R. v A. H., 2016 ONSC 3709

Court File and Parties

COURT FILE NO.: CriminalJ(P) 1054/15 DATE: 2016 06 06

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN E. Norman, for the Crown

- and -

A. H. Representing himself, and R. Singh appointed to cross-examination certain witnesses on behalf of the accused The Accused

HEARD: March 30, 3, April 4 and 6, 2016

RESTRICTION ON PUBLICATION

Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity, including the names of other Crown witnesses, shall not be published in any document or broadcast in any way.

REASONS FOR JUDGMENT

Justice Thomas A. Bielby

INTRODUCTION

1The accused, A. H. stands charged:

Count 1. That he, during a two month period last, past and ending on or about the 20th day of October, 2013, at the City of Brampton, in the Central West Region, did by means of a computer system within the meaning of section 342.1(2) of the Criminal Code of Canada, communicate with a person he believes is under the age of 16 years, for the purpose of facilitating the commission of an offence under section 152 of the Criminal Code of Canada, contrary to section 172.1(1)(b) of the Criminal Code of Canada.

Count 2. That he, during a two month last, past and ending on or about the 20th day of October, 2013, at the City of Brampton, in the Central West Region, did by means of a computer system within the meaning of section 342.1(2) of the Criminal Code of Canada, communicate with a person he believes is under the age of 16 years, for the purpose of facilitating the commission of an offence under section 173(2) of the Criminal Code of Canada, contrary to section 172.1 (b) of the Criminal Code of Canada.

2It is alleged by the Crown that the accused sent to the complainant, S. K., when she was under the age of 16, pictures of his penis and messages that invited the complainant to perform oral sex on him and suggesting he do the same to her.

3The complainant was a friend of the accused’s daughters and had a Facebook account which the accused allegedly used to contact her.

4The Crown had a number of pre-trial motions. The accused also served a pre-trial motion which was ultimately withdrawn. A blended voir dire was held and it was understood that evidence received in the voir dire, subject to my rulings, would be part of the trial evidence. The evidence called on the voir dire was the testimony of a number of police officers.

5As a result of the voir dire, certain orders were made and oral reasons were given. The two child witnesses, being the accused’s daughters, were allowed to testify via closed circuit camera with a support person present. As part of their testimony, their video/audio police statements were played and entered as exhibits.

6In regards to the complainant, while she is now 18 years old, an order was made permitting her police statement to be played during her testimony.

7All three of these witnesses, after viewing their statements adopted them as the truth.

8At the time the accused was arrested, the police, without a warrant, seized his computer and cell phone. The accused, in his pre-trial motion, initially took the position that the seizure violated his Charter rights. Even though the accused withdrew his pre-trial motion, in an abundance of caution, the Crown lead evidence and argument on this issue.

9I concluded that the seizure did not violate any of the accused’s Charter rights. The evidence obtained from these items was admissible. The items were discovered in plain sight, on the kitchen counter. As well, the seizure was incidental to arrest and was a reasonable step taken in an effort to preserve the evidence.

10Further, while the seizure was executed without a warrant, the computer and the cell phone were subsequently searched pursuant to a warrant and the legality of the search was not challenged.

11The Crown also had before the court motions to admit other discreditable conduct and post offence conduct. To rule on these motions, I concluded I needed to hear the evidence of the four civilian witnesses. I advised the parties that my rulings on these motions would be part of this judgment.

THE EVIDENCE

Constable Tonya Richel

12Constable Richel is with the Peel Police Force and is the investigating officer with respect to these charges. She was a member of the Special Victims Unit at the time the alleged crimes were reported.

13On March 6, 2014, at 12:48 pm she received a Children’s Aid Society “consult” and spoke to a CAS worker by the name of M. F. Thereafter the officer testified that her duty was to investigate what she had been told in an effort to determine if there were criminal elements.

14The officer was advised that the CAS had received a call from a Brampton secondary school in regards to pictures of genitals and inappropriate text messages. The names given to the officer were the accused, his two daughters, their mother (the accused’s ex-wife) and the complainant. M. F. and the accused’s daughters and the complainant attended at the police station at 180 Derry Road, on March 6, 2014.

15Officer Richel testified that she initially observed the accused at the police station at a time when she was investigating the circumstances and had yet to determine whether or not she had reasonable and probable grounds to arrest the accused. The officer had no idea why the accused was at the police station as she had yet to have contact with him and there were no other officers involved who could have contacted the accused.

16The officer testified that she was finished interviewing the complainant and the the accused’s two daughters by 5:50 pm at which point she went downstairs to bring the ex-wife, S. S., upstairs to be interviewed. It was then she noted the accused was coming down the elevator.

17The officer described the accused as appearing agitated and fidgety and that he said that, “he had to leave now”. She said the accused exited, “really fast”.

18Upon observing the accused the officer testified that she became concerned that he may be returning home to destroy evidence, by deleting incriminating pictures and messages from his computer and/or cell phone.

19By 6:10 pm the officer believed she had reasonable and probable grounds to arrest the accused and briefed Officers Durgan, Cranley and Murphy. They were provided with the accused’s contact information and were instructed to attend at the accused’s home and arrest him. Shortly thereafter the accused was arrested and Officer Cranley seized the computer and cell phone.

20The accused was transported to the police station and was interviewed by Officer Richel.

21The property seized was properly logged and secured and on March 11, 2015, was taken out of the property room, pursuant to a search warrant. The items were then delivered to the Technical Crime Unit (located in the same building), where an analysis was conducted. The content of the analysis was then reviewed by Officer Richel.

22Exhibit 2 is a spread sheet of sorts and contains what Officer Richel believed is the relevant information obtained as a result of the analysis. It contains a series of messages to and from the accused, his daughters and someone identified as D.

23On cross-examination by the accused, Officer Richel acknowledged that the victim’s name is not included in Exhibit 2.

24Officer Richel agreed with the suggestion that someone could open a Facebook account without using their own name. To sign up for Facebook would require an email address and a password.

25Officer Richel testified that S. S. brought with her to the police station a photo of a penis relating to a different incident. The officer agreed on cross-examination that for S. S. to have the picture with her meant she was aware of the nature of the investigation and that someone must have told her why her daughters were at the station for questioning.

26Officer Richel testified that when briefing her officers she told them the accused’s name was A. H., who went by the name, M.

27The officer admitted the accused’s full name is A. H. H. but reiterated that she understood his nickname to be, M. The name on the indictment is A. H.

Police Constable Kevin Cranley

28At the time of the investigation this officer was with the Special Victims Unit of the Peel Police Force. On March 6, 2014, he was briefed by Officer Richel and instructed to arrest the accused at his home. He was also told that the accused had already been at the police station and may have gone home to destroy and/or delete evidence.

29Officer Cranley travelled, together with Officer Parkins to the accused’s home at 40 ……. Avenue, Unit …, Brampton. Upon their arrival it was noted that Officers Durgan and Murphy were already on the scene and had arrested the accused.

30Officer Cranley was directed to the kitchen area by Officer Murphy who had observed the computer and the cell phone. Officer Cranley seized the items on his return to the station, properly tagged and secured them.

31The officer testified that the laptop computer was on and opened when it was seized. Beside the computer were some papers which were also seized. The papers contained email addresses and names, all of which the officer felt may be relevant.

32Officer Cranley could not recall what he saw on the screen of the computer.

33On cross-examination the officer said that during the briefing he was given the name, A. H. without any middle name.

Police Constable Wayne Parkins

34This officer was also a member of the Peel Police Special Victims Unit. He too stated he was aware that the accused may have gone home to delete evidence. He was given the name A. H. and the address noted above.

35When Officer Parkins arrived with Officer Cranley, the accused was already in custody. He, along with Cranley went to the kitchen and seized the computer, cell phone and some papers.

36Officer Parkins identified the accused in court as the man who upon his arrival was in custody of the other officers. He testified that he could not see what was on the computer screen but did say the items were readily observable, describing the residential unit as having an open concept layout.

Police Constable Tim Murphy

37Officer Murphy is a member of the Peel Police Force and in March, 2014, was a member of the Special Victims Unit. At 6:10 pm he, along with fellow officers, was briefed by Officer Richel. He was told of offensive messages and pictures sent via a computer and iPhone by the accused to a friend of the accused’s daughters. The accused was identified as A. H., born January 17, 1964, and who resided at 40 ……. Ave., Unit …, Brampton. He was also told that the accused had just left the police station and the concern was the accused was going to delete evidence.

38Officer Murphy attended at the accused’s home at 6:27 pm with Officer Durgan. Officer Murphy testified that they knocked on the door and heard movement and activity within the unit. They knocked a second time and the accused answered the door. Officer Durgan, after they identified themselves, advised the accused that he was under arrest for invitation for sexual touching.

39Officer Murphy testified that the accused did not seem surprised and commented to the effect that he needed his shoes. The accused immediately turned and retreated into the apartment. The officers followed the accused into the apartment, walking behind him because the accused was in their custody. He also had concerns in regards to the possible destruction of evidence.

40The accused walked through the apartment to his bedroom where he retrieved socks, shoes and a jacket. While accompanying him the officers passed by or through the kitchen. Officer Murphy actually stayed in the kitchen where he observed on the counter an open silver Dell laptop computer. The computer was on and the officer observed a Facebook page on the screen along with an email address.

41Officer Murphy took pictures of what he observed and these pictures were entered as Exhibits 2A and 2B. Exhibit 2B shows the top of a kitchen counter upon which is located the computer, a cell phone, some papers and other items. Exhibit 2A is a close up of the computer screen which, as noted, is opened to a Facebook screen. The following message is displayed on the screen, “Your account has been deactivated”. The email address shown is “m…..h….@hotmail.com”.

42The officer testified that the papers spread around the computer contained names and email addresses.

43The officer confirmed that after the arrest, which occurred at 6:34 pm, the accused was placed in their police cruiser at 6:40 pm, at which time he was advised of his rights and cautioned.

44On cross-examination Officer Murphy testified that during the briefing he was provided with the name of A. H. by Officer Richel. While she did not specifically instruct the officers to seize the computer and cell phone they were told of a concern in regards to the destruction of evidence. The officer testified that there was a sense of urgency in attending at the accused’s home and arresting him.

Police Officer Mustafa Durgan

45This officer was also a member of the Peel Police Special Victims Unit and on March 6, 2014, was briefed by Officer Richel. He was told of the alleged messages sent by the accused by Facebook and cell phone.

46Officer Durgan testified as to a sense of urgency in regards to their attendance at the accused’s home to prevent the deletion of evidence. He believed the accused had left the station by 6:10 pm and Officer Durgan along with Officer Murphy left the police station at 6:17 pm, arriving at the accused’s apartment at 6:27 pm. He confirmed they knocked twice before the accused answered the door. At 6:34 pm Officer Durgan advised the accused that he was under arrest for invitation for sexual touching. The officer testified that when he advised the accused he was under arrest, he placed a hand on the accused’s shoulder to place him in custody.

47The accused then turned around and retreated into the apartment to get his clothes. While following the accused to the bedroom the officer observed the open computer and cell phone on the kitchen counter. The accused was advised the items would be seized. Officer Durgan testified that he waited until the accused was in the police car before reading him his rights and caution. He testified that the police car was a safe environment and it was not until then the officer no longer had any safety concerns for both themselves and the accused.

48On cross-examination the officer confirmed that during the briefing he was given the name A. H. and that the officers did not have a search warrant when they seized the computer and the cell phone. Further, they were not instructed to seize anything but were aware of the concerns regarding the deletion of evidence.

Police Officer Beata Turczak

49This witness was a member of the Peel Police Tech Crimes Unit and undertook the analysis of the items seized, which she received from Officer Richel on March 11, 2015. She was also provided with a copy of a search warrant which authorized the search of the cell phone and the computer.

50Officer Turczak was able to identify the phone number attributed to the SIM card removed from the phone as 647-…-…., a number identified as that of the accused.

51The officer went on to say that she retrieved the data from the cell phone and delivered it to Officer Richel for analysis. Officer Richel then identified what she believed to be the relevant data and instructed Officer Turczak to set out this data in an excel file format, a printed copy of which was made Exhibit 4. The contents of Exhibit 4 represent a series of text messages to or from the accused, some of which were partially deleted.

52In regards to deletions, the officer’s attention was directed to entries 14-32, on Exhibit 4, which are noted as, deleted. The officer explained that when a user pushes the delete feature, the messages are not deleted right away but are simply flagged by the phone as items to be deleted. While a user of the phone would not be able to see the deleted messages, the messages would, for a time, still be stored in the data, at least partially.

53Entries 16-32, while noted as deleted, still contained the content of the messages and information as to who the messages were from and to whom they were sent. Entries 69-97, also noted deleted, were older chronologically and while disclosing the content of the messages, only contained either the information as to who sent them or to whom they were sent.

54Officer Turczak testified that to delete any item takes an active positive step. In other words, someone has to instruct the cell phone or computer to delete an item.

55In regards to Facebook, Officer Turczak testified that to be enrolled in this social media forum one would need an email address and password. Further, a Facebook account can be accessed from any computer or smart phone.

56On cross-examination Officer Turczak advised that she was not provided a name or phone number by Officer Richel. The messages included on Exhibit 4 were selected by Officer Richel, who went through the data to determine relevance and Officer Richel selected 97 messages out of a total of 379.

S. K.

57This witness is the alleged victim and was born on […], 1998. At the time the offences were alleged to have occurred she was 15 years of age. She was asked if she knew M. H. and identified the accused at the counsel table as the person she knows by that name.

58The witness testified she met the accused at the mosque, when she was 14 years old and in grade 8. She did not know him by any other name other than M. H. Her video/audio taped police statement (Exhibit 5), recorded March 6, 2014, was played and adopted by her.

59S. K. stated in her interview that on March 6, 2014, she was called down to the school office where she met a woman who asked her what happened. She understood that the accused’s two daughters had talked to a teacher about a problem which the witness described as follows.

60Two days prior to March 6th, S. K. went onto her brother’s laptop to look through her Facebook account. She wanted to go through her messages. When she did so she saw the name M. H. which she described as the name of her friends’ father. When she opened the messages she saw “those pictures”.

61Upon seeing the pictures she said she was shocked and scared and decided to tell the accused’s two daughters when she saw them at school. After discussing the issue, S. K. decided she would tell her father. When she did tell her father he was of the opinion the police needed to be informed.

62S. K. went on to say that two hours later, around 9:00 pm, the phone rang and her cousin answered and it was the accused calling to speak to her. S. K. advised her cousin she did not want to talk to the accused and asked her father to take the call, which he did.

63S. K. identified the accused’s two daughters as Ah. H. and Aa. H., who are twin sisters and are a year younger than S. K.

64S.K. advised the officer that her profile on Facebook was in her own name.

65S. K. told the officer that the accused often took her and his two daughters out to lunch. He would pick them up from school and after lunch drop them off back at the school. On occasion he would take them to the mall. She said that her father knew the accused. At one time the two families lived in the same building. They attended the same mosque.

66When asked by the officer if the accused ever made her uncomfortable at any other time, S. K. spoke of a time she was in Popeye’s Restaurant with a friend and the accused came in. He asked her and her friend if they saved any food for him. She told the officer that this comment made her feel uncomfortable.

67S. K. also told the officer that she received messages from M. H. In regards to the pictures, she described them as “his private parts” and of a girl and guy having sex. When asked what she meant by private parts, she said, “his penis”.

68S. K. stated that she deleted the offending material but before doing so took pictures of the items using her cell phone. In other words, she took pictures of what appeared on the computer screen.

69S. K. stated that in regards to the accused, “we all call him by M.”, and that she had never knew his real first name, A.

70S. K. testified that she was aware that, on an earlier occasion, sometime in September or October, 2013, a picture of a penis was downloaded to Aa. H.’s cell phone.

71S. K. confirmed that Facebook can be accessed through a smart phone. She never “friended” the accused on Facebook. She understood that a Facebook account can be deactivated and then activated again.

72S. K. could not recall if she ever told M. H. her age or grade or whether she ever told him she was older than 15.

73The offending pictures and messages were entered as exhibits through this witness and are the pictures taken by S. K. of what was sent to her via Facebook.

74Exhibit 6 is a picture of a penis, sent to S. K. by M. H. on August 28, 2013, at 9:54 pm.

75Also included in Exhibit 6 is a message sent by M. H. to S. K. on August 30, 2013, at 5:46 pm as follows, “I swear by the moon and the stars in the sky I want to suck your pussy n boobs…n I want you to suck my dick…then me take your virginity.”

76Exhibit 7 is a message sent by M. H. to S. K. on September 26, 2013, at 3:55 pm of, “u want to suck me dick…lol…I want to suck your pussy n boobs”. On the same day at 4:05 pm a picture of a penis was sent and received.

77Exhibit 8 is a message and penis pictures sent by M. H. to S. K. on October 20, 2013. The message is, “satisfaction guaranteed.. with life time warranty what us see is what u get…take it in your mouth and suck it babes. I gon suck your sweet pussy n lovely boobs.”

78Exhibit 9 is a picture of a woman and a man in a sexual position and was sent by M. H. to S. K. on October 20, 2013. The message sent with the picture reads, “u still a virgin”. This was the last message sent by M. H. to S. K.

79In all of the penis pictures, the penis is circumcised.

80On cross-examination by Mr. Singh on behalf of M. H., S. K. testified that she was a closer friend to Aa then she was to Ah.

81S. K. agreed that she could not recall telling M. H. what her surname was. She agreed that the comment, “did you save me any food”, was not sexual in nature.

82S. K. could not recall any discussions with M. H. which involved romantic interests. She disagreed when it was suggested to her that the accused was introduced as A. H. She reiterated she only knew him as M. H.

83S. K. believed she took the pictures two days before she gave her police statement. She concluded right away that the accused sent the pictures and messages because the name of the sender was M. H. She agreed that her conclusion as to who sent the offending material was based on the name that was displayed on the screen as from whom the message was sent.

84When asked if she ever thought someone other than the accused sent the messages, she testified that the name made her go “straight to him”.

85S. K. also testified on cross-examination that she had heard the accused sent pictures to another girl, Mp. who was a friend and in the same grade as S. K.

86S. K. acknowledged that before she spoke to the accused’s daughters about what she had received, she spoke to two other friends who she described as her best friends.

87S. K. could not recall if she ever told M. H. her age.

Aa. H.

88This witness is one of the daughters of the accused and is a twin sister to Ah. H. At the time of her testimony she was 17 years of age.

89In March of 2014, she was residing at 40 ……. Ave. Unit …, Brampton. She provided a recorded statement to the police on March 6, 2014, which statement was adopted by her during her testimony and entered as Exhibit 10.

90When asked what brought her to the police station on the day of her statement, Aa. H. testified that her sister talked to her teacher and thereafter she was called down to the school office where she met a social worker by the name of M. F. who talked to her about some pictures.

91The witness was told by M. F. that she would have to go to the police station.

92Aa. H. told the police that S. K. had come up to her at school the day before and showed her the messages her dad had sent to S. K. The witness was told by S. K. that she had taken pictures of what was sent and then had deleted the messages from Facebook.

93When asked if she thought if the messages and pictures were from her father, Aa. H. said, “yeah, I think so”. She went on to say that her father does stuff, like every time he sees a girl on the street he honks and call them sexy or hot. He has told her that her friend has a big ass or big butt.

94The witness testified that her father chats with girls on Facebook and that when he is on the computer and she enters the room he minimizes his computer screen. Later Aa. H. opened up the conversations with her father and his girlfriends. She described the ‘convos’ as “pretty nasty”. The witness went on to say that some of these convos are pictures of his private parts, “of the dick area”.

95Aa. H. spoke of a conversation that she showed her mother in which the accused was talking to a random girl and saying how he would like to meet with her and have oral sex. She also spoke of a poem she found on her father’s computer, which her father wrote about sex. Aa. H. had memorized the poem and recited it as follows:

“Sex is like math. Add the bed, subtract the clothes, divide the legs and pray to God there’s no multiply.”

Aa. H. also showed this to her mother.

96Aa. H. said in her statement that her father’s Facebook name on the message S. K. showed her was M. H. She also said that her father had deactivated his Facebook page as well as hers.

97Aa. H. told the police that she had seen the “dick” picture before. She and her father shared the same iCloud and somehow the picture got downloaded to her phone, via she thought Photo Stream. When she received the picture she showed it to her father who denied it was his. She also showed the picture to her mother who printed the picture and then made Aa. H. delete it.

98Aa. H. testified that she met S. K. in grade 9 and that they became close friends although S. K. had never come to her home. She testified that S. K. met her father, M. H. at the mosque.

99The witness testified that M. was her father’s nickname. She testified that her father would pick her and her sister and S. K. up at school at lunch time and take them out for lunch. She testified that her father never asked her S. K.’s last name or age.

100Aa. H. testified that she gave her father her model 4 iPhone to use when she got her new model 5s. When he received the model 4 her father did not switch the iCloud account. She confirmed the accused used the email address of m…..h….@hotmail.com.

101The witness was permitted to refresh her memory from her preliminary hearing transcript and agreed that she set up the iCloud account in 2013.

102The witness testified that the penis picture she saw on her phone was the same picture she saw on S. K.’s phone.

103Aa. H. testified that her parents separated when she was 2 years of age and that they do not like each other.

104Exhibits 11A and B are twitter messages between Aa. H. and her father, the accused. Therein the accused’s name is shown as M. H. and the messages would appear to be from M. H.

105Aa. H. was asked questions in regards to the messages between her and her father as recorded on Exhibit 4. Her attention was taken to entry number 68, dated March 5, 2014, and following, in which the witness and the accused are discussing S. K. The accused asks for S. K.’s phone number and is told by Aa. H. that she doesn’t have it as S. K. changed it last month. A discussion then was had in regard to whether the accused should talk to S. K.’s father. It was noted that S. K.’s father knew of the picture. Thereafter it would appear the accused spoke to S. K.’s father.

106The Crown relies on this conversation to prove that the accused knew of the disclosure of the pictures and messages before his arrest.

107On cross-examination the witness agreed with Mr. Singh that she could not recall the accused using the name M., despite the fact that in her examination in chief she testified that M. was the accused’s nickname. She testified that she saw the accused on Facebook when she was 12 years old and never saw his Facebook account thereafter.

108Aa. H. testified that she only saw the penis picture on her phone the month before the incident involving S. K. She only believed it was a picture of her father’s penis because her mom said it was. She agreed that other guys send her pictures and that it was possible the penis picture was from someone else.

109Aa. H. testified on cross-examination that she first saw the pictures sent to S. K. the day before her father’s arrest. She told S. K. that she should go to the police if she felt comfortable doing so. She does not recall telling S. K. the pictures were those of her father’s penis.

110Aa. H. testified that her mother refers to her father as the “Monster” but testified that all her mother told her in regards to giving a statement was to tell the truth.

111The witness testified that no other girls have told her about receiving messages or pictures from her father.

Ah. H.

112This witness is the daughter of the accused whose name she testified was A. H. H. but that his nickname was M. Ah. H. testified that no one she knows calls him by his given name of A.

113Ah. H.’s statement to the police taken on March 6, 2014, was viewed and entered as Exhibit 12. The witness adopted the statement as correct.

114This witness said that she confided in a teacher because the teacher had notice something was wrong with her. She told of how her father, the accused, was sending inappropriate stuff to her friend, D. who posted the comments on Twitter.

115Ah. H. went on to say how that yesterday or the day before (March 4th or 5th) S. K. came up to her and said that her father, the accused, was sending her inappropriate stuff. S. K. showed the witness the pictures and messages and the witness told the police she was speechless. Thereafter she and her sister confronted her father who said it wasn’t him and that someone had made a fake account and tried to pose as him.

116Ah. H. then stated, “But it’s… I know him. I’ve seen him on Facebook before talking to girls.”

117In regards to D., the witness testified that she did not think it was a joke because she knew her dad and stated that he likes to holler at girls a lot.

118Ah. H. went on to tell the police that she has seen other conversations her father had with girls making sexual comments.

119On the accused’s Twitter account the witness observed that the accused asked her friend M., who just turned 16, “how are you sexy?” Apparently this was in November, 2013.

120On these messages the accused would use his initials, M. H. or even spell it out in full. Ah. H. went on to say her father picks her up at school and sees her friends and stalks them. She went on to say that her father had her Twitter account at one time and wrote down all her friend’s names.

121In regards to what S. K. showed her, the witness told the police she had seen the penis picture before on her sister’s phone, explaining that her sister and her father share the same iCloud account. Their mom said it was a picture of her father’s penis.

122Ah. H. testified that her father’s email address was the same as shown on the computer screen entered as Exhibit 2.

123Ah. H. testified that S. K. was a year older and a grade ahead of her. Their fathers were friends. Sometimes the accused took them all to lunch. The witness went on to say that at one point her father forbid her from spending time with S. K. because she smoked cigarettes.

124Ah. H. denied any suggestion that S. K. told her what to say and stated that her mother told her to tell the truth.

125The witness could not say if the penis picture received by her sister and the one sent to S. K. was the same picture.

126In regards to entry 12, in Exhibit 4, Ah. H. testified that it was a message from her father saying he was at the police station and in later messages he asks her to tell the CAS lady that he is downstairs waiting.

127On cross-examination this witness testified that her father knew S. K.’s last name because he was friends with her father. She disagreed with the suggestion that when she saw her father’s Facebook account she was only in grade 7. She testified that she was in grade 9 or 10.

128Ah. H. testified that she knew that her father and D. had each other’s numbers.

129She agreed that she believed the penis picture on her sister’s phone was that of her father because her mother identified it as her father’s penis.

130In regards to the suggestion that her father never made any inappropriate sexual remarks to her friends, Ah. H. testified that her father made remarks about her friends such as, “her ass is too big”. She went on to say that he no longer does so.

131The witness testified that everyone at the mosque refers to her father as M. but did agree that her father never used the name M. when he introduced himself to someone. She admitted that only family and close friends call him M.

S. S.

132This witness is the mother of the last two witnesses and is the ex-wife of the accused.

133She testified that her ex-husband is known as M.

134S. S. has never met with or spoken to S. K.

135On March 6, 2014, S. S. was called to the police station to pick up her daughters. S. S. assumed that the accused was involved and took with her to the police station some evidence she had including the penis picture which had previously been downloaded to her daughter’s phone, via iCloud.

136S. S. testified that the accused was on welfare and because she sponsored him as a landed immigrant to Canada she was required to pay the government $100 per month to offset the welfare expense. In total she owes the government about $8,000. S. S. always hoped she would get help in regards to the accused, through the courts.

137A police officer showed S. S. the penis picture send to S. K. and the witness told them she recognized it. At the time she did not know to whom the picture was sent.

138The witness also testified that she was told by her daughter of pictures sent to S. K. and that her advice was to tell S. K. to tell her father.

139S. S. testified to the incident on October 19, 2013, when her daughter showed her a penis picture which had been downloaded to her phone via iCloud as noted above. S. S. told her daughter to delete it after a print was made. S. S. testified she told her daughter it was a picture of her father’s penis.

140S. S. also testified that she was shown the penis picture sent to S. K. and identified it as the accused’s penis. It was the same picture she had seen previously on her daughter’s phone.

141S. S. identified Exhibit 13 as the picture she took from her daughter’s phone. She said she knew it was the accused’s and testified that he was the only person with whom she has ever been intimate. On the exhibit is a notation written by S. S. reading, “M. H., Saturday 19, on Aa’s phone, 19th October 2013”.

142S. S. was cross-examined by the accused. She testified that when she went to the police station she assumed it was about S. K. as a result of her conversation with her daughters the night before. She agreed that she took with her to the police station the penis picture taken from her daughter’s phone. She explained she always takes it with her to court proceedings which involve the accused to show what kind of person the accused is.

143She denied she is looking for revenge. She agreed that she and the accused lived together from 1997 to 2003. When asked, S. S. testified that she believed the accused’s penis was about seven inches long. While she said she does not think about her ex-husband’s private parts, she knew it was his when she saw it, even after 15 years.

144S. S. acknowledged that she had a copy of the poem written by the accused and testified one of the girls gave it to her when they were small kids.

145S. S. reiterated that everyone knows the accused as, M.

146S. S. admitted it bothers her that she has to pay money to the government on account of the accused.

147S. S. testified that A. H. and A. H. H. and M. H. are all the same person, being the accused.

148In regards to the penis picture, when she saw it on her daughter’s phone, S. S. testified that it had the name M. H. on it, although when she printed the picture no name was produced.

149When it was again suggested to S. S. by the accused the she had motive to lie, the motive being revenge, S. S. replied that no, that was not her motivation but that a person should face the consequences of their actions. She stated she hopes these proceedings make the accused a better person.

150S. S. was the last witness for the Crown and the accused elected not to call any evidence.

PRIOR DISCREDITABLE CONDUCT AND POST OFFENCE CONDUCT

151The evidence of the accused’s daughters and his ex-wife, whether by police statement or their testimony in court, included testimony as to other prior discreditable conduct and post offence conduct. It was necessary to hear all of the evidence in order to determine the merits of the motions to admit such evidence.

152The Crown submitted that she wanted to be able to file, as evidence, the video/audio statements made by the two daughters and the complainant without the need to edit the evidence by removing the evidence related to other discredible conduct. The Crown submitted that if required to do so, the statements would lose context and become disjointed.

153The Crown correctly noted that such evidence cannot be used to show a propensity on the part of the accused. The Crown submitted that the discredible conduct evidence is relevant to the narrative and also in relation to the accused’s state of mind.

154I will use the prior discreditable conduct evidence to assist with the narrative, that is to say, to provide context in regards to what is alleged to have occurred.

155Further, the evidence in regards to the penis picture downloaded from iCloud to Aa. H.’s phone is relevant to the issue of its identification and the source of the same picture which was sent to S. K. S. S. testified that this picture was received by her daughter, Aa. H., on October 19, 2013. The offensive messages and pictures sent to S. K. cover a period from August 28, 2013 to October 20, 2013.

156In regards to the accused’s post offence conduct, evidence was lead as to the accused’s actions in the few days before his arrest and on the day he was arrested. The Crown alleges that the accused was aware of S. K.’s disclosure of the offensive material to his daughters, her father and the police, prior to his arrest and this was his incentive and opportunity to delete evidence from his computer and cell phone.

157Exhibit 4 contains a number of text messages sent or received by the accused after the offences were alleged to have occurred. It is alleged that prior to his arrest the accused deleted or attempted to delete incriminating evidence from his cell phone.

158When the accused was arrested the officers observed the accused’s computer opened to his Facebook page wherein it was stated the account had been deactivated and the email name on the account was m…..h….@hotmail.com.

159While the Crown does not wish to lead the evidence to suggest any propensity to commit such crimes, she submits that it is circumstantial evidence of guilt and reflects the accused’s attempt to evade a criminal investigation.

160In regard to post offence conduct it is stated in R. v. White, [1998] S.C.J. No. 57, paragraph 19,

“Under certain circumstances, the conduct of an accused after a crime has been committed may provide circumstantial evidence of the accused’s culpability for that crime. For example, an inference of guilt may be drawn from the fact that the accused fled from the scene of the crime or the jurisdiction in which it was committed, attempted to resist arrest, or failed to appear in court. Such an inference may also arise from facts of concealment, for instance where the accused has lied, assumed a false name, changed his or her appearance, or attempted to hide or dispose of incriminating evidence.”

161At paragraph 35, Major J. states,

“The purpose of such a charge is to counter the jury’s natural tendency to leap from the evidence of flight or concealment to a conclusion of guilt and to ensure that alternated explanations for the accused’s conduct are given full consideration. In particular, the trial judge should remind the jury that people sometimes flee or lie for entirely innocent reasons, and that even if the accused was motivated by a feeling of guilt, that feeling might be attributable to some culpable act other than the offence for which the accused is being tried. The jury should be instructed to keep these principles in mind when deciding how much weight, if any, to give such evidence in the final evaluation of guilt or innocence.”

162In R. v. Bains 2015 ONCA 677, [2015] O.J. No. 5191, Watt J. A. of the Ontario Court of Appeal stated, at paragraph 124,

“Post-offence conduct refers to anything said or done by an accused after the commission of the offence. It comprises a vast array of words and conduct: R. v. White 2011 SCC 13, [2011] 1 S.C.R. 433, at paragraph 21. Most evidence of post-offence conduct enters the trial record unexceptionally as an unremarkable part of the narrative….

As a species of circumstantial evidence, no special rule is attached to evidence of post-offence conduct.”

163As noted in R. v. Hamade [2015] O.J. No. 6057, at paragraph 26, Pardu J.A. stated,

“As a general rule, it is for the jury to decide, on the basis of the evidence as a whole, whether the evidence of an accused’s post-offence conduct is related to the commission of the offence charged rather than to something else, and if so, how much, if any weight should be accorded to the evidence in the final determination or guilt or innocence.”

164The probative value of post offence conduct evidence to the Crown depends on how many reasonable inferences can be drawn from the post offence conduct. If only one inference can reasonably be drawn, that is, evidence of guilt, the evidence has a high probative value to the Crown. If a number of reasonable inferences or alternate explanations, apart from guilt, can be drawn from such evidence the probative value reduces accordingly.

165One of the major issues in this trial is that of identity; was the accused the person who sent the messages under the name M. H. It is submitted by the Crown that the post offence conduct of the accused is relevant to the allegation that it was the accused that sent the offensive material.

166The post offence conduct evidence will be considered and weighed in determining guilt or innocence.

ARGUMENT

The Crown

167The Crown described this case as a, “who done it” case. There is no doubt as to that fact that the pictures and messages were sent and that at the time S. K. was under the age of 16 years.

168It is submitted that all the civilian witnesses knew the accused by the name M. H. and that the accused used the email address of m…..h….@hotmail.com. In fact in his closing submissions the accused acknowledged this email address was his.

169It is submitted the evidence of the daughters confirms the accused had a Facebook account.

170It is submitted that the penis picture sent to S. K. matched the penis pictures sent to the daughter via iCloud and that S. S. verified the pictures to be that of the accused’s penis. The pictures were downloaded to the daughter’s phone within the time frame it is alleged the offences took place.

171The Crown submits that the only inference to be drawn from the post offence conduct was an effort to avoid being charged. Such inferences lead to a conclusion of guilt.

172The deleted text messages, it is submitted by the Crown, all had to do with S. K. and that these messages could not be deleted by mistake as an active step is needed to delete messages.

173The Crown submits there are three essential elements of the charges.

1. An intentional communication by a computer or electronic device;
2. The communication is with a person the accused believes to be under the age of 16 years; and
3. The purpose is for sexual touching and/or to expose the accused’s genitals.

174In regards to the first element, the Crown submits Facebook is a function of the internet and can only be accessed by computer or smart phone. Cleary the messages and pictures were communicated by an electronic device such as a computer or smart phone.

175In regards to the second element, it is submitted the accused would know the age of S. K. who was a friend of his daughters, albeit a year older. The evidence is that he met S. K. at the mosque when she was 14 years old and that the accused’s family was friends with the family of S. K.

176It is submitted further that the accused did not take any reasonable steps to ascertain her age. There is no such evidence and no evidence to suggest the accused made inquiries as to the age of S. K.

177In regards to the third element, given the content of the pictures and the context of the messages, there would appear to be no doubt that they had as their purpose sexual touching and exposure. The pictures were sent more than once and the messages repeated. The messages it is submitted were blatant and invited S. K. to have a sexual relationship with whoever sent the texts or messages.

178In response to the accused’s submission that his ex-wife had a motive to lie, the Crown submits that she is not the complainant and that there is no evidence that the accused is being “framed”.

179The Crown notes that Aa. H. is more favourable to her father, the accused, and that the discrepancies between her evidence in her examination in chief and her cross-examination can be attributed to the bias. Nevertheless, she acknowledged the accused used the name of M.

180The Crown submits therefore that the real issue to be determined is whether or not the accused sent the offensive material and that the evidence proves beyond a reasonable doubt that the offensive material was sent by the accused.

The Accused

181The accused submits the evidence does not prove he sent the graphic material. He submits anyone can use any name to open an account.

182The accused submits that while his computer and cell phone were searched the Crown could not produce any proof that the messages and pictures in issue were sent by him.

183The accused submits that he does not use the name M. and submits that the name M. does not belong to him. Contrary to this however he admitted that his email address was m…..h….@hotmail.com.

184The accused submits that the Crown has failed to call evidence from the email providers such as Bell or Rogers to prove that he sent the messages which are in issue. The cell records were never the subject of a production order.

185The accused acknowledges that he did call S. K.’s father but states such an act is not that of a guilty man and that he did so to tell her father that it was not him who sent the messages.

186The accused submits his ex-wife hates him which amounts to a motive to testify as to the penis picture. He submits that maybe S. K. hates him because he told his daughter she could no longer hang out with S. K. and that therefore she had a motive to fabricate the messages or the source of the messages.

187The accused submits there must be a lot of people with the name M. that could have sent the messages.

ANALYSIS

188The relevant sections of the Criminal Code are set out as follows.

189Section 172.1(1)(b) reads, as edited for our purposes,

“Every person commits an offence who, by means of telecommunication, communicates with a person who is, or who the accused believes is, under the age of 16 years, for the purpose of facilitating the commission of an offence under section 152.”

190Section 152, as edited for our purposes reads,

“Every person who, for a sexual purpose, invites, counsels or incites a person under the age of 16 years to touch, directly or indirectly, with a part of the body, the body of any person, including the body of the person who so invites, counsel on incites and the body of the person under the age of 16 years is guilty of an indictable offence.”

191Section 173(2) as edited for our purposes, reads,

“Every person who, in any place, for a sexual purpose, exposes his or her genital organs to a person who is under the age of 16 years, is guilty of an indictable offence.”

192Section 172.1 (4) reads,

“It is not a defence to charge under paragraph (1)(b) that the accused believed that the person referred to in that paragraph was at least eighteen years of age, sixteen years or fourteen years of age, as the case may be, unless the accused took reasonable steps to ascertain the age of the person.”

193For the most part, I accept the evidence of the complainant and the accused’s daughters. They were candid and forthright in their testimony and there are no significant inconsistencies in their evidence, apart from Aa. H’s evidence on whether the accused used the name M. As well, their evidence is corroborated by the exhibits in regards as to what material was sent electronically to S. K.

194In regards to the evidence of S. S., I have a doubt as to the reliability of her evidence although I concur with the Crown that despite S. S.’s ill feelings toward the accused there is no evidence of fabrication.

195The doubt I have is in relation to S. S.’s identification of the penis in the pictures as that of the accused, which I will discuss further.

196Given the evidence of the witnesses I find the following:

1. The accused before the court A. H. used as a nickname, the name M., a fact confirmed by all the civilian witnesses.
2. The names, A. H., M. H. and A. H. H. refer to one and the same person, that person being the accused.
3. The accused’s email address, at the relevant times, was m…..h….@hotmail.com.
4. S. K., when under the age of 16 years, received the messages and penis pictures set out in Exhibits 7 through to 11, inclusive, within the time frame as set out in the indictment.
5. The penis picture sent to S. K. (Exhibits 6, 7, and 8) is the same picture of a penis as downloaded from the iCloud account, shared by the accused and Aa. H., to Aa. H.’s phone, (Exhibit 13).
6. The messages and pictures were sent by a computer using the email address of m…..h….@hotmail.com.
7. The messages were an invitation for sexual touching as defined in section 152 of the Criminal Code of Canada. There can be no other explanation.
8. The computer and the Facebook account used to send the messages is a computer system in accordance with section 342.1 of the Criminal Code of Canada.
9. The penis picture received by S. K., given the messages, is an exposure of a genital organ, sent for a sexual purpose.
10. The computer seized, along with the cell phone, belonged to the accused and was in the possession of the accused when he was arrested. The Facebook page found on the computer used the email address of m.….h….@hotmail.com.
11. Attempts were made to delete relevant messages on the accused’s cell phone, and the accused’s Facebook account was deactivated as a result of S. K.’s disclosure and the police investigation.

197With respect to Count 2, section 173(2) of the Code makes it a crime for someone, for a sexual purpose, to expose “his or her” genitals and applies to images sent over the internet. The victim and the perpetrator need not be in the same physical place for an offence to be committed (R. v. Alicandro (2009) 2009 ONCA 133, 246 C.C.C. (3d) 1 (Ont. C. A.)).

198For A. H. to be convicted of this offence the penis in the pictures must be that of A. H. He must be exposing “his genitals”.

199If the accused sent pictures of someone else’s penis he would not have violated the section.

200The only witness who could identify the penis as that of the accused’s is S.S., the accused’s ex-spouse. The daughters believe the penis in the picture was that of the accused because they were told so by their mother, S. S. S. K. believed it was a picture of the accused’s penis only because the name attached to the picture was M. H.

201The accused and S. S. have been separated for at least 15 years. Other than estimating its length, S. S. did not speak of any identifying features in regards to the accused’s penis.

202The pictures presented to the court and made exhibits are photocopies of either a printed copy of the picture or of a photograph of a computer screen. The copies filed as exhibits are not photograph quality.

203I am not satisfied beyond a reasonable doubt that the penis pictures sent to S. K. are pictures of the accused’s penis. S. S.’s identification of the penis, at least 15 years after she would have had the opportunity to observe it, creates the doubt especially without reference to any identifying factors. On her own evidence S. S. has never observed another penis against which to compare to that of the accused’s.

204The fact the penis was circumcised is not helpful in that it is a common procedure in regards to men generally and specifically in regards to Muslim men.

205For a conviction under the second count of the indictment, pursuant to section 173(2), the Crown is required to prove beyond a reasonable doubt that the penis is that of the accused which she has failed to do. There will be a finding of not guilty in regards to Count 2.

206In regards to Count 1 and the identity of the person who sent the pictures and messages, I have concluded that the Crown has proven, beyond a reasonable doubt, that it was the accused that did so.

207This finding is based on the following circumstantial evidence as set out in paragraph 196 and for the following reasons.

208The offensive material was sent from M. H., a name used by the accused and using the email address belonging to the accused, an email address on his Facebook account.

209Exhibit 4, entries 1-32, were all exchanged on March 6, 2014, the day the charges were laid. Clearly the accused became aware of a possible police investigation. He knew his ex-wife, S. K. and his daughters were at the police station.

210The accused’s cell phone was instructed to delete items 14-32.

211At Exhibit 4, entry 38, reference is made to “the pic” which I find means the penis picture. At entry 36, the accused asks his daughter if she deleted it to which she responded that she deleted everything (entry 35). It represents an effort to destroy incriminating evidence.

212On a whole, the messages point to guilt, in that the accused was trying to move the guilt spotlight away from him, was aware of the investigation, and was trying to delete a large number of messages sent between March 4 and March 6, 2014, some within hours of his arrest.

213The reasonable and persuasive inference to be drawn is that of culpability and in that regard the messages are probative to the Crown. The timing of the messages and the positive step of deleting certain messages represent the actions of someone who is guilty.

214The computer, when seized at the accused’s home, was on and opened to the accused’s Facebook which page noted that the account was deactivated. The email address of the account was m…..h….@hotmail.com, the email address of the accused.

215This deactivation and the numerous cell phone message deletions are more than coincidental and infer a current or very recent effort to destroy evidence.

216The accused’s argument that someone else may have used his email account is a statement made without any air of reality.

217The Crown has proven beyond a reasonable doubt that the inappropriate pictures and emails were sent to S. K. by the accused within the time periods as set out in Count 1, that is, within a two month period ending on or before October 20, 2013.

218As noted previously, the messages were clearly an invitation to sexual touching as set out in section 152 of the Code.

219In regards to S. K.’s age, the accused would have known her approximate age. He had met her a few years previously at the mosque where both families attended. S. K.’s father was a friend of the accused and S. K. had been in the presence of the accused when she was with his daughters.

220The accused’s communication with S. K. was for the purpose of facilitating a crime pursuant to section 152 of the Code. As such, the accused is guilty of the offence of, Luring a Child, as set out in section 172.1(1)(b) of the Code.

221The accused is found guilty of Count 1.

RULING

222The accused is found guilty on Count 1 and not guilty on Count 2.

Bielby J.