Court File and Parties

Court File No.: 1559/12 Date: 20160418 Ontario Superior Court of Justice

Between: Her Majesty The Queen And: Gregory Glen McClurg

Counsel: Felicity Hawthorne, for the Crown Raymond Boggs, for the Defendant

Heard: February 8, 9, 10 and 11, 2016

Restriction on Publication

By court order made under subsection 486.4(1) of the Criminal Code, any information that could identify the person described in these reasons as the complainant shall not be published in any document, or broadcast or transmitted in any way.

Bale J.

Overview

1Gregory McClurg is charged with making child pornography, possessing child pornography, sexual assault, sexual interference, and invitation to sexual touching, all contrary to the Criminal Code.

2The accused denies any involvement in the alleged offences. In addition to the denial, he relies upon a defence of alibi, and upon evidence which, he suggests, implicates his son Glen.

3The complainant, and her boyfriend, were in the habit of running away from home together. At the time of the alleged incident, both were 15 years old.

The Offences Charged

Count 1: Making child pornography, section 163.1 of the Code

4Section 163.1(2) of the Criminal Code provides that every one who makes, prints, publishes, or possesses for the purpose of publication, any child pornography is guilty of an offence. In section 163.1(1) of the Code, child pornography is broadly defined, but for present purposes, it is sufficient to note that it includes photographs that show a person under the age of eighteen years who is engaged in explicit sexual activity, and photographs the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ of a person, under the age of eighteen years.

Count 2: Possession of child pornography, section 163.1(4) of the Code

5Section 163.1(4) of the Criminal Code provides that every person who possesses any child pornography is guilty of an offence. The definition of “child pornography” in section 163.1 of the Code applies.

Count 3: Sexual assault, section 271 of the Code

6A sexual assault under section 271 of the Criminal Code is an assault which took place in circumstances of a sexual nature. To be found guilty of an assault, the accused must have intentionally applied force to the complainant, without the complainant’s consent, and the accused must have known that the complainant did not consent to the force that he applied.

7However, where, as in the present case, the complainant was under the age of 16, it is not a defence that the complainant consented to the activity that forms the subject-matter of the charge.

Count 4: Sexual interference, section 151 of the Code

8Under section 151 of the Criminal Code, every person who touches a person under the age of 16 years, for a sexual purpose, is guilty of sexual interference.

Count 5: Invitation to sexual touching, section 152 of the Code.

9Under section 152 of the Criminal Code, every person who, for a sexual purpose, invites a person under the age of 16 years, to touch the body of any person, including the body of the person under the age of 16 years, is guilty of invitation to sexual touching.

Crown Evidence

10At the time of the alleged offences, the complainant and her boyfriend had run away from home, and met the accused’s son in a coffee shop. The accused’s son invited them to stay at his house. They accepted the invitation, and lived there for several weeks.

11The accused and his son were renovating the house where his son lived. After arriving there, the complainant’s boyfriend helped with the renovations. The complainant saw the accused there almost every day.

12Several days prior to the alleged offences, the complainant was doing some sweeping and tidying up at the son’s place. The accused told the complainant that she was doing a pretty good job, and said that he would pay her to do some cleaning at his house.

13Over a period of about a week, he repeated his offer, eventually she agreed, and he drove her to his house. It was a short drive, perhaps 10 or 15 minutes.

14The accused asked the complainant if she would like to see some pictures. She said that she would. He took her upstairs to his bedroom, and showed her photographs of nude girls on his computer. They were “pornography type pictures”. The accused asked her if she liked the photographs, and she replied “sort of”. He said that he could set her up with one of the girls if she would like, and she replied “yeah maybe”. He then told her that she should play with herself, but she refused. He told her that the girls he had shown her didn’t have a problem playing with themselves, but she continued to refuse, and they went back down to the kitchen.

15Back in the kitchen, the accused started talking about sex, and told her to close her eyes and imagine. She told him that she was getting uncomfortable, but he continued. He then told her to relax, and started kissing her neck while rubbing her crotch, first on the outside of her pants, and then underneath. He then put his hand on her back, and led her back up to his bedroom. He helped her undress, and then told her to lie back on the bed. He put his finger into her vagina, rubbed her for a few minutes, and touched her breasts. He then penetrated her – she had an orgasm, but he did not. He then told her to spread her legs and play with herself, which she did, while he took photographs of her.

16The complainant said that she had tried to pull away from him when they were in the kitchen, but that there was no other time that he would have known that she “didn’t want this to happen”. But she also said that “he made me have sex with him”, and that she didn’t know what to do, so “just kinda went with it”.

17A week or more later, the accused’s son told the complainant and her boyfriend that his landlord didn’t want him to have people staying at the house for an extended period of time, and that they would have to leave. The accused then drove them to Oshawa, and dropped them off near the Oshawa Centre. This was toward the end of November.

18On December 6, 2012, the complainant and her boyfriend were picked up by the Durham Region Police as a result of missing person’s reports that had been filed, and on December 14, 2012, the complainant gave a video statement at the Lindsay O.P.P. detachment. On December 17, 2012, the O.P.P. obtained and executed a search warrant at the accused’s home. Among other things, a Hewlett Packard computer, and a Toshiba digital camera were seized. A forensic examination of the computer and camera revealed the following:

i. November 9, 2012: three nude photographs of the complainant were taken with the accused’s camera; ii. November 10, 2012: the accused’s camera was attached to the computer found in the accused’s bedroom; iii. November 10, 2012: another set of photographs was taken with the accused’s camera (five photographs of a different nude woman); iv. November 10, 2012: the photographs were downloaded to the computer; v. November 20, 2012: several photographs (including those of the complainant) were deleted from the computer (but were left in the recycle bin); and vi. December 14, 2012: the last shutdown of the computer before it was seized on December 17, 2012.

Defence Evidence

19In his evidence, the accused denied the allegations made by the complainant. His evidence included the following.

20First, the accused said that he was not in the Lindsay area at the time of the alleged offences. Rather, he was in Chatham, Ontario, doing house renovations for someone by the name of Catherine Gerber. In support of his alibi, he produced a document dated November 8, 2012 which was entitled “invoice”, but was, he said, more like a work order. The document detailed the work to be done, and gave directions to a coffee shop in Chatham where the accused was to meet her. He also produced three receipts which purported to bear Ms Gerber’s signature.

21The accused says that he doesn’t know the address of the house that he renovated. He gave the Crown the Gerber name in an alibi notice; however, he was unable to give the Crown any information that would assist in contacting her. He said that she had mentioned to him that she would be moving back to Spain, but doesn’t know whether she did or not.

22Second, the accused says that his camera was in his son’s possession from September to December 2012. He says that his son was supposed to be taking photographs of the renovation work he was doing to show to his landlord. He says that on December 17, 2012, he went to his son’s house to get the camera back. He picked it up, took it home, and left it on the desk in his bedroom. The search warrant was executed later the same day.

23Third, the accused says that he has erectile dysfunction, and therefore couldn’t have had the erection that the complainant said he had. In support, he produced a note from a doctor suggesting that he had reported, in 2010, that he had “had erectile troubles for some time”, was “able to get an erection but with difficulty”, and was prescribed Levitra on a trial basis. The accused said that the Levitra didn’t work. He said that he did have a girlfriend, but that she left him in 2008, because he couldn’t satisfy her sexually.

24Fourth, the accused gave evidence that he has, and he showed the court, various tattoos, scars, and a birth mark.

Analysis

Credibility

25The complainant admitted on cross-examination that she and her boyfriend had lied in the past, and were good at lying. She said that they had to be good at lying, because of the circumstances they were in, as runaways. For example, they lied about their ages, being afraid that if they told the truth, someone would call the police, and they would be returned home. However, there is a big difference between lying about your age, in these circumstances, and lying about the identity of a person who has committed serious criminal offences, in respect of which you are the victim. While I must consider this evidence in my overall assessment of her credibility, I am not prepared to reject the complainant’s version of the events, based upon this evidence alone. Troubled youth are no less entitled to the protection of the law, than youth who do not find themselves in such predicaments.

26Defence counsel argued that it was more likely that the offences were committed by the accused’s son, because the complainant felt indebted to him, for taking them into his house. This argument makes no sense. Allowing someone to take you in, when you are in need of shelter, is not a licence for unwanted sex. I see no reason why, in the circumstances of this case, the complainant would want to exonerate the accused’s son, and no reason why she would then want to implicate the accused – he also had been good to them, and had bought cigarettes for them from time to time. Even if she did want to exonerate the accused’s son, she could then have simply chosen not to report the offences at all.

27In her evidence, the complainant said that she doesn’t recall whether the accused had a scar, a birth mark, or any tattoos. Defence counsel argued that had the accused been the one that she had sexual intercourse with, she would have seen those features, and would remember them. However, the complainant said that the incident had been three years earlier, that she was traumatized, and is not sure where she was looking when she might have been able to observe these marks.

Alibi Evidence

28The documentary evidence produced by the accused in support of his alibi is of little assistance. It consists of documents in the accused’s own handwriting which could have been prepared at any time. Someone had signed the name “Catherine Gerber” on each of the documents, but there is no evidence, other than the accused’s own testimony, that they were signed by Ms Gerber, or even that a “Catherine Gerber” exists.

29The accused says that the renovation job came about when he got a call “out of the blue” from Ms Gerber who had been referred by a friend of a friend whose name he either doesn’t recall, or was never told. He says that he then drove down to Chatham with his tools, and met her at a coffee shop. This is, perhaps, unusual, but I can understand a homeowner wanting to check the guy out, before taking him into her home.

30The document entitled “invoice”, which the accused says was actually a work order, was dated November 8, 2012, contained details of the work to be done, and the contract price. The first of the three receipts, a receipt for $600, being the deposit said to have been paid by Ms Gerber for supplies, was dated the following day. The accused says that he went down to Chatham on November 8, 2012, and stayed there for about eleven days, without returning home. It would seem unusual, but not impossible, that one would meet with the homeowner, give a written quote for the job, commence work the next day, and not return home for 11 days.

31The accused says that he finished the work in Chatham, and returned home, on November 21, 2012, and that Ms Gerber came by his home (on her way to her cottage), on November 23, 2012, to pay the balance owed to him for the work done. A return home on November 21, 2012, gets him home the day after the photographs were deleted from his computer.

32Crown counsel argues that it is “too convenient” that the dates of the alleged construction project dovetail so well with the offence dates. However, while the alibi evidence may be convenient (to say the least), that is the nature of an alibi, and the accused cannot be disbelieved just because his story seems a remarkable coincidence.

33The only independent corroboration of the accused’s alibi is the evidence of Robert Beacock. Mr. Beacock and the accused are close friends, having known each other for forty years. Although the accused’s release terms did not require the accused to reside with him, Mr. Beacock is the accused’s surety without whom the accused is not permitted to leave home. His evidence is not for those reasons alone to be doubted, but his relationship with the accused is a factor which may be considered in determining the weight to be given to his evidence.

34Mr. Beacock was called as a Crown witness, and gave general evidence confirming that the complainant, and her boyfriend, were living at the accused’s son’s house in November of 2012. On being cross-examined by defence counsel, he testified that the accused borrowed his truck and drove down to Chatham on November 8, 2012, and stayed there for 10 or 11 days. He also said that he had been with the accused when he went to his son’s house in mid-December to pick up his tools and his camera. However, on being re-examined by Crown counsel, Mr. Beacock agreed that it could have been as late as November 10, 2012, when the accused drove down to Chatham. If the accused did drive to Chatham, and it wasn’t until the 10th, then he would have been home when the photographs of the complainant were taken, and when they were downloaded to his computer. Mr. Beacock’s testimony is therefore not inconsistent with the allegations made by the complainant.

Evidence of Erectile Dysfunction

35The accused’s evidence with respect to his erectile dysfunction is of only marginal relevance. I am given no reason to believe that someone with erectile dysfunction would be incapable of committing the alleged offences, or would be any less likely to commit them. One might just as easily think that someone with erectile dysfunction would be more likely to commit such offences, in order to achieve satisfaction. The doctor’s note that the accused produced does nothing more than say that two years before the date of the alleged offences, he reported to his doctor that he had difficulty getting an erection, and was prescribed with medication on a trial basis. The accused says that the medication didn’t work, but there was no evidence of any follow-up consultations with the doctor.

Disposition

36This is a difficult case. I believe the complainant’s evidence that the accused touched her sexually in the kitchen. It is common ground that child pornography was made in the accused’s bedroom, using his camera, and that it was stored on his computer. The photographs depict the complainant touching herself sexually. I believe her evidence that the accused asked her to touch herself, and took the photographs. I am less sure that intercourse took place. I find the accused’s denial of involvement, and his alibi, to be difficult to accept. But that is not enough. I have a lingering doubt, and cannot in good conscience say that I am sure that the offences were committed by the accused, or that the Crown has satisfied me beyond a reasonable doubt of his guilt. In the result, he is entitled to an acquittal.