ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CRIMJ(P)1124/18
DATE: 2019 10 29
BETWEEN:
HER MAJESTY THE QUEEN
- and -
GAVIN MCANALLY
HEARD: September 16-20, 23, 24, 26 and October 3, 2019
REASONS FOR DECISION
LEMAY J
[1] The accused is facing four charges. One relates to the electronic transmission of child pornography, while the other three relate to an incident of alleged sexual touching and sexual assault. The charges read as follows:
Gavin MCANALLY stands charged:
- That he, on or between the 18th day of September, 2015, and the 17th day of September, 2016, at the City of Mississauga, in the Central West Region, and/or elsewhere in the Province of Ontario, did by means of telecommunication, communicate with [I.D.], who was, or who the accused believed was, under the age of eighteen years for the purpose of facilitating the commission of an offence under section 163.1 with respect to that person, contrary to section 172.1(1)(a) of the Criminal Code of Canada.
GAVIN MCANALLY further stands charged:
- That he, on or between the 1st day of February, 2017 and the 31st day of March, 2017, at the City of Mississauga, in the Central West Region, did for a sexual purpose touch [A.D.], a person under the age of sixteen years directly or indirectly with a part of his body, contrary to section 151 of the Criminal Code of Canada;
GAVIN MCANALLY further stands charged:
- That he, on or between the 1st day of September, 2015, and the 31st day of May, 2017, at the city of Mississauga, in the Central West Region, did, for a sexual purpose invite, [A.D.], a person under the age of sixteen years, to touch directly or indirectly with a part of his body, the body of [A.D.], contrary to section 152 of the Criminal Code of Canada.
GAVIN MCANALLY further stands charged:
- That he, on or between the 1st day of February, 2017, and the 31st day of May, 2017, at the City of Mississauga, in the Central West Region, did commit a sexual assault on [A.D.], contrary to section 271 of the Criminal Code of Canada.
[2] At the time the charges were laid, the accused was a teacher in a high school in Peel Region. The charges stem from two separate incidents, one in the summer of 2016 and one in February of 2017. Both incidents involved students at the school where the accused taught.
[3] The evidence from the Crown was entered in a blended trial and voir dire. The purpose of the voir dire was to consider certain evidence that the Crown wished to have admitted as similar fact evidence. I dismissed the Crown’s request and provided brief oral reasons for doing so. I have released my complete reasons for dismissing this request concurrently with these reasons, and they are reported at 2019 ONSC 6274.
[4] As a result of my ruling, the Crown’s case consists of evidence from the complainants, I.D. and A.D. as well as some evidence from N.S. and a limited amount of evidence from C.S.
[5] After I provided the parties with my brief oral reasons, defence counsel advised that the accused would not be calling any evidence. However, I note that defence counsel provided a number of documents and other records to various witnesses that were accepted as authentic by the witnesses. I have considered all of this evidence in reaching my decision.
[6] At the outset, I should note that the Crown invited me to dismiss the third count of the indictment. I have done so, and an acquittal will be recorded on that count.
The Evidence
[7] Given that I have found that the evidence of A.D. cannot be used as similar fact evidence for the charges relating to I.D. and vice versa, it is helpful to set out the evidence of each witness separately. I should note that the summary of evidence I have provided below is based on the summary of evidence in my reasons on the similar fact ruling. However, there are some additions and deletions from that summary which requires me to set out my summary of the evidence in these reasons rather than simply adopting the summary from the similar fact ruling.
[8] At the outset, I should also note that A.D. was under eighteen at the time of the trial. A.D. had given a statement to police, and this was used as part of his evidence in chief under section 715.1 of the Criminal Code. I.D. had also given a statement to police. The video of this statement was viewed in Court and was admitted as part of I.D.’s examination in chief on consent, again under section 715.1
a) I.D.’s Evidence.
[9] The complaint relating to I.D is an allegation that, sometime in the summer of 2016, the accused asked I.D. for a picture of I.D.’s penis. I.D. did not turn eighteen until September of 2016.
[10] I.D. originally knew the accused before he went to high school, because I.D.’s cousins (who were older than I.D.) were friendly with the accused. I.D. became friendly with the accused when I.D was in Grade 9 and the accused was one of the assistant soccer coaches. I.D. played on the soccer team. At that time, I.D.’s parents were going through a separation, and the accused offered to support I.D.
[11] The relationship between I.D. and the accused developed over time between Grade 9 and Grade 12. It progressed from conversation during and after school, to visits in the accused’s classroom in the school. Later, the accused began taking I.D. (and his friends) out for food, having I.D. and some of his friends over to the accused’s condominium to play games and watch movies. Sometimes the accused would take I.D. (or other students) to Raptors games.
[12] I.D. and the accused remained friends until the end of I.D.’s first year in College. I.D. testified that, during high school, the accused regularly spoke to him about sexual topics, such as masturbation, sexually transmitted diseases (“STD’s”) penis size and circumcision. The frequency of these conversations increased over time as the relationship between the accused and I.D. grew closer.
[13] There are four separate areas of the alleged sexual conversations that should be set out in more detail. First, there were allegedly conversations about the size of I.D.’s penis. According to I.D., the accused asked him on several occasions how large his penis was. I.D. also testified that the accused asked his friends about the size of I.D.’s penis. To the extent that this latter evidence is hearsay, I have not relied upon it. However, two of I.D.’s friends testified in this case.
[14] Second, according to I.D., the accused made requests for pictures of I.D.’s penis. Towards the end of grade 12, the accused allegedly became aware that I.D. had a photo taken of himself with no clothes on from the waist down. At the time, I.D. was still seventeen. Both I.D. and N.S. testified that the accused asked for a copy of this photo.
[15] In addition, I.D. testified that the accused requested him to send funny snaps on SnapChat. I.D. testified that, by using the words funny snaps, the accused was intending that I.D. send him a photo of I.D.’s penis.
[16] In cross-examination, I.D. was asked whether he had ever sent a photo of his penis to one of his friends. I.D. stated that he may have sent one to C.S. However, at the preliminary inquiry, I.D. stated that he had never sent a photo of his penis to any of his friends, although he had sent photos of his pubic hair. When asked to explain the inconsistency, I.D. stated that he must have forgotten the incident with C.S.
[17] In terms of photos, there was also one incident of what I.D. called “cat-fishing”. In this incident, I.D. and one of his friends pretended to be a girl so that they could get one of their other friends to send them a picture of his penis. I.D. testified that, when the accused heard about this incident, he wanted to see the photograph of the penis. It is these requests for the photographs that found the charge against the accused relating to I.D.
[18] In terms of seeing the accused’s penis, I.D. also testified about an incident where he and N.S. were with the accused and having a discussion about pubic hair and penises. I.D.’s recollection of this specific conversation was that N.S. talked about an incident where his foreskin had gotten ripped. I.D. did not mention this incident at either the preliminary inquiry or when he gave his statement to police. This incident was described by I.D. in his examination in chief. He was not able to provide a great deal of detail, other than they were at a restaurant and the accused suggested that he could take I.D. down to the washroom and show him how to stretch his foreskin.
[19] Third, there was a conversation about circumcision. I.D. testified that this conversation took place when he and a group of other male students were in the accused’s classroom. On I.D.’s evidence, the accused lined the students up and told them which of them were circumcised and which were not circumcised. I.D. testified that the students were all laughing because the accused had mostly identified who was (and was not) circumcised correctly.
[20] Finally, on I.D.’s evidence at trial there was some discussion with the accused about pubic hair. There was some discussion about pubic shaving, but most of the discussion revolved around requests to see I.D.’s pubic hair. The discussion started because I.D. had allegedly shown his pubic hair to his classmates in gym class. As a result, the accused allegedly asked I.D. why he couldn’t see I.D.s pubic hair, as he had shown his friends and the accused wanted to be close to I.D.
[21] I.D. also testified in cross examination that he might have been with A.D. on one occasion in a car when A.D. showed the accused his pubic hair. I.D. acknowledged that he had not mentioned this incident in either the statement to the police or at the preliminary inquiry.
[22] These conversations about pubic hair allegedly culminated in an incident in March 2017, where the accused asked to see I.D.s pubic hair one night when I.D., C.S. and the accused were hanging out at the accused’s condominium. I.D. testified that this incident made him uncomfortable with the accused, and that this was the moment when he stopped trusting the accused.
[23] I.D. testified that C.S. was in the washroom, but that C.S. heard the interaction between I.D and the accused. I.D. testified that C.S. was in the washroom for two or three minutes and when C.S. came out, that I.D. and the accused were right near the washroom, as the accused was close to him. I.D. also testified that he said no approximately three times to the accused.
[24] I.D. testified that he and C.S. left the accused’s condominium approximately 45 minutes afterwards. I.D. testified that he and C.S. discussed this incident shortly after it happened. On I.D.’s evidence, C.S. told I.D. that C.S. was in the washroom and waiting by the door as he did not know what was going on.
[25] I.D. provided the police with a series of e-mails covering approximately eight months, from August of 2016 to April of 2017. However, there was a gap in the e-mails that I.D. provided between March 15th, 2017 and April 11th, 2017. I learned (during cross-examination) that I.D. had sent a text to the accused for his birthday, as well as dropping off a card for him with N.S. These documents both spoke to a close “big brother” relationship between N.S. and I.D., as well as N.S.
[26] Finally, there was also a missing text message from the evening of March 15th, 2017. It was actually sent at 2:47 a.m. on March 16th, 2017 from the accused telling I.D. that he had arrived back home. I.D. sent a reply shortly before 11 am the same day. This exchange was also not included in the text messages that I.D. provided to the police.
[27] The conversations about sexual topics took place in the context of the larger relationship, and happened both one-on-one and in a group. I.D. described there being trust conversations between him and the accused, where the accused allegedly emphasized the importance of trust between the two of them, and allegedly linked that trust to I.D.’s willingness to continue to engage in the sexualized conversations.
[28] In addition, I.D. testified that the accused would have him “pinky swear” after one-on-one conversations. The purpose of the “pinky swear” was to remind I.D. to keep his conversations private.
[29] Finally, I.D. testified that the accused regularly provided him with gifts at Christmas and his birthday, as well as candy and chocolate on Hallowe’en and Easter. I.D. suggested that the accused provided gifts to people that were on the “nice” list and not to those who were on the “naughty” list. These lists were apparently kept in a notebook that the accused had shown to I.D.
[30] I.D. agreed that people would still get gifts from the accused, even if they behaved badly. I.D. also testified that some of the students took advantage of the accused in order to get gifts from him.
[31] I.D. testified that his relationship with the accused ended in April of 2017, when I.D. engaged in conduct that the accused did not like. There were a series of text messages that clearly demonstrate the end of the relationship and do not need to be repeated here.
[32] I.D. testified that A.D. told him about the incident involving A.D. one day when I.D. and N.S. were hanging out together. In this original description, A.D. did not tell I.D. about the accused actually touching A.D.’s penis. However, some months later, I.D. testified that he received a phone call from some friends about A.D.’s issues, and obtained the whole story. I.D. testified he told his father’s girlfriend about the incident, and she told him that they had to report it to the police.
[33] Finally, I.D. testified that he had never discussed A.D.’s testimony with him when A.D. was on the witness stand, although they did have a conversation while A.D. was in the middle of cross-examination. On I.D.’s evidence, he talked to A.D. mostly about soccer and tried to calm A.D. down. I.D. also testified that he had not discussed the issues in this case with N.S.
b) A.D.’s Evidence
[34] A.D. also testified that he knew the accused through his cousins prior to attending the high school where the accused taught. A.D. never had the accused as a teacher, but A.D. was on the soccer team and the accused was one of his coaches. A.D. started Grade 9 at the beginning of 2015.
[35] A.D. testified that his relationship with the accused progressed from talking, to hanging out at school to going out for meals. Eventually A.D. would spend time at the accused’s condominium, either on his own or with other friends. This relationship lasted until 2017.
[36] A.D. testified that he was given gifts and taken for food by the accused if he “opened up”. In A.D.’s view, “opening up” meant showing the accused his pubic hair. A.D. regularly received gifts from the accused for Christmas and birthdays. A.D. also testified that, when he and the accused went out for meals, the accused regularly paid for the food for them.
[37] A.D. testified that the accused talked to him regularly about STD’s and other sexual topics. These conversations were described by A.D. as being “trust” conversations, and the accused emphasized the importance of trust.
[38] A.D. also testified that the accused regularly asked A.D. to show the accused his pubic hairs and/or his penis. The requests to see A.D.’s pubic hairs were more regular, and came before the requests to see A.D.’s penis. A.D. testified that he had received the pubic hair request on a number of occasions and had shown the accused his pubic hair regularly.
[39] A.D.’s evidence on when the first incident happened and how often the accused asked to see his pubic hair was unclear. In his examination in chief, A.D. testified that another member of their group of friends (L.S. (no relation to N.S.)) was with him in a car the first time that A.D. showed his pubic hair to the accused. This took place in Grade 9 or 10.
[40] On cross-examination, A.D. seemed to disagree with this evidence, and suggest that he had shown his pubic hair to the accused in the presence of I.D. rather than N.S.
[41] Then, there was A.D.’s testimony about the number of times that he showed the accused his pubic hair. In chief, A.D. testified that it was approximately once a week from the beginning of Grade 9 to the end of their relationship. In cross-examination, A.D. reduced his estimate to ten to fifteen times. Then, A.D. was confronted with his preliminary transcript evidence, where he stated that the request to see his pubic hair happened approximately five (5) times in total.
[42] A.D. also testified that he had been asked by the accused to show him his penis. In his statement to the police, A.D. said:
OFFICER: So it would be really cool if you showed me your penis?
A.D.: Yes, yeah.
OFFICER: Okay.
A.D.: And I’m just like, yeah, no.
[43] However, at trial A.D. testified that there were discussions with the accused about the size of his penis, about pubic shaving and other penile related matters.
[44] The events that gave rise to the charges occurred in early February of 2017. On that occasion, the accused and A.D. went over to the accused’s condominium. The accused did not live at his condominium full time. Instead, according to A.D. the accused spent much of his time at his mother’s house in Brampton.
[45] On entering the condominium, the accused went into the washroom and flushed the toilet. He allegedly came out holding a dark pubic hair, and asked A.D. if it was his pubic hair. A.D. told him no, that his pubic hair was lighter. The accused then asked to see A.D.’s pubic hair, which A.D. then showed him.
[46] The accused then allegedly asked to see A.D.’s penis. Once A.D. had exposed his penis, the accused allegedly asked to examine it for STD’s, knelt down and asked if he could touch it. The accused then allegedly put his hands on A.D.’s penis and moved it around.
[47] A.D. testified that he was shocked and upset by these events. A.D. testified that the accused then noted that A.D. had stubble on is mustache area and offered to show him how to shave his facial hair. A.D. participated in this activity as well, and remained in the accused’s condominium for about an hour after the alleged assault.
[48] A couple of days later, A.D. testified that the accused took him to a Raptors game because A.D. had shown the accused trust and “opened up” by showing the accused his penis.
[49] A.D. then testified that the accused tried to see his penis again a couple of weeks later. A.D. testified that the accused made references to “trust” in order to convince A.D. to show the accused his penis. However, A.D. refused to show the accused his penis a second time.
[50] In his examination in chief, A.D. testified that the incident in mid-February where the accused tried to see his penis a second time was the last time that he had any significant contact with the accused. A.D. also testified that, from the time of the second incident until he spoke to the police in August of 2017, he tried to avoid the accused.
[51] In cross-examination, A.D. was shown a series of photographs and e-mails. These demonstrate the following:
a) That A.D. went for a long walk alone with the accused on a boardwalk in July of 2017. A “selfie” of the two of them was taken on this walk and admitted into evidence when A.D. confirmed what the image was.
b) That A.D. asked the accused in early July of 2017 if the accused wanted to go to the gym with A.D.
c) That, in mid-July of 2017, A.D. asked the accused to pick him up from a party and drive him home sometime around midnight.
d) That, in May of 2017, A.D. asked the accused to go to a restaurant called the Wingery.
[52] In short, this evidence demonstrates that A.D. had a considerable amount of contact with the accused between the second incident in mid-February and the reporting to the police in August. It also demonstrates that A.D. initiated some of this contact.
[53] A.D. also testified that he told I.D. and N.S. about the incident where the accused allegedly touched his penis approximately a month after it happened. This would have been sometime in March of 2017. A.D. also testified that he told a group of friends (including I.D. and, possibly, N.S.) about incidents with the accused at a get together at Wacky Wings sometime after A.D. made his original disclosure.
[54] A.D. also acknowledged that he had a discussion with I.D. during the course of his cross-examination. A.D. told I.D. that he was upset because of the type of questions that defence counsel was asking him. A.D. also testified that he had spoken to I.D. since he had gone to the police.
c) N.S.’s Evidence
[55] N.S. testified that he had met the accused when he was in Grade 10, and had the accused as his Religion teacher. According to N.S. the accused started out as a teacher and became a friend. N.S. testified that he received gifts from the accused, and that he spent time with the accused although N.S. candidly acknowledged that part of his reason for spending time with the accused was to obtain gifts.
[56] Initially, the time N.S. spent hanging out with the accused was in his classroom. After some time passed, N.S. and others would go out to lunch or for other food with the accused. N.S also testified that he had been to the accused’s condominium on three or four occasions, but always with I.D.
[57] N.S. testified that he wrote the birthday card in 2017 as well as a yearbook entry in June of 2016 thanking the accused for always being there for him. N.S. also testified that he and I.D. visited the school for the accused’s birthday in April of 2017. N.S. stated, however, that he did not really mean most of the sentiments that he put into this letter. N.S. testified that he had put these things into the letter and the yearbook post partly in order to obtain more gifts from the accused.
[58] In his examination in chief, N.S. testified about four types of conversations with the accused of a sexual nature. First, there were group conversations that concerned drugs or sex or things relating to them. To the extent that these conversations do not involve interactions with the accused and/or I.D. and A.D., they are excluded by my similar fact ruling.
[59] Second, there were conversations about penis size. Specifically, N.S. testified that there was one conversation that he remembers where the accused asked him about the size of I.D.’s penis. N.S. advised that he could only recall one time the accused raised the subject of I.D.’s penis size.
[60] The third conversation was about circumcision. Specifically, at trial, N.S. recalled having a discussion with I.D. and the accused about a sexual experience that N.S. had where his foreskin was torn. This led to a discussion of circumcision, as well as the accused allegedly telling I.D. how to avoid tearing his foreskin by stretching it. N.S. seemed to suggest that, although this conversation took place in a restaurant, the accused was prepared to take I.D. down to the washroom and physically show him how to stretch his foreskin.
[61] According to N.S., there was also a conversation about circumcision in the classroom one day when there was a group of boys present. According to N.S., this conversation led to the accused guessing which of them were circumcised and which were not. N.S. did not recall specifics of this conversation.
[62] The final group of conversations was about photos of penises. First, there was the incident of “cat fishing”. This was a case where I.D. and N.S. allegedly played a joke on a friend, and pretended to be a girl. They got their friend to send them a picture of a penis, and the accused allegedly asked to see it in order to make sure that the friend’s face was not in it.
[63] Second, there was in incident around graduation where N.S., I.D. and some friends went to Wasaga Beach to celebrate their graduation. There was allegedly a picture of I.D. that had been taken where he was naked from the waist down. N.S. testified that this picture was something that the accused asked him to see, and asked other people in the friend group to see.
[64] Finally, although not directly related to penises, N.S. provided evidence that I.D. had shown his pubic hair to friends in gym class and that the accused had asked I.D. why won’t you show me.
[65] In terms of these conversations, I should note that N.S. did not recall the “cat fishing” incident and the pubic hair incident at trial, and had to have his memory refreshed from the transcript of his interview with the police. However, N.S. had not told the police about the foreskin incident described at paragraph 60, above until a couple of weeks before trial. N.S.’s explanation for the late recall of the foreskin incident is that he was getting ready to testify and had been thinking about everything that happened. As a result, N.S. recalled this incident and shared it with the police.
[66] I should also set out N.S.’s evidence about how he came to hear about the incident involving A.D. N.S. testified that he moved to Calgary in July of 2017, and that one day after N.S. had moved to Calgary, A.D. and I.D. called N.S. to tell him about the incident involving A.D.
[67] N.S. acknowledged that he, I.D. and other friends would discuss the incidents with the accused in the time before they were reported to the police. N.S. further acknowledged that those who were involved in interactions with the accused would share the details with those who weren’t involved. N.S. denied that there were any discussions of evidence after they went to the police. N.S. acknowledges a close and continuing relationship with I.D. and A.D.
d) C.S.’s Evidence
[68] The limited evidence from C.S. that remains is in relation to the March 15th, 2017 incident involving I.D. at the accused’s condominium. None of this evidence can be used in analyzing the charges in relation to A.D.
[69] C.S. testified that he knew the accused because the accused was one of his teachers. C.S. was also on the soccer team, and the accused was one of his coaches. C.S. testified that the accused was friends with a number of C.S.’s friends, but that he was eventually close enough to the accused that the accused gave C.S. some gifts.
[70] C.S. testified that he had heard some conversations between I.D. and the accused where the accused was asking I.D. about the size of I.D.’s penis. C.S. could not recall the details of any of those conversations. In cross-examination, C.S. acknowledged that he was not actually present for the conversations about penis size.
[71] C.S. also testified about the March 15th, 2017 incident. He testified that I.D. called C.S. and asked him to come with him to the accused’s condominium. They went out for food beforehand, and then went to the condominium afterwards.
[72] When they were there, the accused showed C.S. his hot sauce collection, and they played a number of board games. C.S. testified that they were until maybe midnight or 1:00 a.m.
[73] Approximately an hour into the visit, C.S. testified that he went into the washroom. While C.S. was in the washroom, he could hear voices outside. Specifically, he could hear I.D. saying either stop or no a couple of times. C.S. testified that I.D. did not sound urgent when saying stop or no. According to C.S. this went on for approximately 20 seconds, and then he came out of the washroom.
[74] C.S. testified that, after this incident took place, the three of them went back to the couch area and continued with the evening. C.S. testified that he and I.D. were there for some time afterwards, and left either late in the evening or very early the next morning.
[75] C.S. testified that either sometime that evening or in the next couple of days, he talked to I.D. about what had happened.
The Legal Framework
[76] The accused did not testify, and I draw no conclusions from his decision to continue to exercise his right to silence. In considering each charge on the indictment, I must consider all of the evidence that has been tendered, and I must be satisfied beyond a reasonable doubt that the Crown has proven each element of the offences.
[77] There are several legal principles that are applicable in this case. First, corroboration or confirmatory evidence is not required. I can be satisfied beyond a reasonable doubt based on the evidence of the complainant alone (see R. v. A.G. 2000 SCC 17 at para. 30).
[78] Second, a Court does not necessarily have to resolve every inconsistency. The Court should consider whether the core of the complainant’s allegations were consistent and unaffected by the inconsistency in question (see R. v. R.A. 2017 ONCA 714 (paras 35, 36 and 53), aff’d 2018 SCC 13).
[79] Third, it is well understood that complainants delay reporting sexual assaults for a variety of reasons. Therefore, there is no logical link between the timing of the complaint and the genuineness of the complaint (see, e.g. R. v Seaboyer 1991 76 (SCC), [1991] S.C.J. No. 62 at para 139). Similarly, there is no typical reaction to a sexual assault.
[80] Finally, one of the issues that has arisen in this case is the question of whether the various witnesses colluded with each other, either intentionally or accidentally. In that regard, Sopinka J. noted in R. v. Burke (1996 229 (SCC), [1996] 1 S.C.R. 474 at para 45):
For the purposes of this appeal, it is not necessary to choose between the two approaches referred to above. On the assumption that the evidence is admissible, I am prepared to adopt the more conventional approach which would leave it to the trier of fact to determine what weight, if any, is to be given to evidence that is alleged to have been concocted by means of collusion or collaboration. Under this approach, the trier of fact is obliged to consider the reliability of the evidence having regard to all the circumstances, including the opportunities for collusion or collaboration to concoct the evidence and the possibility that these opportunities were used for such a purpose.
[81] I will address the first count of the indictment separately, but will address the second to fourth counts of the indictment together.
[82] Before I address any of the counts of the indictment, I should also address the issue of motive. In his submissions, Crown counsel observed that, if A.D., I.D. and the other witnesses had wanted to falsely accuse the accused, they barely touched the surface in terms of the incidents that they could have invented. In this regard, counsel directs my attention to the case law that says a lack of motivation to implicate the accused is a factor that must be considered (see R. v. Batte (2000 5751 (ON CA), [2000] O.J. No. 2184 at para. 100 and R. v Stirling 2008 SCC 10).
[83] In my view, this argument does not necessarily assist the Crown. There is a difference between an absence of evidence of a motive to lie, and affirmative proof that a witness has not lied. In any event, an absence of a motive to lie is only one factor in an assessment of a witness’s credibility (see R. v. O.M 2014 ONCA 503 at paras 107-108).
Count #1
[84] This count concerns I.D. The relevant criminal code sections are s. 172.1(1)(a) and section 163.1. Section 172.1(1)(a) reads as follows:
172.1(1) Every person commits an offence who, by a means of telecommunication, communicates with
(a) a person who is, or who the accused believes is, under the age of 18 years, for the purpose of facilitating the commission of an offence with respect to that person under subsection 153(1), section 155, 163.1, 170, 171 or 279.011 or subsection 279.02(2), 279.03(2), 286.1(2), 286.2(2) or 286.3(2);
[85] On the facts of this case, in order to find the accused guilty of this offence, I must be satisfied beyond a reasonable doubt of all of the following elements:
a) That the accused communicated with I.D.
b) That the purpose of this communication was to obtain a picture of I.D.’s penis.
c) The dominant purpose of the picture that the accused sought must be the depiction of a sexual organ, and the depiction must be for a sexual purpose.
d) That I.D. was under the age of eighteen at the time the communications were made, or the accused believed him to be under the age of eighteen.
[86] There is no doubt that the accused and I.D. had regular communications throughout 2016 and 2017. Indeed, the Crown Attorney filed an exhibit with more than 100 pages of text messages between August of 2016 and April of 2017. The question is whether the accused asked I.D. for a picture of his penis before he turned eighteen.
[87] In order to answer that question, I must consider the evidence of I.D., N.S. and C.S. This evidence leaves me with a reasonable doubt as to whether the accused ever asked for a picture of I.D.’s penis for three main reasons.
[88] First, I.D.’s evidence of when this penis picture was requested was vague. He was clear that it was before his eighteenth birthday, but he was not clear as to what point in the summer before he turned eighteen that the request was made. This evidence alone leaves me with some disquiet. If there were no other issues, I could resolve this evidence on the basis of N.S.’s testimony that at least one of the photographs involved was taken during an end-of-school trip to Wasaga Beach when the accused was still seventeen. However, there are other issues with the evidence that I heard.
[89] This brings me to the second issue. There were some significant frailties in I.D.’s evidence, as follows:
a) I.D. gave inconsistent answers on whether N.S. would testify. Originally, I.D. stated, in cross-examination, that we would love N.S. as he is a genius. After having been cross-examined about his contact with other witnesses after reporting to the police, I.D. testified that he wasn’t sure whether N.S. would be testifying. I accept the first answer, and conclude that the second answer was offered in order to deflect any concerns about the evidence of I.D. or N.S. being tainted as a result of pre-trial contact between them.
b) On a related point, I.D.’s answers about what he had discussed with A.D. while A.D. was under cross-examination were inconsistent with what A.D. testified took place. I.D. made it sound like there was less discussion than A.D. acknowledged. Again, I conclude that I.D.’s evidence was offered in order to deflect any concerns about the evidence of I.D. or A.D. being tainted by contact either before, or during A.D.’s testimony.
c) When I.D. turned his text messages over to the police, there were missing messages. On their own, missing a couple of text messages out of a hundred pages would not be significant. However, the missing text messages address two issues. First, the missing text messages contradict I.D.’s evidence about how long he remained at the condominium after the accused allegedly asked to see his pubic hair. Second, the text messages demonstrate that the complainant’s relationship with the accused continued after the March 15th, 2017 incident.
d) C.S.’s evidence about the March 15th, 2017 incident also contradicts I.D.’s evidence in at least two significant ways. First, C.S. testified that he was not in the washroom for very long, while I.D. testified that C.S. was in the washroom for at least three minutes. Second, and more importantly, I.D. testified that he and C.S. left forty-five minutes after the alleged pubic hair incident. C.S., on the other hand, testified that they stayed until quite late. The text messages that were not provided by I.D. support C.S’s testimony, and I accept C.S.’s testimony in this regard.
e) I.D.’s own statement that the March 27th, 2017 incident where the accused attempted to see his pubic hairs was a significant breach in his relationship with the accused must be contrasted with I.D.’s evidence that the accused may have asked him to see his pubic hairs before when I.D. was with A.D.. I acknowledge that the different circumstances might explain a different reaction on the part of I.D., but I must also consider this evidence in the context of the other inconsistencies set out in these reasons and the timing of the disclosure of that alleged incident.
[90] I acknowledge that, as set out at paragraph 78, every inconsistency does not need to be explained. However, there are a significant number of inconsistencies and omissions in this case.
[91] Third, the evidence of both I.D. and N.S. about the foreskin incident left me with some concerns. Specifically, neither of them remembered this incident either when they were giving their statements to the police or, in the case of I.D., at the preliminary inquiry. Further their explanations for remembering this incident before trial were not satisfactory to me.
[92] In I.D.’s case, he was specifically asked at the preliminary inquiry if there was anything else that he had forgotten. He did not recall this incident at the preliminary inquiry. Similarly, when asked to provide the investigating officer with everything he could remember, I.D. did not remember this incident either. His explanation was that he was nervous when giving his previous two statements.
[93] While nervousness in testifying is understandable, particularly given the nature of the allegations in this case, the fact that both N.S. and I.D. remembered the allegation just before trial raises a question of whether they had discussed the issue with each other before giving their evidence. Therefore, I must approach this evidence with some caution.
[94] Caution is also warranted because of the evidence relating to how N.S. remembered the incident. He testified that he remembered this incident, and gave the police an additional statement, approximately two weeks before trial. He testified that this recall came because he was thinking about everything that had happened.
[95] While this explanation could be accepted in many cases, I am troubled by it here. My concerns arise because, although N.S. remembered this incident because he was thinking about the case before trial, when he testified before me he forgot about two other incidents that he had previously advised the police about and had to have his memory refreshed.
[96] I am of the view that it is unlikely that, in reflecting on his evidence and reviewing his previous statements, that N.S. would have remembered this incident, but forgotten two others that he had told the police about and were in the statements that he reviewed. I reach that conclusion both because N.S. had the statements with the other incidents in him to refresh his memory and because the foreskin incident would have been memorable. I also note, again, that I am concerned about the fact that N.S. and I.D. remembered the foreskin incident around the same time. While I am not concluding that there was any collusion, I am concluding that this evidence is tainted and should be rejected as unreliable.
[97] For the foregoing reasons, I am left in a reasonable doubt as to the first count of the indictment and an acquittal will be registered.
[98] Before leaving this issue, I should note that counsel provided a detailed and thoughtful argument on the legal principles that should be applied in considering this charge. Given my conclusions on the factual issues, I do not need to resolve those issues.
Counts #2 to #4
[99] The second count of the indictment requires me to be persuaded beyond a reasonable doubt of each of the following elements:
a) That I.D. was under the age of sixteen when the incident took place. If the incident took place as described by I.D., then this element is clearly met.
b) That the accused touched I.D.’s penis and genital area.
c) That the touching was for a sexual purpose.
[100] As noted above, the third count will have an acquittal registered in respect of it.
[101] The fourth count of the indictment is a charge of sexual assault. Given that I.D. was under the age of sixteen at the time the incident allegedly took place, he was not able to consent to any sexual contact. As a result, if the elements of the sexual interference charge are all made out, then the accused would also be guilty of sexual assault.
[102] Deciding whether the accused is guilty of both charges comes down to an analysis of the credibility and reliability of A.D.’s evidence, considered both alone and in the context of the evidence that can be used to corroborate his version of events.
[103] Defence counsel points to a number of significant frailties in A.D.’s evidence. The analysis starts with A.D.’s testimony that he avoided contact with the accused after the second time that the accused attempted to see A.D.’s penis in February of 2017. This testimony was not correct.
[104] A victim of a sexual assault may continue to associate with the perpetrator after the assault (or assaults) for a whole host of reasons. This has no bearing on the credibility of the victim.
[105] However, in this case, it is not a question of whether A.D. continued to associate with the accused. It is a question of whether A.D. was completely candid with the Court. As set out at paragraphs 50 and 51, A.D. was initially not completely candid with me about his contact with the accused after the incident in February of 2015 allegedly took place. A.D. testified that he was uncomfortable with the accused and was trying to avoid contact after late February of 2017.
[106] The amount of contact, including the amount of contact that A.D. initiated, is inconsistent with A.D.’s evidence that he was trying to avoid the accused. This inconsistency raises significant concerns about the reliability of A.D.’s evidence on the core events relating to both charges. Those concerns are sufficient, in and of themselves, to raise a reasonable doubt.
[107] In addition, however, there are other frailties with the evidence that was given by A.D:
a) The number of times that A.D. testified that he was asked to show the accused his pubic hair changed significantly between his preliminary inquiry evidence, his examination in chief and his cross-examination.
b) A.D.’s evidence about the first incident where he was allegedly asked to show the accused his pubic hair to the accused was inconsistent. At one point, A.D. testified that it was with L.S., and at another point he testified that it was with his brother.
c) A.D. provided significantly more detail at trial than he did in his statement to police about the penis focused discussions he had with the accused.
d) A.D.’s version of how he came to tell N.S. and I.D. about the February 2017 incident are not consistent with what N.S. and I.D. stated. In particular, it is clear from N.S.’s evidence that he was not informed about the alleged assault until at least July of 2017, whereas A.D. testified that he told N.S. within a month of the assault having taken place.
e) As identified in my reasons on the similar fact application, A.D.’s evidence was tainted by the discussions he had with I.D., N.S. and others, both before and after A.D. gave his statement to the police. As I noted in the similar fact ruling, I am not finding that there was a deliberate attempt to collude in this case. However, even the unintentional tainting raises questions about the reliability of A.D.’s evidence.
[108] All of these frailties, when taken together, leave me with a reasonable doubt that the allegation of sexual touching actually took place. As a result, an acquittal will be entered on counts #2 and #4 of the indictment.
Conclusion
[109] For the foregoing reasons, the following verdicts will be entered:
a) Count #1- not guilty.
b) Count #2- not guilty.
c) Count #3- not guilty.
d) Count #4- not guilty.
LEMAY J
Released: October 29, 2019
COURT FILE NO.: CRIMJ(P)1124/18
DATE: 2019 10 29
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
GAVIN MCANALLY
REASONS FOR JUDGMENT
LEMAY J
Released: October 29, 2019