CITATION: R v. Hampden-Carter, 2026 ONSC 3200
DELIVERED: Orally and in writing
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
MICHAEL HAMPDEN-CARTER
Accused
Christina Eid, for the Crown
Jessica Grbevski and Tyler DeMarce, for the Accused
HEARD: December 8, 9, 11, 19, 2025 and February 18, 20, 25, 26, and March 5, 2026.
RESTRICTION ON PUBLICATION
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the persons described in this judgment as a complainant may not be published, broadcasted, or transmitted in any manner.
REASONS FOR JUDGMENT
DUBÉ J.
A. INTRODUCTION
1Following a complaint made by a female student to the principal of W.C. Kennedy Collegiate Institute (“Kennedy”), the accused, Michael Hampden‑Carter, was arrested by the Windsor Police Service (“WPS”) on April 2, 2022, and charged with sexual offences. Two additional female complainants subsequently provided statements to police, resulting in multiple sexual offence‑related charges against the accused under the Criminal Code, R.S.C. 1985, c. C‑46.
2Ultimately a six-count indictment was laid against the accused, setting out the following charges:
Count #1: That between November 24, 2021, and March 25, 2022, in the City of Windsor, he did commit a sexual assault on Z.C., contrary to s. 271 of the Criminal Code.
Count #2: That between November 24, 2021, and March 25, 2022, in the City of Windsor, he did while in a position of trust touch for a sexual purpose the body of a young person, Z.C., contrary to s. 153(1)(a) of the Criminal Code.
Count #3: That he, on January 27, 2022, in the City of Windsor, did commit a sexual assault on O.F. contrary to s. 271 of the Criminal Code.
Count #4: That he, on January 27, 2022, in the City of Windsor, did commit a sexual assault on D.W. contrary to s. 271 of the Criminal Code.
Count #5: That he did, on January 27, 2022, in the City of Windsor, while in a position of trust, touch for a sexual purpose the body of a young person, O.F., contrary to s. 151(1)(a) of the Criminal Code.
Count #6: That he did, on January 27, 2022, in the City of Windsor, while in a position of trust, touch for a sexual purpose the body of a young person, D.W., contrary to s. 151(1)(a) of the Criminal Code.
3The judge-alone trial of this matter was held in Windsor. Eight witnesses testified, including the three complainants, Z.C., D.W., and O.F. The Crown also called a similar‑fact witness, S.T., a teacher and counsellor, Natalie Browning‑Morgan (“Browning‑Morgan”), the school principal, Kyle Berard (“Berard”), and an independent witness, Louise Boomer (“Boomer”). The accused testified in his own defence, denying that any sexual assaults occurred.
4The defence made the following admissions pursuant to s. 655 of the Criminal Code for the purpose of trial (Exhibit 1): (1) jurisdiction; (2) identity; (3) voluntariness of the accused’s videotaped statement; (4) that the accused was the primary operator of a black Escape, Ontario plate number CJDF 037 between October, 2021 and April, 2022; and (5) that he was employed at Kennedy in Windsor, Ontario between October 2021 and April 2022.
5The Crown brought a similar‑fact application, which I considered together with the evidence during the course of the trial proper.
6I note that the defence did not dispute that the accused was in a position of trust in relation to the student complainants, an essential element of counts 2, 5, and 6. Accordingly, the sole issue at trial is whether alleged unlawful sexual acts occurred between the accused and Z.C., D.W. and O.F.
B. BACKGROUND
7The accused was a counsellor in the Create Your Own Future program (“CYF”) at Kennedy between November 2021 and late March 2022. CYF is a program designed to help at-risk racialized and marginalized students remain in school and improve academic performance.
8The program provided a dedicated room at Kennedy where students, with permission, could attend for mental health support, one‑on‑one academic assistance, or other needs. The main CYF common area was furnished with tables and chairs and had several adjoining offices. The accused occupied one of those offices, which contained a desk and chairs. The remaining adjacent offices were occupied by a graduation and Indigenous coach and the English as a Second Language (“ESL”) program lead.
9At the relevant time, each of the three complainants was a student at Kennedy and involved in CYF.
10The complainants allege that the accused engaged in inappropriate conduct in their presence, including discussions of a sexual nature and, in the case of two complainants, leering at them. All three allege that the accused touched them in a sexually inappropriate manner, either on school premises or off school property.
11After several months, S.T., another student involved in the program, reported the accused’s behaviour to Berard. O.F. subsequently disclosed to the principal that the accused had touched her in a sexual manner, prompting police involvement. Thereafter, complainants D.W. and Z.C. came forward and reported that they too had been sexually touched by the accused.
12The accused was subsequently arrested and charged, and his employment with the school board was terminated.
C. PRELIMINARY RULINGS
13A publication ban was ordered pursuant to s. 486.4 of the Criminal Code.
14On consent, the videotaped statements of each complainant were admitted once adopted as truthful pursuant to s. 715.1 of the Criminal Code.
D. EVIDENCE
1) The Complainant, Z.C.
15Z.C. was 17 years old at the time of the alleged incidents and is now 21. She testified that she began attending Kennedy in the second semester of Grade 10, in January or February 2022, and that the incidents involving the accused occurred two years later, during her Grade 12 year. Z.C. is currently enrolled at university.
16Prior to COVID-19, Z.C. said she achieved grades in the 80s and 90s; however, her attendance became an issue while attending Kennedy. In Grade 12, she missed approximately 300 class periods – four periods per day – between September and June.
17Before attending Kennedy, Z.C. participated in the CYF at her previous school. Z.C. testified that at those schools, she would discuss matters beyond academics with her CYF counsellor, who included Browning-Morgan, such as ongoing issues concerning her friends and family. However, all previous CYF counsellors were female.
18In November 2021, the accused was assigned as Z.C.’s CYF program counsellor. From the outset, she felt uncomfortable having a male counsellor, as it made her reluctant to discuss personal matters. For approximately the first month, Z.C. stated that she was the only participant in the program. Later, other students joined, mostly female, but some male students also attended.
19According to Z.C., the accused encouraged her and others to call him Mike, and to view him less as a teacher, and more like a friend.
20At trial, the Crown played the complainant’s videotaped statement from April 13, 2022, which, once finished, Z.C. adopted as true. The statement was then admitted into evidence on consent pursuant to s. 715.1 of the Criminal Code (Exhibit 2A).
21In her videotaped statement and viva voce testimony, Z.C. described several incidents involving the accused:
- The Accused’s Disclosure about Infidelity
- The complainant testified that, within a week of their first meeting, the accused disclosed that he had cheated on his wife. In her videotaped statement, she stated that the accused repeatedly spoke about his infidelities and showed her videos of women “twerking” on him, saying “Oh, like I fucked the shit out of her. Like her ass was so fat…” Z.C. regarded this as the first clear indication of inappropriate conduct toward her.
- The Accused Changed his Shirt in front of Z.C.
Z.C. testified that another incident she considered inappropriate occurred during her initial week in the program in November 2021, when she was the only student in the program. She stated that while the accused was seated behind his desk in his office and she was seated across from him, he advised her that she would need to leave shortly because he had to change. As she began to respond, the accused stood up, moved to the side of his desk, and removed his shirt before putting on another, which exposed his bare chest.
While changing, the accused looked directly at her and engaged in brief conversation, which she interpreted as an attempt to ease her discomfort. Z.C. was unable to recall where the new shirt came from, which shirt was removed or put on, or the substance of the conversation. During the incident, she said that she kept her attention on her phone and avoided looking up. Z.C. was also uncertain whether a teacher was present in the adjacent office, whether the office door was open, or whether anyone was in the common room, though she believed the latter was unlikely.
- Thigh Touching
Z.C. testified that within the first or second week of joining the CYF program, the accused touched her in an inappropriate manner. She stated that the accused was seated behind his desk in his office, while she was seated across from him. During a discussion about her grades, the accused asked her to come to his side so that she could view her marks on his laptop screen.
While standing beside the accused, Z.C. expressed concerns about her academic performance, noting that her grades were in the 20s and stating that she did not believe she would graduate. She testified that the accused then turned toward her, placed his right hand on the upper inner portion of her right thigh, close to her genital area, in a manner she described as a caress rather than a grab, looked directly at her, and said, “Don’t worry, you’re going to graduate.” The contact was brief, as Z.C. immediately stepped back, left the office, and sat in the common area.
The complainant was unsure whether the office door was open or closed during the incident and was “pretty sure” she was the only student in the common room at the time.
- Lace Bra Incident
Z.C. testified that on one occasion, likely near the end of November 2021, she was seated across from the accused in his office. She stated that she was wearing a crop top with a visible undergarment underneath. According to Z.C., the accused stared directly at her chest for a sustained period and made no effort to conceal his conduct.
The accused then remarked, “Oh, your bra’s showing.” Z.C. responded, “I know, that’s the whole point of the look.” The accused laughed, prompting her to say, “Why? Does it distract you? Is it making you uncomfortable?” causing him to laugh again.
The complainant testified that no other students were present during the incident.
- Touch Her Crop Top
On another occasion, Z.C. was seated in the accused’s office doing homework while he was elsewhere. She was wearing a different pink crop top this time but with the same black lace bra.
When the accused returned, he remarked, “That needs to be pulled down,” before grabbing the neckline of her top, close enough to where he almost touched her breasts, and pulling it down far enough to expose part of her bra over her breasts.
Z.C. told him to “get the hell away” and asked what was wrong with him. The accused responded by shushing her, as other teachers were nearby.
- Crotch in Her Face
Z.C. was seated between two tables in the CYF common area working on her computer when the accused approached and stood directly in front of her. Their knees were nearly touching, and her face was approximately one and a half feet from his crotch. As he stood there, he began moving his body in a strange manner.
Z.C. confronted him, saying “back the hell up.” The accused responded by saying “shhh,” as another teacher was “right there”.
22According to the complainant, she did not recall how she came to have the accused’s phone number. She noted that communicating with a teacher outside the formal Edsby teacher‑student‑parent platform was highly unusual. She further testified that the only other teacher whose phone number she possessed was that of Browning‑Morgan, which had been provided only after obtaining consent from her mother and the principal.
23The complainant testified that the accused would call her at least ten times each morning. He also sent her text messages, captured on her iPhone between November 24, and December 2021, which she provided to the police (Exhibit 13). A few texts concerned her truancy. With respect to one, he asked, “Are you coming to school today?” In another message, he offered to buy her lunch if she stayed at school and did not leave to meet her friend, adding, “You’ve got to make sure you’re in bio (biology).” Z.C. stated that he sent numerous similar texts urging her not to leave school without first coming to the CYF room.
24The complainant testified that the accused frequently stared at her chest and would smirk if she noticed. She stated that he often left his wallet, containing a large amount of cash, visible on his desk and regularly purchased lunch for her and her friends. Z.C. further testified that the accused flirted with her, shared gossip, and treated her in a manner that made her feel singled out or special. While he also encouraged her to improve academically and to graduate, as reflected in his text messages, Z.C. described his overall conduct as blurring professional boundaries, and behaving more like a peer than a teacher.
25Z.C. testified that the accused told her and her friend, T., that he could reserve a booth for them at a downtown club, stating that he knew the owner. She stated that she had previously told the accused that she possessed “fake id” and attended the club regularly, though she later clarified that she did not do so during the winter months. According to Z.C., the accused also suggested that she and her friend K., whose former boyfriend he had coached, go on a double date together.
26Z.C. testified that the accused frequently asked about her plans after school, although he did not expressly suggest meeting with her. She further stated that, on other occasions, the accused asked her questions about her sex life, including the number of partners she had, and spoke about his own sexual experiences.
27According to the complainant, on one occasion, while in the accused’s office, he asked to use her phone so that he could add her to one of his Snapchat accounts. After she agreed, he told her to communicate with him through that account, stating that his partner checks his phone. She described the Snapchat username as consisting of random letters, with a profile image depicting a walking gorilla emoji. Z.C. further testified that they had several mutual Snapchat contacts, as the accused coached and trained many boys her age. She noted that like most users, her Snapchat account had the default setting that automatically deletes messages.
28She testified that the accused would occasionally send shirtless images of himself working out at a gym, captioned with comments such as that he was a “dog” or a “gorilla,” and sometimes images of him partying at a club with friends. He also responded to her Snapchat stories with emojis such as heart eyes and would “blow up” her phone when she did not view his stories, asking why she was not watching them. Z.C. stated that she never sent him any images. Once the Snapchat account was set up around December 1, 2021, virtually all communication occurred on that platform. The first text message on her cell phone was sent on November 24, 2021, and the last on December 14, 2021.
29Z.C. stated that the accused drove her home on four or five occasions. She stated that he instructed her to wait in a nearby Burger King parking lot, explaining that he avoided picking her up directly from school property because of the presence of security cameras. According to Z.C., he then drove her directly to her residence. She described the rides as the most ordinary aspect of their interactions.
30Z.C. claimed that during an approximately two‑week vacation, during which she missed the first week of January 2022, the accused called her multiple times each day. She stated that he did not text her during that period, although she acknowledged that, in her videotaped statement, she indicated that he had. Z.C. testified that she answered only three or four of his calls.
31At trial, Z.C. testified that she believed the accused was attempting to hit on her and interested in having a relationship beyond that of student and teacher, including suggesting that she take him on a date. She emphasized, however, that she never encouraged or led him on. By contrast, in her videotaped statement, Z.C. stated that the accused “definitely” did not want a physical relationship with her, at least until after she turned 18.
32After returning from vacation and resuming the CYF program, Z.C. testified that she observed the accused on several occasions in his office with another female student, D.W., and that he subsequently began to ignore her. She further stated that she noticed the accused appeared to look at D.W. in the same manner he had previously looked at her, specifically by staring at her “butt”.
33Z.C. testified that she did not consider blocking the accused on Snapchat, explaining that it would have been awkward given that she saw him daily at school. She stated, however, that the accused eventually blocked her after she confronted him in his office and “cussed” him out when she learned that he had told a male student he coached that she was trying to sleep with him. Following this incident, Z.C. changed the accused’s name in her phone contact list to “weirdo.”
34After a period during which the accused had blocked her and the two had no communication, the accused gave Z.C. $90 on Valentine’s Day as an apology, suggesting that she use the money to have her nails done. Z.C. testified that although she had declined previous offers of money from the accused, she accepted it on this occasion, stating that, given his prior inappropriate behaviour, she felt she “might as well get $90 out of it.”
35Z.C. testified that her decision to come forward was prompted by several events. She first learned of the accused’s arrest through a news article. The following day, while attending a school basketball game, she was confronted by male students previously coached by the accused, who accused her of having “snitched on Mike,” despite the fact that she had not yet reported his conduct. She also became aware of social media posts by mothers of boys coached by the accused expressing support for him, alongside rumours suggesting that other complainants, D.W. and O.F., were fabricating their allegations. Z.C. further testified that she considered what O.F. had disclosed to her about the accused’s conduct – namely, that he had raped her – to be more serious than what she herself experienced.
36The complainant testified that Browning‑Morgan was the first person to whom she disclosed the incidents. Browning‑Morgan then brought her to meet with the principal, Berard, who contacted the police. Z.C. later clarified that she had first disclosed the incidents to her mother, prior to speaking with Browning‑Morgan. She ultimately provided a formal statement to police in April 2022.
37The complainant was adamant that she did not consent to any physical contact and testified that the incidents left her feeling disgusted and uncomfortable.
2) The Complainant, D.W.
38D.W. was 17 years old at the time of the alleged incidents and was 21 when she testified. She is currently employed and not enrolled in school. She attended Kennedy for four years, though she was unsure of her year of graduation.
39Near the end of her Grade 12 winter semester, D.W. was introduced to the CYF program by her friend, O.F., with Michael Carter acting as the counsellor. In her videotaped statement, she indicated that the school principal introduced her to the accused in February 2022, at the start of the semester. She recalled that O.F. was already participating in the program at that time and that she later introduced S.T. to CYF. At trial, however, D.W. testified that she, Z.C., S.T., and O.F. all began the program at approximately the same time.
40In addition to the accused, another teacher was occasionally present in the CYF area. D.W. testified that there were typically four students in the office at any given time – herself, O.F., Z.C., and S.T. – and, on occasion, her cousin, a male student identified as J. She stated that she did not recall any football or basketball players ever being present in the CYF room.
41D.W. participated in the CYF program due to significant attendance issues and failing grades. At that time, she was absent from school four out of five days each week. On the days she did attend, she spent most of her time in the CYF program.
42Initially, D.W. described the accused as friendly, helpful, and “pretty cool.” She testified that she confided in him about personal, mental, and emotional issues contributing to her school absences. Over time, however, she perceived a change in the nature of their interactions, which she came to view as inappropriately friendly and, to some extent, sexual.
43At trial, the Crown played D.W.’s videotaped statement dated March 31, 2022, which she confirmed was accurate and adopted as true. The statement was admitted into evidence on consent pursuant to s. 715.1 of the Criminal Code (Exhibit 2B).
44In her videotaped statement and viva voce testimony, D.W. described several incidents involving the accused:
- Comments about D.W.’s sister
The first incident occurred approximately two weeks after D.W. began the program and involved her 19‑year‑old sister. D.W. testified that she was scrolling through family photographs on her phone with the accused when an image of her sister, posted on Instagram and revealing in nature, appeared. She attempted to cover the image, but the accused asked who it was. When told it was her sister, he asked to see the image despite being advised that it was inappropriate. After viewing it, the accused commented that her sister was “really cute,” to which D.W. replied that her sister was 19 years old.
D.W. testified that she considered the accused’s response to be inappropriate, given his role as a teacher and their respective ages. She stated that this exchange occurred in the classroom, in the presence of another student who may have overheard the conversation. D.W. further testified that the accused attempted to locate her sister’s other social media accounts and asked her to provide access to them. She later warned her sister not to add the accused if he attempted to contact her.
- The Car Ride Home with O.F.
D.W. was driven home by the accused on only one occasion. The accused offered her a ride home after she and her boyfriend argued and he refused to drive her. D.W. agreed but arranged for O.F. and her cousin, J., to accompany her for safety. They agreed to meet at a Burger King at 3:00 p.m. Prior to this, the accused stated, in O.F.’s presence, that he could not transport students directly from the school.
The accused met the three at the Burger King parking lot in his vehicle. D.W. sat in the front passenger seat, while O.F. and J. sat in the rear. J. was dropped off first, as he lived the furthest away, after which the accused continued driving.
During the drive, D.W. shared a marijuana vape with O.F. and became high. The accused subsequently parked the vehicle on a residential street near houses and a park and asked them what they wanted to do.
D.W. denied that she and O.F. told the accused to drive to the park. When shown a photograph of a vehicle taken by Boomer at Curry Park (Exhibit 6), she testified that she could not identify it as the accused’s vehicle and did not recognize the neighbourhood depicted.
At some point, D.W. and the accused moved to the back seat, where the accused sat between D.W. and O.F. While seated there, the accused placed his arms around both girls and looked at them in a manner D.W. interpreted as suggestive. She was unsure whether the accused said anything at the time. These events occurred in circumstances where the interior of the vehicle was visible to passersby.
In her videotaped statement, D.W. initially stated that the accused did not touch her or O.F. and twice stated that “nothing happened” between them in the back seat of the vehicle. She further stated that he did not ask either of them to touch him and did not expose himself, remove or lower his pants, or display his genitals, at least in her presence. She did not recall the substance of any conversation in the back seat. When asked whether the accused took her hand and placed it on himself, she responded, “kind of, but like no.” She also stated that the accused unzipped his jacket, exposing his chest. At trial, D.W. testified that although she observed skin, she did not see his nipples.
In her videotaped statement, the complainant stated that the accused attempted to make her and O.F. kiss by slowly pushing their heads together and asking, “Oh, why are you guys so uncomfortable?” She indicated that the attempt ended when she leaned back. At trial, D.W. testified that she did not know why the accused pushed their heads together, what he expected to happen, or what, if anything, he said at the time.
The complainant recalled that a woman walked by the vehicle and asked whether everything was okay, to which she responded “yes”. D.W. testified that she was unsure whether the woman knocked on the window but recalled the woman stating that she did not like what she was seeing. The accused then moved quickly from the back seat to the front seat and drove away.
D.W. testified that she was unsure whether any interaction occurred between the accused and O.F. while they were in the back seat, as she had turned her head away from them for approximately one minute. She confirmed this evidence at trial.
D.W. then asked to be taken home but, according to her videotaped statement, requested that O.F. be dropped off first because O.F. had previously expressed an interest in the accused. After O.F. was dropped off, D.W. returned to the front passenger seat. D.W. testified that, although O.F. was her best friend, she did not consider staying at O.F.’s home, explaining that she had only been there once before.
As noted earlier, D.W. initially stated in her videotaped statement that “nothing happened” between herself, O.F., and the accused in the vehicle. She later reiterated that nothing occurred during the ride home after O.F. was dropped off. However, her account subsequently changed when she stated that the accused repeatedly asked whether she wanted him to pull over and then grabbed her left hand or wrist with his right hand and attempted to place it on his lap, which she resisted.
At trial, D.W. testified that the accused grabbed her hand or wrist and placed it on his thigh at least once for approximately two minutes. When she testified again several months later, she stated that her hand may have touched his thigh only briefly. She recalled telling the accused that she did not want to engage in this conduct.
Following this incident, D.W. did not attend school for approximately three weeks. Upon her return, she resumed attending the CYW room. On her first day back, the accused asked her to “hug it out.” D.W. responded that this was “very inappropriate” and attempted to leave, but the accused followed her. As she backed away and he moved closer, he said, “Come on.” At trial, D.W. did not recall this incident.
Thereafter, the accused regularly instructed D.W. and O.F. not to disclose that he had provided them with a ride home but made no reference to any events that occurred at the park.
45D.W. and the accused communicated through social media, including Edsby and Snapchat, though it was mostly Edsby – where he would tell her to come to school. According to her videotaped statement, D.W. said that the accused was cautious about how he interacted with her on Edsby.
46At some point, the accused provided D.W. with a Snapchat account she believed to be fake. She testified that, had the account been genuine, she would have expected it to include photographs, a biography, and his name, none of which were present. She was unsure who initiated the connection or how it occurred, believing only that it happened in a common area, though she could not recall whether anyone else was present. She recalled that this occurred after the incident involving her sister. The accused did not post any inappropriate content on his Snapchat story and did not comment on D.W.’s story.
47The accused sent D.W. Snapchat images of himself at the gym. On occasion, she sent photographs indicating that she was on her way to school after he inquired about her attendance. D.W. confirmed that the accused never sent any inappropriate content via Snapchat.
48The accused otherwise contacted D.W. only through the school phone to confirm her attendance. He also purchased food, not only for D.W., but for the entire class.
49D.W. testified that, each time she entered the classroom, the accused gave her what she considered to be an inappropriate stare. In her videotaped statement, she stated that he looked at her breasts; at trial, she testified that he stared for an extended period at a necklace pendant hanging over her chest. She further stated that the accused engaged in inappropriate conversations, asking whether she was on birth control or having sexual relations with her boyfriend. D.W. testified that she answered these questions because the accused was reassuring and motivational, which made her feel better.
50On approximately three occasions, during discussions about pedicures, the accused invited D.W. to accompany him to have her nails done. She declined each invitation. D.W. also stated that the accused would invade her personal space by standing very close to her desk. She testified that she never observed any inappropriate conduct by the accused toward Z.C., O.F., or S.T. in the classroom.
51According to D.W., it was only later when she was able to piece together how the accused had acted inappropriately.
52The day before she met with the principal, the accused said to her “are you guys getting me fired”.
3) Louise Boomer
53On January 27, 2022, Louise Boomer (Boomer) was returning home mid-afternoon after walking her dog in Curry Park, in South Windsor. At this time, she observed a vehicle parked close to her home on the street near the west entrance to the park. It caught her attention because vehicles do not usually park in this area at this time, which was outside the usual drop-off and pick-up schedule for students at nearby St. Gabriel’s school. On other occasions she had caught teenagers in the same area in vehicles.
54At approximately 3:23 p.m., she took three photographs of the vehicle and then knocked on the rear passenger-side window. When the window rolled down, she ducked down to look inside and observed a male closest to her and a female seated near him in the middle of the back seat. She asked whether everything was “okay,” to which the female responded that it was. The male subsequently “smirked” at her, prompting Boomer to say, “Come on, guys, do this somewhere else.” Although she was not expressly asked for her interpretation, it appeared that Boomer believed something sexual was occurring, or was about to occur, between the male and the female occupants.
55Boomer described the two individuals as having dark skin and appearing to be African Canadian or of East Indian/Pakistani heritage. She recalled no other identifying features, other than that they appeared to be teenagers and of a similar age. Both were fully dressed. She did not observe anyone else in the vehicle but believed that, because it departed so quickly after the brief interaction, there must have been another person seated in the front. From her evidence, it appears that the vehicle remained in this area for between ten and fifteen minutes.
56On April 1, 2022, two detectives from the WPS attended at her residence in connection with the investigation, at which time Boomer provided them with the three photographs.
4) S.T.
57S.T. is currently 21 years old. She was a student at Kennedy and participated in the CYF program between approximately November 2021 and March or April 2022, during her Grade 12 year. At that time, she was between 16 and 17 years old.
58Unlike many other students in the CYF program, S.T. had good grades and no issues with attendance. She testified that she joined the program after hearing about it from friends and did so primarily as an opportunity to skip class and spend time socializing with them, particularly D.W. and O.F.
59She described feeling comfortable in the program at least until near the end, when she started finding out that the accused was acting inappropriately towards her, and her friends, mostly D.W. He would also often swear when he spoke to the kids.
60On one occasion, S.T. observed D.W. leave the accused’s office after he apparently gave her $20. S.T. also noticed that the accused would regularly look at female student’s “butts and chests” when they entered and exited the office. He would also, at least from her perspective, get too close to girls.
61S.T. testified that D.W. once showed her a Snapchat message from an account D.W. believed belonged to the accused, although she understood it to be a fake account. In that message, the sender referred to getting “head” from a girl, which S.T. understood to be a reference to oral sex.
62On another occasion, S.T. stated that she video recorded the accused telling what she considered to be an inappropriate story while the two were alone in his office (Exhibit 9). She denied that the recording captured a conversation the accused was having with members of the basketball team and explained that she recorded the interaction so she would have proof, in case “anything happened.”
63S.T. testified that the surreptitiously recorded conversation occurred before she and the accused had an argument that ultimately resulted in her removal from the program. She stated that, after she believed the accused ignored her request to locate O.F.’s class so she could bring her back to the CYF room, she confronted him in front of other students. When it was suggested to her during cross-examination that she may have called the accused “fucking useless” in front of her classmates, S.T. testified that she could not recall saying that.
64In any event, S.T. attended at the principal’s office in an effort to be readmitted to the program. She testified that, when the principal began speaking positively about the accused and his work, she told him that the accused had acted inappropriately toward female students, though she did not initially provide names. The principal then directed her to encourage those students to come forward. S.T. testified that she attempted to do so with D.W., but she declined. S.T. later provided D.W.’s name to the principal.
65Eventually S.T. sent the video recording via Edsby to the principal, Berard.
5) O.F.
66O.F. was 17 years old at the time of the incident and is now 21. She attended Kennedy from Grades 9 through 12 and graduated in 2022.
67O.F. participated in the CYF program in Grades 9 or 10 and again in Grade 12. In Grade 12, her CYF counsellor was the accused. She testified that she entered the program for additional support, as both her grades and attendance were poor, and indicated that many students participated in the program.
68O.F. was a close friend of D.W., and the two are still friendly.
69O.F. testified that, over time, discussions between the accused and students in the CYF room became increasingly personal and, in her view, inappropriate. She recalled one occasion after school when the accused told her and at least one male student in the CYF room a story about being caught by his mother while having sex with a “crazy” Jamaican girl.
70O.F. further testified that other conversations were also sexual in nature, including, on one occasion, a general discussion about threesomes, not directed at any specific individual. She acknowledged that she often initiated personal conversations with the accused because she felt comfortable with him. She stated that he was one of several people she would turn to for advice on personal matters as she did not feel comfortable discussing with her parents.
71The Crown played the complainant’s videotaped statement dated April 1, 2022. After O.F. adopted its contents as true, the statement was admitted into evidence on consent pursuant to s. 715.1 of the Criminal Code (Exhibit 2C).
72In the videotaped statement and her viva voce testimony, the complainant described several incidents involving the accused:
- Snapchat Conversation
- O.F. testified that she read Snapchat messages on D.W.’s phone that were purportedly from the accused. She stated that D.W. had changed the accused’s name in her phone to “Ariana” or “Adriana” so her boyfriend would not recognize it. O.F. was not certain however that the messages were, in fact, sent by the accused.
- The Car Ride Home with D.W.
First Ride Home
O.F. testified that the first occasion in which she was in the accused’s vehicle was when he drove her, D.W., and J. home after a regular school day, following D.W.’s boyfriend’s refusal to pick her up. Outside the school, O.F. was with D.W. when, in her presence, D.W. approached the accused as he exited the building and asked for a ride. The accused agreed but stated that they could not enter his vehicle on school grounds and instructed them to meet him at a Burger King. He also offered a ride to J., whom he encountered walking toward a nearby bus stop.
The accused later picked them up in the Burger King parking lot. O.F. and J. sat in the back seat, while D.W. sat in the front passenger seat. The accused asked where each person lived and dropped J. off first, followed by D.W., and then O.F. O.F. testified that nothing inappropriate occurred during this ride.
Second Ride Home
The second occasion in which O.F. was in the accused’s vehicle occurred on January 27, 2022. She testified that she knew the date because she refreshed her memory using a Snapchat video clip taken that day, depicting herself, S.T., and D.W. in a school washroom. On that day, O.F., D.W., and the accused had initially been together in his office following the completion of exams when students were not required to attend school.
O.F. testified that she attended the school that day to spend time with friends, which she was otherwise unable to do due to her parents’ strict rules. She observed the accused and D.W. texting at the same time and, at one point, read a conversation that appeared to have been exchanged between them. She testified that the messages included a reference to a threesome and an arrangement to meet at Burger King at 3:00 p.m., as well as a message stating that he wanted “some head.”
D.W. had previously told O.F. that the name under which the messages appeared on her phone belonged to the accused. While O.F. believed the messages were from the accused, she acknowledged that she could not be certain. In any event, she testified that she wanted to see how the situation would “play out.”
O.F. testified that she and D.W. eventually walked to the Burger King, where the accused picked them up in the parking lot. At D.W.’s request, O.F. initially sat in the front passenger seat, while D.W. sat in the back. The accused then drove around and, at some point, stopped on a residential street and told O.F. to move to the back seat, which she did. The accused asked whether they wanted to go to a hotel, stating that he could book a room for an hour. When D.W. asked about getting wine, the accused suggested that they should just remain in the vehicle before driving away.
The accused eventually stopped again on a dead‑end street lined with houses on both sides. The rear of the vehicle faced an open field that O.F. believed to be Curry Park. In her videotaped statement, O.F. drew a diagram of the location where the vehicle was parked (Exhibit 10). She was also shown Exhibit 6 and testified that the vehicle depicted, as well as the surrounding area – including the snow-covered ground, the two adjacent houses, and the field behind – were consistent with the location where they parked on the second occasion.
The accused instructed the two girls to make space so that he could sit between them, which he did by moving into the back seat through the opening between the front seats. He then removed his hoodie and shirt and placed them on the front seat, leaving his upper body uncovered. O.F. testified that he also pulled his pants down slightly and placed his hands inside his shorts, which she observed were basketball shorts worn underneath.
In her videotaped statement, O.F. stated that the accused told her to remove her sweater, which she did not do; she did not disclose this statement at trial. The accused then told both girls to begin “kissing on me.” When they did not comply, he told them to kiss each other. After they again did not comply, he told them to “do something” and placed his hands on the backs of their heads in an attempt to push them together, which they resisted, laughing. O.F. testified that she poked the accused’s nipple, after which he asked her to kiss him on the neck. In her videotaped statement, O.F. said that she might have done so; however, at trial, she testified that she did not kiss him.
At some point, O.F. observed a white woman in her forties walking a dog and entering one of the two nearby houses. She later saw the woman exit the residence and approach the area where the vehicle was parked, taking what appeared to be photographs. The woman then walked past the vehicle, looked inside at D.W., who was closest to her, and asked whether they were “okay.” D.W. responded, “yeah, we’re okay,” and gave a thumbs‑up gesture.
The woman then made a circular motion with her finger, said words to the effect of “get out of here,” and left. O.F. testified that the vehicle’s windows were tinted and that she did not believe the window was lowered at any point, noting that they had questioned whether the woman could see inside. Shortly thereafter, the accused moved quickly to the front seat, put his shirt and sweater back on, and immediately drove away.
While driving, the accused asked whether they wanted to return to the same location as before. D.W. responded by asking why they would want to go to the river. The accused then drove toward Little River Road. Along the way, the girls smoked a joint. The vehicle stopped briefly before D.W. asked to be taken home. The accused dropped off O.F. first and then D.W.
73O.F. testified that the accused would look at D.W. as well as Z.C. in a sexual way.
74The accused knew her Uncle Greg, and in fact she facilitated a conversation between the two during class one day.
75Approximately one month after the ride, he took her phone and began texting D.W., pretending to be O.F., and asked D.W. to send a photograph of herself. D.W. began to question whether O.F. was actually the one sending the messages. It appeared that the accused was upset about messages that D.W. had sent about him on Edsby. He asked O.F. whether D.W. was “trying to ruin my life or something.” O.F. observed some of the messages he sent while impersonating her, which included statements such as “he’s a good guy,” “he helps us with our work,” and “he makes sure we’re okay.” He later told O.F. that he did not understand why she was doing this and stated that he was glad he had never touched “you guys.”
76Between February and March 2022, O.F. learned that S.T. had informed the principal, Berard, that the accused had acted inappropriately toward students. O.F. was aware that S.T. was upset because the accused had removed her from the program, and that S.T. had told her she intended to have the accused fired. O.F. testified that she felt protective of the accused, possibly because he was the only Black teacher at the school. As a result, she informed the accused of what S.T. had disclosed so that he would not be caught off guard. However, later in her testimony, she expressed uncertainty as to why she told him but denied that it was because she believed S.T. had been untruthful with the principal.
77The accused told O.F. to accompany him to the principal’s office and tell Berard that S.T. was merely upset because she had been removed from the CYF program. They later entered the principal’s office together, where the accused began speaking before being asked to leave. Once alone with the principal, O.F. told Berard that the accused should be investigated for inappropriate conduct and suggested that his Edsby messages should be reviewed. She subsequently told the accused that she had repeated to the principal what he had instructed her to say, which was not true.
6) Natalie Browning-Morgan
78Natalie Browning-Morgan (Browning-Morgan) is a secondary teacher who was a member of the team running the CYF program in various high schools for the Windsor Essex Public School Board. The accused took over for Browning-Morgan at Kennedy in November 2021. She then later took over the position that the accused held at Kennedy after he was suspended.
79Under her watch, all teachers had a roster of students who had been accepted to the program. Whenever a student was in the CYF room or in the classroom, Browning-Morgan would advise the teacher in whose class the student should be of their whereabouts and seek permission for the student to remain. Similarly, if a student in class wished to attend the CYF room, that teacher would communicate with Browning-Morgan to determine if that was acceptable. The decision to move between a classroom and the CYF room was only done with the permission of Browning-Morgan or a teacher.
80Browning-Morgan testified that in accordance with her understanding of school policy, she would not have a student’s cell phone number without the consent of the student’s parents or the principal. She had Z.C.’s phone number while she was in the CYF program, but only because she had her mother’s permission as well as the principal.
81She also testified that there should be no communication with students through social media, only Edsby. Nor would she have a conversation with a student about their personal life unless it was for a compelling reason. She went on to say that under no circumstances would you discuss your sex life with a student. Also, you would not provide a ride to a student unless you had the parent’s consent or the permission of the principal. In cases of a student having a transportation emergency, there are taxi vouchers to provide the student.
82If a student experienced attendance issues, she explained that she and a team of school staff would work collaboratively to address the concerns.
83Browning‑Morgan testified that she spoke with the accused shortly after he was directed to leave the school. He told her that he had been removed because a student was upset with him after he asked her to leave the program.
84Browning‑Morgan further testified that she attended the principal’s office with Z.C. after Z.C. disclosed what had occurred between her and the accused.
7) Kyle Berard
85Berard is a 29-year educator and a principal for 15 of those years. He was a new principal at Kennedy during the 2021/2022 school year.
86In November 2021, the accused was placed in the program as CYF counsellor and eventually had about 25 students on his roster.
87With respect to policy, teachers and school staff are discouraged from communicating with students on personal devices or through social media, as well as from giving students money or rides without parental consent or the principal’s permission. Discussions with students about their sexual lives are strictly prohibited.
88At the end of March 2022, S.T. met with him and advised that she had concerns about the accused engaging in inappropriate sexual conversations with students. The following day, the accused brought O.F. to his office; however, before he spoke with her, Berard directed the accused to leave. While alone with him, O.F. advised that what S.T. had reported was true and that the accused should be investigated.
89The following day, a Friday, Berard met with the accused and a union representative, during which he denied the allegations. Berard then met again with S.T., who produced a recording of what she described as an inappropriate sexual conversation involving the accused. Thereafter, Berard instructed the accused to leave the school property pending the outcome of an investigation. At no time did S.T. tell Berard that she wanted the accused fired or that she had been removed from the CYF program. During his conversation with O.F., Berard learned that D.W. was also involved. He subsequently located D.W. and spoke with her about the incident.
90The following Thursday, Berard met again with O.F., who disclosed allegations of inappropriate sexual touching. As a result, he contacted the WPS and the Children’s Aid Society.
91Approximately three weeks later, Berard met with Z.C., who attended the meeting accompanied by Browning‑Morgan.
8) The Accused, Michael Hampden-Carter
92The accused began working at Kennedy in November 2021 as a CYF counsellor. Prior to this role, he had experience working with youth through an after‑school sports‑oriented program called Change the Game, which he operated with his then‑girlfriend. He had also trained young athletes in various sports over a number of years.
93Before commencing his role in the CYF program, the accused received no formal training and testified that he was not informed of policies governing interactions between teachers and students, although he was assisted to some extent by Browning‑Morgan. He understood his role as a CYF counsellor to be providing support to marginalized and racialized students who were struggling academically.
94The accused was not an educator so he would not assist the students with their schoolwork. For that, he sought the assistance of students in Teacher’s College who were placed at Kennedy as part of their academic program.
95Students enrolled in the CYF program by completing a questionnaire on the accused’s computer. Initially, some students were referred by Berard; later, students began attending the program on their own initiative.
96At its peak, the CYF program had approximately 20 to 25 students on its roster, including Z.C., D.W., O.F., several male students, and S.T., who attended infrequently.
97The accused testified that D.W. and O.F. were in his vehicle on only one occasion, and that J. was never present.
Vehicle Ride
On the morning of January 27, 2022, the accused testified that he was in his office with O.F. and D.W., but denied texting D.W. He stated that O.F. asked him for a ride home. Initially, he declined and told her to ask her parents. He agreed only after she explained that her parents were working and that the bus ride home would take approximately one hour. He instructed her to meet him at Burger King. The accused testified that he did not believe this was inappropriate because he knew O.F.’s uncle, who had asked him to look out for his niece.
Although he was not a close friend of O.F.’s uncle, the accused testified that he trained the uncle’s children and had occasionally driven them home. He stated that he was never told he was prohibited from driving students, but nonetheless instructed O.F. to meet him at Burger King so as not to appear to be giving preferential treatment. The accused further testified that, while at Kennedy, he regularly picked up three male student athletes at approximately 5:30 a.m. for training and was never advised that doing so was inappropriate.
The accused testified that he initially believed he was only driving O.F. home. When he arrived at the Burger King, he saw D.W. and agreed to drive both girls. They sat in the back seat. From that point, he stated that he followed O.F.’s directions, which eventually led them into a residential subdivision in South Windsor. He testified that he never asked for O.F.’s address. Upon arriving, O.F. directed him to pull into a specific driveway, which he did. He then told her to get out, but O.F. indicated that it was not her house. The accused testified that he became annoyed, as he had other commitments, including picking up his children from a bus stop.
As he backed out of the driveway, the accused testified that he asked, “what are we doing here,” and then parked on the roadway to determine where they were going next. He stated that O.F. said she wanted to smoke marijuana, which he refused to allow in his vehicle. The accused remained parked at that location for approximately five to seven minutes, during which time he was largely waiting for O.F. to provide directions.
The accused testified that, at some point, a woman later identified as Boomer approached the vehicle and knocked on the rear window closest to where D.W. was seated. He stated that the girls appeared to freeze, so he told D.W. to roll down the window, saying that they were not doing anything wrong. He testified that he rolled the window down and that D.W. spoke with Boomer. He also testified that the vehicle’s windows were tinted.
The accused then drove O.F. to an area near Banwell Road, which he understood to be close to her residence, though not directly at her home. He testified that little was said during that portion of the drive. He assumed D.W. and O.F. would exit the vehicle together, but D.W. also requested a ride home, which annoyed him further. He stated that D.W. also did not provide an address and merely directed him where to drive.
The accused denied ever moving into the back seat, removing his shirt, pulling down his pants, or touching either girl in any manner, including attempting to push their heads together. He further denied asking whether they wanted to go to a hotel, discussing the purchase of wine, or driving to Little River. He denied touching D.W. for any sexual purpose. He also testified that he was unaware of the availability of taxi vouchers for students requiring transportation.
98The accused testified that he had never been alone with D.W. outside of the school and that he did not communicate with her by text message or social media, other than through Edsby. He stated that he similarly did not communicate with any other student by text or social media, other than Z.C. or male students whom he trained prior to his employment at Kennedy. He acknowledged that, through his training business, he maintains a public Instagram account and that his training and motivational videos are often shared by trainees and followers, including some students at Kennedy.
99The accused testified that he did not know how Z.C. obtained his phone number, explaining that she knew several individuals whom he trained. He acknowledged that the text messages produced by Z.C. were exchanges between the two of them from November 2021. He further admitted that he told Z.C. not to disclose that she had his phone number, because he did not want her to believe she had it for any purpose other than school-related matters.
100The accused denied ever having a fake Snapchat account.
101The accused testified regarding the video recorded by S.T. He stated that, at the time, he was speaking in his office with three basketball students, two of whom he regularly trained. He testified that one of the students was white and the other two were Black. According to the accused, the white student mentioned that his parent allowed his girlfriend to stay overnight. This prompted the accused to recount an incident from his own high school years in which his mother discovered him with a naked girl he had secretly brought into the house and reacted angrily by beating them. He testified that the point he intended to convey was that, in his experience, Black parents would not permit girlfriends to stay overnight.
102The accused emphasized that the students involved were male students whom he trained and with whom he spent significant time mentoring, including assisting them in pursuing athletic scholarships. He testified that, because he did not recount graphic details, he did not consider the story to be inappropriate. He further denied that the girl he referred to was Jamaican or “crazy,” as claimed by O.F., and stated that the conversation took place privately in his office. He acknowledged, however, that S.T. was obviously able to overhear and record the conversation.
103During cross‑examination, the accused acknowledged that he did, in fact, get into details during the conversation, including stating that he told the students he was going to “hit her in the morning,” which he explained was meant as a reference to having sex. He nonetheless maintained that this was the only conversation he had with those students involving sexual subject matter. He reiterated that the discussion was with male students whom he coached, not female students, and asserted that he did not consider the conversation to be inappropriate. He further testified that the use of profanity sometimes occurs in the context of coaching.
104The accused testified that he was aware D.W. had attendance issues but was never advised to involve an attendance counsellor. Instead, he stated that he would message D.W., as well as other students, through Edsby to encourage them to attend school.
105The accused further testified that he had a normal relationship with Z.C. He acknowledged using the word “fuck” in one message, explaining that this reflected his manner of speaking and conceding that it was not “super appropriate.” He stated that Z.C. did not typically respond to messages sent through Edsby. He denied texting Z.C. while she was on vacation, touching her in a sexual manner, or removing his shirt in her presence. He also testified that he did not recall what she wore, including any lace bras or necklaces.
106On March 21, 2022, S.T. came to class and asked the accused to get O.F. out of class. When he asked why, she said because she wanted to talk to her. The accused told her to talk to O.F. at lunch. S.T. subsequently left and then came back 15 or 20 minutes later and told him, in front of several students, “your fuckin useless.” He did not respond at that moment. When S.T. returned the following day, he told her not to speak to him in that manner again. S.T. accused him of being rude, and he instructed her to leave, which she did.
107Later that day, O.F. was permitted to write a test in the CYF office and began doing so in the common area. Shortly thereafter, the accused was in his office with students whom he trained. At some point, he left the office with them and observed S.T. seated next to O.F., with S.T. indicating that she was helping her. The accused told S.T. that she could not assist O.F. while she was writing a test, to which S.T. responded that she could do whatever she wanted.
108On Wednesday March 23, 2022, the accused participated in an Africa Diaspora celebration at Kennedy. During the event, O.F. approached him and asked to speak with him. She told him that S.T. was attempting to have him fired based on allegations of inappropriate communications with students, including swearing in class and discussing his sex life. The accused testified that he told O.F. he intended to speak with the principal and asked whether she wished to accompany him, to which she agreed. He then informed the principal that O.F. had advised him that S.T. was attempting to have him fired.
109Berard asked the accused to leave the office and then remained with O.F. for approximately 30 seconds. The accused testified that Berard told him he would speak with him the following day and instructed him to bring a human resources representative. This exchange occurred in O.F.’s presence.
110The accused met with Berard together with an H.R. representative on Thursday, March 24, 2022, and was advised of the allegations. Afterwards, the accused was allowed to go back to the CYF room.
111On Friday, March 25, 2022, the accused received a call from the vice‑principal of Kennedy advising that an investigation was underway and directing him to leave the school property.
112The accused was arrested on April 2, 2022.
E. SIMILAR FACT EVIDENCE
Legal Principles
113The Crown brought an application seeking to admit as similar fact evidence the testimony of each complainant and witness, S.T., at the trial of the other complainant.
114Similar fact evidence is presumptively inadmissible: R v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 55.
115It will, however, exceptionally be admissible where the prosecution establishes, on a balance of probabilities, that:
a. It is legitimately probative to an issue in the case; and
b. Its probative value outweighs its prejudicial effect.
See Handy, at para. 55.
116The utility of similar fact evidence lies in its ability to advance or refute a particular issue at trial, such as whether the accused committed the actus reus of an offence. The identification of the purpose or material issue for which the evidence is sought to be admitted is important for the purpose of properly guiding the admissibility analysis, namely, whether the probative value outweighs its prejudicial effect: Handy, at paras. 69, 70, and 73-74.
117The probative value of similar fact evidence typically flows from what is referred to as the “double inferences”: (1) the evidence supports the inference that the accused has a particular propensity to engage in a specific type of conduct, and (2) the evidence supports the further inference that the accused engaged in the very type of conduct on the occasion charged, in keeping with his propensity to do so. This evidence gains admission because the force of similar circumstances defies coincidence or other innocent explanation: Handy, at paras. 26-29, 42, and 47.
118The prejudicial effect of similar fact evidence is rooted in two potential dangers:
a. Moral Prejudice: The risk that the trier will engage in the forbidden chain of reasoning, relying on the accused’s general disposition or bad character to support an inference of guilt. This may lead to a verdict based on prejudice as opposed to proof. A related concern is that the jury may seek to punish the accused for other conduct by finding him guilty of the offence charged: Handy, at paras. 31, 71, 100, and 139.
b. Reasoning Prejudice: This refers to the danger that the trier of fact will be confused or distracted by the multiplicity of incidents. This potential for distraction may be compounded by the time consumed by the introduction of the similar fact evidence: Handy, at paras. 31, 83, 100, and 144-146.
119In determining admissibility, a trial judge must assess the probative value of the proposed evidence in relation to the issue identified. The principal driver of probative value is the nexus between the similar acts and the conduct for which the accused stands charged: Handy, at para. 76.
120The analysis is always case-specific. In some cases, such as sexual assault, similarities, and dissimilarities in terms of specific acts alleged are relevant but often not as compelling as the circumstances surrounding the incidents: Handy, at paras. 77-80, and 131.
121Ultimately, the test is whether the similar fact evidence is so highly relevant and cogent that its probative value in the search for the truth outweighs any potential for misuse: Handy, at paras. 41 and 74.
122Collusion may arise from a deliberate agreement to concoct evidence. It may also arise from direct or indirect communication among witnesses that either consciously or unconsciously has the effect of tainting or influencing their descriptions of the impugned evidence: Handy, at paras. 111-112.
123Where there is an air of reality to the prospects of collusion, the Crown must satisfy the judge, on a balance of probabilities, that the evidence is not tainted by collusion: Handy, at paras. 111-112.
124Mere opportunity to collude, however, is insufficient to give rise to an air of reality to collusion because the issue is concoction or collaboration, not contact. Evidence of opportunity to collude would go to weight and not admissibility: Handy, at paras. 111-112.
F. POSITION OF THE PARTIES
1) The Position of the Defence
125The defence submits that in all the circumstances, the evidence of any of the three complainants ought not to be admitted in support of the other complainants at the trial of this matter. The defence submits that the testimony of the complainants lacks the degree of similarity required for admission as similar fact evidence such that its probative value would outweigh its prejudicial effect. More significantly, the defence emphasizes evidence that some or all of the complainants discussed the allegations with one another before and after reporting the incidents to Berard, as well as prior to trial. According to the defence, these communications give rise to a real risk of collusion, which is fatal to the admissibility of similar fact evidence.
2) The Position of the Crown
126The Crown submits that the similar fact evidence is highly probative of the accused’s modus operandi, pattern of grooming behaviour, and situation‑specific propensity, and is therefore relevant to establishing the actus reus of the offences. According to the Crown, the probative value of the evidence lies in the pattern of behaviour exhibited by the accused toward the three complainants, as established by their testimony. The Crown emphasizes that the significance of the evidence lies not in similarities in the sexual acts themselves, but in the circumstances preceding and surrounding the alleged incidents. In this regard, the Crown argues that the evidence of each complainant tends to corroborate and support the testimony of the others that the alleged sexual conduct occurred.
127Further, the Crown argues that, in a judge‑alone trial, and where the evidence relating to each complainant is no more inflammatory than that concerning the others, the potential prejudicial effect is minimal. In the Crown’s submission, the probative value of the similar fact evidence clearly outweighs any prejudicial effect, and the evidence ought therefore to be admitted.
G. ANALYSIS – SIMILAR FACT EVIDENCE
128As indicated, the defence argues, albeit as a secondary attack on the admissibility of this evidence, that it is not sufficiently similar in any respect to muster the probative value required for admission as similar fact evidence. I disagree.
129When assessing the evidence, not only are there similarities in the testimony of the complainants in relation to the specific acts complained of, but, equally important, there are clear patterns that emerge from the evidence in relation to the circumstances leading up to and surrounding these specific events.
130I am satisfied that the complainants’ testimony shares several common characteristics that enhances the probative value of the evidence for the purpose of its admissibility as similar fact evidence. The common patterns that emerge from the evidence are as follows:
a. The alleged sexual assaults were committed within only a four to four- and one-month period, namely, between November 2021, and late March 2022.
b. All complainants, as well as S.T., were visible‑minority females, in Grade 12, and between 16 and 17 years of age at the time of the alleged incidents.
c. All complainants were students at Kennedy and participants in the CYF program. The accused served as their CYF counsellor and exercised a supervisory role over them.
d. All complainants were either friends or acquaintances.
e. All complainants (but not similar fact witness, S.T.), were relatively vulnerable students, struggling in school as a result of academic, truancy and family/personal issues.
f. Most of the alleged incidents occurred in one of the CYF rooms. One incident is alleged to have occurred in the accused’s vehicle. All of the incidents took place in locations under the direct control of the accused.
g. All complainants allege that the sexual assaults occurred during the day.
h. The accused’s alleged conduct toward two or more of the complainants was consistent with grooming behaviour and included the following:
i. The use of age‑inappropriate and/or sexually inappropriate language, including flirting and the sharing of gossip during conversations with the complainants.
ii. Disclosing details of his prior sexual history to the complainants.
iii. Engaging in conduct and making statements intended to single out the complainants and cause them to feel special.
iv. Buying food for the complainants.
v. Gaining the complainants’ trust to the point that they confide in him regarding personal and private matters.
vi. Disrobing in the presence of the complainants by removing his shirt.
vii. Creating a fake Snapchat account and adding the complainants to that account.
viii. Communicating with the complainants through social media platforms, including the use of a fake Snapchat account or Edsby, for purposes unrelated to school.
ix. Sending images to the complainants through social media.
x. Arranging to meet the complainants at Burger King and providing them with rides in his vehicle.
xi. Inappropriately staring at the complainants, including focusing on their buttock and chest.
xii. Standing in close proximity to the complainants and invading their personal space.
xiii. Touching the thighs of two of the complainants in a sexual manner.
131The evidence demonstrates that over a relatively short period the accused, in a “particular and highly specific type of situation,” allegedly acted out in a similar and distinctively inappropriate way towards the complainants: Handy, at para. 91.
132I agree with the accused that there are notable dissimilarities in the complainants’ respective accounts of the events. These include the following: (1) the alleged touching of Z.C.’s thigh is said to have occurred in the CYF office, whereas the incident involving D.W. is alleged to have occurred in the accused’s vehicle; (2) the accused communicated extensively with Z.C. through Snapchat, while his communications with D.W. occurred primarily through Edsby; (3) the accused is alleged to have sent sexualized photographs of himself, including bare‑chested images, to Z.C., but not to D.W.; and (4) while D.W. and O.F. allege sexual assaults during the single occasion on which each was driven home by the accused, Z.C. described the four or five rides she received from the accused as “the most normal interaction.”
133However, when the evidence is considered as a whole, I am satisfied that these dissimilarities are relatively minor when weighed against the significant similarities in the complainants’ testimony concerning the circumstances leading up to and surrounding the alleged incidents. Those similarities are highly probative of the accused’s situation‑specific propensity to have engaged in the inappropriate conduct alleged by the female students. In my view, the strong common features in the evidence, and the resulting “pattern of circumstances in which an accused is disposed to act in a certain way” (Handy, at para. 91), in the absence of evidence of collusion, defy coincidence and possess probative value that clearly outweighs any prejudicial effect.
134Further, the probative value of the evidence is not overborne by its prejudicial effect, which, in the circumstances, is limited, for the following reasons:
a. This is a judge-alone trial, and I determine guilt only on the evidence of the commission of the offences and not bad character.
b. While the similar fact evidence reflects negatively on the accused’s character, its common features are compelling and highly probative of a pattern of grooming that culminated in the alleged actus reus.
c. The complainants’ evidence is not unduly inflammatory with respect to the alleged sexual activity or the surrounding circumstances when compared among them.
d. Admitting the similar fact evidence will not complicate the primary issue at trial, namely, whether the sexual activity took place, since all but one witness, S.T., are already named in the same indictment, and therefore is not overly time consuming.
135The defence argues that the “objective improbability of coincidence” or probative value of the similar fact evidence is the product of collusion among the complainants and not from the degree of similarity – I disagree.
136The evidence of potential collusion is as follows:
Z.C.
Z.C. testified that she spoke with O.F. after reading a newspaper article reporting the accused’s arrest, and that she was shocked to learn of O.F.’s allegation that the accused had “raped” her. Z.C. stated that she did not disclose to O.F. any details of what allegedly occurred between herself and the accused. Following the publication of the article and her conversation with O.F., Z.C. decided to contact D.W.
Z.C. testified that she was neither acquainted with nor close to D.W. and that, when they spoke, they did not discuss any allegations involving the accused. According to Z.C., her primary purpose in contacting D.W. was to inquire about her well‑being. This conversation took place two days before Z.C. provided her videotaped statement to the police.
D.W.
In her videotaped statement, D.W. stated that she did not disclose the events involving the accused to any of the other girls in the CYF program because she did not want information circulating within the school. At trial, she testified that she did not tell Z.H. and did not “think” she told S.T. about what had occurred between her and the accused in the vehicle. However, she later acknowledged that she probably told S.T., or that S.T. learned of the events from someone else, when they next saw each other at school.
In her videotaped statement, D.W. stated that S.T. told her she was “just going to tell because he’s being rude to me” following an argument S.T. had with the accused. D.W. indicated that, at that time, she and O.F. were already considering reporting their concerns to Berard. At trial, D.W. testified that, while in the school washroom, S.T. encouraged her to tell the principal about the incident involving the accused during the car ride.
At trial, D.W. further testified that, prior to reporting the incident to Berard, she encountered O.F. and S.T. in the school washroom. Both had already spoken with Berard and advised her that he would ask about what had occurred and would contact her parents. D.W. was unable to recall how the three of them came to be in the washroom together, suggesting that they were likely skipping classes at the time.
At trial, D.W. testified that she likely disclosed to O.F. that the accused had grabbed her hand and placed it on his thigh after dropping her off during the car ride. She also testified that, since the preliminary hearing, she had asked O.F. about certain peripheral details of the incident in the accused’s vehicle, such as the direction in which they were driving, but not about the incident itself.
D.W. further testified that she subsequently had a falling out with S.T. and has not spoken with her since high school.
O.F.
S.T. told O.F., after she had already attended Berard’s office, that she was going to get the accused fired. O.F. testified that she had not disclosed to S.T. the incident involving the accused in the vehicle, although she may have mentioned other inappropriate behaviour by the accused.
O.F. testified that she did not communicate with Z.C. following the incidents. She has, however, remained friends with D.W. to the present day, but is no longer friends with S.T.
S.T.
S.T. testified that she “probably” played the audio recording she later provided to Berard for some of her friends, “assuming” that one of them may have been O.F., but she was not certain whether she did so with either D.W. or Z.C.
S.T. also testified that she had a conversation with D.W. and O.F. about approaching the principal in an effort to be reinstated in the program. She acknowledged telling the others that she intended to get the accused fired.
S.T. testified that O.F. had disclosed to S.T. details of the incident in the accused’s vehicle, including that he had removed his shirt. She also stated that D.W. told her “different things” around the same time.
S.T. has not talked to any of the complainants since high school.
137While I accept that some of the complainants communicated with one another at or around the time decisions were made to report the alleged incidents to Berard, and that there were additional communications between O.F. and D.W. prior to trial, including discussions touching on peripheral aspects of the incidents, I am not satisfied, on the evidence before me, that it has been demonstrated that these communications rose to the level of collusion contemplated in R. v. Handy, at least for the purposes of this application.
138I am further of the view that the probative value of this evidence lies in the common pattern that emerges within a particular and highly specific situational context, demonstrating the accused’s alleged tendency to act in a predictable manner towards the complainants. For the purposes of this application, I find that this pattern defies coincidence or innocent explanation. I am also satisfied that the prejudicial effect of the evidence is manageable in a judge‑alone trial and does not outweigh its probative value.
139As a result, I find, on a balance of probabilities, that the accused’s situation‑specific propensity is relevant and admissible on the issues of whether the accused engaged in conduct amounting to grooming of the complainants and whether he committed the actus reus of the offences charged.
140Accordingly, for all of these reasons, the testimony of each complainant and S.T. is admissible as similar fact evidence at trial on each count involving the other complainants.
141The remaining issue is whether the similar fact evidence, when considered together with all the evidence at trial, is capable of mustering the heavy lifting required by the Crown to establish the allegations against the accused beyond a reasonable doubt.
THE TRIAL PROPER
H. POSITION OF THE PARTIES
1) Theory of the Crown
142The Crown submits that aspects of the accused’s testimony are implausible, internally inconsistent, or contradicted by the surrounding evidence of inappropriate conduct, and should therefore be rejected. By way of example, the Crown points to the accused’s account of how he purportedly came to be at Curry Park with two 17‑year‑old students in his vehicle, and then remained there for an additional five to seven minutes awaiting further direction from O.F. before departing. The Crown argues that this explanation strains credulity and defies common sense. Taken together with other inconsistencies identified in the evidence, the Crown submits that the accused’s testimony does not raise a reasonable doubt as to his guilt on any of the counts before the court.
143The Crown argues that the court must remain mindful of the complainants’ young ages at the time of the alleged incidents and assess their evidence through a common‑sense lens. According to the Crown, inconsistencies, gaps in detail, or vagueness – particularly with respect to peripheral aspects of the alleged sexual conduct – should not attract the same degree of scrutiny as might be expected of adult complainants. The Crown further submits that the complainants’ testimony must be evaluated in light of the passage of time, as the events in question occurred several years prior to trial.
144The Crown further submits that the similar fact evidence is highly probative and relevant to establishing that the accused engaged in both grooming behaviour and the actus reus of the offences charged. According to the Crown, the probative value of the evidence arises from the similarities in the circumstances underlying the alleged incidents, which defy coincidence, as well as from the pattern of inappropriate conduct attributed to the accused. In this regard, the Crown argues that the evidence of each complainant and S.T. tends to corroborate and support the testimony of the others that the alleged sexual conduct occurred.
145In conclusion, the Crown submits that the complainants’ evidence is sufficiently compelling to prove beyond a reasonable doubt each element of the sexual offences and therefore the accused ought to be found guilty on all counts.
2) Theory of the Defence
146The principles set out in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, apply in this case. The defence submits that the accused’s evidence was not shaken in cross‑examination and should therefore be accepted, particularly given his testimony that no sexual conduct occurred between himself and the complainants. Alternatively, the defence argues that even if the accused’s evidence is not fully accepted, it is nevertheless sufficient to raise a reasonable doubt as to his guilt. Finally, the defence submits that, even if the accused’s evidence is rejected in its entirety, the complainants’ evidence is not sufficiently compelling to establish guilt beyond a reasonable doubt.
147As noted, the accused denies having engaged in any sexual conduct with the complainants. The defence argues that I should approach what is essentially the uncorroborated evidence of the complainants, at least with respect to the sexual offences, with caution. The defence points to a number of inconsistencies in the complainants’ testimony on material facts central to the allegations, as well as other areas of concern which should give rise to serious doubt in the court’s assessment of their reliability.
148The defence submits that the outcome of this case turns on the credibility and reliability of the complainants. While acknowledging that the evidence of each complainant may be relied upon to support the allegations of the others, the defence argues that, given the significant concerns it raises regarding the complainants’ evidence, it would be unsafe to convict.
149Accordingly, the accused ought to be acquitted on all counts.
I. LEGAL PRINCIPLES
1) The Standard of Proof
150To convict a person accused of a crime, the Crown must prove every element of each offence charged beyond a reasonable doubt. Accordingly, I instruct myself on the criminal standard of proof in accordance with the guidance provided by the Supreme Court of Canada in R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, at para. 39.
2) The Distinction Between Credibility and Reliability
151The credibility and reliability of a witness are two distinct concepts. Simply, credibility relates to whether a witness was telling the truth, and reliability is whether a witness, although apparently honest, provides the court with inaccurate evidence: see R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.) at p. 17:
3) Assessment of Credibility
152If an accused elects to testify on his own behalf and the court is presented with two fundamentally different versions of the critical events in question such that credibility is important, the principles enunciated in W.D. are central to the court’s analysis. In W.D., Cory J. held that the trier of fact should be instructed on the issue of credibility in accordance with a three-step analysis, at p. 758:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
4) Principles Related to Children’s Evidence
153When considering the potential frailties regarding the complainants’ and S.T.’s evidence, I am mindful that they were between 16 and 17 years old at the time of the incidents. Given their tender years, I am guided by the remarks of McLachlin J. (as she then was) in W.(R.W.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122.
154Generally, when an adult testifies about events that occurred when they were a child, their credibility should be assessed according to the criteria applicable to adult witnesses. However, the presence of inconsistencies, especially on peripheral matters such as time and location, should be considered in the context of their age at the time the events about which they are testifying occurred: see R. v. A.M., 2014 ONCA 769, at para. 11.
155With all the above in mind, I will now consider the evidence of the witnesses.
J. ANALYSIS
1) The Evidence of Z.C. and S.T.
156I begin my analysis with the similar fact witness, S.T. I was not impressed with her evidence. It was apparent that she harboured significant animosity toward the accused at the time of the alleged incidents. Whether that animosity arose from what she alleges she heard from other complainants, from her own observations, or from unrelated circumstances is unclear. What is clear, however, is her assertion that she did not recall telling the accused, her CYF counsellor, in the presence of her classmates, that he was “fuckin useless” after he declined to locate O.F.’s classroom at her request. I find it implausible, notwithstanding her young age at the time, that S.T. would fail to recall making such a remark in those circumstances, even several years later. I therefore reject her evidence on this point as not credible.
157My rejection of S.T.’s evidence on this point also negatively taints the remainder of her testimony, including her account concerning the recording of the accused recounting an allegedly inappropriate story. S.T. testified that the recording was made while the accused and she were alone in his office; however, there is nothing intrinsic to the recording that substantiates that assertion. While it is apparent that she was in close proximity to the accused when the recording was made, I am not satisfied that it occurred while the accused was alone with her in the office, or that the statement was knowingly made in her presence.
158As with S.T., I also, for somewhat similar reasons, am not impressed with Z.C.’s testimony. I found her rather vindictive and at times, willing, when given the opportunity, to unnecessarily disparage the accused during the course of her testimony rather than accurately recounting the events.
159While statements allegedly made by the accused about cheating on his wife were part of the narrative, I find that Z.C. at times raised these claims gratuitously, including stating that the accused cheated on his wife “frequently” and even saying that he “didn’t care for his wife.” She also made additional comments that were both unnecessary and speculative, such as describing the accused as someone for whom “something’s off,” suggesting that the complainants “are not the only ones” in reference to other unnamed girls being abused, or simply and repeatedly characterizing him as a “weirdo.” Further, while there was no evidence at trial to support such a claim, nor any evidence that O.F. ever made such a disclosure to anyone, Z.C. nonetheless stated that she would never have allowed the accused to “rape” her in the manner she alleged occurred with O.F.
160While Z.C. provided impressive details regarding certain aspects of her testimony, such as the type of crop shirt or bra she had been wearing during this time at school – other details more central to the allegations were often lacking. For example, in relation to the incident in which the accused is alleged to have removed his shirt in her presence, she was unable to recall where the replacement shirt came from, which shirt was removed or put on, or the substance of any conversation that allegedly occurred while the accused was changing. She was also uncertain whether a teacher was present in the adjoining office, whether the office door was open, or whether anyone was present in the common area. In addition, Z.C. was unable to recall how the accused, who was her CYF counsellor at the time, initially obtained her personal cell phone number.
161Overall, I did not find Z.C.’s evidence to be particularly balanced or measured in her portrayal of the accused and his conduct while acting as her CYF counsellor. At times, her testimony appeared to be presented in a self‑aggrandizing manner. For example, she interpreted the accused’s alleged act of leaving a Louis Vuitton wallet containing what she described as “stacks and stacks of money” on a table as suggesting that he believed she had “never experienced like a man taking care of [her].” Z.C. also initially avoided answering straightforward questions that suggested she may have lacked confidence during the relevant period, stemming from poor school attendance and grades, as well as difficulties at home.
162Z.C. testified that after learning the accused had told other students he trained that she wanted to “get with Mike,” she confronted him in his office, yelling at him and calling him a “weirdo,” and stating, “you think that I would ever want to be with you.” After a period during which the accused blocked her, the two later began talking again, and Z.C. finally accepted his offer to pay for her to have her nails done. She testified that she did so apparently believing that, as a result of all the inappropriate behaviour, she “might as well get $90 out of it.”
163At trial, Z.C. further testified that she believed the accused was attempting to flirt with her and was interested in a relationship beyond that of counsellor and student, including suggesting that she take him on a date. By contrast, in her videotaped statement, Z.C. described the accused’s intentions quite differently, stating that he “definitely” did not want a physical relationship with her, at least until after she turned 18.
164Overall, I find that Z.C.’s reluctance to provide a candid and impartial account of these matters has materially undermined the credibility of her evidence.
165I will next address the evidence of D.W., and O.F., as the assessment of their credibility and/or reliability turns largely on my findings concerning their respective accounts of the ride or rides provided to them by the accused in his vehicle. Problems regarding this testimony are as follows:
a. D.W. testified that she and O.F. received only one ride from the accused, whereas O.F. stated that there were two such rides.
b. D.W. testified that, on the occasion she alleges the sexual assault occurred, J. was present in the vehicle. By contrast, O.F. stated that J. was not present in the vehicle when the alleged incident took place.
c. D.W. testified that she arranged for J. to receive a ride home from the accused. In contrast, O.F. stated that the accused offered J. a ride as J. was walking toward the bus stop.
d. O.F. testified that, on the second car ride – during which she alleges both were sexually assaulted – O.F. sat in the front passenger seat after entering the vehicle at Burger King, while D.W. sat in the back seat. By contrast, D.W. testified that she was seated in the front passenger seat and that O.F. was seated in the back seat.
e. D.W. testified that, while en route to the park, she and O.F. shared a marijuana cigarette. In contrast, O.F. testified that this occurred only after they had left the park.
f. O.F. testified that, prior to stopping at the park, she moved into the back seat of the vehicle and that it was only later, at the park, that the accused moved into the back seat. D.W. stated that when they arrived at the park, she and the accused moved to the back seat together.
g. D.W. testified that the accused unzipped his jacket, exposing his chest but not removing his shirt. By contrast, O.F. testified that the accused removed his shirt entirely, and then placed it on the front seat, before she proceeded to poke his nipple as he was bare‑chested.
h. O.F. testified that he pulled down his pants and placed his hands in his shorts. D.W. said that he did not pull down his pants.
166As noted, there are significant and material inconsistencies between D.W.’s and O.F.’s respective accounts of the events surrounding the ride or rides provided by the accused. The most fundamental inconsistency concerns the number of rides: D.W. testified that there was only one, while O.F. testified that there were two. In my view, these accounts cannot be reconciled. There are also additional concerns with D.W.’s evidence. In her videotaped statement, D.W. stated twice that the accused did not touch her and that nothing occurred between them. At trial, however, she testified that after O.F. was dropped off, the accused grabbed her wrist or hand and placed it on his thigh. I do not accept that D.W.’s failure, on two occasions, to recall this troubling allegation is attributable to her youth. Ultimately, I am unable to accept D.W.’s account of events due to these inconsistencies and other concerns arising from her evidence.
167As opposed to D.W., I was impressed with O.F. as a witness. I found her to be credible, at least more so than D.W. O.F. testified in a relatively balanced and even-handed manner, showing no apparent animosity towards the accused.
168That said, when O.F.’s account of the events in the vehicle is compared with the testimony of Boomer – an independent third‑party observer whom I find to be credible and reliable in all respects, save perhaps the occupants’ ages – significant inconsistencies emerge. These discrepancies are sufficiently troubling that, while I do not fundamentally doubt O.F.’s honesty, I do have serious concerns regarding the reliability of her recollection of these events. The more significant inconsistencies are as follows:
a. Boomer testified that the rear passenger‑side window of the vehicle was lowered. O.F., by contrast, stated that she did not believe the window was lowered.
b. Boomer testified that there were two occupants in the back seat, one male and one female. O.F., however, testified that there were three occupants in the back seat – herself, D.W., and the accused.
c. O.F. placed D.W. closest to Boomer in the backseat. Boomer said it was the male who was closest to her.
d. O.F. clearly testified that at the time Boomer would have approached the vehicle, the accused’s shirt would have been entirely off, leaving him bare chest, something she specifically recalled because she poked his exposed nipple. Boomer testified that the male in the backseat was fully dressed.
169While my analysis focused primarily on O.F.’s testimony in relation to Boomer’s evidence, the inconsistencies between D.W.’s account and that of Boomer is also irreconcilable, which further undermines D.W.’s credibility and/or reliability.
170In the final analysis, I reject S.T.’s evidence in its entirety. I also have significant concerns regarding the credibility and reliability of Z.C.’s and D.W.’s testimony, as well as the reliability of O.F.’s evidence in areas that are material and central to the allegations. Those deficiencies cannot be cured or rehabilitated by the physical evidence, or lack thereof, nor by the similar fact evidence admitted in support of the complainants’ testimony. As noted, having considered and accepted Boomer’s evidence without reservation, I have no confidence in D.W.’s and O.F.’s accounts of the events in the vehicle, nor, more broadly, in their evidence as a whole.
171Although I have found that the Crown established that the complainants’ evidence was likely not tainted by collusion, I am nevertheless left with lingering concerns at this stage of my analysis regarding the potential influence of discussions among some of the complainants – particularly D.W. and O.F. – and the similar fact witness, S.T., prior to the reporting of the alleged incidents to Berard. Despite the failure to explore this area more thoroughly at trial by way of cross-examination, I nevertheless question, based on the existing evidentiary record, of the extent of influence that S.T. had on the others. It appears that she was friends with O.F. and to a lesser extent with D.W. at the time.
172At trial, D.W. initially denied having disclosed the incident in the vehicle to anyone. She later acknowledged, however, that she had “probably” told S.T. This is significant, as D.W.’s testimony suggests that this disclosure occurred before S.T. reported the accused to Berard. At that time, S.T.’s stated objective was to have the accused dismissed – not as a result of any alleged sexual misconduct toward her friends or inappropriate comments to students, but instead - because the accused had the audacity to refuse her request to locate O.F.’s classroom. As previously noted, I was not impressed with S.T.’s evidence at trial and I reject it.
173In sum, I am left with a reasonable doubt as to both the reliability and the truthfulness of the complainants’ allegations of sexual conduct involving the accused, such that the presumption of innocence has not been displaced. I further find that the similar fact evidence is insufficient to overcome the deficiencies I have identified in the complainants’ testimony. In the absence of other reliable evidence capable of materially supporting their accounts, the Crown’s case falls short of establishing a sound evidentiary foundation for a finding of guilt or of proving, beyond a reasonable doubt, that the accused committed the alleged sexual offences. In short, whether the evidence of the complainants and S.T. is considered individually or cumulatively, I am not satisfied that the Crown has proven the case against the accused on any count beyond a reasonable doubt.
174Now turning to the accused’s evidence. His explanation that he relied entirely on O.F.’s incremental directions to drive her home – without ever asking for her address or even a general indication of where she lived, whether from Burger King, Curry Park, or onward toward Little River – is not credible. Even less believable is his explanation for remaining stopped at the west entrance of Curry Park for five to seven minutes, or, as Boomer testified and I accept, for as long as ten to fifteen minutes. The accused’s assertion that he merely remained there and did nothing further while awaiting instructions from his 17‑year‑old student strains credibility. He also denied ever being seated in the back seat with one of the girls, a claim that is again inconsistent with Boomer’s testimony.
175I am equally unimpressed with the accused’s explanation for why he disclosed to the male students the incident where he, while in high school, was caught by his mother just before he was about to “hit” a naked girl who he had snuck in his basement. The accused testified that the point he was attempting to make to a white student in the group was that black parents would never allow that his girlfriend could stay overnight, as the parents of this white student apparently did.
176I am not persuaded by the accused’s assertion that, because he believes that he did not provide graphic detail, the story he told was therefore appropriate. In any event, it is unclear why, in attempting to make the point he describes, it was necessary telling the student that he was about to have sexual intercourse with this girl – other than perhaps this was something that he regularly boasted about with his teenage students.
177Regardless of whether the accused was familiar with school board policy, it should have been obvious that driving students home, possessing a student’s personal phone number, communicating with students outside of school channels, using profanity in their presence, and disclosing aspects of his sexual history were actions that were highly risky and wholly inappropriate. Even if I were to accept the accused’s explanation for engaging in this conduct, which I do not, such behaviour – while not necessarily criminal in itself – reflects a serious lapse in professional judgment and appropriate boundaries.
K. CONCLUSION
178Accordingly, after rejecting the accused’s evidence and considering all the evidence that remains, I am not convinced beyond a reasonable doubt that the criminal sexual allegations have been proven against him.
L. JUDGMENT
179It is for all the above reasons that I find the accused not guilty on all counts.
Brian D. Dubé
Justice
Released: Orally and in writing – June 3, 2026