Non-Publication and Non-Broadcast Order

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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 any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Ontario Court of Justice

Date: 2024 09 06 Court File No.: Toronto 22 30004754

Between:

HIS MAJESTY THE KING

— AND —

P.M.

Before: Justice R. Wright

Heard on: November 29, 2023, January 15-16, June 26, and July 29, 2024 Reasons for Judgment released on: September 6, 2024

Counsel: A. Kocula, counsel for the Crown J. Pier, counsel for the accused P.M.

WRIGHT J.:

[1] P.M. stands charged with four offences arising out of a single transaction; he is alleged to have made a video recording of the vagina of his then girlfriend's 9 or 10-year old daughter, in which she lays half on the bed, nude below the waist, with her legs raised in the air, and manipulates the outer part of her vagina while the video is taken.

[2] The Crown alleged that this amounted to four offences:

(1) Making child pornography (2) Invitation to sexual touching (3) Sexual assault (4) Sexual interference

[3] In submissions, the Crown invited the Court to enter an acquittal on the charge of sexual interference on the basis that his conduct amounted to a threat of the application of sexual force rather than the application of force. The Crown submitted that the other three counts are proven beyond a reasonable doubt. I do not accept the Crown’s position that an acquittal should be entered on the count of sexual interference on the basis that there was no direct touching, for reasons that I will outline below.

[4] P.M. does not dispute making the video. P.M. disputes that, in making the video, the "dominant characteristic" was the depiction of the child's sexual organ "for a sexual purpose". Rather, his position is that the alternate possibility of examining the vagina for yeast infection raises a reasonable doubt about the purpose for which the video was recorded.

[5] P.M. further submits that this alternate possibility means the Crown has failed to prove a sexual purpose for the counts of invitation to sexual touching and sexual interference, and that the Crown has not proven any touching by P.M. or any threat to apply force of a sexual nature in circumstances that created an apprehension of imminent harm or offensive contact that affronted her sexual integrity.

[6] Much of the Crown's case was not disputed. The Crown called two witnesses: S.O., the complainant, and her mother who located the video on P.M.’s cell phone and took a recording of it. Most of the complainant's evidence was tendered pursuant to s. 715.1 Criminal Code (“Code”) and became part of her trial testimony when she adopted it as true. The Defence relies on portions of the evidence of both Crown witnesses with respect to the argument that P.M. had a non-sexual or medical purpose for making the video. However, there are several areas of the evidence called by the Crown that were contested by the Defence, including whether or to what extent prior discussions of yeast infections or vaginal health had occurred.

[7] The issues I must therefore decide are:

(1) Credibility/Reliability of the witnesses (2) Has the Crown proven the video's dominant characteristic is the depiction of the child's sexual organ for a sexual purpose (3) If so, does a defence from s 163.1(6) of the Code apply (medical) (4) Has the Crown proven P.M. counseled or invited S.O. to touch herself (5) Has the Crown proven P.M. intentionally touched S.O. (6) Has the Crown proven that any touching was for a sexual purpose (the mens rea for Counts 1 and 2) (7) Has the Crown proven that any assault was committed in circumstances of a sexual nature, such that the sexual integrity of the victim was violated

[8] Everyone is presumed innocent until their guilt has been proven beyond a reasonable doubt, and the onus remains on the Crown throughout a trial.

[9] It is helpful to have some uncontested background for context. P.M. was the boyfriend of the complainant’s mother, H.F. In 2022, he began living with H.F. and her two daughters (her son was living mostly with his father; the two girls also spent parenting time with their father, who was not P.M.). S.O. is the elder of H.F.’s two daughters. At the relevant times she was either 9 or 10-years old.

[10] P.M. recorded a video on his cell phone of S.O.’s vagina. At the time he recorded it, he told her he was checking for a yeast infection.

[11] H.F. discovered this video on his cell phone some time later. He had not discussed the video with her. She did not report the video to the police, but the two did separate for a time after the video was discovered.

[12] The police were called in October of 2022, after a report was made at S.O.’s school. S.O. gave a video-recorded interview to police on October 11, 2022.

The Evidence

The Testimony of S.O.

[13] S.O. was 11-years old when she testified. Much of her evidence-in-chief was introduced by way of her video statement pursuant to s. 715.1 of the Code on consent. She was 10-years old when she gave the police statement.

[14] Her evidence was that P.M. was her mother's boyfriend. She, her sister, her mother and P.M. had lived together for less than a year. He was a naturalist and wanted her to be comfortable with her body and being nude.

[15] On the day of the alleged incident in 2022, she stayed home (her sister was also home) with P.M. while her mother was at work. P.M. told her to come into the bedroom. He was not nude on this occasion. He told her to take her pants off and open her legs. She was sitting half on his bed. He had her take down her bottoms, and she was wearing just a t-shirt. He told her I need you to take your hands and open your ”peepee”. She did not want to and told him she did not want to. He persisted. He told her to look at her privates; he said it was beautiful. She thought it was gross. She agreed that he did not tell her to touch herself in a “certain way” or say the words sexually, she didn’t think. He told her to look at it, that she had a yeast infection.

[16] She did not believe she had a yeast infection. As she told the investigating officer:

OFFICER: And where were you guys? S.O.: In his bedroom. OFFICER: In his bedroom, where in his bedroom? S.O.: On the bed. OFFICER: On the bed, okay. S.O.: Yeah, he was standing on the floor, I was on-, halfway on the bed. OFFICER: Okay. And, and tell me what he said again. S.O.: Just look at it, it’s beautiful and you have a [sic]east infection, but I feel like he lied about that. OFFICER: (Inaudible.) S.O.: Because I didn’t have a [sic]east infection, I felt like he just wanted to see it. OFFICER: Okay. S.O.: And I, I was gonna tell my mom, but I completely forgot about it…

[17] Several months after the yeast infection incident, her mother discovered the video. S.O. testified that she had not known at the time that he was taking a video. She had thought that P.M. had been using his phone as a flashlight to see.

[18] When her mother found out about the video, her mother and P.M. had a fight and P.M. left the house for a while. They later made up and he continued living with the family.

[19] She further testified that P.M. had never touched her and she never touched him.

[20] S.O. testified that P.M. would often be nude in the home. She had only been alone with P.M. at home a couple of times. He had occasionally encouraged or asked S.O. to also be naked. One such occasion was a few days after the yeast infection incident. P.M. was naked and convinced her to take off her pants and shirt and sit with him on the couch.

[21] She was cross-examined about prior discussions of a yeast infection and prior discussions about her vagina that P.M. had been a part of. She did not remember a prior discussion with P.M. and her mother about the human body, where there had been a diagram of her vaginal opening and urethra. She did recall a prior discussion of a yeast infection, but she did not recall that infection causing any issue with her peeing or recall P.M. being involved in that discussion. She testified that she was pretty sure he was around, but that the discussion was with her mother.

The Testimony of H.F.

[22] H.F. testified that she and P.M. had been living together for several months, since around May of 2022. They had met on a dating site in February of that same year. They resided with her two daughters in a two-bedroom unit. Her younger daughter was seven.

[23] P.M. was not involved in a parenting role with the children, but he was left at home alone with them a few times, including sometimes when she was working. On these occasions he would watch them and feed them lunch. She testified that she would discipline the children or discuss health issues with them. P.M. was to be more of a friend to the girls.

[24] P.M. was a naturalist and would sometimes be nude in the home, with the girls present. Her younger daughter was more inclined to also be nude as she thought it was funny. S.O., not so much.

[25] Toward the end of the summer, she discovered the video of S.O. on P.M.’s cell phone. It was in his deleted-items folder. There was sound with it, but she could not recall exactly what was said. It was a video of S.O.’s vagina and P.M. said he was checking for a yeast infection. She recorded the video with her own cell phone from his phone. She went to talk to S.O. about it and confirmed that she was safe and that he had not touched her.

[26] Within a half an hour of this conversation she confronted P.M. about it and they had an argument. He acknowledged having the video and told her he had been checking for a yeast infection. He said he was very sorry for doing it and shouldn’t have done it. The two of them broke up for a time after this, but got back together. She had accepted his explanation, but she did not leave him alone with the children after discovering the video.

[27] She testified that P.M. had never discussed the video with her before she discovered it, nor any concern about a yeast infection. She was also asked in cross-examination if there had been a prior discussion with S.O. and P.M. where she was concerned about a yeast infection, and she answered no. She did agree there had been a discussion with S.O. and P.M. about the human body, including a diagram of the female anatomy. She testified that this came out of nowhere, and P.M. had wanted to show S.O. the diagram.

[28] H.F.’s recording of the video from P.M.’s phone was tendered into evidence through her. It shows S.O. lying on her back, on a bed, with her body off the edge of the bed. She is nude from the waist down, her bottoms around her ankles. The video is focused on her vaginal area. Her hands touch the outside and pull back several times exposing the opening to her vagina. She has one fingernail extension on her right hand, painted with a design. The sound on this recording is not sufficient to have recorded the sound from the original video. The video that H.F. is recording appears to be more than 30-seconds long.

Issue 1: Credibility and reliability of the witnesses

[29] Credibility relates to a witness’ truthfulness. Reliability relates to the account’s accuracy and whether the witness is mistaken in their memory or narrative.

[30] One of the most valuable means of assessing credibility is to examine inconsistency between what a witness said in the witness box and what he or she has said on other occasions. Inconsistencies may emerge in a witness' testimony, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.

[31] Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the Court should be concerned.

[32] As I assess a given witness’ testimonial account, I am mindful that I may accept some, none, or all of that account and can give different weight to the portions of evidence that are accepted.

[33] In assessing S.O. and H.F.’s testimonial accounts, I have considered the following factors:

(1) whether the account is inherently logical, having regard to common sense and human experience, using, as reference points, what the evidence reveals about the witness’ actions, words, and professed state of mind; (2) whether the account is internally consistent and coherent; (3) whether the account is consistent with reliable evidence that exists exclusive of the account such as the video itself; (4) the significance of any inconsistency in the witness’ account, and the extent to which the evidence otherwise reveals a plausible explanation for it that serves to rehabilitate the account; (5) whether the witness has an interest in the outcome of the case; (6) whether the witness has a youth court or criminal record; (7) whether the witness has engaged in discreditable conduct that reflects poorly on her credibility or reliability; (8) whether the reliability of the account is undermined by: (a) the circumstances under which the observations that ground the account were made; (b) a bona fide diminished recollection of the events over time; (c) intentional and/or unintentional tainting by other sources of information; and (d) any apparent mental, including cognitive and developmental, limitations that are probative of the account’s reliability or unreliability; (9) the witness’ apparent level of sophistication and life experience, particularly as it relates to pre-testimonial contact, in any capacity, with the criminal justice system; and, to a lesser degree, (10) the witness’ demeanour, being mindful that testimonial demeanour is of particularly limited value because it can be affected by factors entirely unrelated to the witness’s truthfulness and/or reliability, or lack thereof.

[34] S.O.’s testimony was straight-forward and clear. She acknowledged limitations in her memory. She acknowledged she had told the police that she had a bad memory. She described that she remembers some things but not others.

[35] She acknowledged an inconsistency between her in-court testimony and her statement to police about how she came to report what had happened at school. She had told police she had thought, when called into the office, that it might have been about her father. In-cross examination, she testified she did not recall what she had been thinking at the time. While I agree that there is an inconsistency in this, it is on a minor, peripheral point about the reason she was called into the office prior to police involvement. It does not cause me concern that she was unable to explain her thoughts from the time of reporting when testifying more than a year later, in particular because she had not gone to the office expecting to be reporting the incident.

[36] It was further suggested there was an inconsistency between S.O. and H.F. about whether there had been a different discussion about a yeast infection. In my view, there isn’t an inconsistency between them. What was actually put to H.F. was whether it was possible there was a discussion involving both S.O. and P.M., which was a prior discussion about a yeast infection. H.F. answered no. It was not put to H.F. whether there had been a discussion with just she and S.O., or that P.M. may have overheard such a discussion, which was S.O.’s recollection. S.O. agreed in cross-examination there was such a discussion, with her mother, and she acknowledged that P.M. might have overheard it. I accept S.O.’s evidence that there had been a prior conversation with her mother, and that P.M. may have overheard that conversation.

[37] Overall, S.O.'s evidence was direct and consistent. Her language and descriptions of events were age appropriate; she seemed to be doing her best to be truthful about what she found to be difficult and uncomfortable subject matter. She didn't want P.M. to get into trouble when she spoke to the police. She didn’t appear to have any different feeling toward him in her testimony before me.

[38] While there are some gaps in her memory, her evidence on the major points did not appear to have been impacted by any memory difficulties. Her lack of memory of a discussion about anatomy with drawings prior to the video incident does not cause me concern about accepting what she told the police in her police statement. It is on a peripheral point, and it accords with human experience that a 9 to 11-year old might not remember this sort of detail. Similarly, her admission to police and in cross-examination that she has a poor memory does not cause me any doubt about the details that she did recall and was able to recount.

[39] Portions of her evidence were confirmed by the evidence of H.F. H.F. also testified in a direct and straight-forward manner. She was a particularly careful witness, correcting mistakes in questions put to her such as her daughter’s name; an example of this care and attention was when she answered questions in cross-examination about what prior discussions about yeast infections had occurred. She listened attentively and carefully to the questions of both counsel and answered directly.

[40] H.F. acknowledged having had an interest in cooperating with police, as she herself had been arrested, but this did not appear to impact her evidence. It does not give me concern about accepting her testimony.

[41] There were no internal inconsistencies in her evidence. The one inconsistency with the evidence of S.O. is whether there was a prior discussion involving P.M. about the female anatomy, during which a drawing or diagram had been shown. I accept that H.F. recalls this event. It makes sense that she would remember this, even though S.O. does not have recall of it. As S.O. acknowledged, she had a self-reported poor memory. I accept that there was such a discussion.

[42] In my view, both S.O. and H.F. were credible witnesses, and their evidence is reliable. It, along with the video itself, permits me to make the following findings of fact as it relates to the acts in question:

(1) H.F. and P.M. were cohabitating along with her two daughters as of May 1, 2022; (2) The video was recorded between when P.M. began cohabitating with H.F. and October 11, 2022; (3) S.O. was either 9 or 10-years old when the video was made; (4) At some point prior to the video being made, there was a discussion with P.M., H.F. and S.O. about female anatomy. This included a diagram or drawing from internet searches; (5) There was also a separate discussion between S.O. and H.F. about a yeast infection, which P.M. may have overheard; (6) The video was made on a day when H.F. had left S.O. in P.M.’s care; (7) The video is more than 30 seconds in length; (8) P.M. told her to come into the bedroom; (9) He told her to take her pants down and open her legs; (10) She was sitting/laying half on his bed; (11) He told her to use her hands and open her “peepee”; (12) She did not want to, and told him she did not want to; (13) He told her to look at her privates, and he said “it's beautiful”; (14) He told her she had a yeast infection; (15) She was lying half on the bed with her legs raised, her knees bent and her bottoms around her ankles; (16) She did not know he was taking a video; she thought he was using the phone as a flashlight in order to see; (17) She did not have a yeast infection; (18) Several months later, H.F. discovered the video in P.M.’s deleted items folder on his cellular phone; (19) The allegations were reported to police some weeks later in October when S.O. told a woman at school that P.M. had made a video of her privates.

[43] With those findings of fact, I turn then to the offences charged and my analysis and findings on each of the offences.

Issue 2: Has the Crown proven the video's dominant characteristic is the depiction of a child's sexual organ for a sexual purpose

[44] Section 163.1 (1) of the Code defines child pornography to include:

In this section, child pornography means

(a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,

(i) that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or

(ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years;

[45] There is no dispute that the images depict the sexual organ of a person under the age of 18. The external vaginal area, being spread and held open by S.O., is exposed in the video. She is not wearing any bottoms. She can be seen to spread the external area exposing herself several times. She is reclined on her back on the edge of a bed with her legs raised.

[46] The issue is whether the dominant characteristic of the video was the depiction of the sexual organ for a sexual purpose.

[47] In R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, the Supreme Court of Canada said that an objective approach is to be applied to the terms "dominant characteristic" and "for a sexual purpose":

[50] The question is whether a reasonable viewer, looking at the depiction objectively and in context, would see its "dominant characteristic" as the depiction of the child's sexual organ or anal region. The same applies to the phrase "for a sexual purpose", which I would interpret in the sense of reasonably perceived as intended to cause sexual stimulation to some viewers.

[51] Family photos of naked children, viewed objectively, generally do not have as their "dominant characteristic" the depiction of a sexual organ or anal region "for a sexual purpose". Placing a photo in an album of sexual photos and adding a sexual caption could change its meaning such that its dominant characteristic or purpose becomes unmistakably sexual in the view of a reasonable observer: See R. v. Hurtubise, [1997] B.C.J. No. 40 (S.C.), at paras. 16-17. Absent evidence indicating a dominant prurient purpose, a photo of a child in the bath will not be caught. To secure a conviction the Crown must prove beyond a reasonable doubt that the "dominant characteristic" of the picture is a depiction of the sexual organ or anal region "for a sexual purpose". If there is a reasonable doubt, the accused must be acquitted.

[48] The Defence submits that the alternate possible purpose of recording S.O.’s vagina to determine if she had a yeast infection raises a reasonable doubt that the dominant characteristic is the depiction of her vagina for a sexual purpose.

[49] I disagree. In my view, a reasonable viewer, looking at this video objectively and in the context in which it was recorded, would see this recording as intended to cause sexual stimulation to some viewers. I find that for a number of reasons:

(1) The recording itself: (a) She is lying on her back on a bed, with her hips off the edge of the bed; (b) Her bottoms are around her ankles; (c) Her legs are spread, and raised to maintain this position, with her knees bent; (d) Her body appears as though her back is arched to maintain this position; (e) The recording zooms slowly in so that the sexual organ is centred; (f) Her hands repeatedly pull back the edges exposing her external sexual organ for the camera. The effect of this is to make her sexual area appear to pulse or engorge; (g) At one point, she appears to try to pull away and close her legs, but she returns to the open position as though coaxed or directed to; (h) It is clear that the video is being filmed by a second person. The overall feel is voyeuristic; and, (i) The video is at least 30 seconds long. (2) The recording was made surreptitiously without S.O.’s knowledge. She believed P.M. was using his phone as a flashlight in order to see. (3) P.M. directed her in what she was doing, despite her expressed resistance. He told her to take her bottoms down, to get on the bed and to manipulate herself while he used the phone. P.M. told her to look at her vagina several times. He told her it was beautiful. (4) S.O. did not have a yeast infection. (5) The video was made while H.F. was out of the residence and P.M. was left to care for S.O.

[50] In my view, considering these circumstances together leads to no other reasonable conclusion than that the recording was intended to cause sexual stimulation to some viewers, despite the additional fact that he told S.O. she had a yeast infection during the course of the recording. That one additional "medical" statement in the context, including that he was a naturalist, does nothing to detract from the overall sexual effect of the recording.

[51] The Crown submitted a further factor should be considered; P.M.’s words of apology to H.F. when confronted about the video. I have not considered P.M.’s words when confronted. In my view, as a matter of logic, his response when confronted equally supports that he had realized he had engaged in inappropriate behaviour that nonetheless required apology (he was not her parent, and engaging beyond the scope of what her mother would want). As such, it cannot be used in the manner the Crown has submitted.

Issue 3: Does a defence from s. 163.1(6) apply

[52] The Defence submits that the defence in 163.1(6) of the Code would apply as a legitimate purpose of medicine that does not pose an undue risk of harm to persons under the age of 18. That subsection reads:

Defence

(6) No person shall be convicted of an offence under this section if the act that is alleged to constitute the offence

(a) has a legitimate purpose related to the administration of justice or to science, medicine, education or art; and

(b) does not pose an undue risk of harm to persons under the age of eighteen years.

[53] I have considered this defence in light of the fact that P.M. told S.O. during the making of the video that she had a yeast infection.

[54] I do not accept that P.M.’s purpose in making the recording was to examine S.O. for a yeast infection. I have already found that this additional fact did not cause me to doubt that the video was for a sexual purpose. The circumstances in which the video was recorded, including that S.O. did not want to be examined and did not know that she was being video-recorded at the time, along with the fact that P.M. did not do anything to follow up with S.O. or H.F. about the purported possible yeast infection, satisfy me that it would be unreasonable or speculative to find that the video was created for a legitimate purpose of medicine. I do not accept that the video was made for any such legitimate purpose. The totality of the evidence does not leave me with a reasonable doubt on the basis of a legitimate medial purpose that did not pose an undue risk of harm.

[55] The Crown has satisfied me beyond a reasonable doubt that P.M. created this recording, that its dominant characteristic is of S.O.’s sexual organ for a sexual purpose, and that no defence applies. P.M. is found guilty of this count (Count 4).

Issue 4: Has the Crown proven P.M. counselled S.O. to touch herself

[56] For P.M. to be found guilty of counselling sexual touching or sexual interference, the Crown must prove that S.O. was under 16-years old at the time beyond a reasonable doubt.

[57] I have found that S.O. was under 16-years old at the time, being either 9 or 10-years old. It is unclear on the evidence whether the recording was made prior to or after her 10th birthday, but the Crown has proven beyond a reasonable doubt that she was under 16.

[58] The Crown must also prove beyond a reasonable doubt that P.M. counselled S.O. to touch her own body. The count is particularized as counselling. To "counsel" means to advise someone to do something, or to suggest or recommend that they do it. The proposed touching must involve intentional physical contact with any part of a person's body, directly or indirectly, and can include touching the young person’s own body: R. v. Fong, 1994 ABCA 267 at para. 10.

[59] I have found that P.M. told S.O. to use her hands and open her “peepee”. In my view, this was more akin to a direction that mere advice, suggestion or recommendation, given that I have also found the S.O. did not want to engage in this touching. Nonetheless, it satisfies the definition of counselling. The conduct that P.M. counselled S.O. to do is to touch her own vagina, a part of her own body, with her hands. The Crown has proven this element beyond a reasonable doubt.

Issue 5: Has the Crown proven P.M. intentionally touched S.O.

[60] The offences of sexual interference and sexual assault have the following essential elements:

(1) Sexual interference: that P.M. intentionally touched S.O.; (2) Sexual assault: that P.M. intentionally touched S.O. without her consent.

[61] Section 265 of the Code defines assault:

(1) A person commits an assault when

(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;

(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or

(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

(2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.

[62] As I stated at the outset of these reasons, the Crown initially invited an acquittal on the count of sexual interference on the basis that P.M. did not touch S.O. I invited further submissions from the parties on whether the essential element of intentional touching for sexual interference and sexual assault could be satisfied through the indirect application of having S.O. touch herself.

[63] I have not been directed to any authority that is directly on point on the question of whether the direction to a young person to touch herself can amount to an indirect application of force. The most similar fact scenario I was directed to is in R. v. J.S., 2024 ONCJ 185. In that case, Richardson J. considered whether a sexual assault was made out where the older step-brother of the complainant had, for his sexual gratification, ordered the younger complainant to strip her clothes off for him. The complainant was between 14 and 16 years of age. The accused was over 21.

[64] Richardson J. found that there was no direct or indirect application of force, such as helping her remove clothing. However, he held that the offence of sexual assault was made out. He found that the point was to exploit the sexuality of the complainant, affront her sexual integrity and dignity, sexually humiliate her and demonstrate to her that she was sexually subservient to the accused. In coming to that finding, he followed the Ontario Court of Appeal in R. v. Edgar, 2016 ONCA 120 (“Edgar”).

[65] In Edgar, the Court upheld a finding of guilt on the count of sexual assault where the accused had masturbated in front of the complainant in the course of a break-in. L.B. Roberts J.A. stated:

[10] To commit a sexual assault, it was not necessary for the appellant to touch or even verbally threaten the complainant. A person's act or gesture, words, force or any physical contact, can constitute a threat to apply force of a sexual nature, if it intentionally creates in another person an apprehension of imminent harm or offensive contact that affronts the person's sexual integrity. Coupled with a present ability to carry out the threat, this can amount to a sexual assault. See Criminal Code, R.S.C. 1985, c. C-46, ss. 265(1)(b) and (2); R. v. Cadden (1989), 48 C.C.C. (3d) 122 (B.C.C.A.); and R. v. Johnson.

[66] Similarly, in R. v. Field, 2022 BCCA 197, the accused directed the complainant to sit down and told her that he planned to masturbate while watching her. He also told her to take off her clothing. He was aggressive, belligerent, and high. The complainant refused and the accused eventually fled. After referencing Edgar the Court concluded that the accused’s actions amounted to sexual assault:

[39] The courts in the three cases above all considered sexual assault to be inherently an act of power, aggression and control, and the fact that this was the motive behind the sexual touching in V.(K.B.) and Nicolaou permitted a finding that these were indeed sexual assaults. The fact that a person exercises power and control over another may well be relevant to the determination of whether an act constitutes sexual assault. However, neither case stands for the proposition that the exercise of power and control is necessary for a finding of sexual assault, whether there has been direct sexual contact or not. As stated in Edgar, “a threat to invade the bodily or sexual integrity of another person or to otherwise apply force is itself a hostile act”: at para. 16. These cases certainly do not stand for the proposition that where there is no physical sexual contact, there must instead be some physical manifestation of the power, aggression and control (which is already inherent in an act of sexual assault), regardless of the other circumstances of the interaction.

[67] In R. v. Nicolaou, 2008 BCCA 300 (“Nicolaou”), the Court found that the public examination of the complainant’s vagina by another person in order to determine if she had stolen drugs from him constituted sexual assault. The accused in that case had another party conduct the search of the complainant’s vagina in his presence. The motive was found to include a demonstration of the appellant’s power and control over the complainant. The focus on appeal was on the intention of the accused:

[44] In my view, the judge did not “focus solely on the anatomical location of the application of force” as the appellant asserts. The fact the assault was to the complainant’s vagina made it an assault of a sexual nature, but the judge did not convict the appellant solely for that reason. He concluded the motive for the assault included demonstrating the appellant’s power and control of the complainant. It is clear on the evidence she was humiliated, begged for the search to stop and allowed it to happen only out of fear of the appellant. [emphasis added]

[68] The common themes in these more unusual cases where the complainant is either directed to watch the accused perform a sexual act or perform a sexual act upon themselves, and without any physical contact between the two individuals, are that a sexual assault can be made out:

(1) without the application of physical force or sexual contact; (2) where there is a threat to invade the bodily or sexual integrity of another person or to otherwise apply force is itself a hostile act; (3) where the complainant feels, as a result of the relationships and/or circumstances, compelled to comply.

[69] In this case, P.M. directed S.O. to touch herself. She indicated to him that she did not want to, and she tried to desist. She was 9 or 10-years old and he was the only adult present at the time. She would not have been touching her vagina in his presence without his having directed her to do so.

[70] In my view, this is the indirect application of force. S.O., following P.M.’s direction, was the instrument of P.M.’s touching. There is no difference, in my view, whether the instrument is an intervening person (as was the case in Nicolaou) or the child herself. The Crown has satisfied me that P.M. indirectly touched S.O.’s vagina beyond a reasonable doubt.

Issue 6: Has the Crown proven that any touching was for a sexual purpose

[71] The touching that P.M. counselled and indirectly applied had a sexual purpose if it was done for P.M.’s sexual gratification, or for the purpose of violating S.O.’s sexual integrity, including to degrade or demean her in a sexual way. To decide what the purpose of the touching was, I have considered all of the circumstances surrounding it, what P.M. said and did, the part of the body touched, and the nature of the contact: R. v. Chase, [1987] 2 S.C.R. 293, at para. 11; R. v. Jarvis, 2019 SCC 10, [2019] 1 S.C.R. 488, at para. 142.

[72] P.M. was the only adult home, and S.O. was in his care. He told her to come into his bedroom, pull down her pants, and open her legs. She was on his bed. He told her to use her hands and open her “peepee”. She told him she did not want to, but he persisted. He told her to look at her privates. He told her it was beautiful while she was touching herself. It is clear from the video that she pulled her vaginal opening apart several times; the only available inference is she did so at his direction. The only reason she was touching herself was that she was following his instruction. He told her she had a yeast infection, but she did not. He surreptitiously video-recorded her while she was doing this, creating a video of at least 30 seconds in length that he then had access to on his phone.

[73] In my view, there is no other reasonable inference than that he did so intending his own sexual gratification and to violate her sexual integrity. In my view, any other inference, including that he had a medical purpose in examining her for a yeast infection, is speculative and does not raise a reasonable doubt.

[74] P.M. is found guilty of Counts 1 (counselling sexual touching) and 2 (sexual interference).

Issue 7: Has the Crown proven that an assault was committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated

[75] In R. v. Lutoslawski, 2010 ONCA 207, Doherty J.A. addressed the different essential elements applicable to offences that require a sexual purpose, such as invitation to sexual touching and sexual interference, and sexual assault. The trial judge had acquitted of sexual assault on the basis that the Crown had not proven a sexual purpose to the assault:

[37] The trial judge accepted the evidence of the complainants concerning the incidents giving rise to the allegations. He should have considered whether, on an objective view of the entirety of the circumstances revealed by that evidence, the respondent’s conduct was of a sexual nature. The respondent’s purpose in touching the complainants was not an element of the offence, but was instead evidence that could be considered along with the other circumstances. The trial judge’s finding of fact that the respondent was motivated by a sexual purpose could assist the Crown only in proving the allegation of sexual assault.

[76] I have found that P.M. indirectly touched S.O.’s vagina by having her touch herself. I have also found that the only available inference is that he did so for a sexual purpose, given all of the circumstances surrounding the touching, including that he surreptitiously recorded her while she touched herself. That is a factor for consideration in determining whether his conduct has the requisite, objective sexual nature: viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer?

[77] In my view the answer is yes. A reasonable observer, in all the circumstances, would see the sexual or carnal context. Even had I not found that a sexual purpose was the only available inference I would be satisfied that a reasonable observer would see this as sexual or carnal such that her sexual integrity was violated: it is an adult male with care of a child directing that child to expose the outside lips of her vagina repeatedly at his direction while he surreptitiously films it. She is laying on her back on his bed, with her bottoms around her ankles, her legs raised and her knees bent, while he tells her to look at herself and that her vagina is beautiful. The additional statement to her that she has a yeast infection, and the implication that this is the reason he is having her touch herself in this manner, and his interest as a naturalist, do not detract from the overall sexual nature of the conduct.

[78] In the event that I am incorrect that his actions amount to an indirect application of force to S.O., I am also satisfied that his actions amount to an assault within the meaning of s. 265(1)(b) of the Code. S.O. was 9 or 10-years old. She was in P.M.’s care at the time. He directed her to his bed, to take off her bottoms exposing her private area, and to touch herself while he watched and held her image on his phone. All of the circumstances, including the surreptitious recording of this, are of an objectively sexual nature such that her sexual integrity was violated. She was embarrassed and told him she did not want to. She was unaware she was being recorded. This is clearly a violation of her sexual integrity: R. v. Chase, [1987] 2 S.C.R. 293, at para. 11; R. v. Jarvis, 2019 SCC 10, [2019] 1 S.C.R. 488, at para. 142; R. v. J.S., 2024 ONCJ 185; Edgar; and, Nicolaou.

[79] The offence of sexual assault further requires the Crown to prove that the sexual touching was without the consent of the victim and that P.M. knew that the victim was not consenting. Given S.O.’s age, consent is not an issue: s. 150.1 of the Code. She was not capable of consenting to touching of a sexual nature. P.M. knew her age. There is similarly no doubt on the final essential element that he knew she was not consenting given her age.

[80] I am satisfied that the Crown has proven all of the essential elements of sexual assault and there is a finding of guilt on Count 3.

[81] Counts 2 and 3 are conditionally stayed pursuant to R. v. Kienapple, [1975] 1 S.C.R. 729. While counselling sexual touching and sexual interference often involve different acts, in this case the indirect touching is the same as the touching counselled by P.M. On the facts of this case, the offences were in essence “the same crime.”

Released: September 6, 2024 Signed: Justice R. Wright