WARNING
The court hearing this matter directs that the following notice should be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4 of the Criminal Code:
(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347;
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
OSHAWA COURT FILE NO. CR-19-15299 DATE: 20220411 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty The Queen Respondent – and – T.G. Appellant
Tammy D’Eri, for the Crown Matthew R. Gourlay, for the Appellant
HEARD: October 8, 2021 - via Videoconference
DECISION ON SUMMARY CONVICTION APPEAL
RESTRICTION ON PUBLICATION The publication and broadcast of this ruling is banned pursuant to subsection 486.4 of the Criminal Code.
SUTHERLAND j.:
Introduction
[1] The appellant appeals the convictions and sentence imposed by Felix J. on September 17, 2019.
[2] The appellant was charged with 30 counts of sexual offences which included sexual assault and sexual interference relating to 15 complainants. Two counts were withdrawn at the commencement of trial.
[3] The appellant was an elementary school teacher. He commenced his teaching career in 2003-2004. He was a teacher for approximately 14 years. The offences concern his conduct over a seven-year period from 2010 to 2017. The complainants were students.
[4] The allegations concern improper touching and sexual interference involving female students and one male student.
[5] The appellant was arrested on March 19, 2018 and re-arrested in April 2018.
[6] After a 16-day trial, Felix J. rendered Reasons for Judgment, 159 pages, 666 paragraphs in length convicting the appellant of 16 counts relating to eight complainants. Felix J. sentenced the appellant to incarceration of 720 days.
The Trial Decision
[7] At the trial, the alleged offences of the appellant were grouped into three categories. The categories were concerning:
(i) Grade school complainants who were in grade six or seven from 2016 to 2018. There were 10 complainants.
(ii) Historical complainants who were in grade six in 2010 to 2012. There were three complainants.
(iii) Summer school complainant. There was a single complainant.
[8] On the school grade complainants, the trial judge found the appellant guilty of the offences concerning seven complainants. This involved counts 1, 9, 3, 11, 5, 13, 6, 14, 7, 15, 17, 24, 20, and 27.
[9] On the historical complainants, the trial judge found the appellant guilty of the offences concerning one of the complainants. This involved counts 23 and 30.
[10] On the summer school complainant, the trial judge did not find the appellant guilty.
[11] The 28 counts related to the 14 complainants as described below with their respective verdicts:
Grade School
| Complainant | Counts | Verdict |
|---|---|---|
| GB | 3, 11 | Guilty |
| LC | 4, 12 | Not Guilty |
| ES | 1, 9 | Guilty |
| MV | 5, 13 | Guilty |
| BD | 17, 24 | Guilty |
| HG | 8, 16 | Not Guilty |
| BH | 7, 15 | Guilty |
| AS | 6, 14 | Guilty |
| SM | 2, 10 | Not Guilty (conceded by Crown) |
| PP | 21, 27 | Guilty |
Historical
| Complainant | Counts | Verdict |
|---|---|---|
| MR | 22, 29 | Not Guilty |
| JF | 23, 30 | Guilty |
| SM | 21, 28 | Not Guilty |
Summer School
| Complainant | Counts | Verdict |
|---|---|---|
| MS | 18, 25 | Not Guilty |
[12] The appeal only applies to the 16 guilty verdicts arising from complainants, GB, ES, MV, BD, BH, AS, PP and JF.
Appellate Review
[13] Section 686 (1) (a) of the Criminal Code states that on hearing an appeal against a conviction, the court of appeal may allow the appeal where it is of the opinion that:
(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,
(ii) the judgement of the trial court should be set aside on the ground of a wrong decision on a question of law, or
(iii) on any ground there was a miscarriage of justice.
[14] Section 686 (1) (b) sets out a series of instances where the appeal court may be dismissed. Subsection (ii) indicates that an appeal may be dismissed an appeal where the appeal is not in favour of the appellant on any ground in 1(a). The other provision are curative provisos where the appeal court may dismiss the appeal, even though the appeal is decided in favour of the appellant.
[15] Section 686 (2) provides for what the court of appeal shall do when an appeal is allowed pursuant to paragraph (1) (a). The court of appeal shall squash the conviction and direct a judgement or verdict of acquittal to be entered or order a new trial.
[16] Doherty JA in R. v. Morrissey described the workings of section 686:
While s. 686 (1)(a) provided three distinct bases upon which this court may quash conviction, each shares the same underling rationale. A conviction which is the product of a miscarriage of justice cannot stand. Section 686 (1) (a) (i) is concerned with the most obvious example of a miscarriage of justice, a conviction which no reasonable trier of fact properly instructed could have returned on the evidence adduced at trial. Section 686 (1) (a) (ii) read along with s. 686 (1) (b) (iii) presume that an error in law along with s. 686 (1) (b) (iii) presumes that an error in law produces a miscarriage of justice unless the Crown can demonstrate that contrary requisite degree of certainty. Section 686 (1) (a) (iii) addresses all other miscarriages of justice not caught by the two preceding subsections. In so far as the operation of s. 686 (1) (a) is concerned, the distinction between errors of law and all other types of error has only one significance. Where the error is one of law, the Crown bears the burden demonstrating that the error did not result in a miscarriage of justice. Where the error is not one of law alone the appellant bears the burden. [1]
[17] This appeal concerns mainly basis two and three, wrong decision on a question of law and misapprehension of evidence resulting in a miscarriage of justice.
The Appeal
[18] The appellant contends that the trial judge erred in law:
(i) curtailing the defence right to cross-examine the complainants with respect to “avoidance” and “delayed disclosure”;
(ii) admitting, and then, misapprehending, evidence about a warning from the appellant’s principal in 2012;
(iii) misapprehending the defence’s “lack of opportunity” theory ;
(iv) misapprehending an important contradiction between the accounts of two complainants MV and ES and wrongfully dismissed its significance;
(v) on sentencing, failing to apply with the principle of totality which resulted in a sentence that was manifestly unfit.
[19] I will deal with each purported error separately.
I. Curtailing the defence right to cross-examine
[20] The appellant contends that the trial judge limited or prevented him from cross-examining witnesses, mainly the complainants, on the issue of collusion, which encompassed “avoidance” and “delayed disclosure.” To appreciate this ground of appeal, a brief review of the facts and the Decision of the trial judge is required.
1. Facts
[21] The investigation against the appellant commenced from an initial report between a student and her mother. The mother was engaged in a conversation with another one of her daughters concerning a concert of a band where the lead singer was accused of sexual misconduct with young female fans. The mother’s child, who was in grade six, overheard the conversation concerning “something inappropriate” and blurted out “Oh, this is kind of like Mr. ….?”, the appellant. The grade six daughter was pressed for details. Details emerged concerning one of the daughter’s friends at school. A meeting took place with the principal the next day where incidents involving a few students were conveyed.
[22] The mother spoke with other mothers with children at the school. Information concerning the allegations were shared between them. Parents spoke to their children concerning the allegations against the appellant. These allegations spread through the school and after the appellant was arrested, in the media both mainstream and social.
[23] After the news broke, further complainants came forward with allegations dating back to 2010 and summer school in 2017.
[24] The appellant argues that his ability to cross-examine complainants thoroughly or at all was either curtailed or prevented by decisions made by the trial judge. The appellant argues that his defence of collusion whereby “the extent to which the pervasive rumours and suggestions that had circulated amongst the complainants rendered all of their accounts unreliable”, known as “innocent collusion” [2] , was significantly affected by the trial judge’s flawed approach curtailing cross-examination. This resulted in an unfair trial that manifested into a miscarriage of justice.
2. Decisions of the Trial Judge
[25] The trial judge found that “there is an air of reality to the issue of collusion in relation to all grade school complainants. The Crown, as the applicant, has not rebutted the spectre of collusion on a balance of probabilities.” [3]
[26] In determining the Crown’s similar fact application, which the trial judge ultimately dismissed, he came to the “unassailable conclusion” that “all of the complainants and witnesses discussed experiences and observations with the defendant including at times the specifics of how he was touching children improperly and sexually.” [4] He determined that none of the complainants or child witnesses colluded with bad intent.
[27] The trial judge, in his Ruling on the extent of cross-examination by the appellant concerning a witness, CM stated [5] :
Defence counsel argues that the aim of cross-examination in these areas is to: (1) discern what the rumours at the school were and how they contributed to the issue of collusion; (2) changing perception about impugned conduct held by complainants relevant to the issue of collusion; (3) credibility, reliability and, though no explicitly cited, I would infer criminal burden of proof; and (4) frankly, also the defence position is that at times defence counsel does not know precisely what a cross-examination will reveal. So, I attributed to that head of argument a sort of generalized reliance on cross-examination and its important role in a criminal trial.
The Crown objects on the basis that this is an irrelevant line of inquiry, premised on stereotypical myths.
The purpose of this ruling is to give guidance to the parties and to try to find a compromise between sober, reflective thought and preparation of a ruling and giving guidance on the issue and my ruling expeditiously.
I find that the focus of this objection must be on the impugned line of questioning and whether or not there is a legitimate cross-examination objective. I find that the cross-examination of this 13-year-old witness, regarding her failure to avoid contact with the defendant, the so-called avoidance behaviour, is of no probative value. I find that the cross-examination of this 13-year-old witness concerning her alleged delay in reporting of the incident is of no probative value.
The central important caveat to this ruling is the fact that I find there is no logical relevance between the suggested purpose and aims of the cross-examination to provide substance to the collusion and the specific cross-examining purposes. Stated simply, the cross-examination in these two particular areas does not advance the issue of collusion. The prejudicial effect of permitting this cross outweighs the probative value. As I have indicated, the probative value is zero.
I must clearly recognize that…I do not say that this ruling is of general application and applies to all witnesses forthcoming, I should say witnesses or complainants, whoever they may be. Each circumstance deserves an assessment. If there is even limited probative value to cross-examination, I should permit it. And even if cross-examination is around the issue of delayed disclosure or subject matter that might be objectively characterized as rape myths, stereotypical rape myths, the defence will be given the opportunity to address the issue with me. What I need to know explicitly in such circumstances is what - if there is an objection. That’s the first stage, if there is an objection, what is the probative value, even in a general sense? And in this way, I am struggling to address relevance. I’m not asking the defence to reveal their strategy or intimate details of the defence, but I need something, as I said to counsel in the back and forth. I need something to “hang my hat on”.
[28] In his Reasons for Judgment, the trial judge reiterated the conclusion of his Ruling and stated at paragraph 228:
I do not accept (sic) that each and every complainant and witness has mis-perceived, miss-applied, or mis-appropriated experiences learned from others in some sort on monumental mass hysterical experience. I do not accept the premise that each and every complainant and witness has essentially caught the collusive environment “flu” and has become so infected that each is irrevocably tainted. I do not accept that each and every complainant and witness has been so severely tainted by the collusive environment, that they no longer know what is reality and what is fiction. The approach submitted by the Defence, while I recognize it is accompanied by detailed submissions on each complainant and witness, is an attempt to simply paint the entire body of prosecution witnesses with a broad presumptive brush of unreliability. I reject this approach.
[29] The trial judge implemented his decisions that the appellant would be able to cross-examine the witnesses on “avoidance” and “delayed disclosure” if such line of questioning has an evidentiary foundation for each individual witness. The trial judge did not accept and did not permit such cross-examination on a witness without such an individual foundation. The appellant contends that this approach reflected an error in law as it unduly restricted the appellant’s right to cross-examination.
3. Implementation
[30] Of the 14 complainants, the trial judge permitted, to various degrees, cross-examination on avoidance and/or delayed disclosure on all of the complainants. There was no objection and no limit placed on the breadth of cross-examination on avoidance and/or delayed disclosure behaviour on 12 of the complainants. [6] There was limited cross-examination permitted on avoidance and/or delayed disclosure behaviour on a witness, CB, and two of the complainants, GB, and LC. Of the complainants that had some limit placed on the cross-examination on avoidance and/or delayed disclosure behaviour, one resulted in convictions, GB. Thus, of the convictions based on eight of the complainants (being 16 counts), only two counts had some limit placed on the cross-examination.
[31] I will begin by reviewing these two convictions based on GB, a complainant, and the effect of any curtailing of cross-examination along with the cross-examination of CB, a witness. I will then analyze the remaining convictions to ascertain if there was any constraint on the breadth of the cross-examination of those complainants.
4. Analysis
[32] There is no dispute between the Crown and the appellant that cross-examination of Crown witnesses “without significant and unwarranted constraint is an essential right of a defendant to make full answer and defence.” [7] It is a right that is protected by sections 7 and 11(d) of the Charter of Rights and Freedoms (the Charter ). [8]
[33] The right to cross-examine Crown witnesses is not an unfettered absolute right. There are limits that have been imposed on this right that have survived Charter scrutiny. [9] Evidence that would be irrelevant, prejudicial or propagate illegitimate interferences (such as the twin myths) are limits on the scope of cross-examination by the defendant of Crown witnesses. As the Supreme Court of Canada stated in Lyttle:
The right of cross-examinations must therefore be jealously protected and broadly construed. But it must not be abused. Counsel are bound by the rules of relevancy and barred from resorting to harassment, misrepresentation, repetitiousness or, more generally, from putting question whose prejudice effect outweighs their probative value. (citations omitted)
Just as the right of cross-examination itself is not absolute, so too are its limitations... [10]
[34] The Ontario Court of Appeal has also stated that there may be cross-examination on issues that may offend the twin myths where cross-examination is relevant to other issues in the trial. As Paciocco J.A. stated in R. v. J.C. [11] :
[69] For this reason, it is not an error to admit and rely on evidence that could support an impermissible stereotype, if that evidence otherwise has relevance and is not being used to invoke an impermissible stereotype…
[75] Just as it is an error for a trial judge to rely on a stereotypical inference in assessing credibility, it is an error for a trial judge to exclude an inference based on stereotype, when it is not based on stereotype.
The Two Grade School Complainants - Two Convictions
[35] Of the two convictions, I am persuaded that there was a significant and unwarranted constraint on cross-examination.
CB
[36] CB was a witness but was not a complainant. CB’s testimony concerned the circumstances of her and her friend, GB, proceeding to enter a staff room where the appellant was present, after CB witnessed inappropriate touching by the appellant upon GB. Notwithstanding the availability and the accessibility of the homeroom teacher Ms. T, CB did not disclose to that teacher the conduct of the appellant. [12]
[37] The Crown objected to cross-examination on the issue of delayed disclosure and avoidance. The Crown’s position was that such questions were not relevant and were improper for the foundation of these questions was based on twin myth reasoning.
[38] The defence argued that the questioning concerning avoidance and delayed disclosure was relevant to credibility, reliability, and collusion. The defence contended that the questions concerned whether the allegations of the appellant’s conduct were somehow tainted by the discussions by students at the school and through social media. The questions were not based on the twin myth reasoning.
[39] The trial judge ruled that there was zero probative value in questions concerning the delay in disclosing. The cross-examination on the areas of avoidance, delayed disclosure, not telling the homeroom teacher, and going into the staff room where the appellant was situated did not advance the issue of collusion. The trial judge found that the prejudicial effect outweighed any probative value. In addition, the trial judge determined the questions do raise the spectre of the twin myths. The trial judge upheld the objection and did not permit the defence to ask questions concerning not telling the homeroom teacher and attending in the staff room when the appellant was present in the staff room.
GB
[40] The question concerning the cross-examination of GB is why GB would go back to the classroom of the appellant after having been subject to inappropriate touching by the appellant. The exchange between defence counsel and GB concerning the inappropriate touching of the appellant and GB’s actions thereafter is as follows [13] :
Q. Okay. And Mr. XXX has just made you uncomfortable. Right?
A. Yeah.
Q. Okay. When you went back to your homeroom you didn’t tell Ms. T what happened. Right?
A. Yeah.
Q. You didn’t say anything to Ms. T?
A. Yeah, I didn’t say anything.
Q. Okay. It seems from your police statement you did talk to your friends about it though. Right?
A. Yeah.
Q. Then you don’t tell your teacher. Right?
A. Yeah.
Q. And when you went home that night you didn’t tell you mom about what happened. Right?
A. Yeah.
Q. Now just on page 10 of your statement GB, after what you kind of described what happened in the – the music room, this is around line 10 just so you’re with me on page 10. You say “And um so couple like days later we went back in again and then that happened again.” Do you see that?
A. Yeah.
Q. It happened again. Right?
A. Yeah.
Q. The same thing. You go to the classroom at recess?
A. Yeah.
Q. And he said hey do you want to see some photos?
A. Yeah.
Q. And you guys walk over?
A. Yeah.
Q. And the same thing happens again?
A. Yeah.
Q. Why would you go back to the classroom…
Ms. D’ERI: Okay. Your Honour I have an objection that based on Your Honour’s earlier ruling…
[41] No further questions were asked concerning avoidance or delayed disclosure that also related to the defence theory of collusion or the credibility and reliability of the witnesses’ testimony.
[42] The trial judge ruled that the line of questioning on why GB went back into the classroom of the appellant was not going to be permitted as there was no probative value for such a line of questioning. The trial judge indicated that such line of questioning offends the twin myths. The appellant submitted to the Court that the line of questioning had probative value because of the defence’s right to cross-examine and because the questions were relevant to credibility and reliability. Defence wanted to test CB and GB’s reasons for entering the room and not telling Ms. T. The trial judge indicated that he was aware of the delay in disclosing and avoidance issues at the trial.
Conclusion
[43] I conclude that the cross-examination of CB and GB by the defence was impermissibly constrained by the rulings of the trial judge. The trial judge concluded that there was zero probative value to the line of questioning and that the line of questioning concerning avoidance and delayed disclosure offended the twin myths.
[44] Respectfully, I disagree.
[45] I do not view the questions posed by the defence as impermissible reliance of twin myth reasoning. I view the purpose of the cross-examination was to delve into the issue of collusion, that is, that there was no issue with the appellant’s conduct except only after the discussion between students, the complainants and some of their respective parents on the allegations of the conduct of the appellant. The appellant was unable to test the reliability of the testimony of CB and GB in cross-examination.
[46] Consequently, the appellant was not permitted to delve into this line of questions. The trial judge prevented such questioning based on his ruling that the questioning had zero probative value and offended the twin myths. I find that such a ruling was an error in law. The ruling restricted the defence in their cross-examination on valid issues concerning collusion and reliability of the evidence of CB and GB as it relates to the convictions that relate to the allegations and offences related to GB.
Other Convictions
BD
[47] During the cross-examination of BD, the defence wished to cross-examine only on delayed disclosure and not on avoidance. The Crown objected. The trial judge ruled that questioning concerning the issue of delayed disclosure was permitted. [14]
[48] There was no constraint on the ability of the defence to cross-examine BD.
ES and MV
[49] There was no ruling of the trial judge that restricted the cross-examination of ES and MV. The defence was permitted to cross-examine both complainants on the issues of avoidance and delayed disclosure. [15]
BH, AS and PP
[50] There was no ruling of the trial judge that restricted the defence in their cross-examination of BH [16] , AS [17] and PP [18] . The defence was permitted to cross-examine on the issues of delayed disclosure and avoidance.
Historical Conviction
JF
[51] The appellant was convicted on offences 23 and 30. These offences relate to complainant JF.
[52] There was an objection by the Crown on questions concerning avoidance. The objection was overruled and there was no restriction on the defence’s cross-examinations of JF. [19]
Conclusion
[53] Concerning the other convictions and the historical convictions, the trial judge assessed each alleged offence separately and did not, in my opinion, conflate the factual matrix of the offences. The trial judge did not restrict the appellants’ cross-examination on any of the counts relating to GB. Moreover, I see no basis upon which to conclude that the error in relation to the counts involving GB somehow tainted the trial judge’s analysis on the remaining counts.
[54] I find no constraint upon the appellant’s cross-examination concerning the other convictions and the historical conviction.
II. Admitting, and then, misapprehending, evidence about a warning from the appellant’s principal in 2012
[55] The evidence on this issue concerns a meeting that the appellant had with his principal, vice principal and union representative. This meeting took place on May 24, 2012. The meeting concerned reports that the principal received of the appellant being alone in the classroom with female students and that a teacher witnessed him walking down the hall with his arm around a student.
[56] The principal advised the appellant that this conduct was completely inappropriate and not to continue for his own protection and perception. The principal strongly suggested that he not be alone in a room with a student “nor be put in situations where others could judge that as professional misconduct.” [20] This was referred to as the Principal’s Warning.
[57] The trial judge ruled that the Principal’s Warning that took place on May 24, 2012, was admissible. He noted that the evidence was presumptively inadmissible, as prior discreditable conduct. However, he found that it was admissible as it was relevant to the issue of the appellant’s mens rea and the defences of “innocent” touching or association. [21] The trial judge determined that the evidence was sufficiently proximate in time to most of the allegations before the Court and that “the detailed content of the communication is material, relevant and ascertainable.” [22] The trial judge further went and analyzed the probative value of the Principal’s Warning and its prejudicial effect. He concluded that its highly probative value outweighed any prejudicial effect and granted the Crown’s application that the evidence of the Principal’s Warning was admissible.
[58] In the Reasons for Judgment, the trial judge relied heavily on the evidence of EE and the contents of the meeting to make negative findings on the credibility of the appellant. These negative findings were, the appellant argues, critical to the trial judge’s analysis. These findings were based on a misapprehension of the evidence of EE and that of the appellant in response to that evidence. The appellant contends that the evidence should not have been admitted and its improper admission became a foundation of the trial judge’s credibility findings. Moreover, the credibility findings were based on a misapprehension of the evidence. This misapprehension of the evidence was a critical element to the pathway of the trial judge’s convictions against the appellant.
Admission of the Evidence
[59] The trial judge, as the gatekeeper, is required to exclude evidence that is not relevant to an issue at trial, or where its probative value outweighs its prejudicial effect. In the absence of an error in legal principle, a reviewing court owe deference to the trial judge on such decisions, as it is well settled that trial judges are in the best position to evaluate the on goings of a trial in real time. [23]
[60] The appellant contends that the admission of the evidence of the Principal’s Warning was based on an error in principle as there was no probative value to the evidence and if there was a probative value, it was outweighed by the prejudicial effect.
[61] I disagree. The evidence was probative of the state of mind of the appellant as well as relevant to the defence of innocent touching or association. The conversation with the appellant and the principal was probative as it amounted to a “warning” that the observed behaviour of the appellant could be considered inappropriate and could result in consequences to the appellant. With that conversation, the appellant was made aware that his touching and arms around a student and being alone with students should not continue. The fact that such touching could be sexual in nature or not was not, in my view, part of the meeting discussions nor the point of the meeting. The point was that any further physical contact with a student, such as arm around a student or being alone with a student, was not appropriate and should cease.
[62] I am also not persuaded that the prejudicial effect of the evidence outweighs its probative value. The evidence was not so dated to be of no value. The meeting took place in 2012. The first historical allegations took place in 2010-2012. The grade school allegations took place in 2016-2018. The time sequence was not a length of time, in my view, to render the Principal’s Warning of no probative value, with respect to the incidents in 2016-2018.
[63] The allegations discussed in the Principal’s Warning was around the time of the historical allegations and just years before the grade school allegations. The time sequence, in my view, adds to the probative value of the evidence as it relates to the conduct of the appellant, that is physical contact with students and being alone with students in a room.
[64] The consequences of the evidence on the defence of the innocent touching does not in itself constitute prejudicial effect. The evidence does not assist the defence. This does not make the evidence prejudicial. The Principal’s Warning evidence concerns the credibility of the appellant’s assertion of innocent touching or association. This is an issue in the trial. Thus, in my view, the evidence has probative value.
[65] I agree with the trial judge that the evidence of the Principal’s Warning was admissible.
Was the Evidence Misapprehended?
[66] The appellant argues that the trial judge misapprehended the significance of the evidence as it relates to the credibility of the testimony of the appellant.
[67] The trial judge in his Reasons concluded that the evidence of the appellant concerning the Principal’s Warning was “categorically rejected.” [24] The trial judge concluded that: “The defendant’s nonsensical conjunctive interpretation of the twin concerns on the Principal’s Warning was also problematic. This contorted thought process was also designed to rebut the weight of the evidence at trial, supporting a finding, that notwithstanding the Principal’s Warning, he continued to engage in the physical touch of students.” [25]
[68] The appellant contends that the trial judge’s categorization of the appellant’s evidence was a misinterpretation of the actual testimony of the appellant. He argues that the trial judge never addressed the appellant’s evidence that it was impossible to never be alone with a student and never touch a student innocuously.
[69] Trial judges are best positioned to view the landscape of a trial and consider the dynamics of the trial. Trial judges are uniquely positioned to make findings of credibility and reliability of witnesses. Their findings of credibility and reliability are to be given deference and should not be interfered with unless it cannot be supported on a reasonable view of the evidence at trial. [26]
[70] I am not persuaded that the trial judge misapprehended the evidence of the appellant on the issue of the Principal’s Warning. The trial judge in this instance did covey in his Reasons why he found the appellant’s evidence nonsensical and was categorically rejected. Reviewing the evidence of the appellant, I conclude that the findings made by the trial judge were open to him to make and were not based on a misapprehension of the appellant’s evidence.
[71] Hence, I do not accept this ground of appeal.
III . Misapprehending the defence “lack of opportunity” theory
[72] The appellant acknowledges that the trial judge captured his position on lack of opportunity and the appellant contends that the trial judge then dismisses that position “with what amounted to a series of non-sequiturs.” He argues that the trial judge’s failure to accept the defence position of lack of opportunity was an error.
[73] I disagree.
[74] The trial judge in his Reasons is clear that he was aware of the position and to be careful not to make assumptions on how a person who would commit the offence of sexual offence would react. [27] The Reasons set out the trial judges’ concerns with the lack of opportunity defence as well as his understanding that this evidence is one factor that he must consider in his overall analysis on whether the Crown has proved the offences charged beyond a reasonable doubt.
[75] I find no misapprehension by the trial judge. The trial judge accurately described the appellant’s position on lack of opportunity. He delineated his concerns, based on the evidence, on the appellant’s defence of lack of opportunity.
[76] I do not accept this ground of appeal.
IV. Misapprehending an important contradiction between the accounts of two complainants, MV and ES, and wrongfully dismissed its significance.
[77] The appellant submits that the trial judge failed to reconcile contradictory evidence between MV and ES. MV testified that the appellant touched her inappropriately once. ES testified that the appellant always touched MV inappropriately. ES only observed the touching once but was told by MV that it happened other times. The appellant did not cross-examine MV on this inconsistency. The appellant argues that this contradiction undermines the credibility and reliability of the evidence of both MV and ES.
[78] The trial judge did not reconcile the contradiction. The trial judge found no concern with the evidence and thus, no reason to reconcile. The trial judge determined that the evidence was not material given that:
(i) The appellant was charged with a single incident.
(ii) He had not heard from MV on this evidence when every complainant “was extensively cross-examined for every nuance an event, this issue was not put to MV.” Consequently, he cannot evaluate the submission on the contradiction “fully”.
[79] The Reasoning of the trial judge, the appellant submits, was an avoidance of his obligation to resolve major conflicts in the evidence he relied upon to convict the appellant.
[80] Notwithstanding that a trial judge is not obligated to review every inconsistency in a witnesses’ evidence, nor respond to every argument advanced, the trial judge is obligated to explicitly address and explain their resolution of major inconsistencies in the evidence of material witnesses. [28]
[81] I conclude that the trial judge did exactly that. He examined the difficulties in the evidence given that MV was not asked questions on the inconsistency. He further went on and indicated that notwithstanding this gap in evidence, he was satisfied that the Crown met its burden. Implicitly, the trial judge was not concerned about whether it occurred once or more than once because he accepted the evidence that the appellant did inappropriately touch MV once.
[82] Further, he did not find that the inconsistency given the evidence before him was material.
[83] The trial judge had every right to come to such a conclusion. As stated previously, the trial judge is uniquely positioned to assess the evidence as a whole.
[84] Deference is given to a trial judge’s assessment on credibility and reliability.
[85] I do not agree that the trial judge misapprehended a material contradiction and wrongfully dismissed its significance.
[86] Consequently, I do not accept this ground of appeal.
Curative provisos
[87] The curative proviso in section 686 (1) (b) (iii) of the Criminal Code permits an appeal court to dismiss an appeal from conviction where “no substantial wrong or miscarriage of justice has occurred.” In R. v. Samaniego [29] , Moldaver J. reviewed the utility of the curative proviso in a situation where the trial judge impermissibly curtailed a defendant’s cross- examination of a Crown witness. Though Moldaver J. indicated that the curative proviso can only rarely apply where cross-examination has been improperly curtailed, the curative proviso can be used in situations where there is any improper interference with cross-examination. [30] Moldaver J. further indicated that even though the Crown did not raise in its factum the use of the curative proviso, this on its own “does not necessarily bar its application.” [31] Moldaver J. concluded that in Samaniego the curative proviso could be used due to the Crown having raised its use in oral submissions and that the content of the factum filed allows the Court to consider it. [32]
[88] In the circumstances of this appeal, the Crown did not allude to the use of the curative proviso either in its factum or during oral submissions. Though the curative proviso may have been applicable, this Court cannot raise the use of the curative proviso given that at no time did the Crown invoke the proviso. [33] The curative proviso, therefore, has no application in this appeal.
Conclusion on grounds of appeal from conviction
[89] I accept that the trial judge erred in impermissibly curtailing the appellant’s cross examination on counts 3 and 11.
[90] Consequently, I agree with the appellant that this curtailment on cross-examination resulted in an error in law. The appellants’ right to full answer and defence was compromised by this constraint on his cross-examination of CB and GB. I conclude therefore that the convictions on offences 3 and 11 must be set aside. I accordingly order a new trial on those offences.
[91] I dismiss the balance of the appeal against conviction.
V. Sentence Appeal
[92] The appellant appeals the sentence imposed on the basis that the sentence was unfit based on the principle of totality.
[93] The appellant accepts that the 90-day sentence “for low-level touching of a student by a teacher would not be unfit in isolation” [34] but the cumulative effect rendered the total sentence unfit.
[94] The totality principle in sentencing “requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offence to ensure that the cumulative sentence does not exceed the overall culpability of the offender.” [35]
[95] The appellant also seeks to tender fresh evidence. I will first deal with the new evidence.
New Evidence
[96] The appellant seeks to present fresh evidence concerning the collateral consequences of the convictions on the appellant and his family. The fresh evidence consists of a series of published articles in the local newspaper where the appellant and his family reside. The articles published the offences for which the appellant has been convicted and his address. The articles include a photograph of the appellant and quotes from concerned residents who found the appellant and his family’s presence in the neighbourhood “nauseating.” One resident quoted indicates that they do not feel comfortable letting their children play outside. In addition, a flyer was circulated in the community with a photograph of the appellant indicating he was a teacher and that the appellant’s presence in the neighbourhood was “not acceptable.” The flyer also provided five phone numbers to call to let the residents’ voices be heard. Four of those phone numbers belonged to the appellant’s employer. There were community meetings concerning the presence of the appellant in the community along with the local newspaper articles concerning the protection of the children at the school where the appellant’s spouse works.
[97] There have been protests about the appellant residing in the community and these protests were in the vicinity of the appellant’s home. His home has been vandalized. The family has been yelled at and threatened. The appellant’s spouse has not returned to work due to the behaviour of residents in the neighbourhood.
[98] The appellant’s spouse deposes that she lives in fear for the safety of herself and her family.
[99] In R. v. Suter [36] , the Supreme Court of Canada found that collateral consequences post a conviction can be relevant as it can speak to the personal circumstances of the offender. [37] The collateral consequences must flow naturally from the conviction. The “collateral consequences must relate to the offence and the circumstances of the offender.”
[100] Moldaver J. in Suter stated at paragraph 53 :
[53] …As indicated, violent actions against an offender for his or her role in the commission of an offence—whether by a fellow inmate, or by vigilante group-necessarily form part of the personal circumstances of that offender and should therefore be considered when determining an appropriate sentence.
[101] The Crown does not dispute that the collateral consequences presented are relevant. The Crown submits that the admissibility of this evidence does not meet the fourth branch of the R. v. Palmer [38] test. It is the Crown’s position that the evidence, if believed, could not reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
[102] I reject this submission. The new evidence occurred after the sentencing hearing. The trial judge acknowledged in his reasons for sentencing that collateral consequences may be taken into consideration. He did do so on the collateral circumstances presented at that time.
[103] The fresh evidence naturally flows from the conviction and relates to sentencing and not the conviction. The evidence describes numerous unsavoury actions from residents in the community that the appellant and his family reside which directly affect the offender. I conclude that the fresh evidence may be presented and considered in determining the sentence appeal.
[104] The issue is to what extent does this new evidence affect the sentence imposed by the trial judge. I am aware of the statements of Moldaver J. in Suter wherein he describes the limited extent that collateral consequences may be used in sentencing. [39]
Sentence Imposed
[105] As stated previously, the trial judge imposed a sentence of 90 days incarceration for the eight convictions of sexual interference [40] , that is 90 days times eight, for a total of 720 days.
[106] A trial judge’s decision on sentence is entitled to significant deference on appeal and should not be disturbed absent an error in principle that has an impact on the sentence, or the sentence is demonstrably unfit. [41]
[107] The appellant argues that taken as a whole, the trial judge violated the principle of totality.
[108] The trial judge in his Reasons on sentencing took into consideration mitigating and aggravating factors. He took into consideration the submissions of the Crown for a period of incarceration of four years. The trial judge indicated that “the background of the defendant to be manifestly impressive.” He was also attuned to the consequences of the offences of the appellant upon the complainants, their respective families, and the school community. The trial judge took into consideration denunciation, general deterrence, specific deterrence, and rehabilitation. He was fully aware of section 718.3(7) of the Criminal Code.
[109] The trial judge then analyzed the principles of totality and proportionality. He took into consideration the fact that the offences convicted were against children and that the appellant being a teacher was in a position of trust. The trial judge then reviewed cases of sexual assault against children recognizing that the factual foundation of each case is different, and that unique factual foundation must be taken into consideration. These cases resulted in convictions for sexual assault against minors including sexual intercourse and inappropriate touching ranging from six months to 30 months.
[110] I find no error by the trial judge in principle. The trial judge considered a myriad of factors, as he was obligated to do. The trial judge considered the principle of totality directly in his Reasons. His final determination of 90 days of incarceration per offence, I cannot say is a demonstrably unfit sentence. Moreover, the total of 720 days, I do not find offends the principle of totality. An appellant Court is to give significant deference to an individually crafted sentence by the trial judge. I see no reason to interfere with the 720 days imposed by the trial judge on the eight convictions.
[111] However, there are two further issues that must be taken into consideration.
[112] First, the new evidence presented by the appellant. In Suter , the collateral consequences were that vigilantes took “justice” into their own hands. The accused drove his vehicle onto a restaurant patio killing a two-year-old child. He plead guilty to failing to provide a breath sample and was sentenced to four months of incarceration and a driving prohibition. After conviction and prior to sentencing, a vigilante group of three hooded men abducted the accused in the middle of the night, handcuffed him and placed a canvas bag over his head. The vigilante group drove him to a secluded area, cut off his thumb with a pruning shears and left him unconscious in the snow.
[113] The Supreme Court of Canada found that the trial judge was correct in taking this collateral consequence to the conviction into account in sentencing but “the fundamental principle of proportionality must prevail, and collateral consequences cannot be used to reduce a sentence to a point where the sentence becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender.” [42]
[114] Though the Court finds the conduct of the community as outlined in the new evidence troubling and in no way does this Court condone such behaviour, I conclude that the collateral consequences presented can be used only in a limited manner. These circumstances cannot be used to reduce a sentence imposed that I find is not unfit or disproportionate to the gravity of the offences. Consequently, I do not conclude that the collateral consequences, though disturbing and unacceptable, result in a reduction of the sentence.
[115] The second factor is the determination that convictions of counts 3 and 11 are set aside. This determination results in the sentence imposed by the trial judge be decreased by 90 days. This results in a sentence of 630 days.
Disposition
[116] I therefore find the following:
(i) The convictions on offences 3 and 11 are set aside and a new trial is ordered on those offences.
(ii) The appeal on the other convictions is dismissed.
(iii) The sentence appeal is dismissed except that the sentence for incarceration is reduced by 90 days to 630 days.
(iv) All other orders of the sentence are not disturbed.
Released: April 11, 2022
OSHAWA COURT FILE NO.: CR- 19-15299 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Her Majesty the Queen Respondent/Crown – and – T.G. Appellant/Defendant DECISION ON SUMMARY CONVICTION APPEAL Justice P.W. Sutherland
[1] 1995 3498 (ON CA) , 22 O.R. (3d) 514; [1995] O.J. No 639 (ONCA) at pg. 35. [2] Factum of the appellant, para. 16. [3] Reasons for Judgment, para. 82. [4] Ibid, para. 85. [5] Ruling May 29, 2019, Transcript (Volume 2) May 29, 2019, pgs. 41-43. [6] ES, MV, BD, BH, AS, PP, SM, HG, JF, MR, SM, and MS. [7] R. v. Lyttle, 2004 SCC 5 , [2004] 1 SCR 193, at paras. 41-44 . Also see R. v. Osolin, 1993 54 (SCC) , [1993] 4 S.C.R. 595. [8] Ibid. [9] Section 276 of the Criminal Code and R. v. Darrach, 2000 SCC 46 , [2000] 2 SCR 443. [10] Supra , note 7, at paras. 44-45. [11] 2021 ONCA 131 , at paras. 69 and 75 . Also see R. v. Roth, 2020 BCCA 240 , at para. 130 ; R. v. Patro, 2021 BCCA 149 at paras. 40-52 ; R. v. Cooke, 2020 NSCA 66 , at paras. 28-30 . [12] Transcript (Volume 1) May 28, 2019, pgs. 185-186. [13] Transcript (Volume 5) June 3, 2019, pgs. 38-41. [14] Transcript (Volume 9) June 10, 2019, pgs. 65-70. [15] Transcript (Volume 3) May 30, 2019, pgs. 27-30 and (Volume 4) May 31, 2019, pgs. 2-99. [16] Transcript (Volume 11) June 13, 2019, pgs. 48-52. [17] Transcript (Volume 11) June 12, 2019, pg. 52. [18] Transcript (Volume 7) June 5, 2019, pg. 40. [19] Transcript (Volume 12) June 13, 2019, pgs. 141-145. [20] Transcripts (Volume 15) June 19, 2019, pg. 34, lines 13-21. [21] Ruling June 19, 2019, Transcript (Volume 15) June 19, 2019, at paras. 31 to 36. [22] Ibid , at para. 53. [23] R. v. Barton, 2019 SCC 33 ; R, v. A.R.J.D., 2012 ABCA 277 , aff’d 2018 SCC 6 , [2018] S.C.J. No. 6; R. v. Osolin, supra, note 7. [24] Reasons for Judgment, at para. 158. [25] Ibid, at para. 157. [26] R. v. Norris, 2020 ONCA 847 ; R. v. R.E.M., 2008 SCC 561, at paras. 48-49 ; R. v. R.A., 2017 ONCA 714 , at paras. 43-47 aff’d 2018 SCC 13 ; R. v. G.F., 2021 SCC 20 , at paras. 81 and 82 . [27] Reasons for Judgment, at paras. 184-194. [28] R. v. DiNardo, 2008 SCC 24 , [2008] 1 S.C.R. 788 at paras. 33 and 34 ; R. v. A.M., 2014 ONCA 769 , at para. 14 . [29] 2022 SCC 9 [30] Ibid, at paras. 71 and 77. [31] Ibid, at para. 66. [32] Ibid, at para. 77. [33] R. v. P.G., 2017 ONCA 351 . [34] Factum of the appellant, at para 102. [35] R. v. Ahmend, 2017 ONCA 76 , at para.79. [36] 2018 SCC 34 , [2018] 2 S.C.R. 496 at paras. 48-51 . [37] Ibid , at para. 49. [38] 1979 8 (SCC) , [1980] 1 S.C.R. 759, at para. 22 . [39] Suter, supra, note 36, at paras. 58 and 59. [40] On the eight convictions of sexual assault, the trial judge ordered a conditional stay per R. v. Kienapple, 1974 14 (SCC) , [1975] 1 S.C.R. 729. [41] R. v. Bzezi, 2020 ONCA 184 , at para. 38 . [42] Supra , note 36, at para. 56.