R. v. C.S., 2017 ONSC 7761

COURT FILE NOS.: CR-16-145 and CR-16-149

DATE: 20170911

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

C.S.

Defendant

J. Dafoe, for the Crown

G. Pickard, for the Defendant

HEARD: July 24, 25, 26, 27, 31, August 1 and 2, 2017

PUBLICATION RESTRICTION NOTICE

Pursuant to subsection 486.4 of the Criminal Code, there is a ban on

disclosing the name of any person involved in the proceedings as a party or

a witness or any information likely to identify any such person.

Reasons for decision

DE SA J.:

Background

[1] The accused is charged with 10 counts on the Indictment. Counts 1-3 relate to allegations involving H.L. It is alleged that between the 1st day of September 2014 and the 30th day of June, 2015, the accused touched H.L. for a sexual purpose and invited H.L. to touch herself. H.L. was only eleven years old at the time.

[2] Counts 6, 7, 8 and 9 are allegations involving another complainant, L.R. It is alleged that between February 24, 2015, and March 4, 2015, the accused communicated with L.R. via Facebook with a view to having her take and send sexually explicit pictures of herself to the accused. L.R. was only fourteen years old at the time.

[3] Counts 5 and 10 allege that the accused breached his recognizance and probation. If any of the substantive allegations are made out, a conviction will follow on Counts 5 and 10 as they relate to keeping the peace.

[4] Finally, Count 4 relates to an allegation that between November 1, 2015 and November 30, 2015, the accused breached his recognizance by being in the company of H.L. (someone under the age of 16) while not in the immediate presence of a surety.

The accused’s trial commenced on July 24, 2017 and carried on through to August 2, 2017. On August 2, 2017, I reserved my decision. Outlined below are the reasons for my decision.

The Evidence

Evidence of H.L.

[5] H.L. is currently 14 years old. At the time of the alleged offences H.L. was 11.

[6] H.L. testified that when she first met the accused, she was in Grade 6 and living in Barrie with her mother, R.G., and her little sister R.L. Shortly after her mother met the accused, they all moved to an address in Midland on Ottawa Street. H.L. recalled moving to Midland just before her 11th birthday. She recalled moving to the house around Halloween of 2013.

[7] A.S., the accused’s sister, and her family moved in with them at the house in Midland for a short time. They eventually moved out to a house nearby. While H.L. and her sister initially slept upstairs in the attic when they moved in, after A.S. moved out, H.L. moved her bedroom to the basement.

[8] When they first moved to Midland, H.L.’s mother got a job at Tim Horton’s. Sometime later, her mother started working at a group home. Her mother would work full time and take on extra shifts at the group home, but never worked over night. The accused was not working as regularly after her mother got the job at the group home, and would be around the house more often.

[9] H.L. testified that her mother and the accused had a good relationship at the beginning. After some time, however, her mother’s relationship with the accused got worse. According to H.L., they started arguing routinely. At some point, the accused began to hit her mother. H.L. recalled seeing her mother with a bruise on her cheek. When H.L. asked what happened, the accused said it came from a dirt bike accident. H.L. did not believe him.

The Allegations of Sexual Abuse

[10] H.L. described the first incident of sexual abuse involving the accused. She was still in grade 6. She could not remember the exact time of year, but she recalled the weather being wet and depressing. It was either the spring or fall of 2014. H.L had a splinter in her foot. On a car ride home, she mentioned the splinter to her mother. Her mother said she would look at it when they got home. When they did get home her mother had to go to work, so the accused offered to take the splinter out.

[11] The accused and H.L. were alone. H.L.’s little sister was not around, and must have been at A.S.’s house. The accused took H.L. to the bathroom downstairs and asked H.L. to put her foot in the bathtub to soak it. A short time later, the accused asked H.L. to get into the bathtub and take her clothes off to feel more comfortable. H.L. recalls thinking this was strange. She had started out with her foot in the tub, and then ended up with her full body in the tub with only her leg hanging out.

[12] As the accused was looking at her foot, he started to talk to her about how girls would deal with stress. He told her that girls could relieve stress by inserting a finger into their vagina. He told her it was the best way to relieve stress. He inserted his finger into her vagina to show her. He inserted his finger in her vagina and moved it in and out. He had his finger inserted into her vagina for 10-20 minutes. He told her that she would have to learn how to do this for herself.

[13] At that time, H.L. did not tell anyone about what happened. H.L. was scared if she said anything, the accused would get mad. Not telling her mother about it bothered her as she would tell her mom everything. But she kept this to herself as she did not want the accused to be angry with her.

[14] After the bathtub incident, the sexual touching started happening more regularly. It would happen at least once a week. He would always ask her to do the same thing. He would have her insert her own finger into her vagina or he would do it to her. She would usually keep her shirt on, but he would usually have her remove the rest of her clothes. He would only do it when they were alone. The incidents sometimes happened in his bedroom, sometimes on the couch, and sometimes in her room. The touching happened regularly until the spring of 2015.

[15] In the spring of 2015 was the final time it happened. She was again alone with the accused. This time, like on various other occasions, he asked her to insert her finger into her vagina and watched. It was on this occasion that she told the accused that she did not like doing it, and she did not feel comfortable not telling her mother about it. She recalls this incident clearly as she remembers feeling like she finally stood up for herself. She recalls looking at carpet when she told him. The carpet was new at the time. In response, the accused just told her that she could just do it for herself from now on.

[16] Crown Counsel showed H.L. portions of the statement she gave to the Children’s Aid Society (CAS) in December 2015. H.L. acknowledged that this statement was closer in time to the events, and was a true statement. In that statement, H.L. told CAS that the accused had used an object to touch her, something that looked like the handle of a razor that vibrated. She also told CAS that he would sometimes put liquid on his fingers before touching her. H.L. also said in her statement to the CAS that the accused would sometimes check her for bruises on her bum and legs before engaging in the sexual touching. H.L. confirmed this statement was accurate and these events occurred. When asked why she did not remember the details in her initial testimony, she said she did not want to remember.

[17] In cross-examination, defence counsel asked why H.L. was not able to provide more detail about the other incidents, other than the first and last incidents. H.L. explained that this was something that was happening very regularly in the same way over a long period of time. Nothing stood out about the incidents to her. In cross-examination, it was pointed out that she said in her statement to the CAS that he could sometimes touch her as much as four times a week. Again, she agreed that this was accurate.

[18] In cross-examination, she was asked if the accused was abusing her, why would she go back home? She could have easily gone over to her Aunt A.S.’s house with her little sister. H.L. testified that she could not just start going to A.S.’s every day. She also thought the accused would get mad at her. In any event, she did not want to always go to A.S.’s house. H.L. and J. (A.S.’s older daughter) would argue frequently. She wanted to be alone. She couldn’t do that at A.S.’s house. There would always be someone around. At home, she could just go in her room and lock the door.

[19] She found the sexual incidents very stressful as she had no control over the situation. She felt discomfort and she was scared. She didn’t want him to yell at her. She recalls feeling relieved after she told him to stop. She didn’t hate the accused. He was her stepfather. She just did not want him to do it. She did not want him out of her life. He was still making her mom happy, or at least she thought so at the time.

Telling her mom about the Abuse

[20] After H.L. told the accused to stop the sexual touching in the Spring of 2015, she noticed that the accused started to be more strict. He would complain more about the messes at home. He would always yell at her about her chores. He was angry more often. H.L.’s opinion of him started to change. She did not like him as much. H.L. started seeing the accused less as a stepfather, and more as the guy who gave her chores. H.L. also noticed that the accused started arguing with her mother about H.L. more often. Her mom would usually stand up for her. Her mother would tell the accused to let her be a kid.

[21] Shortly after her 13th birthday, she and her mother went to stay with her aunt S. (friend of her mother) for the weekend. It was at S.’s house that she told her mother about the sexual abuse. She never got into specifics, but she told her mother about the touching. She told her mother she did not want to go back. She got the courage to tell her mom because she did not want to return to that environment. The accused was not being nice. He was always angry with her, and giving her more chores. The relationship between the accused and her mother had also become bad. They were fighting more often. Everything was just building up. She was so much happier being out of that environment. She didn’t want to go back to Midland.

[22] In cross-examination, counsel pointed out that when she first told her mother about the alleged abuse, she had mentioned something about the accused putting his finger or thumb in her bum. She testified that she had initially described it to her mother by saying something like “you know when you put your finger up your bum”, but explained that “it was the other end”. She testified that she initially explained it that way because she felt very uncomfortable saying “vagina” to her mother. It was a very awkward subject to discuss.

[23] She never mentioned what was going on to her father. She did not want to get her father involved. That was the one stable part of her life. She also did not want her father to see her differently. She could just be a kid at her father’s house. She did not want that to change.

[24] After she told the mother, they never went back to Midland. Her mother called the police and reported the incident. She went to CAS and gave a statement to Deana Stevens on December 2, 2015.

[25] Since then, she has developed anxiety disorder and clinical depression. She testified that she just wants all of this to be over.

Knowledge of other Allegations involving L.R.

[26] H.L. was asked if she recalled the accused being arrested at the house. H.L. remembered the police had come to the house and the accused was taken away by the police. She did not know why the accused was arrested, but she assumed that it had something to do with the computers. The police took both the computers when they arrested him. She was never told why he was arrested.

[27] When asked whether she knew L.R., or S.R., she said she did not.

[28] In cross-examination, she was asked if she ever read the disclosure which related to the accused’s charges involving L.R. H.L testified that she did not.

Evidence of R.G.

[29] R.G. is the mother of H.L. and R.L. She divorced H.L.’s father, H., in 2012. She was living in Barrie at the time. In September 2012 she started a relationship with the accused. They met at a club. Eventually he moved in with her in Barrie. They had a romantic relationship from the beginning. They eventually got married in November of 2015.

[30] The accused lived with R.G. in Barrie for about a year before they moved to the house in Midland around Halloween of 2013. She moved into the house on Ottawa Street with the accused, H.L. and R.L. She would sleep on the main floor with the accused. The girls originally slept in the attic. However, when A.S. moved out, H.L. moved to a bedroom in the basement.

[31] R.G.’s relationship with the accused was toxic. C.S. would always blame her for things when something went wrong. He was harsh on her. He would talk down to her. He would tell R.G. she was “pathetic” and a “joke”. He told her that no one else would want to be with her. He would be both verbally and physically abusive. They were fighting even when they were in Barrie. The kids weren’t present during the fighting. They tried to keep things normal around the children.

[32] Though the accused was mean to R.G., he seemed good with the kids. He took on a parental role. He would play with them. R.L., her younger daughter, would call him daddy. H.L. would always call him C.

[33] When they moved to Midland, she was originally working at Tim Horton’s. Shortly after moving to Midland, she got a job at Community Living (group home). She would work shifts. Usually the day shift, between 7:00 a.m. - 3:00 p.m., 8:00 a.m. - 4:00 p.m. or 9:00 a.m. – 2:00 p.m. She would also routinely work the evening shift from 3:00 p.m. to 8:00 p.m., 9:00 p.m. or 10:00 p.m. At Community Living, she sometimes would be called in to work for as much as 100 hours in a week.

[34] While she worked at the group home, she was pretty much supporting the accused. He was still receiving Employment Insurance (EI). His work was seasonal, and he’d be home quite often. The accused would be with the kids alone. While R.L. would like to be at A.S.’s house with H. (A.S.’s younger daughter), H.L. preferred to be home. She didn’t want to be at A.S.’s house. R.G. did not know why this was the case. But she did not force her to go.

[35] R.G. acknowledged that she did have alcohol abuse issues. According to R.G., she was self-medicating. She felt worthless. She didn’t drink at work or while she was working. She often had days off in the middle of the week. When she was off, she would drink. And the accused would bug her about it. She was frequently intoxicated. She was trying to forget her issues. R.G. would usually drink when the kids were at their father’s house. She felt pressure at work. She would often get home late and have to start up again early in the morning. Her work was very stressful. She was drinking to cope.

[36] Police had attended their house in Midland on a few occasions over the fighting. The neighbours would call on occasion. She acknowledged that the accused called the police on occasion because of her drinking.

Facebook Account and the Allegations

[37] R.G. and the accused had a Facebook account together. R.G. deactivated her own personal account because the accused didn’t trust her. They would both use the joint account. He used to have his own account as well, but he said he wouldn’t use it because he forgot the password. The accused would spend a lot of time on the computer and he was very discreet about it.

[38] When the accused was arrested in relation to child pornography and internet luring, she tried to keep it away from the kids. She never told them about the allegations. The accused and R.G. would discuss it when the kids weren’t around. The accused told her that his ex (S.R.) was trying to frame him. R.G. organized his bail. He was released a day or two after his arrest.

[39] She heard the allegations and she saw the pictures. S.R. sent the pictures to A.S., and A.S. sent them on to the accused. He then showed the pictures to R.G. R.G. remembered seeing a female’s buttocks in the pictures. The accused told R.G. that it was actually S.R. in the pictures. R.G. convinced the accused to go give a statement to police about it in May 2015. She wanted him to take a proactive approach and clear his name. Some months later, the police came to the house and seized the computers. R.G. believed that S.R. was framing him because that’s what the accused told her. She and A.S. talked about it. She believed the accused. She and the accused even discussed his defence. She paid a lawyer to defend him. She believed the accused until H.L. told her about the sexual abuse.

H.L. Tells R.G. about the Incident

[40] H.L. told R.G. about the abuse when they went to R.G.’s friend’s house. R.G. was thinking of leaving the accused at the time. She hadn’t told the girls about it. H.L. then told R.G. about the sexual abuse. She remembers how H.L. broke down. She cried a lot. R.G. believed her and called the police. They never went back to Midland.

[41] Before that, H.L. never said bad things about the accused. H.L. wanted R.G. to be happy. After she gave the statement to CAS, she saw her daughter slowly come apart. She separated herself from everyone. She would stay in her room. She said she wanted to drown herself and would cut herself. She moved away from everyone.

Evidence of S.R.

S.R.’s Relationship with Accused

[42] S.R. was in a relationship with C.S. between October 2011 and October 2012. She lived in Mississauga and then moved to Brampton. Her daughter N.R. lived with her at the time. Her other daughter L.R. lived with her grandmother, G.

[43] Both N.R. and L.R. would call the accused “Dad”. The girls didn’t have a father figure. D., their father, left after 6 years. They were both very small at the time. She saw the accused as her angel. He saved her from an abusive relationship. They got engaged after only a few months.

[44] S.R.’s relationship with C.S. did not last long, and did not end well. The accused had started his relationship with R.G. before he and S.R. had separated. She talked to A.S. about the accused up until Christmas of 2012. It took her some time to get over him and she would discuss this with A.S. She didn’t go out with anyone for a number of months after the break up. After a few months, however, she got over him. She didn’t hold any resentment against the accused. She didn’t think of the accused again for two years until she saw the Facebook messages that were sent to her daughter L.R.

Facebook and Phone

[45] When S.R. was with the accused, they each had their own Facebook account. She never shared an account with the accused. She could access his Facebook account when it was open on her phone, but she did not have his password. The accused took over her phone during their relationship. When they separated, he kept it. The cellphone was in collections when they broke up. The accused had run up the bill so she let him keep it.

[46] After the accused broke up with S.R., he opened up a joint Facebook account with R.G. She showed her friends pictures of R.G. that the accused posted on their page.

S.R.’s Discovery of the Facebook Messages

[47] L.R. was staying with A.W., her brother’s baby mother in Barrie in March, 2015 (L.R.’s Aunt). When S.R. spoke with A.W., A.W. told her that L.R. was going to visit C.S. after school. A.W. told S.R. that L.R. and C.S. had been talking on Facebook. This confused S.R.

[48] S.R. could access L.R.’s Facebook account on her phone. S.R. would access L.R.’s account every now and then to check on her to see what she was doing. After speaking with A.W., she checked L.R.’s Facebook account and read the Facebook messages with “C.S.” and saw the pictures. She responded to the C.S. account from L.R.’s account telling “C.” that she was going to take these messages to the police. She took screenshots of the texts and then sent them to the accused’s Aunt (B.), his cousin (L.) and his sister (A.S.). She doesn’t recall reading all the messages. She read enough of them to know what they were about. She specifically recalls reading the messages dealing with taking a picture with L.R.’s tampon string moved out of the way.

[49] After reading the first few messages, she immediately went and picked up L.R. in Barrie and went straight to the police station in Mississauga. The police in Mississauga sent her back to the police station in Barrie. By the time she got to the police station in Barrie, the messages sent from C.S.’s account had been deleted. She could see L.R.’s messages, but could no longer read the messages sent from the C.S. account. In retrospect, S.R. realized that she shouldn’t have been so quick to reply to the texts or to send the screenshots to the accused’s family.

The Texts and Photos on Facebook

[50] Exhibits 3(a) and 3(b) contain the Facebook communications and have been tendered by the Crown and are admitted by defence as evidence on the trial. There is no issue taken with respect to the accuracy of the dates, times and content of the messages. The Facebook messages reveal communications between the Facebook account of the accused and L.R.

[51] There is no issue that the Facebook account used to send the messages to L.R. is the account of the accused. The Facebook account was registered to the accused’s email, is an account he opened himself and was in the name of “C.S.”. While the messages were sent from the accused’s account (the “C.S. Account”), the defence takes the position that it was not the accused sending the text messages. At the relevant time, the defence takes the position that the accused did not use or even have access to this account.

[52] From a review of the Facebook messages, it is evident that the person communicating with L.R. was holding themselves out to be the accused. The first message was sent on February 24, 2015 at 2:06 p.m. from the “C.S. Account” with an initial introduction:

Hey you. How are things long time no talk! How is things with you Nd your little sis? You keeping out of trouble?

[53] The messages with L.R. continued on March 3, 2015. On March 3, 2015, a number of messages were sent from the “C.S. Account” inviting L.R. to send nude pictures of herself. On March 3, 2015, at 10:03 a.m., L.R. responded by sending various nude pictures of herself to the person she believed to be accused. While the pictures themselves were not filed, the parties submitted an agreed statement of facts regarding the description of the various images, and both parties acknowledge that given the age of L.R. the images would constitute child pornography. The photos that were sent can be described as follows:

Image 1

An image sent on March 3, 2015 at 10:03 a.m. depicts L.R. kneeling on a bed, wearing a sweater that is fully unzipped and open at the front which shows her exposed breasts. Her face can’t be seen but her hair braids are in the image. The focus of the image is her breasts.

Image 2

An image sent on March 3, 2015 at 10:12 a.m. depicts L.R. in a bathroom wearing pants and a shirt but the shirt is fully open at the front and her breasts are exposed. Her face can’t be seen but her hair braids are captured. Her hands are holding each breast and pushing them together. The focus of the image is her breasts.

Image 3

An image sent on March 3, 2015 at 10:13 a.m. depicts L.R. on a bed, doing a “half leg split”. She has high knee socks on, her buttock is fully exposed and she appears to be wearing thong underwear. A portion of her upper body is visible and she is wearing a jacket or sweater. The focus of the photograph is of her exposed buttocks.

Image 4

The image sent on March 3, 2015 at 10:14 a.m. depicts L.R. standing against a bathroom wall. Her pants are pulled down, she appears to be wearing thong underwear and only the lower half of her body is visible. Her buttock is exposed. The focus of the image is on her exposed buttock. This image was resent on March 3rd, 2015 at 5:04 p.m.

Image 5

The image sent on March 3, 2015 at 10:18 a.m. depicts L.R. in a bath tub that is filled with water. She is completely naked and the upper half of her body is in the photograph. Her face is partially visible and she is holding her left hand to her mouth area with two fingers on her lips. She is taking the picture with her right hand and so her right arm is only partially visible. Her breasts are fully exposed and being pushed together with her arms. The focus of the image is on her exposed breasts.

Image 6

The image sent on March 3, 2015 at 10:18 depicts L.R.’s breast area. She is wearing a shirt that is open at the front, she has a bra on and is pushing her breasts together with her hands on each breast. Her face is not visible but her braids are in the image. She is in a washroom. The focus of the image is on her breast area.

[54] On March 3, 2015, a message was sent from C.S.’s Account to L.R. at 10:17 a.m. asking her if she had more nude pictures of herself that she could send. Specifically, she was asked, at 10:18 a.m. whether she had pictures with a dildo or her hand. Between 10:23 a.m. and 10:24 a.m., messages were sent from C.S.’s Account asking L.R. to take a picture of herself with her finger, not a dildo. In the context of the conversation, this was evidently an invitation to L.R to take a picture of her finger touching or inserted into her vagina. L.R. responded on March 3, 2015 at 10:24 a.m. that she could not as she was on her period.

[55] On March 3, 2015 at 10:54 a.m., a message was sent from C.S.’s Account to L.R. stating: “Just remember delete our convo don’t bring my name up and we can hang and get Timmy’s anytime I can help you with stuff you need help with when ever.”

[56] On March 3, 2015 between 4:48 p.m. and 4:52 p.m., messages were sent from the C.S. Account to L.R. asking her to make a nude video and send it. L.R. indicated that her laptop would not let her send a video.

[57] On March 3, 2015 at 5:00 p.m., a message was sent from the C.S. Account asking L.R. to send more pictures. L.R. responded at 5:03 p.m. by sending the same picture she had sent earlier on in the morning which showed her buttock.

[58] On March 3, 2015 at 5:12 p.m., a message was sent from the C.S. Account asking L.R. to take a new picture, but of her vagina instead of her buttocks. L.R. responded at 5:13 p.m. that if she took her tampon out, she would have to get a new one. A message was sent from the C.S. Account at 5:13 p.m. telling L.R. just to move the string out of the way and not take the tampon out. At 5:24 p.m., a message was sent from the C.S. Account again encouraging L.R. to take the picture.

[59] On March 3, 2015 at 5:55 p.m., a message was sent from the C.S. Account encouraging L.R. to take a hot bath to relax. Similar messages were sent later on in the day encouraging L.R. to get in the tub. At around 9:00 p.m., messages were sent from the C.S. Account encouraging L.R. to take a bath, and asking her to send a “bath pic”.

[60] On March 4, 2015, at 1:00 p.m. a message was sent from L.R.’s account to the C.S. Account. The message stated: “C. I’m taking this message to the police I mother fucker!!!!!!This I S.R. by the way.”

Evidence of L.R.

[61] When L.R first met the accused, he was already engaged to her mom. L.R. was living with her grandmother at the time. L.R. was at her mother’s house every other weekend so she would see the accused whenever she was there. She would call him dad. L.R.’s little sister, N.R., was living with the accused and her mom at the time. The accused would call N.R., “Smiley”. Her mother’s relationship with the accused was very up and down. They were close at some points and not as close at others.

[62] In February 2015, L.R. moved from her grandmother’s house to her Aunt A.W.’s house in Barrie. A.W. lived with her boyfriend and had two children. She remained in Aunt A.W.’s house for school. She liked living with her Aunt A.W.

[63] When L.R. lived with A.W., she was using the Facebook account with the name L.B. Her mother knew she had this account. The accused was not a Facebook friend. She had unfriended the accused when he broke up with her mother. She hadn’t talked to him for two or three years when she started receiving the text messages in February of 2015.

[64] L.R. reviewed exhibit 3(a) and confirmed those were her communications with “C.”. The pictures she sent of herself were photos that she had taken some time before. She never took any new pictures at his request. Initially, when he was speaking with her, she thought he was being a concerned parent. She now thinks he wanted to do something sexual with her. She only started to think it was weird when he started asking her for pictures. When she sent the first naked picture of herself to “C.”, she sent it to him without thinking. After that, she felt like she had to keep sending him more or he would tell her mom.

[65] She told her Aunt A.W. that she was messaging “C.”, and that he wanted to meet with her. She told A.W. that she was going to meet “C.” at the Tim Horton’s. She was hoping A.W. would tell her mother. She had become uncomfortable with the whole situation.

[66] She remembers her mother coming to pick her up in Barrie to go to the police station. She remembers that C.S.’ messages were all deleted by the time they got to the police station in Barrie.

[67] When asked, L.R. testified that she did not know H.L. or R.G.

Evidence of Mike Drury

[68] A Section 487 Search Warrant for luring, making child pornography and invitation to sexual touching was executed on May 21, 2015. Four devices were seized belonging to C.S. on May 21, 2015.

a) A black with silver trim Generic Computer Tower with Windows 7 Home Premium installed. The computer system had a 500 GB SATA hard drive installed and a Grand Theft Auto 4 Game Disc in the DVD tray;

b) An HP Pavilion 061 Computer Tower with Windows 7 Premium installed. The computer system had a 250 GB SATA hard drive installed and a Hello Kitty Game Disc in the DVD tray;

c) An Apple Iphone 4s cellular phone;

d) A Sony ST26a Xperia J cellular phone.

[69] Investigations conducted by police confirmed that the details of the C.S. Facebook Account used to send the messages to L.R. contained in Exhibit 3(a) and 3(b) are:

a) Facebook ID: #[redacted]

b) Registered to: c.s.96@facebook.com

c) Display Name: C.S.

d) Email associated to the account: c_s_30@hotmail.com

[70] The Apple Iphone 4s contained a Virgin Mobile branded LTE SIM card. There is an ICloud account on the phone and it is registered to email address: c_s_30@hotmail.com.

[71] Mike Drury was called by the Crown as a witness. He is a Computer Forensic Investigator/Analyst for the Ontario Provincial Police (OPP). He provided a detailed forensic analysis and reporting on the listed exhibits.

[72] Searches were conducted on the various items seized with the application of various search tools and queries. Keywords used to conduct searches on the various devices included the account number [redacted], c.s.96@facebook.com, L., R., B., and L.

[73] A manual search of the HP Pavilion 061 Computer Tower indicated that the C.S. Facebook account was accessed and/or viewed using this device during the time period of the alleged offences as indicated in the Chart produced at page 5 of Mike Drury’s report. I have reproduced this Chart below:

Visit.ID

URL or Visited Site

Title

Access Date/Time

Duration of Visit (Mins)

9726

https://www.facebook.com/c.s.96

C.S.

2015-02-24 12:43

3.57 mins

9807

https://www.facebook.com/c.s.96

C.S.

2015-02-27 17:15

4.31 mins

9842

https://www.facebook.com/c.s.96

C.S.

2015-03-04 16:11

5.05 mins

9848

https://www.facebook.com/c.s.96

C.S.

2015-03-04 16:16

3.91 mins

[74] No evidence of any actual communications between the accused and the victim were recovered from the search. In cross-examination, Mike Drury acknowledged that certain actions during gaming could register as a Facebook access. For example, in posting one’s score to Facebook, such postings could register on the computer. Again, the information retrieved from the computers and phones could not determine the specific nature of the access made.

[75] A search of the Apple Iphone 4s showed results associated with Facebook ID: # [redacted] which was the active Facebook Account: R.G. CS. There was no web history data prior to April 20, 2015 on this device. No evidence of prior web history could be found.

[76] Evidence related to Facebook ID: [redacted] registered to c.s.96@facebook.com was used on the Sony Experia Cell Phone, but the account was deleted. Analysis showed that there were 105 chat threads associated to the Facebook ID: [redacted] last dating back to 2013. Again, Officer Drury could not find any evidence of the Facebook chat messages and/or communication in question between the victim and accused on this device.

Evidence of C.S.

Relationship with S.R.

[77] The accused is 34 years old. The accused testified that he was in a romantic relationship with S.R. between 2011 and 2012. When they started dating, S.R. lived in Mississauga and the accused was living in Midland. The accused moved in with S.R. in Mississauga and a short time later they moved to Brampton. While N.R. lived with her mother for the most part, L.R. was living with her grandmother in Mississauga. S.R. did not tell him about L.R. right away. He only met L.R. about three months into the relationship. C.S. called N.R. Smiley. Others did as well. He never met S.R.’s other children. He and S.R. broke up in July or August of 2012. A couple of months later, the accused met R.G.

Personal Facebook Account

[78] When he was in the relationship with S.R., he would use her phone. The phone was an Ericsson phone. His Facebook account was hooked up to her phone and was easily accessible from an icon on that phone. When his relationship with S.R. ended in 2012, he returned the phone to her. J.S. and T.R. were with him when he returned the phone. He returned the phone with a few other things. When the phone was returned, the Facebook icon was still on it. He’s sure that S.R. would have access to his Facebook account. When he got together with R.G., they opened a new Facebook account and he forgot about the old one. He never took steps to deactivate the old account. All his passwords were with that old phone, including the password to access his “Hotmail” email.

[79] The accused testified that he stopped using his personal account (the C.S. account) when he broke up with S.R. He “unfriended” S.R. after they broke up. He did not want to think about S.R. after the break up.

The Facebook Messages and S.R.

[80] The accused denied that he ever sent Facebook messages to L.R. He did not even know the Facebook name she was using at the time. He remembers when A.S. told him about the screenshots that were sent by S.R. That was the first time he heard about the Facebook messages. At the time, he believed that S.R. was just setting him up. He discussed this with A.S., and with R.G. She was the only one that would have access to his Facebook account.

[81] The accused also denied having much knowledge about L.R. or her family situation. He denied knowing that she had problems with her grandmother. He denied knowing that L.R. went by the name L.

[82] In cross-examination, the accused acknowledged that S.R. and he broke up on good terms. Crown counsel also pointed out in a prior statement that he gave to the police on May 20, 2015, he had told the police he just threw out S.R.’s phone.

[83] Crown counsel pointed out in cross-examination that both his personal Facebook account and his current Iphone account were connected to the same Hotmail email. Crown Counsel suggested that the accused would have had to access his Hotmail email to verify his Apple account. The accused denied having to confirm the Apple account by accessing his Hotmail email. He maintained that he did not have access to the Hotmail account. He lost this password when he gave S.R. his phone.

[84] When asked how there were “artifacts” on the HP Pavilion computer showing that his personal Facebook account was accessed on the relevant dates, the accused acknowledged that he may have been playing his PS3 at those times and accessed his “Rockstar” account. His “Rockstar” account was registered to his C.S. Facebook account. His game system may have accessed his Facebook page. Crown counsel asked the accused in her cross-examination that if gaming was the cause of the artifacts, why was there no Facebook interaction on the gaming computer. The accused could not explain the reason for this.

Relationship with R.G. and H.L.

[85] When he started dating R.G., he initially moved into her house in Barrie. Both H.L and R.L. were living with R.G. at the time. He and R.G. purchased a house in Midland in 2013. When they purchased the house in Midland, the accused’s sister A.S. moved in with them. A.S., K.M. and their 3 children moved into the basement of the house. A.S. wasn’t working at the time. R.G. and A.S. got along. A.S. would even help with watching the kids when R.G. was working. A.S. and her family eventually moved out into their own house. They moved only a few blocks away. H.L. and R.L. would often go to A.S.’s house after school.

[86] R.G. had problems with alcohol. The accused had to contact the police a number of times. When she had these issues, A.S. would often assist with looking after the kids. Sometimes the kids were there, and sometimes they would be at their father’s house. At times, R.G. would even have to go to the hospital. Both he and R.G. tried to minimize the extent to which the kids were exposed to R.G.’s drinking. Things did get better with R.G. for a short period after he was charged. R.G. was a support. They got married in 2015.

[87] When he was living in Barrie, he had 3 different jobs. He worked at DOL Hydroseeding, Coco paving, and he also worked at his own snow removal business. He was busy working and would not spend a lot of time alone at home with the girls. He denied ever touching H.L. in a sexual way, nor did he ever tell her to touch herself. He also never helped her have a bath. He denied the splinter incident.

[88] R.G. was working at the group home. She would sometimes work nights and she would put a lot of responsibility on H.L. C.S. would not be the one giving out chores. That was R.G. who would give H.L. chores.

[89] He was charged while he was living in Midland with R.G. After he was charged, he was not to be alone with the kids except in the presence of one of the sureties. He was never alone with the kids. Either B.H. would be present, or his sisters would take the kids when he was at home.

[90] He doesn’t know why H.L would make these things up. H.L would sometimes blame him for R.G.’s drinking. H.L. was protective of her sister and her mom. H.L. would hear him fighting with R.G. Sometimes he would see his disclosure out. While he assumed it was R.G. reading it, the accused acknowledged it could have been anyone including H.L.

Evidence of J.S.

[91] J.S. has known the accused since 2007. He has a criminal record involving thefts, fail to comply with probations, and also a break and enter where he received a jail sentence of 30 days.

[92] J.S. testified that he helped the accused move his belongings from S.R.’s place in Brampton after they separated. He went and assisted him with packing his things. J.S. testified that he and the accused drove together from Midland to Brampton to pick his things up from S.R.’s house. After they left her place, he recalled S.R. calling the accused on his phone, and asking him to bring back the phone, some keys and some DVD’s.

[93] During cross-examination, Crown Counsel asked the type of phone he gave back to S.R. Mr. J.S. testified that he believed it was an Apple Iphone. When Crown Counsel asked Mr. J.S. whether the accused lived with him before or after the break up with S.R., Mr. J.S. could not remember. When asked the date he helped the accused with the move from S.R.’s place, he said that it was the summer of 2013. The actual break up occurred in 2012.

[94] Mr. J.S. also volunteered various answers without prompting. For example, he testified that he recalled S.R. saying to C.S. that if he wouldn’t take her back, she’d make his life a living hell. He also referenced on at least two occasions without prompting that Facebook could be accessed when someone played a video game online.

[95] Mr. J.S. testified that he did not know anything about the allegations until the trial. At the same time, he acknowledged that he knew that the charges had something to do with child pornography. He assumed it had something to do with H.L. He knew that the accused was on bail, and he knew the accused was not to be around any kids alone.

Analysis

Crown’s Application to Admit Similar Fact Evidence

[96] Evidence of other discreditable conduct is presumptively inadmissible to prove the accused is guilty of an offence. The onus is on the prosecution to satisfy the trial judge on a balance of probabilities that in the context of the particular case the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception. R. v. Handy, 2002 SCC 56, at para. 55.

[97] Generally speaking, when tendering evidence of “other discreditable conduct” to prove an offence, there is a risk that an accused will be found guilty because of these other actions, rather than those which are the subject matter of the charge. Permitting such evidence to unduly influence the verdict goes to the very core of a fair trial. It is for this reason that such evidence is generally inadmissible, and will only be admitted in situations where the Crown can demonstrate that the exceptional probative value of the evidence outweighs any risk of prejudice. This was also explained in B(G):

This Court has repeatedly affirmed since Boardman that the starting point for determining whether similar fact evidence is admissible is the general exclusionary rule against the reception of evidence of disposition or character, aligning itself with the view of the majority in Boardman on this aspect of the rule. To similar effect, Martin J.A., speaking for the Ontario Court of Appeal in R. v. Scopelliti (1981), 1981 CanLII 1787 (ON CA), 63 C.C.C. (2d) 481, stated at p. 496:

. . . the admission of similar fact evidence against an accused is exceptional, being allowed only if it has substantial probative value on some issue, otherwise than as proof of propensity (unless the propensity is so highly distinctive or unique as to constitute a signature).

[98] In a judge alone trial, the risk of prejudice is not a substantial concern. A trial judge is expected not to be unduly influenced by evidence relating to the character or disposition of the accused. Accordingly, evidence with “some” probative value can be considered provided that the evidence is given the appropriate weight in the overall assessment.

[99] Probative value cannot be assessed in the abstract. As explained in R. v. Handy, the utility of the evidence lies precisely in its ability to advance or refute a live issue pending before the trier of fact. Whether or not the evidence has probative value can only be determined in light of the purpose for which the evidence is proffered.

[100] In this case, the Crown is seeking to tender evidence of similar acts for the following purposes:

1. To prove the actus reus of the H.L. counts;

2. To show the accused’s modus operandi;

3. To rebut the defence of the alternative suspect defence raised regarding to the L.R. counts: That S.R. was sending the messages or that some unknown person was sending the messages.

[101] In terms of the similarities between the incidents underlying the separate sets of charges, there are clearly a number of them which would enhance the probative value of the evidence. In both sets of charges, the alleged complainants are young female girls under the age of 16. H.L. was 11 at the time of the alleged offences, and L.R. was 14 years old. Both sets of allegations involve sexual exploitation of minors where the complainants were encouraged to engage in acts of a sexual nature involving their genital area. Both complainants were also in a trust-like relationship with the accused at the time of the alleged offences. The accused was currently in a serious relationship with R.G., H.L.’s mother, when the alleged assaults involving H.L. occurred. The accused had also been in a serious relationship with S.R., L.R.’s mother, a few years earlier, and L.R. would still refer to the accused as “Dad”. The complainants did not know one another. This itself reduces the risk of collusion and enhances the probative value of the evidence. The alleged incidents also are very proximate in time, only months apart. In light of these circumstances, the Crown takes the position that the evidence is highly probative for the purposes for which it is sought to be admitted.

[102] The defence opposes the admission of the similar fact evidence on the basis that the evidence fails to meet the test set out in R. v. Handy. Moreover, the defence points out that the evidence itself is potentially tainted by the fact that H.L. had access to the accused’s disclosure regarding the charges relating to L.R.

[103] I recognize the potential relevance of the proposed similar fact evidence in terms of the obvious similarities between the “alleged” conduct in relation to both complainants. However, the defence points to these very same similarities to undermine the credibility of H.L. The defence suggests that H.L. reviewed the L.R. disclosure and fabricated the events. Obviously if this were the case, the evidence relating to the L.R. allegations would have no probative value for the Crown, but instead would only undermine the evidence of H.L. Accordingly, the “possibility” of tainting is a factor I must take into account in determining the admissibility of the proposed evidence. As explained in R. v. Handy at para. 110 and 113:

Cogency is derived from the improbability of coincidence. Collusion is a factor, yes, but more than that it is a crucial factor because the existence of collusion rebuts the premise on which admissibility depends.

Here it was not sufficient for the Crown simply to proffer dicey evidence that if believed would have probative value. It was not incumbent on the defence to prove collusion. It was a condition precedent to admissibility that the probative value of the proffered evidence outweigh its prejudicial effect and the onus was on the Crown to satisfy that condition. The trial judge erred in law in deferring the whole issue of collusion to the jury. [Emphasis added]

[104] Given the “possibility” of tainting raised by defence, I find that it would be dangerous to use the evidence of the Facebook communications with L.R. to assist in establishing the allegations involving H.L. Accordingly, I find the evidence should not be admitted as “similar fact” evidence to assist the Crown in establishing counts 1-3.

[105] That being said, if I were to accept the evidence of H.L. in terms of the events, it may still be open for me to consider the evidence of H.L. as similar fact evidence in relation to the allegations involving L.R. I will consider this issue again when the question arises in relation to the specific counts involving L.R.

Counts Relating to H.L. (Counts 1-3)

[106] Counts 1-3 deal with the allegations relating to H.L. The accused is charged with Sexual Assault (s. 271 of the Criminal Code), Sexual Interference (s. 151 of the Criminal Code) and Invitation to Sexual Touching (s.152 of the Criminal Code). In the case here, the age of H.L. is not in issue. She was clearly under the age of sixteen at the time of the alleged offences. Accordingly, to make out the offences of Sexual Interference and Sexual Assault, the Crown must establish beyond a reasonable doubt that the accused touched H.L., who was under the age of sixteen, and the touching was for a sexual purpose. To make out the offence of Invitation to Sexual Touching, the Crown must establish beyond a reasonable doubt that the accused invited H.L. to touch herself, and that the touching that the accused invited was for a sexual purpose.

[107] Where an accused is charged with sexual interference, invitation to sexual touching, and sexual assault of a complainant under the age of sixteen, section 150.1 of the Code eliminates the need for the Crown to prove lack of consent. That section reads:

150.1 (1) Subject to subsections (2) to (2.2), when an accused is charged with an offence under section 151 or 152 or subsection 153(1), 160(3) or 173(2) or … section 271, 272 or 273 in respect of a complainant under the age of 16 years, it is not a defence that the complainant consented to the activity that forms the subject-matter of the charge.

[108] The primary evidence in support of the allegations in counts 1-3 is the testimony of H.L., and to a lesser extent, the evidence of R.G. Additionally, the Crown sought to rely on the evidence of the Facebook messages sent to L.R. as similar fact evidence to establish the allegations in Counts 1-3. As noted above, I will not be considering the “similar fact” evidence in relation to these counts.

[109] In making the assessment of the evidence, I must not lose sight of the fact that the burden always remains on the Crown to prove the allegations beyond a reasonable doubt. The accused is presumed innocent until the Crown proves the offences beyond a reasonable doubt. Where there is defence evidence, including testimony from the accused as in this case, the court must not assume that its verdict can be based on a choice between the Crown’s evidence and the accused’s evidence. I must apply the rules set out in R. v. W.D., [1991] SCR 742, as follows:

1. If I believe the evidence of the accused, I must acquit.

2. If I do not believe the evidence of the accused, but I am left with a reasonable doubt by it, I must acquit.

3. Even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence I accept, I am convinced beyond a reasonable doubt by the evidence of the accused’s guilt.

[110] The burden never shifts from the Crown to prove every element of the offence beyond a reasonable doubt.

[111] In assessing the credibility of the evidence of H.L., I note the concerns raised by the defence. The defence takes the position that the evidence of H.L. should not be accepted as it does not accord with common sense. H.L. could have easily avoided the accused by going to A.S.’s home. Instead, on her evidence, she chose to return home in the face of these alleged assaults. According to the defence, this simply makes no sense. Moreover, the defence takes the position that H.L.’s evidence was inconsistent in several ways, including:

1. The number of times she was sexually assaulted varied from one to four times per week;

2. Her first disclosure to her mother involved her “bum” and not her vagina;

3. The locations where she was sexually assaulted were less than clear (did not mention her own bedroom until trial);

4. Her recollection at trial of the accused checking for bruises;

5. Her recollection at trial of a vibrating device being used;

6. Her recollection at trial of a lubricant being used;

7. Her inability to recall the details of any of the sexual assaults except the first and last one.

[112] The defence also points to the fact that H.L. had a clear motive to fabricate the allegations against the accused. H.L. believed that the accused was assaulting her mother R.G. In the face of that mistreatment, H.L. wanted him out of the picture. Moreover, on her own evidence, H.L. acknowledged that she did not like the way the accused was treating her. He was overly strict and gave her too many chores. According to the defence, H.L.’s access to the accused’s disclosure (disclosure in the L.R. allegations) would also support the likelihood of fabrication. In the face of these circumstances, the defence argues that I should reject the evidence of H.L., or at least be left with a reasonable doubt, particularly in the face of the accused’s testimony.

[113] I recognize the potential issues regarding motive, and the concern of fabrication raised by defence. I also acknowledge some weaknesses regarding H.L.’s ability to recall the specific details of many of the incidents. That being said, I accept the evidence of H.L. in its material respects. I find that the accused did touch H.L. in her vaginal area for a sexual purpose and also that the accused invited H.L. to touch herself in her vaginal area for a sexual purpose.

[114] I find that H.L. was a very credible witness and provided a very compelling version of events. She recounted the details of the first and last incidents in vivid detail. Her explanation of the incident in the bathtub was very descriptive as to what transpired. The way the incident began with the proposed removal of a splinter from her foot and slowly progressed with her being in the bathtub naked. H.L. explained her feelings at the time, and the strangeness of the situation. The way H.L. described the last incident, and her specific recollection of looking down at the carpet was extremely vivid, and very credible.

[115] I also find that the general way in which her version of events was expressed made sense. When asked why H.L. was not able to provide more detail about the other incidents, H.L. explained that when something is very repetitive, you don’t remember it. Nothing stood out about the incidents to her. This explanation made a lot of sense given the repetitive nature of the incidents and their frequency.

[116] While H.L. described the events as occurring 3 or 4 times a week when she originally gave the statement to the CAS, she did not disagree with that in her evidence at trial. This is consistent with the evidence she gave in chief of the incidents occurring at least once a week. I don’t find this to be a problem with the credibility of her evidence. No doubt, the Crown had to prompt H.L. to recount certain instances which had been relayed to the CAS in 2015, namely those involving the vibrator and the lubricant and the way he would check her for bruises. Given the passage of time, however, I do not find this to be a concern. H.L. also explained that she had been doing her best to put these events behind her and forget them. It is hardly surprising that she had to be prompted to recollect specific “detailed” events. She never denied the events happened. Indeed, even the way she described a vibrator and lubricant in detail without knowing what they were itself made her explanation of these events more compelling.

[117] Counsel points out that when she first told her mother about the alleged abuse, she suggested that the abuse was “like putting a thumb in her bum”. She explained this point in her evidence very clearly. She explained that she didn’t feel comfortable explaining he touched her “vagina” to her mother. So she told her it was like putting a finger in your bum, but it was the other end. Again, this explanation made a lot of sense given the awkwardness of having to relate such details to her mother at such a young age.

[118] Counsel points out that she could have just gone over to her Aunt A.S.’s house if there was actually abuse. H.L. was asked this during her cross-examination, and explained why she did not routinely go to A.S.’s house. H.L. and A.S.’s daughter would fight on occasion. H.L. would often just want to be alone. At home, she could go in her room and lock the door. She couldn’t do that at A.S.’s house. There would always be someone around. She also thought that the accused might get mad if she was always going to A.S.’s house. Again, I believe her explanation, and I find it compelling.

[119] It also seems that H.L. was not really aware of how concerning the sexual assaults were until she told her mother about it. In her evidence, what seemed to trouble her most about the sexual assaults at the time they were occurring was that she could not tell her mother about what was happening. In her evidence, H.L. explained that at the time of the abuse, she didn’t hate the accused. She just did not want him to do it anymore. She did not want him out of her life. It is only afterwards, when she told him to stop it, and he started to mistreat her that she began not wanting to be home.

[120] I find the evidence of R.G. corroborative of H.L.’s evidence in various respects. R.G. confirmed that the accused was often at home with the girls providing him the opportunity to commit the assaults. R.G. also testified that H.L. would prefer to be at home whereas R.L. would routinely go to A.S.’s house. This is also consistent with H.L.’s account. I also find R.G.’s evidence consistent with H.L.’s evidence regarding how and when H.L. disclosed the events to her mother.

[121] I recognize that the accused denied the allegations regarding his sexual activities with H.L. He explained in his evidence that he was busy with work, and while acknowledging that he had been alone with the girls on occasion, he denied that he ever assaulted H.L. I reject the accused’s evidence in this regard, and I am not otherwise left in a reasonable doubt by his evidence relating to the allegations involving H.L. I find the accused’s evidence lacking in credibility and contrived. I will provide further explanation for these findings in my reasons dealing with the allegations involving L.R.

[122] Nor am I left with a reasonable doubt on the balance of the evidence. I don’t accept that H.L.’s evidence was tainted by her review of the accused’s disclosure. Nor do I accept that her story may have been fabricated to avoid returning to Midland. It may be that she delayed relaying the information about the sexual assaults to her mother. But I do not find that this points in any way to fabrication. I believe her evidence to be true.

[123] Accordingly, I find the accused guilty on counts 1, 2 and 3 of the Indictment.

Counts Relating to L.R. (Counts 6, 7, and 9)

[124] Counts 6, 7 and 9 deal with the allegations involving L.R. The accused is charged in relation to the Facebook messages sent to L.R. He is charged with communicating with L.R. for the purpose of making child pornography contrary to s. 163.1 and 172.1(1)(a) of the Criminal Code. He is also charged with communicating with L.R. for the purpose of inviting a person under the age of 16 to engage in sexual touching contrary to section 152 and 172(1)(c). In Count 9, the accused is charged again with inviting a person under the age of 16 to engage in sexual touching contrary to 152 of the Criminal Code. As noted above, to make out the offence of Invitation to Sexual Touching, the Crown must establish beyond a reasonable doubt that the accused invited L.R. to touch herself, and that the touching that the accused invited was for a sexual purpose. L.R. was also clearly under the age of sixteen at the time of the alleged offences. This element of the offence is not in dispute.

[125] The defence concedes that if identity is established, the offences are made out. The nature and content of the communications between the C.S. Account and L.R. filed in Exhibits 3(a) and 3(b) are sufficient to make out the offences listed above. It is conceded that the photographs constitute child pornography as defined in the Criminal Code. The various communications also clearly invite L.R. to make and send pictures of herself engaged in sexual touching.

[126] As noted above, there is also no issue that these messages were sent from the Facebook account of the accused. The only question remaining is whether or not the accused was on the other end of the text messages that were sent to L.R. on March 3, 2015.

[127] The Crown takes the position that the only reasonable inference on the evidence is that it was the accused sending the text messages to L.R. The messages were sent from the accused’s Facebook account (the “C.S.” account). The “C.S.” account was linked to the accused’s email account. That same email account had also been used by the accused to register his Apple Iphone. The Crown submits that this demonstrates that the accused had direct access to the account at the time the offences were committed.

[128] The Crown also points to the very personal and intimate nature of the messages that were sent to L.R. The extreme specifics referenced in those text messages establish that the person sending the texts had very “personal” information about L.R. and L.R.’s family. For example, the sender knew the name of her Auntie and uncle. The sender also knew that S.R. called L.R. “M.” as a nickname.

[129] The person sending the messages was also be able to access the “personal” information in a very immediate way, and to engage in a fluid conversation with L.R. regarding that personal information. The Crown submits that this demonstrates actual knowledge of those events and their underlying context. The nuances of the discussion demonstrate that this person was familiar with the players and the events in a very intimate way. Some of this can be seen in the earlier texts sent. The communications began on February 24, 2015 in the following way:

C.S. – Feb 24 at 2:06 p.m.

Hey you. How are things long time no talk! How is things with you Nd your little sis? You keeping out of trouble?

L.R. – Feb 26 at 10:12 a.m.

Things are great dad smiley awesome I’ve been trying to keep out of trouble but yes I’ve been good

[130] The communication continued on March 3, 2015:

C.S. – at 8:09 a.m.

Well that’s good ;) how is your grandma are you still always in her bad books, or has she realized your not as bad as she thinks? Why does it say your in Barrie?

L.R. – at 8:16 a.m.

Everythings alright and nope still in her bad books we don’t even talk anymore because im a ungreatful bitch cause I love my mother and she called the cops on me to get her out her house when I went to go see my brother and sister once. Because I live in barrie now.

C.S. – at 8:18 a.m.

Omg ! Wow that’s crazy, as if she did that to you : ( dam! So your in barrie now living with your moms mom? Or your auntie?

C.S. – at 8:19 a.m.

I just sold my house in Barrie lol

L.R. – at 8:20 a.m.

Yeah that’s what I said she beat me up for even coming there soon I get to take that last name out of my birth certificate and I live with my aunty yes uncle royze’s baby mother A.W. and lol really?

C.S. – at 8:22 a.m.

Aww that’s crazy as if she do you like that : ( so why not live with your mom in the city, why Barrie? And yeah I sold it and bought new house;) but still am in Barrie everyday I don’t mind driving everyday.

C.S. – at 8:23 a.m.

Ash and royze are still together Aww that’s good ;)

L.R. – at 8:23 a.m.

Because we moved here together and lived with my moms mom and she kick us out every other 2 weeks cause she I sbi-polar so mom moved back to Hamilton but I really wanted to stay at my school so I moved in with my aunt, haha that’s cool.

C.S. – at 8:25 a.m.

Oh that’s crazy.. You and your mom still close? Lol does she still look over your fb and have the password lol I’m sure she will see im seeing how your doing..Lol

L.R. – at 8:26 a.m.

Yeah it is and we are still close and no she doesn’t have my password I change it monthly because its always stupid.

[131] The sender of the messages also referenced details very unique to the accused’s personal experiences. For example, the sender of the text messages asked if S.R. still had S., the dog they shared. The sender of the texts also referenced a particular instance where the accused sat with S.R. for hours as she got her braids done in a basement. S.R. confirmed in her evidence that she had this experience with the accused during their relationship. The texts went in the following way:

L.R. at 9:30 a.m.

my mom has never had long braids tho.. I guess im taller

C.S. at 9:31 a.m.

I so thought by accident you sent first pic of your mom and yes she had hair like that..I paid for them and sat in some lady’s basement for hours… it looks like your mom lol

[132] The sender of the messages also knew that S.R. would not be happy with the accused reaching out to L.R. Some of the texts stated the following:

C.S. – at 8:59

Don’t say nothing about me seeing how things are with you k.

L.R. – at 9:01 a.m.

dont worry I wont…

C.S. – Mar 3 at 9:02 a.m.

K thanks for not mentioning my name to her

L.R. – at 9:04 a.m.

..no prob I was just thinking if I did she would go on a killin spree so im not saying anything.

C.S. – at 9:06 a.m.

Your moms got no reason to be mad at me…it’s me upset at her not wanting to have to her again

[133] The Crown also relies on the “artifacts” left on the HP pavilion computer seized from the accused’s home address which indicate that the “C.S.” Facebook account was directly “accessed” by that computer during the relevant period of time. The Crown acknowledges that this is not conclusive evidence that the accused sent the messages. But it is circumstantial evidence consistent with the accused accessing the Facebook account on the relevant dates.

[134] Finally, the Crown seeks to rely on the similar facts regarding the H.L. allegations to rebut the alternative suspect defence raised by the defence: namely that S.R. was sending the messages or that some unknown person was sending the messages.

[135] The accused denies that he sent the messages, and also denies having access to the account at the relevant time. According to the accused, he had lost the password for the “C.S. Account” some time ago. At the time of the alleged offences, he testified that he was only using the Facebook account he shared with R.G. which was the “R.G. C.S” account. He also did not know L.R. was using that specific Facebook account at that time.

[136] The accused also points to various details in the messages that were not true. For example, the accused never sold a house in Barrie as the Facebook message suggests. Nor does he know anyone in the tattoo industry, or in the modelling industry. He didn’t drink beer, nor had he grown a beard. He claims that he never knew L.R. by the name “M.”. Rather, he thought they called her “B.”. The accused also points out that a number of the “personal” details like the return of S. were well known to many people in S.R.’s family. Even the “hair” appointment was well known to others. Accordingly, the personal nature of the emails do not assist with identifying the perpetrator of the offence. He also points to the fact that the “artifacts” on the HP pavilion could as easily be related to his gaming during the relevant time period. The artifacts left on the HP Pavilion do not mean that the accused accessed the Facebook account.

[137] The accused also testified that he returned the Ericsson phone to S.R. when they split up. When he returned the phone to S.R., his Facebook account was still active, and S.R. would have had access to that account. This version of the accused’s events was supported by the other defence witness J.S. The problem with this version of events is that it was contradicted by the evidence of S.R. who testified that she never received the phone back. I prefer the evidence of S.R. on this point.

[138] Moreover, as pointed out by Crown counsel during the accused’s cross-examination, this claim also seems to be directly contradicted by the accused’s own statement to police on May 20, 2015. In his statement, the accused said he threw the Ericsson phone out:

C.S.: See what happened is I had a cellphone…

DCM: Yeah.

C.S.: …with S.R.

DCM: Okay.

C.S.: ‘Cuz I had a flip phone and then S.R.’s like, oh, well I got this… this, um cellphone and I got a new phone so why don’t you take this one over and pay the whatever a month, so I did that and then when I separated from S.R., um, I still had it, but then I cut it off so I didn’t have to write the…the bill up, and everything was with that phone, that -.

C.S.: So what happened was then eventually I got a new phone and then I just got everything with it, like everything that…everything that was with the phone just that was it, you know, like…

DCM: Gone

C.S.: Gone, yeah.

DCM: Did that…did you ever use, uh, was the old phone like an iPhone?

C.S.: Erics---no.

DCM: No

C.S.: No, it…it’s just..it was an old crappy phone I threw out.

DCM: Okay.

C.S.: Yeah, it was S.R.’s, right, and then I ended up paying for it…

DCM: Yea.

C.S.: ..and she made me pay the bill off, so then I paid the bill off and just threw it.

C.S.: it was an Ericsson, it was an Ericsson, so it was like a smartphone, like it…

DCM: It had the same abilities, so you had apps on it and stuff like that?

C.S.: Yeah

DCM: Okay. And that phone you just chucked out.

C.S.: Yeah.

[139] I find that the accused was lying in his testimony on this point. I find that the accused never returned this phone to S.R. I find that the accused specifically made this up with a view to supporting the claim that S.R. was likely the person sending the messages to L.R. I also conclude that J.S. was lying on this same point with a view to assisting the accused in his defence. Mr. J.S.’s evidence was internally inconsistent and clearly not credible on a number of points. I reject Mr. J.S.’s evidence.

[140] I do not accept that the accused did not have access to the Facebook account during the relevant time period. The Facebook account was linked to his Hotmail email. Indeed, while the accused claimed to have a gmail account which he used, he registered his Apple account using his Hotmail address. I find that the accused’s testimony on these points is merely directed at distancing himself from the Facebook account.

[141] I also do not accept that S.R. was sending the texts to L.R. I found S.R. to be a credible witness. She denied having access to the accused’s Facebook account. She denied having access to his phone or his password. She denied harbouring any resentment towards the accused. Indeed, the accused acknowledged in his own evidence that they did not break up on bad terms. While Ms. S.R. missed the accused for a few months, by 2015 she had moved on with her life. Even if S.R. did resent the accused to some degree, I find it difficult to fathom that she would send text messages of this nature to her own daughter with a view to framing the accused.

[142] I recognize that the onus is not on the accused to establish the existence of an alternate suspect. Nor is the accused required to even point to an alternate suspect or establish anything on the evidence. The presumption of innocence prevails until the Crown has displaced it by proving the accused committed the offences beyond a reasonable doubt. While the Crown is obliged to displace the possibility of any reasonable alternative explanation, it is not obliged to displace any theoretical or fanciful possibility.

[143] A reasonable doubt is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence. A certain gap in the evidence may result in inferences other than guilt. But those inferences must be “reasonable” given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense. As the Supreme Court explained in R. v. Villaroman, 2016 SCC 33 at paragraph 35:

When assessing circumstantial evidence, the trier of fact should consider “other plausible theories” and “other reasonable possibilities” which are inconsistent with guilt. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”. “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.

The basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty. [Emphasis added]

[144] On the basis of the evidence I accept, I find the accused guilty of the offences listed in counts 6, 7, and 9 beyond a reasonable doubt. The defence evidence does not raise a reasonable doubt. Again, I have applied the requirements set out in R. v. W.D. Having regard to the evidence as a whole, I am satisfied beyond a reasonable doubt that the accused was the person sending the Facebook messages to L.R. on March 3, 2015.

[145] Accordingly, I find the accused guilty in relation to Counts 6, 7, and 9.

[146] Finally, I should address the similar fact application brought by the Crown in relation to the L.R. counts. The Crown sought to tender the evidence of the accused’s conduct in relation to H.L. to prove the offences relating to L.R. in the following respects: 1) to demonstrate the modus operandi of the accused, and 2) to rebut the defence of the alternative suspect raised regarding the L.R. counts.

[147] In the context of the L.R. charges, I have no doubt that the accused’s conduct involving H.L. would be relevant and very probative to prove the offences involving L.R. given the similarities identified above and the fact that the incidents were so proximate in time. Moreover, it seems very unlikely that these two situations would arise independently, and their correlation clearly appears beyond coincidence. In light of my findings above, there is also no concerns regarding “tainting” of the evidence. I am satisfied that the evidence is properly admissible as similar fact evidence, is highly probative and can be considered. However, given that I have found the accused guilty of the offences without consideration of the similar fact evidence, there is no need for me to rely on it.

Count 8: Making of Child Pornography contrary to section. 163.1(2)

[148] The accused has also been charged under section 163.1(2) with the making of child pornography. The wording of the provision provides as follows:

Making child pornography

(2) Every person who makes, prints, publishes or possesses for the purpose of publication any child pornography is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year.

[149] While the accused clearly sought to have L.R. take pictures of herself, L.R. in her testimony confirmed she never took any of the pictures at his request. All the pictures sent to the accused had been produced by L.R. herself at some earlier point in time.

[150] The Crown takes the position that receiving pre-existing images itself constitutes “making child pornography” for the purposes of section 163.1(2). However, this does not accord with a clear reading of the provision. There is a clear difference between “making” child pornography and possessing it. The gravamen of the offences are clearly different. Even reading the provision makes it clear that possession is only captured when that possession is “for the purpose of publication”.

[151] While the actus reus of the offence set out in 163.1(2) has not been established, the question remains whether or not the accused can be found guilty of an attempt to commit the offence in 163.1(2). The elements of a criminal attempt were set out by McIntyre J. in Regina v. Ancio (1984), 1984 CanLII 69 (SCC), 10 C.C.C. (3d) 385 (S.C.C.) at p. 401:

…in common law and under the criminal law of Canada criminal attempt is itself an offence separate and distinct from the crime alleged to be attempted. As with any other crime, the Crown must prove a mens rea, that is, the intent to commit the offence in question and the actus reus, that is, some step towards the commission of the offence attempted going beyond mere acts of preparation. Of the two elements the more significant is the mens rea.

[152] I find on the evidence here the accused’s conduct when considered in conjunction with his mens rea is sufficient to constitute an attempt to make child pornography. The accused’s repeated requests to have L.R. take pictures of herself in a sexually explicit manner knowing she was under the age of 16 would clearly be sufficient to make out the offence. Indeed, the provision itself is directed at restricting exactly this type of conduct. In the circumstances, the mens rea is clearly made out in that the accused intended to have L.R. take nude pictures of herself for his review. Moreover, the actus reus is made out by his actions, namely his texts repeatedly encouraging L.R. to take new pictures and to make sexually explicit material for his personal perusal. Accordingly, I find the accused guilty of an attempt to commit the 163.1(2) offence.

Count 4: Breach of Recognizance

[153] Count 4 relates to the allegations that the accused was in the company of H.L. or her sister when on a recognizance that he not be in the company of females under the age of 16 unless in the presence of a surety. On the evidence at trial, it is clear that at certain points in time, R.G. came back to the house and observed the accused in the house alone with H.L. and R.L. R.G. even testified that at times she would fight with the accused because he was not complying with his bail. However, the evidence was somewhat unclear regarding the circumstances which led to the accused being alone with the girls. The evidence was also unclear as to whether or not the accused was ever actually alone with the either of the girls.

[154] For example, there was evidence from the accused and R.G. that the accused’s cousin, B.H., was initially living at the house to ensure that the accused was not with the girls alone. The bail specified that the accused was to reside with B.H. at [redacted] Ottawa St. Midland each and every night. However, the evidence indicated that B.H. just left Midland and went to live in Montreal. Nothing would suggest that the accused had any control or role in B.H.’s decision to do this. Nothing would indicate that the bail was varied to accommodate this change in circumstances. It would seem that the breach was beyond the control of the accused.

[155] All this being said, on the evidence I have heard, I am not clear whether or not the accused was ever voluntarily alone at the house with the girls after he entered into the recognizance. Accordingly, I am not satisfied that the necessary mens rea has been established to make out the offence of a breach of the recognizance in this regard. I find the accused not guilty on count 4.

Counts 5 and 10: Keep the Peace and Be of Good Behaviour

[156] Count 5 and 10 both relate to breach of court orders by failing to keep the peace and be of good behaviour. The defence concedes that if any substantive charge is proven beyond a reasonable doubt that convictions for breach of recognizance and breach of probation would necessarily follow. On the basis my findings above, I find the accused guilty of the both counts 5 and 10.

Justice C.F. de Sa

Orally In Court: September 11, 2017

CITATION: R. v. Sweet, 2017 ONSC 7761

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

C.S.

Defendant

REASONS FOR DECISION

Justice C.F. de Sa

Orally In Court: September 11, 2017