DATE: 20041013
DOCKET: C39822
COURT OF APPEAL FOR ONTARIO
ROSENBERG, GILLESE and ARMSTRONG JJ.A.
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| HER MAJESTY THE QUEEN |
Melvyn Green for the appellant |
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| GORDON THOMAS |
Eric Siebenmorgen for the respondent |
| Heard: May 11, 2004 |
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On appeal from the conviction by Justice William Lawrence Whalen of the Superior Court of Justice dated February 20, 2003 and from the sentence imposed by Justice Whalen dated March 10, 2003.
ROSENBERG J.A.:
[1] The appellant appeals from his conviction and sentence on twenty-one counts of various sexual offences and from the sentence of twelve years imprisonment and an order of parole ineligibility. The appellant was tried by Whalen J. and a jury. His grounds of appeal concern the admissibility of similar fact evidence, the related issue of severance of counts and the trial judge’s directions to the jury concerning similar fact evidence and consent.
[2] The appellant originally faced twenty-two counts involving fourteen complainants. The appellant was an elementary school teacher. The fourteen complainants were students of his over a period of twenty years from 1965 to 1985. The complainants fell into two groups. Ten of the complainants alleged acts such as groping, hugging, kissing and fondling, generally over clothing. Four of the complainants alleged much more serious acts including acts of fellatio and full sexual intercourse. Two of these complainants also alleged that the appellant inserted a broom or hockey stick into their vagina. At trial, as on appeal, the appellant concedes that the evidence of the ten complainants was admissible as similar fact evidence in respect of each other and that the evidence of the four complainants was admissible as similar fact evidence in respect of each other. The appellant, however, sought severance of the counts involving the ten complainants from those involving the four complainants. The trial judge held that evidence on all of the counts was admissible on each count and refused to sever the two groups.
[3] In my view, the trial judge erred in refusing severance, the error prejudiced the appellant’s right to a fair trial with respect to the ten complainants and there must be a new trial on the counts upon which the appellant was convicted in relation to that group of complainants. I am of the view that the trial judge’s instructions to the jury concerning the use of similar fact evidence and consent were sufficient. In view of my conclusion on the conviction appeal, there must be some adjustment to the sentence. I would reduce the sentence to nine years and set aside the parole ineligibility order.
THE FACTS
[4] The fourteen complainants were students of the appellant at seven different elementary schools in Sault Ste. Marie. The appellant was also an officer in Sea Cadets and several of the complainants were also in the Sea Cadets. With few exceptions the complained of conduct occurred during school hours or just at the end of the school day on school property. With two exceptions, the acts only occurred when the appellant was the complainants’ teacher. In respect of those two complainants the acts continued when the complainants had moved on to high school. The complainants were for the most part twelve or thirteen years of age and in Grade 7 or 8. The earliest complaint concerned conduct in 1965 and with few exceptions the complaints covered all of the school years from 1965 to 1977. There was then a gap until the last complainant who complained of acts in the 1983 to 1985 school years. The appellant was described as a young, dynamic and vibrant teacher.
[5] The following is a very brief summary of the evidence concerning the two groups of complainants. The summary does not fully capture the nature of the conduct but will be sufficient to understand the various grounds of appeal.
The ten complainants
(1) J.M., 1965, Grade 7, 12 years of age: On the pretext of showing her something, the appellant called the complainant up on to the stage area of the gym during class. He approached her from behind and groped her breasts over her clothing. The bell rang and the complainant left. The complainant told her older sister about the incident who advised her to stay away from the appellant.
(2) L.S., 1965, Grade 7, 12 years of age. On three occasions the appellant approached the complainant from behind and groped her breasts under her clothing. The incidents occurred in a cloakroom or supply room during class. The appellant used the pretext of asking the complainant to get something for him.
(3) D.M., 1967-68, Grade 8, 13 years of age. On at least one occasion the appellant asked to speak to the complainant about something in the nurse’s office. He turned out the lights and touched her breasts over her clothing. There was also hugging and kissing. The complainant told her friend D.K. about the incident. D.K. was also a complainant. They made a pact not to tell anyone else.
(4) R.J., 1967-68, Grade 8, 13 years of age. On one occasion during school hours, the appellant said he needed help in another room. He then turned off the lights, pulled the complainant to him and “French kissed” her. She pulled away and left. On a second occasion, the appellant again asked for the complainant’s help in an equipment room but she refused to go and nothing happened. This complainant also told D.K. about the incident, who also said she had been sexually assaulted by the appellant.
(5) D.K., 1967-68, Grade 8, 12 years of age. On six to eight occasions the appellant lured the complainant into an equipment room or storage room during school hours, usually on the pretext of helping to deal with gym equipment. The incidents involved “French kissing”, and touching of the breast and buttocks over the clothing. On one occasion he asked the complainant to stay after school to clean the blackboard and then offered to walk her home. On the way, they went to his house. They held hands during the walk. He took her into the bedroom and began to kiss her and aggressively tried to remove her pants and top. The doorbell rang and the complainant fled when the appellant went to answer the door.
(6) L.Y., 1968-70, Grade 7, 12 years of age. The appellant sent the complainant to the supply room. He followed her in and fondled her breasts. After an interruption, he led her to the nurse’s office where he unzipped her pants and fondled her genitalia. The lunch bell rang and the complainant left. The complainant told her mother what happened. A complaint was made and school superintendents met with the complainant. The appellant was transferred to another school.
(7) C.A., 1972-73, Grades 6 and 7, 11 or 12 years of age. During sporting events in gym class the appellant would sit next to the complainant and touch her leg and slap her buttocks. She complained to the school principal but nothing was done. On one occasion, the complainant went to the armouries with the appellant to help set up tables. She could not remember what happened. The appellant was acquitted on this count.
(8) J.S., 1973-74, Grade 8, 13 or 14 years of age. The appellant assigned the complainant to keep the room neat during the school year. Various touchings occurred in a supply room. The appellant hugged and kissed the complainant and fondled her breasts and genitals over and under her clothing on many occasions. On one occasion, while the complainant was waiting to perform in a school talent show, the appellant removed the upper part of her costume and kissed and fondled her breasts.
(9) M.A., 1975-76, Grade 8, 13 or 14 years of age. The appellant asked the complainant to help clean the room. One incident occurred in a storage room during classroom hours. The appellant asked the complainant to remove something from a high shelf and as she reached up, he began to tickle her and then touch her breast. The complainant complained to her mother.
(10) L.L., 1983-85, Grade 7, 8 and high school, beginning when she was 12 years of age. Over two years while the appellant was her teacher, the appellant caressed her body, hugged her inappropriately, and rubbed his groin against her. Numerous incidents occurred during school hours in the supply room and in the classroom after school. Similar incidents occurred at various Sea Cadets events up to age of 18 years. All the incidents involved touching over the complainant’s clothing.
The four complainants
(1) K.M., 1966-67, Grade 8, 13 years of age. The first incident involved the appellant running his hands over the complainant’s body while measuring her for health class. The appellant had the complainant obtain supplies from the supply room. He would follow her in and kiss her and fondle her breasts and vagina under her clothing. He then persuaded her to touch his penis and then perform fellatio. This progressed to attempted sexual intercourse in various rooms in the school and then to full sexual intercourse in a stairway to the stage in the auditorium during school hours. On Saturdays the complainant would come to the school to help the appellant with something and there would be full sexual intercourse. There were also incidents of fellatio and sexual intercourse in the appellant’s car.
(2) S.M., 1967-68, Grade 8, 12 years of age. This complainant is K.M.’s younger sister. There was a similar pattern of touching leading to fellatio and then full sexual intercourse in various places in the school. One difference is that several incidents occurred on weekends at the appellant’s home when his wife was away.
(3) S.C., 1970-75, Grade 6 to high school, 12 to 16 years of age. Like the other two complainants touchings progressed to fellatio and full sexual intercourse in the classroom and storage room during and after class. There were also incidents of fellatio and sexual intercourse at the appellant’s home during lunch hour and in a wooded area near the school. The incidents continued through high school at the armoury where the complainant was a Sea Cadet and the appellant was her commanding officer. On one occasion at the armoury, the appellant inserted a broomstick into the complainant’s vagina when she was 12 or 13 years of age.
(4) H.M., 1976-77, Grade 6, 11 or 12 to 16 years of age. The appellant asked the complainant to help him clean the room after a party in the room. The appellant began to kiss her and rub her back. There were frequent incidents of fondling progressing to fellatio three or four times a week and several incidents of cunnilingus and then full sexual intercourse. The incidents occurred in various parts of the school such as the library, supply room and the girls’ washroom and on one occasion at the appellant’s home. On four or five occasions, the appellant inserted a broomstick into the complainant’s vagina and on one occasion he inserted a hockey stick. On one occasion, another teacher came to the room when the complainant and the appellant were having intercourse in the storage room. They came out of the room while the teacher was there. The teacher reported the incident to the administration.
[6] The Crown called some evidence apart from the complainants to confirm their stories, such as the teacher who saw the appellant and H.M. emerging from the storage room and a pupil who looked into a classroom and saw the appellant apparently embracing S.M. One important piece of evidence was a tape recording that S.C. made of a conversation with the appellant in May 1999 after she had consulted with a lawyer. While the appellant made several denials during the conversations he also seemed to admit improprieties with the complainant. He said he was sorry and admitted that he was “sick”. S.C. later retained a lawyer to obtain compensation from the appellant.
[7] The appellant testified and denied any improprieties with any of the complainants. Aside from the bare denials, the appellant explained some of the incidents that had independent confirmation, such as the evidence of the other teacher who saw him come from the storage room with H.M. The appellant also contradicted the complainants on some details as to the type of car he was driving or the house he was living in as described by some of the complainants.
[8] The appellant explained the taped conversation with S.C. He testified that he was distraught by her allegations. He said he was sorry about her problems and was not apologizing. He said he was sick of being threatened and harassed. The defence also called S.C.’s former boyfriend who testified that she was trying to extort $10,000 from the appellant.
[9] The appellant also called Laurie Breathat, a former student. She testified that the investigating officer called her and said that he suspected she was a victim. She testified that he provided her with details of the stories of the other complainants including the use of the hockey stick and the broomstick. He told her that she could join a lawsuit that the other complainants had launched, and that the appellant was ill and would probably plead guilty. Breathat insisted that nothing inappropriate had occurred, but the officer continued to press her. She eventually complained to the officer’s superior. The investigating officer denied telling Breathat or any other potential complainants of the details of the investigation. However, there does not seem to have been any other source of Breathat’s information about the details of the other complaints. The other complainants denied that the investigating officer provided them with details of the investigation. The officer testified that he called over one hundred former pupils, who might have been victims.
THE GROUNDS OF APPEAL
[10] The appellant raised the following grounds of appeal with respect to conviction:
(1) The trial judge erred in dismissing the motion for severance.
(2) The trial judge misdirected the jury on the use of similar fact evidence.
(3) The trial judge misdirected the jury with respect to consent as it applied to the charges of rape and gross indecency.
[11] The appellant raised the following grounds of appeal with respect to sentence:
(1) The trial judge erred in imposing a sentence of twelve years imprisonment “on all counts”, which exceeded the maximum penalty for several of the offences.
(2) The trial judge erred in making an order for parole ineligibility.
(3) The global sentence of twelve years was harsh and excessive.
ANALYSIS
The Conviction Appeal
1. Severance and similar fact evidence
(i) Introduction
[12] As I have indicated, the charges against the appellant could be divided into two groups. Twelve counts related to four complainants. With respect to those complainants the appellant was charged with rape, indecent assault, and gross indecency. In respect of the other ten complainants, the appellant faced single counts of indecent assault except in the case of L.L. where the charge was sexual assault, that offence having allegedly occurred after the new sexual offences provisions were enacted. At trial, the appellant conceded that the evidence in respect of each count within the two groups was admissible as similar fact evidence within the group. The appellant argued, however, that the evidence relating to the four complainants was inadmissible in respect of the ten complainants. The appellant also argued the reverse; that the evidence of the ten complainants would not be admissible in respect of the four complainants. His trial counsel conceded, however, that this was the more difficult argument and that if the trial of the ten were held first and the appellant was convicted the evidence would probably be admissible. On appeal, Mr. Green takes essentially the same position although he argues that a strong argument can be made that the evidence of the ten was not admissible in relation to the four complainants.
[13] The trial judge dealt with the question of severance of counts about four months prior to the start of the trial. At the same time, he dealt with the Crown’s application to use the evidence of each count as similar fact evidence in respect of all the other counts. The trial judge based his ruling on the transcript of the preliminary inquiry. There was no suggestion that the complainants’ actual evidence on the trial varied in any material way from the evidence they gave at the preliminary inquiry. [1]
(ii) The trial judge’s ruling
[14] The trial judge recognized that on the severance application the defence bore the burden of establishing that, in the words of s. 591 of the Criminal Code, the interests of justice required severance. He also recognized that the Crown bore the burden of establishing that the evidence of the various counts was admissible as similar fact evidence. There is no suggestion that the trial judge misdirected himself with respect to the test either for severance or admission of similar fact evidence. In particular, with respect to similar fact evidence, the trial judge had the benefit of the leading decisions of the Supreme Court of Canada in R. v. Arp (1998), 129 C.C.C. (3d) 321 and R. v. Handy (2002), 164 C.C.C. (3d) 481.
[15] The trial judge set out the applicable principles for severance and admission of similar fact evidence with accuracy and clarity. The focus of the attack on the trial judge’s ruling in this court was on the decision respecting similar fact evidence and, in particular, on the trial judge’s assessment of the prejudicial effect of the evidence of the four complainants on the fair trial relating to the ten complainants. The appellant submits that because the trial judge erred in holding that the evidence of the four complainants would be admissible in respect of the ten, he erred in principle in refusing severance. I will briefly summarize the two rulings, beginning with similar fact evidence.
[16] The trial judge identified the issues to which the evidence was relevant as proof of the actus reus, to support the credibility of the complainants, and undermine the denial by the appellant. He found that the evidence was not being tendered solely to show that the appellant was a person of bad character. He was also satisfied that there was no evidence of collusion amongst the various complainants. The trial judge closely examined the connecting factors identified in Handy to measure the probative value of the evidence. He took into account the number of complainants, the similarities in age, the location of the assaults, and the relationship of the complainants with the appellant as pupil/teacher and in three cases also Sea Cadet/commander. There was a strong temporal connection with the acts having taken place almost every year from 1965 to 1985. Most importantly there were strong connections amongst all the complainants in that all of the assaults began at school by the appellant isolating the complainant by some pretext. The assaults were all initiated in a similar way with the touching of breasts or caressing of some part of the student’s body in a sexual way. Where the complainant submitted, the acts then progressed further.
[17] The trial judge recognized that the acts of the four complainants were “qualitatively different” than those of the ten both in the nature of the conduct and the location and timing of some of the more serious acts. The trial judge did not find that this detracted from their probative value in relation to the ten complainants. He said the following:
While these characteristics may appear distinctive, I conclude they are not really so (or only superficially) when examined in the broader context of how they evolved and the reaction of the individual complainants. The four all share the majority of the connections and characteristics found in the ten. Their involvements started in the same fashion, in the context of school and the teacher/student relationship, at about the same ages and grade levels, and with the same initial qualitative characteristics. However, their distinctive features are more the result of staged progression and victim susceptibility than any real qualitative difference. For a variety of reasons, some complainants were more vulnerable than others. One must make allowance for how the individual complainants reacted in each instance.
[18] The trial judge found an explanation for the fact that in only some of the cases the acts progressed beyond fondling and touching:
Again, although the four complainants alleged full sexual intercourse and fellatio, it seemed more a matter of individual susceptibility, circumstance and the resulting progression of events when considered in the context of all fourteen complainants. Girls who reacted strongly enough early on didn’t suffer further abuse. A number of the ten, as discussed, alleged a considerable number of occurrences very similar in nature and development to those complained of by the four.
[19] The trial judge concluded his analysis of the probative value of the evidence as follows:
In the end, I have difficulty accepting the sharpness or consequence of the distinctions the defence has advanced. While it is true that some complainants allege more frequent acts of a more intrusive nature than some others, that was more a function of susceptibility, individual reaction and the stage to which the acts were thus able to progress along an otherwise common continuum. Individual vulnerability, personal reaction and progression determined the ultimate nature and extent of the sexual intrusion, and probably also its duration and frequency – if believed. Other variables may include opportunity and the perpetrator’s tastes and inclinations, although those factors are difficult to measure from the evidence provided at this stage of the proceedings. In any event, to distinguish on the basis of whether a complainant alleged full sexual intercourse, fellatio or cunnilingus is artificial, “excessively mechanical”, and “distorting” (R. v. Shearing, supra. at page 248), as was the case in R. v. Litchfield (1993), 86 C.C.C. (3d) 385 where a trial court was over-ruled on severing counts according to the type of sexual activity alleged.
I therefore conclude that the proposed evidence is highly probative and capable of assisting a jury to assess issue of actus reus and the credibility of the accused’s present simple but broad denial. For the reasons stated, the proposed evidence is sufficiently cogent and strong to limit the probability of co-incidence.
[20] The trial judge then turned to the prejudicial effect of admitting the evidence. The trial judge recognized that the “more intrusive sexual interference” alleged in respect of the four complainants would be discreditable and potentially prejudicial. He discounted the prejudice because the evidence was “not presented solely or even principally to cause prejudice or to lead the jury to the forbidden reasoning that ‘a person like that’ must have committed the other offences”. He concluded that “it is mainly a question of degree in the circumstances of this case”. The core of his reasoning on this aspect of prejudice can be found in these passages:
A male teacher who (if it is believed), by various forms of pretext, repeatedly and aggressively kissed, fondled breasts or genital areas (over or under clothing), hugged, or pressed his pelvic area against a preteen female student with whose safety and education he was entrusted, will surely face great personal discredit. The effect is compounded if it is believed to have happened with ten such female students (let alone 14), perhaps dozens of times in total over a period of 12 of 20 years. The potential to inflame and prejudice is already there. By adding allegations of the same kinds of acts occurring in the same manner in respect of four more complainants, together with possibly more intrusive sexual acts, adds only in degree – not kind. Instructions about the proper use of similar fact evidence on the counts against the ten would be required anyway. The same instructions will be required for fourteen, including in respect of the alleged more intrusive acts. Moral prejudice is a very real concern, but the risk must be balanced against probity and may only be tolerated where probative values are sufficiently and exceptionally high. [Emphasis added.]
[21] The trial judge then weighed the probative value against the prejudicial effect and found that the probative value of the evidence was very high. He was confident that the prejudicial effect could be ameliorated by appropriate jury instructions:
In the present case, the probative value of the proposed evidence is very high. I conclude that it reaches, or very nearly reaches, the highest point on the spectrum of cogency and probity. To be sure, it has great potential to discredit the accused and to blacken his character. However, that does not prevent its admission where there is a high degree of cogency and probity, as here. While there are significant risks of prejudice through propensity reasoning, I am convinced that Canadian juries ultimately want to be fair and to do the right thing. In my experience, they are able to understand the paths and pitfalls to unfairness and maintain a correct course. This may be adequately addressed through careful instructions at the beginning of the trial (if necessary), mid-trial and in final instructions. The dangers of the prohibited propensity reasoning and its application to the proposed similar act evidence may thus be repeatedly addressed and ameliorated. This would have to be done in any event, whether in respect of the two sets of counts proposed by the defence, or as the indictment now stands.
[22] Having concluded that the evidence on each of the counts was admissible in respect of the other counts, the trial judge turned to the issue of severance. None of the factors the court will consider in a severance application weighed in favour of severance. Moreover, the trial judge took into account that if there was severance and the trial of the ten complainants proceeded first, in all likelihood they would be required to testify twice. They would have to testify at the trial of their counts and then as similar fact witnesses on the trial of the four complainants. He was of the view that, “There would be a significant emotional price to be paid by the ten complainants if severance was granted, and the trial of the four would not necessarily be shortened.” The trial judge therefore dismissed the application for severance.
(iii) Discussion
(a) Introduction
[23] Whether to grant severance of counts is a discretionary decision and an appellate court must give that decision considerable deference. This court cannot set aside that decision unless it is determined that the trial judge “acted unjudicially or that the ruling resulted in an injustice”. See R. v. Litchfield (1993), 86 C.C.C. (3d) 97 (S.C.C.) at 114. In this case, the trial judge’s ruling on severance hinged on his decision respecting similar fact evidence. If he erred in his similar fact ruling, that ruling tainted his decision on severance. Mr. Siebenmorgen fairly conceded that the severance ruling could not stand if the trial judge’s ruling on similar fact evidence was in error. It therefore becomes necessary to consider the propriety of the similar fact ruling.
[24] The trial judge’s decision on the admissibility of similar fact evidence is also entitled to substantial deference. Nevertheless, a “trial judge has no discretion to admit similar fact evidence whose prejudicial effect outweighs its probative value”. R. v. Handy at para. 153.
(b) Admissibility of the ten complainants on the trial of the four complainants
[25] In my view, the evidence of the ten complainants was properly admissible on the trial of the four complainants. The primary concern with the admissibility of similar fact evidence in this case was with its prejudicial effect. I will, however, briefly deal with the probative value of the evidence of the ten complainants.
[26] The trial judge identified the issues in question for which the similar fact evidence was led as proof of the actus reus, to support the credibility of the complainants, and undermine the appellant’s denials. More precisely, it seems to me that the evidence of the ten complainants was adduced to show that the appellant in “closely comparable circumstances” [R. v. Handy at para. 120] set about to groom adolescent female students to submit to his sexual advances. If so, the evidence would assist in proving that the acts occurred as described by the complainants thus establishing the actus reus, bolstering the complainants’ credibility, and undermining the appellant’s denials.
[27] The question then was whether the evidence possessed sufficient connecting factors that its probative value on these issues outweighed its prejudicial effect. In Handy, Binnie J. identified a number of factors that the court could look to in measuring the probative value of similar fact evidence. I do not need to fully review all of these factors. The trial judge dealt with them at some length and I agree with his analysis. I will only mention a few. Most compelling is the timing of the acts and the number of incidents. The fact that the appellant engaged in some form of sexual contact with one or more of his female students over a thirteen-year period provides a strong nexus. There is one significant break between 1977 and 1983, which is a factor telling against probative value.
[28] The sheer number of complaints is an important connecting factor. We have here fourteen young female students all telling a similar story about their teacher. Absent collusion or some other form of tainting, the possibility that all of these students would be mistaken or have misinterpreted innocent conduct on the appellant’s part seems remote. Of course, the strength of this inference depends on the extent to which the acts are similar in detail. All of the incidents demonstrate considerable similarity in detail: the age of the complainant when the sexual advances began; initial groping of the breasts when the appellant was able to isolate the targeted student from the rest of the class by some pretext; steady progression into more intrusive acts with those students who put up little or no resistance; and in some cases use of his position in the Sea Cadets to extend the contact outside the school setting.
[29] There are some dissimilarities in that in only some of the complainants’ cases did the acts progress beyond the initial touching and groping. The Crown says that this is explained by the fact that where the appellant met some resistance he would abandon the attempt. It seems to me that the trial judge could properly find that this was a credible explanation and that accordingly, the fact that the not all complainants told a story of more intrusive acts did not seriously detract from the probative value of the evidence of the ten on the trial of the four complainants.
[30] The circumstances surrounding the similar acts also provided important connecting factors. All of the similar acts share the same context, the popular teacher isolating a twelve or thirteen-year old girl from her classmates and initiating brief sexual contact, with increasingly intrusive acts where the child seemed to be compliant. While in four of the cases the sexual acts progressed to full intercourse, in several of the ten complainants the acts showed a progression illustrative of grooming attempts. These attempts fell short of full intercourse often because of some fortuitous event as in the case of D.K. who alleged that she would probably have been raped at the appellant’s home had not the doorbell or telephone rung. A similar event happened with L.Y. With respect to the last complainant, L.L., the incidents became increasingly more intrusive but she was able to find ways to get away from the appellant before they reached the stage of intercourse.
[31] In my view, these factors and those mentioned by the trial judge demonstrate that the evidence of the ten complainants had a very high probative value with respect to the four complainants. This evidence does not show a mere general disposition to engage in illicit sexual activity but a specific and unusual propensity to engage in sexual activity with young female students in a specific context. The evidence showed that the appellant embarked on a distinctive course of conduct to groom children to whom he stood in a special position of trust. He was able to take advantage of his position as teacher to isolate young naive students and make less intrusive sexual advances as a prelude to more serious activity.
[32] The prejudicial effect of the similar facts was high. The similar facts carried a significant moral prejudice. These were sexual acts by a teacher against his students on a repeated basis. The acts described by the ten complainants were not, however, to use a phrase from R. v. Handy at para. 140, “more reprehensible” than the four. There is some reasoning prejudice from the potential confusion and distraction of the jury as they attempt to resolve the facts relating to fourteen different complainants. However, the underlying unity helps to mitigate this type of prejudice. All the acts begin in the same setting and involve similar types of conduct. Any multi-count indictment will involve some risk of confusion of issues but it seems to me that the risk in this case is relatively minimal.
[33] Balancing the prejudicial effect against the probative value favours the admission of the evidence of the ten complainants on the trial of the four complainants. The connecting factors amongst all fourteen complainants is so strong as to outweigh the additional prejudice from the evidence of the ten complainants.
(c) Admissibility of the four complainants on the trial of the ten complainants
[34] I am, however, of the view that the evidence of the four complainants was not admissible on the trial of the ten. The probative value of the four complainants on the trial of the ten is of much the same strength as that of the ten on the four complainants. The one important dissimilarity is the fact that in the cases of the ten complainants the sexual activity did not progress to the same level of seriousness as it did with the four. On the other hand, the evidence of the four complainants would be of assistance to the jury in properly characterizing the acts alleged by the ten complainants. See R. v. Litchfield (1993), 86 C.C.C. (3d) 97 (S.C.C.) at 116-17. This evidence showed that these initial encounters were not innocent or accidental touchings or the result of normal interaction between teacher and student in sometimes-close quarters. This evidence increased the likelihood that the ten complainants were telling the truth when they characterized the touchings as unwanted sexual advances.
[35] The greater concern is with the prejudicial effect of the evidence of the four complainants. The trial judge found that the prejudicial effect was not much greater because “possibly more intrusive sexual acts, adds only in degree—not kind”. At a high level of generality this is true. All the acts involved female students beginning when they were 12 to 13 years of age. All of the acts involved some form of touching for a sexual purpose. All of the acts carried a high degree of moral repugnance in that the allegations concerned breach of trust by a teacher of a most serious kind. The breach of trust was significant whether the touching was groping of a sexual nature or full sexual intercourse.
[36] However, it is necessary to look beyond the general nature of the acts. The acts involving the four complainants were “considerably more serious and revolting” (R. v. D. (L.E.) (1989), 50 C.C.C. (3d) 142 (S.C.C.) at 159). These complainants told of sexual intercourse, fellatio and use of objects. These were most serious allegations and were of an entirely different magnitude than the groping described by most of the ten complainants. The trial judge erred in principle in characterizing these distinctions as ones merely of degree. These acts would arouse “sentiments of revulsion and condemnation” that could prevent the fair trial with respect to the ten complainants. See R. v. D. (L.E.) at p. 162.
[37] Since the evidence of the four complainants was not admissible against the appellant in respect of the ten complainants, the trial judge should have severed those counts. His error in failing to do so, however, only affects the convictions relating to the nine complainants (it will be recalled that the jury acquitted in respect of one of the ten complainants). Since the evidence of the ten complainants was admissible on the trial of the four, the convictions in relation to those complainants can stand, subject to resolution of the other grounds of appeal.
2. The charge to the jury on similar fact evidence
[38] The appellant submits that the charge to the jury with respect to similar fact evidence was incomplete, confusing and inadequate. The charge to the jury contained the following elements.
(1) The trial judge instructed the jury to be careful “not to jump to the conclusion” that if one complainant was telling the truth, the others must be.
(2) The jury should also not jump to the conclusion that because the complainants allege similar conduct, they all must have occurred, if any one of them is proved. The Crown had to prove each charge separately and independently of the others.
(3) The jury might find that there was a pattern of similar behaviour that confirmed each complainant’s testimony that the offences took place.
(4) The jury should bear in mind the relationship between the appellant and each of the complainants and the circumstances of each of the situations, including the way that the various complainants came forward.
(5) The trial judge exhaustively reviewed the similarities and dissimilarities.
(6) The trial judge instructed the jury that the real issue was whether the offences alleged by each complainant actually took place.
[39] The trial judge then gave the following direction:
If you conclude that Gordon Thomas did other similar things in the past, you must not use the evidence of that conduct to conclude that Mr. Thomas is a person of bad character who likely committed the offences charged because of that bad character.
If you conclude that Gordon Thomas did other similar things in the past, you must not punish Mr. Thomas for that conduct by finding him guilty of the offences charged because he did those other things.
Whether or not you use the evidence of any complainant to help you decide whether any other complaint took place, or whether any other complainant is telling the truth, you must not find Gordon Thomas guilty of any offence unless Crown counsel has satisfied you beyond a reasonable doubt of all of the essential elements of that offence.
[40] The trial judge then discussed the evidence of C.A. and in effect directed the jury to acquit on that count and not to use that evidence in respect of the other counts because it was so vague and dissimilar to the other allegations. Finally, the trial judge concluded with a lengthy discussion of the problem of concoction or collaboration and directed the jury that they should not use the evidence of a concocting or collaborating complainant to decide whether a similar allegation by another complainant was true or to support the credibility of another complainant. In the course of this discussion, the trial judge referred to the police investigation and the evidence of Laurie Breathat.
[41] There was no objection at trial to these instructions. Nevertheless, the appellant submits that the charge does not comply with mandatory instructions set out in R. v. Arp and R. v. B. (C.) (2003), 171 C.C.C. (3d) 159 (Ont. C.A.). He submits that the following mandatory instructions were omitted from the charge to the jury:
(1) The trial judge must instruct the jury that if it accepts the evidence of the similar acts, it is relevant for the limited purpose for which it is admitted. (R. v. Arp at para. 80)
(2) The jury must be warned that they are not to use the evidence on one count to infer that the accused is a person whose character or disposition is such that he or she is likely to have committed the offence or offences charged in the other count or counts. (R. v. Arp at para. 80)
(3) The jury may not use the similar fact evidence to reason from general disposition or character to guilt. (R. v. B. (C.) at para. 35)
(4) The jury may not use the similar fact evidence to punish the accused for past misconduct by finding the accused guilty of the offence or offences charged. (R. v. B. (C.) at para. 35)
(5) The jury could only use evidence on one count as evidence on the others if they were satisfied on the balance of probabilities that the alleged similar acts occurred. (R. v. B. (C.) at para. 29)
[42] To determine whether the charge to the jury in this case was deficient it is necessary to return to basic principles concerning the admission and use of similar fact evidence. The suggested instructions from Arp and R. v. B. (C.) are intended to capture the following concepts:
(1) Similar fact evidence is admissible if that evidence identifies a specific propensity on the part of the accused. It is not admissible if it merely identifies a general disposition such as dishonesty or sexual immorality.
(2) General bad disposition is neither a crime nor sufficiently distinctive to assist the jury in determining whether the accused committed this offence in these particular circumstances.
(3) By correctly identifying the permitted use of the evidence, the trial judge will assist the jury in using the similar fact evidence for the proper purpose.
(4) Similar fact evidence has the potential to undermine the presumption of innocence and the burden of proof on the Crown if the jury, unsure whether the accused committed the offences charged, convicts the accused to punish him or her for the prior unpunished misconduct, or because he is a person of bad character.
[43] If the charge to the jury sufficiently guides the jury away from prohibited reasoning towards the proper use of the evidence, the particular wording is not important. In my view, the charge to the jury was sufficient to accomplish this task. First, the trial judge was careful at the beginning and at the end of the similar fact instruction to remind the jury of the burden on the Crown to prove the case beyond a reasonable doubt. Second, the trial judge did identify the permitted use of the evidence. He suggested that the jury might find that there was a pattern of similar behaviour that confirmed each complainant’s testimony that the offences took place. This was sufficient. A more elaborate instruction could have included the following:
(1) It would be open to the jury to find that the conduct of the appellant as related by the complainants showed a distinctive propensity to groom sexually naive young students for increasingly more intrusive sexual acts by the appellant.
(2) In view of the large number of incidents by apparently independent students over many years the jury could find that it defied coincidence that all of these witnesses were mistaken or not telling the truth, absent collusion or improper conduct by the police investigator such as that related by Laurie Breathat.
[44] This more elaborate instruction would not necessarily have benefited the appellant. In any event, what the jury was told, together with the extensive reference to the similarities and dissimilarities, was sufficient.
[45] Third, the trial judge instructed the jury that if they found he did other similar things in the past they must not conclude that he was a person of bad character who likely committed the offences charged because of the bad character. Fourth, the trial judge instructed the jury not to punish the appellant for other things he did in the past by finding him guilty of these offences. These instructions are somewhat confusing, but the confusion is a function of the difficulty inherent in warning the jury against the prohibited use of similar fact evidence where the only similar facts are those alleged in the charged counts. Counsel for the appellant submits that the jury would understand these instructions as relating only to uncharged conduct and that the instructions did not comply with the mandatory requirements of Arp and B. (C.).
[46] There was evidence from the investigating officer that many of the appellant’s students had been contacted but only these fourteen complainants had come forward. This evidence largely came out through cross-examination as an attempt to cast aspersions on the police investigation. The evidence, however, was so vague that it hardly seems likely that the jury would speculate that there were other potential victims who for what ever reason did not want to come to court and then based on that speculation punish the appellant for those uncharged acts. Therefore, the jury would have understood the impugned instructions as the trial judge intended them, as a warning against reasoning merely from general disposition or bad character.
[47] Where, as here, the only similar fact evidence adduced is in the charged counts, the crucial instruction is that the jury not find the accused guilty (i.e. punish him) merely because they find he committed one or more of the charged counts. The charge taken as a whole made this clear. The jury was instructed not to jump to the conclusion that just because one complainant was telling the truth, the others were or that because the complainants alleged similar conduct they all must have occurred. And, as I have said, the jury was repeatedly reminded of the requirement that the Crown prove each charge separately.
[48] The trial judge did not in express terms tell the jury that before they could use evidence of any counts as evidence on the other counts they must find on a balance of probabilities that these alleged similar acts occurred. The appellant submits that this instruction is mandated by R. v. B. (C.). In that case, this court said the following at para. 29:
In addition to the problem identified, we note that nowhere in the instruction is the jury told that they must first be satisfied that the similar acts occurred before any use can be made of them. In our view, that too is a serious deficiency.
[49] I would point out two things about this passage. First, there is no suggestion that the trial judge must expressly refer to the standard of proof on a balance of probabilities. In Arp, Cory J. likewise did not suggest that the trial judge needed to refer to a balance of probabilities. He suggested only use of the term “likely”. See R. v. Arp at para. 80. Second, in R. v. B. (C.), the Crown led evidence of other uncharged acts, namely testimony from the accused’s other two daughters that they too were sexually assaulted. In such a case it is essential that the jury be instructed that they must be satisfied these other uncharged acts occurred.
[50] Where, as in this case, the similar facts are other charged counts the general instructions concerning the burden of proof together with the other directions given by the trial judge in this case sufficiently alerted the jury to the need to find that the acts occurred. For example, the trial judge instructed the jury that the real issue was whether any of the offences alleged actually took place, that the jury not jump to the conclusion that just because one complainant was telling the truth the others must be and that if the jury found a pattern of similar behaviour they could use that evidence to confirm that the offences took place. These instructions were sufficient to draw to the jury’s attention the need to find that the alleged similar acts took place.
[51] To conclude, while some of the language used by the trial judge was a little awkward, as I have said, this was a function of the difficulty of attempting to comply with the Arp and B. (C.) dictates in a case where the only similar fact evidence comes from the charged counts.
[52] The appellant raised a further concern about the charge to the jury, concerning the alleged failure to adequately relate the evidence of Laurie Breathat to the similar fact issues. As part of the similar fact instructions, the trial judge directed the jury that if they had a reasonable doubt that any of the complaints was concocted or the result of collaboration they were not to use that evidence in determining the credibility of any other complainant. The trial judge then reviewed the evidence concerning the police investigation. He expressly referred to Ms. Breathat by name and instructed the jury to take into account any communication by the investigating officer to the complainants. Later in the charge, the trial judge reviewed Ms. Breathat’s evidence at length and he again referred to her evidence in setting out the defence position. The trial judge might have instructed the jury that the value of the similar fact evidence would also be diminished if the jury found the police investigation contaminated the recollections of the other complainants. However, in my view the charge was adequate in the circumstances, especially given the lengthy discussion of the central role played by the investigating officer as part of the defence position. In reviewing that part of the defence position the trial judge told the jury that the defence alleged that the officer was able to get the complainants to come up with stories that the officer wanted to hear by providing them with information and asking them leading questions.
[53] In my view, the charge to the jury was sufficient and I would therefore not give effect to this ground of appeal.
[54] I hesitate to add to the long list of cases that attempt to offer some assistance on charging a jury in similar fact cases. However, since there may be a new trial on the remaining nine complainants I would suggest that the charge to the jury in some form contain the following cautions.
(1) The jury should be instructed on the proper use of the evidence and that the evidence can be used only for this specific purpose. In this case, if the jury accepts the evidence of the complainants it may find that there is a distinctive pattern of conduct by the appellant of isolating 12 or 13 year old female students in class on some innocent pretext in very similar circumstances in order to engage in very similar sexual activity with them; that if the student appeared compliant the activity became more intrusive. If the jury finds this distinctive pattern they might find it defies coincidence that students were lying or mistaken about what happened to them absent collusion or some other explanation such as tainting through the police investigation. The evidence accepted by the jury might therefore assist the jury in determining whether any of the complainants was credible and whether the acts they alleged really occurred.
(2) Merely because the jury finds one or more of the complainants was telling the truth does not mean that the others were telling the truth. They can use the evidence of one or more complainants in assessing the truthfulness of the other complainants only if there is this distinctive pattern of conduct that suggests that they were describing similar events. [2]
(3) The judge should review the similarities and dissimilarities so that the jury can make the determination of whether the evidence of the various complainants displayed this distinctive pattern. If the jury finds no such distinctive pattern they should deal with each complainant individually without reference to the testimony of any of the other complainants. They can make a finding of distinctive pattern only based on the evidence of the acts that they are satisfied have occurred. The judge should also review any evidence of collaboration, collusion or tainting. If the jury finds that a witness’s evidence was the result of collusion, collaboration or tainting and was not an accurate statement of what happened to her, the case of each such complainant must be considered without reference to any other complainant and her evidence must not be used to support the prosecution’s case in respect of any other complainant. The judge would also want the jury to pay particular attention to the evidence of D.M. and D.K. who had discussed the incidents with each other.
(4) Even if the jury finds this similar pattern of conduct they still have to make a finding in respect of each complainant that the acts occurred and that the Crown has proved that count beyond a reasonable doubt. No matter how tempting the prospect of reasoning simply from the fact that if one or more complainant was telling the truth the other must be, to be true to their oaths, the jurors must examine the evidence on each count to determine whether the Crown has proved that particular count beyond a reasonable doubt. [3] The jury could be reminded that people do not always act in character and that even if they find that the appellant committed one or more of the acts alleged, it does not mean he committed all of the acts alleged by all of the complainants.
(5) The jury should be told that if they find nothing more than that the appellant is a bad person or of bad character, or the sort of person who could commit this type of offence, each complainant’s evidence must be considered separately without reference to the evidence of the other complainants. Under our system, it is not an offence to be a bad person no matter how revolting or distasteful the character and no one may be convicted or punished for simply being a bad person or having a bad character. It is not permitted in our system to reason that because a person is of bad character or the sort of person who commits sexual offences he must be guilty of the offences charged.
(6) If evidence comes out suggesting that there may be other possible complainants who did not come forward, the jury must not speculate on what their evidence might have been and cannot find the appellant guilty of any of the charged counts because they think he may have done other bad acts in the past.
3. Consent
[55] The appellant submits that the trial judge misdirected the jury on the issue of consent. In view of my conclusion that only the convictions on the four complainants can stand, I need only consider this ground of appeal in relation to those complainants. The appellant never alleged that any of these complainants consented to the sexual activity. He denied that the activity ever took place. In my view, consent was never a live issue in this trial. The complainants all testified that they did not consent to the sexual activity.
[56] Counsel for the appellant correctly points out that the trial judge erred in directing the jury that on the charge of gross indecency, “consent is not an issue” and that even if a complainant consented “it would be irrelevant”. This was an error. See R. v. St. Pierre (1974), 17 C.C.C. (2d) 489 (Ont. C.A.). Whether or not the complainant consented is a factor to be considered on a charge of gross indecency. In my view, this error had no impact on the verdict. Given the age of the complainants, their relationships with the appellant and the context in which the events allegedly occurred, the jury would inevitably find that the acts described by the complainants, acts of oral sex and insertion of hockey sticks and broom handles by a teacher on his youthful students amounted to gross indecency.
[57] The appellant also submits that the trial judge misdirected the jury on the consent element of the rape charges, including the requirement that the appellant knew the complainants were not consenting. The trial judge discussed the issue of consent and rape at length and, given the real issues in the case, the charge was sufficient. I agree with Crown counsel that there was no air of reality to the defence of honest belief in consent. I would not give effect to this ground of appeal.
The Sentence Appeal
[58] As indicated above, the appellant alleges the following errors in respect of sentence:
(1) The trial judge erred in imposing a sentence of twelve years imprisonment “on all counts”, which exceeded the maximum penalty for several of the offences.
(2) The trial judge erred in making an order for parole ineligibility.
(3) The global sentence of twelve years was harsh and excessive.
[59] I agree with the appellant in respect of the first error. The trial judge imposed a sentence of imprisonment “of 12 years, in total, on all counts”. This was an error in two respects. First, a distinct sentence should have been imposed in respect of each count. Second, if the trial judge intended to impose concurrent twelve-year sentences on each count, he had no power to do so since this exceeded the maximum penalty for some of the offences, such as indecent assault. In any event, in view of my conclusion that the conviction appeal in respect of the nine complainants must be allowed, it is necessary for this court to determine a fit sentence in respect of the remaining four complainants. In my view, a substantial penitentiary sentence was required in respect of these complainants. Although the appellant had no prior criminal record, his moral culpability was substantial. When these offences began, the appellant was a young, dynamic and popular teacher. He took advantage of his status in the school. He was an educated man who used his position of trust to prey upon his young sexually naive students over a large number of years. The offences were carefully planned. The acts culminating in oral sex, sexual intercourse and insertion of objects into the vaginas of two of the complainants were most serious. In his reasons for sentence, the trial judge reviewed at greater length the enormity of the appellant’s crimes and I need not repeat his comments.
[60] In respect of each of the four complainants, the appellant was convicted of rape, indecent assault and gross indecency. Taking into account the principles of totality, I would impose sentence as follows:
Count #5, K.M. rape: two years imprisonment
Count #6, K.M. indecent assault: six months concurrent
Count #7, K.M. gross indecency: six months concurrent
Count #9, S.M. rape: two years imprisonment consecutive
Count #10, S.M. indecent assault: six months concurrent
Count #11, S.M. gross indecency: six months concurrent
Count #15, S.C. rape: two years imprisonment consecutive
Count #16, S.C. indecent assault: six months concurrent
Count #17, S.C. gross indecency: six months consecutive
Count #19, H.M. rape: two years imprisonment consecutive
Count #20, H.M. indecent assault: six months concurrent
Count #21, H.M. gross indecency: six months consecutive
[61] I would therefore impose a total sentence of nine years imprisonment.
[62] Crown counsel concedes that the trial judge erred in the manner in which he dealt with the parole ineligibility order. The trial judge failed to provide counsel for the appellant the opportunity to address the issue and did not provide reasons for the order. Mr. Siebenmorgen, however, asks this court to consider the matter afresh and impose a parole ineligibility order. I have not been persuaded that such an order is necessary or appropriate in this case. The appellant, a sixty-five year old first offender with some health problems, faces a substantial penitentiary sentence. This is a proper case to leave to the parole authorities to determine when the appellant should be released.
DISPOSITION
[63] Accordingly, I would allow the appeal in part and order a new trial on counts 1, 2, 3, 4, 8, 12, 14, 18 and 22. I would grant leave to appeal sentence, allow the appeal from sentence and reduce the sentence to a total of nine years imprisonment, as set out in para. 60.
Signed: “Marc Rosenberg J.A.”
“I agree E.E. Gillese J.A.”
“I agree Robert P. Armstrong J.A.”
Released: “MR” October 13, 2004
[1] When the trial judge dealt with the application the indictment included four additional counts of unlawful intercourse. Those counts were dropped from the indictment by the time of the trial.
[2] The trial judge used the wording from the standard jury charge to convey this concept: “Be careful not to jump to the conclusion that if one complainant is telling the truth, the others must be telling the truth as well.”
[3] The trial judge used the language from the standard charge to convey this concept: “Nor should you jump to the conclusion that because the complainants allege similar conduct, they all must have occurred, if any one of them is proved. It’s up to the Crown to prove each charge separately and independently of the others.”