Prosecutors are asking Ontario's highest court to overturn the acquittal of a former violin teacher who measured his teenage students' bare breasts while fitting them for shoulder rests.
The Crown is appealing a ruling that found Claude Trachy not guilty on dozens of charges related to the sexual violation of more than 20 students in the 1970s and 80s, saying the trial judge made several errors.
Trachy, 73, of Chatham, Ont., was acquitted last year after a judge found the now-retired music teacher did not act with a sexual purpose but rather because he believed it was necessary to properly equip the students.
The appeal is set to be heard Tuesday and prosecutors are asking the court to convict Trachy on some of the charges or order a new trial on all of them.
Court documents filed ahead of the hearing say the complainants, who are now adults, testified they were asked to remove their shirt and bra on the left side so that Trachy could measure them from collarbone to nipple.
They testified he touched their breast during this process and often would then have them play with their left breast exposed. Four complainants also alleged he took a plastic mould of their left breast.
Trachy told his trial he had the complainants undo their blouse on the left side so he could measure them from collarbone to nipple but maintained he derived no sexual gratification from it. He also denied cupping or rubbing any of the complainants' breasts, as some of them alleged.
In its appeal documents, the Crown notes that "no boys, notwithstanding their growth, size or shape, were touched in this fashion." Neither was Trachy's daughter, who also played violin, it says.
It also says Trachy didn't have a formula for how the measurement translated into shoulder rest adjustment and had no rationale for how often the girls needed to be assessed.
The Crown alleges the trial judge oversimplified the allegations to focus exclusively on whether Trachy acted with a sexual purpose.
Prosecutors say sexual intention is only a necessary element of some of the charges against Trachy, such as sexual interference, but does not need to be proven for others, such as sexual assault, which only requires that the touching be of a sexual nature.
"In an expedient rush towards simplicity the trial judge lost the full scope of relevance of the complainants' evidence," they allege in the documents.
"The failure of the trial judge to assess the relevance of the evidence by assessing what the complainants actually said that they had suffered from and without reference to the specific elements of the various offences charged combined to form an erroneous central core which permeated the balance of the trial."
They argue the trial judge also failed to properly consider the evidence of an expert witness, who testified there was no justification for touching the students' breasts as part of a fitting, nor was it a known or documented practice.
The Crown further alleges the judge did not consider comments Trachy made to police in which he suggested he had stopped measuring in that way after a previous arrest and conviction in the 1990s related to the sexual violation of two sisters.
Defence lawyers, meanwhile, argue the appeal has no legal basis and the Crown is simply seeking a "do-over" of the trial.
"Though framed in terms of legal error, the Crown's appeal amounts to a thinly disguised claim of 'unreasonable acquittal,' a ground of appeal that does not exist in Canadian law," they say in written submissions.
"Focusing primarily on the respondent's purpose for the touching was in no way improper because, in these circumstances, this was going to be the crucial issue determining proof of guilt," they say.
Trachy testified that at the time, he didn't think that his methods could make students uncomfortable, and his acknowledgment that he later dropped the practice "was not an admission of having committed sexual misconduct," the defence says.
