Court File and Parties

COURT FILE NO.: CR-21-4517 DATE: 2023-01-10 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – ALAIN J. PHANEUF

Counsel: François Dulude for the Crown Celine Dostaler for Alain Phaneuf

HEARD: December 5, 6, 7, 8, 9 and 21, 2022

PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE, any information that could identify the victim in this case shall not be published in any document or broadcast or transmitted in any way. All such information has been removed from this decision so that it may be published.

Verdict

Justice Sally Gomery

1The defendant Alain Phaneuf was charged and tried for five offences under the Criminal Code, R.S., c. C-34: sexual assault, contrary to s. 271; sexual exploitation, contrary to s. 153; possession of child pornography, contrary to s. 163.1(4); and two counts of communications or telecommunications with a child for the purpose of committing sexual exploitation and possessing child pornography under s. 172.1.

2In 2017, the defendant was a teacher at an Ottawa high school that the complainant V attended from mid-February to late June 2017. The Crown alleges that, shortly after V transferred to the school, the defendant began exchanging texts with her, giving her lifts to and from school, and inviting her to spend time at his home. It further alleges that, between April 15 and June 8, 2017, the defendant committed the offences with which he is charged. The date range is significant because V turned 18 on June 8, 2017. The defendant could only be guilty of four of the charges if V were a minor at the time they were committed. He could be guilty of sexual assault even if V were over 18 at the time, but the charge in the indictment limits the date range.

3After closing arguments, I found Mr. Phaneuf not guilty, with reasons to follow. These are those reasons.

Uncontroverted facts

4I will begin by reviewing uncontroverted facts or those that were not specifically challenged in cross-examination.

5In February 2017, V lived with her father S, his girlfriend at the time, and her much younger brother. V’s mother had died of cancer in 2015 after a prolonged illness preceded by chronic health issues. V had an unhappy adolescence. Although she had no trouble getting good grades, she changed schools a couple of times. In early 2017, V was hospitalized for an unspecified reason.

6In February 2017, V transferred to the École L’Alternative, a school in the French public board in Ottawa. She was 17 years old and only had a few credits to complete to graduate high school. As its name suggests, L’Alternative offered a non-traditional learning environment for high school students at risk of dropping out. Students physically attended on-line classes at the school. There were only five or six classrooms. A teacher would be assigned to each classroom to assist the students as needed.

7V’s house was across town from L’Alternative. Using public transportation, it would take her an hour or so to get to and from school.

8In 2017, the defendant was living with his partner, NR, at 978 Telford Avenue in Ottawa (the “Telford house”). They each had children from prior relationships. NR’s youngest daughter lived with the couple in 2017 while she completed high school. This daughter also attended L’Alternative but had completed all her required credits to graduate by January 2017 and so was no longer going to classes. She also worked part-time. The defendant has a daughter, C, who was seven years old in 2017. C lived with her mother but spent every second weekend with the defendant.

9The defendant did not teach any of the courses taken by V at L’Alternative. At some point, however, they came into contact at the school. Some time later, the defendant gave V his personal cellphone number. They began to text one another and had video chats over Skype. He gave her drives to and from her home and the school and attempted to book a massage therapy appointment for her in early June. On June 9, 2017, the day after V’s 18th birthday, she went to Costco either with the defendant or with the defendant and NR so that V could buy a new cellphone. The defendant also gave her a tripod for her birthday.

10On June 13, 2017, V’s father, S, phoned the principal of L’Alternative to complain about the relationship that had developed between the defendant and V.

11On June 15, 2017, V exchanged text messages with NR, who then passed her phone to the defendant so he could exchange messages with V. In one of his texts, the defendant asked V if there was any chance that her father had monitored their conversation “the other night”, which he described as the “more… racy one”. V reassured him that her father “has no way of monitoring what I send. New laptop, new phone.” The defendant said he wanted to make sure that S did not provide the school “with anything besides his knowledge of lifts and you coming over”. V responded that the only other thing that S may have mentioned to the school was that they bought a phone.

12During the school board’s investigation of S’s complaint in June 2017, he acknowledged that communicating with V using their personal cell phone numbers, and giving her lifts in his car, contravened the board’s rules. Following its investigation, the school board suspended Phaneuf for one day without pay. It also forbade him from attending the graduation ceremony at the school on June 16.

13V graduated from L’Alternative in late June 2017. NR telephoned her father to ask him if she could attend a party at the Telford house. S agreed, so V spent an evening there after the graduation ceremony at the school.

14In August 2017, V’s father moved the family to British Columbia. Prior to the move, V and her brother spent several weeks with their grandparents in Kingston, Ontario in late July and early August.

15Beginning in late June 2017, V and the defendant resumed texting one another. The tone and content of the messages from this period produced at trial was affectionate and sometimes sexual. In messages sent late July, the defendant asked V to send him photographs. He referred to the possibility of her moving back to Ottawa and living in an apartment in the basement of his house where he could visit her. He sought reassurance that V was “still ok exploring that part of our relationship”. In another message he said that he would “seriously fuck those blues away for you my love”.

16In September 2017, V met the man whom she later married. Once they began their relationship, her communications with the defendant ceased to be sexual, although they remained in touch.

17In January 2021, V told police in B.C. that she and the defendant had sex in the weeks prior to her 18th birthday and that, at his request, she had sent him nude photos during this same period. She made a statement to the Ottawa police on February 4, 2021. The defendant was fired by the school board around this time, and these charges were laid.

The evidence at trial

18Five witnesses testified at trial: the complainant, V; her father, S; Nicolas Cardinal, a representative of the Conseil des écoles publiques de l’Est de l’Ontario (the “school board”); Detective Melanie Groulx-Lavergne; and NR, Phaneuf’s common law partner.

S’s testimony

19In early April 2017, S testified that he became concerned about the level of attention that the defendant was paying to V. V was getting rides to and from school from the defendant, and V told S that they were exchanging texts and talking by phone. One evening, S overhead a male voice in V’s room. V told him that she was receiving help from the defendant through video chat. He recalls that this would have been in April or May. According to S, he spoke to V about her interactions with the defendant, because he thought they were excessive in the context of a teacher/student relationship. He also consulted family members who were or had been teachers.

20S spoke to the defendant only once. One morning when the defendant came to pick V up to drive her to school, S approached the driver’s side window. He and the defendant had a cordial conversation. S introduced himself and thanked the defendant for giving V lifts. S recalled that this would have occurred in “late April, early May”, but the drives had begun sometime earlier. According to S, V had informed him that the defendant had been driving her back and forth from school for a while at this point.

21Although he was working from home at the time, S was not certain when V’s school day started or ended. He agreed that her commute on public transportation took an hour or more. He did not notice whether, at some point, she began leaving the house earlier. He did not remember if there was a specific time that she would arrive home every day.

22S recalled that V got a new phone around the time of her birthday. He could not remember if he bought it for her or reimbursed her for it. S believed that V was making friends at L’Alternative, one of whom was the defendant’s daughter, and that V was welcomed by the defendant’s family. This seemed like an odd, but positive, development. He recalled that V spent her birthday with the defendant and his family but said that she also celebrated at home.

23S phoned the school principal in early June to express his concern about V’s relationship with the defendant. He said he was “quite angry” at the time. The principal said he would look into it. S could not recall if he told V that he was going to phone the principal. He did recall that she was very upset when she learned that he had done so, as she thought that this showed that her father did not trust her.

24In cross-examination, S acknowledged that he gave V permission to attend a graduation party at the Telford house after getting reassurance from NR that it would be supervised. He said that he did not want to cut off V’s contact with her classmates.

25S testified that, in the weeks before the family moved to British Columbia, V spent a lot of time at the Telford house, ostensibly because she remained friends with his daughter. She may have spent the night there on occasion. S admitted that he was preoccupied with the move during this period. He did not recall that he left V in Ottawa for a week before she joined her brother and grandparents in Kingston.

V’s testimony

26V testified that the defendant approached her one day in the hallway of L’Alternative when she was having a bad day. The defendant pulled her aside and they went into the teachers’ lounge to chat. There was no one else around. V recalled that this was late February 2017. She said she was surprised that the defendant approached her because they had not met before. V told the defendant about a fight she had just had with a friend who was her main support at the school. The defendant was understanding and comforting. He offered to talk with her any time.

27According to V, the defendant gave her his phone number a short time later. She could not remember how he did this. They began to text and message each other regularly. They talked about V’s family, what was going on at home, and what caused V to change schools. According to V, she confided in the defendant about everything.

28In late March, V began getting car rides to and from school from the defendant. She had complained to him about having to take public transit, telling him it was difficult to stay motivated to attend classes. The defendant mentioned that he often picked up or dropped off his youngest daughter in the west end of the city and would pass by where V lived. He offered to drive her to school. This eventually became a regular habit. According to V, he dropped her off at home in the evening about twice a week, on average, after having dinner at the house with NR and one or more of their kids.

29Around this same time, V and the defendant began to Skype or video chat after school. V was usually at home, in her bedroom. She was taking political science and was having trouble writing essays without anyone to bounce ideas off of. The defendant offered to help her. V testified that she and the defendant also began phoning each other, when they could not text.

30V testified that, around this time, she also began to visit the Telford house on a regular basis. V said she met the defendant’s daughter, C, for the first time either in the defendant’s car or at the Telford house. She also met NR, and two of her daughters.

31One evening in April 2017, when V was at the Telford house, they were alone in the kitchen while the defendant cooked dinner. There was music playing and the defendant invited V to dance with him, then he kissed her. V testified that this was the defendant’s first sexual advance. She remembered a moment of hesitation, afterwards, because he was her teacher and she was stunned that this would have happened.

32The defendant then began to touch V during their car rides. First, V and the defendant just held hands, then he was putting his hand on her thigh, then putting his hand down her pants. She said that the defendant sometimes put his hands inside her pants while the car was moving, in traffic. V recalled that the escalation of touching in the car took place over about six afternoon car rides.

33V testified that she had sexual intercourse with the defendant three times before her 18th birthday. They had sex twice in his car, once in the backseat and once in front. V described where the defendant parked the car and produced pictures that she later took of these sites. She testified that they also had sex one day at the Telford house, in the defendant’s bedroom. She and the defendant had taken C to a nearby park, then returned to the house to eat lunch. She recalled that C was watching television while they were in the bedroom.

34At first, the video chats were mainly for homework. They progressed to more general discussions about life, then to sexual conversations. The defendant told V she was beautiful and asked her to lift her shirt up. V at first balked, feeling uncomfortable. She eventually gave in, though. She recalled that this was in early April, late at night, when V was in bed. She did not recall exposing any other part of her body to the defendants during these chats.

35V testified that she did not tell anyone about the car rides, the texts, or the video chats with the defendant. She was worried about what people would think and also did not feel the need to tell anyone. Her father, S never asked. In early May, however, S become aware that V was getting lifts from the defendant. When V was leaving the house one morning, he asked who was picking her up. From this point forward, V and the defendant decided that he would pick her up and drop her off down the street from her house.

36One evening, S walked into V’s bedroom while she was video chatting in bed with the defendant. S asked who she was talking to, and she told him she was getting homework help from a teacher. V did not remember S’s reaction. They did not discuss it.

37V and the defendant initially texted using iMessage, the application on her iPhone. She got a new Samsung phone on June 9, for her birthday, and then began using the Samsung messenger application. After the school board investigation, they switched to WhatsApp. According to V, the defendant told her that he was worried that NR would see V’s picture on his phone, so he wanted a separate application for their texts.

38In late May or early June 2017, V threw out her back coughing and was in extreme pain. The defendant suggested that he book an appointment for her with the massage therapist who had premises in the basement of the school board building. To V’s knowledge, however, no appointment was booked.

39According to V’s evidence in chief, she and the defendant also went on a dinner date in early June. They ate at a sushi/Chinese all-you-can-eat restaurant in the same complex as a movie theatre. They saw Wonder Woman. She went to see the same movie the following week with NR and two of her daughters. For their benefit, she pretended that she was seeing the movie for the first time.

40V said that the defendant did not demonstrate any physical affection towards her when they were in public. The defendant hugged V and once gave her a neck massage at the kitchen table in front of NR but did not otherwise touch her when NR was around. V testified that the defendant once kissed her at the school, but this was in an office with the door closed. He told her that they should not touch in public because it would appear inappropriate to others, and that she should wait to leave the office after he left, so no one would see them leaving it together.

41V did not recall whether she celebrated her 18th birthday at the Telford house on June 8. She recalled, however, that the defendant drove her to school that day, and they stopped at Starbucks for coffee. V testified that she bought herself a lottery ticket. She denied any possibility that NR bought the ticket for her, or that this was one of the first times she met NR.

42On June 9, according to V, she and the defendant went to Costco, where they purchased a new phone for her. A bank record produced by V shows that she made a purchase costing $628.96 at Costco that day. It also showed that the defendant transferred $80 to V on June 12, 2017. V testified that he covered the cost of a warranty for the phone.

43On June 15, 2017, V texted NR, who then passed her phone over to the defendant. Screenshots of the texts exchanged between V, the defendant, and NR that day were produced at trial. In one of his messages, the defendant asked V “if there was any chance your dad could have monitored our conversation the other night”. V replied: “No chance whatsoever”. The defendant clarified that he was referring to the “more.. racy one:, and that he “was just questioning the timing of his call with the next day after our convo”. (I infer that the call being referenced here is S’s call to L’Alternative on June 13). V responded that she was “100%” certain that there was “no correlation” and that the defendant need not worry. The defendant texted that he wanted to make sure that S “didn’t provide them with anything besides his knowledge of lifts and you coming over”. He said that he could deal with all of this, and V reassured him that this covered everything that S would have told them except perhaps their purchase of her new phone. The defendant noted that “we were with [NR] at Costco” and added: “She’ll back me up”. V testified that this meant that he expected NR to corroborate the defendant’s account.

44Before ending the chat, the defendant said he would simply tell the truth at the meeting with school board officials, adding: “Aside from the appearance of something, everything was done out of love and caring from me and [NR]”, to which V responded: “I know”. V testified that she knew that the defendant would not be telling the truth about their relationship during his meeting with board officials. The reference to “love and caring” included not only homework help and drives to school but instruction on sexual activity.

45V testified that, when the investigation started, the defendant told her to delete absolutely every text message they had exchanged and any other evidence of contact because, if anyone found out about them, it would ruin his life and career. V thought that he gave her these instructions in person but could not recall when or where. In any event, V testified that she deleted all pictures and messages on both her old phone and the new one.

46NR attended V’s graduation ceremony at the school. The defendant did not. After the ceremony, V went to a small party at the Telford house, after NR requested S’ permission.

47V said that she got the message in late June from the defendant that it was okay to resume contact. She initially said that this was around the same time they began exchanging messages on WhatsApp. She testified that, at this point, her relationship with the defendant became even more sexual, and she spent more time at the Telford house than at home. She and the defendant continued to have sex, exclusively in his car, almost every time he drove her home. She testified that he usually parked in a spot that had minimal street lighting, cars, or houses.

48V testified that she and the defendant exchanged photographs. Some of the pictures she sent were sexual in nature. Some were topless, and some were full nudes. She said that none of these photos were sent prior to V’s 18th birthday, however, and no such pictures were introduced into evidence. V also acknowledged that the defendant never explicitly asked her for nude pictures in their texts after the investigation.

49V travelled to Kingston to stay with her grandparents for a few weeks. She left near the end of July 2017. She was supposed to go a week earlier, because S and his partner at the time were travelling across Canada to B.C. Instead, her brother went to Kingston as planned and V remained in Ottawa for a week. In examination in chief, V testified that she slept at the Telford house, on the couch in the living room, during that week and the defendant and NR drove her to the bus station on the day she left. She later said that she effectively moved into the Telford house from July 1st, 2017, onwards, returning to her own house only a couple of times to pack. In cross-examination, she downplayed this claim.

50V remained in contact with the defendant while she was in Kingston and then after she arrived in B.C. They called each other on Skype and texted. Their communications remained sexual in tone and content until September 2017. In the next two years, V returned to the Telford house twice during visits to Ottawa, but she and the defendant did not have any sexual contact.

51V produced three photographs that the defendant sent to her. The first shows the defendant’s cat sitting on a chair around a table set for a meal, which the defendant found funny. The second photo shows V holding the defendant’s daughter C. V testified that this photo was taken in 2018 or 2019, when V visited Ottawa. The third photo is a picture of the defendant that he sent her around the same time to show her how long his beard had grown.

52V also produced a 65-page document that she had given to the police. It consisted of the three photographs already mentioned, screenshots of text messages, and screenshots of records V said she had retrieved from her phone showing her movements on June 1, 2, and 3, 2017.

53According to V, she reviewed thousands of text messages she exchanged with the defendant and gave the police those that were, in her view, relevant. The text messages are almost all incomplete. Some messages obviously start part-way through a longer chat while others end mid-conversation. Excerpts from the same chats are reproduced two or more times. The messages are out of order. Most of them are undated. Those that are dated were sent at the end of July 2017 and once in October 2017. V testified that most of the messages were exchanged while she and her brother were visiting her grandparents in Kingston before flying to B.C. to join their father. Some of them were, however, exchanged much later.

54The text messages produced are sexually suggestive and affectionate. The defendant and V profess their love for each other and express the desire to be together. They frequently include blue heart emojis and other emojis which, according to V, have a sexual connotation. The defendant repeatedly asks V for pictures. In an undated message, he suggests that she might move into an apartment in his house so he could “go visit” her, then asked: “are we still ok exploring that part of our relationship? Or would you rather I back off that. I ask because I worry you won’t tell me”. To which V responds: “100. No doubt in my mind”. The defendant then texts that V should feel free to talk to him about anything, including have sex with other people.

55In some of the messages, V and the defendant discuss using a different messaging application. In an undated message, the defendant suggests that they should change texting applications, to which V responds: “Hmmm why?” The defendant writes that it is “ok on my end. Its just that sometimes I open messages and [NR’s] around. And I don’t want a pic of you there. Hehe. Because you were the last person I spoke to. Make sense?” To which V responds, “It does”. The defendant then mentions various texting applications, including WhatsApp. The complainant responds: “However, it will look more suspicious”. The defendant says: “True. Maybe both? One for regular. One for…play?”, then says: “Are you worried for suspicious on your end? Or mine”, to which V responded “Yours”.

56In a further undated exchange, V writes: “did you get WhatsApp?”, to which the defendant responds: “not yet”. In another undated exchange, V tells the defendant to: “download the fucking app”. The defendant replies “Ya ya” then, on July 31, 2017, writes: “Don’t forget I’m texting you on the other app now”.

57There are two pictures embedded in these messages. In one of the undated chats, the defendant texted “You know which picture I find incredible?”, followed by a picture of V, and the words “This one”. The photo was a head shot of V in which she is looking straight into the camera with her eyes wide open and a cherry is dangling from her mouth by its stem. She is wearing a shirt or dress with spaghetti straps. The top part of the second picture, also attached to an undated chat, is blocked out. The bottom half shows V’s bare midriff. Below the photo, V wrote: So here I am running around in my bathing suit”. It is impossible to tell, based on the document produced, what was shown in the portion of the photo that was edited on the screenshot, nor did V testify on this point.

58Finally, there are screen shots purporting to show some of V’s movements at the beginning of June 2017. V testified that she had the location services on her iPhone turned off, but somehow she was able to retrieve data for three days. Two screenshots dated June 1, 2017, show a route or routes from the St. Laurent area of Ottawa to some points west of downtown. It is impossible to tell if these screenshots show V’s movements that day or simply potential routes.

59A screenshot dated June 2, 2017, appears to show V’s location as tracked by her phone that day. It shows her location at a Costco store between 2:41 p.m. and 5:04 p.m., then travelling to Morgan’s Grant, where she stopped for six minutes, then for 15 minutes stopped at an unknown location in the Castle Heights neighbourhood, then at 978 Telford Avenue, the defendant’s address, for just under four hours. It shows V returning to her home address at 11:01 p.m. V testified that she, the defendant, NR and C went to get groceries at Costco that day. She remembered that she and C got ice cream.

60The screenshot dated June 3, 2017, appears to indicate that V went to various locations that afternoon and ended up at 972 Telford Avenue for an undetermined period of time beginning at 4:42 p.m. The amount of time she spent there is undetermined because the document produced by V is cut off at that point. She did not explain why she did not produce data for the entire day, or why her phone’s location service would have indicated that she was visiting an address on Telford Avenue other than the defendant’s address. V denied that she knew anyone else who lived on that street.

61By December 2020, V’s relationship with the defendant had become more distant. She contacted L’Alternative, then the police, with her allegations about the defendant.

62In cross-examination, V was shown an email dated May 16, 2017 from the defendant’s school board address to V’s school board address. He wrote: “Salut ma belle, Fais-moi savoir si tu as besoin d’aide avec ton cours. Mon numéro pour texter est ici bas si tu veux.”[1] The defendant’s cell phone number information appeared at the bottom of the email. V denied that the defendant provided his phone number to her for the first time in this email or that she even received the email. She asserted that she had the defendant’s phone number well in advance of May 16, 2017.

63V was also cross-examined on her recollection of the defendant’s car. She testified that he drove a 4-door, light grey, Mazda 3 with an automatic transmission. V was confronted with her evidence at the preliminary inquiry, where she said that the defendant’s car was a dark grey Honda Civic. V suggested that, at the preliminary inquiry, she had been talking about a car that the defendant acquired later that year, and that he was definitely driving a dark grey car in May and June 2017. She adamantly denied that the car could have had a manual transmission, stating that the defendant taught her to drive in it.

64V was then shown three photographs of a light grey car. She recognized the car as the defendant’s vehicle when shown photos of its front and rear exterior but denied that it was the car that they drove in together. The third photo, taken of the car’s interior, showed that it had a manual transmission. V emphatically denied that this was the vehicle owned by the defendant in the Spring of 2017.

Nicolas Cardinal’s testimony

65Nicolas Cardinal was the school board’s assistant director of human resources until 2021.

66Mr. Cardinal testified about the board’s rules on contact between teachers and students in its schools. He said teachers have no responsibility for student transportation, outside of sanctioned extracurricular activities. Teachers should use email addresses assigned by the school board or a Google video chat platform to communicate with students. Communication using personal email addresses, texts, telephone calls, or Skype is strongly discouraged, to avoid blurring the lines between personal and professional roles. A teacher would be strongly discouraged from inviting a student to their home, for the same reason.

67Mr. Cardinal testified that, following the school board’s investigation of S’s complaint in June 2017, it concluded that the defendant had behaved inappropriately towards V. He was suspended for one day without pay. After V made a complaint to the school board in January 2021, the defendant was suspended with pay. He was fired in February 2021, after board representatives interviewed V.

68Finally, Mr. Cardinal testified about V’s school board email addresses. The email address she was originally given in 2015 was replaced in September 2016. V retained the new address in 2017 when she transferred to L’Alternative. The defendant’s May 16, 2017 email offering to help V with her coursework was addressed to the new address.

NR’s testimony

69NR has been the defendant’s common law partner since 2016. In 2017, NR was a special education teacher at De LaSalle, a high school in the same board as L’Alternative. She testified that her workday ended at 3:20 p.m., and she would leave the school at 3:30 p.m. She rarely stayed later, as she was not required to under the collective agreement in place. The drive home took eight minutes, so she was generally home by 3:40 p.m. By contrast, the teachers at L’Alternative, including the defendant, usually stayed at work until 4:00 p.m. The defendant often stayed later because he tutored students at the adult high school next door. As a result, he could arrive home any time between 4:30 p.m. and 7:00 p.m.

70According to NR, the defendant had a pale grey Elantra with a manual transmission in 2017 while NR had a gold Ford focus. NR did not drive the defendant’s car because she does not like driving a standard and, in any event, she had her own car to commute to work. She identified the defendant’s car in the three photographs shown to V in cross-examination. She denied that the defendant borrowed her car to drive V. She also denied that the defendant ever owned a second, pale grey car with an automatic transmission.

71NR testified that the defendant mentioned V for the first time at the end of May 2017. They often discussed students in trouble. The defendant had met V recently, and felt she was at risk of dropping out of school. He was looking for ways to encourage her to attend the last few weeks of classes so she could graduate.

72NR recalled that the biggest problem for V was transportation to and from L’Alternative. She texted the defendant one day saying that she was not planning to go to school. He offered to drive her, and she accepted.

73According to NR, she met V for the first time on June 9, 2017, when she came to the defendant’s house for dinner. NR recognized V as a former student at the school where she worked, although she had never taught her. The birthday meal was organized because V had complained to the defendant that no one at her house was celebrating her 18th birthday. NR testified that in her family and more generally in France, an 18th birthday is a big deal. NR therefore suggested that she and the defendant buy a cake and invite V for dinner. The defendant also bought V a tripod as a gift, and NR bought her a lottery ticket, because 18 is the legal age to play the lottery.

74At some point after June 9, NR was present when the defendant and V participated in a Skype call one evening. She recalled that V was preparing a speech for graduation and wanted help with it. The defendant’s computer was on his desk, in the bedroom he and NR shared. NR was working on her own computer in the same room. The Skype call lasted about an hour. NR remembered that V gave them a virtual tour of her house. This was the only Skype call that NR witnessed.

75NR denied that she went to Costco with V prior to June 9. She said that she could not have accompanied the complainant anywhere in the early afternoon on Friday, June 2, 2017, because this was a professional development day. Although students did not attend classes on PD days, teachers were required to work unless they could produce a medical certificate or some other basis for their absence. C would have been at daycare at Ecole Julie Payette in Kanata, near her mother’s house, on a PD day, so also could not have accompanied the complainant to Costco during school hours. NR said that she specifically recalled having lunch with colleagues on June 2, 2017, because she noticed that one of the menu items was a dish sold by one of her daughters.

76NR testified that she went to Costco with the plaintiff twice after they first met on June 8. The first time, V bought a new phone. V asked if she could go to Costco with NR and the defendant because her father S was not a member. NR went to Costco with V again in July. They went to eat Thai food at a local mall beforehand. C was with them. NR recalled this occasion because she was on a strict gluten-free diet, and she could not find anything on the restaurant menu that she could eat. She also remembered that the coffee was awful.

77V came to the house again on June 21, 2017, to celebrate high school graduation with NR’s youngest daughter and another student whose parents were working that day. V had contacted NR to ask if she could join them because her father, S, was not planning any festivities. NR agreed, so long as S was okay with it. She met with S at the graduation ceremony, just before it began.

78NR testified that V was not the only high school student who visited the defendant’s house. Her youngest daughter’s friends, and former students, sometimes came by.

79NR confirmed that she and V visited a tattoo parlor together in early July. According to her, the defendant dropped them off and then left. She testified that she, the defendant, and V saw Wonder Woman together in July, just after the movie opened. She did not recall if they ate before or after the movie, but remembered that it was an evening show.

80According to NR, V sometimes came to the defendant’s house in July after the school board’s investigation ended. V’s family was moving, and she was often alone at home and bored. She would send a message to NR or the defendant, saying she did not feel well and asking if she could come by. She would come by Uber or bus, and NR would drive her home. NR was adamant that the defendant never gave V a drive home after June 13, the date of S’s complaint. It was so obvious to NR that this would be a bad idea that she and the defendant never even had to discuss it.

81NR testified that her brother, his wife, and their two children travelled from France to visit her in the summer of 2017. They arrived July 11 and stayed three weeks.

82According to NR, V slept at the defendant’s house twice: once in July, and the day before she left for B.C. On both occasions, the house was full because NR’s relatives were there, and so V slept on the sofa.

83In cross-examination, NR recognized the headshot of V attached to one of the chat messages produced in evidence. She said that V herself had shown her this photo. V took many photos at the time, and this was typical of the style she favoured.

84NR expressed the view that teachers are sometimes justified in breaching board rules to help students. NR said that she herself has given student lifts in her car, exchanged text messages with students, and had them over to her house. In her view, the defendant had not harmed V by assisting her in these ways. She has never tried to arrange for massage therapy for a student but said she would have done so if she had a student in pain whose parents were not arranging for any treatment. NR emphasized that some students do not have supportive families and that she is a mother as well as a board employee.

85NR denied that Detective Melanie Groulx-Lavergne ever asked her for an interview. She testified that she asked for the officer to send her specific questions. She never did, and NR did not know what she was supposed to talk about. As a result, she never provided a statement. She admitted that she never responded to the officer’s last email. She said she was worried that anything she said could be taken out of context. She acknowledged that she wanted to protect the defendant but denied that she would lie for him.

Testimony of Detective Melanie Groulx-Lavergne

86Detective Melanie Groulx-Lavergne testified briefly about her attempts to interview NR between March and June 2022. NR initially said she was willing to provide a statement but wanted to speak with a lawyer. When Det. Groulx-Lavergne followed up, NR said she would provide a written statement by email. The officer subsequently sent two emails asking for a statement and she called NR. Despite this, she never received a statement from her.

87In cross-examination, Det. Groulx-Lavergne acknowledged that her discussions with NR took place in French, but she took notes in English. She conceded that she might have failed to record part of their discussion, and that she had no actual memory of their conversations. She accordingly agreed that NR may have asked her to send specific questions for her to answer, which she never provided.

Has the Crown proved the charges beyond a reasonable doubt?

The legal standard

88The defendant is presumed innocent. To obtain a conviction, the Crown must prove, beyond a reasonable doubt, that the defendant has committed the offences with which he is charged. Reasonable doubt is “based on reason and common sense … logically derived from the evidence or absence of evidence”: R. v. Lifchus, [1997] 3 S.C.R. 320, at para. 39. The Crown does not need to prove the allegations to an absolute certainty, or beyond any “imaginary or frivolous doubt”: Lifchus, at para. 39. It must, however, prove each element of a charge beyond a reasonable doubt.

89This case turns largely on V’s testimony. Although other witnesses testified, V was the only one who had direct knowledge of the alleged interactions that give rise to the charges.

90As Molloy J. explained in R. v. Nyznik, 2017 ONSC 4392, at paras. 15-16, a judge’s task in a sexual assault trial is not only to determine whether a complainant is telling the truth as they perceive it, but whether their evidence is sufficiently reliable to convict the accused:

Reliability has to do with the accuracy of a witness’ evidence – whether she has a good memory; whether she is able to recount the details of the event; and whether she is an accurate historian. Credibility has to do with whether the witness is telling the truth. A witness who is not telling the truth is by definition not providing reliable evidence. However, the reverse is not the case. Sometimes an honest witness will be trying her best to tell the truth and will fervently believe the truth of what she is relating, but nevertheless be mistaken in her recollection. Such witnesses will appear to be telling the truth and will be convinced they are right, but may still be proven wrong by incontrovertible extrinsic evidence. Although honest, their evidence is not reliable. Only evidence that is both reliable and credible can support a finding of guilt beyond a reasonable doubt.

91Serious inconsistencies in a complainant’s evidence may give rise to reasonable doubt: As the Ontario Court of Appeal stated in R. v. G.(M.), 1994 CarswellOnt 181, at para. 23:

Probably the most valuable means of assessing the credibility of a crucial witness is to examine the consistency between what the witness said in the witness box and what the witness has said on other occasions, whether on oath or not. Inconsistencies on minor matters or matters of detail are normal and to be expected. They do not generally affect the credibility of the witness. … But where the inconsistency involves a material matter about which an honest witness is unlikely to be mistaken, the inconsistency can demonstrate a carelessness with the truth.

92A single minor inconsistency will not diminish a witness’ credibility, but a series of inconsistencies may do so. The trier of fact “should look at the totality of the inconsistencies in order to assess whether the witness’ evidence is reliable”: R. v. Bowe, [1993] B.C.J. No. 758 (C.A.), at para. 29.

93I must be certain that the events set out in the charges happened to find the defendant guilty. Even if I find V’s evidence credible and reliable, I may still have reasonable doubt based on the evidence as a whole. In the words of Molloy J. in Nyznik, at para. 7:

The bottom line is that probable or likely guilt is insufficient. If all I can say is that the [defendant is] likely guilty, I must acquit. It would not be safe to convict someone of a criminal offence with only that degree of confidence. Before I can find the [defendant] guilty, I must be sure that they committed the offence charged.”

Has the Crown proved the charges?

94The June 15, 2017, text messages between V and the defendant confirm that they had at least one video call that was, to use the defendant’s term, “racy”. Some of the texts exchanged between V and the defendant later that summer imply they had a sexual relationship, and that V sent the defendant nude or semi-nude photos of herself.

95The question, however, is whether the Crown has proved, beyond a reasonable doubt, that any sexual activity, or solicitation and transmission of salacious video images or pictures, took place before V’s eighteenth birthday. I conclude it has not.

96V testified that her relationship with the defendant evolved over several months. He first spoke to her in late February 2017 and gave her his phone number a short time later. They began texting, he offered to drive her to and from school, and they began video chatting and calling each other. In mid-April 2017, he kissed her for the first time, while he was cooking dinner for her in his kitchen. Days after this first kiss, the defendant gradually began committing the acts which give rise to the criminal charges, by touching V sexually in the car, asking her to bare her breasts on camera, and having intercourse with her. V testified that their relationship progressed over the space of a couple of months, beginning with the defendant giving her his phone number, and leading to sexual activity some time in May.

97The May 16, 2017, email from the defendant to V is incompatible with her account of their relationship. In cross-examination, V conceded that the Skype calls began when the defendant offered to help her with homework and shared his phone number with her. An offer to help with V with her studies, and the defendant’s phone number, were provided in the May 16 e-mail. On V’s own account, about six weeks passed between the time the defendant gave her his phone number and their first kiss. If she received his phone number only in mid-May 2017, their relationship would not have evolved into a sexual relationship until after her 18th birthday.

98The May 16, 2017, email contradicts other parts of V’s testimony. For example, she estimated that she spent time at the Telford house two or three times a week in April and May 2017. It is implausible that the defendant sent her his phone number for the first time, weeks after she regularly began spending time at his house.

99V denied that she ever saw the May 16, 2017, email. I have some doubt about this. When she was first asked about the email account assigned to her by the school board, she could not remember the address but recalled that it contained her first initial and last name followed by three numbers. This was the format of the address assigned to her in 2017, but not the format of the address that had been assigned to her earlier. At the preliminary inquiry, V agreed that, if there was an email sent by the defendant with his phone number, this would have been how she obtained it. She took a different position at trial yet could not recall how she got the defendant’s phone number.

100But even if V did not see the email message at the time, I find it implausible that the defendant would have sent it in mid-May, if he and V had engaged in the relationship she described for weeks before that. V herself admitted that they might have exchanged messages using their school board email accounts before they began using their personal email accounts.

101The Crown argued that S’s evidence supported V’s timeline. I did not find S’s evidence reliable. Even if I did, however, S’s evidence does not assist the Crown.

102V contradicted much of S’s testimony. She denied that S interacted with the defendant one morning in the car, or that she ever even discussed the defendant with S prior to his complaint to the school. I prefer V’s evidence on these issues. In her June 15 texts with the defendant, V was confident that her father had no insight into their relationship. S admitted that he never met any of V’s friends and that the relationship between V and his girlfriend was strained at the time. Even though S was working from home at the time, he did not recall V’s daily schedule. In cross-examination, he admitted that he could not remember when V started to get lifts to and from school or began to exchange text messages with the defendant. He never witnessed the defendant dropping V off at home.

103I find that S did not have a very good idea of what was going on in V’s life in early 2017 and that, when asked to recall what had happened years later, reconstructed an account. I do not believe that he first noticed interactions between V and the defendant in April or May.

104I also conclude that S’s complaint to the school principal was triggered by a video chat he overheard on June 12. During his cross-examination, S refused to concede this possibility but could not identify any other event that would have led him to be “very angry”. V, on the other hand, admitted that the “more racy” call mentioned in the defendant’s June 15 text took place on June 12.

105I cannot rely on the phone tracking data. No explanation was provided for various anomalies, such as data ostensibly showing that V spent time on June 3, 2017, at a house on Telford Street other than the defendant’s house, and that she spent over two hours at a Costco on June 2, which V herself denied was possible. In any event, the data does no more than suggest that V and the defendant may have spent time together on June 2. This does not do much to assist the Crown.

106V’s evidence about frequent visits to the Telford house in April and May 2017 was contradicted by NR as well as the May 16, 2017 email. NR’s credibility was undermined somewhat by her refusal to admit any possibility that V and the defendant had a sexual relationship based on the text messages in June and July 2017. I think she was predisposed to recall events in a way that assisted him. I do not, however, accept the Crown’s argument that NR was prepared to lie to assist the defendant.

107Given NR’s lack of objectivity, I have approached her evidence with some caution. There are, however, some issues in respect of which I conclude that her evidence is more reliable than the complainant’s evidence.

108V was adamant that the defendant’s car had an automatic transmission. NR testified that it was a standard. She produced a photograph of the car’s interior to corroborate this. Her evidence on this point was not shaken in cross-examination. By contrast, V’s evidence about the car was shaky. She did not consistently remember its colour. She tried to explain the inconsistency of her evidence about it by theorizing that the defendant had two cars. She suddenly remembered that the defendant taught her to drive, something she failed to mention during a lengthy and detailed examination in chief.

109I prefer NR’s evidence about the defendant’s car to V’s evidence about it. This was critical to some of the Crown’s allegations, and to V’s credibility in general, because of the amount of time she said she spent in the car and the plausibility of her allegations of sexual activities in the car, in particular the defendant’s reaching into her pants while driving the car in traffic.

110There are other issues where NR’s evidence contradicted that of V, and where I prefer NR’s account. For example, NR gave a detailed rundown of her work schedule and that of the defendant in 2017. V, on the other hand, did not appear to have a clear recollection of even her own class schedule. I find NR’s evidence on this point more reliable. As a result, I accept that she would have arrived home before the defendant most weekdays, contrary to V’s recollection. This again undercuts V’s general narrative about events prior to June 8, 2018.

111There were other inconsistences in V’s testimony. For example, she initially testified that she and the defendant had sexual intercourse for the first time in his bed but contradicted this later, saying that they had sex in the car twice before they had sex at the Telford house. When she first testified about this, she mentioned that she would have remembered if, the first time they had sex, it was in the car. Later, when she changed her testimony on this point, she observed that the sex in the car must have taken place earlier because of her recollection of the weather. In both instances, V’s testimony appeared to be based on a reconstruction of events rather than an actual memory. V also testified, initially, that the second time they had sex in the car was after her 18th birthday. She then changed her mind about this as well, saying that she and the defendant had sex three times before June 8, 2017: twice in his car, and once in his bed. The latter point was inconsistent with her January 2021 police statement, where she stated, twice, that they had sex in his bed on two occasions.

112As I said at the outset, I cannot find a person guilty unless I am sure that they have committed the crimes with which they have been charged. I have no doubt that the defendant and V had at least one video chat that was sexual in nature. He may have asked her for nude photographs, and they may have had sex, although I do not think that the Crown has proved this beyond a reasonable doubt. The central issue is, however, when any of these events occurred. It is not enough for me to think it possible or even probable that the defendant and V had sexual contact or communications prior to June 8, 2017. I must be sure.

113I am not sure that that any sexual contact or interaction happened prior to V’s eighteenth birthday. The Crown has accordingly not met its burden of proving the defendant’s guilt beyond a reasonable doubt. That is why I found the defendant not guilty.

Justice Sally Gomery Released: January 10, 2023

1In English: “Hello, beautiful. Let me know if you need help with your course. My number for texting is below if you want”.