R. v. R.G., 2017 ONSC 1598

SUPERIOR COURT OF JUSTICE (ONTARIO)

CITATION: R. v. R.G., 2017 ONSC 1598 COURT FILE NO.: 14-32002 REGISTRY: Ottawa, Ontario

BETWEEN:

HER MAJESTY THE QUEEN

– and –

R.G.

Defendant/Accused

Lisa Miles for the Crown

R. McGowan, for the Defendant/Accused

HEARD: at Ottawa, Ontario on September 26-30, October 3-7, 11-14 and November 17, 2016:

Restriction on Publication:

By order of the court pursuant to section 486.4 of the Criminal Code of Canada, any information that could identify a complainant or a witness shall not be published in any document or broadcast or transmitted in any way.

Before: The Honourable Mr. Justice Martin James

Introduction

1This case involves numerous charges against the accused arising from allegations made by eight underage female complainants.

2The accused is 48 years old. He is a retired member of the C[…]where he served for 27 years in the Signal Corps as an Information Systems Security Officer under the Director General, Enterprise Application Services. He retired in December 2013.

3Mr. G has a daughter, E.G, who is now 15 years old but at the time of the incidents in question would have been about 11 or 12. She lived with her father from Sunday to Thursday each week and spent weekends with her mother. When E.G. was not with her father, Mr. G lived alone. The complainants were friends and classmates of E.G. who spent considerable amounts of time at R.G.’s residence. The complainants generally ranged in age from age 12 to 14 at the material time.

4The incidents in question took place at his home at C[…] Base Uplands.

5Many of the allegations advanced by Crown counsel were acknowledged by Mr. G. In particular, he made no secret of the fact that he often gave massages to the complainants. Mr. G also acknowledged that the complainants participated in a procedure he called the Teddy bear. The Teddy bear procedure involved Mr. G standing behind one of the girls, outstretching their arms and interlocking their fingers together then the girl would pull his arms forward wrapping his arms around the front of her body. Sometimes this took place while lying on his bed. Mr. G said that this helped with the pain in his shoulders. A variation of this was referred to as “sandwich”. The sandwich procedure involved three participants, two girls and Mr. G, usually with his daughter E.G. in the middle. Like the Teddy bear, Mr. G reported getting relief from his shoulder pain when doing the sandwich.

6An important issue in this trial was the extent of the touching that went on during the massages and the Teddy bear and sandwich procedures and whether there was a sexual purpose to the touching on the part of Mr. G.

7For convenience and clarity due to the fact that three of the complainants have the same surname, I will sometimes refer to the complainants by their first names.

8I will begin with a summary of the evidence relating to each of the complainants, in the same order as the presentation of evidence by Crown counsel, then I will review the evidence of the Crown’s computer expert, Daniel Corneau, followed by a summary of Mr. G’s testimony.

Evidence relating to M.H. - Counts 19, 20 and 21

9At the time of trial M.H. was 16 years old. She was 13 when she gave her statements to the police and about 11 and 12 when the incidents were said to have occurred. In her first interview, she said Mr. G gave here somewhere between 15 to 20 massages, usually her shoulders or neck but a few times he massaged her back. They took place on his bed. She often wore a tank top during the massages. She did not consider that the massages were sexual in nature. She said Mr. G never tried to touch her in a sexual way. She tried to avoid the massages. Sometimes when he tried to massage her she said “No thank you. I’m fine. I don’t need it.” On one occasion he tried to touch lower on her chest during a massage but she pretended to reach for her iPod. She said sometimes she would try to get away from him.

10She also said that Mr. G would sometimes try to unhook her brassiere while giving her a hug when arriving or leaving. This prompted her to buy a different style of bra that was more difficult to undo.

11During her second interview M.H. said that her first sleepover was sometime in 2011. She had a bad sunburn. Mr. G rubbed her skin with Aloe cream. In 2012 things seemed to be different. He offered to perform massages more frequently. The girls stayed for more meals.

12There was an occasion when Mr. G bought her a dress from Value Village. Back at the house she modelled it by standing on a table in the living room at his request. He made a comment about how the dress made her breasts look bigger.

13During the second interview M.H. testified about an incident when Mr. G asked her if she was trimmed to which she responded, “Yeah, obviously”, and he replied, “Well, can I see”? When she said no, Mr. G said, “Well, I can shave it”. She refused, then went into another room to speak with her friend B.A. and said they should leave.

14Also during this interview she said that Mr. G requested her to do certain things like remove the body hair on his back, walk on his back and massage his back. On one occasion while E.G. was present the two girls used hair removal cream on his back. This took place in his room on his bed. Another time he requested her to massage his back because he said it was sore. This occurred more than once. It took place in his room on his bed. It lasted about five minutes, maybe a little longer. She said she felt uncomfortable performing these massages. She did not get a specific reward for performing this service.

15At trial M.H. described her experience with Mr. G and the Teddy bear procedure. It occurred in his room on his bed. It was like cuddling. It would take place at his request. Mr. G would lie on the bed behind her and his arms would be around her. It lasted between five to ten minutes. The contact made her feel uncomfortable. When she tried to get up or roll away, he would sometimes hold her tighter. She didn’t want to say no to doing this. She was never involved in doing the sandwich procedure and never saw the other girls doing it.

16There was an occasion when she went with Mr. G and his daughter to a La Senza lingerie shop to purchase a brassiere. She tried the bra on in the store but Mr. G never saw her wearing it. She said she didn’t mention the bra incident during the police interviews because she didn’t remember it.

17Mr. G did not deny being at the lingerie shop with M.H. but did not agree that he had purchased a bra for her. He said that there was a promotion for the purchase of five bras and his daughter E.G. gave two to M.H. He said that M.H.’s mother wanted him to take her to the lingerie shop to be properly fitted and measured by the staff.

18On the topic of massages M.H. said at trial that he would sometimes massage her upper thigh but did not touch her buttocks. She became uncomfortable when he touched her legs. Mr. G suggested the use of a safe word that she could say if she was uncomfortable. The safe word was Peaches. She used it once when Mr. G was massaging her on his bed. She was seated on the bed sitting between his legs and he massaged her from behind. He had a pillow between his legs. His hand touched her breast. When she said Peaches he stopped massaging her. She can’t recall what she was wearing. He never tried to touch her below the waist while massaging her upper body.

19Mr. G testified that he had advised M.H.’s mother that he was giving her massages. He mother reportedly advised him she was ok with that so long as there was another person present.

20In cross-examination M.H. acknowledged that she sometimes referred to Mr. G as a nice guy. She agreed that she had fun at his house with the other girls.

21When the cross-examiner suggested that the unhooking of her brassiere occurred accidentally while Mr. G was tickling her back, she disagreed and said she thought it was intentional.

22She agreed that in her trial evidence she said that Mr. G had touched her breast once during massages but she never mentioned this during the police statements. She acknowledged that this was an inconsistency. She agreed that the breast touch was just at the top of her breast. She was asked what she meant in her police interview when she said that Mr. G had not touched her sexually. She said she meant that he had not touched or tried to touch her vagina. When asked why she differentiated breast touching from vagina touching as being sexual in nature at the time of her statement, she said she was younger then and had less understanding than she does now.

23She agreed that she kept going to the house even though she now says that Mr. G sometimes made her feel uncomfortable. She agreed that she did not perceive the Teddy bear procedure as being sexual in nature.

24When challenged on the issue of whether Mr. G purchased a bra for her, she agreed that she had not disclosed this information to the police during the interviews and had denied that he had bought her a bra. In her trial evidence she maintained that he had in fact bought a bra for her and disputed the suggestion that E.G. had given her one of hers by saying they were different sizes.

Evidence Relating to C.L., Counts 22, 23 and 24

25This witness was 16 years old when she testified. She is now in Grade 12. She was 14 at the time of the police interview on February 27, 2014.

26In her video statement C.L. referred to the trips to La Senza. She said that Mr. G bought her several items there including bras and underwear. She said he requested that she model the lingerie when they returned home. He asked her if it made her feel sexy. She didn’t want to model the lingerie but he pressed her to do it.

27On the issue of massages, she initially told the police there were about three in all. At trial she said there were more. In explaining this inconsistency, she said that she was a child at the time of the interviews and not focused on telling the truth. She also said that she was too embarrassed to disclose how many times massages had actually occurred.

28She said the massages sometimes took place in the living room, sometimes in his bedroom. Initially he massaged her hands and feet. She got uncomfortable as he moved to more personal parts of her body. Sometimes he would focus on loosening or relaxing her ham strings because she liked to dance. She wanted to be flexible and the massages helped with this. Typically she would lie on his bed. She would take her shirt off while Mr. G was out of the room and cover up with a towel. She would lie face down. Sometimes Mr. G wasn’t wearing a shirt when he gave her a massage. If she got too uncomfortable with how he was massaging her, she would tell him to stop and he would comply with her request. She felt uncomfortable when he was massaging her thighs. One time he brushed her crotch over her shorts. She called it an accident. He commented on how well-proportioned she was.

29She said she went along with the massages because she didn’t want to lose the perks of hanging around R.G.’s residence. The perks included getting junk food from the Bulk Barn, going to fast food restaurants, cooking meals at his house with her friends, getting rides to the mall and going shopping.

30She referred to an event called Topless Tuesdays which actually involved cooking dinner at R.G.’s residence wearing their bikini tops after being at the pool. It was Mr. G’s idea to keep them from spilling or splashing food on their shirts. C.L. was often the cook.

31She also referred to Mr. G wearing swim goggles when at the pool. She felt that he was looking at them while under water. This made her feel uncomfortable.

32There was an occasion when Mr. G bought C.L. a bathing suit at Ardene’s. When she tried it on in the store, Mr. G said she should wiggle to ensure that the swim suit was not too loose. She was standing in the change room with the door open when this occurred. She said the bottoms were too big and dropped to the floor.

33On another occasion she modelled a Hooters outfit at the house. The Hooters outfit was sleepwear belonging to E.G. It consisted of two different tight-fitting tops and short shorts. Other girls modelled the Hooters outfit on other occasions in Mr. G’s presence.

34C.L. was familiar with the Teddy bear and sandwich procedures. She said it was like cuddling or spooning on his bed or on the sofa with their bodies touching. She may have only done the sandwich once and did not participate in Teddy bears. She said two other girls, O.B. and R.B., were the most frequent participants in the sandwich procedure because they asked Mr. G for the most stuff, suggesting a quid pro quo type arrangement.

35She described an incident when Mr. G is alleged to have grabbed her pants, pulled them down including her underwear and then slapped her bare buttocks. She said other girls were present and witnessed this but it was not corroborated when they testified. Also, Mr. G denied it. I am not sure whether this incident occurred as described by C.L. or not.

36This witness also said that she took a photo of Mr. G’s bare buttocks at his request.

37In addition, she described something called back walks. Mr. G said that if the girls walked on his back while he laid on the floor it gave him relief from his back pain.

38C.L. testified that Mr. G would frequently unhook her bra and sometimes gave her wedgies. He liked hugging and she thought the hugs were longer than usual.

39She testified that M.H. was her best friend and that M.H. told her that Mr. G had put his finger in her vagina which made her scared for her friend’s safety. M.H. testified that he never assaulted her in that fashion.

40Mr. G sometimes sent her texts inviting her to come over. He would say that E.G. wanted her to come over. Later she testified he asked her to delete the texts.

41She said Mr. G offered to shave her legs once as well as her pubic hair. He made the same offer to M.H.

42Mr. G denied giving many massages to C.L. but agreed that sometimes she would walk on his back to relieve the pain. Mostly he massaged her hands and feet. He may have massaged her back once. He also said that C.L. was not a good candidate to help him with his back pain by means of the Teddy bear procedure because she was too small.

43His version of the bathing suit incident was that she needed a bathing suit and they went to Ardene’s to get one. He said he is very careful about bathing suits showing too much so he asked her to shake like crazy while trying it on to make sure it was secure. A strap became undone on the bottoms but the bathing suit did not fall down.

44Mr. G said that while C.L. may have tried the Hooters outfit on but if she did, it wasn’t in his presence.

Evidence Relating to R.B. - Counts 4, 5 and 6

45R.B. was 17 at the time of the trial. She was 14, almost 15, at the time of her police interview and in Grade 9. Her twin sister, O.B. and her younger sister, S.B., are also complainants.

46R.B. testified that she met Mr. G through friends including Mr. G’s daughter E.G. The first time she went to the house was in conjunction with swimming at the pool. They went to Subway afterwards. She visited the house while swimming again and gradually the frequency of the visits increased to include weekdays. The girls often asked him for rides. R.B. said she her mother wouldn’t allow her to take public transit because she was too young. One of the attractions for R.B. was that Mr. G often had treats for the girls when they visited.

47R.B. said she participated in two trips to La Senza. The first one was after she had been going to the house for a few months. She said that Mr. G commented that she was getting bigger and that she needed a new bra size. She tried on a bra in the change room and stood in the open doorway to show the others, including Mr. G. He took a picture of her. He did not purchase a bra for her and she did not purchase any for herself.

48In referring to the massages, she said they started when one of the girls would comment that her legs hurt or her back hurt. Sometimes he would rub their neck and say that they had knots in their muscles. He would bring the girls upstairs and have them lie on his bed. They were told to take off their shirt and their bra and cover up with a yellow scarf, outside of his presence. He would dab them with skin lotion or cream and then administer a massage. In R.B.’s case, he massaged her legs and once lifted her underwear and touched her in the area of the crease where the thigh meets the groin. On other occasions he would massage between her breasts. She testified he told her to cover her important parts with her fingers while he massaged her. He once brushed his hand against her vagina during a massage. She thought he touched her there accidentally. She acknowledged that she had suffered a groin injury during a sports activity and told Mr. G about it for massage purposes. Once he slapped her buttocks following a massage.

49There were occasions when she said she fell asleep on his bed. Once when she woke up Mr. G was hugging her and he said he was doing the Teddy bear. He told her that he liked to do the Teddy bear procedure on girls with curves and big butts, which were perfect for the Teddy bear. She said that he touched her breast while doing the Teddy bear on at least one occasion. She didn’t say anything about it to Mr. G. She said she didn’t feel in a position to say that he was doing something wrong. She disputed the suggestion that the Teddy bear procedure was simply a means of assisting Mr. G with his sore shoulder by stretching his arms.

50She said that sometimes when the girls asked for a ride from Mr. G he would suggest that they owed him a favour that they could repay by engaging in the Teddy bear procedure with him.

51There were times when Mr. G would insist on giving her a massage even if she didn’t want to.

52She said she consumed alcohol that was offered to her by Mr. G and that the first time she ever consumed alcohol was at his house in his presence.

53She said on one occasion Mr. G gave her the Hooter’s outfit to sleep in on the occasion of a sleepover with other girls. It belonged to E.G. who sometimes wore it as pyjamas. R.B. described the clothes as very tight, very tiny and showy. It consisted of an orange and white top with the word Hooters written across the front and orange shorts that made her uncomfortable because, in her words, you could see her butt cheeks. She testified that Mr. G said she looked good in the outfit.

54R.B. offered the observation that Mr. G was less friendly and didn’t interact with the girls as much when his daughter was present.

55She recognized the police photo of a vibrator found during a search of R.G.’s residence. She said that Mr. G had given it to her sister O.B. as a gift at Christmas but she gave it back to him. He sometimes used the vibrator on sore spots during massages.

56Sometimes during the greetings when arriving at and leaving the house, Mr. G would kiss her on the side of her neck.

57R.B. also mentioned that Mr. G would sometimes unbuckle the girls’ brassieres and give them wedgies by pulling at the edges of their underwear.

58A short time before the allegations became known; the police visited R.B. at home looking for information. She refused to disclose anything when the police first came to her house. She said she was too scared and nervous at first to say anything. She didn’t want to disappoint her family and she didn’t want her friends to be upset with her. Also, she was reluctant to give up the benefits associated with hanging around R.G.’s residence. A few weeks later, R.B. reconsidered the situation and was the first to disclose by telling details to her school guidance counsellor.

Evidence Relating to O.B., Counts 7 and 8

59This witness was the twin sister of R.B. She testified that it was common for her to sleep over at R.G.’s residence most weekends over the course of about a year. She liked the freedom associated with the household. She mentioned that when sleeping over, she could visit a friend’s house and return to R.G.’s residence late at night. O.B. acknowledged that she was drawn to Mr. G’s home because of the stuff he would give them or the rides he would provide. Sometimes she felt the girls were using Mr. G to get things they wanted.

60O.B. testified about massages she received from Mr. G. She agreed that her participation was voluntary and that the back massages felt good. There were instances when she asked Mr. G to massage her back when it was sore. She found the massages relaxing. She disagreed with the suggestion that Mr. G massaged her only when she asked for one.

61Sometimes she used a yellow scarf as a cover up during massages. At Mr. G’s request she removed her shirt and bra but agreed that Mr. G never removed any of her clothing. When she turned from lying on her front to lying on her back, he would massage her with his hands under the scarf. It was not uncommon for him to massage above and between her breasts and sometimes he touched them while massaging her front. Sometimes Mr. G was not wearing a shirt during massages. When massaging her legs, Mr. G would touch her upper thigh in the area of the crease between her thigh and her groin. This made her feel uncomfortable but she did not say anything.

62O.B. was familiar with the Teddy bear procedure. Mr. G frequently requested her to participate in Teddy bears. She estimated that she agreed to do it about 70% of the time. His hand cupped her breast during Teddy bears. Once she spent the night with him in his bed. She woke up and she was not wearing a bra and was unaware of how and when it was removed. Mr. G denied removing it.

63O.B. consumed alcohol in the form of Mike’s Hard Lemonade at R.G.’s residence on more than one occasion.

64She testified that Mr. G bought her a vibrator as a birthday gift but said she did not accept it.

65It was not uncommon for Mr. G to kiss the nape of her neck when hugging.

66She remembered seeing condoms in his room and said he offered her a condom once “just in case”.

67O.B. recalled the incident when Mr. G slapped C.L.’s buttocks but contrary to C.L.’s evidence, she said that he did not pull down her pants and the slap was administered over her clothes. They were in Mr. G’s bedroom at the time. C.L. called him a pedophile and ran out.

68She saw him unbuckle the bras of other girls but he did not do that to her.

69O.B. was familiar with the Hooter’s outfit but never wore it. She thought it was too revealing. She agreed that when she refused to wear the outfit, her refusal was accepted and she was not pressed to try it on.

70Mr. G described O.B. as very loyal to her sisters. He said she had a good heart. He had no idea she had a problem with any of his actions.

Evidence Relating to S.B., Counts 9 and 10

71S.B. was 15 years old when she testified at this trial. She started going to R.G.’s residence when she was 11 years old. She was very good friends with E.G. Her older sisters R.B. and O.B. had begun frequenting R.G.’s residence before S.B. started visiting there too.

72S.B. testified that she was familiar with the massages Mr. G gave the girls who visited his house. She had massages as well. It was common for the girls to watch each other while getting massages. She removed her shirt and brassiere at Mr. G’s request when getting a massage. She used a yellow scarf as a cover up when she had her top off. She usually wore shorts or pants during massages. She said what she wore for bottoms depended on whether she was sleeping over or not. If she was wearing shorts that tended to be longer and tightfitting, Mr. G would massage over top of her clothing. If the shorts were shorter, he would massage partially under the shorts and his hands would be in contact with her skin. Usually the massages were performed on Mr. G’s bed. When she was lying on her back, he would massage the area at the side of her breasts, her stomach below her breasts, her navel in the area above the pelvic bone and her arms and shoulders. There were instances while massaging her thighs that Mr. G’s hands would touch the crease at the inner and upper portion of her thigh. Once his hand accidentally brushed against her vagina during a massage. She agreed that other girls would be present during her massages.

73S.B. testified to an incident that occurred on the occasion of a sleepover with E.G. The two girls were watching TV while in Mr. G’s bed. Mr. G was not present. The girls became sleepy. E.G. went to her bed in her room. S.B. fell asleep in Mr. G’s bed. When she awoke, Mr. G was sitting cross-legged on the bed. Her clothes, consisting of a sweater, bra, leggings and pants, were on the floor of the bedroom. She was wearing one of Mr. G’s shirts and her underwear when she woke up. He said he didn’t know she had a birthmark on her thigh and pointed to it. The birthmark was located on her inner thigh adjacent to her vagina. She had no explanation for how her clothes had been removed except she said that she had consumed some amount of alcohol earlier that evening that had been supplied by Mr. G.

74S.B. testified that she participated in Teddy bears with Mr. G sometimes as frequently as three or four times in a week. This would occur in his bed. Sometimes she faced him with his arms wrapped around her and other times she would be facing away from him, his arms would wrap around her and his hands would be on her stomach below her breasts. She said he did not place his hands on her breasts while doing the Teddy bear procedure.

75She said it was common for Mr. G to kiss her on her neck below her ear.

76S.B. did not participate in any trips with Mr. G to the lingerie store although he contacted her by Facebook asking if she wanted to go to Tim Horton’s or to get food somewhere.

77There were times when Mr. G asked S.B. to walk on his back as he lay on the floor. He said this helped with the pain he experienced in his back. On more than one occasion she rubbed his back with cream or lotion at his request.

78In cross-examination defence counsel suggested that she mentioned incidents during her in court testimony that were not part of her video statement to the police. She said that she understated the amount of alcohol she consumed at R.G.’s residence when giving her police statement because she was concerned she would get into trouble. She agreed she was not afraid when Mr. G gave her massages. She said that at the time she gave her statement to the police, she did not appreciate that touching the side of her breast counted as breast touching. When the cross-examiner suggested that every time she told her story, it got worse for Mr. G. She said she was shy when she gave her statement to the police and it was her first time talking about these issues with an adult so she tended to understate her involvement in the incidents.

Evidence Relating to B.A., Counts 1, 2 and 3

79B.A. was 17 when she testified. She was about 13 or 14 and in Grade 8 at the time she was visiting R.G.’s residence.

80She was familiar with the massages the other complainants spoke about. In general terms her description of the massages was similar to the other girls. She used the yellow scarf as a cover up and wore shorts or underwear on the bottom when getting massages. He would count her abdominal muscles and rub her chest above and below her breasts as well as her shoulders. Sometimes he would touch the area between her breasts but not the breasts themselves.

81Mr. G would also massage her legs including her upper thigh area. His hand brushed against her vagina once while massaging her legs. She did not feel uncomfortable every time she got a massage, especially when he was massaging her back, but sometimes she had the impression that Mr. G was trying to get something out of it. She said if the girls wanted a drive, they would owe him a massage.

82B.A. was not involved in doing Teddy bears. Mr. G said that she wasn’t the right body type for Teddy bears.

83She drank alcohol to the point of intoxication on one occasion at R.G.’s residence. She referred to this as the night all the booze came out. She said there was no drinking if E.G. was present.

84B.A. testified that Mr. G would undo the clasp on her brassiere over her clothes when they hugged. She took this as a joke. Occasionally he would pinch her buttocks as she walked by. He kissed her on the cheek a few times, not on the neck. He also kissed the top of her head.

85B.A. also said that she massaged Mr. G’s shoulder. He never asked her to massage anywhere else on his body.

Evidence Relating to A.F., Counts 15, 16 17 and 18

86A.F. was 18 at the time of trial. She was 15 years old when she gave her statement to the police. She was about 14 or 15 years old and in Grade 9 during the time she was visiting R.G.’s residence.

87A.F. was the recipient of massages but was rarely asked to remove her shirt or brassiere. She said that Mr. G would sometimes undo the clasp of her bra and pull the straps over her shoulders but there were other times when he did not undo her bra. He initiated the massages by touching her shoulders and commenting that she seemed tense. She never used the yellow scarf as a cover up for her upper body but Mr. G used it to cover what she described as her butt crack during massages. He asked her to lower the waist line of her pants during massages. He would pull them down a little and she would pull them back up. This usually led to the massage coming to an end. He never massaged her legs, stomach or between her breasts. She usually didn’t mind the massages.

88She recalled the Hooters outfit when asked about it. She wore the top part of the outfit one night when O.B., R.B. and Mr. G were present. She never saw anyone else wearing the Hooters outfit.

89She was not involved in the Teddy bear procedure very often, maybe once or twice. She thought it was unnatural and uncomfortable. She did, however, participate in the variation called the sandwich with E.G. always occupying the middle position.

90A.F. acknowledged at trial but not in her police interview that she had shaved Mr. G’s chest and back with an electric shaver and took a picture of him. She said she was too embarrassed to tell the police.

91She said that she had a boyfriend for at least some of the time she was going to R.G.’s residence. Mr. G had a rule about not permitting boys in the house. He asked her intimate questions about her relationship with her boyfriend, including a reference to oral sex.

92A.F. said it was common for Mr. G to slap her and the other girls on the bum.

93A.F. never saw condoms at the house. She was not on any of the trips to Bulk Barn for candy.

94A.F. and Mr. G had a safe word that A.F. could use if she became uncomfortable such as Mr. G massaging too low near her buttocks or if he was tickling her. Her safe word was “brick”. She recalled using the word once when Mr. G was, in her words, too close to her butt crack. Using the word worked and he stopped. She was not aware of any other girls having or using a safe word.

95A.F. agreed with the suggestion during cross-examination that she felt comfortable going to his house. She liked him. Mr. G would give her rides to and from her basketball games and take her for a snack afterwards. She felt she could confide in him.

96She remembered that there was an occasion when she had a lot to drink and she slept in Mr. G’s bed. He was somewhere else in the house. She agreed that there was an occasion when Mr. G felt that she had consumed too much alcohol and he cut her off.

Evidence Relating to H.D., Counts 11, 12 13, and 14

97H.D. was 18 years old at the time of trial. She was 15 and in Grade 10 when she gave her statement to the police. She was about 14 to 15 years old at the time of the events in question.

98H.D. received massages from Mr. G. It was common for her to lie on her stomach. Her shirt would be pushed up to her shoulders. Sometimes her bra was undone. Mr. G never tried to lower the waist line of her pants. Sometimes he would massage her legs too. He would massage close to but avoid touching her buttocks. When she lay on her back, he would massage her legs at the upper part of her thigh near the crease at the top of her thigh. She used the yellow scarf as a cover up. Mr. G did not touch her between her breasts. In her statement to the police, H.D. said that Mr. G never touched her inappropriately by which she meant her breasts or her buttocks.

99On the issue of massages and Teddy bears involving H.D., Mr. G said that H.D. didn’t like massages but did like having her lower back popped due to menstrual cramps. He said that she wasn’t OK with the Teddy bear and never did it. She agreed that she didn’t like doing Teddy bears but Mr. G often mentioned it and offered her rides to school if she would participate. She said sometimes he would text her to come over and do the Teddy bear procedure with him.

100H.D. also testified that he once called her an attractive woman and another time said that she had a small butt.

101There were a couple of occasions when H.D. stayed overnight. E.G. was present for the first time. The second time no one else was there. H.D. and Mr. G slept together in his bed. She was on her left side facing the wall. Their bodies were touching because it was a small bed. She did not drink any alcohol that night and there were no massages. She acknowledged that Mr. G did not try to have sex with her. Mr. G said she only stayed over once and that E.G. was present.

102H.D. agreed that there were never any instances of Mr. G slapping or pinching her buttocks. She said she saw Mr. G slap A.F. once on the rear end, but she never saw him pinch anyone.

103She said that Mr. G bought her alcohol once at the liquor store. She paid him $10.00 for it. It was called Fireball something. Mr. G denied this.

104On one occasion she went to La Senza with Mr. G. No one else was present. He bought her a pink brassiere. She did not model it for him.

105Another time he gave her some condoms during a conversation about H.D. having sex with her boyfriend for the first time. H.D. initiated this conversation.

106H.D. agreed that she did not mention the leg massages to the police. Her explanation was that she was too embarrassed and didn’t want to get in trouble with her parents. She viewed leg massages differently from back massages because leg massages involved touching near her girl parts.

Evidence of Daniel Corneau

107Daniel Corneau is a sergeant with the C[…] serving with the Integrated Technological Crime Unit, a branch of the C[…] Investigation Service. Following a voir dire respecting his qualifications, Mr. Corneau was accepted as an expert in the field of forensic computer analysis and categorization and classification of digital images.

108Sgt. Corneau, in association with other members of his Unit, conducted an investigation of the laptop located in Mr. G’s bedroom, E.G.’s computer, a micro SD card, two USB sticks, a Samsung cell phone and an Apple iPhone 4S. The purpose of the search was to determine whether any of the devices contained images that may constitute child pornography and whether there was evidence of texts or other messages that may constitute child luring.

109The search of the computer from Mr. G’s bedroom revealed numerous images, about nineteen of which were admitted by the defence to constitute child pornography, together with various other images that may or may not amount to child pornography. There was adult pornography as well. The indicated user of the laptop was R.G., and the computer was not password protected. The images were found in unallocated space, which means they had been deleted and were not recoverable by an ordinary user.

110While he acknowledges that child pornography was found in unallocated space on his computer, Mr. G does not admit to knowledge, possession or control of the offending images.

111There were images of some of the complainants that were found on different devices. There were two somewhat blurry images of M.H. in a state of at least partial undress and a photo of C.L. sitting on Mr. G’s bed that were found on E.G.’s computer and on the micro SD card that was inserted into the laptop in Mr. G’s bedroom and two semi-nude photos of H.D. in unallocated space on the laptop from Mr. G’s bedroom.

112Sgt. Corneau and his team also retrieved some text messages that are the basis of several counts of internet luring. In some cases the charge is based solely on the testimony of a complainant that Mr. G would send them electronic communications requesting a hug or a favour. In others, Crown counsel contends that the luring offence is made out by an invitation to come over.

113On the facts here, it is insufficient to establish culpability simply through testimonial evidence of requests to “come over” or similar language. Crown counsel is unable to produce copies of actual texts or other communications alleged to offend the relevant provisions of the Criminal Code. This would encompass the luring counts in relation to M.H., C.L., B.A. and A.F.

114In relation to H.D., there is a text from Mr. G’s cell phone that requests a hug and a text from the same phone that contains the words “good morning beautiful” that H.D. says Mr. G sent to her. There are additional text exchanges between Mr. G’s cell phone and H.D. on January 1, 2014 on the issue of prospective sexual activity between H.D. and her boyfriend that was inappropriate and that could be seen as an attempt to cultivate a relationship of trust, but not necessarily with a view to advancing a plan to sexually exploit a child. Another topic of cell phone exchanges later in the month related to the purchase of a vaporizer. A reference on January 11, 2014 apparently from Mr. G to H.D. suggesting that she still owed him a favour falls well short of luring in my view.

Evidence of R.G.

115Mr. G testified that M.H. was the first of his daughter’s friends to start coming to R.G.’s residence regularly. More girls started coming by. He made a point of meeting the girls’ parents and inviting them to come over. He had an open door policy for the parents of his daughter’s friends.

116Starting in the summer of 2013 there were occasions when girls would sleep over at his place when E.G. wasn’t there. He always checked with a parent before letting a girl sleep over. In some cases a parent or guardian suggested or requested that a girl stay over because of problems at home. On one occasion the mother of C.L. requested that her daughter stay over because of her mother’s work commitments. There is a text from Mr. G’s cell phone to M.H. responding to her request for a sleepover with her friend Amber where Mr. G says that M.H. could sleep over but he would have to meet Amber’s parents and the first time his daughter E.G. should be there as well.

117He said one of his rules was that there had to be at least two girls for a sleepover.

118On the issue of massages, he said that he had been performing massages on adults for years. Sometimes the girls would request massages or say that they had pains due to sports activities. When massaging one of the girls he requested that other girls remain in the room. He never performed a massage when he was alone with one of the girls in his room.

119Performing massages was also a form of therapy for Mr. G because of the stiffness or numbness in his hands.

120In order to do a massage properly, the skin ought to be exposed. The girls would ask him to unclip their bras. He used the yellow scarf as a precautionary cover up during massages. He told them to cover their bits which was a reference to their breasts and vagina.

121He said the girl getting a massage or one of the others who happened to be in the room would make sure nothing was sticking out. In most, if not all cases the parents knew he was giving massages to the girls and that while their skin was exposed, their bits were covered. He said the massages were not inappropriate so long as nothing was exposed.

122He never touched them in a spot that would be contained within the cup of a brassiere although he would massage their sternum above their breasts and count their abdominal muscles when lying on their back on his bed. He said it never occurred to him that there may be a perception of impropriety by giving the girls massages in his bed.

123He agreed that for back massages they would have their bra undone and their shirt either pushed up or removed. He said he wouldn’t know if they were wearing a bra or bikini top under the yellow scarf because the undressing took place when he was out of the room.

124He did not massage their inner thighs as suggested by several of the girls except possibly for B.A. who had a groin injury but he stayed away from the crease at the top of her thigh.

125He started using safe words in 2013 which was a way of signalling him to stop. It started with A.F. who had a sore back. She didn’t want him to massage as low as he said he needed to for a proper massage on her lower back so they agreed on a safe word as a way of saying no or enough. Not all the girls had safe words but those who did testified that if they said the word, Mr. G would respect the request.

126On the issue of the Teddy bear procedure, he found this to be an effective way of relieving the pain in his shoulder. There was nothing sexual about Teddy bears or the sandwich. He said his daughter liked hugging and she was always the person in the middle when they did the sandwich procedure.

127Some of the activities the girls enjoyed while visiting included playing laser tag in the basement, playing cards and video games and watching Netflix. Mr. G took the girls sledding late at night and they often accompanied him to the mall where he did walking exercises.

128Going to the mall as a group led to the visits to La Senza, a lingerie shop. On one occasion there was a promotion for the purchase of five brassieres. E.G. bought five and gave two to M.H. Another time B.A. wanted to buy one and asked Mr. G for a loan to make a purchase. Some of the moms asked him to take the girls to get properly measured and fitted. Mr. G acknowledged having a conversation with R.B. about her needing a new bra size but he denied offering to take A.F. to La Senza because she needed to get a larger size. He said in hindsight, even though he didn’t do anything wrong, he shouldn’t have accompanied them to La Senza. He specifically denied H.D.’s allegation that he bought her a pink brassiere.

129There were a few times he purchased items for some of the girls. He bought a dress for M.H. at Value Village and a bathing suit at Giant Tiger. He bought them grab bags at Ardene's. He recalls buying make up for M.H. at Shoppers Drug Mart to cover some scratches. There were also visits to Tim Horton’s, Subway and McDonalds where he would sometimes buy food for the girls. They went to a Bulk Barn to stock up on the girls’ favourite candy.

130He agreed that he stopped at an adult toy store to get a birthday card for his brother while two of the girls waited in the car. He also bought a vibrator but said O.B. was mistaken when she said he had given it to her. He agreed that it would be inappropriate to make a gift of a vibrator to a teenage girl.

131Regarding the Hooters outfit, his daughter bought it at a Boxing Day sale as sleep wear. He saw one of the girls try it on but not at his request. The only girl it would have been tight on would be A.F. He thinks he saw A.F. wearing the top part of the outfit on one occasion.

132He agreed that he would have tickled all the girls at some point such as tickling their back while hugging. Once he was playing with O.B. and he tickled her. He may have once or twice accidentally unclipped a bra while hugging one of the girls. He did not intentionally undo their bras while hugging and he denied M.H.’s testimony that it was so common that she started buying bras that had different fasteners to make it more difficult for him to undo them. Sometimes the girls asked him to undo their bras as a prelude to changing their clothing. He didn’t see this as an issue so long as nothing was exposed.

133He also denied C.L.’s testimony that he asked her to take a picture of his exposed buttocks while mooning her.

134He agreed that A.F. shaved his chest and back and took a picture with his iPhone. It was her idea. The photo was tendered as an exhibit.

135He denied slapping or pinching their buttocks. Sometimes he would pretend to do so as they walked by or if he was attempting to hurry them along.

136He did not kiss any girls on the neck. He gave them air kisses on the cheek. He said the girls were confused in describing the manner and location of any kisses he gave them.

137Most of the complainants did Teddy bears with him. Some had body shapes that were more conducive to the Teddy bear procedure relieving the pressure or pain in his shoulders. Although some of the girls described the Teddy bear as essentially spooning or cuddling, it was actually different from that because it was the interlocking of fingers and the stretching or extending of his arms to relieve pain that was the point of the procedure.

138Mr. G denied that he would expect the girls to repay his favours by allowing him to give them massages or by doing the Teddy bear procedure with him. He never asked to massage them as a reward for giving them a ride or a treat.

139On the issue of the girls drinking alcohol at his home, Mr. G said that he never supplied them with alcohol but they may have consumed his liquor on occasion.

140On the issue of child pornography found on the computer in his room, Mr. G denied either downloading child pornography to his computer or deleting it once it was there. He offered an explanation that images may have been the result of pop-ups that occur when one visits various websites. In addition, the computer was purchased as a re-furbished unit from Wal-Mart and came pre-loaded with all the software he needed. He noted that the computer was not password-protected.

Discussion and Analysis

(a) Elements of the Offences Charged

(i) Sexual Interference

141This offence consists of touching a young person under the age of 16 years for a sexual purpose. Touching for a sexual purpose occurs if it is done for the sexual gratification of the accused, or to violate the complainant’s sexual integrity including any act meant to degrade or demean the complainant in a sexual way. The presence or absence of an apparent motive for the touching, such as sexual gratification, is simply one of many factors to be considered. In determining the purpose of the touching, the court must consider all the surrounding circumstances, including what was said and what was done. While it is relevant to consider what part or parts of the body were touched, it is not necessary to prove contact with any specific part of the human anatomy.

(ii) Invitation to Sexual Touching

142This offence consists of the making of an invitation to touch the body of the accused, the complainant or a third party, where the complainant is under the age of 16 years and the invitation is for a sexual purpose. Invite means to request, suggest or ask, either in words or by gestures or both, that something be done or that someone do something. An actual touch is not required; it is the making of the invitation or the request that constitutes the prohibited act if it is for a sexual purpose. The purpose of the invitation is established in the same way and by the same means as with sexual interference.

(iii) Sexual Assault

143Sexual assault is an intentional application of force to another person, whether forceful or gentle, direct or indirect, in circumstances of a sexual nature, such that the sexual integrity of the complainant is violated. An accidental touching is not the intentional application of force. The word “intentional” applies to the state of mind of the accused when he applied the force. The nature of the contact, any words or gestures that accompanied the contact and all the surrounding circumstances may be considered in determining the attitude or state of mind of the accused.

144The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: Viewed in the light of all the circumstances, is the sexual nature of the assault visible to a reasonable observer.

(iv) Internet Luring

145The elements of the offence of internet luring are an intentional communication by means of a telecommunication device with a person known to be under 16 years of age for the specific purpose of facilitating the commission of a specified secondary offence with respect to the underage person.

146The offence includes communications that serve to sexualize or groom or trick a child toward being receptive to a sexual encounter, to cultivate a relationship of trust or to undertake a process of relinquishing inhibitions, all with a view to advancing a plan to sexually exploit a child. The content of a communication is not necessarily determinative. The intention of the accused must be determined subjectively and requires a finding that the accused had the specific intent of facilitating the commission of one of the designated offences.

147As a “preparatory” type of offence, it is sometimes referred to as an inchoate or anticipatory crime. The more remote an offence becomes from the actual infliction of harm, the higher the degree of fault necessary to justify criminalization.

(v) Possession of Child Pornography

148In this case the parties agree that some of the images found on the computer in question constituted child pornography so the offending nature of the images is not an issue. “Possession” occurs when a person has something in his personal possession or knowingly has it in the possession of another person or has it in any place, whether or not that place belongs to him or is occupied by him, for the use of himself or another person. Possession generally requires both knowledge of, and control over, the thing in question.

(b) Applicable Legal Principles

149Mr. G is presumed to be innocent unless and until Crown counsel proves his guilt in relation to any particular count in the indictment beyond a reasonable doubt.

150The burden of proof always remains with the Crown. Mr. G does not have to prove anything. Proof of likely or probable guilt requires that Mr. G be acquitted because Crown counsel would have failed to prove his guilt beyond a reasonable doubt.

151Also, the suggestion that there is an absence of demonstrated motive on the part of the complainants to give false testimony against Mr. G is not the same as an absence of motive. Sometimes motives can lurk below the surface and not be readily apparent. The absence of an apparent motive to fabricate does not conclusively establish that a witness is telling the truth. The presence or absence of motive to fabricate is only one factor to be considered in assessing credibility.

152Another consideration is that the court must be even-handed in assessing the credibility and reliability of Mr. G’s evidence in relation to the evidence of the complainants. Defence evidence should not be subjected to harsher scrutiny than the evidence tendered by the Crown, in particular by overlooking or minimizing flaws or inconsistencies in the complainants’ evidence. Also, a general denial by an accused person must necessarily lack detail.

153The determination of whether guilt has been proven beyond a reasonable doubt involves more than a credibility contest between competing versions of events. The presumption of innocence and the requirement of proof beyond a reasonable doubt means that guilt or innocence cannot be determined by preferring one side’s version of what happened over that of the other side. I am required to apply the principles in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. If I believe Mr. G’s evidence, I must find him not guilty. Even if I do not believe his evidence but his testimony leaves me with a reasonable doubt as to his guilt, then I must find him not guilty. I may only find him guilty if, based on evidence that I do accept, I am satisfied beyond a reasonable doubt that he committed a particular offence.

154Notwithstanding that guilt cannot be determined simply by choosing which witnesses are more likely to be telling the truth, Mr. G’s evidence can be rejected based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible and reliable evidence (see R. v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), 218 O.A.C. 37 at para. 53 and R. v. R.D., 2016 ONCA 574 at paras. 7, 15-19).

(c) Did the Touching Have a Sexual Nature?

155Mr. G maintained that there was nothing of a sexual nature involved when he gave massages to the girls or any other activities that involved touching. Some of the witnesses, M.H. for example, told the police that Mr. G did not touch her sexually. Opinions of complainants during their police interview do not determine the issue. There are numerous factors to consider in determining whether the massages had a sexual nature including the following:

a. While massages may have taken place elsewhere in the house, it was common for them to take place in his bedroom with the girl receiving the massage lying on his bed;

b. The person receiving the massage would usually but not always remove her shirt and brassiere;

c. The use of safe words implies a recognition that someone may be touched in a way or in a location that made her feel uncomfortable;

d. Mr. G would massage their legs, thighs and the front of their bodies, including, according to the complainants, around and between their breasts. Some reported that he touched their breasts. Recall that Mr. G agreed that he would sometimes massage the girls’ sternums above their breasts and count their abdominal muscles when lying on their back on his bed and I find that he sometimes straddled their legs during the massages.

e. Most if not all the complainants said that they felt uncomfortable at times because of where Mr. G touched them. They explained their acceptance of his massages and other touching because they didn’t want to give up the perks he supplied;

f. The frequency of the massages and the manner in which they were performed is relevant evidence. For example, the habit of telling the girls to cover their bits when he was massaging near a sensitive area conveyed the imprimatur of permissibility to touch adjacent sensitive areas;

g. Keeping treats upstairs as a means of attracting the girls to his bedroom;

h. Directing C.L. to shake like crazy while trying on a bathing suit such that part of it became unfastened under the guise of wanting to make sure the bathing suit fit securely;

i. Sleepovers when his daughter was not there;

j. There was an unwholesome focus on sexual topics in Mr. G’s interactions with the girls. For example, it seems clear that at least some of the girls knew about the vibrator he purchased, whether as a gift or not, and the topic of condoms and their use came up in their discussions. One witness said they practiced putting condoms on cucumbers in Mr. G’s presence. He engaged in discussions with some of the girls about intimate topics, including sexual activity with boyfriends and this is disclosed in the text messages he exchanged with H.D. such as “once you start (having sex) you will need it like a natural high” and “it can make you feel really good and happy (done right) it is a natural high”. At the time H.D. was about 14 or 15 years old. C.L. said that he offered to help her get birth control pills. She would have been 13 or 14 at the time.

k. The presence of child pornography on the hard drive of the computer in Mr. G’s bedroom and the fact that sensitive photos were found on other devices are relevant pieces of circumstantial evidence from which an inference may be drawn that Mr. G had a sexual interest in young females generally and the complainants specifically. It was admitted that some of the photos in the unallocated space in the computer in Mr. G’s bedroom constituted child pornography. This is separate and apart from the question of whether Crown counsel can prove beyond a reasonable doubt that Mr. G was in possession of child pornography within the meaning of the Criminal Code. Also, and I think this is an important factor, with respect to assessing whether or not there was a sexual nature to the touching, there were the admitted visits to a lingerie shop with several girls together with suggestions from Mr. G that they needed a bigger bra size, or that they needed to be properly fitted, or that they were well-proportioned, and, in fact any discussion about their bodies and physical appearance are relevant pieces of circumstantial evidence respecting Mr. G’s state of mind.

l. The unhooking of brassieres while giving hugs, a common complaint by the girls, which Mr. G said may have happened occasionally by accident. One only needs to consider how rarely, if ever, such accidents happen in everyday life to conclude that his explanation is improbable.

(d) Assessing Credibility

156The determination of whether Crown counsel has proven Mr. G’s guilt beyond a reasonable doubt on any particular count requires that I make factual findings based on conflicting testimony. I have to determine what allegations I will accept and what allegations I am not prepared to accept. Fact finding in the face of contradictory evidence involves assessing the credibility of witnesses. Generally speaking, the assessment of credibility involves observing witnesses as they give their evidence, considering conflicting evidence in relation to known facts, assessing probabilities and improbabilities, determining the presence or absence of significant inconsistencies and determining the presence or absence of corroborating evidence. This is not a complete list of factors to be taken into account. I may accept some, none or all of a witness’s testimony.

157I have considered the following factors in assessing Mr. G’s credibility. It is not an exhaustive list:

a. On the positive side, he answered questions politely and did not become argumentative when pressed during cross-examination;

b. He generally answered questions directly and only a few times appeared to be evasive;

c. His evidence was not internally inconsistent;

d. He was willing to admit to saying and doing things that showed him in an unfavourable light;

e. On the negative side, at times I had the impression that he tailored his answers to skirt what he perceived to be the line between criminal and non-criminal conduct;

f. He seemed defensive and evasive when pressed about the visits to the lingerie store. He said he saw nothing wrong with taking the girls to be fitted or properly sized but said it would be inappropriate to buy them underwear because that’s a parent’s responsibility. He said that M.H.’s mother wanted him to take M.H. to the lingerie shop to be properly fitted and measured by the staff. I found this suggestion to be improbable.

g. When cross-examined on whether C.L. had taken a picture of his bare buttocks at his request, I found his response convoluted, rambling and diversionary;

h. When asked what he meant when he said to M.H. that she knew what to say and what not to say, he said he wanted her to be truthful;

i. When questioned about a text exchange with H.D. wherein she asked for a ride and he responded with the question, “Do I get a hug?” he denied that he traded favours with the girls and said he was joking because H.D. didn’t like hugging. I find this exchange corroborates the complainants’ evidence that there was a quid pro quo with the girls when they asked for favours. Recall for example that C.L. said Mr. G asked R.B. and O.B. to do the sandwich procedure more often than the other girls because they asked for the most stuff.

158I have considered the following factors in assessing the complainants’ credibility. This is not an exhaustive list:

a. In several instances there are discrepancies between what the complainants said in their police statements and their evidence at trial. For example, C.L. told the police she had three massages but at trial she said there were more. Another example, H.D. did not initially tell the police she had slept over one night with Mr. G when no one else was there.

b. These inconsistencies do not go to the core of essential allegations against Mr. G and C.L.’s explanation, that she was too embarrassed to disclose the true number of massages, that she was a child at the time of her statement and not focused on telling the truth, is reasonable. These witnesses are much closer to adulthood now with a more mature perspective on the events in question. The fact that the complainants were younger at the time of their statements, that the subject matter was embarrassing and that they were initially reluctant to disclose, applies to all the complainants.

c. I view H.D.’s disclosure that she slept over but nothing happened as an opportunity for her to make things much worse for Mr. G if she was of a mind to fabricate evidence. Her evidence on this point supported the Crown’s contention that the complainants did not collude to fabricate or embellish the evidence against Mr. G.

d. The defence suggests that the differences from witness to witness in the details of the massages and other activities is evidence of inconsistencies. O.B. said that there was touching of her breasts under her shirt by Mr. G during some massages whereas the other girls were more circumspect and referred to touching between or around the breasts. I accept the Crown contention that there is another view, one which I prefer, which is that Mr. G was probing to see what he could get away with. Some girls were less tolerant of clearly inappropriate behaviour than others. It seems probable to me, considering all the circumstances, that the precise extent of the touching varied from complainant to complainant based on their tolerance level.

e. The complainants were candid in agreeing that there were many aspects of their association with Mr. G and his daughter that they enjoyed. They agreed that they had fun at his house such as going sliding late at night, cooking their own dinners and watching movies late into the night. Several of them agreed that there was an element of using Mr. G, or more accurately, letting Mr. G use them, to get what they wanted.

f. I found that the complainants presented their evidence calmly and with maturity, answered questions directly and were not evasive. I believe their testimony on the core issues except where I have qualified this belief.

g. There was a significant difference in the evidence of C.L. respecting the spanking incident compared to O.B. C.L. said there was an incident where Mr. G pulled down her pants and underwear and slapped her bare buttocks. She ran out of the room. O.B. seemed to have a good recollection of this incident. She recalled that they were in Mr. G’s room. C.L. had called him a pedophile. She said he slapped C.L.’s butt over her clothes. I am not sure of the correct details of this event.

159This is a convenient juncture to discuss the possibility of collusion among the complainants to fabricate evidence. In doing so I differentiate collusion from the ongoing discussions between the complainants as to what was happening at R.G.’s residence. It is clear that the complainants were often together in various combinations when incidents occurred. They witnessed events involving members of the group. There was evidence that they sometimes hung around Mr. G’s bedroom while one of them was getting a massage to watch out for each other. I am satisfied that they would have discussed the massages and the other activities that went on, such as the unhooking of brassieres and the trips to the lingerie store, in considerable detail. There were many questionable activities to discuss. At the same time, there were opportunities for them to embellish or exaggerate but they did not. Here are a few examples:

a. More than one complainant testified to an accidental brushing of Mr. G’s hand against their vagina. No one suggested that this was intentional, or said there was digital penetration.

b. I have already mentioned H.D.’s evidence of her sleepover alone in bed with Mr. G but nothing happened.

c. There was an occasion when M.H. went to the lingerie shop with Mr. G. She tried on a bra but said that Mr. G never saw her wearing it, never asked her to model it and never took a picture.

d. There is no evidence of a plan to get Mr. G in trouble. There was evidence to the contrary, in that R.B. broke ranks with the others and disclosed to her guidance counselor. The evidence was that some of the complainants were reluctant to disclose because they did not want to give up the perks.

e. I did not get the impression that the complainants were telling a rehearsed story. Their recounting of events sounded authentic. In my view it would be very difficult for so many witnesses, in this case all eight complainants, to collude successfully and present fabricated evidence convincingly.

f. I did not find merit in the defence suggestion that the leaders in the group pressured the other girls to be untruthful or that some may have tailored their evidence to avoid disfavour. There was nothing in the content or manner of the complainants’ testimony, especially in the course of their cross-examinations, that made me suspicious that the witnesses had fabricated evidence.

(e) Disposition of the Various Counts

160There is sufficient credible and reliable evidence to satisfy me beyond a reasonable doubt that there was a sexual purpose on the part of Mr. G to the touching that occurred during both the massages and the Teddy bears. In my view, the circumstances which I have found to exist, based on a consideration of all the evidence, do not admit to any other reasonable conclusion. There will be findings of guilt on the eight sexual interference counts- counts 1, 4, 7, 9, 11, 15, 19 and 22.

161Crown counsel contends that for example, i) kissing on the neck, (ii) bum pinching and, (iii) cuddling or spooning, constitute sexual assaults because the sexual integrity of the complainants was violated. I am not sure that these activities amounted to a violation of the sexual integrity of the complainants. Crown counsel agreed that not all incidents of sexual interference also constituted sexual assaults. Ms. Miles provided examples of a basic hug and a back massage as not violating the sexual integrity of a complainant. I agree, and in my view the sexual assault counts are largely equivocal in terms of whether there was a violation of complainant’s sexual integrity. There are instances where the evidence at trial respecting touching amounted to a violation of the complainant’s sexual integrity but the corresponding police statement did not go quite so far. For example references to touching around the breast versus touching of the breast or references to massaging at or near the buttocks. The difference between sexual interference and sexual assault in relation to the same event or touching as described by the complainants in this case can be subtle and nuanced. I am in a state of reasonable doubt respecting the commission of sexual assaults where there has already been a finding of sexual interference. As a result, I find the accused not guilty of the sexual assault counts, being counts 2, 6, 8, 10, 13, 17, 20 and 23.

162There are three counts of invitation to sexual touching involving R.B., H.D. and A.F. Count 5 relates to R.B. The evidence chart prepared by Crown counsel summarizing the particulars that relate to the various counts on a complainant by complainant basis does not include any section 152 allegations in relation to this complainant.

163Count 12 relates to H.D. and consists of a request by Mr. G to give him a hug or a massage or to participate in a Teddy bear. Implicit in the Crown’s position is that the use of these words necessarily implied an invitation to touching for a sexual purpose. I have found that a hug may sometimes just be a hug. I also have found that Mr. G’s massages of the complainants were for a sexual purpose but I also conclude that there is insufficient evidence to safely assume that when he requested them to massage him, that there was necessarily a sexual purpose. I am unclear of how an invitation to participate in a Teddy bear involves any significant touching by the recipient of the invitation within the meaning of section 152. Teddy bears were about Mr. G wrapping his arms around the complainants and the issue was where his hands may have touched the complainants, not the other way around.

164Count 16 relates to A.F. and involves the incident when she shaved Mr. G’s chest and back and took a photo. There is insufficient evidence to say that this was for a sexual purpose. It doesn’t automatically follow that Mr. G’s sexual interest in touching the complainants means that there was a sexual purpose to his having his body hair removed or shaved.

165There will be findings of not guilty in relation to the three counts of invitation to sexual touching.

166There are five counts of internet luring. On the facts here, it is insufficient to establish culpability simply through testimonial evidence of requests to “come over” or similar language. Crown counsel is unable to produce copies of actual texts or other communications alleged to offend the provisions of section 172.1 of the Criminal Code in relation to M.H., C.L., B.A. and A.F.

167In relation to H.D., there is a text from Mr. G’s cell phone that requests a hug and a text from the same phone that contains the words “good morning beautiful” that H.D. says Mr. G sent to her. I am not prepared to hold that every reference to a hug or use of an inappropriate expression amounted to an attempt to facilitate the commission of one of the predicate offences such that the references described here ought to attract a criminal sanction.

168In addition, on January 1, 2014, there was a text apparently from Mr. G to H.D. on the issue of prospective sexual activity between H.D. and her boyfriend. I cannot say that I am satisfied beyond a reasonable doubt that it was sent with a view to facilitating the commission of a predicate offence.

169There were more text exchanges later in January related to the purchase of a vaporizer.

170A reference in a text on January 11, 2014 that H.D. still owed him a favour, in my view, falls short the required standard of proof.

171There will be a finding of not guilty in relation to the five internet luring counts- counts 3, 14, 18, 21, and 24.

172There is one count of possession of child pornography. The critical question is whether Crown counsel is able to prove beyond a reasonable doubt that Mr. G had knowledge, possession and control of the images because they had been deleted. In R. v. R.D., [2010] B.C.J. No. 1202, the B.C. Court of Appeal relied on the Supreme Court of Canada decision in R. v. Morelli, [2010] SCC 8 in concluding that an acquittal was warranted where the images had been deleted and were not accessible to an ordinary user without special software. I am attracted to that analysis.

173I acknowledge that there is a very recent case in Ontario of R. v. Carlos, 2016 ONCA 920, released December 7, 2016 where our Court of Appeal upheld the decision of Donohue J. to the effect that the fact the pornography had been deleted, standing alone, did not justify reversing her finding that the accused continued to possess the offending images. I would distinguish that case by referring to the evidence in Carlos respecting the search history of the accused and that the fact the files had been stored to be shared.

174In my view there ought to be a finding of not guilty on count #25 because I have a reasonable doubt that Mr. G had the requisite elements of possession, especially on the question of control over the images, because they had been deleted and could not be called up for viewing by an ordinary user without special software.

175To summarize, there will be findings of guilty on counts 1, 4, 7, 9, 11, 15, 19, and 22 and findings of not guilty on all remaining counts.

The Honourable Mr. Justice Martin James