



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. Rancourt, 2020 ONCA 64

DATE: 20200131

DOCKET: C62735

Simmons, Watt and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

David Rancourt

Appellant

Megan Savard and Julia Kindrachuk, for the appellant

Christine Tier, for the respondent

Heard: October 21, 2019

On appeal from the conviction entered on June 30, 2016
    and the sentence imposed on October 13, 2016 by Justice John M. Johnston of the
    Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant was the complainants high school teacher. He does not
    dispute that after the complainant turned 18 years old he participated in
    on-line sexual encounters with her, and that after she left high school this
    progressed to sexual intercourse. The complainant later moved in with the appellant
    and his wife and children, ostensibly to work as the childrens nanny, but in reality
    to facilitate sexual access. The appellant and the complainant kept their
    relationship secret.

[2]

Eventually, the complainant began a relationship with another man. Neither
    of the complainants partners were aware of the complainants relationship with
    the other. During a period of hospitalization for declining mental health, the
    complainant texted the appellant to end their relationship. When the appellant
    sent a text in reply, it was read by the complainants new partner, M.G., who
    thereby learned of the parallel relationships for the first time. The
    complainant maintained her relationship with M.G. Two months after the text
    incident, after the appellant persisted in trying to contact the complainant
    and her parents, the complainant went to the police.

[3]

The appellant admitted the adult sexual affair to the police, including the
    online sexual activity after the complainant had turned 18, but denied that he
    touched the complainant sexually while she was underage.

[4]

What was contested at trial was whether the appellant had engaged in various
    acts to groom the complainant sexually while she was still his student, and (in
    some instances) while she was also under the age of 18. In particular, the
    questions were: (1) whether the appellant had engaged in cybersexual activity with
    the complainant
before
she had turned 18, and (2) whether the
    appellant had engaged in sexual touching of the complainant while he was still the
    complainants teacher, both before and after she turned 18.

[5]

The appellant did not testify and the trial turned, primarily, on the
    credibility of the complainant. The trial judge convicted the appellant of
    sexual assault and sexual exploitation. He was sentenced to imprisonment for
    one year.

[6]

The appellant appeals against conviction on the basis that the trial
    judge committed various errors, including errors in assessing the complainants
    credibility. He also appeals against sentence.

[7]

For the reasons that follow, both appeals are dismissed.

Background

[8]

As stated above, the appellant was the complainants teacher for four of
    her five years of high school. After the complainant turned 18, but while she
    was still a high school student receiving instruction from the appellant, the
    complainant and appellant engaged in sexually explicit messaging with each
    other using a variety of social media platforms. This progressed to the
    complainant masturbating, for the appellants benefit, in her bedroom while the
    appellant watched from his home via webcam, coaching and encouraging her.
    Although the complainant initially testified at the preliminary hearing that this
    cybersexual activity began before she had turned 18, her testimony at trial was
    that it began two months after she turned 18. This was significant as the complainant
    was therefore not a young person within the meaning of s. 153(1) of the
Criminal
    Code
during the cybersexual activity, and that activity could therefore not
    be the basis for a conviction for sexual exploitation under s. 153(1) of the
Criminal
    Code
.

[9]

That left allegations of multiple incidents of sexual touching by the
    appellant, starting when the complainant was in grade 9. Many of these
    allegations involved the appellant touching the complainants breasts over her
    clothing accidentally on purpose, as the trial judge characterized it, or the
    appellant brushing his semi-erect penis against her hand or arm as he walked
    past where she was seated in his classroom. The trial judge accepted the
    complainants evidence that these incidents happened as she attested. However,
    he was left with a reasonable doubt as to whether the appellant had touched her
    on these multiple occasions  such as brushing her breasts with his hand while
    reaching across his car to lock and unlock the passenger door after she was
    seated  with the requisite sexual intent. Accordingly, the trial judge found
    that these incidents could not ground a finding that the appellant had
    committed either sexual interference or sexual assault.

[10]

The only allegation which supported a finding of guilt was what the
    trial judge referred to as the dirty girl game. The complainant testified
    that, starting when she was in grade 9, the appellant would, in the classroom,
    rub his foot against her sock, leaving dirt on it. He would then rub the mark
    off with his hand. In reference to this, he called her a dirty girl. As the
    years progressed, the complainant testified, the touching progressed up her leg,
    under her kilt, and by grade 12 he was touching her near her pelvic area.

[11]

The trial judge found that the instances of the dirty girl game occurring
    before the complainant turned 18 constituted sexual exploitation and sexual
    assault. The instances after she turned 18, and while she was still his student,
    also constituted sexual assault, on the basis that her consent to the activity
    was vitiated by the position of trust that he held over her as his teacher.

[12]

The appellant was convicted of sexual exploitation and sexual assault,
    and sentenced to one year imprisonment.

Issues

[13]

The appellant argues that the trial judge erred:

1.

by misapplying the burden of proof;

2.

in rejecting the evidence of the appellants wife;

3.

by applying different standards of scrutiny to the defence and Crown
    evidence; and

4.

imposing a harsh and excessive sentence.

Analysis

[14]

Each of these issues are addressed in sequence.

Misapplication of the burden of
    proof

[15]

The appellant alleges three errors with respect to the misapplication of
    the burden of proof by: (a) bootstrapping the complainants credibility by
    using her own evidence to confirm her story; (b) rejecting defence evidence on
    the basis that he accepted the complainants evidence; and (c) failing to
    resolve the complainants credibility problems.

(a)

Bootstrapping

[16]

First, the appellant argues that the trial judge bootstrapped the
    complainants credibility by finding her allegations to be credible because of his
    findings about the nature of her relationship with the appellant. But, he
    argues, the trial judges findings about the nature of the complainants relationship
    with the appellant during high school were based solely on the complainants unsupported
    testimony. These findings included that: (a) the appellant sent the complainant
    a text when she was 15, telling her that his wife was away, he was lonely, and
    that it would be nice if she came over; (b) the appellant texted the
    complainant constantly during a school trip to New York City, when the
    complainant was 15; (c) the appellant and complainant pre-arranged a webcam
    chat when the complainant was 16, so that the appellant could see her naked;
    (d) the complainant was 16 when the appellant first told her about a
    pornographic website called Red Tube;  the appellant texted the complainant
    constantly during a second school trip to New York City when she was 17, and distributed
    theatre tickets so that the complainant would be seated next to him; and (f) the
    complainant attended her grade 12 graduation with a platonic friend in order to
    appease the appellant, who texted her throughout the night.

[17]

We do not agree that the trial judge made this error. Each of these findings
    had some support in evidence that was independent of the complainant: (a) the
    appellants former spouse S.C. testified in cross-examination that she went
    away for part of the summer with the children, leaving the appellant alone; (b)
    M.N., a fellow student, testified to her observations of the complainant texting
    during the New York trip and the inferences she drew from her observations; (c)
    recovered text messages between the complainant and the appellant referenced an
    earlier incident when the complainant had shown herself naked to the appellant
    on a webcam; (d) the appellant admitted in his statement to police that he may
    have mentioned the Red Tube pornography site to the complainant while she was in
    high school, and that she may have looked at it; and  both M.N. and Mr. Lopes,
    a colleague of the appellant, testified about their observations of the
    complainant texting during her grad night. Further, Lopes testified about his observations
    of the appellant texting the complainant during a hockey game, and his concerns
    about the appropriateness of this behaviour. In short, there was an entire body
    of evidence  independent of the claimant  supporting the trial judges
    conclusions about the highly unusual nature of the appellants relationship with
    the complainant during high school.

(b)

Rejecting defence evidence

[18]

The appellant argues that the trial judge erred by rejecting the account
    given by the appellant in his police statement. The trial judge is said to have
    reversed the burden of proof  to have accepted the complainants account, and
    then rejected the appellants account because it did not agree with the
    complainants.

[19]

We do not agree. The trial judge gave reasons for independently rejecting
    the appellants exculpatory statements. First, the trial judge was entitled to
    draw a negative inference from the appellants stated memory problems. It
    strained credulity that the appellant could not remember how an unremarkable
    student-teacher relationship transformed, within two months of the
    complainants 18
th
birthday, to the appellant texting the
    complainant to encourage her to shave her genitals and to masturbate for him while
    he watched via webcam. Additionally, S.C. testified in cross-examination that the
    appellant had told her, when he first confessed to the relationship, that he
    had memory blanks related to how this relationship began and how it ended. He
    later admitted to her, according to her testimony, that he had no such memory
    blanks. The trial judge was entitled to draw a negative inference about the appellants
    credibility.

[20]

Second, the trial judge was entitled to find that the appellant was not
    forthcoming in his statement to police. Even though the appellant admitted the
    adult affair to the police, he clearly distanced himself from, and minimized
    his involvement in, the cybersexual encounters he had with the complainant while
    she was his student. His characterization of events  the only thing that did
    happen in high school is that she did the masturbation thing  left out the
    role he played. The text of the Skype chats reveals a different picture  of
    the appellant encouraging and directing his 18-year-old student in how to
    perform sex acts in front of a camera to gratify him sexually.

(c)

Failing to recognize or resolve the complainants credibility problems

[21]

The appellants position at trial was that the complainant was
    chronically deceptive, not credible, and the story of her high school
    relationship with the appellant was simply one of many fabrications. Although the
    trial judge noted that the complainant had significant credibility problems,
    and dedicated 14 pages of the reasons for judgment to his assessment of the
    complainants credibility, the appellant argues that he nevertheless
    misunderstood the appellants submissions and failed to resolve the credibility
    problem.

[22]

We do not agree.

[23]

In her testimony, the complainant was candid about the many concocted
    stories she had told the appellant in the time period leading up to the
    termination of their relationship, including telling the appellant that she had
    a kidney tumour (and manufacturing an incision for added effect), that her
    father had a brain tumour, and that she had attempted suicide while in the
    hospital. The complainant was frank about her and the appellant having both
    lived dual lives, conspiring to have the complainant move in with the appellant
    and his wife and children under the pretext of working as the nanny in order to
    facilitate a sexual relationship without arousing S.C.s suspicion. She also acknowledged
    carrying on simultaneous relationships with the appellant and M.G. for six
    months, keeping each a secret from the other.

[24]

The complainant admitted to these fabrications in examination in chief, explaining
    that she lied in order to get some time away from the appellant. The trial
    judge accepted the complainants rationale for her fabrications. Given the
    context of a controlling relationship, her pattern of lying to the appellant did
    not suggest to the trial judge that she was a person who is prone to dishonesty.
    Rather, these were deliberate falsehoods intended to facilitate temporary escape
    from the appellants control. This assessment was open to the trial judge on
    the evidence before him, and there is no basis upon which we would interfere
    with it.

[25]

The trial judge was also required, as part of his credibility analysis,
    to consider the appellants submission that the complainant had a motive to lie
    (first to M.G., then the police, then the court) about when the sexual
    relationship began and, specifically, how young the claimant was when the
    appellant first touched her for a sexual purpose.

[26]

The appellant argues that the trial judge made errors in how he analyzed
    this question. As we explain below, we agree that some of the trial judges
    remarks were infelicitous. Nevertheless, such errors are peripheral to the
    trial judges credibility analysis and, when read as a whole, the trial judges
    credibility analysis is sound. He conducted an exhaustive examination of the
    complainants credibility, fully alive to her frailties as a witness. We would
    not interfere with that assessment.

[27]

The appellant argues that the trial judge made two errors in rejecting
    the appellants argument that the complainant was motivated to invent the
    allegations of underage sexual contact in order to save her relationship with M.G.

[28]

First, the appellant argues that the trial judge asked the wrong
    question. Instead of
asking whether the complainant subjectively
    believed it would help preserve her relationship
with M.G. if she told him that
    sexual contact with the appellant began when she was 13 years old, the trial
    judge asked whether there would have been any objective benefit to such a
    fabrication.

[29]

There are passages in the reasons which can support the reading advanced
    by the appellant. It may have been clearer if instead of writing, for example, that
    the complainant did not need to make up the additional component of the
    criminal allegations to achieve the result that she did achieve, the trial
    judge had written that the complainant 
knew
she did not need to make
    up the additional component. Nevertheless, the formulation used by the trial
    judge is equally capable of supporting an objective or a subjective reading,
    and it is not necessary to read the reasons in the manner proposed by the
    appellant.

[30]

In any event, even if this court accepted the submission that the trial
    judge had applied an objective inquiry, it is not apparent that this would
    constitute an error. The appellants sole authority for the proposition advanced
    is
R. v. Willier
, 2013 BCCA 214, 338 B.C.A.C. 63, a decision dealing
    with
Vetrovec
witnesses. However, although the complainants
    credibility was the central issue at trial, she was not a
Vetrovec
witness.
    Unlike the witness in
Willier
, the complainant was in no criminal
    jeopardy.
Vetrovec
witnesses are those with disreputable and
    untrustworthy backgrounds with a demonstrated moral lack. The complainant
    does not fit either of these descriptors.

[31]

Furthermore, the defence made no submission at trial that, in this case,
    there would be any difference between a subjective and objective assessment of
    benefit. In these circumstances, the trial judge made no error in how he framed
    his analysis.

[32]

Second, the appellant argues that the trial judge erred in concluding as
    a matter of fact that the complainant had no motive to lie. The trial judge found
    that the text messages between the complainant and M.G. suggested that M.G. 
    who had been devastated by the revelation that the complainant had a
    long-standing sexual relationship with the appellant  was already mollified when
    he thought the sexual contact began when she was 18. For the trial judge, there
    was no reason for the complainant to exaggerate to win over M.G.

[33]

The appellant, however, argues that the complainant needed the
    allegation of underage sexual contact to preserve the relationship, and that
    the text messages show that M.G. remained somewhat hostile until the
    complainant told him that things began when she was only 13, at which point his
    attitude towards her became more sympathetic.

[34]

The trial judge reasoned that if M.G. had only been told the facts that
    were undisputed at trial  of the adult affair and the unusually close student-teacher
    bond  M.G. would have figured out on his own that there must have been a long sexualized
    history, regardless of whether there was any criminal wrongdoing. There was no need
    to invent the specific allegations of criminal touching to obtain the desired
    sympathy from him. Furthermore, the trial judge noted, M.G. urged her to lie and
    tell her family that she was 18 when the relationship began, so as to spare the
    appellants family from the fallout. He also urged her not to go to the police.
    Significantly, the complainant only went to the police two months later, and
    only then to address the appellants refusal to leave her and her family alone.

[35]

We do not agree that the trial judge made any palpable and overriding error
    in rejecting the theory that the complainant concocted the story of the sexual
    touching from age 13 in order to procure sympathy from M.G. and preserve her
    relationship. The trial judge did not believe that she had fabricated the
    allegations against the appellant. He gave his reasons for believing her. She
    testified for six days and, with the exception of her inability to recall dates
    and times, he was impressed with the consistency of her evidence. He accepted
    her rationale for her admitted fabrications and did not find that they
    undermined her credibility. He did not agree that she was prone to exaggeration
    on any material point. He agreed that her delay in going to the police was
    explained by the context of her relationship with the appellant, and was not a
    mark of fabrication.

Rejecting the evidence of S.C.

[36]

S.C. testified to the effect that although the appellant and the
    complainant were close, the nature of their relationship was not any closer than
    the appellants relationship with any other student, and that contrary to the
    complainants evidence, students did not frequent the appellants classroom at
    the end of the school day. The trial judge rejected this evidence, chiefly
    because it was contradicted by the evidence of other witnesses. But he gave
    five additional reasons for disbelieving her. Of these five additional reasons,
    the appellant argues that one of them contained a fallacious inference by the
    trial judge: that S.C. had initiated, and then suspended, divorce proceedings, because
    if he is found not guilty, she intends to resume a relationship, however, not
    necessarily if he is found guilty.

[37]

The appellant rightly observes that there can be many reasons for suspending
    divorce proceedings, and there was no evidence that S.C. had reconciled with
    the appellant or intended to reconcile with him. The trial judge ought not to
    have speculated about this. Nevertheless, as the Crown argued, the evidence at
    trial established that S.C. remained financially interdependent with the
    appellant. S.C. had filed an application for child support from the appellant,
    and she believed that his future as a teacher  and therefore his financial
    viability  could turn on an acquittal. The trial judge was entitled to
    consider S.C.s interdependence with the appellant. In any event, the status of
    S.C.s relationship with the appellant was only one of several secondary
    reasons the trial judge had for rejecting her evidence.

Applying different standards of
    scrutiny

[38]

It is an error of law to apply a different standard of scrutiny to Crown
    and defence evidence; to minimize problems with Crown evidence while highlighting
    similar or less serious problems with defence evidence. The appellant argues
    that the trial judge, in carrying out his credibility analysis, applied a
    relaxed degree of scrutiny of the Crowns evidence when compared to the scrutiny
    given the defence evidence. He raises four points where there is said to be a divergence.

[39]

First, the appellant contrasts the trial judges rejection of the
    defence theory that the complainant had a motive to lie, with the finding that S.C.
    had a motive to lie based on her statement that her divorce was on hold.

[40]

We do not agree. The two different assessments were not driven by uneven
    scrutiny of evidence. As stated above, the trial judge gave careful scrutiny to
    the argument that the complainant had a motive to lie to M.G. With respect to
    the finding that S.C. had a motive to lie, it was of secondary importance in
    the trial judges credibility analysis, and the evidence was of marginal
    relevance to the allegations.

[41]

Second, the appellant argues that the trial judge drew inconsistent
    inferences from the fact that the appellant and the complainant each lied about
    their affairs to their other partners. Although the trial judge excused the
    complainants lies to M.G., he drew a negative inference from the fact that the
    appellant feigned memory loss when his wife demanded details of the affair.

[42]

Again, this does not constitute uneven scrutiny. The two contexts were
    entirely different. The appellant contrasts the complainants pretending to
    live with the appellants family as a nanny  a deception advanced by the
    complainant and appellant in concert  with the appellants lies to S.C. about
    memory loss after the fact. The trial judge was entitled to draw different inferences
    from the two contextually different deceptions.

[43]

Third, the appellant argues that the trial judge used ambiguities and
    minor inconsistencies in the evidence of S.C. and the police statement given by
    the appellant as evidence that they were downplaying unfavourable facts. This,
    the appellant argues, contrasts with the trial judges lenient attitude towards
    the complainant, whose evidence the trial judge characterized as largely
    consistent, despite inaccuracies and exaggerations.

[44]

Again, the context is vastly different. The appellants statement to the
    police was brief. He said little. The trial judge attributed great significance
    to the few statements that he made that were not simple denials. S.C. testified
    about peripheral matters only and, as stated above, the trial judge had reason
    to discount her testimony. The complainant, by contrast, testified for six days
    on the central matters in issue. In that vastly different context, the trial
    judge was impressed with her overall consistency. This is not uneven scrutiny.

[45]

Fourth, the appellant argues that the trial judge drew inconsistent
    inferences from different witnesses failures of memory. In particular, he contrasts
    the negative inference the trial judge drew from the appellants statement to
    police (that he did not remember how it was that he started to coach the
    complainant to masturbate over Skype), with the trial judges acceptance of the
    complainants vague evidence (that it was an evolution kind of thing).

[46]

This was not uneven scrutiny. The appellants position was that there
    was absolutely nothing unusual about his student-teacher relationship with the
    complainant prior to her turning 18. Within two months he was instructing her,
    via Skype, on how to masturbate while he watched. If things had been as the
    appellant and S.C. had stated, the sexual turn in the relationship must at some
    point have been a sharp and extraordinary change within a defined time period.
    It would have been so alien to the nature of the teacher-student relationship that
    the fact that the appellant could provide no account for how it happened was
    probative. By contrast, the complainant testified that it was an evolution  a
    gradual progression over many years. On her account, it was an increasingly
    sexual relationship that proceeded incrementally. It was not inconsistent, in
    light of the two different backstories, for the trial judge to accept a degree
    of vagueness in the complainants testimony but draw a negative inference from
    the appellants complete absence of memory.

Sentence appeal

[47]

The appellant appeals against sentence based on the assertion that the
    sentence of one year is harsh and excessive, and that the trial judge engaged
    in double counting of the elements of the offence as aggravating factors.

[48]

The appellant characterizes the offence as repeated but brief, low-level,
    sexual touching by a person in authority. He argues that such offences attract
    a sentence between 14 days and six months.

[49]

We do not agree. The sentence is fit and appropriate and there is no
    basis to intervene. The trial judge committed no error in finding that the
    extent of the manipulation and grooming in this case distinguishes it from
    other cases cited. It is relevant that this was a lengthy course of conduct instrumental
    to grooming a student for increasingly intimate sexual activity and dependence.

[50]

The trial judge did not misuse the elements of the offence as
    aggravating factors. The abuse of a person under the age of 18 and the abuse of
    authority are both aggravating factors listed in s. 718.2(a) of the
Criminal
    Code
, and the sentencing judge is required to take them into account. Here,
    the trial judge did not use these as stand-alone aggravating factors, but mentioned
    them in the context of explaining the nature of the sexual grooming.

Disposition

[51]

The appeal against conviction is dismissed. Leave to appeal sentence is
    granted but the sentence appeal is dismissed.

Janet Simmons J.A.

David Watt J.A.

B.W. Miller J.A.


