R. v. Gilbert (S.), 2015 ONCA 927

• Judge: Laskin, MacFarland and Rouleau, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: May 25, 2015
• Jurisdiction: Ontario
• Citations: 2015 ONCA 927;(2015), 343 O.A.C. 199 (CA)

R. v. Gilbert (S.) (2015), 343 O.A.C. 199 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. DE.048

Her Majesty the Queen (respondent) v. Stephane Gilbert (appellant)

(C59443; 2015 ONCA 927)

Indexed As: R. v. Gilbert (S.)

Ontario Court of Appeal

Laskin, MacFarland and Rouleau, JJ.A.

December 30, 2015.

Summary:

The accused appealed his conviction for the sexual exploitation of the complainant.

The Ontario Court of Appeal dismissed the appeal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by an order restricting publication under s. 486.4(1), s. 486.4(2), s. 486.4(2.1), s. 486.4(2.2), s. 486.4(3), s. 486.4(4), 486.6(1) or 486.6(2) of the Criminal Code and Maritime Law Book's editorial policy.

Criminal Law - Topic 4352.1

Procedure - Charge or directions - Jury or judge alone - Directions regarding similar fact evidence - The accused teacher appealed his conviction for the sexual exploitation of a student (N.M.), asserting that the trial judge erred in admitting the similar act evidence of another student (M.P.) because, inter alia, it was based on a misapprehension of the evidence - He asserted that the judge misapprehended the evidence in two ways - First, the judge said that in both cases, the sexual aspect of his relationship with N.M. and M.P. did not progress beyond kissing, which was itself quite unusual - The accused asserted that, on N.M.'s evidence, the sexual aspect of the relationship did progress beyond kissing to sexual intercourse, while M.P. said that he refused to have sexual intercourse with her - Second, the judge said that in both cases, the kissing and hugging continued as long as N.M. and M.P. were in proximity and available - The accused asserted that, on N.M.'s evidence, she continued to have contact with him after she graduated and even had sex with him two years later, while he permanently ended his relationship with M.P. before the end of the school year - The Ontario Court of Appeal held that the trial judge did not misapprehend either piece of evidence - On the first, the judge understood that while each girl was a student, her relationship with the accused never went beyond kissing - On the second, the judge correctly focussed on the proximity and availability of each student - The kissing with N.M. ended when the accused moved away - It did eventually resume, but only after N.M. was in university and able and willing to visit him in North Bay - The kissing with M.P. ended when the accused was alerted about their relationship by an anonymous email and by another teacher - After that, M.P. was, in effect, no longer "available" - See paragraphs 59 to 61.

Criminal Law - Topic 4352.1

Procedure - Charge or directions - Jury or judge alone - Directions regarding similar fact evidence - The accused teacher appealed his conviction for the sexual exploitation of a student (N.M.), asserting that the trial judge should not have admitted similar act evidence of another student (M.P.) because her testimony was so different from N.M.'s allegations - The accused asserted that the only material similarity between N.M.'s evidence and M.P.'s evidence was that both witnesses were his students - He asserted that, in a case where the acts complained of otherwise differed, a student-teacher relationship by itself did not establish sufficient similarity to justify admission of similar act evidence - The Ontario Court of Appeal rejected the accused's argument - The similar circumstances in which the kissing of M.P. and the kissing of N.M. occurred showed the required "persuasive degree of connection" and strongly supported the trial judge's ruling - The judge reasonably found that the differences relied on by the accused did not undermine the "significant probative value" of the similar act evidence in the light of the "relatively high degree of connectedness between" between N.M.'s evidence on the charged offence and the proposed similar act evidence - The assessment of whether similar act evidence should be admitted was qualitative not quantitative - The differences or dissimilarities noted by the accused did not justify interference with the judge's ruling - See paragraphs 62 to 70.

Criminal Law - Topic 4352.1

Procedure - Charge or directions - Jury or judge alone - Directions regarding similar fact evidence - The accused teacher appealed his conviction for the sexual exploitation of a student (N.M.), asserting that the trial judge admitted the similar act evidence of M.P. for the permissible purpose of assessing whether the kissing alleged by N.M. occurred, but he used it for the impermissible purpose of impugning the accused's character - The accused relied on the following passage in the judge's reasons: "The similar fact evidence demonstrates that three to four years previously the accused had a character trait or propensity to, on approximately 40 occasions, engage in sexual contact with a student when the student offered it or asked for it." - The Ontario Court of Appeal rejected the argument - The trial judge cautioned himself that he could not use M.P.'s evidence as evidence of the accused's bad character - He properly limited his use of the similar act evidence to showing that the accused had a "character trait" or specific propensity, to "engage in sexual contact with a student when the student offered it or asked for it" - That character trait, which the judge found had not changed, was relevant to his determination that the kissing had occurred - See paragraphs 71 to 74.

Criminal Law - Topic 4377

Procedure - Charge or directions - Jury or judge alone - Directions regarding credibility of witnesses - The accused teacher appealed his conviction for the sexual exploitation of a student (N.M.), asserting that the trial judge applied a harsher standard of scrutiny to his evidence than to N.M.'s evidence - He pointed to the following inconsistencies or contradictions, which he asserted the judge minimized: N.M. contradicted herself on where in the park the second kissing incident occurred; she contradicted herself on whether she had French-kissed with the accused in the park; she contradicted herself on whether touching of the breast, buttocks, or genital area occurred in the park; and she contradicted herself on whether her clothes came off when she first visited the accused in North Bay - The Ontario Court of Appeal rejected the argument - The trial judge addressed each of the contradictions and found that they were accounted for by the passage of time or N.M.'s inability to focus on details during her police interview - In the judge's view, the contradictions were relatively minor and did not affect his overall assessment of N.M. as a "responsible, conscientious witness endeavouring to the tell the truth to the best of her recollection" - That the judge treated N.M.'s contradictions in this manner did not support the accused's argument - See paragraphs 50 to 52.

Criminal Law - Topic 4379

Procedure - Charge or directions - Jury or judge alone - Directions re evidence of character or credibility of accused - [See third Criminal Law - Topic 4352.1 ].

Criminal Law - Topic 4379

Procedure - Charge or directions - Jury or judge alone - Directions re evidence of character or credibility of accused - The accused teacher appealed his conviction for the sexual exploitation of a student (N.M.), asserting that the trial judge applied a harsher standard of scrutiny to his evidence than to N.M.'s evidence - On more than one occasion the judge noted that the accused "tried to put himself in a much more favourable light" or that he "tailored his evidence ... to put himself in the most favourable light" - The accused asserted that the judge's observations were not a proper basis to reject an accused's evidence because all accused would try to cast themselves in a more favourable light than would their accusers - The Ontario Court of Appeal stated that the trial judge's general observation that the accused was trying to put himself in a favourable light was fair - The judge did not reject the accused's testimony simply because he denied the allegations against him - He rejected the accused's evidence in part because the accused tailored his denials to make him seem more respectful of the appropriate boundaries between teachers and their students - The evidence from the Crown's witnesses, which the judge accepted, directly contradicted the accused's testimony - It was the tailoring of his evidence, not simply his denials, that raised concerns about his credibility - See paragraphs 43 to 45.

Criminal Law - Topic 4399.9

Procedure - Charge or directions - Jury or judge alone - Directions re flight and other post-offence behaviour of accused - The accused teacher was charged with the sexual exploitation of a student (N.M.) respecting incidents that occurred in Gilbert, Ontario, in 2003 - The trial judge admitted N.M.'s post-offence conduct that she twice visited the accused in North Bay after she turned 18 - On the first visit, toward the end of 2004, she asserted that the two kissed but did not have sex - On the second visit in early 2005, she asserted that the two kissed and had sexual intercourse - The accused admitted that N.M. visited him in North Bay, but it was only once - He testified that she had been calling him often to talk about her depression and that he agreed to let her come and visit him - While there, she tried to kiss him - He kissed her for a few seconds before pulling back and telling her they had to stop - He denied having sex with her - The accused and N.M. agreed that after the North Bay visit, their contact petered out - In convicting the accused, the trial judge relied on N.M.'s post-conduct evidence, stating that her evidence that there were two visits and they followed the logical progression of a romantic relationship made more sense than the accused's evidence that, living in a one bedroom apartment, he invited N.M., who he knew to be troubled, to travel a long distance to stay with him for four days - The accused appealed, asserting that the judge's conclusions about the relevance of the evidence were speculative - He asserted that it made as much sense for an adult woman to visit a former teacher with whom she had a close but platonic friendship, as it did for a teacher to be in progressive romantic relationship with a former student - He asserted as those reasonable inferences were equivocal, the evidence had no probative value - The Ontario Court of Appeal held that the trial judge was justified in concluding that the post-offence conduct evidence had significant probative value - It had probative value because its absence would have left the court with an incomplete and therefore distorted narrative regarding the events leading to the report to the police and on the subject matter of whether there was any indication of animus - Also, the judge reasonably inferred from the post-offence conduct evidence that the accused and N.M. kissed when she was in high school and he was her teacher - That another reasonable inference was available did not require exclusion of the evidence - Post-offence conduct evidence, like other circumstantial evidence, was admissible if it was relevant and if its prejudicial effect, if any, did not outweigh its probative value - See paragraphs 75 to 83.

Criminal Law - Topic 4399.9

Procedure - Charge or directions - Jury or judge alone - Directions re flight and other post-offence behaviour of accused - The accused teacher appealed his conviction for the sexual exploitation of a student (N.M.), asserting that the trial judge should have excluded post-offence conduct evidence as it was highly prejudicial - The evidence consisted of N.M.'s testimony that she twice visited the accused in North Bay after she turned 18 - On the first visit toward the end of 2004, she asserted that the two kissed but did not have sex - On the second visit, in early 2005, she asserted that the two kissed and had sexual intercourse - The accused asserted that the evidence created a "trial-within-a-trial" on whether he and N.M. had sex, and it risked moral prejudice or prohibited bad character reasoning - The Ontario Court of Appeal rejected the accused's argument - The trial judge expressly rejected the trial-within-a-trial argument - He reasonably found that N.M.'s brief evidence about North Bay would not present "any real risk of distracting the focus from the matters in issue to a collateral issue." - The trial judge did not use the post-offence conduct evidence as evidence of the accused's bad character - Instead, he used the evidence to assess the accused's credibility, and, in particular, to reject his explanation that he had only platonic reasons for agreeing to let N.M. visit him in North Bay - The judge's use of the evidence for that purpose was proper - See paragraphs 84 to 87.

Criminal Law - Topic 4866

Appeals - Indictable offences - Grounds of appeal - Misapprehension of evidence - [See first Criminal Law - Topic 4352.1 ].

Criminal Law - Topic 4866

Appeals - Indictable offences - Grounds of appeal - Misapprehension of evidence - The accused teacher appealed his conviction for the sexual exploitation of a student, asserting that the trial judge misapprehended the evidence about the location of the second kissing incident - The accused asserted that the judge resolved the complainant's inconsistent testimony on a basis that the complaint herself did not suggest (that the kissing might have been in more than one place) - The Ontario Court of Appeal dismissed the appeal stating that "I do not view this difference between the complainant's explanation for the inconsistency and that of the trial judge as amounting to a misapprehension of the evidence. From the passage quoted above, the trial judge did not fully accept the complainant's explanation. Instead, he found that the inconsistency was 'accounted for by the passage of time which can cause the memory of an honest witness to fade and blur.' That finding was available to the trial judge. Perhaps more importantly, this inconsistency was so minor it could not have impacted the trial judge's credibility findings." - See paragraphs 21 to 23.

Criminal Law - Topic 4866

Appeals - Indictable offences - Grounds of appeal - Misapprehension of evidence - The accused teacher appealed his conviction for the sexual exploitation of a student (N.M.), asserting that the trial judge misapprehended the evidence in his similar act ruling by finding that another student (M.P.) had kissed the accused 40 times - The accused asserted that M.P. never said that she and the accused kissed 40 times, that she was never asked how many times they had kissed, and the judge never explained how he arrived at the number 40 - The accused asserted that the 40 incidents and the 10 incidents that he admitted to was central to the judge's finding that he was not credible - The Ontario Court of Appeal stated that 40 incidents was a reasonable figure in light of M.P.'s evidence that, between Easter and the last day of classes, they kissed almost every school day - Even if 40 incidents was inaccurate, the important point was that on M.P.'s evidence, which the judge accepted, the kissing occurred more frequently than what the accused was prepared to admit to - Although the judge should not have ascribed a specific number to the incidents, he did not misapprehend the substance or significance of the discrepancy between M.P.'s and the accused's accounts - See paragraphs 24 to 27.

Criminal Law - Topic 4866

Appeals - Indictable offences - Grounds of appeal - Misapprehension of evidence - The accused teacher appealed his conviction for the sexual exploitation of a student (N.M.) respecting incidents that occurred in Gilbert, Ontario, in 2003 - In ruling that N.M.'s visit to the accused in North Bay in late 2004 and early 2005 were relevant, the trial judge held that it was open to the trier of fact to consider whether the evidence was accurate, and if so, whether the accused's and N.M.'s continuing relationship arose in 2005 out of thin air or whether it more logical to regard it as a progression of the fact that the two had a pre-existing romantic relationship - The accused asserted that the judge misapprehended the evidence by saying that the continuing relations might have arisen "out of thin air" - Although he and N.M. disagreed on whether kissing took place in 2003, they both agreed a "continuing relationship" existed in 2005 - The Ontario Court of Appeal rejected the accused's argument - His real objection was to the inference available on the evidence, an inference that the trial judge ultimately drew and relied on - See paragraphs 28 to 30.

Criminal Law - Topic 5204.3

Evidence and witnesses - General - Admissibility - Evidence of disposition or propensity of accused - [See third Criminal Law - Topic 4352.1 and second Criminal Law - Topic 4399.9 ].

Criminal Law - Topic 5213

Evidence and witnesses - Admissibility and relevancy - Similar acts - When admissible - [See first and second Criminal Law - Topic 4352.1 ].

Criminal Law - Topic 5214.4

Evidence and witnesses - Admissibility and relevancy - Similar acts - To prove propensity - [See third Criminal Law - Topic 4352.1 ].

Criminal Law - Topic 5320.2

Evidence and witnesses - Inferences - From circumstantial evidence - [See first Criminal Law - Topic 4399.9 ].

Criminal Law - Topic 5404

Evidence and witnesses - Witnesses - Credibility - [See Criminal Law - Topic 4377 ].

Criminal Law - Topic 5449

Evidence and witnesses - Evidence respecting the accused - Character of accused (incl. discreditable conduct) - General - [See third Criminal Law - Topic 4352.1 and second Criminal Law - Topic 4399.9 ].

Evidence - Topic 1256

Relevant facts - Relevance and materiality - Similar acts - To prove criminal conduct - [See all Criminal Law - Topic 4352.1 ].

Cases Noticed:

R. v. Sinclair (T.), [2011] 3 S.C.R. 3; 418 N.R. 282; 268 Man.R.(2d) 225; 520 W.A.C. 225; 2011 SCC 40, refd to. [para. 15].

R. v. J.H., [2005] O.A.C. Uned. 3; 192 C.C.C.(3d) 480 (C.A.), refd to. [para. 39].

R. v. S.P. (2013), 313 O.A.C. 352; 2013 ONCA 787, refd to. [para. 41].

R. v. J.M. (2010), 258 O.A.C. 81; 73 C.R.(6th) 78; 2010 ONCA 117, refd to. [para. 64].

R. v. Shearing (I.), [2002] 3 S.C.R. 33; 290 N.R. 225; 168 B.C.A.C. 161; 275 W.A.C. 161; 2002 SCC 58, refd to. [para. 69].

R. v. Salah (G.) et al. (2015), 328 O.A.C. 333; 319 C.C.C.(3d) 373; 2015 ONCA 23, refd to. [para. 83].

Counsel:

Frank Addario and Andrew Burgess, for the appellant;

Hannah Freeman, for the respondent.

This appeal was heard on May 25, 2015, by Laskin, MacFarland and Rouleau, JJ.A., of the Ontario Court of Appeal. Laskin, J.A., released the following judgment for the court on December 30, 2015.