



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(1), (1.1), (2), or (3) of the
Criminal Code
shall
    continue. These sections of the
Criminal Code
provide:

486(1) Any proceedings against an accused shall be
    held in open court, but the presiding judge or justice may, on application of
    the prosecutor or a witness or on his or her own motion, order the exclusion of
    all or any members of the public from the court room for all or part of the
    proceedings, or order that the witness testify behind a screen or other device
    that would allow the witness not to be seen by members of the public, if the
    judge or justice is of the opinion that such an order is in the interest of
    public morals, the maintenance of order or the proper administration of justice
    or is necessary to prevent injury to international relations or national
    defence or national security.

(1.1) The application may be made, during the
    proceedings, to the presiding judge or justice or, before the proceedings
    begin, to the judge or the justice who will preside at the proceedings or, if
    that judge or justice has not yet been determined, to any judge or justice
    having jurisdiction in the judicial district where the proceedings will take
    place.

(2)     In determining whether the order is in the
    interest of the proper administration of judge, the judge or justice shall
    consider

(a) societys interest in encouraging the
    reporting of offences and the participation of victims and witnesses in the
    criminal justice process;

(b) the safeguarding of the interests of witnesses
    under the age of 18 years in all proceedings;

(c) the ability of the witness to give a full and
    candid account of the acts complained of if the order were not made;

(d) whether the witness needs the order for their
    security or to protect them from intimidation or retaliation;

(e) the protection of justice system participants
    who are involved in the proceedings;

(f) whether effective alternatives to the making
    of the proposed order are available in the circumstances;

(g) the salutary and deleterious effects of the
    proposed order; and

(h) any other factor that the judge or justice
    considers relevant.

(3)     If an accused is charged with an offence
    under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or
    section 163.1, 171, 171.1, 172, 172.1, 172.2, 173, 271, 272, 273, 279.01,
    279.011, 279.02, 279.03, 286.1, 286.2 or 286.3 and the prosecutor or the
    accused applies for an order under subsection (1), the judge or justice shall,
    if no such order is made, state, by reference to the circumstances of the case,
    the reason for not making an order.

(4) No adverse inference may be drawn from the fact
    that an order is, or is not, made under this section.

R.S., 1985, c. C-46, s. 486; R.S., 1985, c. 27(1
st
Supp.), s. 203, c. 19 (3rd Supp.), s. 14, c. 23 (4
th
Supp.) s. 1;
    1992, c. 1, s. 60(F), c. 21, s. 9; 1993, c. 45, s.7; 1997, c. 16, s. 6; 1999,
    c. 25, s. 2(Preamble); 2001, c. 32, s. 29, c. 41, ss. 16, 34, 133; 2002, c. 13,
    s. 20; 2005, c. 32, c.43, ss. 4,8,; 2010, c.3, s. 4; 2012, c. 1, s. 28; 2014,
    c. 25, s. 21; 2015, c. 13, s. 13, c. 20, s. 21.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Trachy, 2019 ONCA 622

DATE: 20190723

DOCKET: C65402

Doherty, Benotto and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Claude Eric Trachy

Respondent

John Patton, for the appellant

Matthew R. Gourlay, for the respondent

Heard: May 14, 2019

On appeal from the acquittal entered on April 23, 2018 by
    Justice Thomas J. Carey of the Superior Court of Justice, sitting without a
    jury, with reasons reported at 2018 ONSC 2666.

Benotto J.A.:

[1]

The Crown appeals the respondents acquittal of 44
    counts of sexual offences arising from his conduct while teaching violin to
    young girls.

[2]

The Crown alleged that during violin and viola lessons, the respondent
    required his young female students to undo their blouses and remove their bras.
    He touched their breasts and measured from the top of the collarbone to the
    nipple. On occasion he asked the students to play the violin while disrobed. Twenty
    one women testified to this effect. To a large extent, the respondent
    acknowledged his conduct, but testified that he was motivated by a desire to
    ensure that his students had properly fitting shoulder rests for the violin.

[3]

The respondent was charged with sexual assault, indecent assault, sexual
    interference, and sexual exploitation. After a 13-day trial, the trial judge
    found that the touching was not for a sexual purpose and acquitted the
    respondent of all charges including those for which sexual purpose is not an
    essential element. Sexual purpose is a required element of sexual interference
    and sexual exploitation. It is not a required element for sexual assault or its
    predecessor indecent assault.

[4]

I would allow the appeal in part. I would set aside the acquittals on the
    sexual assault and indecent assault charges and enter convictions in their
    place, but uphold the acquittals on the sexual interference and sexual exploitation
    charges.

FACTS

[5]

The respondent is now 73 years old. He began teaching the violin as a
    teenager in 1960 and continued up until his retirement in 2009.

[6]

The underlying events with respect to the charges now before the court
    were alleged to have taken place between 1971 and 1993.
[1]


[7]

Twenty-one former female students testified. It was agreed that all of
    the counts against the respondent related to his conduct in measuring his
    female students for rests that support the violins.

[8]

The respondent testified that the shoulder rests were helpful to his
    violin students and that measuring their bodies was necessary to achieve a
    proper fit. He acknowledged that he had his female students undo their blouse
    on the left side and remove the bra. He then would use a ruler to measure from
    the top of the collarbone to the nipple and from the jaw to the collarbone. He
    would also measure the underside of the breast. In some cases he would ask his
    female students to play disrobed to ensure that the rest was properly fitted.
    He denied any sexual intent in the measurements and said it did not give him
    sexual gratification. He measured only his female students, not the males. He
    did not measure his daughter although she was a student of his.

[9]

He testified that after he was charged in 1991 he took the door off his
    music room and no further measurements of students were ever made.

THE TRIAL

The evidence

[10]

The
    trial judges reasons do not address the detailed evidence of the complainants
    in relation to the sexual assault and indecent assault charges.  This evidence
    grounds the charges so I summarize the complainants testimony followed by that
    of the respondent.

Summary of each complainants testimony followed by the respondents

(1)

M.A. (count 30  indecent assault)

[11]

M.A.
    had lessons with the respondent from age 12 to 16. At her initial lesson he
    told her that the next time he would measure her for a shoulder rest in such a
    way that my breast would be exposed; specifically, he would have to measure
    my bare breast. She had dread in the car on the way there as she was just
    developing, and she was the only person who had ever seen her breasts. The
    respondent opened her shirt about four buttons down, completely exposing her
    bare breast to his view, and using a ruler he measured my left breastfrom the
    collarbone

down to the nipple. His hands touched her breast as he
    was manipulating the ruler.

[12]

The
    respondent testified that he did not take issue with what M.A. said about what
    happened.

(2)

E.W. (count 42  sexual assault)

[13]

E.W.
    took violin lessons from the respondent between the ages of 8 and 16. When she
    was 12 or 13, he said Youre developing now, and I need to measure you for a
    rest. He gave her a shoulder rest and she played. He then had her remove her
    sweater while he examined her left breast, touching her bare skin. He commented
    about red marks and watched her play in her bra. Sometimes he would take a
    ruler and measure down the length of her breast to her nipple, even though
    shoulder rests did not extend that far. These incidents happened repeatedly 
    approximately two dozen times over two years. She also spoke about an incident
    when he tickled her waist as she was walking up the stairs.

[14]

The
    respondent agreed with her evidence regarding tickling and acknowledged taking
    the measurements but said he did not remove all of her clothing.

(3)

N.D. (count 31  indecent assault)

[15]

N.D.
    began her violin lessons with the respondent when she was 12 or 13 years old.
    He asked her to wear a buttoned shirt with a bra which unclasped at the front.
    He said his theory was that if she was measured without clothing, the shoulder
    rest [would] fit my body no matter what I wore. She was enticed by his promise
    of a personalized engraved shoulder rest. The following week, he asked her to completely
    remove her shirt and bra. She felt exposed and cold. He then measured with a
    ruler from her clavicle down to my nipple and then he went around the side to
    my nipple, and then he lifted up my breast and he put the ruler underneath and
    measured from my rib, ribcage to my nipple. He actually lifted my breast up
    to sit on the ruler. Both breasts were exposed.

[16]

The
    respondent agreed that he asked her to take off her blouse to expose her left
    breast. He agreed that he measured her from her clavicle to her nipple.

(4)

K.B. (counts 36 and 37  sexual assault; count 38  sexual interference;
    counts 39 and 40  sexual exploitation)

[17]

K.B.
    began taking violin lessons with the respondent at the age of 7. Once her
    breasts developed at age 14, he began touching her. It continued monthly. The
    respondent would put his left hand on her chest underneath what she called a
    chest rest while he used his right hand to make adjustments. On occasion
    while he was checking he would also measure. This involved him unbuttoning her
    shirt and using a ruler to measure the distance between my chest, my
    collarbone and my chest.[t]o the nipple. She wore a bra but his hands would
    come in contact with her breast as he measured from the collarbone to my
    nipple and then from under. While doing so he would cup her breast.

[18]

The
    respondent agreed that he measured her but said it was done over her clothing,
    once every two months, and that it did not involve cupping.

(5)

N.D. (counts 2 and 3  sexual assault; count 4  sexual interference;
    count 5  sexual exploitation)

[19]

N.D.
    took violin lessons from age 12-15. Shortly after she started, the respondent
    made a mould for a shoulder rest. She was required to remove her shirt and
    leave it hanging at her waist. She was not yet developed enough to be wearing a
    bra. A casting agent was placed over her collarbone and left shoulder. It
    hardened and then was removed ostensibly to create a shoulder rest. This
    happened more than 10 times which seemed abnormal. She was required to
    unbutton her shirt or remove it if it did not have buttons. The respondent
    would then touch her breasts by the patting of his fingers which pressed into
    her breasts mostly on the outside of my left breast. As he touched her
    breasts he would say things to stroke her ego. He would also ask her to play
    with my shirt off and sometimes he would sit behind me at his desk and I was
    instructed not to turn around. Sometimes it would be quite brief and other
    times it would be more extensive.

[20]

The
    respondent did not remember N.D. being a student of his. When asked if he
    touched her in the way she described, he replied No, I dont remember her.
    However, in general, the respondent acknowledged making moulds for
    approximately four or five of his students. This involved placing the mould on the
    students body, patting it down, forming it to the left side and shaping it to
    her skin.

(6)

F.K. (count 1  indecent assault)

[21]

F.K.
    took violin lessons from the respondent between ages 9 and 16. She said he
    asked her to undo my blouse and expose my breast. I was surprised when I was
    asked not to wear a bra because it was easier to do the fittings. He would measure
    her from collarbone to her left shoulder, and then down the front of me to the
    end of my breast. He would do this measurement either with his hands or [with]
    a small ruler, and sometimes the breast would be exposed. During this process
    he would also have her play the violin with her breast exposed and walk around
    watching her. He explained that he was looking for marks on her body, even
    though when she played the instrument, it was not held down low enough so that
    it would engage the breast area. She also had specific memories of a number of
    events. The first was when, as the fitting occurred, he told her to look at the
    ceiling. The second one was when he said Good thing Im ambidextrous when he
    switched the ruler to his other hand. The third was when he used his forefinger
    or thumb to rub the end of my nipple saying I want to see where the end of
    you is. He also used the ruler such that it rubbed her nipple. The last
    specific memory was arriving to see a number of shoulder rests laid out and the
    respondent saying she needed to have a fitting for each one. She felt this
    dread about what I knew was going to be happening. She continued:

By the end of the lesson I had my shirt off on the left side,
    so I was naked on the left side. I remember playing and him walking around me
    and one of the reasons why this memory is so distinctive to me is I remember
    the shirt that I was wearing. It was a blue shirt. It was, at that time in my
    life my favourite shirt and I was extremely upset when I went home, and I threw
    out the shirt.

[22]

F.K.
    questioned what was occurring as neither the violin nor the rest, the shoulder
    rest, touched my left breast or my left nipple and I did not understand why he
    was measuring there. The respondent agreed that he measured her, but denied
    most of the specific events she testified about. He did not recall if her
    blouse was undone, but did recall that it was on her body.

(7)

F.B. (count 32  indecent assault)

[23]

F.B.
    was recruited by the respondent to learn to play the viola as her brother received
    violin lessons. She ended up getting lessons for free. Shortly after they
    commenced the respondent said she had to be measured for a shoulder rest and
    she was required to wear a blouse which opened at the front. When the
    measurement occurred she opened her blouse on request and he took a wooden
    ruler and proceeded to place it on my skin to measure from my left clavicle
    down to the tip of my nipplehe put the ruler inside the bra and pulled the bra
    forward to be able to visualize the nipple. A couple of lessons later, not
    satisfied with the measurements he had gotten the first timehe suggested to me
    that he really felt it was very important to do it again. She resisted as in
    the interim she had told her mother who advised her to not put yourself in a
    position where he can do that again. However, he ended up being a little more
    aggressive about doing it, and he just kinda, you know, took my, my top and
    moved it to where he wanted it and he actually put his hand underneath my
    breast to put the ruler underneath the breast to measure from the rib cage out
    to the nipple. In doing so, he cupped my breast with his hand from within my
    bra. This occurred even though the viola rest did not touch her breast.

[24]

The
    respondent agreed that he told her to unbutton her shirt. He stated that he
    used a wooden ruler and measured her from her clavicle to her left nipple. He
    denied cupping her breast.

(8)

A.G. (count 20  sexual assault)

[25]

A.G.
    took both viola and violin lessons from the respondent. During viola lessons,
    when she was about 12, as she started to develop, he said he would need to,
    from time to time, have me expose my left breast and he would need to take some
    measurements. She tried each time to wear the same pink top that buttoned up
    the front. He would ask her to unbutton it, then take her bra strap off her
    left shoulder and measure with a ruler from my clavicle to, my nipple on my
    left breast. Sometimes he would use his hand to push against the breast and
    watch it react. He also sometimes asked me to play something. So, then I
    would, move to the music stand and play something and he would sit at his desk
    and watch me play with, my breast exposed. This behaviour occurred at most of
    her weekly sessions as she remembered that for a period it felt like it was
    the rule, like it was going to happen most of the time.

[26]

The
    respondent agreed that he measured her.

(9)

S.K. (count 41  indecent assault)

[27]

S.K.
    took lessons from the fall of 1975 to the spring of 1976, when she was 15 and
    well developed in the breast area. A single incident occurred which caused her
    to end the lessons. The respondent made a pretense of needing to measure me
    for something related to my violin and got out a ruler, saying the essential
    distance was between my collarbone and my nipple. She was required to open her
    blouse and he put the ruler into my bra so he could get that measurement. She
    felt creepy, bizarre, dirty, ashamed, stupid and gullible.

[28]

Although
    the respondent had no memory of S.K. he acknowledged that there were situations
    when he measured under a students breast using a ruler to determine the size
    of the breast.

(10)

G.D. (count 19  indecent assault)

[29]

G.D.
    took violin lessons from age 11 to 14. As her breasts started to develop at age
    12 or 13 the respondent told her she needed a shoulder rest or a larger violin
    and said he was going to measure her. Without further discussion [h]e opened
    my shirt and put the ruler down my shirt and put his hand down my shirt. And
    his hand was on my left breast and his fingers were on my nipple moving the
    ruler to my nipple.

[30]

The
    respondent agreed that he examined and measured her left breast.

(11)

E.P. (count 33  indecent assault)

[31]

E.P.
    took lessons at 16 years old. The respondent asked her to unbutton her blouse.
    She unbuttoned a few buttons on her own before he opened her blouse and
    commenced measurements. He used a ruler, measured her collarbone and then my
    left breast so along the side, and then he would gently lift my very small
    breast and put the ruler underneath and sort of be making measurements to how
    far the nipple came out on the rulerhe was also sort of lifting the nipple and
    pulling it out along the ruler. He measured her right breast too, commenting
    that there was a difference in the size. These types of measurements happened
    for six or seven lessons with the focus usually being on her left breast. But,
    both breasts would be exposed whether he was touching the right or not, the
    shirt was completely opened during these measurements. She felt very
    uncomfortable being kind of sick to my stomach.

[32]

The
    respondent did not recall measuring E.P., although he said her evidence was
    possible.

(12)

J.S.F. (counts 23 and 24  sexual assault; count 25  indecent assault;
    counts 26 and 27  sexual exploitation)

[33]

J.S.F.
    commenced violin lessons with the respondent at 9 years of age. She also
    learned to play the viola commencing at around age 13 or 14. When she was
    required to have a measurement he would lock the door. The idea, she was
    told, was to help women hold their instruments up higher. She was told to
    wear a buttoned shirt which she undid on request, exposing her left breast. He
    then measured her bare breast by placing a ruler underneath of my breast and
    held the breast in place on top of the ruler. There was also an epoxy or a
    substance used for a mould that was warmed up that was placed on my chest to
    take a mould of my chest. The mould went across her collarbone down her breast
    to her nipple. The moulding occurred more than once while the measurement
    occurred at least 10 times. Embarrassed, she would look away and wait for it
    to be finished. She remembered there being one or more times where I would
    hold the violin up so that he could see the position of the rest on my bare
    chest. While measuring he would place his hand on my breast and just sort of
    shift it so that it was placed on the ruler and he would hold the breast in
    place. At the time she didnt know it was wrong, only figuring it out in her
    early 20s. As she struggled through substance abuse issues she ended up calling
    the respondents home on several occasions with the intention of taking him to
    court and suing. During her cross-examination she was confronted with audio
    recordings of some of those telephone calls.

[34]

The
    respondent agreed that he used his hands and a ruler to measure J.S.F. He also
    agreed that he made a mould.

(13)

K.K. (count 49  sexual assault)

[35]

K.K.
    commenced viola lessons with the respondent at age 12 or 13. On her first
    lesson, the respondent undid the buttons on her blouse. With her breast exposed
    in a training bra she froze in shock and stared at a piano in the room. She
    heard clicking of adjustments and then felt him patting around her collarbone
    followed by patting around the side of my breast, under my breast, over top of
    my breast.over the nipple. He used a ruler, as well, between stages of
    patting and used his fingertips. She immediately questioned the behaviour
    knowing it wasnt normal, as I dont know what the rationale was for
    undressing or unblousing me.

[36]

The
    respondent agreed that he patted around her collarbone and breast, used a
    ruler and did it in the way she described.

(14)

M.B. (counts 34 and 35  sexual assault)

[37]

M.B.
    commenced violin lessons with the respondent at age 9. At around age 10 she
    transitioned from a sponge to a shoulder rest. She was in a training bra when
    the measurements occurred:

I would have to unbutton my blouse and pull my bra strap down
    over my shoulder. And at that point in time he would measure from my collarbone
    down to my nipple. And he would place his hands underneath my breast and around
    the sides of my breast and he would  his hand would cover my breast and touch
    my chest area.

[38]

She
    recalled that he had used a hard item, which bothered her nipple. This happened
    routinely, even though her shoulder rest was never adjusted. She stopped
    lessons at age 16. On one occasion, around the same time the measurements
    started, he took a piece of mould he had to heat and [placed it] along her
    collarbone. It was like putty and was used with her shirt and bra on.

[39]

The
    respondent agreed that he examined her left breast.

(15)

K.O. (count 43  indecent assault (under the last name Z. which was her
    married name))

[40]

K.O.s
    parents were told that she would be measured for a shoulder rest, which was, in
    the respondents words, a bit of a rough process. He separately implied to
    her that she needed to wear something that would unbutton. This caused her to
    be uncomfortable: a voice in me that it just  it didnt make sense. The next
    two lessons she did not comply with his wardrobe requests. The first occasion
    he had a look on his face, he was a little angry. The second occasion he closed
    the door and told her to remove her top. When she had, he approached and slid
    down the strap of her camisole on her left side. She looked away, numb, feeling
    the ruler underneath my breast. I remember him touching the top, putting the
    ruler on me and feeling how cold it washe measured me right to the, right to
    the nipple. His hand was underneath her breast as the ruler went just straight
    down to my nipple.I just remember the warmth of his hand. A short time later,
    when the small shoulder rest was in, she was shocked that I had to take my
    clothes or my shirt off, and I was shocked that my breast was even touched or
    exposed or measured when it clearly had nothing to do with the shoulder rest.

[41]

The
    respondent did not recall measuring this student.

(16)

A.S. (counts 12 and 13  sexual assault; count 14  sexual interference;
    count 15  sexual exploitation)

[42]

A.S.
    started violin lessons with the respondent in kindergarten at age 5 and
    continued through high school to age 19. When she was around 11 or 12, as her
    breasts began to develop and she started wearing a bra, he raised the issue of
    measurement for a shoulder rest. The result was that he would remove my
    undergarments, my shirt, and would often need to play without any upper
    clothing on so he could observe me playing with it properly. He also took a mould
    of my breast to make sure that it, according to him, would fit the rest
    properly. The measuring of her left breast and playing without upper clothes
    on happened frequently, but not every lesson. She would remove my upper
    clothing and I would play the majority, if not all of my lesson without any
    upper clothing on and he would be, either behind his desk observing me play or
    he would be beside me touching my breast, measuring my breast with a ruler or
    his hands. In addition, he would measure different parts of my breast, the
    side, the front, underneath. He would also touch it with his hands, move it
    around. He would move it on the ruler, move it off the ruler. He measured from
    my collarbone to my nipple and the front section of her breast. He would come
    up and touch her in this fashion a few times during any given lesson. This
    occurred even though the position of the shoulder rest was several inches above
    her breast and nipple. The moulding only occurred once. The behaviour ended
    around 1992 or 1993. She was not comfortable with it then. I am not
    comfortable with it now.

[43]

The
    respondent agreed that he touched her left breast and moved it around to
    facilitate the taking of measurements. He denied touching her on more than one
    occasion during any given lesson.

(17)

S.G. (counts 6 and 7  sexual assault; count 8  sexual interference;
    count 9  sexual exploitation)

[44]

S.G.
    took lessons from approximately age 10 to age 16 ending in June of 1992. She
    recalls being measured together with her sister, J.G., sometimes prior to her
    individual lessons and sometimes in the middle of playing. He was using light
    fingertip touching, pushing, I guess, under, under our breasts and slowly
    moving up to the breast and under the chin area. Occasionally, he touched her
    nipple. I hated every moment of it. She viewed it as sexual in nature and
    thats what made me feel it was inappropriate.

[45]

The
    respondent agreed that he measured her but did it over top her clothes, and
    never in the presence of her sister.

(18)

H.S. (counts 16 and 17  sexual assault; count 18  sexual exploitation)

[46]

H.S.
    received violin lessons from the respondent from age 8 until she went off to
    university. Her breasts developed early. In her early teens, around age 13 or
    14, the respondent told her she was to be measured to fit her body type and
    that a mould would be taken  my mom had given permission, as far as I knew to
    fit me with a rest. His request to her was more specific, that she attend with
    a blouse that could be undone and a bra that opened at the front so that my
    chest was bare or exposed. I would have to unbutton my blouse, undo my braBecause
    it was bare and exposed, he would put the ruler down all the way from my
    shoulder to my nipple area. There was often another piece of plastic that held
    my breast like underneath my breast. On occasion she felt so uncomfortable
    that I thought if I just wore a bra and a tight t-shirt that that would
    suffice. But on some of those occasions he just proceeded to pull open her t-shirt,
    pull the bra, then put the ruler down my top all the way to my nipple. She
    had a vivid recollection of a time it occurred at her home when her parents
    were at work. She was asked to go upstairs to my bedroom to take off my bra
    and come down without a bra on with my blouse unbuttoned down the front, which
    led to the respondent measuring once again with a ruler, shoulder to nipple.
    The moulding occurred many times although she never received a rest as a result
    of the process. The material was warmed up and, after she had undone her blouse
    and bra, placed on her shoulder down past her nipple.

[47]

The
    respondent agreed that he measured her eight to ten times.

(19)

J.V. (count 28  indecent assault; count 29  sexual assault)

[48]

J.V.
    commenced violin lessons with the respondent at age 23, after having given
    birth to her first child. She did not do so for long, but then she had further
    sessions after her second child. Shortly after the lessons started the
    respondent counselled her to be measured for a customized shoulder rest. He
    warned the contact would be intimate involving unbuttoning her blouse and
    exposing her left breast, the measuring to be done from the nipple to the
    shoulder. As everything was new to her she took his word. The measuring
    happened more than twice. He used a ruler at the end of the breast, like the
    nipple, and up to the shoulder. He came up and measured and definitely
    touched my nipple. Then, she recalled Id be playing with my left breast
    exposed and he would watch, see how much I had to move the violin or adjust.
    When she returned after her second child was born she went through the process
    again as he said her body had changed. At the time she thought it was a
    clinical experience she had to get through. When I think about it now, no,
    because I dont know that the breast has any bearing on other than the very
    upper portion of your breast where the rest would sit upon your chest. She
    eventually ended the measurements by saying I have a shoulder rest, I think we
    can make it work. I dont play in the nude, so my clothing, my bra, everything
    changes every time I play. So, we will not do the measuring.

[49]

The
    respondent agreed that he told her she would have to expose her left breast. He
    agreed that he measured her with a ruler, but added that J.V.s husband was
    present in the room during the measurement.

(20)

J.G. (count 10  sexual assault; count 11  sexual exploitation)

[50]

J.G.
    is S.G.s younger sister. She took violin lessons from the respondent between
    the ages of 7 and 14. After the onset of puberty she and her sister were told
    they needed to have a bar to hold the violin and they would be measured for
    it. The measurements happened a number of times while J.G. and S.G. were in the
    same room: he walked over to us and he would use like a kneading or probing
    manner in a semi-circular fashion. Over her clothing he would touch the
    outside or underside of her breast with his hands and fingers. He likely only
    touched the left breast but he did not use any measuring device. She was
    visibly upset and felt awkward, she hated it, but just endured owing to his
    status and her family dynamics.

[51]

The
    respondent agreed that he measured her, but did so over her clothes without any
    kneading or probing motions. He also denied measuring J.G. in the presence of
    her sister.

(21)

J.K. (count 21  indecent assault; count 22  sexual assault)

[52]

J.K.
    started violin lessons with the respondent at age 5 and continued until she was
    11 or 12. Measuring started at puberty at around age 9. She could not recall if
    any measuring tape or ruler was used. The respondent would run his hands under
    the violin under the shoulder rest touching the middle of her breast over her
    clothes. He would push her breast with his fingers. He would also move her
    shirt to the side. It happened frequently, but not every lesson. She felt very
    uncomfortable: its an area of the body that shouldnt be touched. She didnt
    tell because as a child I thought I would probably get in trouble for letting
    it happen.

[53]

The
    respondent agreed that he ran his hand along her chest, and used a ruler to
    measure her from her collarbone to her nipple.

The Expert Evidence

[54]

Jerzy Kaplanek was qualified to give opinion evidence in the
    area of music teaching for violin and viola, specifically the use of rests and
    other supports and the need for measuring or touching the student in the course
    of fitting for such a device.

[55]

Mr.
    Kaplanek is a musician, performer and Associate Professor of Music at Wilfred
    Laurier University. He specializes in violin and chamber music. He has been
    teaching violin for 25 years.

[56]

He
    described the three points of connection between the musician and the violin:
    the jaw, collarbone/shoulder and the fingers. He explained that there is no
    need to take measurements. In particular, there is no need to measure students
    from the collarbone to the nipple with respect to fitting for a rest. There is
    no need to touch a students breast. The rest would not go as far as the breast
    in any event. He has never heard of a theory to measure students without
    clothes. There is no reason to observe students with a breast exposed.

[57]

In
    short, in Mr. Kaplaneks opinion there was no pedagogical reason to do the
    measuring, the touching or the undressing.

Similar Fact Application

[58]

During
    the trial, the Crown brought an application to use the evidence of each of the
    individual complainants as similar fact evidence to bolster the overall credibility
    of their allegations.

[59]

The
    Crown wished to use each count to demonstrate a pattern of behaviour to show
    that it was more likely that the behaviour occurred, and that it was sexually
    motivated. The defence position was that this was unnecessary because there was
    no real issue that the touching occurred. The defence also argued that
    cross-count reasoning would not assist in determining the reason for the
    touching.

[60]

The
    trial judge accepted the defence position. He reasoned that the general facts
    of the way that the touching occurred [is] not a major issue in this trial to
    be determined.
The fact that there was touching at the
    time of the lessons it is really not the issue.
He therefore concluded
    that the probative value of the evidence was neutral: the number of incidences
    and the repetition dont assist with whether or not this was legitimate
    activity or criminal activity for a sexual purpose.

[61]

The
    similar fact application was denied.

Reasons for Judgment

[62]

In
    entering acquittals on all counts, the trial judge found that the respondents
    touching of his female students was not done for any sexual purpose. He
    accepted that the respondents intent was to help his female students play
    better and be better supported by fitting and designing rests that would
    support the violin and shoulders down to the mid-chest area. He further held:

When I examine all of the circumstances of the measuring and mould-making
    I am unable to conclude that a reasonable observer at the time that [the respondent]
    was teaching would have concluded that there was any sexual or carnal context
    to the measuring. The students were told they were going to be measured and
    what it would entail. Looked at as a whole, the evidence supports that [the respondent]
    was an innovative, talented violin player and teacher. He made no inappropriate
    comments; the touching of his students was minimal and done so only to assist
    in getting the measurements he felt were necessary for the proper fitting of the
    rests that were a new innovation during the 1970s and 1980s. They are now
    widely used.

[63]

The
    trial judge found the Crowns witnesses, including the expert witness and all
    the complainants except for J.S.F., credible. However, he was not persuaded by
    the expert evidence that the actions of [the respondent] could only have been
    for a sexual purpose.

POSITIONS OF THE PARTIES

[64]

The
    Crown submits that the trial judge erred in entering acquittals on all counts.
    With respect to the sexual interference and sexual exploitation counts, the
    trial judge failed to give sufficient weight to the Crowns evidence, such that
    he did not properly determine the respondents guilt or innocence. With respect
    to the sexual assault and indecent assault counts, the trial judge erred in law
    by misapprehending and, therefore, failing to apply the constituent elements of
    the offences, in particular by equating the lack of touching for a sexual
    purpose with a purported lack of touching in circumstances of a sexual nature. The
    Crown submits that the acquittals should be set aside and convictions entered
    in their place. Alternatively, the Crown requests a new trial.

[65]

The
    respondent submits that this is really an unreasonable acquittal appeal. The
    arguments advanced by the Crown are factually based. Insofar as the trial judge
    accepted the evidence of the respondent, the trial judge was bound to acquit in
    accordance with the first branch of
R. v. W.(D.),
[1991] 1
    S.C.R. 742. Alternatively, the respondent submits that the proper remedy for
    any fatal legal error is a new trial, since the trial judge did not make the
    necessary factual findings to permit this court to enter convictions on appeal.

ANALYSIS

[66]

The
    trial judge accepted the evidence of the respondent that the touching was not
    for a sexual purpose. It was open to the trial judge to make this factual
    finding. Having done so, he was bound to acquit the respondent of the sexual
    interference and sexual exploitation charges, because sexual purpose is an
    essential element of both offences. However, as I will explain, the trial judge
    erred in law by relying exclusively on that finding to acquit the respondent of
    the sexual assault and indecent assault charges. The acquittals on those
    charges therefore cannot stand.

[67]

I
    begin by discussing the scope of the Crowns right of appeal against acquittals.
    Then, against the backdrop of the offences charged, I explain the trial judges
    error of law. I conclude by addressing the appropriate remedy.

Appeal against acquittals

[68]

Subsection
    676(1)(a) of the
Criminal Code
,
R.S.C. 1985, c. C-46,  provides that the Crowns right of appeal against
    acquittals is restricted to questions of law alone. Jurisprudence establishes
    that such questions include the following: misinterpretation or misapplication
    of salient legal standards, including the elements of the offences; assessing
    evidence based on erroneous legal principles; making findings of fact not based
    on the evidence; failing to give legal effect to findings of fact or of
    undisputed facts; failing to consider all the evidence bearing on guilt or
    innocence; failing to properly admit evidence; and, failing to provide adequate
    reasons:
R. v. Fitton
,

[1956]
    S.C.R. 958;
R. v. Audet
,

[1996] 2 S.C.R. 171;
R. v.
    Ewanchuk
,

[1999] 1 S.C.R. 330;
R. v. Graveline
,

2006
    SCC 16
,
[2006] 1 S.C.R. 609;
R. v. Walker
, 2008 SCC 34,
    [2008] 2 S.C.R. 245;
R. v. Lutoslawski
,  2010 SCC 49, [2010] 3 S.C.R.
    60;
R. v. J.M.H
., 2011 SCC 45, [2011] 3 S.C.R. 197.

[69]

The
    Crown has raised a question of law as the basis for the appeal against the acquittal
    on the sexual assault and indecent assault counts. The Crown alleges that the
    trial judge did not apply the correct elements with respect to these offences. I
    therefore reject the respondents submission that the issue is an unreasonable
    acquittal as it applies to these counts.

The offences charged

[70]

There
    were four offences charged: sexual interference, sexual exploitation, indecent
    assault, and sexual assault. Sexual interference and sexual exploitation are
    age and relationship based offences. They are designed to protect the sexual
    integrity of young persons in their interactions with adults. The
actus
    reus
for sexual interference is the touching of a young person. The
actus
    reus
for sexual exploitation includes the touching of a young person by a
    person in a relationship of trust or authority. The
mens rea
for both
    offences is the specific intention

to touch for a sexual purpose.

[71]

Indecent
    assault is the predecessor to sexual assault. On January 4, 1983 the
Criminal
    Code
was amended to replace indecent assault with the offence of sexual
    assault. For purposes of this appeal, the impugned conduct is capable of
    satisfying the elements of both indecent assault and sexual assault, which will
    often be the case as the Supreme Court observed in
R. v. Chase,
[1987]
    2 S.C.R. 293, at p. 301:

While it is clear that the concept of a sexual assault differs
    from that of the former indecent assault, it is nevertheless equally clear that
    the terms overlap in many respects and sexual assault in many cases will
    involve the same sort of conduct that formerly would have justified a
    conviction for an indecent assault. The definitional approach to indecent
    assault, also an offence not defined in the
Criminal Code
,
    therefore offers a guide in our approach to the new offence, as recognized by
    Laycraft C.J.A. After many years of dealing with the concept of indecent
    assault, the courts developed the definition, "an assault in circumstances
    of indecency". This, of course, was an imprecise definition but everyone
    knew what an indecent assault was. The law in that respect was reasonably clear
    and there was little difficulty with its enforcement. In my view then, a
    similar approach may be adopted in formulating a definition of sexual assault.

[72]

Indecent
    assault and sexual assault are assaults committed in circumstances of an
    indecent or sexual nature such that the sexual integrity of the victim is
    violated. They are general intent offences that do not require proof of sexual
    purpose or sexual gratification on the part of the accused. To establish sexual
    assault, the Crown must prove beyond a reasonable doubt that the accused intentionally
    touched the complainant without consent in circumstances of a sexual nature. In
    contrast to sexual purpose, the test to be applied in determining whether the
    conduct is of a sexual nature is objective. In
Chase,
at p. 302, the
    court confirmed that:

The test to be applied in
    determining whether the impugned conduct has the requisite sexual nature is an
    objective one: "Viewed in the light of all the circumstances, is the
    sexual or carnal context of the assault visible to a reasonable observer".
    The part of the body touched, the nature of the contact, the situation in which
    it occurred, the words and gestures accompanying the act, and all other
    circumstances surrounding the conduct, including threats which may or may not
    be accompanied by force, will be relevant. [Citations omitted.]

[73]

The
    objective test requires the court to look to all the circumstances surrounding
    the conduct to determine on an objective basis whether it was of a sexual
    nature and violated the sexual integrity of the complainant:
R. v. Litchfield
[1993] 4 S.C.R. 333, at p. 345. While the intent or motive of the accused may
    be a factor in considering whether the conduct was sexual in nature, the
    Supreme Court in
Chase
went on to state, at p. 302:

It must be emphasized, however, that the existence of such a
    motive is simply one of many factors to be considered, the importance of which
    will vary depending on the circumstances.

[74]

The
    mental element in sexual assault and indecent assault is the intention to
    touch. Proof of sexual purpose is not required because the factors which could
    motivate sexual assault are said to be many and variedTo put upon the Crown
    the burden of proving a specific intent would go a long way toward defeating
    the obvious purpose of the enactment, which is to protect the sexual integrity
    of all persons:
Chase,
at pp. 302-303. As the Supreme Court stated in
R.
    v. Ewanchuk,
[1999] 1 S.C.R. 330, at para. 28:

Society is committed to protecting
    the personal integrity, both physical and psychological, of every individual. Having
    control over who touches ones body, and how, lies at the core of human dignity
    and autonomyIt follows that any intentional but unwanted touching is criminal.



The legal error

[75]

The
    trial judge erred in law by determining that the respondents lack of sexual
    purpose was determinative of the sexual assault and indecent assault charges.
    In short, he confused the sexual purpose of the respondent with the sexual
    nature of the conduct. The trial judges reasons demonstrate this. At the
    outset of his reasons, he set out the parameters of the case:

It is agreed by counsel that all
    of the counts against [the respondent] relate to his conduct in measuring his
    female violin students for rests used to help support the violins or violas of
    [his] students. The Crown contends that these girls and women students were
    touched by [him] for a sexual purpose and the so-called measurements were
    simply a ruse to enable [him] to touch his female students for his own sexual
    gratification.

[76]

The
    trial judge then correctly quoted the applicable legal test from
R. v.
    Lutoslawski,
2010 SCC 49, [2010] 3 S.C.R. 60:

The test to be applied in
    determining whether the impugned conduct has the requisite sexual nature is an
    objective one: viewed in the light of all the circumstances, is the sexual or
    carnal context of the sexual assault visible to a reasonable observer?

[77]

He
    also referred directly to the passage from
Chase
that sets out the circumstances
    relevant in determining whether the impugned conduct in a case of sexual
    assault has the requisite sexual nature:

The part of the body touched, the
    nature of the contact, the situation in which it occurred, the words and
    gestures accompanying the act, and all other circumstances surrounding the
    conductwill be relevantThe intent or purpose of the person committing the
    act, to the extent that this may appear from the evidence, may also be a
    factorIt must be emphasized, however, that the existence of such a motive is
    simply one of many factors to be considered

[78]

However,
    the trial judge then conducted an assessment of [the respondents] evidence as
    it is relevant to the objective determination of the sexual nature of his
    conduct. He concluded that any touching of [the respondents] female students
    was not done for any sexual purpose and that his intent was to help [them] play
    better. On this basis the he said that he is unable to conclude that a
    reasonable observer would have concluded that there was any sexual or carnal
    context to the measuring.

[79]

In
    this way, the trial judge conflated the issue of touching for a
sexual
    purpose
with that of touching in circumstances

of a
sexual
    nature.
This is evident from his conclusion:

None of the circumstances
    presented in this court lead me to conclude that a reasonable observer would
    perceive a sexual purpose in [the respondents] measuring, recording of the
    measurements, observing his students playing or in the making of moulds for rests
    in the shoulder and upper breast.

[80]

Even
    if a reasonable observer would not perceive a sexual purpose in the
    respondents conduct, this is not dispositive of whether or not he committed
    sexual assault or indecent assault. Sexual purpose is not an essential element
    of either of these offences. The trial judge therefore erred in law in treating
    the absence of sexual purpose, which required that the respondent be acquitted
    on the sexual interference and sexual exploitation charges, as requiring his
    acquittal on the indecent assault and sexual assault charges as well.

[81]

This
    error of law is further demonstrated by the fact that the trial judge made only
    passing reference to the testimony of the complainants. He made no specific
    reference to their evidence except in very general terms that they [a]ll
    agreed that any touching of their bodies above or below clothes were (
sic
)
    within the context of being measured. He called the touching minimal and done
    so only to assist in getting the measurements. There was no analysis with
    respect to the sexual integrity of the complainants and whether that integrity
    was violated by the respondents touching of their breasts. The trial judge did
    not address the position of trust between the child-students and their teacher.
    He did not address the sexual nature of the touching.

[82]

The
    respondent submits that his lack of sexual purpose justified acquittal on the
    sexual assault and indecent assault charges, even though sexual purpose is not
    a required element of the offences. He likened his situation to that of a
    doctor conducting an examination that the doctor mistakenly believes is
    medically necessary. He points to
R. v. Marshall,
2017 ONCA 801, where
    this court reversed a physicians sexual assault conviction arising out of the
    allegedly inappropriate examination of a patients genitals. He submits that,
    just as the court treated the medical as opposed to sexual purpose of the
    touching as an important factor in
Marshall,
the trial judge in this
    case was entitled to rely on the respondents belief in the pedagogical
    validity of the measuring to acquit him of sexual assault and indecent assault.

[83]

I
    do not agree. In
Marshall
, the appeal was based on three broad points:
    (i) the trial judges misapprehension of material evidence; (ii) the fact that
    there was conflicting medical evidence about the necessity of the examination;
    and (iii) concerns about the credibility and reliability of the complainant. There
    is nothing similar here.
Marshall
does not support the proposition
    that, where touching of a sexual organ occurs, a lack of sexual purpose means
    the touching did not occur in circumstances of a sexual nature.

[84]

As
Lutoslawski
makes clear, the sexual nature of the touching is
    determined by an objective standard. The question is whether a reasonable
    observer would perceive a sexual or carnal context to the touching in light of
    all the circumstances.

[85]

A
    reasonable observer viewing the respondents admitted conduct in touching and
    manipulating the breasts and nipples of young girls and young women both over
    and under their clothes would perceive a sexual context to the conduct. These
    were largely girls who were in the process of developing breasts, and who were
    alone with the respondent in a private room with the door closed. Their sexual
    integrity was violated, regardless of the respondents purpose. The acquittals
    on the sexual assault and indecent assault charges therefore cannot stand.

The Remedy

[86]

Section
    686(4)
(b)(ii) of the
Criminal Code
permits an appellate court on appeal from a judge alone to enter a verdict of
    guilty with respect to the offence of which, in its opinion, the accused should
    have been found guilty but for the error in law. In that event, the court is
    authorized to either sentence the accused directly or remit the matter back to
    the trial court for sentencing:
R. v. Skalbania
, [1997] 3 S.C.R. 995. In
    my view, but for the trial judges error of law, the respondent would have been
    convicted of the sexual assault and indecent assault charges: see
R. v.
    Cassidy
, [1989] 2 S.C.R. 345, at pp. 354-355.

[87]

The
    respondent agreed that he intentionally touched the breasts of his young female
    students. They were too young to consent. He did not touch the boys chests,
    nor did he touch the breasts of his own daughter. The sexual integrity of the
    complainants was violated. But for the error by the trial judge, the concrete
    reality of this case establishes proof of the sexual and indecent nature of
    the touching beyond a reasonable doubt.

CONCLUSION

[88]

The
    trial judge erred in law by acquitting the respondent on the sexual assault and
    indecent assault charges. The evidence establishes that those charges have been
    proved beyond a reasonable doubt and but for the error of the trial judge,
    there would have been convictions. I would therefore set aside the acquittals
    and enter convictions on the following counts:

·

23,
    24
[2]
(J.S.F.)

·

30
    (M.A.)

·

42
    (E.W.)

·

31 (N.D.)

·

36,
    37 (K.B.)

·

1 (F.K.)

·

2, 3
    (N.D.)

·

32
    (F.B.)

·

20 (A.G.)

·

41
    (S.K.)

·

19
    (G.D.)

·

33
    (E.P.)

·

49
    (K.K.)

·

34,
    35 (M.B.)

·

43
    (K.O.)

·

12,
    13 (A.S.)

·

6,
    7 (S.G.)

·

16,
    17 (H.S.)

·

10
    (J.G.)

·

21,
    22 (J.K.)

[89]

Although
    the respondent did not recall touching N.D. (counts 2 and 3), E.P. (count 33), S.K.
    (count 41) or K.O. (count 43), the trial judge clearly believed the evidence of
    these complainants. Their evidence is consistent with the pattern of behaviour
    that was described by the other complainants and acknowledged in general terms by
    the respondent. As the trial judge said in his similar fact ruling: The fact
    that there was touching at the time of the lessons it is really not the issue.
    I would therefore enter convictions on these counts as well.

[90]

In
    accordance with the request by the Crown, I would set aside the acquittals and
    enter a stay on counts 28 and 29. J.V. was 23 years old at the time she was
    touched by the respondent, and there is an issue with respect to consent.

[91]

The
    trial judges finding of fact that the respondent lacked a sexual purpose is
    entitled to deference. The acquittals on the sexual exploitation and sexual
    interference charges must stand.

[92]

I
    would exercise the discretion under s. 686(4)(b)(ii) to remit the matter back
    to the Superior Court. The appearance of fairness requires that a different
    judge of the trial court determine the sentencing.

Released: July 23, 2019

DD

M.L. Benotto J.A.

I agree Doherty
    J.A.

I agree Grant Huscroft J.A.





[1]
In 1993, the respondent was found guilty of two counts of sexual exploitation,
    with respect to two students who were not complainants in this case. He
    received a 60-day intermittent sentence. In 2005 he was given a pardon. Neither
    the details of the allegations underlying the 1993 convictions nor the reasons
    of the trial judge were before the court in this case.



[2]
I recognize that in regards to counts 23 and 24, the trial judge found J.S.F.
    to be an unreliable witness, largely because of actions she took to extort
    money from the respondent several years after the assaults occurred, and her
    subsequent claim at trial that she did not remember doing so. However, the
    trial judge made a palpable error in finding that J.S.F. had therefore not been
    inappropriately touched by the respondent. The respondent in fact
    acknowledged using both his hands and a ruler on J.S.F.s breasts, consistent
    with her testimony.


