ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
B.R.
Jason Balgopal, for the Crown
Dean Embry, for B.R.
HEARD: May 16, 17, 18, 19, 20, 2022
Pursuant to section 486.4(1) of the Criminal Code, the identity of any complainant in this proceeding, or any information that could identify any complainant in this proceeding, may not be published in any document or broadcast or transmitted in any way.
R.F. GOLDSTEIN J.
1B.R. was a teacher at Marshall McLuhan Catholic Secondary School. He taught English and coached soccer. Two of his students were M.L. and E.A., the complainants. He is charged with sexual assault and sexual interference in respect of each complainant.
2The Crown originally brought two similar fact applications. The first was a cross-count similar fact application. The second was a similar fact application in relation to a third former student. At the end of the Crown’s case Crown counsel abandoned both similar fact applications and did not call the third former student to give evidence.
3What follows are my reasons for judgment.
THE CROWN’S CASE
Evidence of M.L.
4M.L. was in B.R.’s grade 9 English class in the fall of 2015. She was 13 at the time. M.L. testified that he was a pretty great English teacher. He was also her soccer coach, although he was injured for half of her grade 9 year and could neither coach nor teach. At the end of the 2015-2016 school year B.R. switched to a new school. M.L. and B.R. still kept in touch by email. M.L. testified that their communications became more personal and less formal. She described them as weird. He gave her his telephone number and they began exchanging text messages. They had at least one lengthy phone call to arrange a meeting in March 2017. M.L. was 15 years old at that time. She could not recall the exact date of the meeting. They exchanged text messages to arrange the meeting. She took a subway and a bus to a plaza in Scarborough on B.R.’s instructions. It was after school. She skipped her last class of the day. She did not know if B.R. knew that she skipped a class.
5She waited at the plaza for B.R. to come and pick her up. She could not remember which plaza. He arrived and they drove to a Starbucks. They went to the drive-through. They then drove to his condo. He parked in the underground parking garage. They took an elevator to his floor. B.R. commented that it was good she wasn’t in her school uniform because there were people in the elevator. M.L. was wearing leggings and a t-shirt. She testified that she had changed out of her school uniform. In cross-examination M.L. was shown her preliminary inquiry transcript. She agreed she may have originally said she changed into PE, or physical education clothing. Many of the girls wore tights in PE. Sometimes M.L. wore tights in PE. Sometimes she went out in tights.
6M.L. testified that they went into his condo. She recalled that he had a den. In the den he had photos of African-American people he admired, and quotes. She put her Starbucks drink on the counter. She sat down on his couch. She recalled that it was a black leather couch. B.R. turned on a soccer game. She recalled that he liked Chelsea. He sat beside her. He began touching her thigh, rubbing it up and down. She felt frozen. Her heart was beating. He was making comments about how much he liked her thighs. He touched her for 10-20 minutes. In cross-examination, M.L. could not say exactly how long it was but it was a long time. In chief, she continued to testify that the touching was on top of her leggings. He did not touch her vagina but he did touch close to her underwear line. She sat down on the carpet. He made some comments about her feeling tense and moved to massage her back and shoulder area. She did not want it to happen. He did not ask if he could touch her. He told her he reminded her of his ex and kissed her on the back of the neck. She kind of blanked out while he was kissing her neck. She wasn’t sure what to do. She testified that she eventually told him that she had to go. He drove her to a subway station somewhere in the east end. He told her to “be careful in Scarborough”. She then went to her boyfriend’s house.
7She and B.R. had no further contact until he sent her a text message apologizing. He then sent her an email in October 2017 asking how she was. She said “I’m fine”. They then discussed the March 2017 incident by email. He apologized. I will review those emails in more detail when I analyze B.R.’s evidence.
8M.L. sent a further email to B.R. in December 2018. She asked for his assistance with an essay. M.L. testified that she titled her email “the least you could do” because she thought she had some leverage over him and wanted his assistance. She was trying to get into university and, as she put it, she was not thinking straight. B.R. did not respond until after January 2019.
9In July 2017 – the summer after her grade 10 year – M.L. was taken to the hospital for an attempted suicide. She testified that she disclosed the incident at the hospital. She later told her boyfriend, and her mother after she had been to the police. In cross-examination, M.L. insisted that she had told the hospital staff about the incident and provided detail. She testified that the hospital staff told her that they would use their discretion and not report the incident to the police. She was not sure she told the staff B.R.’s name.
10M.L. explained how this matter came to the attention of the police. It was her Grade 12 year, or the 2018-2019 school year. She was likely 17. She told a school social worker about the incident. She felt as if she were at a breaking point and was having a very bad day. The social worker took her to the police station. It was not her desire or intent to involve the police.
11M.L. agreed in cross-examination that she and B.R. had a typical student-teacher relationship. She thought he was a good teacher, and cool. She agreed that while he was off they exchanged emails. They discussed the “Scorpio Gang”, a group of students (and B.R.) who all had their birthdays around the same time. She invited him to the Marshall McLuhan Christmas concert. She said that their correspondence later became “weird”. She said that it was weird that they had to get together “ASAP”. She agreed that they talked and that he gave her his number so that they could text. The texts were for the purpose of arranging a meeting. She believes it was in March that they arranged to meet. When they did speak on the phone, they talked of English, soccer, the Netflix show Black Mirror, and being Scorpios.
12It was suggested to M.L. in cross-examination that on the day of the incident B.R. had called her on route and told her that it was a bad day, but she was already on the way. She did not recall that. She disagreed in cross-examination that the plan was to sit in Starbucks but it was too crowded so they went to his condo. She did testify that she could see he had a patio at his condo. She could see it from inside. She could also see some sheer curtains. She sat on the couch, which faced the television. She strongly disagreed with the suggestion that B.R. did not park in the underground parking. She disagreed that he parked outside, that they walked across the lawn, and that they sat down at the patio and she never entered the condo.
13M.L. was cross-examined about certain details in the condo. She recalled vividly that B.R. had a black leather couch. A photograph of an upholstered grey couch was put to her. She did not recall it being that couch. She strongly denied a series of suggestions to the effect that she did not recall all the details because she did not go into the condo. She denied that she only viewed the condo from the patio. She also denied that it was she who touched his leg while they were seated on the patio. She denied that the series of emails from October 2017 had to do with an awkward situation created on the patio.
Evidence of E.A.
14E.A. testified that B.R. was her English teacher and soccer coach for 4 years. She started Grade 9 at Marshall McLuhan in 2009. B.R. was a perfectly normal soccer coach and teacher. In the summer of 2010, just before her Grade 10 year, B.R. sent her a text. She had his cell number and he had hers because they had all exchanged numbers for soccer. She had lost weight before the Grade 10 year and he complimented her. He told her she was more fit. In cross-examination, she agreed she had not mentioned that detail at the preliminary inquiry or to the police. E.A. further testified that she and B.R. discussed personal things. He said that she could trust him with things going on in her life. There were inappropriate text messages as well between them. She could not remember the content. She testified that B.R. asked her to delete them although she deleted them routinely anyway.
15E.A. testified that she visited B.R. in his class after school and he began to touch her. The uniform for girls at Marshall McLuhan consisted at that time either of a kilt or dress pants. On “civvies day” towards the end of Grade 10 students could wear anything they wanted if they paid $1. On that civvies day E.A. was wearing shorts and a t-shirt. She noticed that B.R. was looking at her. They had a moment where E.A. perceived that B.R. was going to kiss her, but the moment passed and nothing happened. That incident occurred towards the end of the Grade 10 year.
16The touching began during E.A.’s Grade 11 year. E.A. visited B.R. in his classroom virtually every day. On one occasion she began by touching his shoulders. It did not stop her. B.R. was still seated but stood up. She could see he was erect and ran her hand over his penis. He tried to put his hand under her kilt but she had shorts on underneath. They started to unbuckle his pants but there was a knock on the door. Another teacher came into the classroom. They hastily recomposed themselves. In cross-examination E.A. testified that the after-school touching would happen three to four days a week, most weeks.
17According to E.A. she and B.R. also had phone sex. They would discuss sexual things – what they each were wearing and what they wanted to do with each other. He told her he was masturbating while they talked. She testified that she was uncomfortable with it but continued on. She testified that they had phone sex 3-4 times per week starting at 9 or 10 each night and the calls would last 30-40 minutes. It happened throughout Grade 11 and continued into Grade 12.
THE DEFENCE EVIDENCE
18B.R. testified that he is a teacher employed by the Toronto Catholic District School Board. He is currently suspended while he faces these charges. He had been employed as a teacher for 16 years prior to these charges.
19In his evidence in chief, B.R. described his teaching philosophy. He said it was a mix of personal and professional. He said he put being a caring adult first. He had teachers who cared about him and it helped him. He navigated the boundaries by not speaking about personal things, although it can be hard to navigate those boundaries.
20B.R. denied having a physical relationship with E.A. He also denied having phone sex with E.A. Mr. Balgopal did not cross-examine B.R. about the allegations related to E.A.
21B.R. testified that he had a more personal relationship with M.L. He taught M.L. until January of her Grade 9 year. A knee injury kept him away for the rest of the year. He missed the soccer season because of his injury although in cross-examination he said that he kept in touch with members of the soccer team by text message. In the fall he switched to a new school closer to his home in Scarborough. They kept in touch when he left Marshal McLuhan.
22B.R. testified that he decided to send M.L. his number so he could communicate faster. He wanted her to be able to reach out to him if she wanted to. It was not his usual practice to give out his cell number. He and M.L. spoke on the phone for about half an hour one time. They discussed English or soccer. They decided to meet the next day as she was working on an essay that was due and wanted his help. They did not set up an exact time to meet – B.R. testified that he told her he would call her at the end of the next day. He did call her after class but M.L. was already on the bus. He had intended to call her and tell her not to come as he had too much work. Since she was already on the way, however, he told her to go to a mall where he would pick her up. He did so, and they went to a Starbucks. There was no place to sit so they discussed going back to his place to sit on his patio. He testified that they did not go through the drive-through at the Starbucks. When they arrived at his condo he parked on the street and they went to his patio. He testified that they did not park in the underground because he was not planning on staying home that night and was planning to go out.
23B.R. testified that at no point did M.L. come into his condo. He was setting a boundary. He did go inside to use the bathroom but otherwise they stayed outside. He did set up his laptop to livestream a soccer game. They were on the patio about 40-45 minutes. They discussed soccer and the school issues she was having. M.L. started making playful gestures while he was marking one of his journals. She tried to take it from him to see how good the writing was compared to hers. He stopped her. She touched his leg, and he brushed it away. As she was a former student, it was very awkward. He may have sworn or said something angry. She simply got quiet. He immediately recognized that it was inappropriate to bring her there. He never touched her. He then drove her to a subway station. The did not have contact until reached out to M.L. by email in October 2017 to see how she was doing. He asked about English. She responded: “English is fine”. They exchanged the following emails:
October 23, 2017, 12:31 am, B.R. to M.L.:
Cool. Are you okay? I get the feeling something is off.
October 23, 2017, 7:20 am, M.L. to B.R.:
Well obviously things are off, what do you expect?
October 23, 2017, 7:29 am, B.R. to M.L.:
I sincerely apologize you don’t understand. I have been completely stressed out about everything for months that it has given me anxiety. There is a lot going on in my life too as my dad is extremely sick and that has added to it. Please understand from me that I am truly sorry and I would like things to be better.
October 23, 2017, 8:21 am, M.L. to B.R.:
I think you were more stressed about your job than my acutal well being. Sorry doesn’t mean anything at this point.
October 23, 2017, 8:31 am, B.R. to M.L.:
I will just back off at this point as I understand where you are coming from and I will no longer message you.
October 23, 2017, 8:37 am, M.L. to B.R.:
I ended up in hospital & diagnosed with ptsd. I missed days of work and summer school. I lost my relationship. A sorry isn’t anything to me at this point. You deserve to be sued or something.
October 23, 2017, 9:47 am, B.R. to M.L.:
If that will rectify the situation I will consult my lawyer.
24B.R. testified that he had thought something was off because of the awkward, confusing situation on his patio. He apologized because he knew an awkward confusing situation could be hurtful for teenagers. He indicated that he meant the comment about his lawyer to be facetious. He could not connect how touching his leg would land her in the hospital. He also admitted that he was thinking about the Ontario College of Teachers.
25In cross-examination, B.R. agreed that he used a Gmail address for Senator O’Connor school, his new school. He created that email address when he went to the new school. He used that email to communicate with students. He did not use his school board email. He used that email address to communicate with M.L. so she could communicate with him in a personal fashion. He testified further that he felt M.L. was struggling when he saw her email. He responded in a personal way with his phone number to help her.
26Regarding the meeting, in cross-examination B.R. said that they spoke on the phone and had no more definite plans than “I’ll call you tomorrow”. He called her the next day but she was already on the bus. He told her to get off at Agincourt Mall. When they got to his condo, B.R. parked outside and was with her on the patio because he realized being inside the condo alone with her would be a big problem. He wanted to make sure it was a safe public space to work on her essay. Crown counsel put a photograph of the condo to B.R. and suggested that one could not see the counter from the patio. That was the counter where M.L. testified that she had placed her Starbucks drink. B.R. testified that that never happened as she was never in the condo. He also testified that her narrative was incorrect. Crown counsel also put a photograph to B.R. of his patio where there was no patio furniture. B.R. explained that the photo was taken in February 2020 in the winter when he was preparing his condo for sale. He did not leave his patio furniture outside in the winter.
ANALYSIS
27The role of a trial judge or jury is which is to determine whether, on the whole of the evidence, there is a reasonable doubt: R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639 at para. 21; R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5 at paras. 6, 8. The Crown, of course, ultimately bears the burden of proof and must prove guilt beyond a reasonable doubt.
28There are competing versions of events in this case. That is obviously very common. A trier of fact does not, however, simply decide which version of events to prefer. Cory J. suggested the following analysis in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742:
First, if I believe the evidence of the accused, I must acquit.
Second, if I do not believe the evidence of the accused but I am still left in a state of reasonable doubt by it, I must acquit.
Third, even if I am not left in doubt by the evidence of the accused, I must still determine, based on the evidence that I do accept, whether I am satisfied beyond a reasonable doubt of the guilt of the accused.
29I agree with Code J.’s approach to the W.D. analysis in R. v. Thomas, 2012 ONSC 6653 at paras. 22-24 (I excerpt the key points):
That case does not describe three sequential analytical steps that a trier of fact must pass through, one at a time. Rather, it describes three distinct findings of fact that a trier of fact can arrive at, when considering all the evidence at the end of the case, namely, complete acceptance of the accused's exculpatory account ("step 1"), complete acceptance of the Crown witnesses' inculpatory account ("step 3"), or uncertainty as to which account to believe ("step 2")…
… A trier of fact must look at all the evidence, when deciding whether to accept the accused's evidence and when deciding whether it raises a reasonable doubt. It is at that same point in time that the trier of fact will also determine whether the Crown's witnesses prove guilt beyond reasonable doubt and whether the accused's contrary exculpatory account must necessarily be rejected. In other words, these decisions are all made at the same time on the basis of the same total body of evidence…
30I will deal with the issues as follows:
(a) Do I believe B.R. or does his evidence leave me in a state of reasonable doubt?
(b) Do I accept the Crown’s evidence in relation to M.L?
(c) Do I accept the Crown’s evidence in relation to E.A.?
(d) Am I uncertain which account to accept? If so, I must resolve that uncertainty in favour of B.R. and find him not guilty.
(a) Do I believe B.R. or does his evidence leave me in a state of reasonable doubt?
31Defence counsel argued that I should accept B.R.’s evidence. B.R. freely admitted that he made a blunder. He blurred the line between teacher and student or former student with M.L. The relationship was inappropriately friendly. There is no question that it was inappropriate to invite M.L. to his condo and he was candid about his mistake. A mistake is not a crime. B.R. was very firm in his denial that he did not pursue M.L. or show any sexual interest in her. It is incorrect that B.R. was building a relationship with M.L. – it was M.L. who raised the issue of visiting him first and he did not immediately seize upon it. His lack of quick follow up to some of M.L.’s emails shows that he did not have an interest in pursuing a relationship. Defence counsel argues that B.R. should be believed or that his evidence should leave me with a reasonable doubt.
32Respectfully, I do not agree. I do not believe B.R.’s evidence and his evidence does not leave me with a reasonable doubt. There were contradictions in B.R.’s testimony. Contradictions do not necessarily make a witness unreliable – they may, in fact, be hallmarks of truth as no person can be completely consistent. Indeed, complete consistency can be a sign of fabrication. Contradictions must be stacked up against the whole of the evidence to determine if the witness is credible, or reliable, or if they leave a trier of fact with a reasonable doubt. In this case, the contradictions do not assist B.R. They undermine his credibility. As well, B.R.’s evidence is illogical and at times was contradicted by his own words.
33I do not believe that M.L. suddenly called B.R. while she was en route to Scarborough, with no planning. It does not make sense that M.L., got on a random bus to Scarborough – a very large place which she did not know well – in the hopes of somehow finding B.R. It makes much more sense that they arranged to meet during the phone call the previous evening, as M.L. testified.
34I also find it significant that B.R. told M.L. to go to a plaza – conveniently located near his condo – rather than to the school he was teaching at. While this is emphatically not a credibility contest, I accept M.L.’s evidence on that point, and I reject B.R.’s, because M.L.’s evidence makes sense and B.R.’s does not. Even if M.L. had suddenly called him out of the blue, it would have made much more sense for him to tell her to visit him at his new school. That would have been in line with Board policy, and certainly would have been far less suspicious. Even if the school was not convenient for some reason, why not tell her to go directly to the Starbucks if the plan was to sit there? As B.R. acknowledged, being alone in a condo with M.L. was highly inappropriate and problematic. Indeed, meeting a student outside a school setting without the knowledge of a parent or guardian was contrary to school board policy – as B.R. testified he knew. In my view it is not material that M.L. was a former student.
35Moreover, as became clear in cross-examination, Agincourt Mall, B.R.’s condo, and Senator O’Connor school are not far from each other. In cross-examination, B.R. testified that did not take long to get to Agincourt Mall from the school, and then only another five minutes to get to the Starbucks. Even if it is true that they went into the Starbucks and it was full, the prudent thing would have been for B.R. to take M.L. back to Senator O’Connor school. That was clearly a more appropriate setting for a student-teacher meeting. Alternatively, B.R. could have easily given M.L. instructions on how to take a bus to get to Senator O’Connor school or even the Starbucks. I find it significant that B.R. did not tell her to do that.
36I do not accept that B.R. was planning on telling M.L. not to come visit because he had too much work. That is contradicted by a small piece of evidence – he testified that he parked on the street, not in the underground parking, because he was planning on going out that night.
37B.R. admitted to using bad judgment in dealing with M.L. He certainly did use bad judgment. He violated many policies, as well as common sense. He knew that he was not to meet a student outside of school, alone, outside of an educational context, without the knowledge of a parent or guardian. Of course, I cannot convict him for using bad judgment, and I will not convict him for using bad judgement, but the fact that he was well aware that he was breaching his professional obligations undermines his credibility in the particular circumstances of this case.
38I agree with Crown counsel that aspects of the emails show elements of grooming of M.L. by B.R. There are comments in the emails that go well beyond what one would expect of a student-teacher relationship, even a close student-teacher relationship. For example, in November 2016 B.R. appears to have initiated correspondence with M.L.:
November 14, 2016, 2:54 pm, B.R. to M.L.:
So if I’m correct your birthday is the same day as mine… or possible 2 days after?
… I miss ya, keep in touch.
November 14, 2016, 7:48 pm, M.L. to B.R.:
… I want to say your birthday was either today or tomorrow…
Regardless, Happy Birthdayyyy early or belated my fellow Scorpio (:
Miss you too, i’ll try to visit soon.
November 27, 2016, 12:34 pm, B.R. to M.L.:
Ahhh… I missed your birthday…
… I hope everything is going alright with you.
Keep in touch.
November 27, 2016, 3:07 pm, M.L. to B.R.:
…. Yeah, report card time is always stressful… I currently have a 71 in english because I hated the merchant of venice… How are things going with you?
November 27, 2016, 11:49 pm, B.R. to M.L.:
… I always hated Merchant… I think I told you that last year. You’ll improve its still early in the year.
I’m doing well. My knee has been really bothering me, feeling like it’s taking forever to get better but it is what it is. O’Connor is slowly starting to sink in I think… I got a “hey Mr. Ross” in the hallways the other day…
I’m trying to go to bed but this football game is forcing me to stay up.
Anyways hopefully I’ll see you soon at some point…
39It is notable is that B.R. tells M.L. in the emails to keep in touch, that he misses her, and that he hopes to see her soon.
40A further email chain became more personal:
December 22, 2016, 12:57 am, M.L. to B.R.:
I have not had the chance to come and visit you yet so I have taken this opportunity to show you some writing… I am struggling to stay on top of things. As wilyman describes my attitude as “lazy but has potential.” I need to visit you ASAP because I need to ‘fix up’ as us teenagers say so I need Ross’s words of wisdom. This year I have been slacking and I need to get back on track so feel free to inspire me with words of wisdom.
Miss you and hope all is well…
December 25, 2016, 11:42 am, B.R. to M.L.:
… MERRY CHRISTMAS (first and foremost),
You must know that I really do miss ya as weird as that may sound. It must be our scorpio connection for sure. In a good way as much as I’m loving it here it sort of feels incomplete. I have to say I looked forward to seeing you everyday before so it does feel odd.
You really need to visit me ASAP… let me know if you’re ever in the area over the break or after and hopefully we can catch up somehow…
You have always be someone special in my eyes that when her time was ready she would shine so “keep jumping through the hoops” and your “time” will come.
Talk to you soon,
p.s. I apologize for any typos… it’s the Baileys lol
41Again, I agree with the Crown that this email also has elements of grooming. It is very personal. B.R. referenced drinking alcohol – which he admitted in cross-examination was inappropriate with a student. He reiterated that he missed her. It is true that M.L. reached out to B.R. and indicated that she needed to visit, but B.R. clearly reciprocated.
42The final batch of emails prior to the visit accelerated:
March 5, 2017, 10:57 pm, M.L. to B.R.:
Heyyy It’s been a while and im really missing you right now. I hate english without you.
I feel like im going to fail English..I have a 53… I’m struggling so badly right now and it just sucks.
Anyways hows life at your new school going?
Miss you tons…
March 8, 2017, 3:44 pm, B.R. to M.L.:
I miss you too… honestly it makes me so happy to hear from you… the kids here have been really good to me can’t complain but of course there is no duplicate like yourself.
I actually have three Grade 10 Religion classes right now..yes Religion…but to be honest it’s pretty good because I can just talk and talk and talk lol. You know me.
We need to have a serious pow wow…
Asides from school I started back doing some serious writing again (I think I mentioned last year I was doing that when I was off).
You know what’s crazy…as much as McLuhan is a bit of a blur right now I think if I were to see you it would kill me…in a good way but it would remind me of how much I miss McLuhan.
Anyways seriously lets try to keep in touch more even if you aren’t anywhere near Scarb…I meant it when I said text me so we can talk more often…
Miss you a million.
43B.R. then provided his phone number. I agree with the Crown that this email is further evidence of grooming. B.R. indicated that M.L. was special to him. He told her he missed her – in this case a million. He told her she was unlike any other student. He shared personal details with her, such as pursuing his own writing and the effects of his knee injury. In effect, he told her that she was important to him and that he was eager to see her – to have a “powwow”. Crown counsel described the behaviour as a bit like fishing – you drop the lure in the water and wait for a bite. I think that there is some truth to this analogy. It is true that M.L. seemed eager to see him, but it was his responsibility to deal with that professionally.
44These emails are obviously overly personal and concerning. On their own, of course, they are hardly criminal. As well, no individual email is capable of leading to a finding that B.R. was grooming M.L. It is only in light of B.R. taking M.L. to his condo – as opposed to simply meeting her at his new school, in a classroom – that the emails appear can be characterized as grooming. I find it notable that B.R. suggested a visit many times, but never suggested a visit at Senator O’Connor school. It would have been a simple matter to provide the address in any one of these emails and told her to visit after school, with the school hours. Instead, he arranged a meeting outside a school setting. Let me emphasize that I am not reasoning inductively – I am not coming to a conclusion and then fitting the evidence to fit that conclusion. I am not saying that because B.R. touched M.L. inappropriately the emails, in hindsight, are evidence of grooming. Rather, I am saying that the emails must be seen as part of the totality of the circumstances – they go into the mix to determine whether B.R. is a credible witness, and whether I can accept the Crown’s evidence and find him guilty beyond a reasonable doubt. I am also not saying that B.R. was more likely to engage in criminal activity because he sent inappropriate emails – that would be treating the emails as discreditable conduct evidence. Rather, these emails go to his credibility as well as to the question of grooming.
45I also do not accept B.R.’s evidence that he was simply apologizing for the awkward moment. If the awkward moment was caused by M.L. touching his leg, why did he apologize? The email is written in a tone and manner that suggests he did something wrong and he knew it. That is the plain and obvious inference to be drawn from the apology email.
46I turn to B.R.’s evidence that M.L. was never actually in his condo. The position of the kitchen counter is an important piece of evidence in this respect. M.L. described the position of the counter. She described leaving her Starbucks cup on a kitchen counter. A photograph of a kitchen counter was entered into evidence. So were photographs of the rest of the condo from different angles. A photograph of the patio was entered. B.R. testified that the photographs were taken when he was preparing to sell his condo in 2020. M.L. was obviously correct about the positioning of the kitchen counter, as Mr. Embry conceded – although he did not concede that it meant she was inside. In my view, however, based on the photographs, it is almost certain that she would not have been able to see the position of the counter if she had never been in the condo. That is important extrinsic evidence on a very key point: it confirms M.L.’s testimony that she was in B.R.’s condo. It also demonstrates that B.R.’s denial was untruthful and not worthy of belief.
47Crown counsel suggested to B.R. that the west facing glass on the patio would have generated a glare that made it impossible to see into the condo if M.L. was sitting on the patio. B.R. denied that. There are curtains on that door and window in the photograph. Crown counsel also suggested that curtains on the glass door into the condo would have been shut, making it impossible for M.L. to see into the condo. B.R. denied that as well. Even if M.L. could have seen into the condo, the detail of positioning of the counter is so innocuous that it seems inconceivable that she would have noted it accurately for future reference. The obvious explanation is that M.L. was in the condo, knew general layout if not all the details, and that B.R. concocted reasons why she was able to describe it. In my view, that undermines his evidence in a significant way. If M.L. was in his condo, it was the crossing of a major boundary as B.R. well knew. It casts significant doubt on his entire version of events.
48Ultimately, I do not believe B.R.’s evidence with regard to M.L., and I find that B.R.’s evidence does not leave me with a reasonable doubt about his guilt.
(b) Do I accept the Crown’s evidence in relation to M.L?
49Defence counsel argued that I should not accept M.L.’s evidence. She fabricated the incident at the condo. The first disclosure was made to the police in 2019 but there are therapeutic notes from 2017 involving a sexual encounter. It is unclear whether the 2017 disclosure involved the same person as it is clear from the notes that she did not give the hospital staff the same level of detail as she gave to the police. Indeed, she lacked credibility on the point of the hospital notes. As well, M.L. well have seen the contact on the patio as sexual contact. The Crown did not call the boyfriend or anyone else to rebut the allegation of recent fabrication, and the Court should draw an adverse inference as a result.
50With respect, I do not agree. I accept M.L.’s evidence on the critical points. It is not enough, of course, to simply prefer M.L.’s evidence to B.R.’s. I must determine whether the evidence persuades me beyond a reasonable doubt of B.R.’s guilt. In my view, it does. I accept M.L.’s evidence because it is more logical and it also accords with the extrinsic evidence. I find that M.L. was telling the truth when she testified that B.R. brought her back to his condo and touched her legs in a manner that violated her sexual integrity.
51M.L. described B.R.’s behaviour, including the sexual touching, in terms consistent with the argument that they had over email.
52As noted, M.L. was admitted to hospital in July 2017. M.L. testified in cross-examination that she gave the hospital team details about B.R. She told them about the inappropriate touching at his condo. She gave them his name. She said that the hospital staff used their discretion not to report. The records were put to M.L. One note stated:
In the spring of 2017 she experienced another traumatic event involving sexual contact with an authority figure (details and name not disclosed)…
53M.L. became unsure in cross-examination if she told the hospital staff B.R.’s name but she did say she told them what happened. Mr. Embry argued that this was an important contradiction on M.L.’s part. I agree that it was a contradiction. It was certainly a problem in M.L.’s evidence. That said, I do not find it to be an important contradiction. M.L. did not have hospital notes or other documents to refresh her memory. She was in the hospital as a result of a suicide attempt. No doubt it was an anxious and difficult time for her. As well, when confronted with the contradiction in cross-examination, she accepted that she might have been wrong about some things she told the hospital staff – although, in fairness, she continued to insist that she was right about other things. I find that the contradiction does not detract from her overall credibility and reliability.
54Another attack on M.L.’s credibility was concentrated on her description of B.R.’s condo. Photos of B.R.’s condo and couch were put into evidence, as I have mentioned. The photographs were entered into evidence to undermine M.L.’s credibility and reliability during her cross-examination, and during the evidence of B.R. In my view, the photographs did not undermine her credibility in a significant way, and in some ways buttressed her credibility.
55According to B.R., he did not own a black leather couch as described by M.L. He owned an upholstered couch, and a photograph was introduced. I accept B.R.’s evidence on the point, and it is likely M.L. was simply mistaken about upholstery of the couch. Other photographs show a set-up of furniture, including a coffee table. As I have noted the photographs were taken when B.R. was in the process of selling his condo. Mr. Embry argues that the set-up (including the coffee table) suggests that it would have been difficult for M.L. to simply slide to the floor. I do not accept this. Furniture, and especially coffee tables, are easily moved around. As well, M.L. accurately described the position of the sofa (if not necessarily the composition) and the television.
56M.L. described a wall in a small room that B.R. appeared to use as an office. She said that B.R. had a wall of photographs of prominent African-Americans he admired and quotes he liked. B.R. denied that he ever had such a “shrine” – as Mr. Embry called it in submissions. Photographs of the condo do not have a shrine. B.R. testified, as I’ve said, that those were the photos taken in 2020 when B.R. was selling his condo. I cannot resolve this contradiction, and in the end I do not have to, but I will make one observation that lends some credibility to M.L.’s evidence. In more than one email M.L. mentioned she could use one of B.R.’s inspirational quotes. B.R. replied with a quote from one of his heroes, Muhammed Ali.
57I return to the question of the kitchen counter. It has a bearing not only on B.R.’s credibility, but, obviously, M.L.’s. As noted, I find that M.L.’s recollection of the layout of the condo, the positioning of the furniture, and position of the kitchen counter all confirm her evidence that she was inside the condo.
58Accordingly, I am satisfied beyond a reasonable doubt in relation to M.L.’s evidence.
(c) Do I accept the Crown’s evidence in relation to E.A.?
59The Crown did not press for a conviction on the counts related to E.A. Although I did not disbelieve E.A., I had problems with her reliability and I found her evidence difficult to accept. She added many details to her testimony which she had not revealed to either the police or at the preliminary inquiry – which in and of itself does not necessarily impact on a witness’s credibility or reliability. She testified that she remembered more things after therapy – which also does not necessarily impact on a witness’s credibility or reliability. It is well-settled that there is no particular way that a person who has been sexually assaulted is expected to act. That said, every case is different and turns on its own facts. In the context of this case bringing out new details was problematic in the light of other evidence.
60As well, these new details were problematic in light of the main problem with E.A.’s evidence – it is implausible. I do not accept that 3-4 times a week throughout the whole of her Grade 11 year she was alone with B.R. after class where he could touch her. It seems to me that if E.A. visited B.R. routinely after class, other students must have as well. Indeed, E.A. testified that her visits dropped off when another girl came around to his class. I find that her evidence is exaggerated. That undermines her reliability. I also do not accept that she and B.R. had phone sex on such a regular, continuous basis for such a long period of time. If they had phone sex 3-4 nights per week that amounts to virtually every school night. I find that simply implausible.
61I also find it hard to accept that on all the occasions of alleged sexual touching in the classroom, E.A. and B.R. were disturbed only once. From E.A.’s description the teacher who walked in the room must have known or strongly suspected that something untoward was happening – after all, on E.A.’s evidence B.R.’s belt was unbuckled and he hastily buckled it back up. I am therefore left with a reasonable doubt on the whole of the evidence about B.R.’s guilt in relation to E.A.
(d) Am I uncertain which account to accept?
62I am not uncertain. I do not need to deal with this question.
DISPOSITION:
Count 1: Sexual assault contrary to s. 271 of the Criminal Code in relation to M.L.: I find B.R. guilty.
Count 2: Sexual interference contrary to s. 151 of the Criminal Code in relation to M.L.: I find B.R. guilty.
Count 3: Sexual assault contrary to s. 271 of the Criminal Code in relation to E.A.: I find B.R. not guilty.
Count 4: Sexual interference by a person in authority contrary to s. 153(1)(a) of the Criminal Code in relation to E.A.: I find B.R. not guilty.
Released: June 10, 2022
COURT FILE NO.: CR-21-30000234-0000
DATE: 20220610
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
B.R.
REASONS FOR JUDGMENT
R.F. Goldstein J.