WARNING

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 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

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(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) 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 victim of the right to make an application for the order; and

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

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) 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.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

486.6(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.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

ONTARIO COURT OF JUSTICE

CITATION: R. v. D.M., 2019 ONCJ 77

DATE: 2019·02·01

BETWEEN:

Her Majesty the Queen

— and —

D. (M.)

Reasons for Judgment: December 13, 2018 (Released February 1, 2019)

T. Hewitt ............................................................................................... Counsel for the Crown

J. Collins ................................................................................. Counsel for the Defendant

Felix J.:

Note: This written judgment has been edited to comply with the terms of the publication ban.

Table of Contents: R. v. D.(M.)

I. Introduction. 6

II. Position of the Defendant 7

III. Position of the Prosecution. 8

IV. Analysis. 8

A. Introduction. 8

B. Elements of the Offences. 9

C. The Video. 10

D. The Joint Investigation. 11

1. The Defendant Intentionally Deleted the Video. 11

2. The Defendant’s Damaged Phone was not Misfortune. 14

E. Exclusive Opportunity. 17

1. Introduction – Exclusive Opportunity. 17

2. The Creation of the Video. 17

3. Access to the Children’s Bathroom.. 18

4. Access to the Complainant’s Daughter 18

5. Access to the Defendant’s phone. 19

6. Access to the Defendant’s Instagram Account 19

7. Hacking. 20

8. Other Suspects. 22

a) Introduction. 22

b) The Availability of a Defence. 22

c) Other Known Suspects. 23

(1) The Complainant’s Son and Daughter 23

(2) The Defendant’s Brother and Mother 23

(3) D.B. 23

(4) K.N. 24

(5) The Complainant 24

(a) The relationship with the Defendant 24

(b) Commitment to the Defendant 25

(c) Motive to Fabricate; Motive to “Frame” the Defendant 25

(d) “Framing” the Defendant 26

(e) Conclusion – Credibility of the Complainant 27

d) Other Unknown Suspects. 27

9. After the Fact Conduct 28

a) The Law: After the Fact Conduct 28

b) After-the-fact conduct consistent with guilt 29

c) After the fact conduct consistent with innocence. 29

10. Conclusion: Exclusive Opportunity. 30

F. Credibility of the Defendant 30

1. Criminal Burden of Proof 31

2. W.(D.) 31

3. Core Credibility. 31

4. Cross-Examination and Demeanor 32

5. Other Discreditable Acts. 32

G. Villaroman. 33

V. Disposition. 34

I. Introduction

[1] The defendant is charged with making child pornography contrary to s.163.1(2), possession of child pornography contrary to s.163.1(4); and voyeurism contrary to s. 162(1)(a) of the Criminal Code of Canada (Criminal Code).

[2] The defendant and the main Crown witness (who I describe as the complainant in this judgment) were in a common law relationship and shared a residence with three children. Two of the children were the product of the complainant’s union with other partners. The allegations involved one of these children – the eight year old daughter of the complainant. The defendant and the complainant shared a newborn child approximately six weeks old at the time of the allegations.

[3] The couple encountered some of the struggles associated with the care of a new born child. In addition, the complainant held some concern about the defendant’s conduct with other women because of some electronic communi­cations she observed in December 2016. As a result of this experience, (the particulars of which do not concern this court), the complainant was in the habit of checking the defendant’s cellphone to ascertain his level of commitment to their relationship. At times, these checks were as often as three times a day. The scope of the cellphone checks involved perusing the defendant’s communi­cations across multiple smartphone applications. The fact that the complainant engaged in this practice was known to the defendant.

[4] On April 9^th 2017, at approximately 10:00 PM, the complainant observed the defendant’s phone within the residence. She conducted a check of his phone and discovered a nude video of her eight year old daughter in the bathroom having just showered. This video was located in the defendant’s Instagram direct message sent box.

[5] After spending some minutes absorbing the magnitude of what she had witnessed on the defendant’s phone, the complainant endeavored to use her personal cell phone to make a video copy of that which was depicted on the defendant’s cell phone in the Instagram direct message sent box. Thereafter, the complainant confronted the defendant and showed him what she found on his phone. Both the defendant and the complainant observed the video playing via the defendant’s personal Instagram account. The defendant denied respon­sibility for the creation or possession of this material.

[6] During this initial discussion the complainant handed the defendant’s phone back to him and observed him manipulate the phone. Shortly thereafter, the video was no longer in his Instagram direct message sent box. She concluded that he had intentionally deleted it. It was only then, that the complainant made him aware that she had a copy of the video recorded on her phone.

[7] Thereafter the defendant and the complainant engaged in a wide-ranging investigation into the circumstances surrounding the creation and possession of this video as well as the impact on their family. This carried over into the next day.

[8] The complainant lost faith in the defendant’s claim of innocence the following day when he returned from work and advised her that his cell phone was suddenly no longer operative. From the complainant’s perspective, she found the timing of the twin events (deletion of the video and the malfunction of the defendant’s cell phone) to be too much. The complainant no longer believed the defendant’s denial. Thereafter, the defendant was charged with these offences.

II. Position of the Defendant

[9] The defence characterized the prosecution’s case as one focused on exclusive opportunity. The defence position was that the Crown had not established beyond a reasonable doubt that the defendant committed the offences, nor had the prosecution established that he had the exclusive opportunity to commit the offences.

[10] The defence cited the following factors:

1. The defendant’s evident surprise upon being confronted with the video as described by the complainant;

2. The defendant’s cooperative investigation with the complainant surrounding the creation of the video;

3. The defendant’s cooperative approach with the investigating police officers;

4. Evidence of motive and opportunity from both known and unknown parties;

5. The lack of direct evidence concerning the precise manner in which video was created;

6. Evidence sourced in the forensic examination of the defendant’s phone, evidence of the police officer from the ICE Unit, and the defendant’s denial, in support of the defendant’s Instagram account having been “hacked”; and

7. Defence counsel argued that the evidentiary record rebutted the exclusive opportunity theory of liability relied upon by the prosecution. Furthermore, that a proper application of the criminal burden of proof, W.(D). v. The Queen (1991), 63 C.C.C. (3d) 77 (S.C.C.) [W.(D.)], and law concerning circumstantial evidence, must provoke a reasonable doubt.

III. Position of the Prosecution

[11] The Crown Attorney submitted that the evidentiary record demonstrated the defendant’s guilt as the perpetrator of these offences. The prosecution cited the following factors:

1. The strength of the complainant’s evidence such that the evidence of the defendant should be rejected on core issues;

2. Actions of the defendant including the deletion of the video and the timing of his malfunctioning phone;

3. Having regard to the exclusion of the complainant as a perpetrator, the exclusive opportunity for the defendant to commit the offence as only the complainant and the defendant had access and control over the child depicted in the video, the situs of the offence, the defendant’s cell phone, and the defendant’s Instagram account; and,

4. The rejection of other suspects either known or unknown.

[12] For the reasons that follow, the defendant is found guilty of all three counts.

IV. Analysis

A. Introduction

[13] There are many interested members of the public present for this judgment. At times a judge should adapt reasons so that it is clear to those without a full understanding of the principles in criminal law how a verdict is reached. This Court has an obligation to explain the route to conviction. In doing so I have made my very best effort to directly address the important issues and clearly outline my conclusions.

[14] There are several criminal law principles that I will expand on during this judgment. But at its core, the organizing principle was the presumption of innocence. A predominant theme during the litigation of this case involved a mindset of discovery – who was the perpetrator of the offences? Notwithstanding the obvious interest in this question, I did not fall victim to the trap of assigning guilt to the best candidate amongst ascertainable persons. As odd as this will sound to a layperson, a criminal trial is not a search for truth at all costs. There are times where no conclusive or satisfactory answer is revealed at the end of a criminal trial. The core purpose of a criminal trial is not an unqualified search for this truth. The core purpose is a reasoned and common sense approach to the evidence and the honest and reasoned answer to a fundamental question – has the prosecution proven the case beyond any reasonable doubt.

[15] My overarching conclusion is that the prosecution has proven the defendant’s guilt beyond a reasonable doubt. As a result, I am obligated to register a finding of guilt. I have organized this judgment around the core area of litigation – exclusive opportunity. While a determination of guilt or innocence necessarily rests on an evaluation of all of the evidence as considered against the criminal burden of proof, for the purpose of showing my path to the ultimate finding, I will address several factors as subsidiary building blocks:

B. Elements of the Offences

[16] The parties did not litigate nor provide submissions concerning the essential elements of the three offences before the court. As a result, I will briefly address each offence for completeness.

[17] The parties agreed that the video of the complainant’s eight-year-old daughter in the washroom met the definition of child pornography as defined in the Criminal Code. I may further stipulate that there is no question that the video meets the definition outlined in s.163.1(1)(a)(ii) of the Criminal Code: R. v. I.(J.E.), 2005 BCCA 584. Furthermore there was no issue with respect to the integrity or the continuity of the video.

[18] The surreptitious creation of the child pornography video and then the electronic conveyance of said video via the defendant’s Instagram application direct message system to a third party account essentially establishes the requisite actus reus for each offence. On the record placed before me, the requisite mental intent is frankly easily inferred. Put another way, the perpetrator who surreptitiously captured a video of the complainant’s nude 8 year-old daughter must be a person who knowingly possessed a video of child pornography, knowingly created the child pornography, and committed the offence of voyeurism.

[19] I agree with defence counsel that liability may not attach simply on the basis of proof that the defendant possessed his phone. The prosecution must prove that the defendant had knowledge of the video within his Instagram application. In finding the defendant guilty of possession of child pornography, I am satisfied beyond a reasonable doubt that he knew that child pornography was in his Instagram application.

[20] With respect to the count alleging the creation of child pornography. I draw the reasonable inference that given the defendant’s peculiar knowledge of that video in his Instagram application, and other findings that I will explain, it is he, who indeed, captured that video.

[21] Finally, the video itself, along with other findings that I will explain, clearly establishes the voyeurism offence.

C. The Video

[22] The complainant testified that she discovered the video at approximately 10:00 PM, Sunday April 9^th 2017. Prior to confronting the defendant she had the presence of mind to take steps to preserve the evidence depicted in his Instagram account. She used her cellphone to video capture the offending footage thereby making a copy of the evidence. It is quite clear that the complainant is manipulating the Instagram direct message mail sent box and that the video was conveyed to “im_so_sincere” on a date indicated as “Thursday 11:14 PM”. One can clearly see the utilization of another phone, a finger with a red fingernail, and a capture of the footage that is shaky and subject to a profile change from landscape to horizontal.

[23] The native video capture is stationary, in colour, and positioned low to the ground. The narrow frame is clearly behind the linen closet door which is slightly ajar. The resolution of the video is high. The video captures the eight year old daughter of the complainant using a green towel having just come out of the shower. The child does not look at the camera. Objectively speaking it is clear that the recording is surreptitious.

[24] The issue of continuity of the video was conceded at the outset of the trial. That being said, the exact time and exact date that the native video was captured has not been proven by the prosecution. There is no evidence of the precise date and time that the native video was captured. A forensic examination of the defendant’s phone did not reveal the video capture residing in any application native to his Samsung smart phone. Manual searches conducted by the complainant and defendant did not reveal the video on the defendant’s native applications on his Samsung phone or other electronic devices.

[25] At the time of the discovery of the video the complainant’s daughter was not in the residence as she was with her father on a custodial visit. The complainant time-stamped the video by referencing the timeframe when she received a gift of green towels from a family member. The complainant’s daughter is using one of those green towels in the video. This un-contradicted evidence fuels the timeframe of the indictment before the court.

[26] There is no question, based on all of the evidence in this trial, including the evidence of the defendant, that the video was in fact residing in the defendant’s Instagram direct message sent box as described by the complainant. The video, as I have indicated, clearly meets the definition of a surreptitious visual recording sufficient to establish the voyeurism offence.

D. The Joint Investigation

[27] After the discovery of the video, the complainant composed herself for several minutes. She also made a copy of the video by recording it with her cellphone. The complainant called the defendant up to the master bedroom and confronted him with her discovery.

[28] Over the next day or so, the complainant and the defendant engaged in ongoing periodic discussions about the video. Two important events happened during this timeframe: (1) I find that the defendant intentionally deleted the video upon being confronted by the complainant; and (2) I find that the defendant damaged his cellphone prior to attending a cellphone store for the purpose of determining if data could be extracted from his phone. I will address the factual underpinnings of these conclusions now. Later on in this judgment I will explain why I have characterized this conduct as after-the-fact conduct probative of the defendant’s guilt.

1. The Defendant Intentionally Deleted the Video

[29] Upon confrontation, the complainant described the defendant’s demeanor as confused and surprised. He also said words confirming the identity of the complainant’s daughter in the video. She gave the phone to him. He had the phone in his hands. A moment later, the video was no longer in his Instagram account. The defendant showed his phone to the complainant so that she could see that it was no longer in the account. The defendant told the complainant that he clicked the user account to whom the video was sent and when he returned, the video was gone. In examining his phone at that moment, the complainant noted that none of the other messages previously present were missing – just the video.

[30] The complainant was emotional at this point as she was convinced that the defendant had intentionally deleted the video. She disclosed to the defendant at this point, the existence of the copy on her phone (i.e. the video was not gone). The timing of that disclosure is pivotal. At the time the video “disappeared” the defendant was not aware that she had made a copy of the video. The complainant broke down crying and went to the master bedroom closet. The defendant took her out of the closet for fear that his brother in the basement would become aware she was upset.

[31] I have no doubt that the defendant deliberately deleted that video notwithstanding the fact that the complainant did not actively watch him perform the act. I reject the defendant’s testimony on this issue. I find he deliberately deleted the video for several reasons. The defendant testified that he had significant experience using the Instagram application. Had he been a novice user and testified that through some unfamiliarity he caused the deletion, I might have given him the benefit of the doubt. But during cross-examination, he dodged and evaded direct questioning about his personal experience with things being deleted from his Instagram direct message mail inbox. At various times he testified that:

• He had never had a similar experience

• He had never had an experience where a video was deleted

• He did not understand that Instagram operated such that material would spontaneously delete.

• He could not remember a specific time when this had occurred in his memory

• To his knowledge it is not a frequent experience

[32] Then, he would vacillate. On other occasions he testified that:

• He cannot say that losing material in this fashion had never happened

• He believed there had been instances where material had been deleted

• He was aware that Instagram could delete content without input (i.e. it happened; he was aware that it was possible)

• “. . . [ I ] never testified that I was the sole operator of my account”.

• He speculatively believed that others had access to his account and could manipulate or delete content

• He relied upon forensic examination evidence of his phone when testifying (something he did not have at the time) to suggest that others could have had access to his phone.

• He believed that on other occasions material had been deleted.

[33] The predominant feature of the defendant’s evidence in support of his position that he had not deleted the video was inconsistency. When confronted with simple direct questions in cross-examination he resorted to speculation about remote manipulation of his account and other after-the-fact excuses.

[34] The second reason why I find the defendant deleted the video is based on the timing of the disclosure to him that the complainant had copied the video with her phone. It is exquisitely clear that at the time the video was deleted the defendant was not aware of the copy because the complainant had not told him this in advance of confronting him. Furthermore, it was not lost on me that later on, in the early morning hours, the complainant was awoken from sleep in a separate bedroom by the defendant intently searching under her pillow for her cellphone – the one with the capture of the evidence. Her cellphone was now the only evidence of the offending video on his phone.

[35] Another reason I find that the defendant deleted the video is because of the evidence of the complainant. Credibility assessments are made on all of the evidence. Later on in this judgment I will summarize my credibility determinations but for the moment, let me say I found the complainant to be a credible witness. Apart from her ability to answer questions directly and concisely. The predominant feature of her evidence was thoughtful balance – even towards the defendant. On this issue – the complainant demonstrated balance. She testified that she did not specifically see the defendant use his finger to delete the video. Had she been intent on fabricating evidence against him it would have been a simple task to confirm that she observed him delete the video. Her conclusion that he deleted the video was based on a reasonable inference. Moments after confronting him with the video and handing him the phone, the video disappeared according to the defendant. Even after her suspicion that the deletion was not accidental, the conflicted complainant still gave him some measure of the benefit of the doubt and continued to participate in their joint investigation.

[36] Fourth, at the time the defendant showed the complainant that the video was no longer in his inbox, she could see that the other messages in his Instagram direct message mail box had not been disturbed – they were still there. The defendant, in at least one of his speculative jaunts, testified to the possibility that the Instagram application itself deleted the video. Why was the only deletion the slender message attached to the video? Why was the remainder of his mailbox left untouched?

[37] Fifth, it is admittedly a minor point, but the defendant materially differed from the procedure needed to delete a message. The complainant testified that in order to delete a message one had to swipe to the left and press a displayed delete button. The defendant testified that you needed to press and hold the message to delete. In my view, with due regard to my credibility findings concerning the defendant’s evidence overall, he was transparently seeking to undermine the complainant’s evidence in this regard.

[38] I do not believe the defendant. No one hacked his account. No one was remotely manipulating his account from afar at the precise time he was checking the destination of the video as he speculatively implied in his testimony. The Instagram Application did not spontaneously delete only one message amongst the other messages in his mailbox of messages – the one with child pornography.

2. The Defendant’s Damaged Phone was not Misfortune

[39] The complainant described how over the next day the varied considerations and consultations with the defendant and her parents provoked her to a number of conclusions. After a two hour discussion with her parents a course of action solidified in her mind. First of all, she determined that the police had to become involved. Second, the father of her daughter had to be told. Third, she decided that she was going to take the children and stay with her mother given the obvious concerns the police would have about the defendant’s proximity to children and to avoid problems with the CAS. Finally, she wanted the defendant to have his phone examined so that if it was true that he was not involved there would be some evidence to support him.

[40] The complainant communicated these conclusions to the defendant. Again, in balanced testimony, the complainant described the defendant as “not happy” with her decision to call the police or her decision to reside with her parents but “onboard” with the data recovery issue. They discussed the data recovery as potentially important to him establishing his innocence. The next day, at approximately noon, the complainant contacted the defendant at work and told him that she was going to call the police. The defendant was panicked and told the complainant that they had agreed to bring the phone to the cellphone shop to recover the data. He told the complainant that he would be home in 20 minutes.

[41] The complainant testified that the defendant came home and plugged his phone into the wall. He complained to her that the phone was hot and that the charge level was something like 20 per cent. He tried several plugs in the house and the phone was still malfunctioning. At one point, according to the complainant, he handed her the phone and she confirmed that it was indeed running hot. He informed her that the phone would not turn on. They decided to go to the cellphone shop. Later, the cellphone shop personnel advised of the source of the malfunction and they received the phone back. This was literally the last straw for the complainant. She accused the defendant that he had damaged the phone. She pointed out the remarkable coincidences that the video was deleted from his phone and that the moment they went to recover the data the phone was damaged. She informed him that she would no longer participate in efforts to establish his innocence. The complainant later advised the defendant that she was going to tell K.B., the father of her daughter. She met with K.B. and discussed the circumstances. She later had communication with the defendant wherein he disclosed that he had contacted the police “to get in front of this” (i.e. in an effort to rebut the police perception that he was responsible).

[42] I find that the defendant deliberately damaged his cellphone for many reasons. The overarching theme to my rejection of the defendant’s evidence concerns the contrast between his actions in April 2017 versus his testimony at trial. This core credibility finding against the defendant is pivotal.

[43] The defendant’s trial testimony sought to present a revisionist version of the events. His core goal in his testimony was to distance himself from the issue of data recovery and the preservation of his cellphone as an important issue. The defendant testified at trial that the condition of his phone and other electronic devices was irrelevant in his mind given his belief that the sole important area of inquiry was his compromised Instagram Account. I find, on all of the defendant’s testimony that he sought to minimize the issue of data recovery. He sought to diminish the impact of the available factual findings that he deleted the video and damaged his phone. Some elements of his testimony drove me to this conclusion. Other elements of his testimony betrayed inconsistency. This requires clear explanation.

[44] First, one need not strain to discern why he would approach his testimony in this fashion. The credible testimony from the complainant supported a conclusion that he deleted the video from his phone and damaged his phone at the time of the allegations. This is powerful evidence of guilt. By testifying that the phone was not important, he sought to diminish the force of the finding that he destroyed evidence.

[45] Second, this testimony is markedly contradictory to my foundational findings in this trial. There is absolutely no question, that in the days after the discovery of the video, both the complainant and the defendant were very concerned about his physical cellphone and data recovery. The offending video had been viewed on the defendant’s phone. In the context of discussing the impact on the defendant and the family, they discussed their concern about preserving the cellphone data for the benefit of the defendant should the police become involved and summarily imprison him. The complainant the defendant expressly contemplated that it would be important to demonstrate to the police that this evidence was available and preserved. They searched the device. The defendant even enlisted the assistance of his mother to round up other electronic devices. This is because both the complainant and the defendant were keenly aware of what most internet-savvy persons of their age group know – just because something is not available on a manual search of a device does not mean it has been successfully deleted.

[46] Third, the defendant testified with emphasis concerning his endeavours to secure his electronic media as an indication of his transparency and willingness to cooperate with the police investigation. He testified concerning his efforts to ensure the complainant with her video was available for the attending police constables. These are not the actions of a person unconcerned with the physical integrity of his cell phone.

[47] Fourth, when the malfunctioning cellphone was “discovered” the defendant took great care to describe calling the complainant while his phone was plugged into an insecure power source pole to notify her that his phone was malfunctioning (that the power was at 1%). He felt it important to tell her that once he unplugged his phone he feared that it would no longer hold power. This, when he was apparently working a short distance from home. The complainant did not credit any such conversation. The whole narrative presented as contrived.

[48] Fifth, given the defendant’s testimony about his employment, his testimony about resort to plugging his phone into an unregulated power pole when his truck was not available was simply incredible. The idea that his phone was plugged in on the very day after the discovery of the video and caused his phone to malfunction is highly suspect. His testimony that other construction workers engaged in similar practice notwithstanding the clear risk of power surges is unlikely. While the defendant initially suggested this was the cause of his phone’s demise, when pressed on the issue, he claimed to have only learned of the risk after it happened to him and protested that he was not an electrician. Once again, the defendant was remarkably inconsistent when pressed for detail.

[49] Sixth, when pressed on this issue in cross-examination, the defendant resorted to after-the-fact justifications sourced in the electronic disclosure in the case – disclosure he did not have at the time of the events. Disclosure that by definition could not have influenced his actions at the time.

[50] Finally, the defendant sought to diminish the importance of attending the cellphone repair store. The defendant and the complainant and the newborn child attended the cell phone repair shop with the damaged phone. The defendant says the purpose of attending cell phone repair shop was singularly associated with the fact that the phone would not turn on. The complainant testified that the purpose of attending the cell phone repair shop obviously included data recovery. If attendance at the store was not associated with the concern around data recovery why would the defendant come home and pick up the complainant? There was no need to bundle up the newborn child and bringing your spouse to the cell phone repair shop unless more serious concerns were at play. Once again, an effort by the defendant to diminish the focus on his physical cellphone.

[51] While criminal liability may not rest on misfortune or bad luck, it is a startling circumstance that within moments of being confronted with the child pornography video, the video is no longer available. Now the defendant’s cell phone malfunctions proximate in time to an awareness that the police are going to become involved. The obvious overarching conclusion is that the defendant was intent on destroying evidence. He deleted the video. Now the phone where the video was seen is inoperable. This is proximate in time to when the complainant tells him that she has decided that she must tell the police and the father of her daughter.

[52] I have found that the defendant deliberately removed the video from his Instagram within moments of being confronted. I find that the malfunction to his phone must have been caused by his own deliberate action. There is no objective evidence concerning how the defendant’s phone malfunctioned. There is no admissible objective evidence concerning the precise cause of the damage to the phone. I need not determine precisely by what means. The phone was in the defendant’s possession. I do not believe his evidence concerning how his phone became damaged.

[53] The defendant’s testimony that he was not concerned with his electronic media or preserving his phone was a rather transparent attempt to diminish the significance and weight associated with a finding that he intentionally damaged the phone. I accept the evidence of the complainant that the circumstances signaled a change in her perception of the defendant. Any reasonable objective sensible thinking person would be gravely concerned about the sequence of events. The premise that these two events are coincidental is not worthy of serious consideration.

E. Exclusive Opportunity

1. Introduction – Exclusive Opportunity

[54] My findings that the defendant intentionally deleted the video and that his phone was not damaged through misfortune are solid bases on their own to draw the inference that the defendant had the exclusive opportunity to commit the offences. These findings also support liability premised on after-the-fact conduct, an issue I will address in this judgment. But these findings are amplified by the analysis of other circumstances in this case.

2. The Creation of the Video

[55] I have already outlined my findings as to the video itself as a piece of evidence. The defence position is that there is no conclusive evidence concerning the technical means by which the video was produced. Furthermore, the evidence suggests that the device that captured the video must have been placed in the linen closet at some point and removed at some point. Finally, there is no evidence to rebut the possibility that a technical device was activated and deactivated from a remote location.

[56] The evidentiary record supports the conclusion that the video residing in the defendant’s Instagram direct message mailbox was created in the Instagram application. This is a reasonable inference based on factual presence of the video in the mailbox and factual absence of the video on any electronic device. During their joint investigation the complainant and the defendant reasonably concluded that a cell phone was capable of capturing the video and the evidentiary record in this trial supports the premise that the video capturing device was on a shelf in the linen closet. This is clearly observable from a review of the video exhibit. It is a reasonable inference based on the evidence of both the complainant and the defendant. Furthermore, it was quite apparent that the linen closet was not large enough to contain a person. While it is true that the technological world is vast and ever evolving, there is no evidence in this case that supports a finding let alone any inference that some sort of remote device was utilized. Furthermore, the prosecution is not required to prove beyond a reasonable doubt the technical means by which the child pornography was captured or created.

3. Access to the Children’s Bathroom

[57] The defence position is that having regard to the evidentiary record that the house was left insecure at times, the prosecution has not rebutted the possibility that others (known or unknown) accessed the residence for the purpose of committing the offences. I acknowledge that the suggestion that anyone in the neighbourhood had access to the residence is at least available to the defendant. Anything in the world is indeed possible. But I am concerned with evidence that causes me to have a reasonable doubt. In evaluating this issue I also have resort to the evidence that I have heard at trial and reasonable inferences available from that record. The perpetrator of these offences would have had to be comfortable with the layout of the residence. This person would have had to enter the upstairs bathroom for the purpose of capturing the video, and return to retrieve the apparatus installed for this purpose. This person would have also been comfortable with the set-up of the linen closet.

[58] While I appreciate the time of discovery was not the time of creation, nothing was found in the linen closet. There were no crimes of mischief or complaints of break and enter to the family residence. There is no evidence of any lurkers or voyeurs in the neighbourhood or around the family residence. No one saw strangers stealing their way to the children’s bathroom. The resident animals, a Pit-bull and Rottweiler never alerted to intrusion. In sum, for me to give any weight to this suggestion I would be required to abandon common sense and the tool of reasonable inference. Finally, only the complainant and the defendant had keys to the residence.

4. Access to the Complainant’s Daughter

[59] As any parenting union will recognize, children are often subject to routine. It is not unusual for a child to have a bedtime routine or a bath time routine. This case is no different. The complainant’s eight-year-old daughter had a routine. She had recently become more independent and sought to demonstrate this by showering on her own. She did not need assistance from anyone to shower. Bath time was between 6:30 PM and 7:00 PM for a duration of approximately fifteen to thirty minutes.

[60] The perpetrator of these crimes would reasonably have to be aware of this general routine. This person would also have to know in which of the two residential bathrooms the child bathed.

5. Access to the Defendant’s phone

[61] The defence position is that while it is conceded (in submissions) that the defendant had the opportunity to record the video, there is no direct evidence that he recorded the video and he denies that he recorded the video. The video was not found within any native application on any electronic device. It is submitted that simple possession of his cell phone does not fix the defendant with the requisite knowledge, possession, and control of the video in his Instagram account.

[62] The evidentiary record permits the reasonable conclusion that only the complainant and the defendant had access to the defendant’s cell phone proximate in time to the commission of these offences.

6. Access to the Defendant’s Instagram Account

[63] The defence position is that there is no evidence that the defendant knowingly possessed and knowingly distributed the child pornography video to the “im_so_sincere” account. It is submitted that there is no evidence that he had exclusive access and exclusive control over his Instagram account. The account is accessible with his publicly available username and his password. It is submitted that the password was accessible to the complainant, K.N., and untold others to whom they might have disseminated the password.

[64] The defence position on this issue was mildly inconsistent.

[65] First of all, the defendant contradicted the complainant’s evidence about the password on his phone. The defendant testified that his password was composed of alpha letters. The complainant testified that the password was composed of numerals. If the defendant is correct, then the complainant would be necessarily wrong. Ironically, if I believed the defendant, this might then fix him with more exclusive control via the password over his phone. The implication being that the complainant did not have access to his phone. This would also have implications for the defendant’s position that the complainant took this video herself for the purpose of framing him. But I do not believe the defendant. The complainant’s evidence was clear and cogent on the password issue. She was in the habit of checking his phone frequently. He was in the habit of changing his passwords. She was on top of this issue given her concerns about his behavior. She must have had the correct password to accomplish this task. She discovered the video in his Instagram application. The defendant himself corroborates that sequence of events. I find that the complainant had the correct password notwithstanding the defendant’s evidence on point. That being said, there is no evidence nor is there a reasonable basis for me to infer or believe that she disseminated his password to anyone else.

7. Hacking

[66] The defence position is the IP address information obtained by the police is evidence corroborative of the defence position that he did not commit the offences and the ancillary position that he must have been hacked.

[67] The prosecution position is that the IP information is not definitive, I should reject the defendant’s evidence that he was never in Toronto on the relevant date, as a myopic focus on this issue would rob the Court of its duty to conduct a balanced review of all of the evidence at trial.

[68] The investigating police officer from the ICE unit was called by the Crown. There was no application to have him provide expert opinion evidence. As a result, I disregarded his evidence about the mechanisms around cell towers and how cell signals may negotiate access to cell towers as this was not within his experience as a police officer. I also disregarded any hearsay evidence elicited from him as unavailable to a non-expert witness. His evidence supported the following findings:

1. The Instagram account to whom the video was sent was American;

2. There was no forensic evidentiary connection between the defendant’s Instagram account and the Instagram account to whom the video was sent;

3. He did a production order to determine the IP addresses that had connected to the defendant’s Instagram account between April 7 and April 10, 2017 which is the time he believed the video had been sent;

4. April 8, 2017 at 7:19 PM someone with a Bell mobility account accessed the defendant’s Instagram account from Toronto; and,

5. April 9, 2017 at 5:57 PM someone with “bell service” accessed the defendant’s Instagram account from Toronto.

[69] An IP record produced by the officer (Exhibit 4) was filed on consent and without testimonial amplification from the officer showing the following relevant information:

• 174.89.10.34 – 2017-04-10 17:43 (OSHAWA)

• 174.89.10.34 – 2017-04-09 22:42 (OSHAWA)

• 207.164.79.65 – 2017-04-09 21:57 (TORONTO)

• 187.151.178.140 – 2017-04-08 23:19 (TORONTO)

[70] The location of the IP addresses themselves were not addressed in the evidence. The exhibit also shows coordinates for the IP addresses. The coordinates were not addressed and I find I may not take judicial notice of the coordinates or otherwise participate in the investigation by searching those coordinates. That evidence should have been elicited from the witness if it was important.

[71] It would not be a secret to the parties that this is an area that concerned the court and the court asked counsel to squarely address the issue during submissions. After careful consideration and analysis of this issue I do not find that the IP address information obtained by the police provokes a reasonable doubt in my mind.

[72] First of all, there is a clear discrepancy between the viva voce evidence of the police officer and the evidence of the record filed as an exhibit concerning the relevant dates and times of access to the defendant’s Instagram account. The evidentiary record does not resolve that discrepancy.

[73] Second, the investigation conducted with respect to the IP addresses was focused on a narrow time frame based on the officer’s subjective belief as to when the video was sent – April 7 to 10, 2017. As already explained in this judgment, there is no evidence as to when the video was created. There is no evidence as to when the video was conveyed to the “im_so_sincere” Instagram account except “Thursday 11:14 PM”. The video was clearly not created on the date it was discovered by the complainant as the complainant’s daughter was not at the residence. She was in the custody of her father. The IP address evidence is not logically or factually probative of either the creation or the dissemination of the video. Even the access on April 8, 2017 at 23:19 HRS does not match up to the date of conveyance (a Thursday at 11:14 PM) because April 8, 2017 was a Saturday. It is also critical to note that the defendant is not charged with distributing child pornography. The actual conveyance of the video through his Instagram account is simply a fact adduced in support of possession of child pornography and making child pornography. The actual date it was disseminated is not an essential element of any offence before the court.

[74] Finally, the simple fact Bell Mobility mobile IP addresses connected to the defendant’s Instagram account from Toronto on several dates does not cause me to reasonably believe that the defendant was “hacked”. The defendant’s blanket denial that he was in Toronto does not cause me to have any concern that he was “hacked” given the lack of specifics in the evidentiary record concerning his travel during the relevant time-frame.

8. Other Suspects

a) Introduction

[75] The defence sought to rely upon evidence of other known and unknown suspects for the purpose of rebutting the prosecution evidence concerning the defendant’s opportunity to commit the offences.

[76] This is a deceptively nuanced area of law requiring careful self-instruction so I believe I should set out my mindset clearly for the purpose of any review.

b) The Availability of a Defence

[77] The burden of establishing that the defendant committed the offences before the court remains at all times on the prosecution. There is no burden on the defendant to prove his innocence. I agree with defence counsel that the defendant has a constitutional right to full answer and defence and this right implies the ability to challenge the case and lead evidence designed to raise a reasonable doubt.

[78] The presumption of innocence means that evidence relevant to a defence can only be excluded where the prejudice substantially out weights the value of the evidence: R. v. Grant, 2015 SCC 9 [Grant], at para. 19 citing R. v. Noël, 2002 SCC 67, [2002] 3 S.C.R. 433; Sweitzer v. The Queen, 1982 23 (SCC), [1982] 1 S.C.R. 949; and R. v. Harrer, 1995 70 (SCC), [1995] 3 S.C.R. 562.

[79] The defendant must satisfy the Court that there is an air of reality to any defence as a threshold test to ensure that “fanciful or far-fetched” defences are not put before the trier of fact: (See Grant, at para. 20, citing R. v. Cinous, 2002 SCC 29). When evaluating this issue the defendant need only point to some evidence, the Court must presume the evidence to be true and refrain from assessing credibility or making findings of fact: Grant, at para. 20.

[80] In some cases where the defence evidence relates to the facts underlying the offence charged, the logical relevance and admissibility will be obvious: Grant, at para. 21. In this case, there was a preliminary objection by the prosecution to the line of cross-examination of the complainant designed to elicit evidence of other suspects. The defence position was that this line of inquiry was proper and lawful. The defence position was that there was no need to provide any formal notice or application and the defence was perfectly entitled to explore this evidence. I ruled in favour of the defence and did not sustain the prosecution objection because I believed that the defence evidence as summarily articulated by defence counsel met the threshold test. Furthermore, the defence was not strictly-speaking seeking to “lead” evidence of other suspects but was merely accessing the record produced by the prosecution as part of its case. I knew that at the end of the day the Court would be in a position to evaluate the other suspects evidence with regard to the evidentiary record overall. During the cross-examination of the defendant the defence objected to a line of inquiry around steps the defendant took to investigate and discover the perpetrator of these crimes. I ruled in favour of the prosecution. The defendant’s articulation of other suspects had relied on the investigation he undertook. This was a probative area of cross-examination.

[81] Overall, the skillful approach to the issue by defence counsel made logical relevance clear: Grant, at para. 7. The defence sought to rely on evidence of other suspects, both known and unknown, to both rebut the prosecution assertion of exclusive opportunity, and to address the criminal burden of proof, W.(D). v. The Queen (1991), 63 C.C.C. (3d) 77 (S.C.C.) [W.(D.)], and the principles outlined by the Supreme Court of Canada in R. v. Villaroman, 2016 SCC 33 [Villaroman]. I was satisfied that the probative value of the evidence was not substantially outweighed any prejudicial effect: Grant, at para. 7.

c) Other Known Suspects

(1) The Complainant’s Son and Daughter

[82] Neither the defence nor the prosecution addressed the record in relation to the complainant’s son or daughter. The complainant’s daughter was the subject of the video. The complainant’s son was seven-years old. There was no attempt by the defence to suggest that either party was responsible. I do not find there to be any basis to for me to entertain either party as the perpetrator of the offences.

(2) The Defendant’s Brother and Mother

[83] Neither the defence nor the prosecution addressed the record in relation to the defendant’s mother and brother during submissions. This is because there was no attempt to attribute liability to either party. There is no basis for me to entertain either party as the perpetrator of the offences.

(3) D.B.

[84] There is a reasonable basis for me to find that D.B. held animus towards the defendant. I accept the evidence sourced in both the testimony of the defendant and the complainant that this person was threatening to the defendant. Furthermore, D.B. had an additional connection as the father of the complainant’s male child. But the complainant testified that he was not in her child’s life and had not exercised access to their child for over a year and a half. I accept the defendant’s evidence that D.B.’s mother had previously attended the residence to pick up her grandchild. The evidentiary record stops there. There is no evidence that D.B.’s mother communicated this information to her son. There is no evidence that D.B. attended the residence or otherwise accessed the bathroom. There does not appear to be evidence of animus by D.B. towards the mother of his child. It is also not clear how animus towards the defendant would be resolved by victimizing the complainant’s daughter with a third party – not the defendant.

(4) K.N.

[85] The defence position is that K.N. and/or D.B. is a person who had access to the residence, access to the defendant’s password on his phone, and a motive (ostensibly related to her relationship with the defendant) to frame him.

[86] There is no evidence that K.N. knew where the defendant resided. There is no evidence of her apparent access to the defendant’s residence let alone the bathroom used by the children in the house. There is no clear evidence of the source of any animus or conflict relevant to the timeframe of the allegations. There is evidence that she had a password for the defendant’s phone but this access was stale (dating back to 2015) and not current to the timeframe of the allegations.

[87] In addition, I have already explained earlier in this judgment why I accept the evidence of the complainant concerning the currency of passwords.

(5) The Complainant

[88] The complainant is the only other person with an opportunity to have committed the crime. I accept her evidence that she did not commit the crime.

[89] In arriving at this conclusion I have assessed the credibility and reliability of the complainant. I found the complainant to be a straightforward witness. She answered questions clearly and directly. She was responsive to the issue raised without regard for which counsel was questioning her. She presented no challenge to either counsel.

[90] I have considered a number of factors in arriving at my conclusion.

(a) The relationship with the Defendant

[91] In the period of time leading up to her discovery there were challenges to the relationship. The complainant had trust issues and was investigating the defendant’s phone on a daily basis. The couple had just produced a newborn child. The complainant described how the defendant was an excellent father to all of her children without regard for their progeny. She explained that the defendant took on new responsibilities concerning all of the children. The defendant was described by her as a hard-working gentleman who was attentive to the needs of a young family. The defence agrees with this perspective held by the complainant and submits that the evidentiary record admits of no motive for the defendant to commit these crimes.

[92] There is no question in my mind that upon discovering the video the complainant became understandably conflicted. After the twin events – the deletion of the video and the damaged phone – occurred she resolved to act. I find nothing concerning about this conduct.

(b) Commitment to the Defendant

[93] I believe the complainant’s evidence that she was committed to the defendant and the relationship notwithstanding her concerns driven by other events in the past. I believe the complainant when she testified that notwithstanding concerns about the defendant’s conduct with other women she was still committed to the relationship however cautiously so. This makes sense to me. As young parents of a newborn child I am not surprised to hear that a couple was trying to make it work. In addition, I do not have evidence that whatever the conduct of the defendant in December 2016, this caused a clear brake to the relationship.

(c) Motive to Fabricate; Motive to “Frame” the Defendant

[94] It is suggested by the defendant that this witness had a motive to fabricate the circumstances. It was the position of the defendant that the complainant was a person with the means, access, opportunity, and motive to frame him. In other words, she was the true perpetrator of the offences.

[95] The defendant need not establish this motive. He bears no burden. The Crown need not prove motive as an essential element of the prosecution. I am also keenly aware that at times a motive may be apparent to a court or not apparent to a court. The lack of any apparent motive does not mean that motive is absent: R. v. L.L., 2009 ONCA 413, at para. 44.

[96] I find that there is a basis to be concerned about a motive to fabricate. This concern has caused me to take care with the complainant’s evidence no matter how pristine it appears. But in the end, I do not have any concern that the complainant is the perpetrator of this offence. I have no concern that she framed the defendant. There are many reasons for this conclusion.

[97] I consider my findings with respect to the relationship and the complainant’s commitment to the defendant in the context of the birth of their newborn child. The predominant feature of the complainant’s testimony and actions was balance. For example, during the joint investigation the complainant participated an extended investigation as to how the offence occurred. I believe the complainant when she testified that initially she gave the defendant the benefit of the doubt, participated in discussions about how the offence could have been committed, and resolved to assist the defendant with securing the electronic record so that his opportunity to present his innocence would not be impacted.

[98] The complainant’s balance was not just evident in her approach to the issues at the time of discovery. In court, when testifying, she demonstrated balance towards the defendant. She provided demeanor evidence supportive of the defendant. She provided positive background information about his role as a father and provider. She did not take liberties where she could without check by falsely testifying that she saw specifically the mechanism by which the defendant deleted the video.

[99] Finally, I carefully noted the defence submission about the good character of the defendant as a father and sole provider for the family. It was submitted that the defendant had no motive to commit the offences given his strong and stable relationship with the complainant and the father-figure role he had assumed even in relation to children he did not father. Counsel also noted the lack of a financial motive. These considerations are also attributable to my assessment of the complainant.

(d) “Framing” the Defendant

[100] The complainant was the only other person with a similar opportunity to commit the offence. It was suggested to the complainant during cross-examination that the circumstances of these offences would advantage her custodial aspirations concerning the newborn child in the event of a separation. This is a realistic assertion for a criminal lawyer to address in the context of a domestic relationship. It is a common theme. But I believe the complainant’s denial that she framed her partner. I believe that if she was so inclined, she could’ve easily accomplished this task by merely depositing the offending video on the defendant’s phone and promptly calling the police. There would have been no need for her to disseminate and distribute the offending video via the Instagram application thereby exposing her daughter to the electronic world in perpetuity. If she was intent on fabricating a criminal offence, simple possession of the video on the defendant’s phone and an immediate call to the police would have sufficed.

[101] I also consider the evidence about the father of the complainant’s daughter. Both the defendant and complainant testified that one of the complainant’s concerns was how the allegations would negatively impact her custodial arrangements concerning her daughter viz-a-viz her former partner. I have also considered the evidence that the defendant was the sole provider for a young family. The complainant did not work and had a young new born child. As such, involving the police would likely have an immediate impact on their economic well-being.

(e) Conclusion – Credibility of the Complainant

[102] A determination of guilt or innocence must not, devolve into a mere credibility contest between two witnesses or a choice between competing prosecution and defence evidence. This approach would negatively impact the presumption of innocence and the criminal standard of proof beyond a reasonable doubt: W.(D.), at p. 409; and Avetsyan v. The Queen (2000), 2000 SCC 56, 149 C.C.C. (3d) 77 (S.C.C.), at pp.85-87.

[103] A court may believe all, none or some of a witness' evidence: R. v. Francois, 1994 52 (SCC), [1994] 2 S.C.R. 827, at para. 14; R. v. M.R., 2010 ONCA 285, at para. 6; R. v. Hunter, [2000] O.J. No. 4089 (C.A.), at para. 5; and R. v. Abdallah, 1997 1814 (ON CA), [1997] O.J. No. 2055 (C.A.), at paras. 4 - 4.

[104] A court is entitled to accept parts of a witness' evidence, reject other parts, and determine the appropriate weight accorded to different parts of the evidence: R. v. Howe, 2005 253 (ON CA), [2005] O.J. No. 39 (C.A.), at para. 44

[105] On the important issues the complainant’s evidence was sound and firm. The complainant found the video in the defendant’s Instagram direct message mail box. She corroborated this finding by preserving the evidence. The evidence overall supports the conclusion that the complainant did not would not be inclined to produce and distribute child pornography featuring her own daughter.

[106] I accept the complainant’s evidence that she did not commit the offences or frame the defendant based on my assessment of all of the evidence and issues in this case – including her credibility.

d) Other Unknown Suspects

[107] There is no credible record to support a finding, inference, or doubt on the basis of other unknown suspects. Under this heading I summarily deal with the extraneous assertions made by the defence in the record in this regard. As outlined in this judgment there was no known breach of residential security. No crimes of break and enter. No evidence of loiterers or persons inclined to watch and beset in the classic criminal sense. I dismiss the defence assertion that some unknown perpetrator is responsible. I have tried to address in these reasons why the perpetrator of this crime enjoyed special and peculiar access to the bathroom, the closet, the residence, the child on the video, the defendant’s phone, and the defendant’s Instagram account direct message mailbox.

[108] I dismiss the defence assertion that some unknown person remotely surveilled the children’s bathroom.

[109] There is no evidence that some sort of remote electronic means was utilized. Both the complainant and defendant inspected the linen closet - there was no pinhole camera or similar device. Both the complainant and the defendant tested their cellphones positioned in the linen closet to confirm their suspicion that a cellphone recorded the video. This is the most reasonable inference. This is particularly so given the video was in the defendant’s Instagram direct message inbox. Residing in his Instagram inbox it is a reasonable inference to draw that was probably produced using his phone as against the speculative assertion that an unknown person in the neighborhood surreptitiously accessed the bathroom and surreptitiously surveilled the complainant’s child.

[110] Reasoned doubt in criminal law involves doubt based on common sense. It is logically connected to evidence or the absence of evidence: R. v. Liftchus, 1997 319 (SCC), [1997] S.C.J. No 77 (S.C.C.); and R. v. Starr, 2000 SCC 40. While anything is possible, and anyone in the world who uses the internet might be implicated in this crime, reasonable doubt in criminal law is concerned with less remote circumstances founded upon at least a modest or meagre foundation. I cannot not give weight to the assertion that other unknown persons committed these offences on the record before me.

9. After the Fact Conduct

[111] The after-the-fact conduct of the defendant is the final area I have analysed concerning my conclusion as to exclusive opportunity. Considering all of the evidence at trial and the submissions of counsel there are two additional factors to analyse: after the fact conduct consistent with innocence and after the fact conduct consistent with guilt.

a) The Law: After the Fact Conduct

[112] At times, acts committed by a defendant following a crime may provide circumstantial evidence probative of culpability: R. v. Jacquard, 1997 374 (SCC), [1997] S.C.J. No. 21 (S.C.C.). Post-offence conduct is best evaluated with regard to the entire evidentiary record and not in isolation: R. v. McLellan, 2018 ONCA 510, at para. 49. A case by case analysis is required wherein the relevance of the evidence and a balanced consideration of probative value versus prejudicial effect is addressed: R. v. Rodgerson, 2014 ONCA 366, aff’d 2015 SCC 38[Rodgerson]. The trier-of-fact in not required to abandon logic, human experience, and common sense: R. v. White, 1998 789 (SCC), [1998] 2 S.C.R. 72 (S.C.C) [White 1998]; and R. v. Polimac, 2010 ONCA 346, leave ref’d [2010] S.C.C.A No 263.

[113] In White 1998, at paragraphs 19-23 the Supreme Court of Canada provided the following guiding principles:

1. Certain acts may support circumstantial evidence of guilt (e.g. flight from the scene of a crime, resisting arrest, failing to appear at trial);

2. The post-offence conduct is assessed just like all other forms of circumstantial evidence -- on the basis of human experience and logic;

3. The preferred terminology is the more neutral “post offence conduct” or “after-the-fact-conduct” rather than the traditional term “consciousness of guilt” so as to ensure that the trier of fact is focused on the evaluation of the evidence as it pertains to the ultimate issue of guilt or innocence;

4. Great caution is required when post offence conduct is introduced to support an inference of consciousness of guilt. A keen focus is required, highly attuned to alternative explanations for what appears to be culpable conduct on its face; and,

5. The trier of fact must use human experience and logic to carefully assess the probative value of this evidence to mitigate the chance of mistakenly inferring guilt rather than concluding that the impugned conduct relates to other causes (e.g. other lessor culpable acts).

[114] A multitude of cases have addressed the available inference generated from proof of a defendant suppressing evidence, altering evidence, concealing evidence, and destroying evidence: White 1998, at para. 19; Rodgerson; R v. Khela, 2009 SCC 4; R. v. Coffin, 1956 94 (SCC), [1956] S.C.R 191 (S.C.C); R. v. Cudjoe, 2009 ONCA 543, [2009] O.J. No 2761 (Ont. C.A.); and R. v. Ruddick (1980), 1980 2941 (ON CA), 57 C.C.C. (2d) 421 (Ont. C.A.), leave to appeal ref’d [1981] S.C.C.A. No 185 [Ruddick].

b) After-the-fact conduct consistent with guilt

[115] I have explained why I find that the defendant deliberately deleted the video upon confrontation by the complainant. I have explained why I find that he damaged his cellphone. The implications of these findings, (individually, let alone collectively) strongly support an inference of guilt.

c) After the fact conduct consistent with innocence

[116] The defence cites after-the-fact conduct consistent with innocence. This is admissible circumstantial evidence led to support the inference of innocence. The defendant was described as surprised and confused upon confrontation with the video by the complainant. She also described his reaction to when the diagnosis concerning his phone was communicated by the cellphone shop personnel. This evidence is properly admissible as supportive of innocence: (See Ruddick,)

[117] I accept this characterization by the complainant. But rather than attributing exponential weight to this evidence I merely factored it into my considerations overall. This evidence was more probative of the credibility of the complainant – that she was balanced and would not hesitate to recount positive features of the defendant and their relationship.

[118] The defence submitted that the fact that the defendant would leave his phone around with the full knowledge that the complainant had a practice of checking his phone was probative of innocence. I did not find this reasoning to be of assistance as it drifts towards a propensity type of analysis. In so doing I note that I heard in evidence that the complainant discovered information on his cellphone in December 2016 and that this prompted the practice of checking his phone in the first place. Thus, he is precisely the sort of person who might leave something problematic on his phone. This sort of analysis is fraught with danger. I accorded minimal weight to this consideration as a result.

[119] It appears that the defendant sought to contact the police to “get out in front” of the allegations. To the degree the prosecution submissions insinuate an oblique motive – that this was posturing – I cannot and need not determine. Factually, the defendant only took this step once he was aware that the complainant was calling the police and that the father of the complainant’s daughter was contacting the police. Once again, the probative value of this after the fact conduct was not high.

[120] Finally, the defendant presented as cooperative with the police investigation. He gathered up electronic media devices, enlisted his mother’s help in this regard, and asked the complainant to make her copy of the video available to the police. This was a factor I weighed in considering after the fact conduct consistent with innocence. But the weight I accorded this consideration did not provoke a reasonable doubt or otherwise take me away from my ultimate conclusion of guilt.

10. Conclusion: Exclusive Opportunity

[121] I am satisfied that the defendant had exclusive opportunity to commit the offences, period. I am satisfied beyond a reasonable doubt that he committed these offences.

[122] If there is some quarrel about the strict and proper definition of “exclusive opportunity” (i.e. how can it be exclusive if you are left with two persons with opportunity – the complainant and defendant) there is little merit in the exercise. I have explained why the defendant truly had the exclusive opportunity and why the complainant did not commit the offence. I have explained other findings in combination with the concept of exclusive opportunity that drive to this finding.

F. Credibility of the Defendant

[123] I have addressed my core credibility findings against the defendant. Notwithstanding those core findings I must now explain how I considered the criminal burden of proof, the application of W.(D.), and the guidance of the Supreme Court of Canada in Villaroman.

1. Criminal Burden of Proof

[124] I have considered several all-embracing criminal law principles beginning with the criminal burden of proof. It is axiomatic that the prosecution bears the criminal burden of proof beyond a reasonable doubt. That burden never shifts. If there is a reasonable doubt, it must be resolved in favour of the defendant.

[125] In this case a core area of examination and cross-examination focused on the steps the defendant took to prove his innocence and the defendant’s interaction with the police. Notwithstanding this record, a Court must resolutely focus on the criminal burden of proof placed on the prosecution. The defendant was not required to establish his innocence.

2. W.(D.)

[126] The guidance in W.(D.) is an appropriate framework to ensure that the proper focus of a criminal trial is maintained. I am guided by the principles outlined in W.(D). were the Supreme Court of Canada endorsed the following analysis concerning credibility and the criminal burden of proof: (1) if you believe the evidence of the accused, obviously you must acquit; (2) if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit; and, (3) even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the accused's guilt.

[127] I have explained in this judgment why I do not believe the defendant’s evidence on core issues. That being said it would be an error to move from simple rejection of the defendant’s evidence to a positive finding of guilt: R. v. Dore (2004), 2004 32078 (ON CA), 189 C.C.C. (3d) 526 (Ont. C.A.), at p. 527 (leave to appeal refused, [2004] S.C.C.A. No. 517); and R. v. H.(S.), [2001] O.J. No. 118 (C.A.), at paras. 4-6.

[128] Evidence available to the W.(D). analysis is not solely dependent on the defendant’s testimony but may emanate from other evidence in the case without regard to source -- whether it is evidence called by the defendant or evidence derived from the prosecution case: R. v. M.P., 2018 ONCA 608 para 60

3. Core Credibility

[129] Earlier and throughout this judgment I have explained my credibility findings. The defendant denies having committed the offences before the court. His evidence has been assessed with respect to a multitude of issues in this judgment. Now I must refocus the analysis and provide an overall assessment of his credibility. Earlier in this judgment I have made clear why I greatly prefer the evidence of the complainant. I have explained two critical credibility findings I made concerning the defendant: (1) he deleted the video upon confrontation; and (2) he damaged his phone intentionally.

[130] On these core credibility findings I did not believe the evidence of the defendant. I do not have a reasonable doubt premised on his denial. But the analysis does not end with acceptance of the complainant’s evidence or the weighty credibility findings made against the defendant. A finding of criminal liability may not flow simply from such findings. I must examine the case as a whole and determine whether I am convinced beyond a reasonable doubt of the defendant’s guilt despite my credibility findings against him.

[131] The broad narrative in this case as between the defendant and the complainant is largely in sync. The simple premise is that I did not find the defendant credible on the important or critical issues.

4. Cross-Examination and Demeanor

[132] In arriving at this conclusion I must address the cross-examination of the defendant. The role of the court is to try to permit unfettered cross-examination so that the truth-seeking light may shine on a witness evidence. The cross-examination by the prosecution at times required intervention – particularly after the objection raised by defence counsel. The defendant’s provision of evidence also required some regulation as he attempted to respond to the cross-examination. To the extent the prosecution submissions suggest a negative characterization of the defendant’s demeanor I should stipulate that I did not find that to be so. Leaving aside for the moment the limited assistance demeanor evidence provides, I did not find the defendant’s demeanor to be a significant consideration. While the defendant was mildly uncooperative at times he was not combative. The defendant was entitled to respond in kind to the tenor of the cross-examination. He was resolute in communicating his version of events and I find no fault in that. In the end there was nothing about his demeanor that caused me to reject his evidence.

5. Other Discreditable Acts

[133] Some of the evidence at trial touched on other discreditable acts attributable to the defendant. Experienced counsel were very careful on these issues and there was no inappropriate emphasis or focus. But it is important to emphatically point out that the defendant was not on trial for infidelity. This issue was not important except as foundation to understand why the complainant was frequently checking the defendant’s phone, her access to his current password to his phone, and the fact that the defendant was aware of her practice.

[134] At one point during cross-examination of the complainant some evidence concerning the defendant’s alleged inappropriate contact with school children was elicited. This prejudicial hearsay evidence was advanced as relevant to the complainant’s motive and animus. I assessed this narrow and limited evidence in that context. It was not admissible nor probative on the trial issues.

[135] I have a duty to provide an honest decision. If I harboured any reasonable doubt, no matter whether it was founded within the 4 corners or the record or not, whether it was based on evidence or the absence of evidence, I would be obliged to register an acquittal.

G. Villaroman

[136] The defence sought to rely on the evidence of other suspects in this case for the explicit purpose of rebutting the prosecution evidence of exclusive opportunity. Notwithstanding that expressed limitation in the defence position, I know that I must go further and consider the evidence of other suspects having regard to the fact that the prosecution’s case is based on circumstantial evidence.

[137] In Villaroman, the Supreme Court of Canada provided guidance on the appropriate analysis required when the prosecution’s case depends on circumstantial evidence:

1. The trier of fact should be alerted to unconscious efforts to “fill in the blanks” or “bridge gaps” in the evidence to support an unwarranted inference: Villaroman, at paras. 26-27;

2. Reasonable doubt need not be based on an inference or a finding of fact at trial: Villaroman, at para. 28;

3. “A reasonable doubt is a doubt based on ‘reason and common sense’; it is not ‘imaginary or frivolous’; it ‘does not involve proof to an absolute certainty’; and it is ‘logically connected to the evidence or absence of evidence’”: Villaroman, at para. 28;

4. Inferences consistent with innocence need not arise from proven facts and reasonable doubt is not speculative simply because it arises from a lack of evidence: Villaroman, at para. 35-36;

5. Requiring proven facts as a pre-condition to support explanations other than guilt improperly places an onus on the defendant to adduce evidence: Villaroman, at para. 35;

6. When assessing circumstantial evidence the trier of fact should consider other “plausible theories” and other “reasonable possibilities” which are inconsistent with guilt: Villaroman, at para. 37; and,

7. In distinguishing between a plausible theory and speculation the trier of fact must consider whether the circumstantial evidence, in light of logic and human experience, is reasonably capable of supporting an inference other than guilt: Villaroman, at para. 38.

[138] The Court cautioned at paragraph 30:

It follows that in a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt. No particular language is required. Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of "filling in the blanks" by too quickly overlooking reasonable alternative inferences . . . The inferences that may be drawn from this observation must be considered in light of all of the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.

[139] Leaving aside the complainant as a noteworthy other suspect, the remaining evidence of other unknown and known suspects lacked foundation. I could not, having regard to logic and common sense, premise a reasonable doubt on this implausible evidence. The IP address evidence was of little or no probative value. To find that the defendant was “hacked” I would have to engage in speculation without any foundation. The defendant’s evidence provided at least a foundation for me to apply these considerations concerning a plausible circumstantial evidence alternative, but I have explained why I rejected the defendant’s evidence on the core issues in this trial.

V. Disposition

[140] It is for these reasons I find the defendant guilty of all counts before the court.

Released: Oral Decision: February 19, 2019

Written Decision: February 1, 2019

Signed: “Justice M.S. Felix”