WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(3) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(3), read as follows:

486.4(3) CHILD PORNOGRAPHY — (1) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Court: Ontario Court of Justice

Date: 2018-08-28

Court File No.: Hamilton Information No. 16-3908

Between:

Her Majesty the Queen

— AND —

D.G.

Before: Justice J.P.P. Fiorucci

Heard on: June 18th and 25th, 2018

Reasons for Judgment released on: August 28th, 2018

Counsel:

• J. Booy — counsel for the Crown
• S. Bernstein — counsel for the accused D.G.

INTRODUCTION

[1] On April 16th, 2016, D.G. sexually assaulted a seven year old girl. The victim was the daughter of a common law girlfriend of a friend. The accused and this friend were acquainted.

[2] The sexual assault was videotaped by the friend using a cellphone. The cellphone video does not depict the face of D.G. D.G. admitted that he is the male in the video. D.G. entered a plea of guilty to Sexual Interference. He entered a not guilty plea to Making Child Pornography. The trial proceeded on this one charge only. At the trial, D.G. testified that he did not know that the friend was videotaping the sexual assault, and therefore, should be found not guilty of Making Child Pornography.

[3] The Crown submits that the surrounding circumstances of the sexual assault, including D.G.'s knowledge that the friend had previously videotaped sexual assaults upon the victim, and what is depicted in the video itself, support the logical and reasonable inference that D.G. had actual knowledge that the sexual assault was being videotaped, or that he was wilfully blind to that fact.

EVIDENCE

Agreed Statement of Facts

[4] At the commencement of the trial, D.G. admitted certain facts contained in an Agreed Statement of Facts which was made a trial exhibit.

[5] The friend lived with his common law girlfriend and her three children. D.G. would visit his friend at this address.

[6] During a police investigation into the sexual abuse of the victim, the police seized an Apple MacBook computer from the residence of the friend. Examination of this computer led to the discovery of the video depicting D.G. sexually assaulting the victim on April 16th, 2016.

[7] In this judgment, I will refer to the acts perpetrated upon the victim by D.G. as the "sexual assault". I believe it is necessary for me to refer to the specific sexual acts in order to fully explain my conclusions. Due to the sensitive nature of the details of the sexual assault, I will do so in the endnotes of this judgment. A copy of these reasons, with all of the endnotes redacted, will be released to the public. An unredacted version will be sealed and placed in the court file so that it will be available to any reviewing court. Crown counsel and Defence counsel will each receive an unredacted version, which will not be made available to the public.

[8] D.G. was arrested on May 20th, 2016. Detective Troy Ashbaugh of the Hamilton Police Service conducted a videotaped interview with D.G. D.G. conceded the voluntariness of this statement to police. During the video interview, D.G. originally denied sexually abusing the victim. However, when Detective Ashbaugh confronted D.G. with the video, which depicted a male with a very distinctive tattoo, D.G. admitted that he was the male sexually assaulting the victim in the video.

[9] D.G. further confessed that, prior to his sexual assault of the victim, he and the friend watched numerous videos of the friend sexually abusing the victim, and a video that the friend surreptitiously made of his 16 year old step-daughter, naked in the bathroom. After watching the homemade child pornography, D.G. watched the friend bring the victim from her bed and sexually abuse her. Then, D.G. disclosed to Detective Ashbaugh that he "got really bombed and just wanted to try it", and he sexually assaulted the victim himself. While D.G. was sexually assaulting the victim, the friend was holding a cellphone videotaping the abuse.

Statement of the Victim

[10] On May 3rd, 2016, police obtained a videotaped statement from the victim. On consent, this statement was made an exhibit at the trial. D.G. admitted the contents of the statement without the necessity of having the victim testify, or be cross-examined.

[11] The victim did not identify D.G. as the perpetrator of the sexual assault on April 16th, 2016. She said that sometimes some strangers would come in and watch the friend sexually abusing her. She could not identify any of these other persons, but said that when other people were in the room, they were "watching TV".

[12] The victim also described in detail how the friend sexually abused her, and how he used the light on his phone during the sexual abuse.

Sergeant John Tselepakis and the Video of the Sexual Assault

[13] Sergeant John Tselepakis gave evidence regarding his examination of the cellphone used by the friend to videotape D.G.'s sexual assault of the victim, and his examination of the video itself.

[14] Sergeant Tselepakis testified that the video depicting the sexual assault was created on April 16th, 2016 at 4:19 a.m. This video was then re-edited into different clips, which were found on the friend's MacBook computer. These three clips of the video were given three different file names. Two of those file names contain the first name of D.G.

[15] Sergeant Tselepakis also prepared a report which details his examination of the video, and includes still photographs from the video. These photographs show various segments of the sexual assault. The report was made an exhibit at the trial.

[16] I viewed the three video clips. It was evident from viewing these video clips that the cellphone used by the friend to videotape the sexual assault was in close proximity to D.G. and the victim at all times. The cell phone would at times move closer to them, and at times move away from them.

[17] From viewing the video clips and the still photographs contained in Sergeant Tselepakis' report, I was able to observe the body positioning of both D.G. and the victim during the sexual assault. At one point in the video, D.G. is seen to briefly move his body in a manner which suggests that he was aware of the videotaping.

[18] Furthermore, on two occasions during the sexual assault, the friend's left hand is visible, and he participates in the sexual assault. These two occasions provide evidence of the close proximity of the friend to D.G. and the victim during the sexual assault. During these two occasions where the friend's hand was visible, the video remained focused on the sexual assault the entire time.

[19] Sergeant Tselepakis testified that the only source of light in the video appeared to be the bright LED light from the cellphone. There did not appear to be any background lighting. The officer was cross-examined, and his evidence on this point was not challenged.

[20] Furthermore, Sergeant Tselepakis testified about certain points in the video where the LED light on the cellphone reflected off of D.G.'s hand to the point that the reflection bleached out the video. This was offered as further evidence of the close proximity of the cellphone to D.G. and the victim, and the fact that the cellphone was being moved in, out and side to side during the sexual assault. The officer was cross-examined. His evidence about the close proximity of the cellphone camera to D.G. and the victim was not challenged.

D.G.'s Evidence

[21] D.G. testified at trial that, prior to the sexual assault, he had consumed a significant quantity of alcohol and had also consumed cocaine with the friend. He described himself as being "hammered".

[22] In his examination-in-chief, D.G. denied even knowing where the friend was during the sexual assault, and denied knowing what the friend was doing. When he was asked by his counsel whether the room was dark during the sexual assault, he said he could not remember.

[23] When he was cross-examined by Crown counsel, D.G. maintained that he did not know that the friend was filming him sexually assaulting the victim. He repeated that he could not remember if the room was dark. In cross-examination, D.G. stated that "he didn't see no light, or phone, or nothing". He conceded that his eyes were open, but stated that he was "just looking away". At one point in the cross-examination, he again stated that he did not know where the friend was during the sexual assault. When pressed further with the details of the friend's participation in the sexual assault, D.G. finally conceded that the friend would have been quite close to him. However, D.G. continued to deny knowledge of being videotaped.

ANALYSIS

[24] It is the position of the Defence that when considering the issue of D.G.'s knowledge, the Court should either accept his evidence or be left with a reasonable doubt. There is not sufficient evidence to infer knowledge, and his denial of knowledge should be accepted.

[25] The Crown submitted that the circumstantial evidence points to the reasonable and logical inference that D.G. would have had to have known that he was the actor in the film which was being directed and produced by the friend. The Crown argued that absent direct knowledge, guilty knowledge may be established by the concept of wilful blindness in the circumstances of this case.

[26] The accused is presumed innocent and that presumption can only be displaced if his guilt is established beyond a reasonable doubt by the Crown. I must instruct myself in accordance with the criminal standard of proof set out by the Supreme Court of Canada in R. v. Lifchus. A reasonable doubt must be based on reason and common sense. It is logically derived from the evidence or absence of evidence. It is not sufficient to believe that the accused is probably guilty or likely guilty. On the other hand, it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so because such a standard of proof is impossibly high.

[27] As D.G. gave evidence in this trial, I am required to consider and apply the framework enunciated in R. v. W.(D.), which states that:

(1) If I believe the testimony of the accused, I must find him not guilty;

(2) If I do not believe the accused's evidence, but the evidence leaves me with a reasonable doubt, I must find him not guilty;

(3) Even if the accused's evidence does not leave me with a reasonable doubt, I must ask myself whether, on the basis of the evidence I do accept, I am convinced beyond a reasonable doubt of the guilt of the accused.

[28] I can accept all, some or none of a witness's evidence. In assessing D.G.'s evidence, I need to consider his credibility, and the reliability of his evidence.

[29] When he was arrested on May 20th, 2016, D.G. chose to speak to police in his videotaped interview with Detective Ashbaugh. He lied to Detective Ashbaugh a number of times during this interview.

[30] When Detective Ashbaugh asked D.G. whether he had ever had sexual relations with a girl who was too young to consent, D.G. stated that he had not, and that he would never touch a child. This was a lie.

[31] When Detective Ashbaugh asked D.G. whether he had ever had sex with anybody in the friend's home, he stated that he had not. This was a lie.

[32] When Detective Ashbaugh asked D.G whether the friend had ever shown him any videos on his computer or his phone, D.G. stated that he had not done so. This was a lie.

[33] When Detective Ashbaugh confronted D.G. with the video which obviously depicts his sexual assault of the victim, D.G. first stated that he did not remember it at all, and then stated that he was really drunk.

[34] Even after Detective Ashbaugh confronted him with the video, D.G. continued to say that he did not remember committing the sexual assault, and that he was so drunk that he did not remember that day at all.

[35] D.G.'s statement to Detective Ashbaugh that he did not remember that day at all is inconsistent with the testimony he gave at trial. At trial, D.G. went into great detail about everything that happened on April 16th, 2016 leading up to the sexual assault. The great detail he provided with respect to the events leading up to the sexual assault is in stark contrast to the lack of detail he provided regarding what happened during, and after the sexual assault.

[36] D.G.'s trial testimony that he did not even know where the friend was during the sexual assault is implausible when considered in the context of the video evidence of the assault, including the friend's participation in the assault, and the friend's proximity to D.G. and the victim when he was videotaping. It was only when Crown counsel pressed him with specific details about the friend's participation in the sexual assault that D.G. finally, and reluctantly, admitted that the friend was quite close to him during the assault.

[37] D.G. did not give his evidence in a balanced way, and did not readily respond to questions that he was asked. For instance, when he was first asked by Crown counsel whether his eyes were open during the assault, D.G. avoided the question by saying that he was drunk, didn't see a phone, or a light. Instead of answering the question truthfully, he evaded the question because he was anticipating where the line of questioning was going. It was only after he was pressed further by Crown counsel that he acknowledged that his eyes were open.

[38] When D.G. was asked where he was looking, his response was, "just looking away". I find this response to be an obvious attempt to remove himself from everything that was happening in the room at that time. In light of the video evidence of the sexual assault, since D.G.'s eyes were open, it would have been impossible for him not to notice the friend in the room, in close proximity to him, and the light that would have been emanating from the cellphone camera.

[39] At times in his trial evidence, D.G. attempted to attribute his lack of knowledge to the consumption of alcohol and drugs. I reject his evidence in this regard. The only evidence of the effects of alcohol and drugs on D.G. comes from D.G. himself, a witness I have found to be unreliable. Furthermore, D.G. conceded in cross-examination that the friend invited him to come over to his house to sexually assault the victim. D.G. left his house knowing that he was going to sexually assault the victim. A review of the video evidence reveals that D.G. had no difficulty following through with his intention. He conceded that his decision to take his turn with the victim was his own "free choice", and that he decided to do it because he wanted to try it. In short, whatever amount of alcohol and drugs D.G. did consume on April 16th, 2016 did not affect his ability to observe to the extent that he claimed in his trial evidence. In cross-examination, D.G. conceded that, after the sexual assault, he drove his own vehicle home from the friend's house without incident.

[40] Based on the concerns I have identified with respect to the credibility and reliability of D.G.'s testimony, I find that he is not entitled to an acquittal at the first stage of the W.(D.) analysis. I reject his trial testimony that he did not know that the friend was videotaping the sexual assault.

[41] Mere disbelief of the accused's evidence does not satisfy the Crown's burden of persuasion. I cannot use disbelief of the accused's evidence as proof of guilt. I also need to consider whether or not the evidence of the accused, in the context of all of the evidence, raises a reasonable doubt. If it does not, I must be satisfied on the totality of the evidence that there is no reasonable doubt as to the accused's guilt.

[42] Wilful blindness acts as a substitute for actual knowledge, when knowledge is a component of mens rea. As Charron J. put it in R. v. Briscoe, at paragraph 21:

Wilful blindness does not define the mens rea required for particular offences. Rather, it can substitute for actual knowledge whenever knowledge is a component of the mens rea. The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries. See Sansregret v. The Queen, [1985] 1 S.C.R. 570, and R. v. Jorgensen, [1995] 4 S.C.R. 55. As Sopinka J. succinctly put it in Jorgensen (at para. 103), "[a] finding of wilful blindness involves an affirmative answer to the question: Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge?"

[43] As the Court of Appeal for Ontario recently affirmed:

Wilful blindness involves a state of what has been described as "deliberate ignorance" that involves "an actual process of suppressing suspicion". It does not involve a failure to inquire, but an active decision not to inquire so as to avoid being fixed with knowledge: Briscoe, at para. 24, citing Don Stuart, Canadian Criminal Law: A Treatise, 5th ed. (2007), at p. 241.

[44] In this trial, the Crown has established the following:

(1) D.G. was well aware that his best friend was creating videos of himself sexually abusing his step-daughter. A month to two months before April 16th, 2016, D.G. watched homemade child pornography videos created by the friend, which showed the friend sexually abusing the victim. In total, the friend showed D.G. about ten different videos of him sexually abusing the victim. D.G. was able to describe details of what was contained in some of these videos, including the clothing worn by the victim and details of the sexual acts;

(2) The friend also showed D.G. a video that he surreptitiously made of his 16 year old step-daughter, naked in the bathroom;

(3) On April 16th, 2016, the friend invited D.G. to come over to his house to sexually assault the victim. D.G. accepted this invitation and went there with the intention of sexually assaulting the victim;

(4) On April 16th, 2016, prior to sexually assaulting the victim, D.G. watched the friend sexually assault her;

(5) On April 16th, 2016, D.G. again watched videos of the friend sexually abusing the victim just before he sexually assaulted her himself;

(6) The friend was in close proximity to D.G. and the victim when the sexual assault was occurring, and was holding a cellphone camera videotaping the sexual assault. At two points during the sexual assault, the friend is in such close proximity that he participated in the sexual assault while holding the cellphone in his other hand, and continuing to videotape the sexual assault;

(7) At one point in the video, D.G. is seen to briefly move his body in a manner which suggests that he was aware of the videotaping;

(8) The cellphone camera used by the friend had a bright LED light; and

(9) D.G. knew how a cellphone worked, and that a cellphone could be used to videotape.

[45] I have rejected the accused's denial of knowledge. Furthermore, the accused's evidence, in the context of all of the evidence, does not raise a reasonable doubt. On the totality of the evidence, based upon the facts the Crown has established, as set out above, I find beyond a reasonable doubt that D.G. had actual knowledge that the friend was videotaping the sexual assault.

[46] However, if I am in error, on the evidence presented and the facts established by the Crown, I find beyond a reasonable doubt that D.G. had his suspicion aroused to the point that he thought there was a need for inquiry, but he deliberately chose not to inquire because he did not want to know the truth. Those facts include D.G.'s knowledge that the friend had previously created child pornography videos depicting the victim being sexually assaulted, D.G.'s knowledge that the friend had videotaped his 16 year old step-daughter naked, the presence of the friend in the room in close proximity to D.G. and the victim holding a cellphone camera with a bright LED light, and the evidence of D.G., which I do accept, that his eyes were open during the sexual assault. It is best summed up in D.G.'s own words: he was "just looking away".

CONCLUSION

[47] I find D.G. guilty of the offence of Making Child Pornography, contrary to section 163.1(2) of the Criminal Code.

Released: August 28th, 2018

Signed: Justice J.P.P. Fiorucci