COURT FILE NO.: 15-SA5091 DATE: 2017/07/05 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – B.R. Accused

Dallas Mack, for the Crown Bruce Engel, for the Accused HEARD: April 4, 5 and 6, 2017

Subject to any further Order by a court of competent jurisdiction, an Order pursuant to S. 486.4 of the Criminal Code has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity, including the names of other Crown witnesses, shall not be published in any document or broadcast in any way.

Reasons for Decision

L. SHEARD J. (ORALLY)

[1] B.R. was charged that between September 13, 2014 and in July 23, 2015 at the City of Ottawa, he:

i) did, with a part of his body namely his finger, for sexual purpose, directly or indirectly touch the body of a person under the age of 16 years, namely B.A.R., contrary to s. 151 of the Criminal Code, R.S.C., 1985, c. C-46 (the “Code”);

ii) did with an object, namely a personal silver bullet vibrator, for a sexual purpose, directly or indirectly touch the body of a person under the age of 16 years namely B.A.R., contrary to s. 151 of the Code;

iii) did commit a sexual assault on B.A.R., contrary to s. 271 of the Code; and

iv) did commit a sexual assault on B.A.R., contrary to s. 271 of the Code.

Overview

[2] The accused is the father of B.A.R. She was four years old at the time of the alleged offences. The substance of the charges is that on at least one occasion, the accused used his finger or fingers to digitally stimulate B.A.R.’s vagina and that on at least one occasion, the accused used an egg-shaped hand-held (silver bullet) vibrator to do so. In large measure, the Crown’s case depends upon the evidence of B.A.R.

[3] B.A.R. was 6 1/2 years old as of the trial. The events occurred approximately two years prior to the trial. B.A.R. had given a videotaped statement to the police on July 23, 2015, 10 days after she had disclosed to her mother (“E.D.”) that “daddy” had “tickled her” in her private parts. B.A.R. also testified at trial and was cross-examined. B.A.R. recalled giving the videotaped statement; confirmed that she was telling the truth when she gave it; and adopted the videotaped statement. The statement was admitted in evidence pursuant to section 715.1 of the Code.

[4] The alleged sexual tickling came to light on the morning of July 13, 2015 when B.A.R. spontaneously said to E.D.: “I am not going to tell you what daddy did to me last night.” B.A.R. then told E.D. that daddy had “tickled her” in her “private parts”. B.A.R. was reluctant to disclose this to E.D. and described it as “potty talk”. When E.D. asked B.A.R. to show how she was tickled, B.A.R. wiggled her fingers over her vaginal area. E.D. immediately telephoned the accused at work and confronted him with what B.A.R. had told her. The accused denied it.

[5] Later on July 13, 2015, E.D. sought advice and support from close family friend, K.T., whose own daughter, J.T., had been sexually molested as a child. In that telephone call, K.T. revealed that in January 2015 she had discovered sexually explicit Facebook messages between J.T. and the accused, from January 13 to 17, 2015 (the “FB Messages”). K.T. discovered that her cellphone had been used by J.T. to access J.T.’s Facebook account. J.T.’s Facebook account had been left open, which allowed K.T. to see the FB Messages.

[6] Using a camera, K.T. photographed portions of the FB Messages from her cellphone. The FB Messages included a message attributed to the accused which said: “B.A.R. likes to get tickled down there”. When read in context, it is reasonable and logical to infer that “down there” referred to B.A.R.’s vagina.

[7] K.T. testified that J.T. is her adopted daughter. J.T. suffered frontal lobe damage and has cognitive, social, and developmental delays, is bipolar, and suffers from severe depression and anxiety. J.T. cannot work and receives ODSP; J.T. was not called as a witness.

[8] K.T. stated that she sent a message to the accused on January 20, 2015 telling him that she had seen the FB Messages and expressing concern about “this inappropriate behaviour”. She concluded her message to the accused with: “You know better than this [B].” The accused did not respond. K.T. did not disclose the FB Messages to E.D. until their phone call of July 13, 2015.

[9] Following that telephone call, K.T. sent E.D. the photographs she had taken of the FB Messages. On July 24, 2015 K.T. provided the investigating officer with a copy of her January 20, 2015 Facebook message to the accused.

[10] The accused also testified at trial. He denied that he had touched B.A.R. as alleged and denied any sexual misconduct. He admitted that J.T. was a Facebook “friend” but denied that he had sent the FB Messages to J.T. or ever communicated with her via Facebook. The accused stated that he was good father and had a great relationship with B.A.R. and, until B.A.R. disclosed the allegations of sexual “tickling”, he thought he had a good relationship with E.D. That evidence is also consistent with the evidence given by E.D.

[11] The accused confirmed that E.D. had telephoned him at work the morning of July 13, 2015 to talk to him about what B.A.R. had told her. The accused stated that he was shocked and fell to the ground. He tried to make E.D. understand that nothing happened but he could not discuss it at work. He asked her if they could discuss it after work, when they would have more time “to clarify things and go through the details.” That evening, he went to visit E.D. at her mother’s home “to try and work things out.” According to E.D., the accused stated that he had no idea how the FB Messages were sent; that his Facebook account must have been hacked. He agreed that something must have happened to B.A.R. but that it was not by him.

[12] The accused, E.D., and their two children went for a bike ride the evening of July 13, 2015 and then “chatted on the couch for a bit” before the accused went home alone. The accused saw B.A.R. for last time a few days later.

[13] The accused stated that a day or two after July 13, 2015, he received a telephone call from the investigating officer who had wanted him to come in that day. The accused asked if he could finish up his workweek and meet with the officer after work at the end of the week “to deal with everything.”

The Evidence of B.A.R.

[14] In her s. 715.1 statement and in her testimony at trial, B.A.R. was unshaken in her evidence that the accused tickled her vagina, with his fingers, and with a vibrating egg. She described the accused reaching under her pyjamas to touch her vagina and also using a metal egg on her vagina. B.A.R. described the egg as a “special thing”; a “tiny little egg”; that it “looks like an egg” with a little cord; that it goes “fast or slow”; and that it was stored in a dresser in her parent’s bedroom.

[15] B.A.R. also described seeing the accused “tickle” himself, and, using hand gestures, she described him using two hands to pull “it up”. B.A.R. described that the accused “gets some goo on him but he can wipe it off.” When asked where the “goo” comes from, B.A.R. responded: “Inside the private part…Inside the penis… And then he gets up and clean it off.” (sic)

[16] B.A.R.’s evidence constitutes evidence of sexual interference and sexual assault.

[17] For the reasons that follow, I conclude that the evidence of B.A.R. is credible and reliable.

[18] When assessing the credibility and reliability of B.A.R.’s evidence the Court must consider her very young age at the time of the events and the passage of time from those events to the preliminary hearing and trial. The defence asked the Court to consider the decision of Justice David M. Paciocco (as he then was) in R. v. Bellinger (unreported, April 28, 2015, OCJ). Paciocco J. concluded, as I do here, that the Court ought to be concerned with the ability of the child witness to recall and describe “the core details of the event.” Here, the core details of the event are the accused’s touching of B.A.R.’s vagina with his fingers and with the vibrating egg. Here, as in Bellinger, the Court is little concerned with the young witness’s inability to “give precise, consistent details about the order, timing, or duration of events, including the episodes of sexual touching” recognizing that it would be unrealistic to expect that precision from the child witness.

[19] In considering whether to accept B.A.R.’s evidence, the Court must consider

1. How the touching was disclosed (R. v. Dinardo, 2008 SCC 24):

a) B.A.R.’s disclosure to E.D. was spontaneous and occurred the morning after the events described;

b) B.A.R.’s reluctance to talk about the touching with E.D.: “I’m not going to tell you what daddy did to me last night…” and her description of what happened to her as “potty talk”. These words show that B.A.R. recognized that what had happened to her was inappropriate, hence her need to tell her mother, and that it was of a sexual nature;

c) there is no evidence or suggestion that anyone put her up to it or prompted B.A.R. to make allegations against her father or that B.A.R. was telling on her father in response to questions or inquiries of her. I find B.A.R.’s testimony markedly different from the complainant’s evidence in Bellinger, in which the Court concluded that the witness invented evidence that she thought would be acceptable explanations for what she did, saw, or did not do, and was “making up responses”;

d) there is no reason for concern that B.A.R. invented the allegations against her father: The evidence of the accused and of E.D., was that, prior to B.A.R.’s disclosure, they both felt they had a good relationship with each other and with their children and had a happy home and family.

2. The timeliness of the disclosure:

a) different from Bellinger, here, at least one event of sexual touching was disclosed by B.A.R. the morning after it occurred. Further, B.A.R.’s s.715.1 statement was taken only 10 days later;

3. The events as described by B.A.R. were not “unrealistic”:

a) in this case and unlike Bellinger, B.A.R. provided detailed descriptions of the sexual touching; and accurately described a sex toy that was stored in her parent’s bedroom, and her father’s tickling of himself to ejaculation;

4. What was disclosed:

a) B.A.R. gave a vivid and explicit description of a man masturbating. It would strain credulity to conclude that B.A.R. did or could have fabricated this description. Rather, the reasonable and logical conclusion is that B.A.R. described something, which she had, in fact, observed; and

b) B.A.R. gave a very good description of the egg vibrator kept in ED’s bedside drawer. She accurately explained that it had variable speeds, controlled by the user, and that was intended to be used on the vagina. B.A.R.’s evidence that the egg could vibrate at different speeds was compelling evidence that it had been used on her;

c) While B.A.R. was mistaken that the egg had to be plugged in, the photographs of it show that it does have a power cord, attached to a battery. Given her age, it would be reasonable for B.A.R. to have concluded that the cord was a power cord that had to be (and was) plugged into the wall when used. In fact, her mistake or lack of knowledge about that detail could also be seen to corroborate that someone else used it on her. While it might be possible for B.A.R. to have found this sex toy on her own, I cannot and do not conclude that B.A.R. could have independently discovered how and where it was intended to be used. Combined with her knowledge of the egg’s variable speeds, the inescapable conclusion is that the vibrating egg used on her.

5. B.A.R.’s credibility. In assessing B.A.R.’s credibility I consider that:

a) B.A.R. presented as an intelligent child with a good memory: At the age of four she was able to spell her name, give her birthdate; identify and name her five junior kindergarten teachers; give her brother’s age and grade; identify her extended family – grandparents, aunts and uncle; name the characters in a favourite Disney movie; and describe a planned family trip;

b) the most recent event described in her s.715.1 statement occurred less than two weeks before she gave her videotaped statement, at a time when her memory would likely be the most reliable;

c) when asked, B.A.R. expressed no animosity toward her father and there is no evidence or suggestion that any reason exists for B.A.R. to wish to lie about her father;

d) B.A.R. was reluctant to reveal the “tickling” to E.D. and her demeanour when giving evidence at trial showed that she was uncomfortable talking about the “tickling”, which she understood to be inappropriate and “potty talk”. When giving her evidence, B.A.R. sometimes curled up, sucked her thumb, held a blanket or her “soother” stuffed animal – all demonstrating her discomfort with discussing things done to her that she knew were inappropriate;

e) there were a number of inconsistencies in B.A.R.’s evidence but she was consistent on the core events that provide the basis of the criminal charges: that the accused stimulated her vagina with his fingers and that he did so with the vibrating egg. Also, B.A.R.’s was unwavering in her evidence that the accused “tickled” himself until goo came out the end of his penis.

6. B.A.R.’s reliability, and the inconsistencies in B.A.R.’s evidence.

a) Counsel have identified a number of inconsistencies in B.A.R.’s evidence between the videotaped statement, the preliminary inquiry, and at trial. Those inconsistencies include: the sequence of the incidents: whether the egg “tickling” occurred before or after the finger “tickling”; the number of times she was “tickled”; where each incident took place – varying between the couch in the family room or in her parent’s bedroom; whether she was alone with her father when the events occurred, or whether E.D. and brother were also home; whether she saw the accused’s penis while he was tickling her, or when he was in the bathroom; and whether the “goo” that came out of the accused’s penis was white or green.

Analysis

[20] The inconsistencies in B.A.R.’s evidence must be considered in the context of B.A.R.’s age at the time of the events; the passage of time between the date of the “tickling” events, the videotaped statement and the preliminary inquiry and the trial. Most importantly, notwithstanding the inconsistencies in details about place and time, B.A.R. remained consistent in her evidence throughout that the accused tickled her vagina with his hands and with the vibrating egg and that she witnessed him masturbating to ejaculation.

[21] Defence counsel prepared a detailed chart identifying inconsistencies in the evidence given by B.A.R. in her s. 715.1 statement, at the preliminary hearing, and at trial. While those inconsistencies may create a reasonable doubt about the total number of times that the accused digitally stimulated B.A.R.’s vagina, they do not create a reasonable doubt that it occurred at least once.

[22] Courts are to take a common sense approach when dealing with the testimony of young children and should not impose the same exacting standard that is applied to adults. Where, as here, the child is not able “to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it.” (R. v. W. (R.), 1992 CarswellOnt 90, at para 25).

[23] In applying a “common sense approach”, the credibility and reliability of B.A.R. must be assessed in view of the evidence as a whole: It is common sense that, had she not experienced it, B.A.R., then a child of four, would not otherwise have been able to describe the events with vivid accuracy, and using hand gestures, seeing her father masturbate to ejaculation; or how the vibrating egg, located in her parent’s bedroom, operated, and its intended purpose.

[24] One of the reasons for taking a statement pursuant to s. 715.1, is that a young child does not have the same ability to recall as an adult. Such statements are intended to “create a record of what is probably the best recollection of the event that will be of in estimable assistance in ascertaining the truth.” (R. v. F. (C.), 1997 CarswellOnt 4448 (S.C.C.), at paras. 19 and 21). Also, children experience the world differently from adults and details that are important to adults, like time and place, may be missing from their recollection. (R. v. W.(R.)). For those reasons, B.A.R.’s inconsistencies at trial about some of the details of events do not lead this Court to reject her evidence.

[25] B.A.R.’s section 715.1 statement was compelling. It left the Court with no doubt of her truthfulness, and of her ability to accurately observe, recount, and recall the events that were then close in time. Any flaws in her evidence and, in particular, the evidence she gave a year or two years following the events do not “toll so heavily against credibility and reliability as equivalent flaws in the testimony of an adult…” (R. v. C. (H.) 2009 ONCA 56, at para 41).

Evidence of the Accused

[26] The accused denied the allegations against him as voiced by B.A.R. and denied that he had anything to do with the FB Messages. Of course, there is no onus on him to prove his innocence or explain how B.A.R. knows what she does. As in any criminal proceeding in Canada, the accused is presumed to be innocent and the burden of proving guilt rests with the Crown, which must prove the allegations beyond a reasonable doubt.

[27] In this case, the Court must determine credibility and reliability and decide whether the Crown has met its onus. When, as here, the accused has testified, the Court does not undertake a credibility analysis as between the accused and B.A.R. Rather, the Court must decide whether, on the whole of the evidence, the Crown has met its onus and proven the allegations beyond a reasonable doubt.

[28] When, as here, the accused testifies, the Court must apply the R. v. W. (D.) analysis (, [1991] 1 S.C.R. 742).

[29] R. v. W. (D.) requires the Court to determine the issue of credibility as follows:

i. If the Court believes the evidence of the accused that he did not commit the offence, the Court must acquit;

ii. If the Court does not believe the testimony of the accused but is left in reasonable doubt about his guilt by it, the Court must acquit;

iii. Even if the evidence of the accused does not leave the Court with reasonable doubt of his guilt, the Court must ask whether the evidence that is accepted by the Court proves the guilt of the accused beyond a reasonable doubt.

(i) Does the Court believe the evidence of the accused that he did not commit the offence?

[30] The accused denied that he had touched B.A.R.’s vagina with his fingers or while holding the metallic, egg-shaped vibrator. He also denied that he had masturbated in front of B.A.R.

[31] The accused also denied having any knowledge of or involvement in the FB Messages. According to E.D., the accused told her he had no idea how the FB Messages came about and suggested to her that maybe his Facebook account had been hacked.

[32] The accused acknowledged certain evidence that formed part of the narrative and was relevant to the evidence put forward by the Crown to prove the allegations. The accused acknowledged that:

• the egg-shaped vibrator described by B.A.R. was very like the sex toy that he and E.D. used and that E.D. owned and kept in her bedside dresser drawer: it was egg-shaped, and vibrated with variable speeds, controlled by the user;
• to his knowledge, B.A.R. had never seen him and E.D. using the egg toy; or seen him masturbate; seen him with an erection; with “goo” coming out of his penis; or wiping off his penis;
• he had a Facebook account that he accessed regularly in 2015, including January 2015;
• it was his Facebook profile picture in the FB Messages;
• he knew J.T., and K.T. He had met them in 2000 through E.D. and had been in the company of J.T. between five and 10 times between 2000 and 2015;
• when he set up his Facebook account, he included J.T. and K.T. as Facebook “friends”;
• he accessed his Facebook account regularly but had signed up for it in order to have access to “Tinder” and “Bumble”, which are “dating” sites where people connect and can exchange pictures and other messages;
• he did take and keep photographs of his penis on his previous phone and on his current phone in order that he could send photographs of it to others, upon request;

The FB Messages

[33] The accused acknowledged that the FB Messages were properly admitted into evidence but argued that they should be given little or no weight. The accused submitted that the Court should give little weight to the FB Messages on the basis that:

a) the Crown failed to call J.T. as a witness;

b) J.T. was described by her own mother as a “compulsive liar”;

c) the evidence of Detective Constable Kirsten Audet, the Crown witness who explained the Facebook records, was that the accused’s Facebook account could have been hacked by someone who knew his username and password and who could then have posed as the accused in the FB Messages;

d) the Crown did not follow up with J.T.’s Facebook account or obtain a copy of K.T.’s camera; and

e) it was clear that the photos taken by K.T. omitted parts of the Facebook conversation in the FB Messages.

[34] The FB Messages are very problematic for the accused: on their face, they contain sexually explicit communication between the accused and J.T., a friend of the family, then in her early 20’s, known to the accused, and suffering from a variety of cognitive and psychological challenges. However, it is not just that the communication is sexually explicit, it is that the discussion pertains to children, child molestation, and mentions the accused’s daughter, B.A.R.

[35] The FB Messages begin on January 13, 2015 and end on January 17, 2015. Reproduced below are the FB Messages (as written) from and after January 16, 2015 at 8:40 p.m.

B.R. Your juicy cunt pic has been on my mind can you tell lol? Jan 16 at 8:40 pm - Sent from Mobile

J.T. O////O Jan 16 at 8:44 p.m.

B.R. I know if you felt good enough to touch yourself id have more of your pics to j/o to. Jan 16 at 8:51 p.m. ∙ Sent from Mobile

B.R. I wanted to molest you back in the day but thought I’d be taking Advantage Jan 16 at 9:17 p.m. ∙ Sent from Mobile

J.T. I would have let u Jan 16 at 9:19 p.m.

B.R. I know because you’re a good girl. I still felt like letting you cum to me to prent feeling that way. Would you molest your kids to teach them about sex Jan 16 at 9:22 p.m. ∙ Sent from Mobile

B.R. Are you a squirter Jan 16 at 9:43 p.m. ∙ Sent from Mobile

J.T. If I had a son and he wanted to know things yes If he asked I’m twisted v_v And yes I’m a squirted when something makes me feel that good Jan 17 at 1:27 a.m.

B.R. [B.A.R.] likes to get tickled down there. Would you suck his cock and fuck him to teach him January 17 at 9:28 a.m. ∙ Sent from Mobile

J.T. Yes I would Jan 17 at 11:30 a.m.

B.R. Good girl! You need to open a good slut training school Jan 17 at 11:32 a.m. ∙ Sent from Mobile

J.T. ☺ Jan 17 at 11:35 a.m.

B.R. Something to help you feel better ☺ [photograph of a man’s hand holding an erect penis] (the “Photo”)

[36] For the reasons below, the Court rejects the evidence of the accused that he had nothing to do with the FB Messages and concludes that he was the author of the FB Messages from B.R.

a) the accused acknowledged that it was his Facebook profile picture beside the FB Messages from B.R.;

b) E.D. identified that the Photo was of the accused’s penis and that it was taken in their former bedroom. E.D. specifically identified a laundry basket with distinctive writing on it and her foam roller, that can be seen in the background of the photo;

c) the accused asserted in his examination-in-chief that he was “not sure” that the Photo was of his hand and penis. On cross-examination he stated that “it could be”; but that there are a lot of penises on the Internet and that it could be one that looks like his. The accused then stated that “I guess you could say it looks like mine” and finally agreed that it did look like his penis. Despite his admission, the accused continued to dispute E.D.’s evidence that the Photo had been taken in the couple’s former bedroom. He specifically denied recognizing the laundry hamper and the foam roller that E.D. testified had been in their bedroom. While the accused acknowledged that the couple did use laundry hampers and that E.D. did have a foam roller, he did not change his testimony that neither their laundry hamper nor her foam roller looked like those in the Photo.

[37] The accused’s evidence concerning whose penis was in the Photo and where it was taken is simply not credible. His admission that the penis in the Photo looked like his, coupled with the evidence of E.D. that she recognized their former bedroom in the Photo, leaves the Court with no doubt that the Photo is, in fact, of the accused’s penis as taken in the couple’s former bedroom. The accused’s denial of what must have been obvious to him seriously undermines his credibility regarding his involvement in the FB Messages.

[38] In closing argument, defence counsel acknowledged that his client’s denial that it was his penis in the Photo was “problematic” and asked the Court to consider his denial in context: that the Photo was viewed on a large screen in the courtroom and that the accused’s mother was present in court. The serious nature of the charges, and the evidence of the accused that he routinely photographs his penis so that he can send those photographs to others, leads the Court to conclude that the reason that the accused denied that the Photo was of him was not because he was self-conscious or embarrassed, but because he recognized that the Photo attached to the FB Messages was “problematic” to his denial that he was the author of the FB Messages sent by B.R.

[39] The content of the FB Messages is another reason to reject the accused’s evidence that he did not author the FB Messages sent by B.R. The use of the word “tickle” is the same word used by B.A.R. to describe the accused’s sexual touching of her. The FB Messages were exchanged in January 2015 but it was not until July 13, 2015 that B.A.R. disclosed to any other adult that she had been “tickled” in the vagina by the accused. B.A.R.’s evidence was that she told no one other than E.D. that her father had “tickled” her. In cross-examination, B.A.R. specifically denied that she had told K.T., or J.T., or any friends, about the “tickling”.

[40] To conclude that someone other than the accused had sent the FB Messages from B.R., the Court would have to accept that someone had: hacked the accused’s Facebook account or uncovered his username and password; known that he had a daughter named B.A.R.; known that the accused and/or B.A.R. used the word “tickle” to describe sexual touching; known about J.T. and her willingness to engage in explicit sexual messaging; and known that those messages would not be discovered by the accused, despite that he regularly accessed his Facebook account in the relevant time-period. Such a conclusion would strain credulity.

[41] Further, B.R.’s statement that: “I wanted to molest you back in the day but thought I’d be taking Advantage” suggests that the author of that message had known J.T. when she was younger. The evidence of the accused was that he had known J.T. since 2000, when she was a young girl. Again, the content of that particular message further supports the obvious conclusion that the accused was the B.R. who sent the FB Messages.

[42] There are still other reasons to reject the accused’s denial that he was the B.R. in the FB Messages. On the issue of the Facebook access, the accused’s evidence was not consistent. He asserted that he created the Facebook account for the sole purpose of allowing him access to the Tinder account: that he could not have a Tinder account unless he had a Facebook account and profile. Yet, despite his claim that access to Tinder was the sole purpose for creating a Facebook account, the accused also acknowledged that when he started his Facebook account he “reached out to the people” in his circles - friends and family - which included both J.T. and K.T., whom he included as Facebook “friends”.

[43] The accused also stated that when he accessed Tinder, he did so solely through the Tinder “App” on his cellphone. However, he also admitted that he used his Facebook account separately, which he accessed via a browser. Based on his evidence, I conclude that the accused accessed his Facebook account separately from his Tinder account. I do not accept the accused’s evidence that he did not communicate with J.T. using Facebook messages.

[44] The Crown’s failure to call J.T. does not affect the weight given to the FB Messages: it was reasonable for her not to have been called as a witness given her significant cognitive impairment and mental health issues. Whether J.T. is a “compulsive liar” is irrelevant: whether she was truthful in what she said to the accused has no bearing on what he said to her. It must be noted that it was the accused who volunteered that he had wanted to “molest” J.T. “back in the day” and that it was the accused who then initiated the discussion regarding molesting one’s own children as a way “to teach them about sex.”

[45] The accused admitted that he regularly used his Facebook in January 2015 and that J.T. and K.T. were his Facebook friends.

The Facebook IP Records

[46] Through a court order, the Crown obtained the accused’s Facebook IP records from Facebook for the period of January 1 to July 20, 2015 (the “IP Records”). The Crown called Det. Constable Kirsten Audet to assist in understanding the IP Records. Det. Constable Audet was not called as an expert but as someone with knowledge of internet investigation. Det. Constable Audet explained that the IP Records provided a record of each time someone logged onto the accused’s Facebook account and stated that, unless the user logged off the accused’s Facebook account, no IP address would be generated or recorded. Further, the time shown on the IP Records is not daylight time, and that you must subtract four hours from the shown time.

[47] Det. Constable Audet explained that so long as the accused remained logged onto his Facebook account, there would be no IP address generated or recorded. Therefore, the fact that that the IP Records do not show an IP address recorded between January 13, 2015 and up to January 17, 2015 at 21:55:30 UTC is consistent with the accused not having logged off his Facebook account until sometime prior to January 17, 2015 at 21:55:30 UTC.

[48] Det. Constable Audet explained that for someone to use the accused’s Facebook profile, and his Facebook account, that person would have needed both the accused’s Facebook username and password. Further, that Facebook alerts its customers if someone has tried unsuccessfully to access the Facebook account using the wrong login. She stated also that Facebook customers can check their own Facebook history to see when and where they logged onto the account. Therefore, if a Facebook user was concerned that their account was hacked, they could check the account themselves. There is no evidence that the accused shared his username or password with anyone or that he had actual knowledge that his Facebook account had been hacked.

[49] The IP records that show that the accused did not log onto his Facebook account during the time of the FB Messages. While perhaps not impossible, it is highly implausible that someone could have used the accused’s Facebook account to send the FB Messages without being discovered by the accused.

[50] Less plausible still, would be a theory that someone were trying to incriminate the accused by posing as him and sending FB Messages from B.R. that stated that he had tickled B.A.R. “down there” without disclosing those FB Messages; it would make little sense for someone trying to so incriminate B.R. to then keep the FB Messages private from January 2015 to July 2015 to be disclosed to E.D. only after B.A.R. revealed the “tickling”.

[51] To add to the mountain of evidence that conflicts with the accused’s denial that he authored the FB Messages from B.R. is the evidence of K.T. K.T. stated that when she discovered the FB Messages her only concern was for her daughter, J.T. Her evidence is supported by her actions: she did not tell E.D. of the FB Messages but only contacted the accused in order to discourage that type of contact with J.T. Had K.T. wanted to incriminate the accused, she could have disclosed the FB Messages to E.D. or to the police, given what was, on its face, an admission of sexual touching of B.A.R., who K.T. knew to be a young child.

[52] The evidence is uncontradicted that the FB Messages were not disclosed by K.T. to E.D. or anyone other than the accused and J.T.’s father, until E.D. contacted K.T. following B.A.R.’s disclosure of the “tickling”.

[53] For the above reasons, the Court rejects the accused’s denial that he was the author of B.R.’s FB Messages.

[54] The accused’s denial of that damning piece of evidence entirely undermines his credibility on the central issues, namely, his denial that he touched B.A.R.’s vagina for a sexual purpose with his fingers and with the egg-shaped vibrator. Moreover, the content of the FB Messages – and in particular the accused’s statement that B.A.R. likes to be “tickled down there” is, as asserted by the Crown, virtually a confession.

[55] Taken as a whole, the Court does not believe the accused’s denial that he committed the offences with which he has been charged.

(ii) Despite rejecting the evidence of the Accused, is the Court left in Reasonable Doubt about the Guilt of the Accused?

[56] The defence evidence did not raise a reasonable doubt about the guilt of the accused.

(iii) On the whole of the evidence that the Court accepts, has the Crown proven the accused’s guilt beyond a reasonable doubt?

[57] The Court recognizes that it is not enough to reject the evidence of the accused. The Court must still consider whether the Crown has proven its case.

[58] The evidence of B.A.R. is compelling: she gave a vivid and detailed description of her father putting his hand underneath her pyjama bottoms to tickle her private parts and his use on her of the egg vibrator to “tickle” her vagina. Included with B.A.R.’s evidence of the sexual touching was her description of B.R. masturbating until ejaculation and then wiping off the “goo”. Her detailed account left no doubt as to her memory of this and of the core events and of her ability to recount them. B.A.R. described these events to have taken place in her home, either in the family playroom, where her father was known to sleep, and or in her parent’s bedroom where the egg vibrator was known to have been stored.

[59] Notwithstanding the frailties in her recollection of certain surrounding details, B.A.R.’s evidence remained clear and unshaken that the core events did take place, leaving no doubt in the Court’s mind of the reliability of B.A.R.’s evidence on the core details of these events. B.A.R. was both a credible and reliable witness on the events that give rise to the charges against the accused.

[60] While corroboration of the evidence of a child is not required, the FB Messages do, in fact corroborate B.A.R.’s evidence. The FB Messages go further than that. The Crown called the FB Messages “a confession” by the accused. The Court agrees. The parts of the FB Messages attributed to the accused reveal him to be someone who freely and explicitly discussed his sexual touching of his own child and his general approval of parental sexual touching of children.

Disposition

[61] Based on the evidence that I accept, I am satisfied beyond a reasonable doubt that:

i) on at least one occasion, the accused digitally stimulated B.A.R.’s vagina; and

ii) on at least one occasion the accused used the egg-shaped vibrator to stimulate B.A.R.’s vagina;

[62] For the above reasons, the Court finds the accused guilty of all the charges laid against him.

L. Sheard, J.

Released: July 5, 2017

COURT FILE NO.: 15-SA5091 DATE: 2017/07/05 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN – and – B.R. Accused REASONS FOR DECISION L. Sheard J. Released: July 5, 2017