stated that a person commits sexual assault “by applying force intentionally to another person, directly or indirectly, in circumstances of a sexual nature”. Applying force can include any form of touching: R.V., at para. 52. In essence, sexual assault is a physical assault of a sexual nature.

[31] The sexual nature of an assault is determined based on an objective standard as opposed to the subjective perspective of the accused. The Crown does not need to prove that the accused had any sexual purpose in touching the complainant or obtained any sexual gratification in doing so: R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at para. 25, citing R. v. Litchfield, 1993 CanLII 44 (SCC), [1993] 4 S.C.R. 333, and R. v. Chase, 1987 CanLII 23 (SCC), [1987] 2 S.C.R. 293; R. v. Trachy, 2019 ONCA 622, 147 O.R. (3d) 250, at para. 72. The test is whether, viewed in the light of all of the circumstances, the sexual or carnal nature of an assault is visible to a reasonable observer.

[32] As stated by the Ontario Court of Appeal in R. v. Marshall, 2017 ONCA 801, at para. 52, the sexual nature of the assault is determined objectively by examining the nature and quality of the act. In Chase, at p. 302, McIntyre J. held that the factors relevant to determining whether an assault was committed in circumstances of a sexual nature include:

• the part of the body that was touched;

• the nature of the contact;

• the situation in which it occurred;

• the words and gestures accompanying the act; and

• any other circumstances surrounding the conduct, including threats that may or may not be accompanied by force.

[33] In Litchfield, at p. 345, the Supreme Court emphasized that “all the circumstances surrounding the [alleged assault] will be relevant to the question of whether the touching was of a sexual nature and violated the complainant’s sexual integrity”.

[34] Given CV’s age at the time of the alleged assaults, the Crown does not need to prove that Mr. Green knew she did not consent or was reckless of or willfully blind to her lack of consent. If the Crown can establish that he committed the act of sexual assault, it need only show that he intended to touch CV to satisfy the mens rea requirement of the offence: Ewanchuk, at para. 41; Trachy, at para. 74.

What the Crown must prove to establish that Mr. Green sexually interfered with CV

[35] Section 151 provides that a person who “for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years” commits sexual interference. This provision is meant “to protect the sexual integrity of young persons in their interactions with adults”: Trachy, at para. 70.

[36] The actus reus of the offence is touching the body of a person under the age of 16. CV was fourteen years old at the time of the two incidents. If the Crown can prove that Mr. Green intentionally touched any part of her body, then the actus reus of sexual interference will be made out.

[37] The mens rea component of the offence is the specific intention to touch for a sexual purpose. This means that the Crown must prove that Mr. Green specifically intended to touch CV for a sexual purpose: R. v. B.J.T., 2019 ONCA 694, 378 C.C.C. (3d) 238, at para. 37. I will review the law further on this point later in these reasons.

The legal framework for reaching a verdict

[38] The outcome of this case turns on issues of credibility. In R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, the Supreme Court of Canada directed trial judges to engage in a three-step analysis in a case where credibility issues are central:

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

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

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

[39] I will accordingly analyze the evidence in this case within this framework.

Do I believe Mr. Green’s evidence?

[40] If I believed Mr. Green’s evidence about what occurred during the discussion about the importance of physical contact for teenagers, I would have to find that he never touched CV on the thigh and is accordingly not guilty of any offence with respect to the first incident. If I believed his evidence about how he touched CV’s chest during the second incident, I would have to find that this was not touching of a sexual nature or for a sexual purpose and conclude that the Crown had not proved the charges arising from the second incident. I would therefore have to acquit Mr. Green of all charges.

[41] As a trier of fact, I may accept or reject some, all, or none of a witness’ evidence. A witness’ credibility may be impugned for various reasons. Examining the consistency of a person’s account, either over time or within the context of their evidence in chief and in cross-examination, is a valuable tool in assessing the reliability of their testimony: R. v. A.M., 2014 ONCA 769, 123 O.R. (3d) 536, at para. 12, citing R. v. G. (M.) (1994), 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347 (C.A.), at p. 354, leave to appeal to S.C.C. refused, [1994] S.C.C.A. No. 390. If an inconsistency involves “something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned”: R. v. A.M., at para. 13, citing G. (M.), at p. 354.

[42] An inconsistency that relates to a peripheral issue may not have a significant impact on the witness’s credibility. If, however, a witness’ account contains many inconsistencies on a range of peripheral issues, this could fatally undermine the overall reliability of their evidence. Testimony that is internally contradictory, incoherent or simply implausible may likewise lead to a finding that a witness is not worthy of belief on specific topics or more generally.

[43] In Mr. Green’s case, I do not believe his evidence about the touching alleged by CV because his account of his interactions with her was inconsistent with respect to both material and peripheral issues, because he repeatedly contradicted earlier testimony while on the stand, and because some of his explanations simply did not make sense.

[44] Mr. Green’s overall narrative hinges on his stated belief that CV was suicidal in the Fall of 2015 and that, through his efforts, her mental state improved to the point that he no longer worried that she might harm herself. In his evidence in chief, he spoke at length about why he perceived her behaviour as a cry for help. He said that he disclosed his brother’s suicide to CV in the hope that she would “self-identify”. He stated that she required “major intervention” because no one else was helping and he helps out “suicidal girls”. Mr. Green’s professed concern about CV’s mental health and the risk of self-harm was the reason why he singled her out in class with comments about her personal appearance, repeatedly sought one-on-one, after-class meetings and made questions and comments about personal issues. According to Mr. Green, the situation had improved by November 2015 because CV had become “more focussed” on him and was “starting to see some success in her life”. He was no longer concerned about her mental health after their last after-class meeting in December 2015 because CV had undergone a “good transformation”.

[45] Based on Mr. Green’s evidence alone, I conclude that this narrative is implausible for three reasons. First it is inconsistent with Mr. Green’s evidence about how he behaved in 2015. His explanation for this inconsistency is unpersuasive. Second, his testimony in chief that he had no further concerns about CV’s mental health after she left the technologies course is squarely at odds with what he told the police in April 2019 and what he said in cross-examination. Third, his account of CV’s mental state varied over the course of his testimony at trial.

[46] Mr. Green acknowledged in cross-examination that he would have an obligation to report his concerns about CV if she was in danger of any harm to herself. He testified that he was, in fact, so concerned about safety issues arising from her use of woodworking equipment that he spoke to the school guidance counsellor about whether she should transfer out of the technologies course. He said that he touched CV on the upper chest during their last after-class meeting because the pitch of her voice as they spoke reminded him of how his brother sounded on the phone just before he committed suicide.

[47] Notwithstanding Mr. Green’s evidence on these points, he admitted that he never shared his stated belief about CV’s supposed suicidality with anyone in Fall 2015 or at any time prior to his police interview in April 2019. The meeting with the guidance counsellor would have been an ideal opportunity to do so. He also could have contacted CV’s parents, who knew him because of how he had helped their daughter and CV’s sister, EV. Yet Mr. Green said nothing. He suggested in cross-examination that his remarks to the guidance counsellor about CV’s physical clumsiness in class alluded to the risk of suicide. This suggestion flies in the face of Mr. Green’s unqualified admission, earlier in his testimony, that he never told anyone about his concerns for CV’s mental health.

[48] Mr. Green explained that, in the Fall of 2015, he wanted to protect CV’s privacy and that he was uniquely placed to help her because of his brother’s suicide and his training and experience in physical education. He further explained that he did not need to do anything further to help her after their last meeting in December 2015 — the meeting where her tone of voice reminded him of his suicidal brother — because he thought that she was doing much better, and so he had no further serious concerns about CV’s mental health.

[49] This testimony is completely inconsistent with Mr. Green’s statements to police in April 2019 when he was charged. During that interview, he said that CV was a student at risk of suicide and that was why she may have made up allegations against him. He told the police that CV was “dangerous” and suggested that she could pose a risk to herself or others while driving. He also expressed shock at the way that CV was dressed in a halter top and spandex leggings during a school production in Spring 2016, saying that he did not understand why “people in the school [do] not recognize what is going on with this girl” and that CV was “attention seeking”. In cross-examination, he justified these comments on the basis that he believed that CV was mentally unstable and that she was still at risk when the technologies course ended.

[50] Mr. Green’s evidence in cross-examination about CV’s mental state after December 2015 undermines his earlier explanation for doing nothing further to try to assist CV after the second incident, either by intervening personally or by reporting his concerns. Either he thought that she was still suicidal in December 2015 and inexplicably did nothing about it, or he thought that she was no longer suicidal, in which case he misrepresented her mental state to the police and to the court.

[51] Mr. Green’s account of the extent of CV’s mental health issues during the Fall 2015 semester also varied over the course of his testimony at trial. In his examination in chief, he repeatedly alluded to the risk that CV might harm herself and emphasized why he thought she was suicidal. When asked in cross-examination why he did not contact her parents about CV’s mental state, however, he downplayed the seriousness of her situation, describing her mental state as “the doldrums” and saying that he would not bother a student’s parents for every issue. He testified in chief that he was the only person who recognized that CV was at risk for suicide. In his April 2019 police interview, however, he implied that the whole school community recognized this.

[52] Based on his conduct at the time, I find it implausible that Mr. Green sincerely believed that CV was suicidal when she was his student. If he genuinely thought that she might do herself serious harm, there is no reasonable explanation for his failure to disclose this concern. Mr. Green’s accounts of CV’s mental state to police and to the court were inconsistent and self-serving. These shortcomings in his evidence on this point are important, because they undermine the justification he offered for everything that happened between them.

[53] Beyond this, some of Mr. Green’s testimony on material and peripheral issues was either impossible to believe, inconsistent with prior statements, or internally contradictory.

[54] Mr. Green testified, for example, about a program at the high school known as Sources of Strength (“SOS”). He described SOS as a “suicidal help program” and said that CV was placed there because she needed to connect with her peers. During his April 2019 interview, Mr. Green told police that SOS was for “at risk kids” and that he got CV into the program. He admitted at trial that this was untrue as he had no involvement in CV’s referral to SOS. He also testified at trial that a list of students referred to SOS was circulated by email among staff. If, as Mr. Green testified, the students referred to this program were recognized as being at risk of suicide, I find it inconceivable that a list of such students would be freely exchanged between staff members at a public high school.

[55] Mr. Green’s counsel acknowledged the problems with his evidence on SOS but argued that it related to a collateral issue. Although the evidence was collateral, I do not consider Mr. Green’s lack of credibility on this issue to be trivial. His testimony was intended to support his narrative about CV’s suicidal state, which as already mentioned was at the heart of Mr. Green’s entire account of their interactions. My finding that his evidence on SOS is implausible and inconsistent further undermines this narrative.

[56] Whether and how Mr. Green touched CV during the second incident is likewise central to this case. He told police in April 2019 that it was possible that he had touched CV inadvertently on the chest but denied any deliberate contact. In his examination in chief, he initially said he “made a gesture” towards CV’s heart, but then acknowledged that he intentionally put his hand below her collarbone. He testified that he now remembered the exact placement of his hand, a touch he initially said lasted a second or a second-and-a-half, because he is a volleyball coach and therefore remembers all of his own physical movements. In cross-examination, Mr. Green repeated that he had a clear memory of what occurred but explained that this was because CV was in an extreme emotional state at the time.

[57] Neither of these explanations for Mr. Green’s ostensibly perfect recollection in 2021 about how he touched CV on the chest are plausible. As a matter of common sense, I do not believe that Mr. Green would have no recollection of deliberately touching her in April 2019 but would, two years later, not only recall that he did so but also remember exactly how he placed his hand. I also doubt that CV’s emotional state would allow Mr. Green to better remember what he did.

[58] Mr. Green’s account of how exactly he touched CV furthermore changed over the course of his testimony. When describing the placement of his hand during the examination in chief, Mr. Green said that his pinky on his right hand was bent and his hand was laterally on or just below CV’s clavicle bone. When he moved his hand away, he said that he pulled it away horizontally, and that his hand never touched CV’s breast. Mr. Green mimicked the placement of his hand and his movement as he described it. During this demonstration, his thumb was pointing downwards, which would suggest that it could have edged CV’s breast. When confronted with the inconsistency between his gesture in court and his description of the contact in cross-examination, however, Mr. Green said his thumb was “probably up” when he touched CV. He explained that he made the mistake about his thumb during his examination in chief in the heat of the moment. Since the placement of Mr. Green’s hand is a central issue in this case, I do not believe that he would have demonstrated it carelessly.

[59] This was not the only time that Mr. Green implausibly claimed to have a perfect recollection. When testifying about the first incident, he said he recalled that CV touched her own thigh during their conversation. There is no conceivable reason why Mr. Green would remember such a trivial gesture on CV’s part six years after the fact. Mr. Green’s evidence about what he said during the second incident also varied even though he claimed that he had a precise memory of the words he used. In chief, he said: “What’s really important is, what’s in here” and that CV had a big heart. In cross-examination, he said that he said: “Focus on your heart. You’re a good person”.

[60] There are other examples of internal contradictions in Mr. Green’s testimony. These related to peripheral issues but came up often enough that it affected his overall credibility. He said, for example, that he did not coach girls’ volleyball because he did not want to put himself in a “precarious position”. He added that he did not want to do any school events with females on his own, and “would never be alone with them”. This was inconsistent with his admission that he repeatedly sought meetings alone with CV. Defence counsel argued that this inconsistency actually put Mr. Green in a good light, because it shows that he had a good relationship with CV. In my view, there are other explanations for why he felt comfortable seeking one-on-one interactions with CV — notably, the fact that he had told her not to tell anyone about them. Defence counsel’s argument does not, in any event, address the inconsistency in Mr. Green’s evidence.

[61] Mr. Green’s evidence about the flattering names he used when addressing CV is another example of internally contradictory testimony. He implied that this was an inoffensive practice, noting that he called other students nicknames as well. He at first denied, however, that he used endearments during his after-class discussions with CV. This makes little sense. If Mr. Green used nicknames for all students and considered them inoffensive, and thought that referring to CV as “sweetheart” or “beautiful” was an innocuous way of boosting her self-esteem, there would no reason to avoid using these terms when he was alone with her. In cross-examination, in fact, Mr. Green admitted that he might have used pet names when speaking to CV when they were alone. In the end, he admitted that he did not remember.

[62] Beyond these examples of specific issues, Mr. Green did not come across as a reliable narrator. He gave long, discursive answers. He was sometimes argumentative. He made comments that were not responsive to questions asked or evaded answering. Some of his responses seemed to be based on speculation or guesses as opposed to actual recollection or knowledge. His testimony about EV, for example, struck me as a reconstruction as opposed to a memory.

[63] Defence counsel urged me to find that Mr. Green was inherently credible because he did not dispute aspects of CV’s account that put him in a bad light. The problem with this argument is that, based on Mr. Green’s testimony, he did not think he had done anything wrong. He maintained that he was helping CV when he commented on her personal appearance, asked about her sex life and gave her dating advice. The one admission made by Mr. Green that could enhance his credibility is his admission that he told CV not to tell anyone “about us”, because “they won’t understand our relationship, how close we are”. Mr. Green testified that he said this in an effort to protect CV (and himself) from school gossip. Even if I accepted this explanation, his credibility cannot be restored by this admission alone.

[64] Defence counsel also urged me not to reject Mr. Green’s evidence because he expressed outdated and sexist views about adolescent girls. To be clear, I do not find that Mr. Green lacks credibility because he expressed views about sexuality and gender roles that would, in many people’s view, make it inappropriate for him to teach high school. He lacks credibility because his evidence was riddled with inconsistencies and was sometimes simply implausible.

[65] I conclude that I do not believe significant aspects of Mr. Green’s evidence, including his denial of some statements to CV, his denial that he touched and squeezed CV’s thigh during the first incident, his denial that he began sliding his hand down to her breast during the second incident, or his denial that he touched CV with a sexual purpose. This does not mean that the Crown has proved these allegations, but simply that Mr. Green’s evidence has not convinced me that they did not happen.

Even if I do not believe Mr. Green’s evidence, am I left in reasonable doubt by it?

[66] Under the second part of the R. v. W.(D.) test, if I do not believe the defendant, I must consider whether I am nonetheless left in reasonable doubt by his evidence.

[67] Mr. Green’s evidence does not give rise to reasonable doubt about the two alleged incidents. This again does not mean that the Crown has proved its case. To determine whether the Crown has proved the charges, I must first find that CV’s evidence is generally credible and that, specifically, I accept her account of what occurred during the first and second incidents. If I do, I must then decide if the Crown has proved the elements of the sexual assault charges and sexual interference charges on the whole of the evidence, beyond a reasonable doubt.

Was C.V.’s evidence credible?

[68] CV is now twenty years old. She got into the pre-med program at Queen’s University and is currently majoring in math and biology. Her evidence consisted of a video statement to police on January 30, 2019, which as previously mentioned was admitted into evidence pursuant to s. 715.1 of the Criminal Code, and her testimony at trial.

[69] Defence counsel attacked CV’s credibility on various grounds. I will consider each of these grounds in turn before reaching an overall conclusion on the reliability of her evidence. Before doing so, however, I must review some additional principles applicable to the assessment of CV’s testimony.

[70] CV was only fourteen in Fall 2015. The Crown contended that I should take this into account when assessing her evidence. In R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at p. 134, McLachlin J. (as she then was) set out the guidelines that apply to the assessment of a witness who allegedly experienced sexual assault or abuse as a child:

Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate. But I would add this. In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying.

[71] Since CV was an adult when she testified, her evidence must be assessed according to the usual criterial applicable to all witnesses’ testimony. Further to R. v. W. (R.), however, the Crown argued that her age at the time of the incident allows me to discount some peripheral inconsistencies or lack of detail. Defence counsel argued that this would be inappropriate in this case because CV was not a young child in 2015 but a highly intelligent adolescent.

[72] In my view, a fourteen-year-old’s perceptions of events are not necessarily the same as the perceptions of a person a few years older. The law considers a fourteen-year-old a child for many purposes; CV’s youth at the time of the incidents is in fact why Mr. Green is facing charges of sexual interference as well as sexual assault. In R. v. A.M., at para. 10, the Court of Appeal cautioned against adopting inflexible rules based on age. CV’s age at the time of the incidents may therefore be a factor in assessing her credibility.

[73] The second general consideration in assessing CV’s evidence arises from her adoption of her videotaped statement to police in January 2019. The defence argued that, if there were any inconsistencies between the statement and CV’s evidence at trial, I could not give greater weight to her recollection in 2019 than her recollection in 2021, because neither was contemporaneous and I should not “cherry pick”.

[74] Section 715.1 provides, exceptionally, that a video recording of an underage victim’s account of the acts giving rise to charges can be admitted into evidence under certain conditions. In R. v. F. (C.C.), 1997 CanLII 306 (SCC), [1997] 3 S.C.R. 1183, the Supreme Court of Canada set out the principles governing the adoption of video statements under s. 715.1 and the weight that they should be given at trial if deemed admissible. At para. 47, the Court addressed how a judge should deal with inconsistencies between a victim’s video statement and their evidence at trial:

If, in the course of cross-examination, defence counsel elicits evidence which contradicts any part of the video, this does not render those parts inadmissible. Obviously a contradicted videotape may well be given less weight in the final determination of the issues. However, the fact that the video is contradicted in cross‑examination does not necessarily mean that the video is wrong or unreliable. The trial judge may still conclude, as in this case, that the inconsistencies are insignificant and find the video more reliable than the evidence elicited at trial.

[75] In R. v. F. (C.C.), the trial judge preferred videotaped evidence to that elicited in cross-examination, having found that inconsistencies were minor and related to peripheral details that were not of great significance. The Court held that the trial judge was entitled to do this, that her decision was not unreasonable and should not be disturbed.

[76] I must therefore consider any inconsistencies between CV’s video statement and her evidence at trial and determine whether they are (a) minor, (b) material but not going to a critical issue, or (c) both significant and going to a critical issue. Although I should not automatically give greater weight to CV’s 2019 statement, it will be open to me to conclude, having weighed all of her evidence, that I prefer an aspect of her account in 2019, as the trial judge did in R. v. F. (C.C.).

Lack of detail and inconsistency in CV’s account of the first incident

[77] In cross-examination, CV admitted that she could not remember which thigh Mr. Green touched and whether he touched her with his right or left hand. She also gave inconsistent evidence about the month in which this incident occurred. The defence argued that this lack of detail and inconsistency was fatal to the Crown’s case insofar as this incident was concerned.

[78] I will deal first with the timing of this first incident. In her January 30, 2019 statement, CV said that it occurred in mid-November 2015. At Mr. Green’s preliminary inquiry in August 2020, she said that she believed it took place in October of that year. In cross-examination during the trial in June 2021, she said it could be either October or November. She acknowledged the inconsistency between what she recalled in 2019 versus 2021 and agreed that this could be due to a fading memory.

[79] Mr. Green admitted that, during an after-class meeting with CV, he talked to her about the importance of physical touch and what kind of boyfriend he thought she should be looking for. The question is not whether a one-on-one meeting took place during which he made these remarks, but whether, while making these remarks, he fondled her thigh. In this context, I do not find that CV’s inability to recall whether this conversation occurred in October as opposed to November makes her account of the touching unworthy of belief. I am inclined to prefer her account in 2019 because her memory was fresher at the time, but ultimately I do not think it matters.

[80] CV’s inability to recall which thigh Mr. Green touched, or which hand he used, was not an inconsistency but a gap in her account. She otherwise described how Mr. Green touched her thigh in detail. She said that she remembered, in particular, his thumb moving up her leg because it came closest to her crotch. Her evidence about how this felt and how she reacted was compelling. She was not asked about which leg and which hand were involved during the police interview in January 2019 or, apparently, at the preliminary inquiry. When asked about it for the first time in cross-examination six-and-a-half years after the event occurred, she admitted that she could not remember.

[81] I find that there are particular circumstances that should be taken into account when considering this evidence. These circumstances include the way CV, as a fourteen-year old, reacted to the circumstances that she described. She testified that Mr. Green “creeped her out” because of the comments about her appearance he made in class, how he stood close to her, and his repeated requests to meet with her alone. Mr. Green admitted to most of the comments and behaviour, and I accept CV’s account of her reaction to them. CV testified that she tried to find excuses not to stay after class but did not feel she could refuse every time, because Mr. Green was her teacher and she did not want to get a bad grade in the technologies course. Again, I have no reason to doubt this. Mr. Green also admitted making statements to CV during this particular after-class meeting about physical touch and the qualities that she should be seeking in a boyfriend. In her police interview, when asked how she felt when he began to touch her thigh, she said:

[I felt] very, very uncomfortable. I kind of … I was frozen when he put his hand on my thigh and I felt like my heart like beating out of my chest and I … and I wanted to say something, but I just couldn’t. Like I don’t know. I felt like this overwhelming sensation of like panic and I just … like a deer in the headlights and I stood there and as I felt him like slowly on my thigh and I felt violated and disgusted and, uh, yeah.

[82] In the context where a fourteen-year-old girl felt compelled to participate in an after-class discussion with a male teacher whose words and actions on that specific occasion put her in a state of panic, I find that an allowance should be made for a lack of memory of what thigh and what hand were involved.

[83] Taking these circumstances into account, CV’s inability to remember which thigh Mr. Green touched and which hand he used to do so does not cause me to question her overall credibility or, more specifically, the reliability of her account of the first incident. Her admission does not cause me to doubt that the touching occurred as described.

CV’s account of the second incident

[84] Defence counsel argued that CV’s account of exactly where Mr. Green touched her chest was inconsistent. In her statement to police, she said that he put his hand right under her collarbone, and then moved it downward so that she “could feel him on my … breast”. At the preliminary inquiry, she said he touched her on the chest. At trial, she said “I guess you could consider it the breast” but acknowledged that “the initial contact was not on my breast”.

[85] I do not find any real inconsistency in CV’s description of where Mr. Green touched her during the second incident. The chest can describe the area from the collarbone down to the waist and there is no bright line on the body demarking where a woman’s breast begins. When asked to describe exactly where Mr. Green touched her, CV consistently said that he first placed his hand beneath her collarbone and then began to move it downwards. When it reached her breast, she pushed his hand away, got up and left.

The time that elapsed before CV reported the incidents

[86] Defence counsel argued that the time that elapsed between the incidents in Fall 2015 and CV’s disclosure of them in January 2019 inevitably meant that she could have an imperfect memory of what occurred. Mr. Goldstein emphasized that he was not faulting CV for the delayed disclosure, but noted that she herself admitted, in cross-examination, that memory fades over time. He argued that CV’s evidence on various points indicated that she had an imprecise recollection.

[87] In addition to her inconsistent memory about the exact timing of the first incident, CV admitted that she inconsistently recalled how often and when Mr. Green warned her not to tell anyone about their interactions. CV told police in January 2019 that Mr. Green warned her during both incidents. At trial, she recalled that he only gave this instruction once, and could not initially remember whether it was at the end of the first or second incident, although she ultimately said that it was at the end of the second incident. CV’s memory of what happened in the weeks following the second incident also changed. She told police in January 2019 that Mr. Green continued to say personal things to her, including that he was turned on by her, after the second incident. At trial, she said that they had no further one-on-one conversations after the conversation during which he touched her chest.

[88] Neither of these admitted inconsistencies cause me to doubt CV’s evidence about the touching that occurred during the two incidents. I do not find the first inconsistency significant. From the perspective of her overall credibility, I would be more concerned if, at trial, CV had embellished the account she gave to police in 2019. She did the opposite. With respect to the second inconsistency, in my view it does not go to a critical issue. CV’s inconsistent recollection of whether Mr. Green made further inappropriate comments to her after the second incident does not undermine the credibility of her account of the incidents themselves. This inconsistency again does not lead me to conclude that CV demonstrated a general carelessness with the truth that gives rise to concern.

[89] CV testified that the incidents with Mr. Green crossed her mind regularly after they occurred, particularly when she saw him in passing at the school. Since he continued to teach at Sir Robert Borden until late 2018, she would run into him about once a week, especially when she was playing rugby in the spring. When he suggested that she bring her younger sister to talk to him in late 2017 or early 2018, CV warned her to stay away from him. This is consistent with CV’s testimony that she never forgot what happened.

[90] Lengthy delays in the reporting of childhood sexual abuse are not uncommon. As the Supreme Court noted in R. v. A.G., 2000 SCC 17, [2000] 1 S.C.R. 439, at para. 30, such delay does not mean that reports should automatically be rejected or found to give rise to reasonable doubt:

[The trial judge] was entitled to believe the uncorroborated evidence of the complainant in this case as in any other case, and he did. If it were unreasonable for him to do so, it would be impossible to convict in the many similar cases where there is a long delay in the disclosure of the uncorroborated allegations of a complainant in a sexual assault case. This is not the law.

[91] CV denied that anything that occurred between Fall 2015 and January 2019 diminished, altered or corrupted her memory of the incidents with Mr. Green. She gave her police statement roughly two weeks after she first disclosed them to a teacher. I will deal with the impetus for her disclosure of the events shortly. Suffice it to say for now that the delay between the incidents and CV’s 2019 report does not, by itself, cause me to doubt the reliability of her account. I accept her evidence that she never forgot what happened and so had a reliable recollection four or six years later.

Motive to fabricate

[92] Defence counsel prefaced his closing submissions by saying that he was not suggesting that CV was deliberately lying or making things up. He went on to argue that she had fabricated Mr. Green’s groping of her thigh and touching of her breast because she wanted to support a classmate who had made an allegation of sexual assault against him. Alternatively, he argued that her memory of what occurred was compromised by her discussions with that classmate.

[93] In order to assess this argument, I will review the circumstances in which CV came to file a police report in January 2019.

[94] CV gave various reasons why she did not report her allegations prior to January 2019. Mr. Green was her teacher. He told her not to tell anyone what had happened. CV had been taught to respect persons in authority and to listen to them. She was also worried that he might be angry with her or do something that would sabotage her university plans. She had not been told what to do in circumstances where she might be the victim of sexual abuse. Her parents liked Mr. Green and she worried that they and EV would be angry with her if she made allegations of sexual abuse against him. CV also thought that she would not be believed. Mr. Green was a popular teacher, and she knew it was just “me and him and a closed door”.

[95] In late 2018 or early 2019, CV heard rumours at school that Mr. Green had been suspended from teaching based on allegations of sexual assault by another female student, A. In January 2019, she encountered A in the school library and asked her if the rumours were true. A said they were. She also told CV that she had reported the assault against her to a teacher and had subsequently been told by the principal that she should not talk to anyone about it until the school had completed its investigation. CV found the school’s approach questionable and went to talk to a teacher about it. This led to a conversation with another teacher and A during which CV disclosed what had occurred between her and Mr. Green in Fall 2015. Within a day or so, CV disclosed the incidents again to Jen Cybulski, a police officer who was the mother of one of CV’s friends. Officer Cybulski urged CV to file a police report because, even if Mr. Green did not return to teach at the high school, he might have contact with girls in the community as a sports coach. CV filed a police report the same day or the next day. Her video statement was recorded about two weeks later.

[96] I should note here that any allegations that A may have made against Mr. Green, or rumours that CV heard about him, are irrelevant to my determination of these charges. CV’s evidence on the rumours and what A told her were hearsay and were not tendered for its truth. I also note that, in her police statement, CV said or implied that she disclosed her allegations about Mr. Green to A during their initial conversation in the school library. She admitted at trial that she mis-spoke and I accept her evidence on this point.

[97] CV acknowledged that she was motivated to disclose the incidents in January 2019 based on concern for other young women. She said that she did not feel traumatized by what had happened to her but was upset that A had dropped her plan to become an architect because she did not want to be in Mr. Green’s classes. She was also worried about her little sister. CV denied, however, that she was a social justice crusader who carried a personal grudge against Mr. Green.

[98] I reject the argument that CV fabricated her allegations against Mr. Green, or that she had a motive to do so that gives rise to a reasonable doubt about the credibility of her allegations with respect to the incidents giving rise to these charges.

[99] First, I accept CV’s evidence about why she did not disclose the allegations prior to January 2019. It should go without saying that CV’s failure to report immediately does not give rise to an inference that her allegations are less credible, nor is defence counsel suggesting this. CV’s evidence on this issue is, however, relevant because it provides the backdrop to what occurred in January 2019. She gave plausible reasons for that decision that were not successfully challenged in cross-examination. She admitted that she thought Mr. Green was a good teacher who gave her a good mark and that she remained on superficially positive terms with him after January 2016. There is no evidence that she had any general hostility towards him or harboured a grudge.

[100] In cross-examination, CV acknowledged that she went to the police in January 2019 because of the conversation she had with her teachers and A. She testified that, when she told them about the Fall 2015 incidents, she realized how inappropriately Mr. Green had behaved and decided that it was worth standing up against. She said that, before she described aloud what had happened, she knew that what had taken place was wrong but she did not understand how much so. She had thought that her interactions with Mr. Green were strange and unpleasant but not criminal. When she described them to her teachers she realized, and her teachers confirmed, that it was “not okay”, and Officer Cybulski agreed. This explanation is credible.

[101] In deciding to report, CV was clearly motivated to assist A and other young women with whom Mr. Green might come into contact. She also admitted that she wanted to hold him to account for what he had done to her. These are legitimate reasons to file a police complaint. Neither of these motivations make CV’s allegations inherently less plausible or credible. Furthermore, had CV been motivated to fabricate allegations against Mr. Green, it is odd that her account of what he did was relatively restrained and almost entirely consistent with his own account of their interactions.

[102] There is no evidence to support Mr. Green’s assertions to police that CV is a dangerous person and a social justice warrior. CV denied that she had a broader political agenda or wanted to create a groundswell of complaints against Mr. Green. Even if there were such evidence, this again would not translate to a presumption or inference that CV was making things up. There is nothing suspicious about a victim of crime coming forward to report an offence. A victim of sexual assault is no more likely to fabricate an allegation than the victim of any other type of criminal offence.

[103] This leaves the suggestion that CV’s account was tainted by her discussions with A or her teachers in early 2019 or by a letter that CV wrote to her school principal which has been lost and so was not put into evidence. She admitted that she did not remember the specifics of A’s allegations, the letter or the details of her conversations with her teachers. CV said that, as far as she knew, her memory had not been tainted by the events of early 2019. She acknowledged that this was theoretically possible. CV was very sure, however, that she clearly remembered what Mr. Green said and did during the two incidents at issue in this proceeding.

[104] Defence counsel did not establish, through cross-examination, that CV’s account to police was altered or materially affected by either a desire to help A or the events of early 2019 or any other factor. I conclude that my assessment of CV’s credibility is not undermined by the circumstances in which she reported the allegations.

Conclusions on CV’s credibility

[105] I generally found CV to be a thoughtful and conscientious witness. She considered questions put to her carefully. Defence counsel contended that she filtered her answers because, at one point, she admitted that she was trying to recall what she told police and the court during the preliminary inquiry. I did not get the impression that any delay in some responses resulted in insincere or constructed answers. I instead got the impression that CV is an intelligent person who was mindful of her obligation to tell the truth and who was trying hard to be accurate in acknowledging what she did and did not remember. She was visibly anxious but remained composed, even when an intestinal issue caused her to wretch during her examination in chief. She did not speculate. She acknowledged inconsistencies between what she told police in 2019 and her evidence at trial. She also admitted when she could not remember certain details.

[106] CV’s account of her interactions with Mr. Green was plausible. Most of it, in fact, was uncontradicted. To the extent it was, I conclude that CV account was not controverted by any evidence which I found credible.

[107] With respect to CV’s mental health, I accept her evidence that she was not suicidal or depressed in grade nine but rather very anxious about her academic performance. Her evidence on this issue is consistent with her uncontradicted description about how she was doing overall in grade nine both academically and otherwise. She was involved in several sports teams at a competitive level while maintaining an above ninety average and participating in school drama productions and other extracurricular activities. She testified that SOS was in fact a program that provided leadership training for students so that they could provide support for peers who might be struggling. She was referred to SOS because she was identified by the faculty as someone who could provide peer support, not someone who needed it.

[108] I also accept CV’s evidence that she never deliberately fell or feigned falling during Mr. Green’s class or elsewhere. She testified that she had a very serious bout of H1N1 flu as a child that affected her hearing and balance as well as her ability to process some oral information. She explained why this made very clumsy. This evidence was uncontradicted.

[109] I would add that CV’s mental health would not be in any way material to the allegations of sexual assault and sexual interference, had Mr. Green not placed this issue at the centre of his account of their interactions. Because he did so, it is important to find, on the record, that there is no credible evidence that CV suffered from any kind of mental illness, at any point.

[110] With respect to the second incident, I accept CV’s account of how Mr. Green’s hand moved from beneath her collarbone down towards her breast, and how she pushed his hand away. Her evidence with respect to this incident was consistent with Mr. Green’s evidence except insofar as he disputed the movement of his hand and his intent when he touched her. I will deal with the question of intent shortly. With respect to the movement of Mr. Green’s hand, I find CV’s account credible.

[111] With respect to the first incident, I accept CV’s evidence that Mr. Green put his hand on her thigh, squeezed it and then moved it up towards her groin. CV’s description about how Mr. Green touched her was compelling. It was not shaken on cross-examination. CV’s account was also plausible because Mr. Green’s touching of her thigh while telling her about the importance of physical touch is paralleled by what occurred during the second incident, when he told her that she had a big heart and touched her on the chest.

On the basis of the evidence that I accept, am I convinced beyond a reasonable doubt that Mr. Green sexually assaulted CV?

[112] A reasonable doubt is not a far-fetched or frivolous doubt, but a doubt based on reason and common sense, arising logically from the evidence, or from a lack of evidence. The Crown is not required to prove any element of the charge to an absolute certainty. As a trier of fact I must, however, conclude that the acts alleged are not merely probable. I must be sure that they occurred as the complainant says they did.

[113] Based on the evidence that I accept, I find that Mr. Green deliberately put his hand on CV’s thigh during a one-on-one, after-class meeting, squeezed her leg, then slid his hand up towards her crotch. There is no basis on which I could conclude that Mr. Green groped CV’s thigh accidentally or unintentionally.

[114] I furthermore find that this assault had a sexual nature based on the standard of how a reasonable person would perceive it. The upper thigh is an intimate part of a woman’s body. As Kane J. found in R. v. Abi-Samra, 2018 ONSC 7600, another case involving an alleged sexual assault of students by a high school teacher, at paras. 285-286:

It 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. … Any 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.

[115] The conduct in this case is more overtly sexual than the conduct in Abi-Samra, because Mr. Green squeezed CV’s thigh and then moved his hand up towards her crotch. I find that this groping movement clearly violated CV’s sexual integrity.

[116] With respect to the second incident, I find that Mr. Green deliberately placed his hand below CV’s clavicle for three to four seconds, then moved it down to just above her nipple for about a second before CV pushed his hand away. This touching would again be seen by a reasonable person as sexual in nature, based on the way Mr. Green moved his hand. Contrary to his evidence, I do not accept that a reasonable person would see this touching as non-sexual because a drowning victim might be touched in the same location for the purpose of mouth-to-mouth resuscitation. Mr. Green obviously was not engaged in such resuscitation. A reasonable person would perceive that a male teacher’s movement of his hand down a fourteen-year-old female student’s chest towards her nipple constituted sexual touching in the context in which it occurred.

[117] My assessment of the evidence leads me to conclude beyond a reasonable doubt that these incidents occurred as described by CV and that the touching was of a sexual nature, I conclude that the Crown has proved the sexual assault charges.

On the basis of the evidence that I accept, am I convinced beyond a reasonable doubt that Mr. Green sexually interfered with CV?

[118] Since I have already found that Mr. Green deliberately touched CV on two occasions when she was fourteen years old, the only question left to resolve is whether I find, beyond a reasonable doubt, that he had a sexual purpose in doing so.

[119] In R. v. Morrisey, 2011 ABCA 150, at para. 21, the Alberta Court of Appeal addressed the mens rea component of sexual interference:

Touching is done for a sexual purpose, if it is done for one’s sexual gratification or to violate a person’s sexual integrity. In determining whether touching takes place in circumstances of a sexual purpose, we are of the view that a trial judge can in assessing the mens rea of the accused, consider whether the sexual context of the touching would be apparent to any reasonable observer. The “sexual purpose” may be proven either by direct evidence, or it may be inferred from circumstantial evidence or from the nature of the touching itself (ie. the only reasonable inference to be drawn from the circumstantial evidence or from the nature of the touching itself is that the accused committed the touching for a sexual purpose). [Citations omitted.]

[120] Direct evidence of a sexual purpose is accordingly not required. All of the circumstances of the interactions between Mr. Green and CV may be considered: R. v. Langevin, 2016 ONCA 412, at para. 24. This includes the nature of the touching and any words or gestures accompanying the act: R. v. B. (J.A.), [2002] O.J. No. 3755 (S.C.), at para. 43. In Morrissey, for example, the accused was found to have repeatedly kissed and touched the breasts and body of the twelve-year-old daughter of the woman he was living with. The circumstances or nature of the touching in that case was such that a sexual purpose was the only reasonable inference.

[121] Mr. Green denied any sexual purpose when he touched CV. I have concluded that his evidence about these incidents is not worthy of belief. The rejection of his denial does not, though, automatically establish that he had the required intent for a conviction for sexual interference. I must determine whether the circumstantial evidence leads inexorably to this conclusion.

[122] In some cases, the absence of evidence about the circumstances in which a young person was touched means that the specific intent required for sexual interference cannot be made out. I have already mentioned Abi-Samra, which also involved charges against a high school teacher based on allegations by former students. Justice Kane convicted Abi-Samra on two charges of sexual assault but acquitted him of sexual interference. He found that, given the lack of direct evidence about the defendant’s intent and the limited circumstantial evidence as to his intention, sexual purpose had not been proved: Abi-Samra, at paras. 293 and 323.

[123] Similarly, in R. v. Prohaska, 2013 ONSC 4987, aff’d 2017 ONCA 684, a man entered a toilet stall at a campground late at night and pulled up the pyjama bottom of a three-year-old boy who was inside the stall. In doing so, he touched the child’s bum and possibly his penis. He claimed that he was simply trying to help the boy, but also admitted to the police that he liked to look at young boys’ bodies. Justice Hennessy acquitted Prohaska of both sexual assault and sexual interference. With respect to the question of whether he had a sexual purpose when he touched the boy, she concluded that she could not speculate about the purpose of “a single touch lasting a few seconds without any reliable description of the touch from the child”. She convicted Prohaska of simple assault.

[124] The circumstances in this case are markedly different from the circumstances in Prohaska. This case does not involve a single, fleeting touch in circumstances where the accused might have a plausible reason for touching an intimate part of a child’s body. It has more in common with Abi-Samra. Unlike the situation in Abi-Samra, however, the circumstantial evidence in this case is only consistent with a sexual purpose.

[125] Where and how Mr. Green chose to touch CV is significant. If he wanted to emphasize the importance of physical contact for teenagers by touching a part of her body, he could have chosen her hand or elbow or shoulder or knee. He instead touched her thigh, squeezed and then moved his hand upward. Likewise, if his intent in touching CV during the second incident was to emphasize that she had a big heart, there is no explanation for sliding his hand down to her breast. The conduct in itself implies a sexual purpose.

[126] Mr. Green’s conduct and statements to CV as a whole also imply a sexual purpose. In class, Mr. Green made flattering comments, all of which focussed on CV’s personal appearance. He complimented her specifically on how she looked in a particular pair of pants. He stood close to her, smelled her hair, and whispered in her ear during class. He admitted that he focussed more on her than other students. He frequently asked her to stay after class.

[127] During their after-class meetings, Mr. Green asked CV if she was sexually active. He admitted that she had not said anything to him that might have prompted this question. There was no legitimate basis for a technologies teacher to spontaneously ask a fourteen-year-old female student about her sex life. Even if I believed that Mr. Green was concerned about CV’s mental state, this question would be wildly inappropriate. The only explanation for this question is a prurient interest on Mr. Green’s part.

[128] During this same discussion, Mr. Green told CV that the absence of human contact becomes a problem in high school. He recalled on the stand that he told her that: “When people reach puberty, human contact tends to diminish with their parents. … This is when they start to garner relationships with girlfriends, boyfriends, whatever.” He told her that many girls her age look for a bad, older boy just because they crave human contact, when they should be looking for someone like him. I reject Mr. Green’s evidence that he meant that CV should be looking for a boyfriend who was career driven. I find that Mr. Green’s groping of CV’s thigh occurred as a part of a discussion about contact of a romantic or sexual nature. I also accept CV’s evidence that he asked about things that turned her on during this interaction, and that he later told her he was attracted to her.

[129] Finally, Mr. Green admitted that he instructed CV not to tell anyone about their after-class meetings or conversations. He testified that he said: “Don’t tell anyone what we’re doing, they won’t understand what we’re doing” or “You can’t tell anyone about us” and “They won’t understand our relationship, how close we are.” I do not accept Mr. Green’s explanation for this instruction because it is part of his narrative about CV’s mental state, and I have rejected this narrative. His words imply that he recognized that he had done something inappropriate. In the context of what I find occurred between them, I find it impossible to reconcile this acknowledgement with an innocent intent on his part.

[130] Based on the whole of the circumstances, I infer that Mr. Green had a sexual purpose in groping CV’s thigh and touching her breast. I do not see any other reasonable explanation for his conduct. I am left with no reasonable doubt as to his specific intent.

[131] I therefore find that the Crown has proved the sexual interference charges.

Disposition

[132] Mr. Green, please stand.

[133] I hereby find you guilty of sexually assaulting CV on two occasions between September 1^st and December 30, 2015. I find you guilty of sexual interference with CV on these same two occasions.

Justice Sally Gomery

Released: October 4, 2021

R. v. Green, 2021 ONSC 6578

COURT FILE NO.: 19-SA4367

DATE: 2021/10/04

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DARREN GREEN

VERDICT

Justice Sally Gomery

Released: October 4, 2021