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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged 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 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.

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

Ontario Court of Justice

Date: November 6, 2019

Court File No.: Brampton 18-4923

Between:

Her Majesty the Queen

— and —

O.K.

Before: Justice P.T. O'Marra

Heard: October 3, 2019

Reasons for Judgment Released: November 6, 2019

Counsel:

• Ryan Morrow, counsel for the Crown
• Terry MacKay, counsel for the defendant O.K.

Judgment

P.T. O'Marra, J.:

Introduction

[1] On October 3, 2019, O.K. pled not guilty to the following charges:

(a) That between March 22, 2018 and April 18, 2018 in the City of Brampton, did while bound by a Probation Order made by the Honourable Justice A.T. McKay, in the Ontario Court of Justice, on October 27, 2017, without reasonable excuse fail to comply with such order, to wit: Do not contact or communicate in any way either directly or indirectly by any physical, electronic or other means with A.M., contrary to section 733.1(1) of the Criminal Code of Canada; and further,

(b) That between March 22, 2018 and April 18, 2018, in the City of Brampton, knowing that A.M. did not give consent, did distribute an intimate video recording of A.M. by uploading a video recording, contrary to section 162.1(1) of the Criminal Code of Canada.

[2] The Crown called one witness, the complainant, and O.K.'s former girlfriend, A.M. The Crown filed a book of exhibits which consisted of Facebook messages dated March 22 and April 18, 2018 received by A.M. sent by O.K.; text messages received by A.M. sent from her cousin, A.E., and emails exchanged between the pornography website Pornhub (referred to as "Pornhub") and A.M. dated April 20. O.K. testified in his own defence. O.K. denied that he had any involvement in uploading an intimate video to Pornhub, which was a video of A.M. performing fellatio on O.K. However, O.K. admitted that while he was bound by a probation order to not contact A.M., he did so, by sending Facebook messages to A.M. on March 22 and April 18, 2018.

[3] At the outset of the trial, the validity of O.K.'s probation order was conceded. Mr. Mackay suggested that given his client's admission that he contacted A.M. by text message contrary to his probation order, I should find O.K. guilty of breaching his probation order. As a result, I find O.K. guilty of count #1.

Issue

[4] The remaining issue is whether the Crown has discharged its burden of proving beyond a reasonable doubt that O.K. distributed, without A.M.'s consent, an intimate video recording of A.M. by uploading that intimate video recording to Pornhub?

Uncontested Facts

The Relationship

[5] In 2016, O.K. and A.M. were involved in an intimate relationship for approximately ten (10) months. The relationship yielded a daughter. In 2017, O.K. pled guilty to assaulting A.M. and was sentenced to nine (9) months in jail. Although, the facts in support of the guilt were not related to me during the trial, I heard some evidence that the assault resulted in the loss of A.M.'s front teeth. O.K. was released from custody in February 2018. He was subject to a period of probation with a condition that he was not to have any contact with A.M. According to A.M. their relationship was over, and A.M. no longer wanted to have any contact with O.K.

The Facebook Messages

[6] On March 22, 2018, O.K. using the alias Kevin Smith sent the following initial message through Facebook Messenger to A.M.:

Never trust a snake (snake emoji) You feed them and they end up biting your neck smh

[7] The contents of the Facebook messages are set out at tab #1 of the Crown's book of exhibits.

[8] Immediately, A.M. knew that the message came from O.K. and became fearful and concerned for her safety. She was aware that O.K. had been released from custody in February. While in custody, O.K. never contacted A.M. On March 27, O.K. called A.M. twice using his alias Kevin Smith. A.M. did not answer either call. Afterwards, O.K. sent the following message to A.M., "Fuck you times a million i hope karma come back I don you million times worth I pray for the day I hear the wicked is dead". A.M. responded, "I knowwww right…that's wat ur momma and your antie told me about u."

[9] On April 18, 2018, during the day, O.K., using his alias Kevin Smith, sent to A.M. several depraved and debauched Facebook messages. Due to the lack of punctuation, the writing style, the usage of the words "wicked", "karma", "bucket", "pussy", "fucking bitch" and "duddy", several references to A.M.'s previous boyfriends "Sticks", "English" and "Biggs", the description of a sexual act that A.M. had only shared with O.K., and the overall degrading character of the messages, A.M. recognized that the messages were from O.K.

[10] The messages contained references to O.K.'s child from a previous relationship as well as the child that he and A.M. shared.

The Intimate Video

[11] On one occasion during the relationship, A.M. and O.K. generated an intimate homemade video. The video was made on an iPhone in A.M.'s home. The video depicted A.M. performing oral sex on O.K. Only A.M.'s face appeared in the video.

[12] On April 18, the same day O.K. sent the disturbing Facebook messages, A.M. received from her cousin, A.E., six (6) screen shots taken of the intimate video of A.M. performing oral sex on O.K. that had been uploaded to Pornhub.

[13] On April 20, A.M. sent an email to Pornhub requesting that the video be taken down or removed from Pornhub. The following email exchanged occurred between A.M. and Pornhub found at tab #3 of the Crown's exhibit book:

April 20, 14:54 EDT, e-mail from A.M. to Pornhub:

Reason: my ex boy friend is using this video to blackmail me, intimidate me, and also trying to use this to get back at me. I was informed of this video through a family member. Which honestly broke my heart seeing that my ex uploaded it without my consent or knowledge. This video is now in the hands of the police, plz remove this video immediately from your site. Seriously remove this video as soon as possible.. can please also blocked and remove this individual account.

April 20, 15:42 EDT, e-mail from Pornhub to A.M.:

Thank you for contacting Pornhub Support.

As per your request, the video will be removed.

Please note that video removals can take up to 48 hours to process.

If you have any additional questions or comments, just let us know.

Thank you, Tanya Pornhub Support

April 20, 16:21 EDT, e-mail from A.M. to Pornhub:

thanks so much, this means a lot to me. Even though I wish it could be taken down much sooner due to the fact that the police is now involved. Please notify the account user that the account is under investigation and under any any circumstance is he allowed to post it again. Because it's a problem, he could also report it under another user and that worries me

April 20, 20:59 EDT, e-mail from Pornhub to A.M.:

The video has already been removed. Unfortunately, there is no way for us to prevent this on our end. If the content is posted again, send us the link and we will remove it. You can have the authorities contact us directly at support@pornhub.com for any information we can provide.

Tanya Pornhub Support

A.M.'s Evidence

[14] A.M. is 31 years old. She is a single mother of three (3) children.

[15] She testified that during the relationship, they commonly communicated with each other through Facebook Messenger. The relationship was physically and psychologically brutal.

[16] A.M. testified that in 2016 O.K. recorded the intimate video on his iPhone in her living room. There was never any discussion about how to make the video. A.M. expected that O.K. would keep the video private. This was the only occasion that A.M. ever made an intimate video in her life.

[17] After the video was made, there was never any discussion about disseminating or uploading the video for profit.

[18] A.M. testified that she never had access to O.K.'s iPhone.

[19] A.M. confirmed that she received a screenshot of the video on April 18 sent from her cousin, E.A. She was embarrassed, upset and degraded. Immediately, A.M. took steps to have the video removed from Pornhub.

[20] A.M. testified that she did not have any knowledge or understanding of the process that was involved in order to upload a video to Pornhub.

[21] A.M. testified that when she examined the screen shot of the video, there was no username or user profile attached to the video. However, A.M. observed a "white girl thumbnail profile" when it was uploaded. A.M. is black. She was uncertain when the intimate video was uploaded.

[22] In cross-examination, A.M. confirmed that although she was convinced O.K. was behind the messages that she received on March 22, she did not immediately report the contact to the police. A.M. testified that she believed that she reported the matter to the police the same day that her cousin sent her the screenshot of the video.

[23] In cross-examination, A.M. testified that she did not recall whether she asked O.K. to delete the video. She felt that it was his property, but it should have been kept between themselves.

[24] A.M. testified that she had no idea who posted the video.

[25] In cross-examination, A.M. denied the suggestion that in the past, that she had discussed with O.K., her cousin N.'s conversations regarding the idea of posting sex videos on websites to earn money. She denied any knowledge about how to make money on pornography websites. A.M. denied the suggestion that she uploaded the video in order to make money. She pointed out that she did not have access to O.K.'s iPhone.

O.K.'s Evidence

[26] O.K. is 29 years old. He believes that he is the biological father of their child. He testified that his current probation order permits him to have access to their child through a 3rd party.

[27] As previously stated, O.K. confirmed that he sent the Facebook messages on March 22 and April 18. However, he denied having anything to do with distributing and uploading the intimate video to Pornhub.

[28] O.K. testified that the intimate video was never made on his iPhone but rather on A.M.'s iPhone.

[29] O.K. testified that the intimate video was made on October 1, 2016. He stated that it was A.M.'s idea to make the video and she explained the process of how to upload a video to Pornhub. According to O.K., A.M. explained Pornhub's policy and procedure that needed to be followed in order to both verify the authenticity of the video and confirm the participant's consent to permit the video to be accessed from the website. A.M. explained to O.K. that she would have to set up a PayPal account. If the video received over 10,000 "likes", Pornhub would pay A.M.

[30] In cross-examination, O.K. asserted that there was never any discussion about how to make the video, other than A.M. stating that she got the idea from her cousin, N.

[31] In cross-examination, initially O.K. claimed that at the time he was opposed to making the video as he was uncertain the reason why A.M. wanted to make an intimate video. But, later in his testimony, O.K. confessed that he was not that adverse to making the video.

[32] O.K. confirmed that since the date of the intimate video, his iPhone, computer or any other electronic devices have not been stolen, accessed, hacked or compromised. As far as he knows, he and A.M. are the only two people that know the identities of the participants in the intimate video.

[33] In cross-examination, O.K. maintained that he had no first-hand experience with uploading a video to Pornhub or how to get paid.

[34] In cross-examination, O.K. testified that when he was initially released from jail, he viewed that his relationship with A.M. should be "bygone". However, he became angry and agitated towards A.M. as she apparently denied him access to their child. He also had a very different interpretation of their relationship than A.M. O.K. regretted that he "put his hands on her", but up until the assault, the relationship was "good…she loved me, and I loved her". Interestingly, immediately after his description of the relationship, O.K. stated the following: "I loved her and put the video up as she wanted to".

[35] The Crown suggested to O.K. that his messages to A.M. were filled with anger and in no way represented his attitude to let bygone be bygones. In response, O.K. conceded that the intent of his messages was to hurt and lash out at A.M., since at the time A.M. was denying him access to their child. When it was pointed out by the Crown that there were no references to O.K. not being allowed to see his child in his messages, O.K. declared that he was "over it" and that he only wanted A.M. to "keep the kid away". He further testified that in his messages he told A.M. to keep the child "away from me and my family".

General Principles

Credibility, Proof Beyond a Reasonable Doubt, Presumption of Innocence and Circumstantial Evidence

[36] In matters of credibility of a witness, I am mindful of the principles set out in R. v. W. (D.), [1991] 1 S.C.R. 742 at paragraph 28:

• First, if I believe the evidence of O.K., obviously I must acquit.
• Second, if I do not believe O.K. but I am left in reasonable doubt by it, I must acquit.
• Third, even if I am not left in doubt by the evidence of O.K., I must ask myself whether, based on the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of O.K.

[37] I must be satisfied on the totality of the evidence that there is no reasonable doubt as to O.K.'s guilt. The obligation of the W. (D.) analysis was summarized in R. v. Minuskin (2004), 181 C.C.C. (3d) 542 (Ont. C.A.) at 550:

It is important to stress that trial judges in a judge alone trial do not need to slavishly adhere to this formula. This suggested instruction was intended as assistance to a jury and a trial judge does not commit an error because he or she fails to use this precise form of words. Nor is the trial judge expected to approach the evidence in any particular chronology, for example, looking first at the accused's evidence and then at the rest of the evidence. It should, however, be clear from an examination of the reasons that at the end of the day the trial judge has had regard for the basic principles underlying the W. (D.) instruction. One of those principles is that it is not necessary for the trier of fact to believe or accept the defence evidence for there to be a reasonable doubt. Even if the trier of fact believes the prosecution witnesses, the evidence as a whole may leave the trier of fact with a reasonable doubt. As it was put by Cory J. in W. (D.) at p. 757, the trier of fact must acquit even if he or she does not believe the accused's evidence because they have a reasonable doubt as to the accused's guilt "after considering the accused's evidence in the context of the evidence as a whole".

[38] See also R. v. Turmel, [2004] B.C.J. No. 2265 (C.A.) at para. 9-17.

[39] It is not O.K.'s responsibility to demonstrate, establish, or prove his innocence or to explain away the allegations made against him. He is not required to establish who distributed and uploaded the intimate video to Pornhub, if not himself, nor is he required to explain the evidence presented by the Crown. He is presumed to be innocent until proven guilty beyond a reasonable doubt. The Crown bears this onus of proof beyond a reasonable doubt throughout the trial and it never shifts.

[40] The Supreme Court of Canada has commented on the principle of proof beyond a reasonable doubt in several cases. The Supreme Court held that the meaning of proof beyond a reasonable doubt was as follows: "the standard of proof is higher than ... a balance of probabilities yet less than proof to an absolute certainty." See: R. v. Lifchus, [1997] 3 S.C.R. 320.

[41] The Supreme Court held that in order to convict, something less than absolute certainty and something more than probable guilt is required. The Court further defined the reasonable doubt standard by explaining that it falls much closer to absolute certainty than to proof on a balance of probabilities. See: R. v. Starr (2000), 2000 SCC 40, 147 C.C.C. (3d) 449.

[42] The issue of identity is the only issue in this case. The Crown relies on circumstantial evidence to establish identity. As a result, some comment must be made on circumstantial evidence. The leading case on the issue of circumstantial evidence is the most recent Supreme Court of Canada decision of R. v. Villaroman, 2016 SCC 33, [2016] SCJ No 33. In that case, the accused had possession of a computer which he delivered to a technician for repair. Child pornography was found on the computer and the accused was charged with possession of that child pornography. The case was circumstantial with respect to possession and control of the child pornography. The trial court found him guilty, a decision that was overturned by the Court of Appeal. The Supreme Court of Canada overruled the appellate court, and in so doing addressed the considerations that pertain to circumstantial evidence.

[43] The Supreme Court first reviewed the history of the circumstantial evidence rule, from the basis of the rule and the possible instruction to the jury of the rule in Hodge's case, through the various transformations of the rule in Canadian caselaw. At paragraphs 17 and 18 the court stated:

In Hodge's Case, the evidence of identification was made up entirely of circumstantial evidence: p. 1137. Baron Alderson, the trial judge, instructed the jury that in order to convict, they must be satisfied "not only that those circumstances were consistent with [the accused] having committed the act, but they must also be satisfied that the facts were such as to be inconsistent with any other rational conclusion than that the [accused] was the guilty person": p. 1137. This sort of jury instruction came to be required in circumstantial cases: see, e.g., McLean v. The King, [1933] S.C.R. 688.

Over time, this requirement was relaxed: see, e.g., R. v. Mitchell, [1964] S.C.R. 471; R. v. Cooper, [1978] 1 S.C.R. 860. It is now settled that no particular form of instruction to the jury is required where the evidence on one or more elements of the offence is entirely or primarily circumstantial. As Charron J. writing for a majority of the Court put it in R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, at para. 33:

We have long departed from any legal requirement for a "special instruction" on circumstantial evidence, even where the issue is one of identification: R. v. Cooper, [1978] 1 S.C.R. 860. The essential component of an instruction on circumstantial evidence is to instill in the jury that in order to convict, they must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty. Imparting the necessary message to the jury may be achieved in different ways: R. v. Fleet (1997), 120 C.C.C. (3d) 457 (Ont. C.A.), at para. 20. See also R. v. Guiboche, 2004 MBCA 16, 183 C.C.C. (3d) 361, at paras. 108-10; R. v. Tombran (2000), 142 C.C.C. (3d) 380 (Ont. C.A.), at para. 29. [Emphasis added.]

[44] At paragraphs 25 through to paragraph 30, the court addressed the connection between circumstantial evidence and proof beyond a reasonable doubt.

The Court has generally described the rule in Hodge's Case as an elaboration of the reasonable doubt standard: Mitchell; John v. The Queen, [1971] S.C.R. 781, per Ritchie J., at pp. 791-92; Cooper; Mezzo v. The Queen, [1986] 1 S.C.R. 802, at p. 843. If that is all that Hodge's Case was concerned with, then any special instruction relating to circumstantial evidence could be seen as an unnecessary and potentially confusing addition to the reasonable doubt instruction.

However, that is not all that Hodge's Case was concerned with. There is a special concern inherent in the inferential reasoning from circumstantial evidence. The concern is that the jury may unconsciously "fill in the blanks" or bridge gaps in the evidence to support the inference that the Crown invites it to draw. Baron Alderson referred to this risk in Hodge's Case. He noted the jury may "look for -- and often slightly ... distort the facts" to make them fit the inference that they are invited to draw: p. 1137. Or, as his remarks are recorded in another report, the danger is that the mind may "take a pleasure in adapting circumstances to one another, and even straining them a little, if need be, to force them to form parts of one connected whole": W. Wills, Wills' Principles of Circumstantial Evidence (7th ed. 1937), at p. 45; cited by Laskin J. in John, dissenting but not on this point, at p. 813.

While this 19th century language is not suitable for a contemporary jury instruction, the basic concern that Baron Alderson described -- the danger of jumping to unwarranted conclusions in circumstantial cases -- remains real. When the concern about circumstantial evidence is understood in this way, an instruction concerning the use of circumstantial evidence and the reasonable doubt instruction have different, although related, purposes: see B.L. Berger, "The Rule in Hodge's Case: Rumours of its Death are Greatly Exaggerated" (2005), 84 Can. Bar Rev. 47, at p. 60-61.

The reasonable doubt instruction describes a state of mind -- the degree of persuasion that entitles and requires a juror to find an accused guilty: Berger, at p. 60. Reasonable doubt is not an inference or a finding of fact that needs support in the evidence presented at trial: see, e.g. Schuldt v. The Queen, [1985] 2 S.C.R. 592, at pp. 600-610. 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": Lifchus, at para. 36. The reasonable doubt instructions are all directed to describing for the jurors how sure they must be of guilt in order to convict.

An instruction about circumstantial evidence, in contrast, alerts the jury to the dangers of the path of reasoning involved in drawing inferences from circumstantial evidence: Berger, at p. 60. This is the danger to which Baron Alderson directed his comments. And the danger he identified so long ago -- the risk that the jury will "fill in the blanks" or "jump to conclusions" -- has more recently been confirmed by social science research: see Berger, at pp. 52-53. This Court on occasion has noted this cautionary purpose of a circumstantial evidence instruction: see, e.g., Boucher v. The Queen, [1955] S.C.R. 16 per Rand J., at p. 22; John, per Laskin J., dissenting but not on this point, at p. 813.

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. It may be helpful to illustrate the concern about jumping to conclusions with an example. If we look out the window and see that the road is wet, we may jump to the conclusion that it has been raining. But we may then notice that the sidewalks are dry or that there is a loud noise coming from the distance that could be street-cleaning equipment and re-evaluate our premature conclusion. The observation that the road is wet, on its own, does not exclude other reasonable explanations than that it has been raining. 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.

[45] Finally, the court makes the important point that conclusions alternative to the guilt of the accused do not require that such inferences be drawn from proven facts. If there can be reasonable inferences drawn other than the guilt of the accused, when the evidence or lack of evidence is assessed, then the Crown has not proven its case beyond a reasonable doubt. The Supreme Court expressed the following at paragraph 35:

At one time, it was said that in circumstantial cases, "conclusions alternative to the guilt of the accused must be rational conclusions based on inferences drawn from proven facts" see R. v. McIver, [1965] 2 O.R. 475, at p. 479 (C.A.), aff'd without discussion of this point, [1966] S.C.R. 254. However, that view is no longer accepted. In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 58; see also R. v. Defaveri, 2014 BCCA 370, 361 B.C.A.C. 301, at para. 10; R. v. Bui, 2014 ONCA 614, 14 C.R. (7th) 149, at para. 28. Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown's evidence does not meet the standard of proof beyond a reasonable doubt.

Analysis

[46] The offence alleged is under section 162.1 of the Criminal Code. It states:

162.1 (1) Everyone who knowingly publishes, distributes, transmits, sells, makes available or advertises an intimate image of a person knowing that the person depicted in the image did not give their consent to that conduct, or being reckless as to whether or not that person gave their consent to that conduct, is guilty

(a) of an indictable offence and liable to imprisonment for a term of not more than five years; or

(b) of an offence punishable on summary conviction.

Definition of intimate image

(2) In this section, intimate image means a visual recording of a person made by any means including a photographic, film or video recording,

(a) in which the person is nude, is exposing his or her genital organs or anal region or her breasts or is engaged in explicit sexual activity;

(b) in respect of which, at the time of the recording, there were circumstances that gave rise to a reasonable expectation of privacy; and

(c) in respect of which the person depicted retains a reasonable expectation of privacy at the time the offence is committed.

[47] The Crown must establish beyond a reasonable doubt the following:

(a) the perpetrator knowingly,

(b) publishes, distributes, transmits, sells, makes available or advertises,

(c) an intimate image of a person,

(d) knowing that the person in the image did not consent to that conduct, OR

(e) being reckless whether that person gave consent to that conduct.

[48] It is clear from the evidence that was presented by the Crown, and conceded by the defence, that the Crown has proven beyond a reasonable doubt the video meets the definition set out in subsection 2 (a), (b), and (c).

[49] The Crown is relying on circumstantial evidence to attempt to establish that the perpetrator is O.K., and that he knowingly made the intimate video available for distribution.

[50] There is no direct evidence that O.K. uploaded the intimate video to Pornhub. That is, no one saw him do that and there is no forensic evidence to that effect. Thus, the Crown is relying on circumstantial evidence and asking the court to draw an inference as to the identity of the perpetrator. The evidence is as follows:

(a) A.M. testified that the intimate video was recorded on O.K.'s iPhone camera in her home.

(b) A.M. had no access to O.K.'s iPhone.

(c) The Facebook messages sent on March 22 and April 18 were confirmatory evidence that O.K. had animus towards A.M. and a motive to disseminate the video to Pornhub. O.K. sought revenge for A.M. who had called the police after he assaulted her, which led to his incarceration for a period of nine (9) months.

(d) The message dated April 18 from O.K. referred to an 'atypical' sexual act that appeared in the intimate video.

(e) O.K. exercised exclusive control over his phone which he claimed never was compromised or lost.

(f) Once A.M. was aware of the existence of the intimate video on Pornhub, she took immediate steps to have it removed. Her reaction, therefore, was at complete odds with the theory that she uploaded the intimate video to Pornhub.

(g) The timing between his release from jail, the vile Facebook messages, and the discovery of the intimate video, was more than a mere coincidence.

[51] In my view, O.K. was an unsatisfactory witness. His testimony was self-serving. A common-sense assessment of the content of the messages supports the conclusion that O.K. set out to harass and psychologically torture A.M. His messages demonstrated a vile hatred for A.M. which conflicted with his let 'bygones be bygones' attitude.

[52] O.K.'s assertion that he contacted A.M. approximately one (1) month after his release from jail for the sole purpose of expressing his despondency over not being permitted to see his child, defied credulity. There was nothing in the text messages to support the contention that he missed their child. In fact, the opposite was true, he made it abundantly clear that he did not want to have anything to do with their child when he texted the following: "…I pray to god that devil of a kid never make it honestly I want no part of that no part don't bring it around my ppl I'm loyal to one kid….make sure you kid don't have nothing too do with me are my son please stay away".

[53] I do not accept O.K.'s evidence and I am not left in a reasonable doubt by his testimony.

[54] On the other hand, I found A.M. a credible and trustworthy witness. Her evidence was straightforward and candid. It made absolutely no sense that after A.M. emerged from a brutal and controlling relationship with O.K., that she would post their intimate video on Pornhub. There was no evidence that A.M. had a pecuniary motive for doing so. It was purely speculative that A.M. wanted to profit from their intimate video. Moreover, A.M.'s reaction by immediately emailing Pornhub betrays this notion that she uploaded the intimate video. Her embarrassment, desperation and humiliation were revealed in her emails to Pornhub when she stated the following:

…plz remove this video immediately from your site. seriously remove this video as soon as possible...can please also blocked and remove this individual account as soon as possible too… this is a serious matter seeing I'm being exploited. Thanks so kindly. this video has effected me in a lot of ways, I have kids...

[55] In my view, A.M. testified truthfully regarding the circumstances that surround the creation of the intimate video with O.K., the nature of her relationship with O.K., the context of the psychological brutal Facebook messages, the discovery of the intimate video on Pornhub, her abject humiliation, and the steps that she took to have the intimate video removed. However, she could only deduce that O.K. uploaded the video. A.M. did not have direct knowledge that O.K. was the perpetrator.

[56] I find as a fact that A.M.'s iPhone was not used to record their intimate video. O.K. suggested that was the case; however, in cross-examination, that proposition was never put to A.M. I am certain that had the suggestion been made to A.M. she would have denied it. This oversight did not have any adverse impact on my assessment of O.K.'s credibility.

[57] In any event, I have no doubt that O.K.'s iPhone was used and that he had the motive and animus to post the video to Pornhub. It is the only reasonable inference from the circumstantial evidence that O.K. did upload the video, for spite. I acknowledge that there was no evidence led regarding a username or a profile, or an IP address, that forensically connected O.K. to the video. However, the overall coincidence in timing – between his hateful Facebook messages to A.M. following his release from jail – and the uploading of the video, is in my mind, compelling circumstantial evidence.

[58] Furthermore, evidence of O.K.'s animus towards A.M. pervaded this case, particularly in the objective evidence that emanated from him, his Facebook communications.

[59] The alternative theory that A.M. posted the intimate video was devoid of any realistic foundation in this case. There was no inference consistent with innocence which arose from the evidentiary record or any other source.

[60] In all the circumstances, when I examine the totality of the evidence in this case, I am satisfied beyond a reasonable doubt that the only reasonable inference I can draw from the evidence is that O.K. was the person that posted the intimate video of A.M. on Pornhub for the public to view. From the evidence that was provided at the trial, O.K. was capable and motivated to embarrass and humiliate A.M. by posting the video to exact his revenge. Given his animus towards A.M. for calling the police which led to his subsequent incarceration, and his warped sense of abject betrayal, O.K. possessed abundant motive in this case. Finally, in my view, having rejected as completely implausible the alternative theory posited by the defence that it was A.M. that posted the video on Pornhub for money, there is frankly no remaining reasonable alternative available.

[61] Therefore, I am satisfied that the Crown has proven beyond a reasonable doubt the element of identity. O.K. is guilty of count #2. As well, he is guilty of count #1.

Released: November 6, 2019

Signed: Justice P.T. O'Marra