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Violin Teacher Claude Eric Trachy, 73, tries to conceal his face as he leaves the Ontario Court of Appeal at Osgoode Hall in Toronto on May 14, 2019.

Tijana Martin/The Globe and Mail

The Ontario Court of Appeal reserved its decision after hearing arguments Tuesday on whether a violin teacher had a “sexual purpose” when he touched his female students’ breasts and nipples during music lessons, with the Crown lawyer asking the panel of judges to overturn the man’s acquittal or order a new trial.

Twenty-one of the students accused Claude Eric Trachy, now 73 years old, of touching their breasts and nipples during music lessons while ostensibly fitting them for instrument shoulder rests, during his trial last spring in Chatham, Ont. Superior Court Justice Thomas Carey acquitted him of all 51 counts of sexual interference, sexual exploitation, sexual assault and indecent assault.

Mr. Trachy’s acquittal sets a dangerous precedent that “it’s okay to touch the naked private parts of your students ... if you and you alone” believe it to be acceptable, argued John Patton, a lawyer at the Ministry of the Attorney-General.

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This case comes amid increased scrutiny around rulings in sexual-assault cases, including one in which Calgary judge Robin Camp acquitted a man in 2014 after asking the woman he was accused of raping why she didn’t keep her “knees together” to fend off an assault. In a Halifax case, a judge acquitted a taxi driver in 2017 of sexually assaulting an intoxicated female passenger in part because he could not determine whether the victim consented before she passed out. Nova Scotia’s top court overturned that ruling.

In his April, 2018, decision in Mr. Trachy’s case, Justice Carey said he believed the accused was “motivated to innovate in the area of violin supports” – by measuring his students from the shoulders down to the mid-chest – between the 1970s and early 1990s, when he would have been about 45 years old.

Although Mr. Trachy admitted to touching his female students during the trial, Justice Carey said he was not convinced that the former music teacher did so “for any sexual purpose.”

This finding represents a “fundamental legal error which infused the entire trial,” Mr. Patton wrote in a 49-page factum filed to the court of appeal, and in his arguments during the day-long hearing before Justices Mary Lou Benotto, David Doherty and Grant Huscroft.

His former students accused him of touching their sometimes bare breasts with his hands or a ruler, and instructed them to play with their chest exposed. In four cases, he created moulds using either a malleable heated plastic or putty. How often Mr. Trachy took these measurements varied, with one woman testifying at the trial it happened about two dozen times over two years.

On Tuesday, a handful of those former students attended the Osgoode Hall courthouse, where just about every seat in the public gallery was filled. Mr. Trachy wore a grey suit and pastel green dress shirt and was accompanied by his wife of 49 years.

The trial judge conflated or swept aside some of the individual details in the evidence of some of the complainants, Mr. Patton said, including that he allegedly used his forefinger and thumb to rub one girl’s nipple and said “I want to see where the end of you is.”

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Mr. Patton also put forth that the judge erred by ruling that the number of incidents did not have any bearing on whether there was a legitimate purpose to touch the girls.

“You’re playing the violin with your breast exposed ... The best analogy would be a junior high-school music teacher,” Mr. Patton said in his submissions. “Can you imagine the consent form that would have to be filed for a high-school setting?”

Defence lawyer Matthew Gourlay, a partner at the Henein Hutchison LLP, argued that the trial judge was entitled to accept Mr. Trachy’s evidence that he did not have a sexual intent in taking the measurements, which he was inspired to do after reading a book called The Physiology of Violin Playing. The book showed a diagram of a shirtless man holding a violin.

“Everybody,” including the Crown, “agreed [sexual purpose] was an important factor,” Mr. Gourlay contended.

This is not Mr. Trachy’s first trial.

In 1993, he was found guilty of sexual interference against two sisters who took lessons from him. He received a 60-day intermittent sentence and was subsequently pardoned in 2005, but the details of these allegations were not presented at his most recent trial.

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He retired from teaching about eight years ago, at the age of 65, having worked with about 1,100 students over five decades.

Mr. Trachy did not measure his male students, nor his daughter.

With a report from Zosia Bielski

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