Ontario’s highest court will hear a Crown appeal this week of a retired Chatham violin teacher’s acquittal by a judge who believed his evidence that he measured female students’ breast area not for a “sexual purpose” but to help them play better.

A year ago, Superior Court Justice Thomas Carey found Claude Trachy not guilty of numerous sexually related offences, including indecent assault, sexual assault and sexual interference, for alleged incidents involving more than 20 complainants who were his pupils decades ago.

Evidence in the trial in the southwestern Ontario city centred on Trachy’s practice of measuring the breast area of some of his preteen and teenage female students, above and below their clothes. In some instances, he took moulds of their shoulders and chest areas.

Now 73, Trachy testified that his intent was to help the students play better by being properly fitted for shoulder rests on their violins or violas.

Trachy’s practice of measuring the breast area didn’t include his male students.

The Crown argued Trachy’s actions were for his own sexual gratification.

The women, who now range in age from mid-30s to 65, “all agreed that they generally felt uncomfortable exposing their breasts but, at the time, trusted Mr. Trachy to be conducting himself in their best interests and for the purpose of advancing their ability to play the violin,” Carey wrote in his judgment.

The judge said he accepted Trachy’s evidence “that any touching of his female students was not done for any sexual purpose and that his intentions were to help his female students play better.”

In 1993, Trachy was found guilty of two counts of sexual interference relating to two sisters who were his students. He received a 60-day intermittent sentence. Carey heard no evidence about that case.

In a factum filed with the Ontario Court of Appeal in Toronto, where the case will be argued Tuesday, the Crown states Carey improperly acquitted Trachy based on a fundamental legal error “which infused the entire trial — that the case could be settled by addressing a single issue: whether or not the respondent had a sexual purpose.”

The trial judge was unable to provide a legal objective rationale for acquitting Trachy “and a proper consideration of the evidence should have led relentlessly to convictions,” it states.

The appellate court should impose findings of guilt, wrote John Patton, a lawyer with the Ministry of the Attorney General.

Trachy began teaching violin in 1960 and taught approximately 1,100 students until his retirement in 2009. The charges related to his interactions with female students in the 1970s, ’80s and ’90s.

Handling the appeal on behalf of Trachy is defence lawyer Matthew Gourlay, a partner with the high-profile Toronto law firm Henein Hutchison.

In his factum, Gourlay argues the Crown has no proper basis to appeal. Trachy was acquitted of the sexual offences alleged against him “because the trial judge affirmatively believed his account of the relevant interactions with his violin students decades ago,” the document states.

“In particular, the trial judge believed that the touching alleged by the Crown and conceded by the respondent was done for genuine (if in retrospect misguided) pedagogical reasons and that an objective observer would not have perceived the circumstances as sexual.”

Gourlay writes that the Crown disagrees with the result but that does not provide a proper basis for a Crown appeal under the Criminal Code.

“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,” his factum says.

“It is not for the appellate court to retry the case or substitute its credibility assessments for those of the trial judge,” the factum continues. Nor did the judge misapply the law, he argues.

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During the trial in Chatham, Trachy explained that measuring the relevant dimensions of their bodies was necessary to achieve a proper fit, Gourlay’s factum states.

Trachy referred to a book The Physiology of Violin Playing, which describes the impact of body development on playing an learning. Trachy told court he got the idea of measuring under the clothes from illustrations in the text of a male violinist holding a violin while shirtless.

After being charged in 1991, Trachy ceased measuring students.

He brought to court several shoulder/chest rests and chin rests as well as his own violin with which he demonstrated in court what he viewed as the proper way to play the violin or the viola.