Her Majesty The Queen v. S.S., 2018 ONSC 2299 — Superior Court of Justice | minicounsel

DELIVERED ORALLY: April 9, 2018 at 2 p.m.

BETWEEN:

Her Majesty The Queen

– and –

S.S.

Accused

Jonathan Lall, for the Crown

Paul Nielson, for the Accused

HEARD: March 12–16, 19, 23, 2018

C. M. BONDY J.:

RESTRICTION on publication

By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the persons described in this judgment as a complainant may not be published, broadcasted or transmitted in any manner.

A. INTRODUCTION

1The Crown alleges that between October 1, 2015 and March 10, 2016 the accused, S.S. (“Mr. S.”), attempted to extort money to which he had no legal right from the complainant, L.K. (“Ms. K.”). The Crown alleges that Mr. S. threatened to post intimate images on various Facebook and Skype accounts so that Ms. K.’s friends and relatives could see the images thereby embarrassing her if she did not give him the money. The Crown alleges that Mr. S. made good on his threat and posted two intimate images of Ms. K. on the Internet without her consent. According to the Crown, they appeared on three Facebook accounts and one Skype account.

2As a result, Mr. S. was charged with extortion, contrary to s. 346(1) of the Criminal Code, R.S.C. 1985, c. C-46, and publication of an intimate image without consent contrary to s. 162.1 of the Criminal Code.

3Mr. S. admits that he asked Ms. K. for money. It is, however, his position that the money asked for was a legitimate debt owing by her to him that had accrued during the relationship. The debt was related primarily to rent and credit cards.

4The defence maintains that Mr. S. did not make threats to post intimate images if a demand for money was not met. The defence admits that the images at issue were on the Internet, but takes the position that the images were actually posted by Ms. K. or some other person. He asserts that the accounts that the images were posted on were joint accounts that Ms. K. had access to and control of during the relevant timeframe.

5The defence made a series of admissions. They are as follows:

Identity, in that the accused is the person who was arrested and who is charged with the offences. It is not, however, admitted that the accused is always the individual in the messages portrayed as him in Exhibit No. 1, or the individual who posted intimate images online during the relevant timeframe;
Date;
Jurisdiction;
That the photos and screenshots in Exhibit No. 1 represent the photos and screenshots found in the complainant’s laptop computer in a folder called “L.”, but how the folder L. and its contents came to be on the complainant’s computer is not admitted, and that all of the various messages had been posted on the Internet and attributed to the accused are not admitted;
Continuity of exhibits;
The accuracy of a translation of a transcript of two Skype video conversations from Arabic to English, and that the conversations represented in those transcripts took place, but not that the recordings are an accurate depiction of what occurred during those conversations;
That the two video recordings entered into evidence by the Crown are video recordings of two Facebook video chats which occurred in December 2015, approximately five minutes apart, but not that the recordings accurately reflect what occurred in those conversations; nor that it is Mr. S. who appears in those two Facebook video chats;
That the wording attributed to him in those recordings is his own. Mr. S. however maintains that the language attributed to Ms. K. in those recordings have been altered and that approximately one half of the conversations that took place have been edited out of those recordings.

6There were four primary sources of evidence in the trial. They were: the evidence of the accused; the evidence of the complainant; Exhibit No. 1, which purports to be approximately 557 pages of text exchanges through various social media accounts between the two parties; and Exhibit Nos. 2 and 3, which purport to be a Skype text exchange and two Skype video exchanges between the two parties. The credibility and reliability of each is more fully considered below.

B. EVIDENCE

1) Background

7Mr. S. and Ms. K. dated for approximately five years and lived together during three of those years, beginning in 2012. Although Ms. K. is a US citizen, she moved into an apartment together with Mr. S.

8Even though Ms. K. was born in Kuwait, her family came from Aley, Lebanon. Mr. S. also came from Aley. Because it is a small city, their families know each other. Ms. K. still has family who live in Aley.

9The relationship deteriorated slowly. Ms. K. ultimately moved out of the apartment and returned to her home in Warren, Michigan.

10Ms. K. testified in-chief that it was her decision to move out and that she had done so on April 30, 2015. According to her, the main reason for the separation was money management. According to Ms. K., it was she who had paid the rent on the apartment while they lived together. The lease was, however, in both names. It appears from the messaging considered below that the rent for the apartment was a significant stressor during the relationship.

11Notwithstanding Ms. K.’s assertion that the relationship had broken up because of money management problems, she testified that there had been no discussion about money issues during the breakup. This issue is more fully considered below.

12Mr. S. maintained that it was he who had ended the relationship and that he had done so on April 28, 2015. According to Mr. S., he had broken up with Ms. K. to protect her. That assertion is more fully considered below.

13After the breakup, they continued to communicate for some time by telephone, text, Skype, or by seeing each other in-person. According to Ms. K., Mr. S. would come to see her in Michigan. According to Ms. K., Mr. S. asked her to get back together several times but she refused.

14Ms. K. said in cross-examination that she had gone back to the apartment in August or September 2015 at the request of the accused. According to Ms. K., that was the last time they had met in-person until October 2015.

2) The evidence relating to the Crown’s theory of the case

a) The alleged threats

15According to Ms. K., the meeting in October 2015 was at Motor City Casino in Detroit. It was for her birthday.

16It was her evidence that shortly after the breakup Mr. S. had asked her for a month’s rent, which she believed was $675 at the time. According to Ms. K., on this occasion Mr. S. had again asked her for a month’s rent. She gave him $400 USD that night. She said that Mr. S. had, on several occasions after that, again asked her for money but that she had refused.

17According to Ms. K. there was, at the time, images of her from the neck down in the nude with men on various Skype and Facebook accounts. It was her evidence that she had asked Mr. S. to take them off of the Internet and that he had agreed. Ms. K. maintained that notwithstanding that agreement, the next time she accessed the Internet the photos appeared, but now also showing her face.

18According to Ms. K., Mr. S. refused several requests to take her photos off the Internet. As a result, she went to the police on three separate occasions. On the third occasion these charges were laid.

b) The images

19Ms. K. acknowledged that there existed many photos of her nude, both alone and having sex with men. She also acknowledged that as many as 75 such photos had been taken at the nude resorts which she and Mr. S. had attended together while they were a couple. There were four or five of those images in evidence that had appeared on the social media accounts in question. There was no evidence as to whether there were other images that had appeared online but were not in evidence.

20As is more fully considered below, the complainant’s evidence regarding the images and who had possession of them can only be described as quite fluid.

21Ms. K., at one point, left the impression that she did not have any copies of any nude images of herself in her possession, and had no way to access them. It was her position that the accused was the only person who had access to any of the photos of her nude and that as a result it could only be him who posted them online.

22In the end, it was clear that Ms. K. had consented to a number of the intimate images of her being taken and being posted. Ms. K. also acknowledged that she herself had given electronic copies of intimate images to a number of people, including people who she had been intimate with, friends, three cousins, and a sister. She also agreed that once she had sent electronic copies of those images to all of those people that she had lost exclusive control over them. In addition she agreed that those same images could wind up on the Internet through programs such as Facebook or Skype.

23Ms. K., however, steadfastly maintained that she had never consented to any images of herself together with someone else being put on the Internet. This issue is more fully considered below. To be clear, that was what she maintained was the distinguishing factor between the intimate images she had either put on the Internet herself or consented to Mr. S. putting on the Internet, and the two images which she maintains she did not consent to. The importance of that distinction is more fully considered below.

24Both of the images had been taken from videos which she maintains had been taken by Mr. S.

25One was an image of Ms. K. and a fellow named J. The image depicts Ms. K. giving fellatio to J. According to Ms. K., the video was taken in a public area outdoors at a nude resort in Ontario called Sunny Glade sometime in 2012 or 2013. This image was taken from that video. It was Ms. K.’s evidence that she and Mr. S. had met J. approximately one hour before the photo was taken.

26The other is an intimate image taken from a video of her and an individual named D. It was taken at a nude resort in Michigan called Whispering Oaks. In-chief, Ms. K. testified that was in July 2015. In cross-examination, she testified that it was in June 2015. In any event, that trip had occurred after the complainant and the accused were no longer together.

27It was Ms. K.’s evidence that she and Mr. S. had met D. two to three hours before the photo was taken. According to Ms. K., the accused had approached D. and asked “can you fuck my wife”. Ms. K. testified that she consented to Mr. S. having done so, and that she had consented to Mr. S. videotaping the encounter. Ms. K., however, maintained that she had not consented to him posting images of the encounter online.

28It was initially Ms. K.’s position that she had never had copies of either of those images in her possession, nor did anyone but the accused. For example, she denied that anyone else at the resorts where they had been taken could have possibly seen and photographed that conduct, notwithstanding that she and J. were outside in a public area at the time that the video had been taken. The evolution of her evidence in that regard is more fully considered below in the context of credibility.

29Prior to leaving this issue I would like to make it clear that the fact that Ms. K. may herself have distributed intimate images of herself, or consented to the accused putting intimate images of her on the Internet, (other than the two images in question) does not equate with consent to the two images in question. Consent to each image must be given. Consistent with that observation, Ms. K. acknowledged that she had consented to many other intimate images of her having been placed on the Internet, and acknowledged having done so herself. There is no suggestion that an individual consent had been given to each image. Rather, I was left with the impression that it was a blanket consent or understanding between Ms. K. and Mr. S. related to a specific group of images. I conclude that consent can be given to either individual images or groups of images provided they are identifiable.

30I reiterate that the Crown maintains Mr. S. posted images on four social media accounts. One is a Facebook account named S.R. Ms. K. testified that this account belonged to Mr. S. because he did not have any other Facebook account during the relevant timeframe.

31The second was a Skype account also named S.R. That said, there is consensus that a Skype communication from that account displayed the name LK Rouge through most of the relevant timeframe.

32The third and fourth accounts where Ms. K, said the images had been posted were called XXXX and YYYY. Ms. K. acknowledged that her maiden name is KKKK and observed that the last name in the two accounts do not end with the letter “h,” as does hers. It was Ms. K.’s evidence that Mr. S. had opened these accounts without her permission, in names very similar to hers, in an effort to make it appear as if it was she who was placing intimate images of herself on the Internet. There was however, no evidence in that regard other than Ms. K.’s assertion.

33Ms. K. also acknowledged that she herself has two Facebook accounts. She explained that Mr. S. had blocked her primary account so she opened another. That was so that she could continue to monitor his Facebook account. Her second Facebook account was simply named “I M”. She later changed it to G.T.. That was a fictitious name.

34There were ten Facebook and Skype accounts discussed in evidence. Some had very similar names. Control over several of those accounts was disputed. In the interests of clarity, I will list them and give the respective positions of the parties as to each.

Facebook accounts

i. S.R.: Ms. K. maintains that this was an account of Mr. S. Mr. S. maintains that it was a joint account between him and Ms. K.

ii. S.S.: there is consensus that this was a Facebook account belonging to Mr. S.

iii. S.A.S.: there was consensus that this is currently a Facebook belonging to Mr. S. It was, however, Mr. S.’s position that the account had only been opened in 2016 and that, as a result, he had not taken part in earlier messages where an account by that same name had been used.

iv. ZZZZ: there was consensus that this is Ms. K.’s Facebook account.

v. XXXX: Ms. K. maintained that Mr. S. opened this account in order to make it appear that people were communicating with her. Mr. S. denied that.

vi. YYYY: Ms. K. maintained that Mr. S. also opened this account in order to make it appear that people were communicating with her. Mr. S. denied that.

vii. G.T.: This was an account Ms. K. said that she originally opened in the name “I M”. She later invented the name G.T. in order to gain access to Mr. S.’s Facebook accounts after he had blocked her personal account.

Skype accounts

i. S.R.: Ms. K. maintains that this was an account of Mr. S. Mr. S. maintains that it was a joint account. He observes that the name at the top of this account changes over time. It begins as LK Rouge. Those are Ms. K. initials in front of the word Rouge. At a later point in time, it is simply called LKK; those are Ms. K.’s full initials. I reiterate that a page which may also be a profile page from another point in time also shows her birthday as the birthday of the owner of the account. The profile page at least at one point in time also displayed her cell phone number as the contact number.

ii. S.R. 1: According to Mr. S., this was a second S.R. account which was operated jointly by him and Ms. K. It was his evidence that it also operated under the name LK Rouge from time-to-time. The existence and/or control of this account was never put to Ms. K.

iii. ZZZZ: there is consensus this Skype account belonged to Ms. K.

35Ms. K. testified that she believed Mr. S. had made good on his threat to post the two intimate images in question. The following are four examples given by her.

36Ms. K. testified that she first saw nude images of her on Facebook in September 2015. They were images of her from the neck down.

37The second example was that on October 12, 2015 she celebrated her birthday at Motor City Casino with Mr. S. She, at the time, asked him to remove the images of her from his social media accounts. It was her evidence that prior to then all of the photos had been of her from the neck down. After that time, the images that appeared included her face.

38The third occasion was when Mr. S. told her that he had contacted her brother, F.K., and shared intimate images of her with him. Within a day or two her brother had blocked her from his telephone and her Facebook account and would no longer speak with her. There is no evidence other than Ms. K.’s testimony in this regard.

39Defence counsel suggested that Ms. K. and her brother-in law E. had significant disagreements regarding the estate of her uncle, M.H. (“Mr. H.”). Mr. H. had died and left Ms. K. as the executor and principal beneficiary of the estate. Ms. K. agreed that E. was angry, especially over the funeral costs. Ms. K. denied that the matter had anything to do with her brother cutting communications with her and said that if her brother was upset about her handling of the estate she was unaware.

40The fourth was the allegation that, as said above, Mr. S. had opened two Facebook accounts under the names XXXX and YYYY. As said above, there was no evidence other than Ms. K.’s assertion to support that proposition.

41It was Ms. K.’s evidence that the S.R. Facebook account, and the intimate images posted to it, were off the Internet the day after Mr. S. had been arrested.

4) Evidence relating to the defence theory of the case

a) The relationship

42Mr. S.’s evidence as to the relationship prior to the breakup did not differ materially from that of Ms. K. He said they met in 2010, and began living together in 2012. It was initially for only two days a week, and after some time it became approximately five days a week. From time-to-time Ms. K. would stay for weeks at a time without going back to Michigan.

43Mr. S.’s evidence as to the breakup differed from that of Ms. K. in two ways: first, according to Mr. S. it was him who had initiated the breakup; and second, that had occurred on April 28, 2014, and not on April 30.

44It was Mr. S.’s evidence that he was afraid that he was becoming too closely involved with criminal activity being carried on by Ms. K.’s first husband, F. It was his evidence that Ms. K. was also involved in that activity. According to Mr. S., he told Ms. K. to fix her problems related to that activity and then they could reconsider the relationship.

45It was also his evidence that he was afraid of F. That was because he had seen F. severely beat a man and throw the man in the trunk of a car. There had been only $400 in dispute in that situation. Mr. S. said that, as a result, he would have been too afraid to attempt to extort money from Ms. K.

b) The money

46The defence maintains that all of the references to money in Exhibit Nos. 1, 2 and 3 refer to a legitimate debt for rent and credit card bills and that was owed by Ms. K. to Mr. S. as a result of the breakup of their relationship. The total amount Mr. S. maintains that she owed him at the time they separated was $9,700–$9,800. Of that, approximately $6,800 was for cash advances that he had taken on his credit card and loaned to her. Approximately $2,900 was rent.

47Mr. S. testified that the arrangement entered into by he and Ms. K. while they were living together was that she would pay the rent and he would pay other expenses such as food, laundry, and the like.

48Consistent with that assertion, at page 4–23 of Exhibit No. 1 there is extensive reference to money including rent, credit card payments, insurance, Internet expenses, and the like. There are also several references in the messages to what is referred to as the “common-law papers”. It was Ms. K.’s evidence that that language referred to a domestic contract between the two of them.

49In the end, I have no doubt that the dispute over money related to debts that occurred while the two had been living together. Said another way, I reject Ms. K.’s suggestion that there was no possible legal basis for Mr. S. to have been requesting the money that he was requesting. This issue is more fully considered below in the context of Ms. K.’s credibility.

50Prior to leaving this issue, I find it important to make it clear that it does not matter whether the accused had a lawful right to that thing demanded, or entertained such an honest belief: see R. v. Natarelli, 1967 CanLII 11 (SCC), [1967] S.C.R. 539, at 545. Any threat established by the Crown will satisfy that essential element of the offence of extortion. That said, as is more fully considered below, this evidence has value from the standpoint of the credibility and reliability of the evidence given by Ms. K.

c) The images and the S.R. Skype and Facebook accounts

51The defence maintained that Mr. S. never made a threat to post images on the Facebook and Skype accounts and send them to Ms. K.’s friends and family, nor did he put the images in question on those accounts. While Mr. S. acknowledged that the images did appear on the S.R. Facebook and Skype accounts, he maintained that it was Ms. K., or someone acting at her direction, that had done so.

52He also maintains that Exhibit Nos. 1, 2 and 3 have all been tampered with. For example, Mr. S. denied that he had actually engaged in many of the Skype messages which appeared in Exhibit No. 1.

53It was Mr. S.’s evidence that Ms. K. had sent Skype messages from her ZZZZ Skype account to the S.R. Skype account while she was also logged in to the S.R. Skype account. He asserts that she then carried on conversations with herself as if Mr. S. were the person on the S.R. end of the conversation. It was his evidence that he had seen Ms. K. do it in the past, with a former lover named M., in order to get back at him after a difficult breakup.

54It was Mr. S.’s evidence that both the S.R. Skype account and Facebook account had been opened jointly by him and Ms. K. It was also his evidence that she had controlled those accounts and operated them throughout the relevant timeframe. He maintained that they had been installed on his computer by Ms. K. as a matter of convenience because while they had lived together her own computer remained at her home in Sterling Heights where, according to Mr. S., she would often spend several days at a time. While he acknowledged having used the accounts from time-to-time, Mr. S. maintained that it had been Ms. K. who primarily used them.

55Mr. S. agreed with the evidence of Ms. K. to the effect that the blocking of accounts had taken place in August 2015. It was, however, his evidence that she had blocked him from both the S.R. Facebook and Skype accounts. According to him, he could not have blocked Ms. K. because they were her accounts. Had he attempted to do so, she would have used her password to unblock herself.

56Mr. S. testified that, consequently, he did not have a Skype account of his own from August 2015 until March 2016. He also stated that he did not have a Skype account during that timeframe, and had not used any other Skype account during that timeframe. Mr. S. explained that he did not have any need for a Skype account because he did not have anyone to talk to on one.

57According to Mr. S., the first time he had the password for the S.R. Skype account after August 2015 was immediately prior to the beginning of the first video chat. The password had been sent to him in a text message from Ms. K.

58It was also his evidence that he had not taken part in the Skype text exchange immediately preceding the video chats. That text exchange is more fully considered below. He also maintained that Ms. K. had falsified that text exchange to leave the impression that he had been involved. Again, she had done so by having the exchange with herself in the manner described above.

59It was also Mr. S.’s evidence that portions of the two video chats where Ms. K. can be seen talking had been recorded over. In addition, he maintains that the original conversations lasted approximately two hours and, as a result, approximately half of the original recording is missing from the exhibits filed. In other words, the recordings of the video chats were not an accurate representation of what Ms. K. had actually said during those chats. Also, according to Mr. S., things that were said by both Ms. K. and Mr. S. which would have given context to the things that could be heard were missing. Mr. S. stated that Ms. K. was very smart with computers and accordingly had the ability to do such editing.

60Mr. S. took issue with Ms. K.’s evidence that she knows very little about computers. He said that he had seen Ms. K. display significant expertise on several occasions. On one occasion she had reproduced banking and insurance history which had been previously deleted from Mr. S.’s computer. On another occasion, she had feigned a Skype conversation between herself and her former lover M. in an effort to make M.’s wife jealous.

d) M.H.’s estate

61Mr. S. maintained that there had been impropriety in Ms. K.’s administration of M.H.’s estate. According to Mr. S., before Mr. H.’s body had been removed from the house, Ms. K. took a briefcase containing gold, papers, and what he estimated to be approximately $50,000 in cash, out of the house and put it into a safety deposit box at her own bank. According to Mr. S., those assets had not been left to her in Mr. H.’s will, they belonged to her brother-in-law E., who was married to her sister.

62He also testified that Ms. K. believed that Mr. S. had taken photographs of a memorandum written by Mr. H. discussing who was to receive some of his assets, and also two cheques on the estate bank account that Ms. K. had improperly written to herself and cashed. Again, according to Mr. S., the money represented by those cheques properly belonged to E., not Ms. K. It was his evidence that these were the photographs referred to by Ms. K. in the video chats.

e) The nude resorts

63Mr. S. agreed that he and Ms. K. had attended the Sunny Glade and Whispering Oaks nude resorts between 2012 and 2015. He denied having been at a nude resort after his relationship with Ms. K. had ended, with the exception of one visit in 2015.

64His evidence, however, differed as to the frequency with which he went. According to Mr. S., he would attend only one day a week during weeks in which he had only two days off, which was generally the case. As a result, he estimated that from 2012 to 2014 he had gone to those nude resorts with Ms. K. approximately six to eight times per year. He said that he had only gone once in 2015, and that on that occasion he and Ms. K. had only been there for something less than two hours because of an argument.

65Mr. S. agreed with Ms. K.’s assertion that he had often taken nude photographs of her while at those resorts. He estimated two or three photographs per visit. It was his evidence that the photographs had been taken at her request, and that they had been taken on her iPad or iPhone. In other words, the photographs had always been taken with consent and always on a camera owned by her. Accordingly, she would have had ultimate exclusive control over those images.

66The Crown suggested that the images had been transferred from Ms. K.’s iPad to Mr. S.’s computer in order to be put on the S.R. Skype account. Mr. S. said that he believed that Ms. K. had most likely done the transfer on her own computer at her home in Michigan. He insisted that there were no copies of the images on his computer.

67Like Ms. K., Mr. S. also testified that Ms. K. had often shared those images with a number of friends and relatives. He had seen her send images of herself nude which showed her face. She had done so through Skype by changing the profile picture so she could send different pictures to different people.

68Mr. S. steadfastly denied that he had taken the videos of Ms. K. with either J. or D. According to Mr. S., he had never even met either person. It was his evidence that he was not present at the time the videos was taken. It was also his evidence that he had never possessed a copy of the videos from which the still pictures had been made. According to Mr. S., Ms. K. would often go to the resorts while he was working and he guessed that the videos had been taken on one of those occasions.

69In cross-examination, Mr. S. was asked who would have had copies of the videos and who would have posted such pictures on the Internet. It was Mr. S.’s evidence that he did not know who had copies. He agreed with a Crown suggestion that it was his best theory that Ms. K, herself had published those pictures. He said that she had likely put them on Facebook and Skype, much like she had done with other nude photographs of herself throughout the time they were together.

f) The last contact between the parties

70Mr. S. steadfastly denied having met with Ms. K. at the Motor City Casino in Detroit in October 2015.

71According to him, the last contact between him and Ms. K. had taken place near a restaurant in Windsor, most likely sometime in August 2015. Mr. S. and his son were exiting the restaurant when Ms. K. saw them. He said that she became very angry and asked why he was spending time with his bitch, referring to Mr. S.’s son. Ms. K. also said that her name is still on the lease and that no one other than her and Mr. S. were allowed in that apartment as long as her name was on that lease. That included Mr. S.’s son.

72Mr. S, stated that he had been deeply offended by these comments and as a result there was very little communication between them after that time. What communication there was had taken place either by MSN Messenger or by talking on cell phones.

C. ANALYSIS

1) Introduction

73In the end, I was left with two theories regarding the conduct of the parties during the relevant timeframe.

74I reiterate that the Crown maintained that Mr. S. attempted to extort money from Ms. K. to which he was not entitled. The Crown maintained that he threatened to embarrass her in front of her friends and family by putting two images of Ms. K., one with J. and one with D., on the S.R. Facebook and Skype accounts. It was also Ms. K.’s evidence that Mr. S. had followed through with that threat and posted those images on both of those accounts. She also maintains that Mr. S. opened Facebook accounts named XXXX and YYYY, and also posted those images on those accounts in order to make it appear as if she herself had done so. Ms. K. maintained that she did not have copies of the two intimate photos in her possession and, as a result, it would have been impossible for her to post them, as was suggested by the defence.

75To the contrary, the defence maintained that all of the references to money in Exhibit Nos. 1, 2 and 3 refer to a legitimate debt which accrued during cohabitation, primarily for rent and credit card bills that was owed by Ms. K. to Mr. S. The defence maintained that Mr. S. never made a threat to post any images on social media accounts and send them to Ms. K.’s friends and family. Mr. S. also denies that he put the images in question on those accounts. He acknowledged that the images did appear on the S.R. Facebook and Skype accounts but maintained that it was Ms. K., or someone acting at her direction, that had done so. It was his evidence that she had access to those accounts and, in fact, had control of the S.R. Skype account at the relevant timeframe. He also maintained that it was Ms. K., and not he, who had control of the photographs during the relevant timeframe. Finally, he maintains that Exhibit Nos. 1, 2 and 3 have all been tampered with.

76Both versions of events cannot be simultaneously true.

77The Crown suggests that I adopt Ms. K.’s version of events because when applying the principle enunciated in Occam’s razor, that version is more likely to be true. According to the 11th edition of the Concise Oxford Dictionary, Occam’s razor is “the scientific principle that in explaining a thing no more assumptions should be made than are necessary”. The Crown’s position is simple and straightforward. Ms. K.’s conclusions require fewer assumptions to be made than those put forth by Mr. S. The Crown argues that, as a result, that version is more likely correct and, accordingly, I should find that it is true and convict Mr. S.

78Were this a civil case, I may have found some attraction to that argument. However in a criminal case I must consider all of the evidence, including the strengths and weaknesses of that evidence, in the context of all of the other evidence. In that process, I must be alive to the fact that it is possible that one version is true, or the other version is true, or that neither are true, or that either or both are partially true.

79In other words, this is not an either/or analysis: see R. v. O.M., 2014 ONCA 503, 313 C.C.C. (3d) 5, at para. 42. Rather, the issue is whether or not the Crown has proved each element of each of the offences with which Mr. Mr. S. has been charged beyond a reasonable doubt. That end must be accomplished by considering the record as a whole, not by viewing each piece of evidence separately: see R. v. White, 1998 CanLII 789 (SCC), [1998] 2 S.C.R. 72, at para. 39.

2) The appropriate analysis

80In a criminal case there is no obligation for the accused to prove anything. It is the Crown who has the obligation of proving each element of the offence beyond a reasonable doubt.

81A reasonable doubt is one that logically arises from the evidence, or the lack of evidence. Proof beyond a reasonable doubt is proof more than proof of probable guilt. However, a reasonable doubt is not a far-fetched or frivolous doubt. Nor is it a doubt based on sympathy. It is a doubt based on reason and common sense. To be clear, it is nearly impossible to prove anything with absolute certainty. Crown counsel is not required to do that: see R v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, at para. 36.

82Once an accused takes the stand, their evidence must be considered along with all the other evidence presented at trial. The appropriate approach in analyzing that evidence was set out by the Supreme Court in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, at p. 758 where Cory J. stated:

First, if you believe the evidence of the accused, obviously you must acquit.

Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

83The decision in W.D. does not describe three sequential analytical steps, but rather three distinct finding of facts which the trier-of-fact can arrive at when considering all of the evidence at the end of the case. That is, complete acceptance of the accused’s exculpatory account (“step 1”), complete acceptance of the Crown witnesses’ inculpatory account (“step 3”), or uncertainty as to which account to believe (“step 2”): see R. v. Thomas, 2012 ONSC 6653, at para. 23; and R. v. Edwards, 2012 ONSC 3373, 93 C.R. (6th) 387, at paras. 13–25.

84Accordingly, where there are credibility findings on a vital issue it is not necessary for the trier-of-fact to believe the defence evidence as to that issue to acquit. It is only necessary that the evidence, viewed in the context of all of the other evidence, leaves the trier-of-fact in a state of reasonable doubt as to the accused’s guilt: see R. v. B.D., 2011 ONCA 51, 266 C.C.C. (3d) 197, at para. 114.

85For the reasons which follow, I do not find either the accused or the complainant to be reliable or credible witnesses. Similarly, I found the integrity of the documentary evidence and video evidence to be at the very low end of the spectrum.

86As a result, it is difficult for me, to know with any certainty what actually occurred during the relevant timeframe. However, I am guided by the principle set out in R. v. Villaroman, that when dealing with circumstantial evidence a judge is to be guided by logic, human experience and common sense: see 2016 SCC 32, [2016] 1 S.C.R. 1000, at para. 30.

87On the evidence before me, it would be my best guess that Ms. K. and Mr. S. were both involved in the production of the intimate images. I also conclude that Ms. K. quite possibly consented to, and took part in, the placement of those images on the Internet, though perhaps with conditions. This issue is further considered below.

88It is my best guess that at some point in time Ms. K. withdrew her consent. On the evidence before me it is impossible for me to ascertain precisely when that consent was withdrawn. Given Mr. S.’s steadfast denial of the October visit, my best guess would be the December 2015 Skype video chat.

89Further, given the inability of either Ms. K. or Mr. S. to identify the point in time when any of the text exchanges in Exhibit No. 1 took place, it is impossible for me to know whether the images were already on the Internet after that consent had been withdrawn.

90As to the phrasing relied upon by the Crown as threats, such phrasing often lacks context and was, from time-to-time, given meanings by Ms. K. which were inconsistent with the context in which they occurred and/or common sense. In other words, when considered in the context of the totality of the evidence it was impossible to know whether any of the phrasing was intended as a threat or would have been taken by a reasonable person to have been a threat.

91For all of these reasons, on the evidence before me I have no way of knowing what happened between Ms. K. and Mr. S. during the relevant timeframe. Said another way, when viewing the evidence as a whole I am left in a state of reasonable doubt at the second stage of the W.(D.) analysis.

92I will now give my reasons for those conclusions.

3) Publication of an Intimate Image Contrary to [Section 162.1](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)

a) Introduction

93In order for me to convict Mr. S. the Crown must prove each of the elements of extortion beyond a reasonable doubt. They are as follows:

That the accused published, distributed, transmitted, sold, made available, or advertised an image of the complainant;
That the image was an intimate image;
That the complainant did not give her or his consent to that conduct; and
That the accused knew or was reckless as to whether or not the complainant gave her or his consent.

94I reiterate that the defence conceded that the two images in question are intimate images within the meaning of the section. It follows that the live issues at trial are: whether or not it was the accused that published the two images in question; if so, whether the complainant gave her consent and if that consent was withdrawn; and whether the accused knew or was reckless as to whether or not she had given and/or withdrawn her consent.

b) The Evidentiary value of Exhibit No. 1

The manner in which Exhibit No. 1 was created

95I have no reason to doubt the credibility of Constable Burke. I, however, had significant difficulty with the credibility and reliability of the evidence in Exhibit No. 1 which was introduced into evidence by him.

96Ms. K.’s friend, Mr. T., created a folder named “L.” on Ms. K.’s laptop. For reasons that were not clear, Mr. T. did not testify. Rather, the Crown relied on Ms. K.’s testimony to prove the authenticity of those documents. That folder had simply been copied by Constable Burke. There had been no attempt by the police to authenticate the information in the file.

97Ms. K. testified that the images in the L. folder had been created by one of two ways.

98The first was by Ms. K. using her cell phone camera to take a photograph of images on her computer screen. In other words, the images are a copy of a copy. That seems to be the way most of the images were created. In the process, parts of the images were often cut off by Ms. K., sometimes at the top, sometimes at the bottom, and sometimes at the sides. For example, the times particular Skype conversations had taken place were often cut off. That could be explained as sloppy picture-taking. It could however also be explained as Ms. K. editing out portions of the message which were not favourable to her case. Given my findings below as to her credibility, it is difficult to escape the conclusion that some deliberate editing had occurred.

99The police had Ms. K.’s computer and cell phone in their possession when they copied the L. folder to create Exhibit No. 1. There was no evidence as to why they simply had not gone to the original sources of that information to create the documents represented in Exhibit No. 1 rather than relying on the photographs of those images taken with the complainant’s cell phone.

100The second way in which images were created was by what she called “screenshots”. This is a process by which an image which appears on the screen of her phone is copied directly to the camera or picture library of that same phone. Contrary to the first method, anyone viewing the screenshots would see the image as it originally appeared on Ms. K.’s phone. The images from the phone were then copied to Ms. K.’s computer and inserted into the L. folder.

The proper approach to proving electronic documents

101 Section 31.1 of the Canada Evidence Act, R.S.C. 1985, c. C-5 provides that “[a]ny person seeking to admit an electronic document as evidence has the burden of proving its authenticity by evidence capable of supporting a finding that the electronic document is that which it is purported to be.”

102The Crown argued that it had done so by having Ms. K. identify some of the documents in Exhibit No. 1. I disagree with that proposition.

103What Ms. K. purported to identify was the authenticity of the images of what had appeared on her computer screen at various points in time, rather than the data itself. Presuming that she was able to identify and authenticate those images, that identity would fall far short of proving the authenticity or completeness of the underlying documents represented in those images. Further, Ms. K. did not put the documents represented in Exhibit No. 1 into the folder named L. located on her computer. I reiterate, that had been done by a third party who did not testify. Ms. K. would have no way of knowing whether or not any of those documents had been altered by her friend during that process.

104The Crown is given a powerful tool to prove the authenticity of electronic documents; pursuant to s. 164.1 of the Criminal Code, the Crown may obtain a warrant to search the accused’s computer in order to gain information necessary to identify the person who posted particular material on the Internet.

105For reasons which were not clear, the Crown elected not to do so.

106In summary, the police had Ms. K.’s cell phone and computer in their possession and could have searched those devices and downloaded a complete inventory of unedited copies of all of the relevant documents in chronological order. They could have searched the computer and cell phone to ascertain what had been posted by whom. They also could have, through the power of a warrant, done the same with Mr. S.’s computer. The police did none of this. I reiterate that the burden is on the Crown.

The evidentiary value of Exhibit No. 1 as to the content of the various conversations

107There were other significant problems with Exhibit 1.

108Ms. K. was unable to say whether the messages depicted were complete, whether they were in the proper sequence, or whether there were other messages that had been omitted. She was unable to say when most text conversations had taken place. Ms. K. also acknowledged a lack of an independent recollection of many of the messages and the conversations represented by them, rendering cross-examination regarding those messages difficult or impossible. Finally, there were incidents where in some conversations a bubble previously containing a comment had been marked “deleted”. Given my findings below as to Ms. K.’s credibility, I find that there is a very real possibility that the evidence had been assembled in that fashion in an effort to render it more favourable to her position than may otherwise have been the case.

109In the circumstances, I find that there is no way for me to know whether the messages and portions of messages in evidence represent a fair and accurate account of what occurred. I have no doubt that there were many messages which were inadvertently or deliberately excluded, which may have given context to or explained the messages that were included. The missing messages may have contained an express or implied consent to the images having been posted, or they may have given context to the language which in isolation could be perceived as a threat. The obvious result is a biased account of the exchanges.

110In situations where only a portion of an exchange such as this is available, and as in this case a particular utterance is known to have context but that context is unknown, it may be impossible to know the meaning of those words. In cases where the words may have relevance, but their meaning is speculative rendering their probative value tenuous and the prejudicial effect considerable, the words are generally excluded: see R. v. Hunter, 2001 CanLII 5637, 54 O.R. (3d) 695 (C.A.), at para. 19; R. v. Ferris, 1994 ABCA 20, 149 A.R. 1; aff’d 1994 CanLII 31 (SCC), [1994] 3 S.C.R. 756. This exhibit was introduced without objection from the defence and as a result the very poor quality of this evidence was not considered in a voir dire and not apparent until sometime after it had been introduced. [Section 32 requirements were conceded to by this defence but the low quality of that evidence speaks to weight.]

111For all of these reasons I placed the evidentiary value of the content of the various conversations represented in Exhibit No. 1 at the very low end of the spectrum.

The evidentiary value of Exhibit No. 1 as to who authored the various conversations

112I reiterate that had the police searched that cell phone and those computers I would potentially have had the necessary evidence to determine whether the phrasing attributed to Mr. S. had been initiated by him or by Ms. K. Without that evidence it is impossible for me to know with the certainty required in a criminal trial.

113Ms. K. maintained that I should accept that Mr. S. authored all of the comments attributed to him in those conversations. To the contrary, as said above, Mr. S. maintains that Ms. K. was from time-to-time actually talking to herself in those conversations.

114I have no way of knowing the truth of either of those scenarios.

115Based upon the evidence at trial I am left with no reasonable doubt that much of the conversation attributed to Mr. S. in Exhibit No. 1 was authored by him.

116That said, I find his assertion that Ms. K. had been talking to herself in some of those conversations plausible, because for example, at pages 5–21, Ms. K. states “but I remember [L.] is talking with [L.]”. It was Ms. K.’s evidence that comment was intended to convey that it would not make sense for herself to be talking to herself, and accordingly I should not find that it was her behind these messages. That interpretation may be correct. Unfortunately, it lacks the appropriate context for me to make that determination.

117I find the language “[L.] is talking with [L.]” is potentially also consistent with Ms. K. simultaneously operating both the S.R. Skype account and the ZZZZ Skype account, and thereby controlling both sides of the conversation as was suggested by Mr S.

118Consistent with that conclusion, there was evidence as to several ways that a person can pose as another on Skype.

119As an example, there was consensus between counsel that the name of a Skype account cannot be changed. The name of the Skype account in question is S.R. There was also consensus that the name which appears at the top of the profile page can easily be changed. In the account in question that name was LK Rouge. I will call that the contact name. It is the contact name which appears in the portions of most of the exchanges in Exhibit No 1. Further, the account S.R. has no proprietary interest in the name LK Rouge.

120It follows that anyone could rename the contact name in any account to LK Rouge. If the profile page of the sender cannot be seen then there is no way of knowing whether a message purporting to be from LK Rouge originated in the S.R. Skype account or some other Skype account. That is the present case. I reiterate that many of the messages in Exhibit No. 1 are incomplete. Many do not contain that profile page and, accordingly, it is impossible to know with any certainty whether they originated from the S.R. Skype account or some other Skype account.

121As another example, taking the Crown’s case at its best and presuming that Ms. K. had been blocked from the LK Rouge account, Ms. K. acknowledged that it was simple to gain access to a Skype account without the password. She explained that each account has a contact reference which is either an email account or a phone number. I reiterate that the contact number which appears on the S.R. Skype account profile page is Ms. K.’s cell phone number, though she could not remember why. It was her evidence that she could not recall whether a text from that phone could be used to reset the password. To be blunt, I had a great deal of difficulty believing that she would not be able to remember why her phone number appeared on that page and whether it could be used to reset the password. To the contrary, Mr. S. testified that was precisely the reason for that phone number appearing there.

122In any event, presuming that the phone number which appears on the profile page is the number from which a text resetting the password would be sent, Ms. K. could at any time have accessed the S.R. Skype account and had a Skype conversation with herself.

123Similarly, Constable Burke testified that a Facebook account can be accessed by anyone, from any computer, anywhere in the world if there is no password. He also testified that a Skype password is known then a Skype account may be accessed on any computer, by anyone, from anywhere. It was also his evidence that Facebook does not take any steps to ensure that an individual account holder is who he or she says they are. In other words, anyone can set up a Facebook account making it appear as though it is the account of someone other than themselves. Similarly, there is no limit on how many Facebook accounts an individual can have.

124Constable Burke testified that in his experience Skype accounts like Facebook accounts are similarly accessible to third parties, and that Skype is similarly vulnerable to third parties opening accounts in someone else’s name.

125In summary, the evidence at trial supports the conclusion that the name LK Rouge appearing in a Skype message is in no way dispositive of the question of whether or not the message originated from the S.R. Skype account. I reiterate that the Crown had the necessary tools to determine whether it was in fact Mr. S. who had control of the S.R. accounts during the relevant timeframe, but failed to use them.

126I conclude that Ms. K. was well aware of the possibility of feigning a message to make it appear as if it was coming from another individual because of the familiarity that she showed with these programs through her testimony. That conclusion finds support in the evidence of Ms. K. Defence counsel put a message to her, from Ms. K. to Mr. S. where she says “I will fuck someone and send u a pic”. Her first reaction was to state that Mr. S. had sent the message using her account. In other words, she is well aware of the ease with which one individual can pose as another individual in such a message.

127Prior to leaving the issue I find it necessary to consider an assertion made by Ms. K. with respect to the issue of who had authored the communications attributed to Mr. S. in Exhibit No. 1.

128She testified as to similarities between messages known to have been sent by Mr. S. to those Mr. S. denies having sent. It was her position that those similarities establish that it was Mr. S. who had authored the messages attributed to him.

129As an example, the messages all use the term “wiz” instead of the word “with”. Ms. K., however, candidly acknowledges that she uses that same expression from time-to-time.

130As another example, there are references to a television show about zombies in both sets of messages. It seems to me that anyone attempting to disguise themselves as Mr. S. could have included references to that television show in an effort to add credibility to a deception. Similarly, there are references to Guatemala, where Mr. S. lived for four years. Again, anyone with knowledge of Mr. S.’s stint in Guatemala could have added such a reference in an effort to give credibility to a deception, and Ms. K. would likely have such knowledge given the former relationship with Mr. S.

c) The recordings

Introduction

131The Crown also entered video recordings of two Skype conversations which had been taken from Ms. K.’s computer by the police. The Crown introduced those recordings to demonstrate the proposition that Mr. S. had threatened to post the photos of Ms. K. with J. and D. on the Internet without Ms. K.’s consent in order to extort money from her. The chats were instigated by Ms. K. and surreptitiously recorded in anticipation of court proceedings. Ms. K. was in Aley, Lebanon at the home of her cousin J.R. at the time. The chats are preceded by a Skype text exchange that Ms. K. maintains took place between her and Mr. S. immediately prior to the Skype video exchanges.

The Skype text exchange which precedes the video chats

132That Skype text conversation is the only written communication that I was made aware of that mentions the two intimate images in the context suggested by the complainant, and that anyone could confirm had taken place on a particular date.

133In that exchange, S.R. states “I took your pics out” and then “u don’t have any pic on Facebook”. A few minutes later Ms. K. states “u want us to talk I have half an hour remove ur friends that u show them my face and my body and this fat guy”. Ms. K. confirmed that the reference to “this fat guy” was a reference to J.

134I make the following observations regarding that language.

135The first observation is that for the reasons which follow, I agree with a defence suggestion that the comments attributed to Mr. S. may not have been made by him.

136I am aware that the Crown suggested that I conclude the comments were made by Mr. S. because the video chat immediately follows that text chat, and Mr. S.’s face can be clearly seen in the video chat.

137While that is true, it is equally likely to conclude that Ms. K. had access to the password for the S.R. Skype account and that she could have logged into one computer as herself, and another as S.R. and had that text conversation with herself immediately prior to the video chat.

138Consistent with that possibility, it was Mr. S.’s evidence that he had not had access to that account since August 2015 and that he had been given the password to the S.R. Skype account shortly before the video communication had taken place. To be clear, I am not, on the frail evidence before me, finding that that is what occurred. I am only concluding that a staged exchange is plausible in the circumstances.

139The second observation is that the reference to the pictures comes after the comments attributed to Mr. S. In other words, presuming Mr. S. is participating in that conversation, it is not at all clear that he is necessarily talking about the two images in question when those comments are made. Only a portion of the text conversation was reproduced. Ms. K. herself acknowledged that it was impossible to know precisely what was meant by that language without seeing the texts that preceded the portion of the message which appeared in the recording.

140The third observation is that Ms. K.’s request is not to remove images, but rather for Mr. S. to remove friends from his Facebook account that she says may have seen that picture. That request has nothing to do with either offence with which Mr. S. has been charged.

141While Ms. K.’s language may be consistent with a withdrawal of consent, or a confirmation of lack of consent, two additional things are also clear. The first is that I have no way of knowing whether Mr. S. was participating in that communication and accordingly was aware of the withdrawal of that consent. The other is that according to the plain language of that exchange, as of the point in time that the conversation took place, there may have been no images on the Internet.

142I am aware that there are some passing references to intimate images throughout the exchanges in Exhibit No. 1. Those references are however of little assistance to the Crown in giving context to the above exchange. That is because, as said above, Ms. K. was unable to say when any of those text, Skype, and Facebook conversations had taken place. In other words, those references may have predated the text which precedes the video and, accordingly, preceded the first date where there is anything other than Ms. K.’s word to suggest that she may have withdrawn a previously given blanket consent to a particular group of identifiable images of her appearing on the Internet.

143Similarly, while I am also aware of the references to the images in the videos, almost all of the references to the images in the videos is by Ms. K. In other words, they may have been nothing more than a self-serving effort by Ms. K. to support her contention that Mr. S. had threatened to put those photos on the Internet to extort money from her.

The reliability of the evidence portrayed in the video chats

144I reiterate Mr. S. maintained that in portions of those videos Ms. K.’s voice has been recorded over and portions are simply missing.

145The Crown asked that I find that the videos are an accurate representation of what occurred. There were two overarching reasons for that request.

146One was that in the second video a reflection of Ms. K.’s face can be seen. The Crown proposed that I should accept that as evidence that it was Ms. K. talking at the time and, accordingly, that the recording had not been altered. I agree with the Crown’s proposition that Ms. K.’s reflection can be seen in the second video during the various timeframes when Mr. S. is not speaking. That said, the reflection is faint. I was often unable to even see if Ms. K.’s lips were moving, let alone ascertain whether the movement of her lips appeared to be synchronized with the language attributed to her during the times Mr. S. was silent.

147The other reason given by the Crown was that there were a significant number of times when sounds other than talking appear to correspond with visual components of the recording. As an example, at one point Ms. K. says Mr. S. is “fucked up”. Shortly after that is said it appears to be audible on Mr. S.’s end of the conversation. I do agree that the conversation attributed to Ms. K. at that particular point in time is likely hers as a result.

148That said, none of the other examples were necessarily consistent with that conclusion. For example, on one occasion the computer screen seems to shake at the same time a noise consistent with someone bumping the table can be heard. I do not find that evidence is only consistent with the recording being an accurate depiction of what occurred during the conversation. I say that because as said above, the recordings were made by Ms. K. on her cell phone and then transferred back to the same computer which they had come from.

149As a result, the video may have been edited at three different points in time. The first was on Ms. K.’s cell phone before being transferred back to her computer. The second is on the computer itself, prior to being videoed by the cell phone. That is because I find it possible that the recording in evidence may be a recording made of a recording. That result could have been achieved by Ms. K. having recorded the Skype conversation on her computer, then re-recorded it on her cell phone at a later time, and then transferred that recording to her computer, from where the police copied the recording. The third opportunity would be after the video was taken with Ms. K.’s cell phone and had been transferred to her computer. I reiterate that the police made no effort to ascertain whether or not that had occurred. I reiterate that it was not Ms. K. who had done that transfer and the individual who made that transfer did not testify. As a result, there were several opportunities for those videos to have been edited. Ms. K. was incapable of testifying definitively as to whether or not such editing had taken place, because it was not her who had performed at least one of those transfers.

150I am aware that generally in situations where videos are not continuous — in the sense that not everything that occurred was originally captured in the recording — such concerns generally go to weight where the probative value is something more than trifling: see Landolfi v. Fargione, 2006 CanLII 9692, 79 O.R. (3d) 767 (C.A.), at paras. 57 and 66. Here, the probative value is significant. Notwithstanding, given my findings as to reliability and credibility, and given the very prejudicial effect of these recordings, I placed the evidentiary value of these recordings at the very low end of the spectrum. The following are my reasons for having done so.

151Mr. S. concedes that the video recordings are themselves recordings of two Facebook video chats that occurred in December 2015; that it is Mr. S. who appears in that recording; and, that the language attributed to him in that recording is his own.

152I reiterate that the recordings are not a copy of what was actually visible on the screen taken from the source computer, but rather a recording made of the screen of that computer with Ms. K.’s cell phone. The cell phone did not capture the entire screen in either video. As a result, it is impossible to know what else may have appeared on the portion of the screen which cannot be seen in the recording.

153In assessing the reliability of that evidence I also find it important to establish the purpose for the video chats in order to give context to what occurs within them. I am aware that Ms. K. maintained that she had not initiated those chats with a view to, in her words, “setting up” Mr. S. I do not believe Ms. K.

154She can be heard saying “he is suspicious” before Mr. S.’s face appears on the screen. She can be seen in the camera overjoyed after the second video chat ends. She testified that the reason for her joy was the belief that she had obtained evidence that it was Mr. S. who had posted the images in question. Similarly, her cousin X, who I reiterate was present but could not be seen by Mr. S. at the time the video conversation occurred, can at one point between the video chats be heard telling Ms. K. to let Mr. S. talk and that in X’s words “he will fall”. Perhaps the most compelling reason, however, is Ms. K.’s repeated accusatory narratives throughout that video chat which, for the most part, appear out of context with the rest of the conversation. It appears those narratives were intended to create evidence linking the photos in question with Mr. S.’s demand for payment of amounts he believed owing as a result of their breakup.

155Consistent with the principles enunciated at para. 94 of the decision in Iannarella v. Corbett, 2015 ONCA 110, 124 O.R. (3d) 523, the footage was reviewed with a view to attempting to ascertain whether or not the recording had potentially been tampered with, as was suggested by Mr. S.

156There was consensus between myself and both counsel that a series of clicks could be heard throughout a portion of the video that was played. Those clicks often occurred at a point in time when Ms. K. appears to be talking. To be clear, there was no evidence as to what those clicks were other than Ms. K.’s suggestion that they could have been from either her cigarette or her drink.

157On the frail evidence before me it is not possible to make a definitive conclusion as to what the clicks actually were. That said, the clicks are potentially consistent with the theory of the defence that they may potentially represent splice points in the recording of the conversation.

158That defence theory also finds support in the video itself. At one point, Ms. K. is frantically asking to see Mr. S.’s hands. She asks whether he is recording the conversation. It defies common sense that she would be afraid of him recording a conversation that she herself was already recording. That is, unless, what was represented in the two recordings turned out to be different.

159Further, Ms. K. acknowledged that Skype has the option of showing the face of each person in a small box on the screen of their own computer so that each can see what the person on the other end of the call is viewing. It was her evidence that option had been turned off on her computer and she was unaware of how to turn it back on. Had that option been turned on it would have been of assistance in determining whether or not portions of the audio attributed to Ms. K. had been taped over, as suggested by the defence. It is difficult to avoid the conclusion that Ms. K. may have deliberately turned that function off.

The contents of the video chats

160One theme in the video conversation is Ms. K. stating that she will pay the rent and credit card money in exchange for Mr. S. removing people from his list of Facebook friends, such as her friends and family, and friends that she said have seen the images at issue. I reiterate that, as of that point according to the text exchange that preceded the videos, there were no images on Facebook. At that point in the conversation it is Ms. K. who is clearly withholding those payments in order to get something that she wants, and that has nothing to do with the removal of the photos themselves from the Internet. It is not Mr. S. who is requesting the payment in exchange for something.

161Another theme is that, contrary to Ms. K.’s suggestion that Mr. S. was the aggressor in that conversation, he often appears to be on the defensive. After one of the narratives referred to immediately above, Mr. S, says “you want me to look bad.” At another point he says to Ms. K., “you want to bury me.”

162A third theme is that, as said above, Ms. K. can often be heard giving long accusatory narratives suggesting that Mr. S. is threatening to post the offending images if she does not give him money.

163The Crown invites me to take Mr. S.’s failure to respond to those repeated accusations as an admission, relying on the principles enunciated at para. 247 of the decision in R. v. Beauchamp, 2015 ONCA 260, 326 C.C.C. (3d) 280, citing R. v. Robinson, 2014 ONCA 63, 118 O.R. (3d) 581, at paras. 48–58.

164I do not find it appropriate to do so. There are several reasons. As said above, I have little doubt that the purpose of Ms. K. having initiated the videoconferences was to obtain an admission from Mr. S. Those long narratives are her version of events. Further, the narratives generally lack context with what comes before and after them.

165Additionally, Mr. S. from time-to-time seems confused by the narratives: see Robinson, at para. 49. As an example, during one of those narratives, Mr. S. asks “is this a conversation of what you are telling?” Consistent with my observations above regarding those narratives, I found Mr. S.’s language consistent with him asking why she was making a narrative instead of engaging in the conversation at hand. Ms. K. then says “why are you posting my images on the Internet, what do you want from me?” Mr. S. then asks “why do you ignore me?” I, again, found that language was consistent with Mr. S. asking why Ms. K. was making the narrative instead of answering his question.

166I find the language chosen by Ms. K. in both examples to be consistent with Ms. K. intentionally attempting to make a link between the images and money to serve her own ends, rather than engaging in a conversation. I also conclude that Mr. S. appears to be having some difficulty understanding why the comments are being made by Ms. K.

167Finally, toward the end of the second video chat, the language which Ms. K. attributes to herself states “and a longer you are going to put my pictures and you remove everything (everybody between us). (Not between us actually you added people not in your life, they are in my life).”¹ It is clear from the language which follows that the second part of that quote is referring to Ms. K.’s demand that Mr. S. take any mutual friends off of his list of friends on Facebook.

168That language is also consistent with the conclusion that the images at issue here were not on the Internet at that point in time. This is in contrast to what was asserted by the individual, which Ms. K. says was Mr. S., in the immediately preceding Skype text conversation. In other words, taking the Crown’s case at its best and presuming that it were proven that Mr. S. had put the intimate images on the Internet, the evidence supports the conclusion that the images were off the Internet at the time of that conversation. I reiterate that is the only request for removal of images that the Crown was able to prove had taken place at a particular point in time. Accordingly, even if Mr. S. had put the images on the Internet, they may well have been removed prior to withdrawal of consent.

Conclusions as to the recordings

169In summary, I find the reliability and credibility of both the text messages and the video chats represented in the recording to be questionable.

170I find that they were undoubtedly an attempt by Ms. K. to obtain evidence against Mr. S. in preparation for this trial. I also find that, in doing so, Ms. K. made laborious attempts to make a link between the money and the images. I also find that such a link may possibly have never existed.

171I also find that the videos may have been edited by Ms. K. in an effort to make their content more favourable to what she perceived to be her interests.

172For all of these reasons, I find that the recording is of little evidentiary value to the Crown.

d) The evidence of L.K. and the credibility of that evidence

173I reiterate that I found Ms. K.’s evidence to be lacking in both reliability and credibility. I also found her evidence to be, from time-to-time, internally inconsistent and/or lacking in common sense. Further, I found that there were occasions she was likely tailoring her evidence to suit what she perceived to be her needs. I also found her evasive during cross-examination. Finally, after Ms. K. had been testifying for some time, it became apparent to me that she was often speaking of conclusions which she had drawn as if they were facts.

174The following are examples of further difficulties that I had with Ms. K.’s evidence.

175The first example goes to Ms. K.’s candid admission about her regard for the truth. She testified that “when people live together they don’t always tell the truth — they may have an agenda”. She also said “women lie about everything sometimes.” Ms. K. however denied that she was lying in these proceedings.

176To be clear, I do not share Ms. K.’s view about women lying about everything sometimes. I, however, do accept that that is an accurate portrayal of Ms. K.’s view of her own regard for the truth.

177The second example goes to Ms. K.’s often-repeated position that while she consented to intimate images of her alone being put on the Internet, that she had never consented to images of herself nude with another person being posted.

178According to Ms. K., page 3–6 of Exhibit No. 1 is part of a Facebook message purported to be sent from the S.R. account. Counsel described it as the profile page or Skype site page. The profile photo depicts a man and a woman who are both undressed and who appear to be having sex with one another. Ms. K. identified the people in the image as herself and Mr. S.

179That image would be contained in every message to every person messaged from that account unless specifically blocked. In other words, that image would most likely have been shared with many others during that timeframe. I was not directed to any language in any of the contemporaneous messages to suggest that Ms. K. objected to that image being used at that point in time. To the contrary, Ms. K. acknowledged that she had herself used that account during the timeframe in which that image appeared. I find her use of that account while that image was clearly displayed consistent with consent. Again, I am not suggesting that her consent to that image equates to consent to the two images in question. The reason this evidence is important goes to credibility. It stands in stark contrast to Ms. K.’s evidence that she had only consented to nude images of her alone being posted on the Internet.

180The third example relates to Ms. K.’s initial, persistent, and repeated denial of any possibility of having copies of the images at issue. It was a theory of the Crown that only Mr. S. had copies of the images and, as a result, it must have been him who put them on the Internet. To the contrary, the defence maintained that it had been Ms. K., or one of her friends or relatives, who had posted the intimate images in an effort to trap Mr. S.

181In examination-in-chief, Ms. K. testified that the screen on her iPad had broken in 2014, and that her iCloud back up had failed, so at that time she permanently lost all of the images on that device. Ms. K. had an iPhone at the time to which she could have transferred those images and so had a device to which she could have downloaded whatever was stored in the iCloud. In other words, there was initially no reason for me to disbelieve her assertion that the iCloud back up had failed in the fall of 2014 and that as a result she had lost all of her copies of those images.

182In cross-examination, Ms. K. testified that she had purchased a new iPhone in the summer of 2015 and that had been when the iCloud failed. It was her evidence that as a result she was unable at that time to recover her data, including the images stored on that phone.

183There was no suggestion at any time that there were two iCloud back up failures.

184It is difficult to escape the conclusion that Ms. K. simply forgot the details of a made up story that she was telling. It is also difficult to escape the conclusion that her evidence that the iCloud back up failed was an attempt to distance herself from having possession of the images in question. There are several reasons.

185The most obvious is that if Ms. K. had lost all of the information stored on her iCloud account then it would have been impossible for her to retrieve the documents represented in Exhibit No. 1.

186Another is that in cross-examination she also intimated that Mr. S. may have had the necessary access to the iCloud account to restore the information on her phone. In this version of events the issue was not whether the iCloud had somehow failed but rather who had access to this account. It was her evidence that she had not asked him to do so. To be clear, the missing information included everything on her phone, such as her contact list. I find it difficult to believe that if the information had truly been lost that she preferred to re-enter all of her contacts rather than simply ask Mr. S. for assistance. I say that because Ms. K. and Mr. S. were according to Ms. K. still close enough friends to attend nude resorts together potentially as late as July 2015.

187For all of these reasons I find it likely that Ms. K. lied about having lost access to those images as a result of an iCloud failure.

188The fourth example is also related to Ms. K.’s potential access to those images.

189Ms. K. testified that all of the images were stored on Mr. S.’s computer. She initially maintained that only Mr. S. has access to the computer and that it is password-protected. It was her evidence that she does not know the password. As a result, I was initially left with the impression by that evidence that she did not have access to the images.

190Much later, in examination-in-chief, Ms. K. said that she had made a mistake in her evidence and asked to clarify. She again stated that she had broken her iPad screen in 2014 and that, as a result, she was without a computer for approximately three months. Ms. K. however acknowledged that during that timeframe she had the password to Mr. S.’s computer and had used it freely.

191Ms. K. nevertheless denied ever having accessed Mr. S.’s email, Facebook account, or Skype account during that timeframe. As is more fully considered below, that evidence, like much of Ms. K.’s evidence, morphed throughout her testimony.

192She also denied ever having accessed Mr. S.’s Skype account after that time. It was her evidence that she is unaware of whether the password was ever changed.

193The fifth example also relates to Ms. K.’s potential access to those images.

194It was her evidence that in October 2014, she purchased a new Surface Pro tablet. She was asked who had transferred what data to the new computer. It was her evidence that she does not know much about computers and so she had relied on Mr. S. to do that for her. She initially stated that everything had been transferred from his computer to hers. I took that to include images.

195Shortly after, Ms. K. said that nothing had been transferred. Shortly after that, she said that she did not know what if anything had been transferred from Mr. S.’s computer to hers.

196In other words, all of the images existing up to that date could well have been transferred from Mr. S.’s computer to Ms. K.’s at that point in time, including the intimate images at issue. Her morphing evidence in that regard causes me concern. Of interest, Ms. K. still uses the same Surface Pro tablet. As a result, I find that contrary to Ms. K.’s steadfast denial of having access to those photos that she may well have had access during the relevant timeframe, and may continue to have access to those images today.

197The sixth example relates to who, other than Mr. S., may have had access to the images in question.

198Ms. K. acknowledged that she would from time-to-time send copies of intimate images of herself alone to other people. In examination-in-chief she could only remember two people that she had shared these photos with, but as the cross-examination continued defence counsel gave Ms. K. several new names of people that he suggested she had sent nude photos to. He did so one at a time. Her answer was almost always “maybe”.

199I reiterate that Ms. K. professed a staunch and unwavering recollection that the two photos in question had never been shared by herself with anyone else. It seems to me the veracity of that recollection must be tested given her imperfect memory as to other aspects of those transactions. I have some difficulty believing that Ms. K. could not recall who she had sent photos of herself to, yet could recall with certainty what images had been sent to those people. Again, I find it more likely than not that Ms. K.’s memory in that regard is a memory of convenience. Consistent with that observation, when pressed by defence counsel Ms. K. acknowledged that she was not completely sure that the image of her and J. had not been shared with J. at some point in time. To be clear, she did state that she was 99 percent sure.

200The seventh example is that Ms. K. ultimately agreed, in cross-examination, that she could not recall if Mr. S. had ever told her that he was giving either one of the images in question to anyone else. Her answer was “maybe”. That answer stands in stark contrast to her initial evidence to the effect that did not happen.

201The eighth example also relates to who had access to those images. Ms. K. left the impression time and time again that Mr. S. had taken the videos with his device.

202In cross-examination, she acknowledged that the videos of D. and possibly J. had been taken with her own video camera. Defence counsel suggested that as a result she would have had access to those videos from that camera. Ms. K. testified that she could not remember whether she had taken her video camera with her when she moved. She also testified, in re-examination, that she had no idea how to run her video camera.

203To be blunt, I find it difficult to believe that Ms. K. would own a video camera that she had never been able to operate. I also find it difficult to believe that she could not recall whether she had taken something as valuable as a video camera with her when she had moved.

204Later in her cross-examination, and after she had time to reflect on the issue, Ms. K. took the position that she had asked Mr. S. to remove all of the videos from her video camera each time it had been used. It was difficult to escape the conclusion that Ms. K. concocted that explanation after having considered the implications of her owning the video camera which had recorded the videos that the intimate images had been taken from.

205To that I would add that, as said above, Mr. S. denied that he was present when the videos had been made. My findings above tend to support the plausibility of Mr. S.’s contention. In other words, Ms. K. may have been the only person who had access to those videos.

206The ninth example relates to the defence’s theory of the case. I reiterate that the defence agrees that Mr. S. requested money from Ms. K., but maintains that he had only asked for money that was owed as a result of their cohabitation.

207Ms. K. initially left the impression that the money being requested was not a legitimate debt. She specifically testified that she did not feel obliged to pay further rent after the breakup. She maintained that she had given Mr. S. the option of either taking the apartment or leaving. She implied that whoever stayed would pay the rent.

208I find that evidence incompatible with the preponderance of evidence on the debts owed. Ms. K. acknowledged that she was in Canada on a sponsorship application for citizenship and that Mr. S. was her sponsor. She acknowledged that after the breakup, Mr. S. would no longer be a sponsor and as a result she would not be able to live in Canada. As a result, she would have had to return to the United States. She also acknowledged owning a home in Sterling Heights where she would be able to live.

209In other words, Ms. K. did not have the necessary legal status to stay in the apartment. It necessarily follows that her professed offer to do so was an impossibility. It is difficult to avoid the conclusion that Ms. K. tailored that evidence to fit with her assertion that the money requested was simply extortion.

210Prior to leaving this issue, I reiterate that I am aware that even if the accused had a lawful right to the money requested, or entertained an honest belief as to such a lawful right, it is still open to the Crown to prove the crime of extortion. This evidence is only important to the issue of Ms. K.’s credibility.

211The tenth example relates to that same area of the defence.

212Ms. K. testified that the relationship had broken up because of money management problems. Yet she maintained that there had been no discussion about money issues during the breakup. That not only lacks common sense, but lacks harmony with the language in many of the messages which she put into evidence.

213Again, it is difficult to avoid the conclusion that Ms. K. wanted to distance herself from the fact that Mr. S. had characterized the money which he was requesting as money for rent and credit card bills, and thus tailored her evidence to fit with her assertion that the money requested was a money grab on Mr. S.’s part. Consistent with that observation, at page 3–29 of Exhibit No. 1, Ms. K. states “if u think I owe u make a list and I will pay u.” Ms. K.’s offer to pay is clearly inconsistent with her position that the money being discussed is nothing more than a money grab.

214The eleventh example is that Ms. K. testified that the only persons who knew that her ex-husband had been to court with respect to insurance fraud charges were herself, Mr. S., her ex-husband, and the lawyer. That evidence was presumably intended to establish that it could have only been Mr. S. who had authored certain messages.

215I find that proposition defies common sense. It is obvious from the evidence that there were court proceedings. Court proceedings are open to the public. There would be any number of people aware of the charges. In addition, it does nothing to reduce the plausibility that Ms. K. authored some of the messages.

216The twelfth example relates to Ms. K. speaking of conclusions which she had drawn as if they were facts. As an example, Ms. K. testified that in the message which appears at page 3–22 of Exhibit No. 1 Mr. S, is threatening her.

217I find the plain language chosen by the parties in that particular exchange to be inconsistent with that conclusion. Ms. K. says “so u want my help for 10 days and u have been threading me.” In cross-examination, Ms. K. acknowledged the word threading meant threatening. The response which she attributes to Mr. S. is “threatening I will never threaten no on one.”

218The apparent incompatibility of that language with her interpretation of what Mr. S. had meant by the language in that exchange was put to her by defence counsel. Defence counsel asked on three separate occasions, and in three separate ways, whether the language was consistent with someone making a threat. Ms. K. simply refused to answer the question. That was not the only occasion on which Ms. K. had been evasive during cross-examination.

219The thirteenth example relates to the S.R. Skype account. Ms. S. was initially adamant that she had never used that account and had never even had access to it.

220I find that assertion difficult to believe when considered in the context of the evidence in Exhibit No. 1. While Ms. K. and Mr. S. were still together the name that those with whom the account were communicating would see is LK Rouge. I reiterate that the letters LK are Ms. K.’s initials. Ms. K. acknowledged that the phone number displayed on the profile page while the parties were together had been hers. She also acknowledged that the birthday displayed on the profile page is hers. That evidence is all consistent with Ms. K. having had at least some interest or access in that account.

221Again, Ms. K.’s evidence morphed as her cross-examination continued. She ultimately acknowledged that she and Mr. S. had often used the S.R. Skype account together. Asked whether or not the Skype account was in fact a joint account between her and Mr. S., she said that she could not remember. In other words, she did not deny that it may have been a joint account as was maintained by Mr. S.

222Ms. K. at one point also acknowledged that there may have been occasions when she had used the S.R. Skype account and the S.R. Facebook account in Mr. S.’s absence.

223The fourteenth example relates to Ms. K.’s knowledge of computers. In her examination-in-chief she left the impression that she knew very little about computers.

224In cross-examination, she acknowledged using a computer program known as “Quick Book” to do accounting for the three companies owned by her and her ex-husband. She had done that computer work for something more than ten years.

225Ms. K. also acknowledged, in cross-examination, that she had operated her Facebook and Skype accounts for in excess of ten years. In cross-examination, she also acknowledged that she knew how to open and close Facebook accounts and Skype accounts, and how to obtain and block friends. As of today she has approximately 1,100 Facebook friends, all of whom have access to her wall. During the relevant timeframe, she had approximately 170 friends on Facebook and somewhere between 9 and 13 Skype contacts. She had an Instagram account, but said that it was her son who had posted the images on that account for her. Yet, in cross-examination Ms. K. acknowledged an ability to also send images through a program called “WhatsApp.” She also knew what an IP address was and what it is used for.

226Ms. K. further testified that after the breakup she was able to follow what Mr. S. was posting on his Facebook account by opening a second Facebook account under the name “I M”. She later changed the name of that account to “[G.T.]” to maintain anonymity.

227I conclude that Ms. K. deliberately misrepresented her knowledge of computers. I conclude that it is very possible that Ms. K. had the necessary knowledge of computers to feign being Mr. S. in the messages which appear in Exhibit No. 1 in the manner suggested by the defence. Further, I find it difficult to escape the conclusion that her repeated claim to a lack of computer knowledge was a deliberate attempt to distance herself from the possibility of me coming to that conclusion.

228Ms. K.’s computer literacy is further considered below in the context of the evidence of Mr. S.

e) The evidence of S.S.

The reliability and credibility of his evidence

229I also had difficulty with the reliability and credibility of Mr. S.’s evidence. I found it from time-to-time internally inconsistent and/or lacking in common sense. Like Ms. K., I also found that Mr. S. was likely tailoring his evidence to suit what he perceived to be his needs.

230I also found him extremely evasive during cross-examination, often taking opportunities to make narratives as to issues unrelated to the question asked. In those narratives he generally attempted to paint himself as a victim and Ms. K. as the aggressor.

231The following are examples of the difficulties I had with Mr. S.’s evidence.

232The first example was his suggestion that the pictures being referred to by Ms. K. at the beginning of the second video were photographs of a note discussing who was to receive some of Mr. H.’s assets, and two cheques on the estate bank account that Ms. K. had improperly written to herself and cashed. That assertion found no support in the evidence. Such photographs were never mentioned in the documentary evidence or in the videos. Nude photographs were. I concluded that Mr. S.’s evidence in that regard was most likely made up in an effort to distance himself from the intimate images in question.

233The second example relates to Exhibit No. 5. Mr. S. maintained that is a text exchange between him and Ms. K.. The Crown suggested that Mr. S, had gone home and printed that message in the middle of this litigation. Mr. S. denied that suggestion. It was Mr. S.’s evidence that he had printed it from his computer a long time ago and it was just lying around in his apartment. He had not brought it with him to the court house because he did not think it was relevant.

234The Crown asked why he would have printed a copy of that text exchange a long time ago if not in preparation for this litigation. The Crown suggested the proposition lacked common sense. I agree with the Crown. Mr. S. did not give a reasonable explanation for having done so. To be clear, nothing turns on when or why that text exchange had been printed. The evidence is only relevant from the standpoint that it negatively impacts upon Mr. S.’s credibility because his answer lacks common sense.

235The third difficulty was that, as said above, Mr. S. testified that he did not have a Skype account of his own from August 2015 until March 2016. He also stated that he did not use a Skype account during that timeframe. Mr. S. explained that he did not have any need for a Skype account because he did not have anyone to talk to on one. Yet, there were Skype conversations in evidence which may well have taken place during that timeframe and which I conclude that Mr. S. may have participated in.

The evidence the Crown relies upon to implicate Mr. S.

236There are points in the documentary and video evidence that tend to support the position of the Crown. Perhaps the best example appears at page 6 of the transcript of the second video. The language attributed to Ms. K. says “and a longer you are going to put my pictures and you remove everything”. Mr. S. replies “okay I will do everything now, I told you”. Shortly after he says “right now I will remove all.”

237I make the following observations regarding that language. The first observation is that Mr. S.’s agreement to “removes all” only takes context from the prior language, attributed to Ms. K., relating to the images. If that part of the video had been dubbed, as is maintained by Mr. S., that comment loses all context. The second observation is that the language directly contradicts language attributed to Mr. S. in the Skype text exchange that Ms. K. maintains took place immediately prior to the video chat. I reiterate that there Mr. S. says “I took your pics out” and then “u don’t have any pic on Facebook.” In other words, taking the Crown’s case at its best, and presuming all of the language attributable to Mr. S. in the text was actually authored by him, that language is internally inconsistent. As a result, I have no way of knowing whether the pictures were even on the Internet at that point in time. If they were, I have no way of knowing who posted them on the Internet.

238As another example, at one point the statement attributed to Mr. S. reads “u were married and u committed adultery and u left and I have the proof to back it up.” Ms. K. asserts that is a threat to show her family members the images of her with J. and D. Ms. K. and Mr. S. were, however, not married; they lived common law. They had what they both referred to as “common-law papers” to govern that common-law relationship. I conclude that whatever it is that is being discussed in that passage, it more likely refers to Ms. K.’s potentially having been unfaithful to her ex-husband F. I say that because Ms. K. testified that she was married to him.

f) Conclusions as to the charge of publication of an intimate image contrary to [section 162.1](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)

239As said above, given the credibility and authenticity concerns around the evidence at this trial, it is difficult for me to know with any certainty what occurred during the relevant timeframe.

240There is consensus that the images of J. and D. are intimate images within the meaning of the section. There is also consensus that they appeared on the Internet.

241The questions raised by the evidence are who put the images on the Internet; whether or not Ms. K. had consented to those images being on the Internet, either through a blanket consent for an identifiable group of images that she and the accused shared, or by individual consent; if so whether that consent had been withdrawn; and if consent was withdrawn, when was it withdrawn?

242For the reasons stated above, as said above I conclude that it is most likely that both Ms. K. and Mr. S. had copies of the intimate images in question.

243I also find that it is plausible that Ms. K. had either at one time given a blanket consent for all of the images to be put on the Skype and Facebook accounts which they shared, or put them on the Internet herself. As said above, according to Ms. K. the singular distinguishing feature of these images from the many that she had consented to being posted was that they involved her with someone else. I found that assertion lacked harmony with the preponderance of evidence in that regard. I say that because as said above Ms. K. was aware there an image of her and Mr. S. having sex on the Skype account that the two had shared prior to their breakup, and that she had used that account, thereby herself distributing that image of her having sex with someone else. There was no suggestion that she had not consented to Mr. S. also using that account prior to the breakup, thereby also distributing the image of the two of them having sex. To the contrary, it was ultimately her evidence that they were sharing the account at that point in time.

244Although on the frail evidence before me it is impossible to know when that consent may have been withdrawn, I find that it was most likely withdrawn in December 2015 when the video chats took place. I find Mr. S.’s evidence that the October 2015 meeting never took place plausible. I reiterate my finding above that I find it plausible that the offending images were not on the Internet at that point in time.

245As a result, I find that the Crown has failed to demonstrate beyond a reasonable doubt that there were any intimate images of Ms. K. on the Internet that had been put there by Mr. S. at a point in time when Ms. K. had not consented to them being there.

246Accordingly, I must acquit Mr. S. of the offence of publication of an intimate image contrary to s. 162.1 of the Criminal Code.

4) The Charge of Extortion contrary to [Section 346 (1.1)](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)

a) Introduction

247In order for me to find Mr. S. guilty of extortion, the Crown must prove each of these essential elements beyond a reasonable doubt:

That the accused induced (or, tried to induce) the complainant to do something or get something done;
That the accused used threats or violence to induce the complainant to do something or get something done;
That by using threats or violence, the accused intended to obtain something; and
That the accused had no reasonable justification or excuse for his/her conduct.

248There was no suggestion by the defence that Mr. S. was claiming reasonable justification, nor did I find any basis for that defence. As a result, the live issues that require analysis are whether Mr. S. induced Ms. K. to do something, whether threats were used, and whether Mr. S. intended to obtain something by using those threats.

b) Did the accused induce (or try to induce) the complainant to do something or get something done?

249I find that Mr. S. attempted to induce Ms. K. to give him money for rent and credit card bills. For the following reasons, I also find that that conduct satisfies this element of the offence.

250The language in the statute as to what an accused intends to obtain could not be more broad. The section uses the word “anything”. “[T]he meaning of “anything” in the immediate context of “to extort or gain anything” and inducing any person “to do anything or cause anything to be done” is clearly in keeping with the wide, unrestricted dictionary definition”: see R. v. Davis, 1999 CanLII 638 (SCC), [1999] 3 S.C.R. 759, at para. 43. Further, it is not necessary that the accused have acted on the threat: see R. v. Noël, 2001 NBCA 80, 239 N.B.R. (2d) 269, at para. 9. Finally, as said above it does not matter whether the accused had a lawful right to the money requested.

c) Did the accused use threats or violence to induce the complainant to do something or get something done, and did the accused by using those threats intend to get something?

251The word “threat” in the context of this section is very broad in scope: see R. v. Alexander, 2005 CanLII 32566, 206 C.C.C. (3d) 233 (C.A.), at paras. 71 and 72; R. v. Royz, 2008 ONCA 584, 234 C.C.C. (3d) 205, at para. 9; aff’d 2009 SCC 13, [2009] 1 S.C.R. 423, at paras. 5 and 17.

252One possibility is an overt threat. Another possibility would be “veiled references to possibilities that may constitute threats if, viewed objectively, they would “convey to the mind of the person to whom they are addressed consequences which he fears which he would avoid””: see R. v. Barros, 2011 SCC 51, [2011] 3 S.C.R. 368, at para. 116; R. v. McClure, [1957] M.J. No. 3 (C.A.), at paras. 21–23. The words must be considered contextually, including with reference to any shared knowledge: see Barros, at para. 60.

253Another example which may qualify is the wilful creation by an accused of an oppressive atmosphere which, viewed objectively, would have the effect of giving a targeted individual no choice but to comply with the demand: see Barros, at para. 116.

254I find there is language in Exhibit No. 1 which, in isolation, may be consistent with a threat. There is also, from time-to-time, language consistent with Ms. K. stating that she finds that language to be a threat. For example, she on several occasions expresses a belief that she is being blackmailed.

255Notwithstanding, I find that the Crown has failed to establish these two elements of the offence for several reasons.

256The first reason is that it is not clear that much of the language that could be interpreted as being consistent with a threat is actually attributable to Mr. S. As indicated above, I found that it was plausible that Ms. K. had manufactured some of the dialogue which occurred in Exhibit No. 1 and the recording of the Skype text conversation immediately preceding the two Skype video conversations. I also found it plausible that the video recordings had been edited or altered.

257The second reason is that some of the language which Ms. K. maintains is a threat lacks support in the context of the language surrounding it. For example, the word blackmail is language chosen by Ms. K. I was not directed to any point in the documentary evidence where Mr. S. adopted that language. To the contrary, after one such comment by Mr. K., Mr. S. says “don’t make stories now.” I took that to mean that Mr. S. was stating that Ms. K. was making up the reference to blackmail. To be clear, I am not finding as a fact that Ms. K. fabricated that she was being blackmailed, I simply do not know beyond a reasonable doubt that Mr. S. threatened Ms. K. with blackmail.

258Similarly, at one point a communication attributed to Mr. S. states “i will not deal wiz u any more i will talk to wise ppl to solve my problem wiz is u.” Ms. K. testified that she interpreted that language to be a threat.

259However, in the bubble immediately preceding that statement Mr. S. says “if u don’t want to pay i will find a mediator to claim wht is mine.” I find that language potentially consistent with resort to the legal system for recovery. It seems to me that in the context of the suggestion of mediation, the language objected to by Ms. K. is likely not a threat. To be clear, I am not finding that Mr. S. actually meant mediation when he used that word. Again, I simply do not know and thus have a reasonable doubt.

260As yet another example, at one point Mr. S. states “it’s okay I will get my money in a way or another.” Again, that language at first blush is consistent with a threat. That said, on the immediately preceding page Mr. S. had denied that he would ever threaten Ms. K. In addition, I reiterate that it is unknown when that conversation took place, and what evidence came before or after it in those messages.

261The third reason that I find that the Crown has failed to prove this element of the offence beyond a reasonable doubt is that, as said above, the integrity of the documentary evidence had been severely compromised. I reiterate that Ms. K. was unable to say when messages occurred, whether messages were complete or partial, the sequence the messages had taken place in, and whether messages were missing. She also lacked an independent present recollection of messages that were in evidence, thus rendering it difficult or impossible for the defence to cross examine on them. As said above, the missing messages and parts of messages may well have explained the language above that in isolation appeared to be a threat.

262The fourth reason that I find that the Crown’s failed to prove this element of the offence is that both Ms. K. and Mr. S. testified that much of what had been said in Arabic in the two videos did not translate well to English. In other words, the English translation did not reflect the thought intended to be conveyed. As a result, it was difficult for me, as a person who does not speak Arabic, to make a definitive conclusion that a person familiar with the Arabic language would find the language consistent with a threat having been made, and consistent with a reasonable person interpreting it that way.

263The fifth reason that I find that the Crown failed to establish these two elements of the offence is that I found some of Mr. S.’s explanations of the language that the Crown relied upon as threats to be plausible. The following are examples.

264In a Skype conversation acknowledged by Mr. S. he says “it’s okay my dear whts goes around comes around.” It was Mr. S.’s evidence that by that he meant that whatever she had done wrong to him, God or someone else would do to her. I found that explanation plausible. To be clear, I am not saying that on the evidence before me I am able to confirm the accuracy of that explanation. Mr. S. may have been lying. I am only saying that I find that it is plausible, and am thus left with a reasonable doubt that said language qualifies as a threat in this circumstance.

265As another example of language, Mr. S. acknowledged that at one point he said “life is action and reaction and here nobody wins.” It was his evidence that by that he meant life is karma and how you treat people is how you get treated back. Again, I found that explanation plausible, although on the evidence before me I am unable to confirm its accuracy.

266As another example Mr. S. acknowledged that at one point he said “I think it’s time to pay me wht u owe me or I ll ask ur family members about my money.” It was Mr. S.’s evidence that he thought her brother might be more serious about the issue. I took that to mean that Mr. S. expected Ms. K.’s brother to be the voice of reason with his sister. Again, I find that plausible and if true, not be a threat in these circumstances.

d) Conclusions as to the charge of extortion contrary to [section 346(1.1)](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)

267On the evidence before me it is difficult for me to know with any certainty what occurred during the relevant timeframe.

268As to the language referred to by the Crown as threats, that language often lacks context and was from time-to-time given meanings by Ms. K. which were inconsistent with the little context in which they occurred, and/or common sense. Other comments were lacking in context because of the manner in which the messages had been edited.

269Mr. S. often gave plausible interpretations of many of the passages that Ms. K. had interpreted as threats. He also denied that some of the language is actually his.

270Finally, both parties testified that some of the language originally expressed in Arabic simply did not translate well. As a result, it was impossible for me to know how a reasonable person familiar with that language would interpret the language as a threat in the context in which it occurred.

271Accordingly, I find I must acquit Mr. S. of the charge of extortion contrary to s. 346(1.1) of the Criminal Code.

D. JUDGMENT

272For all the above reasons I find as follows:

as to count one: not guilty; and
as to count two: not guilty.

Original signed by “Bondy J.”

Justice Christopher M. Bondy

Released orally: April 9, 2018

Footnotes

Some of this engage was translated from Arabic to English. The words in parentheses were said in English.

RESTRICTION on publication

A. INTRODUCTION

B. EVIDENCE

1) Background

2) The evidence relating to the Crown’s theory of the case

a) The alleged threats

b) The images

c) The social media accounts

3) The assertion Mr. S. put the photos on social media accounts controlled by him

4) Evidence relating to the defence theory of the case

a) The relationship

b) The money

c) The images and the S.R. Skype and Facebook accounts

d) M.H.’s estate

e) The nude resorts

f) The last contact between the parties

C. ANALYSIS

1) Introduction

2) The appropriate analysis

3) Publication of an Intimate Image Contrary to [Section 162.1](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)

a) Introduction

b) The Evidentiary value of Exhibit No. 1

c) The recordings

d) The evidence of L.K. and the credibility of that evidence

e) The evidence of S.S.

f) Conclusions as to the charge of publication of an intimate image contrary to [section 162.1](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)

4) The Charge of Extortion contrary to [Section 346 (1.1)](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)

a) Introduction

b) Did the accused induce (or try to induce) the complainant to do something or get something done?

c) Did the accused use threats or violence to induce the complainant to do something or get something done, and did the accused by using those threats intend to get something?

d) Conclusions as to the charge of extortion contrary to [section 346(1.1)](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)

D. JUDGMENT

Footnotes