



WARNING

The President of the panel hearing this appeal directs
    that the following should be attached to the file:

An order restricting publication in this proceeding
    under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the
Criminal
    Code
shall continue.  These sections of
the Criminal Code
provide:

486.4(1)       Subject to subsection (2), the
    presiding judge or justice may make an order directing that any information
    that could identify the victim or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)      an offence under section 151, 152, 153,
    153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210,
    211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1,
    286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as it read
    at any time before the day on which this subparagraph comes into force, if the
    conduct alleged involves a violation of the complainants sexual integrity and
    that conduct would be an offence referred to in subparagraph (i) if it occurred
    on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25, s. 22(2),
    effective December 6, 2014 (Act, s. 49).

(b)     two or more offences being dealt with in
    the same proceeding, at least one of which is an offence referred to in
    paragraph (a).

(2)     In proceedings in respect of the offences
    referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)     at the first reasonable opportunity,
    inform any witness under the age of eighteen years and the victim of the right
    to make an application for the order; and

(b)     on application made by the victim, the
    prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice may
    make an order directing that any information that could identify the victim
    shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other
    than an offence referred to in subsection (1), if the victim is under the age
    of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of
    their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

(3)     In proceedings in respect of an offence under
    section 163.1, a judge or justice shall make an order directing that any
    information that could identify a witness who is under the age of eighteen
    years, or any person who is the subject of a representation, written material
    or a recording that constitutes child pornography within the meaning of that
    section, shall not be published in any document or broadcast or transmitted in
    any way.

(4)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c.
    13, s. 18..

486.6(1)       Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gilbert, 2015 ONCA 927

DATE: 20151230

DOCKET: C59443

Laskin, MacFarland and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Stephane Gilbert

Appellant

Frank Addario and Andrew Burgess, for the appellant

Hannah Freeman, for the respondent

Heard: May 25, 2015

On appeal from the conviction entered on May 22, 2014 by
    Justice John R. Sproat of the Superior Court of Justice, sitting without a
    jury.

Laskin J.A.:

A.

Overview

[1]

Stephane Gilbert appeals his conviction for the sexual exploitation of
    the complainant, N.M.

[2]

The complainant first met Gilbert when she was in Grade 9. He was her
    music teacher and the conductor of the school band. At the time, he was in his
    late twenties. The complainant testified that, in June 2003, after she had
    finished her Grade 11 year, Gilbert kissed her on two separate occasions, once
    at her home and the next day at a park. Gilbert denied that he kissed her on
    either occasion.

[3]

Under s. 153(1) of the
Criminal Code
, R.S.C. 1985, c. C-46, sexual
    exploitation is made out when a person in a position of authority toward a
    young person (16 or 17 years of age) touches that young person for a sexual
    purpose. Gilbert admitted that he was in a position of authority and did not
    dispute that the complainant was a young person at the time. Thus, the only issue
    at trial was whether the kissing took place. The trial judge believed the
    complainant, disbelieved Gilbert, and found him guilty.

[4]

In his reasons for conviction, the trial judge relied on the following
    evidence he had earlier admitted:  the similar act evidence of Manon Petit, another
    student that Gilbert kissed; and the complainants post-offence conduct
    evidence that after she graduated from high school, she and Gilbert had a
    continuing relationship, which included overnight visits and sexual intercourse
    at his one-bedroom apartment in North Bay.

[5]

Gilbert raises four issues on his appeal:

1.

Did the
    trial judge materially misapprehend the evidence?

2.

Did the
    trial judge apply a harsher standard of scrutiny to Gilberts evidence than to
    the complainants evidence?

3.

Did the
    trial judge err by admitting and then drawing unreasonable and speculative
    inferences from the similar act evidence?

4.

Did the
    trial judge err by admitting and then drawing unreasonable and speculative
    inferences from the post-offence conduct evidence?

[6]

Gilbert submits that we should answer yes to each of these four
    questions. He contends that, cumulatively, the trial judges errors deprived
    him of a fair trial. I do not agree with his submission. I would answer no to
    each of the questions and would dismiss the appeal.

B.

Background

(1)

Gilberts relationship with his
    students

[7]

Gilbert was an affectionate person and took an interest in his students
    lives. The complainant testified that Gilbert talked with his students about [w]hatever
    we wanted to talk about, not just school-related activities. He hugged both
    his male and female students. And he communicated with them by email.

[8]

When the complainant started Grade 10, her parents and the parents of
    another student spoke to Gilbert and expressed concern that his relationship
    with the students had become too familiar. He apologized to the parents and
    stopped emailing the students. But the trial judge accepted the evidence of the
    complainant and the other student that Gilbert essentially told them they
    could carry on the relationship as before but to just be more careful in front
    of the parents.

(2)

The two kissing incidents

[9]

In Grade 10, the complainant started feeling anxious and depressed. She
    did not have many friends and began confiding in Gilbert. She would go and see
    him virtually every day, before class, during lunch, and after class. He made
    her feel special and she liked having him as a friend. The more she confided
    in him and the closer she got to him, the more she became dependent on him to
    be there for me when I needed him.

[10]

In
    the second semester of Grade 11, Gilbert told his students he was leaving to
    teach in Oman. The complainant was extremely upset. Gilbert told her he would
    miss her but they would stay in touch.

[11]

The
    complainant testified that both kissing incidents occurred in June 2003, after
    the school year ended and a few days before Gilbert left for Oman.

[12]

The
    first incident occurred after the complainant and Gilbert went out for lunch.
    When lunch was over, Gilbert drove her home and she invited him inside. She
    told him he could not stay long because her father would be home soon. So they
    said goodbye, and then she kissed him, and he kissed her back. That night they
    spoke on the telephone and Gilbert said he wanted to see her again before he
    left.

[13]

The
    second incident took place the next day at a park. The complainant and Gilbert
    walked around, talked about their relationship, and, from time to time, kissed
    each other.

(3)

Disclosure of the incidents

[14]

The
    police became aware of the incidents eight years later, in August 2011. The
    complainant had been seeing a counsellor. Eventually the complainant told the
    counsellor about her relationship with Gilbert and identified him by name. The
    counsellor, in turn, contacted the Childrens Aid Society, who then contacted
    the police.

C.

The Issues

(1)

Did the trial judge materially
    misapprehend the evidence?

[15]

Not
    every misapprehension of evidence by a trial judge justifies this courts
    intervention. The misapprehension must be material. In
R. v. Sinclair
,
    2011 SCC 40, [2011] 3 S.C.R. 3, at para. 56, Lebel J. discussed materiality and
    the test for appellate intervention:

For a misapprehension of evidence to be material within the
    meaning of the
Lohrer
test, it must go to a central element of the
    trial judges reasoning on which the conviction is based. As Binnie J.
    correctly stated in
Lohrer
, the standard described by Doherty J.A. in
Morrissey
is a stringent one. In other words, an error in the assessment of the evidence
    will amount to a miscarriage of justice only if striking it from the judgment
    would leave the trial judges reasoning on which the conviction is based on
    unsteady ground. [Citations omitted.]

[16]

Gilbert
    submits that the trial judge materially misapprehended five pieces of evidence,
    and that, separately or cumulatively, these misapprehensions meet the test in
Sinclair
.
    They directly affected the trial judges credibility findings and his
    conclusion that Gilbert was guilty.

[17]

The
    Crown submits that the trial judge did not materially misapprehend the
    evidence. I agree with the Crowns submission. I will deal here with each
    alleged misapprehension.

(i)

The conversation about the parents concerns

[18]

Gilbert
    says the trial judge misapprehended his response to the parents concerns that
    he had become too familiar with his students. The trial judge said:

[The complainant] and the fellow student, whose evidence I
    certainly accept on this point, were clear that the accused essentially told
    them they could carry on the relationship as before but to just be more careful
    in front of the parents. The accused, however, in his evidence tried to put
    himself in a much more favourable light stating that he told them he would be
    respecting the parents wishes.

[19]

Gilbert
    maintained that he did respect the parents concerns by cutting off email
    communication with the two girls. Although Gilbert did stop emailing, the trial
    judges observation above is consistent with the following testimony of the
    complainant:

And so he said that around our parents we would have to be a
    lot more careful about how we interacted, but that he really didnt want to
    stop having the kind of relationship that he had with each of us, and that so
    in terms of the openness and the hugging, and the talking as friends, and that
    kind of behaviour that we had in grade 9, it continued but, for example, when
    my parents came to pick me up from band, then he would be different in front of
    them than he would be otherwise, and -- but other than in front of my parents,
    things continued the way they had between us. I was still going to the music
    room, and still talking to him, and that kind of stuff.

[20]

The
    trial judge did not misapprehend Gilberts evidence. He simply did not accept
    all of it.

(ii)

The complainants evidence about the location of the second
    kissing incident

[21]

The
    trial judge said:

In a police statement she said the kissing in the park took
    place under a tree while in court she said it took place on a bridge. A
    romantic walk of the type described would typically involve kissing at more
    than one location, and she may have innocently mistaken the location or there
    may have been more than one location.

[22]

The
    complainant was not consistent in her testimony about where the second kissing
    incident occurred. Gilbert argues that the trial judge resolved this
    inconsistency on a basis the complainant herself never suggested. When
    confronted with the inconsistency, the complainant testified that she did not
    appreciate the importance of details and that her memory had improved over
    time. She did not suggest that the kissing might have happened at more than one
    location.

[23]

I
    do not view this difference between the complainants 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 complainants 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 judges credibility findings.

(iii)

The
    number of kissing incidents with Manon Petit

[24]

In
    his similar act ruling, which I will discuss later in these reasons, the trial
    judge said in several places that Petit and Gilbert kissed 40 times. In his
    reasons for conviction, he repeated the number 40:

With respect to the evidence of the previous year student, a
    conservative estimate based upon her evidence was that they engaged in kissing
    approximately 40 times. The evidence of the accused was that it was a handful
    of times to a maximum of ten. I think that the accused intentionally and
    inaccurately minimized the number of incidents.

[25]

Gilbert
    argues that Petit never said she and Gilbert kissed 40 times, that she was
    never asked how many times they kissed, and that the trial judge never
    explained how he arrived at the number 40. And yet, Gilbert says, the discrepancy
    between 40 incidents and the 10 incidents he admitted to was central to the
    trial judges finding that he was not credible.

[26]

I
    agree that Petit was not asked and did not testify about how many times she
    kissed Gilbert. I also agree the trial judge did not explain how he arrived at
    the number 40. But, as the Crown points out, 40 incidents is a reasonable
    figure in the light of Petits evidence that, between Easter and the last day
    of classes, they kissed almost every school day.

[27]

But,
    even if 40 incidents is not an accurate figure, the important point is that, on
    Petits evidence, which the trial judge accepted, the kissing took place far
    more often than the bit more than a handful maybe up to ten times Gilbert
    was prepared to admit to. Thus, although the trial judge ought not to have
    ascribed a specific number to the incidents of kissing between Petit and
    Gilbert, he did not misapprehend the substance or significance of the
    discrepancy between their accounts.

(iv)

The complainants trips to North Bay

[28]

In
    ruling that the complainants trips to North Bay were relevant, the trial judge
    held:

It is certainly open to the trier of fact to consider whether
    that evidence is accurate, and if so, whether or not this continuing
    relationship simply arose out of thin air after the return from Oman or whether
    it is more logical to regard it as a progression of the fact that the two had a
    pre-existing romantic relationship. I am satisfied the evidence has some
    significant relevance and probative value.

[29]

Gilbert
    argues that in saying his continuing relationship with the complainant may have
    arisen out of thin air, the trial judge misapprehended the evidence. As
    Gilbert points out, though he and the complainant disagreed on whether kissing
    took place in 2003, they both agreed a continuing relationship existed in
    2005.

[30]

I
    do not view the above passage, which Gilbert impugns, as a misapprehension of
    the evidence. His real objection is to the inference available  on that
    evidence, an inference the trial judge ultimately drew and relied on. I will
    deal with this inference when I discuss Gilberts submission on the
    admissibility of the post-offence conduct evidence.

(v)

The timing of the first kissing incident at the complainants
    home

[31]

The
    trial judge summarized the complainants evidence as follows:

In its totality I dont interpret her evidence to be that she
    got the accused out of the house a minute before she expected her father to be
    home. I interpret it as her having encouraged him to leave before the earliest
    time she thought her father might be home. As she said in her evidence, she
    thought that there was a buffer she was leaving between when the accused left
    and when her father would return.

[32]

Gilbert
    submits that this summary misapprehended the complainants evidence because at
    one point in her examination-in-chief she said: No, as I said, I was worried
    because I knew that my dad would be home any minute, and so we really just kind
    of rushed out the door.

[33]

I
    do not agree that the trial judge misapprehended the complainants evidence. As
    the Crown points out, in the complainants cross-examination, she said that, although
    she was uncertain when her father was supposed to be home, she would have left
    a buffer zone:

Q.      Which means that on that evidence, your father could
    have walked in the door one or two minutes after you and Mr. Gilbert, fair
    enough?

A.      Yes, but its not like I told Mr. Gilbert to leave --
    like say, for example, and like because I dont remember the time so I am just
    going to say, for example, my dad had said, I will be home by 5:00, its not
    like I would have said at 4:58, Okay, you have to leave now because my dad is
    going to be home in two minutes. I like to give myself some credit and say I
    am smarter than that, and that I would have left that buffer zone, so maybe at
    20 to 5:00, I said, Okay, you really have to go now because my dad could be
    home at any second, and then I would have kicked him out.

[34]

The
    trial judges summary of the complainants evidence on the timing of the first
    kissing incident is consistent with the complainants testimony in
    cross-examination. The trial judge did not misapprehend her evidence.

[35]

Gilbert
    makes the related submission that not only would the complainant be unlikely to
    invite Gilbert inside her house and start kissing him minutes before her father
    was due home, but Gilbert would be unlikely to stay in her house to kiss her
    once she told him her father would be home any minute. In short, Gilbert
    contends that his denial of this kissing incident was more consistent with common
    sense, while the complainants account strains credulity.

[36]

I
    do not accept this submission. The trial judge weighed the evidence and the
    competing inferences available from it and rejected the defences position. That
    he rejected the defences position does not mean he materially misapprehended
    the evidence. Nor does it justify appellate intervention.

[37]

I
    would not give effect to this ground of appeal.

(2)

Did the trial judge apply a harsher
    standard of scrutiny to Gilberts evidence than to the complainants evidence?

[38]

The
    harsher standard of scrutiny argument is, at heart, an attack on a trial
    judges credibility findings. For that reason, it is a hard argument to make
    successfully. The Supreme Court of Canada and this court have repeatedly said
    that a trial judges credibility findings merit a high degree of deference on
    appeal.

[39]

To
    succeed on a harsher standard of scrutiny argument, an appellant must point
    to something in the reasons of the trial judge or perhaps elsewhere in the
    record that make it clear that the trial judge had applied different standards
    in assessing the evidence of the appellant and the complainant:
R. v. Howe
(2005), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59.

[40]

Though
    a difficult argument to make, it has been successful in a few cases in this
    court.
Howe
itself was one such case. There, the trial judge found
    that both the complainant and the accused had deliberately lied in their
    evidence. The trial judge then used the accuseds deliberate lies to reject his
    evidence entirely while he treated the complainants deliberate lies much more
    benignly and eventually accepted her evidence. This court intervened and
    ordered a new trial.

[41]

Can
    Gilbert similarly point to something in the trial judges reasons that shows he
    applied a harsher or stricter standard to Gilberts evidence than to that of
    the complainant  that he used two different measuring sticks? See
R. v.
    Phan
, 2013 ONCA 787, 313 O.A.C. 352, at para. 74.

[42]

Gilberts
    overall position is that the trial judge unfairly criticized him for simply
    denying the allegations against him while he overlooked or discounted many
    inconsistencies in the complainants evidence. I do not agree with Gilberts
    position. For the reasons I will discuss, I consider the trial judges
    treatment of the evidence of Gilbert and of the complainant to have been fair
    and balanced, and I consider his credibility findings to be reasonably
    supported by the evidence. Thus, in my view, Gilberts harsher standard of
    scrutiny argument must fail.

(i)

Scrutiny of Gilberts evidence

[43]

Gilbert
    challenges both the trial judges general approach to his evidence and the
    trial judges treatment of specific aspects of his evidence.

[44]

First,
    the trial judges general approach. On more than one occasion the trial judge
    noted that in his evidence Gilbert tried to put himself in a much more favourable
    light or that he tailored his evidence  to put himself in the most
    favourable light. Gilbert submits that the trial judges observations are not
    a proper basis to reject an accuseds evidence because all accused will try to cast
    themselves in a more favourable light than will their accusers.

[45]

The
    trial judges general observation that Gilbert was trying to put himself in a
    favourable light was fair. The trial judge did not reject Gilberts testimony
    simply because he denied the allegations against him. He rejected Gilberts
    evidence in part because Gilbert tailored his denials to make him seem more
    respectful of the appropriate boundaries between teachers and their students.
    Yet the evidence from the Crowns witnesses, which after careful consideration
    the trial judge accepted, directly contradicted Gilberts testimony. It was the
    tailoring of his evidence, not simply his denials, that raised concerns about
    his credibility.

[46]

Second,
    Gilberts complaints about the trial judges treatment of specific aspects of
    his evidence. Gilbert especially complains about two aspects of the trial
    judges reasons: (1) how the trial judge treated Gilberts evidence about when
    his going away party took place and (2) how he treated the inconsistency
    between Gilberts and Petits evidence about how often they kissed.

[47]

Gilbert
    said he left town on the Saturday following the last day of exams and that his
    going away party took place a day earlier. If this timing was correct, Gilbert
    would have had no opportunity to have kissed the complainant as she alleged.
    The trial judge, however, rejected Gilberts evidence:

The accused testified to a timeline which essentially left him
    no time to have had a lunch or walk in the park with [the complainant]. There
    is documentation to evidence when he rented the U-Haul and left town. There is
    nothing that documents the fact that the party took place the night before his
    departure as opposed to earlier.

[48]

Gilbert
    submits that the trial judge effectively required him to provide additional
    documentation to disprove the allegations against him. I view this passage in
    the trial judges reasons differently. The trial judge was not faulting Gilbert
    for failing to produce documents. Nor was he requiring Gilbert to disprove the
    complainants allegations. The trial judge merely commented that the documents
    Gilbert did produce did not foreclose his opportunity to get together with the
    complainant and engage in the two kissing incidents.

[49]

I
    have already discussed the inconsistency between Gilberts evidence and Petits
    evidence on how often they kissed. This inconsistency was not minor, as
    Gilbert contends: it was significant and further supported the trial judges
    concern about Gilberts attempt to distance himself from his relationship with his
    students.

(ii)

Scrutiny of the complainants evidence

[50]

Gilbert
    argues that the trial judge took a much more lenient view of inconsistencies in
    the complainants evidence. He points to the following inconsistencies or
    contradictions, which he says the trial judge minimized:

·

The complainant contradicted herself on where in the park the
    second kissing incident took place: either on the bridge or under a tree.

·

The complainant contradicted herself on whether she had
    French-kissed with Gilbert in the park.

·

The complainant contradicted herself on whether touching of the
    breast, buttocks, or genital area took place in the park.

·

The complainant contradicted herself on whether her clothes came off
    on her first visit to North Bay.

[51]

The
    trial judge did not ignore these contradictions. He addressed each of them and
    found that they were accounted for by the passage of time or the complainants
    inability to focus on details during her police interview. In the trial judges
    view, these contradictions were relatively minor and did not affect his overall
    assessment of the complainant as a responsible, conscientious witness
    endeavouring to tell the truth to the best of her recollection. That the trial
    judge treated the complainants contradictions in this way lends no support to
    Gilberts argument that he scrutinized her evidence less harshly.

[52]

I
    would not give effect to this ground of appeal.

(3)

Did the trial judge err by admitting
    and then drawing unreasonable and speculative inferences from the similar act
    evidence?

[53]

The
    Crown applied to admit the similar act evidence of Manon Petit. The defence
    opposed its admission. After a
voir dire
, the trial judge ruled the
    evidence admissible. He gave lengthy reasons for doing so.

[54]

On
    the
voir dire
, Petit testified that Gilbert was her music teacher and
    band leader during her final year of high school, from September 1999 to June
    2000. She had turned 18 at the end of that September. She described Gilbert as
    young, cool, open, and full of energy. Around Christmas, she let him
    know she wanted to have a physical relationship with him. At first he said no
    as she was a student. But then, around Easter, she kissed him. She testified
    that she initiated the kiss. She said that, from then until the end of the
    school year in June, she and Gilbert kissed almost every day.

[55]

The
    trial judge ruled that Petits evidence was relevant to whether the
actus
    reus
of the offence  Gilberts kissing the complainant  had taken place.
    And he concluded that the probative value of this evidence far exceeded any
    prejudicial effect.

[56]

In
    his reasons for conviction, the trial judge relied on the similar act evidence.
    He said the evidence showed that three to four years previously [Gilbert] 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. He
    rejected the suggestion that this character trait had changed. He said that, if
    a teacher genuinely regretted having a sexual relationship with a student, the
    teacher would take steps to prevent it from happening again. But Gilbert never
    did.

[57]

A
    trial judges similar act ruling is a discretionary ruling and is ordinarily
    entitled to deference on appeal. An appellate court should only intervene where
    the ruling is unreasonable or where it reflects an error in principle.

[58]

Gilbert
    argues that the trial judges ruling admitting the evidence was unreasonable
    both because it was based on a misapprehension of the evidence and because the
    complainants allegations were starkly different from Petits. And he argues
    that the trial judge erred in principle when he used this evidence for a
    purpose different from the purpose for which it was admitted. I do not agree
    with Gilberts arguments. I will address each in turn.

(i)

Alleged misapprehension of the evidence

[59]

Gilbert
    claims that the trial judge misapprehended the evidence in two ways:

·

The trial judge said that [i]n both cases, the sexual aspect of
    the relationship with the students did not progress beyond kissing, which is itself
    quite unusual. Gilbert says that, on the complainants evidence, the sexual
    aspect of the relationship did progress beyond kissing to sexual intercourse;
    in contrast, Petit said Gilbert refused to have sexual intercourse with her.

·

The trial judge said that [i]n both cases, the kissing and
    hugging continued as long as the two students were in proximity and available.
    Gilbert says that, on the complainants evidence, she continued to have contact
    with Gilbert after she graduated and even had sex with him two years later; in
    contrast, Gilbert permanently ended his relationship with Petit before the end
    of the school year.

[60]

The
    trial judge did not misunderstand either piece of evidence. On the first, the
    trial judge referred to the sexual aspect of the relationship with the
students
.
    In other words, he correctly understood that while each girl was a student, her
    relationship with Gilbert never went beyond kissing.

[61]

On
    the second piece of evidence, the trial judge correctly focused on the
    proximity and availability of each student. The kissing with the complainant
    ended when Gilbert moved away to Oman. It did eventually resume, but only when
    the complainant was in university and able and willing to visit Gilbert in
    North Bay. The kissing with Petit ended when Gilbert was alerted about their
    relationship by an anonymous email and by another teacher. After this alert,
    Petit was, in effect, no longer available.

(ii)

The starkly different allegations

[62]

Gilbert
    contends that the complainants allegations were so different from Petits testimony
    that the trial judge ought not to have admitted the similar act evidence.
    Gilbert points to the following differences:

·

When Petit kissed Gilbert, she was an adult and thus their sexual
    contact was legal. The complainant, on the other hand, was a minor.

·

Petit was outgoing and confident; the complainant was shy and
    depressed.

·

Petit repeatedly kissed Gilbert at school and their kissing
    stopped during the school year. The complainant kissed Gilbert on only two
    occasions while she was a student but then continued to have contact and even
    sex with him after she graduated.

·

Petit pursued Gilbert relentlessly and he repeatedly turned her
    down before finally agreeing to kiss her. On the complainants evidence,
    however, Gilbert kissed her the first chance he got.

·

Petit kissed Gilbert on school property; the complainant kissed
    Gilbert at her parents home and in a public park.

·

The kissing between Petit and Gilbert occurred over three years
    before the kissing between the complainant and Gilbert.

[63]

In
    the face of these differences, Gilbert submits that the only material
    similarity between the complainants evidence and Petits evidence was that
    both witnesses were his students. Gilbert contends that, in a case where the
    acts complained of otherwise differ, a student-teacher relationship by itself
    does not establish sufficient similarity to justify admission of similar act
    evidence.

[64]

I
    do not agree with Gilberts contention. What admissibility requires is a
    persuasive degree of connection between the events of alleged similar acts and
    the offence charged in order to be capable of raising the necessary inferences:
R. v. J.M.
, 2010 ONCA 117, 73 C.R. (6th) 78, at para. 91. Importantly,
    the similarities need not lie in the distinctive nature of the acts themselves,
    but in the circumstances in which those acts occurred:
J.M.
, at
    para. 91.

[65]

Here,
    the similar circumstances in which the kissing of Petit and the kissing of the
    complainant occurred showed the required persuasive degree of connection and
    strongly supported the trial judges ruling. The trial judge noted the
    following persuasive similar circumstances:

·

The complainant and Petit were music students and Gilbert was
    their teacher.

·

Both the complainant and Petit were in their late teens, 17 and
    18 years of age respectively, when the kissing took place.

·

In both cases, the kissing occurred when the student-teacher
    relationship was soon to end. In the complainants case because Gilbert was
    going to Oman; in Petits case because she was about to graduate.

·

In both cases, the student initiated the kissing.

·

In both cases, the sexual relationship did not extend beyond
    kissing while Petit and the complainant were students.

[66]

Second,
    the trial judge considered most of the differences listed by Gilbert. For
    example, he addressed a principal difference the defence relied on: it was
    legal for Gilbert to kiss Petit but illegal for him to kiss the complainant.
    The trial judge acknowledged the difference, but observed, reasonably:

Again, while acknowledging this is a difference, in both cases
    the evidence would indicate that Mr. Gilbert was engaging in conduct which
    would expose him to severe sanctions. Even in the case of Ms. Petit, he would
    be subject to the loss of a job, his professional standing, and the ability to
    continue his teaching career.

[67]

The
    trial judge also addressed the difference in where the kissing took place  on
    school property with Petit and off school property with the complainant. He
    reasonably found that this is a distinction without much of a difference
    since the kissing of Petit started during the school year, while the kissing of
    the complainant started after the school year had ended.

[68]

The
    trial judge found that the differences Gilbert relied on at trial  which he
    also relied on in this court  did not undermine the significant probative
    value of the similar act evidence in the light of the relatively high degree
    of connectedness between the evidence of the complainant on the charged offence,
    and the proposed similar fact evidence.

[69]

This
    finding is reasonable and draws support from the reasons of Binnie J. in
R.
    v. Shearing
, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 60:

The judges task is not to add up similarities and
    dissimilarities and then, like an accountant, derive a net balance.  At
    microscopic levels of detail, dissimilarities can always be exaggerated and
    multiplied.  This may result in distortion.  At an excessively
    macroscopic level of generality, on the other hand, the drawing of similarities
    may be too facile.  Where to draw the balance is a matter of judgment.
    [Citations omitted.]

[70]

In
    other words, the assessment of whether similar act evidence should be admitted
    is qualitative not quantitative. Thus, I conclude that the differences or dissimilarities
    noted by Gilbert do not justify interfering with the trial judges ruling.

(iii)

The
    purpose for which the trial judge used the similar act evidence

[71]

Gilbert
    submits that although the trial judge admitted the similar act evidence of
    Petit for a permissible purpose  to assess whether the kissing alleged by the
    complainant took place  he then used it for a quite impermissible purpose  to
    impugn Gilberts character. Gilbert relies on the passage in the trial judges
    reasons I quoted earlier:

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.

[72]

I
    do not agree with this submission. The trial judge cautioned himself that he
    could not use Petits evidence as evidence of Gilberts bad character:

The evidence of the previous year student is also a form of
    discreditable conduct. I caution myself that it cannot be used to reason that
    the accused is a bad person and therefore more likely to have committed the
    offence charged or that the accused is a bad person who should be punished for
    conduct not before the court.

[73]

The
    trial judge properly limited his use of the similar act evidence to showing
    that Gilbert had a character trait, or a specific propensity, to engage in
    sexual contact with a student when the student offered it or asked for it.
    That character trait, which the trial judge found had not changed, was relevant
    to his determination that the kissing had taken place.

[74]

For
    these reasons, I would not give effect to this ground of appeal. The trial
    judges ruling on the similar act evidence was reasonable and did not reflect
    any error in principle.

(4)

Did the trial judge err by admitting
    and then drawing unreasonable and speculative inferences from the post-offence
    conduct evidence?

[75]

At
    the beginning of the trial, the Crown applied to admit post-offence conduct
    evidence. The defence objected to its admission. The trial judge ruled the
    evidence admissible and later gave brief oral reasons for his ruling.

[76]

The
    complainant testified that, after Gilbert returned from Oman, she twice visited
    him in North Bay. By then she was 18. On the first visit, toward the end of
    2004, the two kissed but did not have sex. On the second visit, in early 2005,
    the two kissed and had sexual intercourse.

[77]

Gilbert
    admitted that the complainant visited him in North Bay but said 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.

[78]

Both
    Gilbert and the complainant agreed that, after the North Bay visit or visits,
    their contact petered out. They saw each other only once or twice and there was
    no sexual contact. Eventually, they drifted completely apart.

[79]

The
    trial judge admitted the complainants evidence of the North Bay visits for
    three reasons, the first two of which were directed at assessing the
    complainants credibility:

·

The evidence was relevant to assessing the significance of the
    complainants delay in reporting the kissing.

·

The evidence was relevant to assessing whether the complainant
    had any animus towards Gilbert, which would provide a motive for her to lie.

·

The evidence was relevant and probative to appreciating the full
    trajectory of the relationship  that is, whether or not this continuing
    relationship simply arose out of thin air after the return from Oman or whether
    it is more logical to regard it as a progression of the fact that the two had a
    pre-existing romantic relationship.

[80]

In
    his reasons for conviction, the trial judge relied on and reiterated the
    relevance of this evidence:

Turning to the Northern Ontario visit, this is after-the-fact
    conduct, and in a previous ruling I discussed the relevance of this evidence
    and I use it for the purpose there described. The evidence of [the complainant]
    that there were two visits to Northern Ontario and that they followed the
    logical progression of a romantic relationship makes much more sense to me than
    the evidence of the accused that, living in a one bedroom apartment, he invited
    [the complainant], who he knew to be troubled, to travel a long distance to
    stay with him for four days.

[81]

On
    appeal, Gilbert makes two submissions. First, the trial judges conclusions
    about the relevance of this evidence were speculative. 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 a progressive romantic
    relationship with a former student. As the reasonable inferences to be drawn
    from this evidence were equivocal, the evidence can have no probative value.

[82]

I
    do not agree with this submission. 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 leave 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.

[83]

Also,
    the trial judge could reasonably infer from the post-offence conduct evidence
    that Gilbert and the complainant kissed when she was in high school and he was
    her teacher. Gilbert would be more likely to welcome her to visit him in North
    Bay if they had a previous romantic relationship. That another reasonable
    inference was available does not require exclusion of the evidence.
    Post-offence conduct evidence, like other circumstantial evidence, is
    admissible if it is relevant and if its prejudicial effect, if any, does not
    outweigh its probative value. This court said in
R. v. Salah
, 2015
    ONCA 23, 319 C.C.C. (3d) 373, at para. 227:

Items of circumstantial evidence may give rise to more than one
    reasonable inference. This does not call for their exclusion. The threshold of
    relevance is met provided the evidence can reasonably show the fact sought to
    be inferred is slightly more probable than it would be without the evidence.
    [Citation omitted.]

Here, the evidence was relevant and probative for
    precisely the reasons set out by the trial judge.

[84]

Gilberts
    second submission on why the post-offence conduct evidence ought to have been
    excluded is that it was highly prejudicial. It created a trial-within-a-trial
    on whether Gilbert and the complainant had sex, and it risked so-called moral
    prejudice or prohibited bad character reasoning.

[85]

I
    do not accept this submission either. The trial judge expressly rejected the trial-within-a-trial
    argument. He found that the complainants brief evidence about North Bay would
    not present any real risk of distracting the focus from the matters in issue
    to a collateral issue. This finding was reasonable.

[86]

Finally,
    the trial judge did not use the post-offence conduct evidence as evidence of
    Gilberts bad character. Instead, he used the evidence to assess Gilberts
    credibility, and, in particular, to reject his explanation that he had only
    platonic reasons for agreeing to let the complainant to visit him in North Bay.
    The trial judges use of the evidence for this purpose was proper.

[87]

I
    would not give effect to this ground of appeal.

D.

Conclusion

[88]

I would dismiss Gilberts conviction appeal.

Released: December 30, 2015 (JL)

John
    Laskin J.A.

I
    agree J. MacFarland J.A.

I
    agree Paul Rouleau J.A.


