COURT FILE NO.: CR-19-50000188

DATE: 20210531

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DONSON REDHEAD

David Tice, for the Crown

Kate Zadorozhnya, for Donson Redhead

HEARD: August 17-21, 24-26, 28, September 28-30, October 2, November 6, & December 17, 2020

PUBLICATION RESTRICTION NOTICE

By order made under subsection 486.4(1) of the Criminal Code, information that may identify the complainants may not be published, broadcasted or transmitted in any manner.

reasons for judgment

Garton J.

[1] The accused, Donson Redhead, age 26, is charged in a 13-count indictment with the following offences:

Count 1: Communicating by means of telecommunication with A.R., who was under 16 years of age, for the purpose of facilitating the commission of an offence under s. 151 of the Criminal Code, contrary to s. 172.1(2) of the Code;

Count 2: The sexual assault of A.R., contrary to s. 271 (a) of the Code;

Count 3: Sexual interference with respect to A.R., contrary to s. 151 of the Code;

Counts 6, 7, and 8 charge Mr. Redhead with the same three offences, that is, luring a child, sexual assault, and sexual interference, with respect to the complainant V.C.;

Counts 4, 5, 9, 10, and 11: Failing to comply with a recognizance, contrary to s. 145(3)(a) of the Code;

Count 12: Failing to comply with a probation order, contrary to s. 733.1(1)(a); and

Count 13: Failing to comply with the Sex Offender Information Registration Act (“SOIRA”) under section 490.012 of the Code by failing to report a change of address, contrary to s. 490.031(1).

[2] The case against Mr. Redhead with respect to the sexual offences is largely based on the evidence of the two complainants, A.R. and V.C. A.R. was 13 and turned 14 during the course of these allegations. V.C. was 15 years old. It is alleged that Mr. Redhead, who was 23 years old, initially contacted each complainant over social media sites and ultimately convinced each of them to meet with him in-person.

[3] V.C. testified that she met Mr. Redhead in person in late June 2017 and that he drove her to a park. She alleges that while they were in the car, he sexually assaulted her by putting his hands into her pants and trying to digitally penetrate her vagina.

[4] A.R. testified that on October 30, 2017, Mr. Redhead took her to his apartment and almost immediately initiated sexual activity with her without her consent. The sexual activity proceeded to vaginal intercourse.

[5] During the time of these allegations, Mr. Redhead was on a recognizance following his arrest on March 17, 2016 for child luring and related offences. The terms of his release prohibited him from i) having any contact with a person under the age of 18; ii) attending any public park or school ground where persons under the age of 16 are present or could reasonably be expected to be present; and iii) possessing or using any computer or any other digital device that has access to the Internet or other digital network. It is alleged that Mr. Redhead breached these terms by contacting A.R. and V.C. on his cellular device, by picking up V.C. at a school and taking her to a park, and by taking A.R. to a school.

[6] Counts 12 and 13 in the indictment allege that Mr. Redhead failed to comply with a probation order and a SOIRA order, which were made on January 17, 2018. On that date, Mr. Redhead was ordered to report any change of address to his probation officer and to the Sexual Offender Registry. It is alleged that at the time of his arrest for the present offences on March 7, 2018, Mr. Redhead was residing at 15 Martha Eaton Way, Unit 1505, which was an address that he had not reported to his probation officer or the Registry.

[7] The Crown called three civilian witnesses: the two complainants, V.C. and A.R., and A.A.-R., who was A.R.’s classmate and friend. The police witnesses, all of whom were present at Mr. Redhead’s arrest, included the following:

1. Sergeant Matthew Pinfold, who was the officer in charge of the case

2. Detective Constable Keith George

3. Detective Constable Linda Jonkman

4. Police Constable Maria Paz Arias Vernal

5. Police Constable Mark Mangilinan

[8] The testimony of Officers George and Jonkman related mainly to the breach allegations. A number of agreed statements of fact were also filed as exhibits.

[9] No witnesses were called by the defence.

[10] On December 17, 2020, I found Mr. Redhead guilty on Counts 1, 2, 3, 4, 6, 7, 8, 9, 11, and 12 and not guilty on Counts 5, 10, and 13, with reasons to follow. These are those reasons.

EVIDENCE

Evidence of V.C.

[11] V.C., age 19, was born on [month, day] 2001. She alleges that she was sexually assaulted by Mr. Redhead at the end of June 2017, just shortly before her 16th birthday.

[12] V.C. graduated from high school in 2019. She testified that she has taken the year off but plans to go to college. She is currently living with her parents and is employed at a clothing store.

[13] V.C. testified that there were three streams of courses at her high school – locally developed, applied, and academic. She was in the applied stream. She testified that she did quite well at school. However, she struggled with English, and especially English comprehension. Thus, when she was in Grade 12, and after learning that she did not need Grade 12 English to get into college, she switched to the “locally developed” stream for that subject only.

The Police Interview: March 6, 2018

[14] V.C. was interviewed by Detective Constables George and Jonkman on March 6, 2018 in regard to A.R.’s allegation of sexual assault against Mr. Redhead. V.C. was not a witness to that assault, which allegedly took place on October 30, 2017. She was, however, questioned by the police as to what A.R. had told her about the assault. The two girls were friends and had known each other for a number of years. V.C. had not made any complaint to the police at that point with respect to Mr. Redhead having sexually assaulted her in June 2017.

[15] Both V.C. and A.R. knew the person with whom they were communicating over social media as “Peso.” The Crown alleges that Peso is Mr. Redhead. When V.C. was asked by Officer George if A.R. had described Peso’s car to her, V.C. responded that she herself had been in the car and that it was grey. When questioned further about those circumstances, V.C. disclosed that Peso had sexually assaulted her while she was in his car.

[16] V.C.’s police interview was admitted into evidence pursuant to s. 715.1 of the Criminal Code.

[17] V.C. told the officers that she first started “talking” to Peso after he messaged her on Instagram on May 27, 2017. They then used Snapchat to communicate. He asked for her telephone number. She gave it to him, and they started texting.

[18] V.C. stated that she often ignored Peso’s messages:

He messaged me on Instagram. … We started talking. Um, but I didn’t say like anything – like I wouldn’t talk to him as much. … But like he’d always try to talk to me and I would just ignore him cause I had a boyfriend.

[19] In addition to social media, V.C. also spoke to Peso on the telephone. She provided the officers with his telephone number: 416-727-4207.

[20] V.C. stated that in late June 2017 she attended a year-end school barbeque with her friend, V.Q. While she was at the barbeque, Peso sent her a message asking her to “chill” or meet up with him so that they could “just talk and everything.” She initially told him “no” but later relented when he asked her to “give him a chance.” She asked V.Q. to come with her.

[21] V.C. stated that the barbeque was at “Mount Dennis,” referring to what was later clarified during her testimony to be the Dennis Avenue Community School. V.C. never attended “Mount Dennis” as a student but her cousin went there. At the time of the barbeque, V.C. was attending Loretto College and had just finished her Grade 9 exams.

[22] The Dennis Avenue Community School has students from kindergarten to Grade 8 and is located on Dennis Avenue between Guestville Avenue and Weston Road. The nearest main intersection is Eglinton Avenue West and Weston Road. When V.C. told Peso that she was at a barbeque at “Guestville and Weston,” he stated that he was nearby and could pick her up.

[23] Peso arrived at the school shortly after they exchanged messages. It was about 7:00 p.m. and still light out. The barbeque, which had started at 5:00 p.m., was still going on. Some parents and children were still on the school grounds. V.C. and V.Q. stood on the sidewalk at the side of the school while waiting for Peso. In cross-examination and with the assistance of maps and photographs, V.C. identified where they were standing, which was in front of a children’s playground. The playground and area where the barbeque was taking place would have been visible from where Peso stopped to pick up the girls. He did not get out of the car.

[24] V.C. described herself as looking “really young” at that time. She testified that her appearance was similar to her appearance during her police interview. She stated that her face looked young and she was not wearing any makeup. She was also very short. V.C. had a difficult time estimating her own height but stated that she would have been, and still is, under 5 feet tall. She has not grown since June 2017. She thought that she was about 4 feet 7 inches tall. During her testimony, V.C. stood beside the support person who accompanied her to court and who is 5 feet 4 inches tall. Based on that comparison, it appears that V.C. is, in fact, under five feet in height. She testified that she was wearing black tights that day. She did not recall whether she was wearing a sweater or a shirt.

[25] V.C. stated that V.Q., who was only 11 years old, looked older than V.C. on the day in question. V.Q. was taller than V.C. and was wearing makeup. V.C. did not recall what V.Q. was wearing.

[26] After the girls got into his car, Peso asked V.C. “Can your friend go home?” When she asked him why, he stated that he wanted to be alone with her. He then dropped off V.Q. near her house. At trial, V.C. testified that Peso drove to V.Q.’s house on Guestville Avenue and dropped her off right in front of it. The house was only a 3-minute walk from the school.

[27] After V.Q. was dropped off, V.C. asked Peso where they were going. He told her that they would “probably just drive around.”

[28] V.C. stated that as they were driving, Peso kept grabbing or gripping her left thigh, close to her vagina but over her pants. She kept pushing his hand away. At one point, he looked at her – it appeared to her that he was mad or angry – and then he “just kept doing it.” She continued to push his hand away until he used “some force.” After that, she left his hand on her thigh as she “couldn’t really move him because he was strong.”

[29] In cross-examination, V.C. testified that Peso put his hand on her thigh about five to seven times before she stopped trying to remove it.

[30] V.C. stated that they drove straight to a park, which she later identified as Caledonia Park, located on the northeast corner of Caledonia Road and Lawrence Avenue West. It took 10 or 15 minutes to get there. She had never been to that park before.

[31] V.C. told the officers that Peso initially parked the car near a soccer field, where a number of other cars were parked. They walked over to the field and watched some people playing soccer for about five minutes. Peso mentioned that he was a soccer coach, that he used to teach soccer, and that he had lost his job. They then returned to the car and Peso drove to a parking lot, where three other cars were parked.

[32] During her examination-in-chief, V.C. recalled that she and Peso stayed inside the car while watching the soccer game. However, in cross-examination, she testified that this was incorrect and that they definitely got out of the car to watch the game. She recalled that there were two or three other cars parked in the lot but there were no people inside them. After watching the game, they walked back to the lot, which only took a couple of minutes. She testified that Peso locked the car doors as soon as they got into the car. She could see the soccer field from the car.

[33] V.C. stated that Peso asked her to come to his side of the car. She complied because she was scared that he would “do something,” such as hit or grab her, as he had already used force in grabbing her thigh. After making her sit on his lap, he told her to turn her head so that he could kiss her. She kept turning her head away from him because she did not want to kiss him. Peso was putting his fingers on her face and trying to turn her face toward him. She did not kiss him back.

[34] During her testimony, V.C. elaborated on how she complied with Peso’s demand that she sit on his lap. She testified that she kept asking him “Why?” He told her, “Just come.” She then told him that she would go “out and around.” He unlocked the door. She then got out and went around to the driver’s side. She testified that she could have remained in the car and just gone over Peso in order to sit on his lap. She did not recall why she got out of the car but her compliance with his request to sit on his lap was related to her fear that he would do something, as he had already used force in touching her thigh. At one point during her examination-in-chief, when asked why she was scared, V.C. stated that she could not remember. However, in cross-examination she reiterated that she thought that Peso would do something to her because of the force he had used in touching her thigh. Consequently, “whatever he said [to do,] I did.”

[35] V.C. was questioned as to why she did not run away rather than getting back in the car. She testified that she thought about running. The soccer game was still going on, but it was some distance away. A few people had left. She feared that if she ran, Peso would probably run after her. She could not call anyone because her phone was dying. And she did not know how to get back home as she had never been to that park before. She felt that she had no options and did not know where to go. When she got to the driver’s door, Peso moved his seat back so that she could get in. Once in, she closed the door but did not lock it. She testified that it was “a little bit of a tight space.”

[36] V.C. told the officers that Peso then started to put his hand down her pants. She grabbed his hand to move it but he was “doing it with force.” She stated, “And then there was one point where he literally like got to the bottom of my pants.” V.C. told him that if he did not stop, she was going to call the police. Peso replied, “Okay, relax.” They were both calm, but then he started “doing it again,” and kissing her neck. She pushed him away and tried to open the door, but he had locked the doors. She told him to let her out. He told her “not yet” and again started to put his hand down her pants. She grabbed his hand and was able to push it away. At that point, Peso said “okay” and unlocked the doors. She got out and got into the front passenger seat. She stated that she was shaking and “kind of crying.” She told him to take her home. He dropped her off at a corner near her house. She did not recall the route home.

[37] V.C. told the officers that during the assault, the tip of Peso’s finger touched her vagina three times. At trial, she explained that he touched her under her underwear, but his finger never penetrated her vagina. The first “touching” lasted two seconds. The second touching also lasted a few seconds. She did not recall how long the third touching lasted.

[38] In cross-examination, V.C. testified that Peso was moving his arms and trying to get into her pants. He succeeded on two occasions but was unsuccessful on a third occasion. She was resisting. She tried to get out of the car, but the car doors were locked. He finally stopped and unlocked the doors when she told him that she would call the police. There was no conversation on the way back to her house. She just looked outside. She described herself as shocked and confused. She told him to drop her off at a certain intersection. She said “Bye” and got out. She estimated that they were at the park for a total of about 20 minutes.

[39] V.C. told the police that following the assault Peso continued to send her messages over Instagram and Snapchat. She did not want any further contact with him and “blocked him on everything.” Her Instagram account at the time was [V.C.’s Instagram account name]. She thought that Peso’s Instagram account was PESO_19 but added that she could not be sure as he had blocked her.

[40] During her interview, V.C. stated that Peso told her that he was either 19 or 20 years old – she could not recall which age he had given her. She testified to the same effect during cross-examination. At a later point during her interview, she stated that he told her that he was 19 but when she met him in person, he said that he was 20.

[41] V.C. stated that when she and Peso first started talking, she told him that she was 15 years old, which was her actual age. However, on the day of the barbeque she told him that she was 16. She explained that the barbeque took place in late June 2017, and that she was turning 16 on [month, day], which was only [redacted] days away. As a result, she considered herself to be 16. Her responses, when questioned during her interview as to what she told Peso with respect to her age are set out below:

Q. … Did you ever tell him your age or anything like that?

A. Um, he asked for my age and I told him. Um, but then there was one point where he like changed his age. He told me that he was 19 and then when we finally chilled and I turned 16 he said that he was um, 20. (V.C. testified that by “chilled” she meant “to meet or hang out.”)

Q. So, when you were originally talking between May and when you met in June, you told him that you were 15?

A. Um hum.

Q. And he told you that he was 19? And then when you met him at some point in June after the barbeque, is that correct?

A. Um hum.

Q. Uh, you told him – or he told you that he was 20?

A. I told him I was 16. I was 16.

Q. Okay. So you told him that you were 16 in June, even though you were only 15?

A. No, I was 16. Because May, and then my birthday –

Q. Is in July, right?

A. July, yeah.

Q. So but you met him in June?

A. Okay, so yeah I was 15.

Q. So, you’re still 15.

A. I’m 16 now.

Q. You’re 16 now.

A. Yeah.

Q. Do you remember if you told him if you were –

A. 15

Q. 16 or 15 at that time?

A. I told him I was 15. I was 15.

Q. Okay, so you, then you said then you turned 16 and told him –

A. Um hum, and then he said that he was 20.

Q. Okay.

A. But he never told me his birthday.

Q. Okay. So in June did you tell him you were 16?

A. Yeah.

Q. Okay, even though you weren’t 16 yet?

A. Are – or no – yeah. I told him I was sixteen.

Q. Okay. In June – but you – I guess assuming your birthday was pretty soon after, right?

A. Yeah.

Q. So you’re pretty much 16 in your eyes, is that what you were thinking or –

A. Mm.

Q. Or is there a reason that you told him you were 16 –

A. It was a week before my birthday uh –

Q. Okay.

A. – or if – it was [redacted] days before my birthday, so I considered myself 16.

[42] During her examination-in-chief, V.C. confirmed that she told Peso that she was 15 prior to meeting him in person. She was not sure how long prior to their meeting she told him that she was 15 but she thought that it was at the beginning of their contact over social media. She testified that on the day of the barbeque, and just before he picked her up, she told him via a text message that she was 16. He had not asked her how old she was but she told him anyway – that is, that she was 16, although she was, in fact, 15. In cross-examination, she expressed some uncertainty as to when she told him that she was 16. It could have been [redacted] days or a week or so before they met in person, but it was definitely less than a month.

[43] V.C. described Peso’s car as grey. It had really dark windows. The seats were upholstered in a black material as opposed to leather. There were a lot of pop cans and garbage in the car.

[44] V.C. stated that she told V.Q. about the sexual assault by Peso. However, she later clarified that she did not fully explain the incident and that she simply told her that she and Peso had “hung out.” She explained that she was not comfortable telling V.Q. what had happened. Other than A.R., she had not disclosed the assault to her parents, the police, or anyone else.

[45] V.C. stated that she did not disclose the assault to A.R. until after A.R. told her that she was going to meet up with Peso. V.C. stated that she “kept telling [A.R.] not to [meet with Peso] because he tried to do something to me.” She did not provide any details about the assault to A.R. other than to tell her that Peso had tried to touch her.

[46] V.C. believed that A.R. was sexually assaulted by Peso in September 2017. She stated that A.R. told her about the assault one week later. [A.R. testified that Peso sexually assaulted her on October 30, 2017.] V.C. told A.R. that she should have listened to her – that she knew something was going to happen because Peso had tried to do something to her.

[47] V.C. described Peso as Black, kind of chubby, and tall. When asked what she considered to be tall, she stated, “Like 5 feet 7 inches tall.” He appeared to be in his twenties. He had big lips and black hair that was short and “curly wavy.” He spoke in English and did not have an accent. He was wearing black joggers and a hoodie. She was unsure of the colour of the hoodie but thought that it was grey. He had posted photos and videos of himself on Snapchat, which she had viewed prior to meeting him.

[48] During the interview, V.C. played a Snapchat video of Peso that he had posted on July 5, 2017. Peso’s Snapchat account was “daneggared.” V.C. confirmed that the person in the video was the same person whom she had met in late June 2017. The video that she played was not captured by the camera in the interview room and could not be produced as an exhibit. Although V.C. did not give the video to the police, she gave them her Snapchat username so that they could access her Snapchat profile. She testified that the police never asked for her phone or her passwords. Nor did they ask for her consent to access her social media contacts.

[49] V.C. confirmed during her interview that the person shown in two photos taken as screenshots from A.R.’s phone on March 6, 2018 were of Peso. (Exhibits 5(c) and (d).)

[50] V.C. was also shown a photograph of Mr. Redhead taken by the Toronto Police Service on June 4, 2014, and a photograph of him taken by the York Regional Police on March 17, 2016. She stated that both photos were of Peso. (Exhibits 5 (e) and (f) respectively.)

[51] V.C. stated that her last contact with Peso was on July 22, 2017, after she had posted a picture on Snapchat. He responded to the posting by asking her “what’s up?” She responded by telling him to message her phone because her data was running out. He then i-Messaged her phone number and asked her how she was doing. The rest of the messages came through texts. At trial, V.C. testified that she asked Peso how he was doing and “that was all.” When asked why she had any conversation with him after he had sexually assaulted her, she testified that she wanted to see if he would apologize.

[52] I would note here that the text messages sent over iMessage were not retrieved from the Samsung phone seized from Mr. Redhead upon his arrest, as iMessage is only functional on an iPhone or iPod. This suggests that Mr. Redhead had an Apple iPhone that was not recovered by the police. A.R. testified that Peso told her that he had an iPhone and gave her the e-mail address to use for Facetime: “dawsonredhead@gmail.com.”

[53] During cross-examination, V.C. testified that she had no interaction with Peso after he dropped her off near her home after the assault. When reminded of her statement to police and evidence-in-chief regarding their interaction on July 22, 2017, she agreed that they communicated that day but their interaction was very brief.

[54] V.C. stated that she believed Peso knew that she and A.R. were friends as she had posted a picture of A.R. on Snapchat. When Peso saw the picture, he told V.C. that A.R. looked familiar and asked her for A.R.’s Instagram account so that he could confirm that she was the same girl that he was talking about. V.C. then gave him A.R.’s Instagram account and told A.R. in a Snapchat message what she had done. This is likely how Peso first contacted A.R. A.R. testified that Peso first communicated with her on Snapchat and that they never used Instagram. However, she also testified that her Snapchat username was posted on her Instagram account.

[55] V.C. could not say whether she gave A.R.’s Instagram account to Peso in May or June 2017 but thought that it was probably in May. It was before she met Peso in person.

[56] As stated earlier, when V.C. attended at the police station for the interview, she had no intention of making an allegation of sexual assault against Peso. She only intended to provide a witness statement in regard to A.R.’s allegations. She explained during her testimony that she did not feel comfortable going to the police as a victim and then having to explain over and over again what had happened to her. At the end of the interview, when asked by the officers if she wanted to press charges, she said “no.” However, she later changed her mind.

[57] V.C. testified that she could not recall when she changed her mind but then stated that it was a week or two after the interview. However, according to the agreed statement of facts filed as Exhibit 19, the police were not made aware of her intention to proceed with the case until October 22, 2018, which was approximately eight months after her interview.

Testimony at trial

The Snapchat Records

[58] During her testimony, V.C. was shown the Snapchat records relating to communication between the username “daneggared” and her Snapchat username, “[redacted].” She testified that a Snapchat message “disappears” unless one of the parties saves it, in which case both parties can continue to view the message.

[59] The first Snapchat message between V.C. and Peso is dated May 27, 2017, when “[V.C.’s Snapchat username]” shared the phone number [redacted]. This is consistent with V.C.’s statement during her interview that after speaking on Instagram, she and Peso went to Snapchat, where she gave him her phone number. They then started to text.

[60] On May 29, 2017, it appears that Peso responded to a posting made by V.C. in which she told her “friends” not to “message her,” meaning that she wanted to be left alone. Mr. Redhead responded by asking her “Y not?” He also told her to “stop being in your feelings” and “Like I don’t understand you.” V.C. responded, “Then u don’t know me.” Peso then told her, “I’m trying to get to know you.”

[61] Peso later sent unsolicited messages in response to general posts made by V.C. that were not related to him. She did not respond to any of his comments.

[62] On June 3, 2017, V.C. posted a video clip to her friends that shows her wearing a blue sweater with a Snapchat filter around her head. This post was saved by Mr. Redhead to his Snapchat.

[63] On June 7, 2017, Peso messaged V.C., stating, “I want u to be my girl.” V.C. testified that she did not respond to this message because she did not want to be his girlfriend.

[64] On June 8, 2017, Peso sent V.C. a cartoon depiction of what appears to be a man’s hand squeezing the buttocks of a woman who was lying on top of the male. Again, V.C. did not respond to this communication, which appears to have been unsolicited by her. At the same line entry, there is a second image containing a number of images within a square and which shows a naked erect penis and a penis penetrating a vagina. V.C. did not recall receiving this image.

[65] On June 9, 2017, at line 510 of the Snapchat records, there is a video that V.C. took of herself from behind as she was dancing (twerking). It was taken on her phone. She thought that she made the video in May, about a month earlier. She denied posting the video and did not recall sharing it with anyone. She agreed that the records show that it was posted from her phone but testified that someone else must have posted it. She testified that she sometimes lets her friends use her phone to make calls or send text messages, but she is usually around when that happens.

[66] On June 19, 2017, Peso messaged V.C. saying, “U don’t want me.” This was shortly after V.C. had posted an image of her friend Ethan. V.C. recalled receiving this message but testified that she did not respond to it. She understood that Peso was telling her that she did not want to be his girlfriend. She testified that that this was, in fact, true: she did not want to be his girlfriend.

[67] On June 26, 2017, Peso responded to V.C.’s post of herself in a red sweater, which would have been visible to all her user friends at the time. It appears that Peso saved this post, which explains why it was recovered from the Snapchat records. In the message, he told her, “You’re my wife.” After 20 minutes had passed without a reply from V.C., Peso posted the comment, “Your [sic] going to diss me like that.”

[68] On June 28, 2017, at 4:40 UTC time, (12:40 a.m. Toronto time) Peso appears to have responded to another post by V.C. in which she stated that she was “cutting off dumb people.” Peso posted, “Guess I’m one.” V.C. responded, “Na.” She testified that her initial post was not related to Peso and that she was not “cutting him off.” She initially could not recall if this was before or after she had met Peso in person, but then testified that it must have been prior to their meeting as she wanted to cut him off after that date.

[69] On June 29, 2017, at 17:57 UTC (1:57 p.m. Toronto time), V.C. made two posts that were unrelated to Peso, after which Peso sent her a message, “Thanks to know.” V.C. did not respond. She testified that this was after meeting him in person and that she did not respond because he had sexually assaulted her. Taking into account her message at 12:40 a.m. on June 28, 2017, when she did respond to his message, it appears that her in person meeting with Peso was on the evening of June 28, 2017.

[70] On December 25, 2017, A.R. texted V.C. and asked her if she knew how old Peso was. V.C. replied, “19 or sum,” meaning “19 or something.” A.R. replied, “Cos now he’s trying to tell me he’s 18 like what.” V.C. replied, “That’s bs” and told her not to talk to him. V.C. testified that there was no discussion on this day about going to the police. She testified that she did not feel comfortable going to the police, having to explain the whole situation, and then having to repeat it.

[71] On March 4, 2017, A.R. texted V.C. and asked her if she had Peso’s Instagram account. When V.C. asked her why she wanted it, A.R. told her “Swing it. I’m pressing charges on him.” V.C.’s response, in three separate texts, was “Why?” “How?” and “Don’t you need your mom to find out tho?”

[72] V.C. believed that if A.R. pressed charges against Peso, she would have to tell her parents about the assault because she was underage. Similarly, V.C. also understood that if she herself made a complaint to the police, she would have to disclose the incident to her parents, which she was not comfortable doing. She testified that she has never told her parents about it. A.R. texted V.C. that she had already told her mother about having been assaulted by Peso.

[73] V.C. testified that she asked A.R. “Why?” because she wanted to know if she was really ready to go to the police. She explained that A.R. was a shy person, which caused V.C. to wonder if she would be comfortable explaining what had happened to her. She testified that she did not encourage A.R. to go to the police.

[74] V.C. testified that A.R. told her that Peso had sexually assaulted her one week after it happened. A.R. testified that the assault took place on October 30, 2017, which would mean that she spoke to V.C. about it in early November 2017. V.C. recalled that A.R. came over to her house and told her what had happened. V.C. testified that she did not ask A.R. any questions. She just listened to her. A.R. told her how she was feeling. V.C. told her that if she needed anything or wanted to talk, she was “here for her.”

[75] V.C. testified that she told A.R. at that time that “something like that also happened to me.” She testified that this was the first time that she had mentioned to A.R. that Peso had sexually assaulted her. A.R. told her to speak to people whom she trusted and suggested that she might feel better if she spoke to the police.

[76] V.C. testified that she and A.R. never again discussed the details of what Peso had done to them.

[77] When A.R. spoke to V.C. in March 2018, she asked her if she was willing to speak to the police as a witness. V.C. stated that she was. V.C. testified that an officer called and spoke to her on the phone on March 5, 2018, at which time she agreed to give a witness statement. She attended at the police station the next day and was interviewed. She initially testified that A.R.’s mother drove her, A.R. and V.Q. to the station. However, she later agreed that an officer picked up both her and V.Q. from V.Q.’s house and took the two of them to the station. A.R.’s mother drove them home after the interviews. V.C. blamed this inconsistency on the passage of time, as the interview took place two and a half years ago.

[78] V.C. denied discussing her police interview or the charges with A.R. They only spoke about “next steps” in terms of the court process.

[79] V.C. testified that prior to the interview, the only people whom she had spoken to about Peso having sexually assaulted her were her sister, A.R., and V.Q. The only person with whom she discussed her police interview was her sister.

Communication between V.C. and A.R. about Peso

[80] In cross-examination, V.C. was asked to list all the communications that she had had with A.R. regarding Peso.

[81] V.C. testified that she gave A.R.’s Instagram account to Peso sometime in May 2017, but never asked her if Peso ever got in touch with her. She and A.R. did not communicate at all with each other during the summer, when A.R. was in Spain.

[82] V.C. testified that the next time that she and A.R. spoke about Peso was in September 2017, when A.R. told her that Peso had sexually assaulted her. (As stated earlier, A.R. alleges that the assault took place on October 30, 2017.)

[83] Finally, V.C. testified that she and A.R. spoke again in March 2018 and prior to V.C.’s police interview on March 6, 2018. A.R. asked her if she had any information about Peso because she was going to press charges. She also asked V.C. to speak to the police. She did not ask V.C. if she was going to press charges.

[84] Defence counsel then brought to V.C.’s attention the fact that, in listing her and A.R.’s discussions about Peso, she omitted any reference to A.R. having told her about her intention to meet up with Peso and that V.C. had advised her against it because he had tried to do something to her and had tried to touch her. When asked why she omitted these communications between herself and A.R., which she had described to the police during her interview and adopted during her evidence-in-chief, V.C. explained that she warned A.R. against meeting with Peso through text messages but that A.R. never replied to them. V.C. also testified that there was “not a lot of conversation” at that time about what Peso had done to her.

[85] V.C. acknowledged that she also failed to mention, when asked to list all the discussions that she had with A.R. about Peso, that A.R. had told her that she liked Peso. V.C. initially stated that she did not recall such a conversation. However, she agreed that she told the police that A.R. had told her that Peso had messaged her, that they had started talking, and that they were “close.”

[86] V.C. also failed to include in the list during cross-examination the text messages between herself and A.R. on December 25, 2017, when A.R. asked her for Peso’s Instagram information. In re-examination, when asked if there was any reason that she forgot to mention these messages, she stated that these things happened a few years ago, and that she could not remember “every single topic” without rereading “stuff” or the “evidence” in order to refresh her memory.

[87] When asked how she knew that the “Peso” with whom she was communicating was always the same person, V.C. stated that he would post pictures of himself and it was always the same person. She also testified that everything that he typed or said was always the same “style”: he told her multiple times that “I want you to be my wife,” “I want you to be mine” and similar messages.

[88] V.C. testified that she relied a lot on social media to connect with people and socialize with her friends prior to being sexually assaulted by Peso. After the assault, she continued to use social media but not as much. She was scared about meeting new people and did not want something like that to happen again.

Testimony of A.R.

[89] A.R., age 17, was born on [month, day] 2003. She was 13 years old and in Grade 8 when she first met Peso online over Snapchat in June 2017. She alleges that he sexually assaulted her on October 30, 2017, when they met for the first time in person. She was 14 years old at that time.

[90] A.R. was in the applied stream of Grade 9 during the 2017/2018 school year but dropped out before the end of the year. She later attended an alternative school for two or three months, where she earned one Grade 9 credit. She testified that she tried to focus at school but had trouble remembering what she had learned. At the time of the trial, she was not in school or employed.

[91] On March 5, 2018, A.R. and her mother attended at the police station to report the alleged sexual assault by Peso. On March 6, 2018, A.R. provided a statement to the police, which she adopted, and which was admitted into evidence pursuant to s. 715.1 of the Criminal Code.

[92] During her police interview, A.R. stated that when Peso initially contacted her over the Snapchat App, he told her that he had “seen her around and stuff” and had also seen her at the bus stop that day. He introduced himself as “Peso” and told her that he wanted to get to know her and be her friend.

[93] A.R. was on a bus going to Niagara Falls with other Grade 8 students when Peso first messaged her. This trip took place sometime in June 2017 near the end of the school year.

[94] A.R. testified that Peso asked her how old she was. She told him that she was 13. She also told him that her name was [A.R.’s nickname], which was the name visible to anyone who messaged her on Snapchat. She believed that she also told him that she was on a school trip.

[95] Peso continued to message A.R. on a daily basis. They communicated using Snapchat for text messages. Later on, they used video messages and Facetime.

[96] When A.R. turned 14 on [month, day] 2017, Peso wished her a happy birthday. Her birthday was apparently posted on Snapchat.

[97] A.R. could not explain how Peso got her contact information. She made no mention and appeared to have no recall of V.C. telling her that she had given Peso her Instagram account. However, A.R. told the officers that her Snapchat username was posted on her Instagram account, which Peso said that he had.

[98] During August 2017, when A.R. was in Spain, she and Peso Facetimed “a lot.” Peso would call her and tell her that he wanted to see her when she returned to Toronto. She stated that she told him “okay” just to be nice, but she did not, in fact, want to see him.

[99] During her interview, A.R. played a video that she had saved from Snapchat that shows the person known to her as “Peso.” Still images developed from that video (Exhibits 5(c) and (d)) clearly depict the accused, Mr. Redhead. During her testimony, A.R. was also shown the same two RICI photographs of Mr. Redhead that were shown to V.C. A.R. identified Peso as the male in those photographs. Based on this identification, as well as other identification evidence referred to in these reasons, I will be referring to Mr. Redhead and Peso as one and the same person.

[100] A.R. told the officers that her username on Snapchat was “[A.R.’s first and last name]1212.” Peso’s Snapchat name was “PESO,” but she could not recall his username. The Snapchat logs show one entry related to “[A.R.’s first and last name]1212”: on June 9, 2017, A.R. shared her telephone number with “daneggared.” A.R. testified that this log entry accurately indicates when she gave Peso her phone number.

[101] During her interview, A.R. stated that she used her iPod to communicate with Peso on Facetime. Peso told her that he had an iPhone and gave her the e-mail address to use for Facetime: “dawsonredhead@gmail.com.” A.R. showed the police the contact that she had for Peso with the same e-mail address. She had also saved his phone number – 416-727-4207 – as a contact for him. Exhibits 12(a) and (b), which reflect data retrieved from her iPod, show A.R. communicating with that phone number and e-mail, respectively. During the interview, A.R. agreed to allow the police to download the contents of her iPod for the purpose of the investigation.

[102] The phone number that Peso provided to A.R. was the same number found on the SIM card in the Samsung phone seized from Mr. Redhead upon his arrest. The e-mail address that Peso gave to her was the primary e-mail account in use on the Samsung phone. It is also the same e-mail used on the Snapchat account for “daneggared”: Exhibit 4(b).

[103] A.R. told the police that she tried to avoid Peso when he suggested in messages that they Facetime or “hang out” together. She stated that he would call her “Mama” or “Mommy,” which she found “creepy” and made her feel uncomfortable as she was only 14 years old. During her testimony, she described the Facetime calls between Peso and herself. She testified that she did not really want to see him as he would ask her to show him her thighs and her buttocks, which made her feel uncomfortable.

[104] A.R. acknowledged that she sent Peso a video showing her buttocks while she was twerking. It was not a nude picture as she was wearing shorts at the time. When asked whether she sent the photograph because she liked Peso, she testified that she was “just trying to get his attention” because she sometimes likes attention.

[105] Peso continued to communicate with A.R. for several months using Snapchat for text and video messages, as well as over Facetime.

[106] During her testimony, A.R. was shown the Facetime call logs (Exhibits 12(a) and (b)). She explained that most of those calls took place in August 2017 while she was in Spain. She was able to see Peso’s face during the calls, some of which lasted for over an hour. Most of the calls were made by him.

[107] A.R. described her conversations with Peso during August as casual and friendly. There were usually other people around during the calls as he would call her from work. It appeared to her that he was working at a summer day camp, where there were girls her age, as well as 15 to 17 year olds. She sometimes listened to his conversations with kids. He told A.R. that he was a soccer coach. They talked about what they were doing that day or what was happening the next day but did not discuss anything of great significance.

[108] A.R. testified that she was living with her grandparents while in Spain and that their apartment was the only place where she could access WiFi. She was very bored. As a result, she liked talking to Peso and felt a “friendship bond” with him: “I felt like he was a good guy, so like I would talk to him in a friendly way.” When asked if she trusted him or felt close to him, A.R. stated, “A little bit.”

[109] Mr. Redhead sent A.R. a photograph of his penis while she was in Spain. He told her that he was 18 although he was actually 23 years old at the time.

[110] The logs show that the Facetime calls between Mr. Redhead and A.R. began on August 12, 2017 and ended, for the most part, on October 30, 2017. A.R. placed the last call. The only calls after October 30, 2017 were on January 5 and 7, 2018. Mr. Redhead called her twice on January 5 but the calls were unanswered.

October 30, 2017: In-Person Meeting Between Mr. Redhead and A.R. – the Sexual Assault Allegation

[111] On a school day near the end of October 2017, A.R. posted a message on Snapchat asking if anyone could give her a ride. Mr. Redhead replied to the post and told her that he could pick her up. A.R. then asked him over Snapchat to drive her to another school, where she wanted to confront a girl whom she did not like. Mr. Redhead agreed to drive her there. When A.R. was asked why, having been initially reluctant to meet Peso, she would agree to meet him at this time, she testified that it did not matter to her who was driving. She just wanted to get to the girl’s school “as fast as possible.” A.R. was 14 years old and in Grade 9 at the time.

[112] During her police interview, A.R. stated that she thought that she met Peso in person a couple of days prior to Halloween or that same week. During her examination-in-chief, she was shown the final entry in Exhibit 12(a), which contains a note made in her iPod. The note references October 30 as the date that she met Peso. The last time that this note was modified (or altered in anyway) was October 31, 2017 at 2:21 p.m. This note refreshed A.R.’s memory and she agreed that it accurately reflects the date when she met Mr. Redhead in person.

[113] Mr. Redhead met A.R. and her friend, A.A.-R., at the end of the school day on October 30, 2017, at around 3:00 or 3:30 p.m. Both girls were wearing their school uniforms, which consisted of a reddish burgundy polo shirt with the school logo on the left side, stating the school name, “Blessed Archbishop Romero.” A.R. was wearing grey dress pants, which were part of the uniform. She thought that she was also probably wearing the school sweater, which was black and had the school logo in the left chest area.

[114] Mr. Redhead picked up the girls in the parking lot of a library at Eglinton Avenue and Weston Road, which was about three blocks from their school. A.R. sat in the front seat. A.A.-R. sat in the back. Mr. Redhead then drove them to the other girl’s school as they had previously discussed. That school was an elementary school, as the girl they were looking for was in Grade 7 or 8. Mr. Redhead parked his car at the side of the school. A.R. and A.A.-R. got out. Mr. Redhead waited for them in his car.

[115] A.R. and A.A.-R. returned to the car after a few minutes as they could not find the girl they were looking for. School had finished for the day and the girl had apparently left. A.R. and A.A.-R. asked Mr. Redhead to drive them home.

[116] A.R. was angry with the girl they were looking for as she had been saying insulting things about A.R. on social media. In cross-examination, A.R. denied that she intended to fight with the girl. She acknowledged, however, that during her police interview, she stated that she planned to confront the girl and “fight her or whatever.” She testified that “maybe I would have touched her.” She also testified that some months later, she and two of her friends returned to the girl’s school and confronted her. One of the girl’s friends wanted to fight with A.R. However, the school principal showed up and told A.R. and her friends to leave. The matter was later reported to A.R.’s school and she was suspended for two days.

[117] A.R. testified that after Mr. Redhead had dropped off A.A.-R. at her house he asked her, “What now?” A.R. told him that she wanted to go home but that she was not in a rush. Mr. Redhead then drove to an apartment building in the area of Jane and Trethewey Drive and parked in the underground parking garage. He told A.R. that he wanted to go up and get something and asked her if she wanted to go with him. During her interview, A.R. stated that she decided to go up to the apartment because she did not want to be alone in the car in the underground parking lot. The apartment was on the 15th floor. During cross-examination, A.R. stated that Mr. Redhead was touching her buttocks in the elevator on the way up, which made her feel nervous and scared. She told him to relax. She did not try to leave because she did not know where she was and felt that she was “stuck” with him.

[118] Once inside the apartment, Mr. Redhead made no effort to retrieve any item. Instead, he offered her a drink of an alcoholic beverage. She took a sip, but it had no effect on her.

[119] A.R. testified that they sat on the couch in the living room. She had asked Peso to connect her to WiFi, but he did not know the password. He told her to stand up. She testified that she was shy and said “no.” She eventually did stand up, at which point he grabbed her buttocks. She told him to “relax,” that she did not feel comfortable. During her police interview, she stated that she knew “something was gonna happen” but she did not know what to do. Mr. Redhead slapped her buttocks hard, leaving a red mark.

[120] A.R. stated that they somehow ended up in the washroom. She could not recall how they got there. Once in the washroom, Mr. Redhead told her to sit down. She did not want to sit down and backed up a couple of steps before sitting on the toilet. Mr. Redhead then pulled out his penis and told her to suck it. She did not want to do anything sexual with him and told him to “relax.” In cross-examination, she testified that she was moving his penis away from her face. After initially refusing, she performed fellatio on him, which went on for five or ten minutes.

[121] During her interview, A.R. was questioned as to what she meant when she told Mr. Redhead to “relax.” She stated that this was her way of saying “no.” She was backing away when she told him to relax. In cross-examination, she testified that in her mind, telling him to relax meant that she was not interested and that he should “stop,” and “calm down.” She testified that she felt that she had no voice.

[122] Mr. Redhead told her to stand up and tried to try to pull down her pants. She kept trying to keep them up. Eventually, he was able to remove them. He then took her into the bedroom, leaving her pants on the bathroom floor. A.R. told the police, “I didn’t know what to do. I’m like oh, my God.”

[123] Once in the bedroom, Mr. Redhead put her on the bed and was rough with her. He bent her over and penetrated her from behind while her head was in a pillow. She did not want this to happen. While she was being penetrated from behind, she was screaming that it hurt. She did not know what to do or how to react. He was not wearing a condom.

[124] When asked during the police interview how long intercourse lasted, A.R. stated, “Not long because then I asked him, ‘Aren’t you 20 and stuff?’ and he’s like, ‘Yeah.’ And then that’s when he stopped – just cold stopped.” He did not ejaculate.

[125] A.R. stated the Mr. Redhead “looked depressed.” When she asked him what happened and why he looked depressed, he told her that something had happened in the past and that he would “tell her in the car.” In cross-examination, she described Mr. Redhead as looking as if he had done something wrong, that he looked guilty. She testified that he had always been aware of her age. At this particular time, he knew that she was 14 and in Grade 9.

[126] In terms of her understanding of Mr. Redhead’s age, A.R. testified that although he told her that he was 18 when they first started to communicate over social media, he later told her that he was 20. In cross-examination, she testified that he also told her at one point that he was 19. She did not know what to believe in terms of his age.

[127] After getting dressed, Mr. Redhead and A.R. returned to the car. She stated that she got back into the car because she did not know how to get home. Mr. Redhead then told her that he had been arrested three years earlier because a girl selling herself set him up by saying that she was 19 when she was, in fact, 15 years old. He did not go into any further details. He then drove A.R. to a street near her home. She got out of the car and walked the rest of the way.

[128] A.R. testified that while they were in the car, Mr. Redhead told her that he knew where she lived, even though she had never given him her address. He also told her that he had seen her walk home.

[129] A.R. told the police that after the sexual assault, Mr. Redhead continued to contact her over Snapchat and was “constantly” asking her to “chill.” She did not respond to his messages. He sometimes told her that he was close to her house and would ask her to come outside when it was 1:00 a.m. On one occasion, he told her that he was at her home and sent her a live video of her house. Because he was taking the video “then and there,” A.R. could not save it. The only option in those circumstances was to play it once.

[130] A.R. testified that she was concerned that Peso would rape her again if they ever got together. She stated that she did not want to see him again as she “never wanted anything like that to happen.”

[131] Shortly after the assault, A.R. told V.C. what had happened. V.C. told her that she had also met Peso over the Internet and that he had touched her sexually. A.R. believed that she and V.C. only spoke about Peso after October 30, 2017 – that is, after she had met Mr. Redhead in person. She and V.C. only had one conversation in which they told each other what Peso had done to them when they met him.

[132] In cross-examination, A.R. testified that she may have spoken to V.C. about Peso before she met him in person, but she had no recollection of having done so.

[133] During this period, A.R. saved Snapchat messages from Mr. Redhead, which led to his blocking her on his Snapchat account.

After-the-fact Snapchat text messages with Mr. Redhead

[134] During her interview, A.R. showed the officers screenshots of chats that she had with Peso when she no longer wanted to communicate with him and which she had saved on her iPod. Exhibit 12(c) contains the saved portions of that conversation. During this conversation, A.R. accused Mr. Redhead of sexually assaulting her, while knowing that she was 14 years old when he was 20 years old. The conversation, at least in part, is dated December 25, 2017. Mr. Redhead did not deny the sexual contact with A.R., but instead lied about his age when A.R. confronted him with the fact that he had told her that he was 20.

[135] During the conversation, A.R. told Mr. Redhead that he should stop trying “to link her” or hang out with her. The conversation continued:

A.R.: I’m 14 n ur 20 u should just cool it n relax cos knowing u if I link u, ur prolly gonna fuck me again n like I just never wanted that to happen.

Peso: Who’s 20 tf (meaning ‘the fuck’) buddy I’m 18 n k

A.R.: U told me u were 20 wen u took me to ur crib

Peso: Nah I’m 18 still

I wanted to see how u was gonna

move afterwards but I got it still

[136] A.R. testified that she interpreted the last two lines as Peso telling her that he wanted to see how she would act toward him or “if the bond would still be there.”

[137] In cross-examination, A.R. was questioned about two screenshots that appear on p. 2 of Exhibit 12(c), which she took when she searched for Peso’s username “daneggared.” The time on both screenshots is 6:15 p.m. On one of the screenshots, there is a bitmoji. However, on the other screen there is a “ghost” emoji, which indicates that Peso had blocked her. A.R. could not explain this discrepancy but noted that both screenshots show that she had typed in the same username – “daneggared” – which she had saved.

[138] During her interview, A.R. showed the police a video of Peso in which he is smoking a cigar and drinking a beer. She saved this video from Snapchat and took a screenshot of it (Exhibit 12(c).) She confirmed that the video was from the “daneggared” Snapchat account showing the name “Peso.” A.R. stated that Peso sent her this video – which clearly depicts Mr. Redhead – and that she saved it sometime “after he raped me, like days or a month after.”

A.R. Reports the Sexual Assault to the Police

[139] A.R. testified that she initially did not want to report the sexual assault to the police. However, over time it began to affect her. She testified that she could not focus on anything else because it was always on her mind. She felt useless and bothered by the fact that Peso had taken advantage of her so easily. The fact that he knew where she lived, had sent a live video of her house, and was in the area also concerned her. She was afraid to be alone in her home.

[140] On March 2, 2017, A.R. disclosed what had happened to her mother. On March 4, 2018, she contacted V.C. and asked her for Peso’s Instagram account. On March 5, 2018, she went to the police and provided some information to them, as well as the screenshot photos. She returned to the police station on March 6, 2017, when she gave her DVD-recorded statement.

A.R.’s iPod and BLU cellphone are provided to the police

[141] As stated earlier, A.R. agreed during her interview to let the police download the contents of her iPod for the purpose of the investigation. She did not know, however, when the iPod and her cell phone were actually handed over to the police. When she left the police station, both items were still in her possession. Before she left, she gave the police her Snapchat username and password so that the police could access her activity on Snapchat.

[142] A.R. testified that her parents moved to Niagara Falls at the end of June 2018, and that her uncle, who was visiting from Spain, stayed with them during July and August. She testified that her uncle took her iPod and phone from her as he did not want her to be messaging anyone. A.R. believed that he gave both items to the police. She had not seen her iPod or cellphone in a long time. She ran away from home a few months after her family moved to Niagara Falls and returned to Toronto, where she currently lives.

[143] An agreed statement of fact (Exhibit 18) indicates that after A.R.’s interview on March 6, 2018, Sgt. Pinfold requested consent to forensically analyze her iPod. This was discussed with both A.R. and her mother, D.T., on that day. D.T. provided the requested consent with respect to the iPod and A.R.’s “BLU” cellphone on February 6, 2019, when both items were handed over to the Niagara Regional Police.

[144] According to the agreed statement of fact, D.T. advised the police that the family believed that D.T.’s brother (A.R.’s uncle) had taken the iPod back to Spain with him. However, it was later discovered that the iPod and phone had been hidden by D.T.’s sister but remained in A.R.’s family home in Niagara Falls. D.T. notified the police when the items were discovered. On February 20, 2019, she told A.R. that the iPod and phone had been handed over to the authorities.

Testimony of A.A.-R.

[145] A.A.-R., age 17, was A.R.’s classmate and friend during their Grade 9 school year, which ran from 2017 to 2018.

[146] A.A.-R. testified that during the “wintertime” prior to Christmas, A.R. asked her to go with her to a school where she intended to confront a girl with whom she was having a dispute over social media. A Black male drove them to the school at the end of the school day. After refreshing her memory from her statement to police, A.A.-R. described the male as having a beard and moustache, and curly dark “African-American” hair. Both she and A.R. were wearing their school uniforms. A.A.-R. was also wearing a jacket and carrying a backpack.

[147] A.A.-R. testified that when she got into the car, A.R. introduced the male driver to her as Peso and that he responded to that name. He drove them to St. Conrad’s elementary school and parked at the side of the street next to the school. Both she and A.R. got out of the car to look for the girl. When they returned, Peso was still sitting in the driver’s seat. A.A.-R. asked him to drive her home. A.R. remained in the car after A.A.-R. was dropped off at her house.

[148] About a week later and while they were at school, A.R. told A.A.-R. that Peso had sexually assaulted her. A.A.-R. described A.R. as looking “pretty sad.” She seemed down or emotionless when describing the assault.

Further Evidence of Identification of Mr. Redhead as Peso

[149] Both V.C. and A.R. provided evidence indicating that the person known to them as Peso had contact with them over the Snapchat account with the username “daneggared.”

[150] In support of his position that Mr. Redhead was Peso, Crown counsel also relies on the fact that many of the chat entries and images contained in the Snapchat logs identify Mr. Redhead as the user of that account. For example, on May 27 and June 19, 2017, the user states, “I’m Dawson.” The name “Dawson” appears to be a nickname that Mr. Redhead repeatedly used: his e-mail account on his Samsung cellphone and on his Snapchat account was dawsonredhead@gmail.com.

[151] The user of the Snapchat account also provided Mr. Redhead’s cellphone number – 416-727-4201 – to others. This happened on May 30 and June 27, 2017.

[152] There are many conversations where the user speaks of his interest in soccer and states that he is a soccer coach, as described by both V.C. and A.R.

[153] On June 18, 2017, the user states that he is at 15 Martha Eaton Way, which is the address where the police arrested Mr. Redhead on March 7, 2018 for the present offences.

[154] On June 19, 2017, the user provided what appears to be an Instagram name – “_peso94.” Exhibit 21 is a screenshot from Mr. Redhead’s iPhone, showing a photograph of himself and the same Instagram name. This image is found in the Stored Images on the Samsung phone and saved as a thumb nail image numerous times.

[155] The thumb drive taken from the Snapchat files shows multiple images of Mr. Redhead. Of particular note is the fact that the video clip that A.R. gave to the police of Mr. Redhead drinking a beer and smoking a cigar is found elsewhere in the Snapchat account and saved as part of a chat between the user and “crazybitchh69” on May 25, 2017 (line 1490). All of the other files saved are pictures of Mr. Redhead that appear to have been shared with other users with whom he was chatting.

Prior Discreditable Conduct: York Region Charges and Peso’s Admission to A.R.

[156] During a pre-trial application, the Crown sought to admit prior discreditable conduct of Mr. Redhead – namely, that at the time that he allegedly committed the offences with respect to A.R., he was facing charges relating to luring a child over the Internet. I allowed the application as I found that its probative value with respect to the issue of identity and the credibility of A.R. as a witness was not outweighed by its prejudicial effect.

[157] I will review this evidence in more detail later on in these reasons.

The Sex Offender Registry Investigation and the Arrest of Mr. Redhead

[158] On January 17, 2018, Mr. Redhead was placed on probation for a period of two years. He was also ordered, pursuant to SOIRA, to register with the National Sex Offender Registry (“NSOR”), which required him to report his address and any secondary address to the police each year. Any change in the main or secondary address must be reported within seven days of the change.

[159] Mr. Redhead reported his address for the first time and in person on February 7, 2018. The address that he provided was #2 – 2246 Keele Street, Toronto.

[160] On Friday, February 9, 2018, at 7:30 a.m., Detective Constable George attended at that address as part of an NSOR compliance check. He knocked on the door to the apartment several times, but there was no answer. He also called Mr. Redhead’s telephone number, but it went directly to voicemail. He left the apartment without leaving a business card or message for Mr. Redhead.

[161] On Friday, February 16, 2018, at 8:15 a.m., Officer George returned to the Keele Street address with Detective Constable Jonkman. Mr. Redhead’s mother, Linda Redhead, answered the door. The officers identified themselves with their police badges. Officer Jonkman asked to speak to Mr. Redhead. Mrs. Redhead was not called as a witness and thus, any statements that she made to the officers are hearsay and not admissible for the truth of their contents. In any event, it appears from the officers’ interactions with Mrs. Redhead that Mr. Redhead was not at the address at that time.

[162] Officer Jonkman testified that Mrs. Redhead stepped back into the apartment very briefly to retrieve her cellphone and then returned to the doorway. After calling Mr. Redhead’s number, she stated that his “phone was off.” The officers asked her to tell Mr. Redhead that they wanted to speak to him about updating his address with the Registry.

[163] On March 1, 2018, an NSOR officer contacted Officer Jonkman, gave her Mr. Redhead’s phone number and asked her to call him in regard to his compliance with the reporting requirement of a change of address. Officer Jonkman called the number and spoke to Mr. Redhead. She told him that there had been a “couple of checks” at the Keele Street address but he had not been there. Mr. Redhead explained that he left early in the morning and that 6:00 p.m. would “work better for him.” Officer Jonkman told him that they would try to accommodate him.

[164] On March 6, 2018, the two complainants, V.C. and A.R., were interviewed by the police. Later that day, at 8:15 p.m., Officer Jonkman called Mr. Redhead. He confirmed his address at 2246 Keele Street, Apartment 2, but also told her that he had an alternate address, which was 15 Martha Eaton Way, Unit 1505. He agreed to meet with Officer Jonkman at the Martha Eaton Way address the next day, on March 7, 2018, at 4:00 p.m.

[165] Sergeant Pinfold testified that by March 7, 2018, he had decided to arrest Mr. Redhead for the offences relating to A.R. – that is, for sexual assault and luring a child.

[166] On March 7, 2018, at 4:00 p.m., five officers attended at 15 Martha Eaton Way, Unit 1505. Sergeant Pinfold and Officers George and Jonkman were in plainclothes. Police Constables Arias-Vernal and Mangilinan were in uniform.

[167] Sergeant Pinfold knocked on the door. Mr. Redhead, who was speaking to someone on his cell phone, opened the door and stepped into the hallway. Officer Jonkman asked him, “Are you Donson?” Mr. Redhead answered “Yes.” He told the person to whom he was speaking that he would call them back.

[168] Sergeant Pinfold told Mr. Redhead that he was under arrest for sexual assault and child luring. He was handcuffed to the rear, advised of his rights to counsel, and cautioned. During a pat search, Officers George and Mangilinan located a key and a Samsung cellphone in his pants’ pocket.

[169] Mr. Redhead, who was wearing flip-flops, asked to get his shoes and a jacket. Officer George assisted him in retrieving these items. Sergeant Pinfold had given him a Canada Goose jacket, but Mr. Redhead indicated that he wanted a different jacket. Officer George retrieved the requested jacket from the hall closet. He also gave Mr. Redhead a pair of shoes, which were at the entranceway. Sergeant Pinfold observed a bag of soccer balls in the living room.

[170] At Mr. Redhead’s request, Sergeant Pinfold gave the apartment key to a male named Richard, who had arrived on scene. Richard took the key and entered the apartment.

[171] When asked for his address during the booking process at 12 Division, Mr. Redhead provided both the Keele Street and Martha Eaton Way addresses.

[172] During his statement to police, which I found to be voluntary, Mr. Redhead acknowledged that he was aware that he had to report any change of address to Probation and Parole in order to comply with the Registry. He also stated that he had intended to report the change the previous day, on March 6, 2018, when he met with his probation officer, but decided to wait to see the officers with whom he had agreed to meet on March 7 at 4:00 p.m.

[173] The evidence of Mr. Redhead’s probation officer was adduced by way of an agreed statement of fact. It is agreed that Mr. Redhead met with Probation Officer Szczuma on January 31, 2018, at which time he was made aware of the terms and conditions of his probation order and the consequence of non-compliance with the order, specifically s. 733.1 of the Criminal Code and related provisions.

[174] Pursuant to the probation order, dated January 17, 2018, Mr. Redhead was required to notify his probation officer in advance of any change of name or address and promptly notify the probation officer of any change in employment or occupation, live at a place approved of by the probation officer and not change that address without obtaining the consent of the probation officer in advance.

[175] Mr. Redhead met with his probation officer on February 20 and March 6, 2018. At each meeting, he confirmed that his address was #2 - 2246 Keele Street and that he resided there with his mother and younger brother.

[176] It is apparent from the agreed statement of facts that Mr. Redhead made no mention of the Martha Eaton Way address to his probation officer on March 6, 2018. However, during his telephone conversation with Officer Jonkman that day, he described that address as his alternate residence and agreed to meet her there the following day.

Mr. Redhead’s Statement to Police

[177] A voir dire was held to determine the admissibility of a statement made by Mr. Redhead to the police following his arrest. Mr. Redhead testified at the voir dire but not at the trial proper.

[178] I found that the Crown had established beyond a reasonable doubt that the statement was voluntary. In particular, the “operating mind” test was satisfied. Mr. Redhead clearly understood the questions asked of him, understood what he was saying, and understood that whatever he said could be used in the proceedings against him. The statement was therefore ruled admissible as evidence at his trial.

[179] Crown counsel also brought an application for the admission of after-the-fact conduct, which consisted of statements made by Mr. Redhead during the interview. The position of the Crown is that Mr. Redhead made a number of comments from which an inference of guilt may be drawn with respect to the charges relating to A.R. and V.C. I allowed the application as I found that the test for threshold admissibility set out in R. v. O’ Connor, 2002 3540 (ON CA), [2002] 62 O.R. (3d) 263 (C.A.) had been met.

[180] At the outset of the interview, Mr. Redhead was told that he was being charged with luring a child, sexual assault, and sexual interference. It was therefore clear to him that the charges involved an allegation that he communicated with someone who was underage and that he had sex with that person. In that context, Mr. Redhead made the following denials when questioned by Sergeant Pinfold:

• When asked if he knew anyone by the name of [A.R.’s nickname] or [A.R.’s first name], Mr. Redhead stated, “Nah. Not that I can recall.”

• When asked if he remembered having sex with anyone under the age of 18, Mr. Redhead stated, “No.”

• Sergeant Pinfold then told Mr. Redhead that there were “some serious allegations” that had been made against him – namely, it was alleged that he had sex with someone under the age of 16, not just 18, and that he and the complainant had lengthy online communications before they had sex. When asked if he had any idea why anyone would make these allegations against him, Mr. Redhead stated that he did not know. He added that he did not trust anyone since his last charges (referring to the charges relating to his attempt to have sexual activity with an underage female), that he does not talk to anyone, and that he tries to “stay in [his] corner.”

• When asked if he went online, Mr. Redhead stated: “Me, I don’t social myself – talk much on there.” He stated that he had Facebook but did not use it. He denied using any other form of social media, including Twitter, Snapchat, or Instagram.

• Sergeant Pinfold told Mr. Redhead that someone who had described him “to a tee” said that they had been to his apartment on Martha Eaton Way, that something happened there, and that Mr. Redhead confided in the person about the York Region charges. Mr. Redhead replied, “No.” He stated that he had told no one, not even his mother, about the York Region charges. When asked how someone else could have known about them, Mr. Redhead stated that he did not know.

• Sergeant Pinfold told Mr. Redhead that it was alleged that he and the complainant, who was a high school student, started chatting on Snapchat in June. Mr. Redhead stated that he did not know what the officer was talking about. He did not have Snapchat on his phone. He denied chatting with any high-school girls.

• Sergeant Pinfold provided further details to Mr. Redhead about A.R.’s allegations. He told him that it was alleged that at the end of October, before Halloween, he gave a girl a lift because she had a beef with another girl at another school. He and the girl then went to his place to get something and the girl came up with him. Mr. Redhead stated, “Don’t know.” Officer Pinfold told him that “then something happens there.” Mr. Redhead stated “Don’t remember. Tryin’ (sic) to. No.” When asked if he remembered telling the girl what happened to him in terms of the charges he was dealing with, Mr. Redhead stated, “I don’t know – telling no one else anything, no.”

ANALYSIS and FINDINGS

1. Charges relating to the Complainant V.C.

Count 7: Sexual Assault

[181] Count 7 of the indictment charges Mr. Redhead that he,

sometime between and including the 1st day of June in the year 2017 and the 30th day of June in the year 2017 at the City of Toronto, in the Province of Ontario, did commit a sexual assault on V.C., contrary to Section 271(a) of the Criminal Code.

[182] The main issue with respect to the counts in the indictment relating to V.C. is her credibility and reliability as a witness. The position of the defence is that her testimony was neither credible nor reliable and, as a result, the Crown’s case falls far short of proof beyond a reasonable doubt.

[183] There can be no doubt that the person who picked up V.C. and her friend, V.Q., outside the grounds of the Dennis Community School on June 28, 2017, was Mr. Redhead. V.C. was familiar with the appearance of the person with whom she had been communicating online and who went by the name of Peso, as he had posted photographs and videos of himself on Snapchat, which she had viewed. V.C. saved one such video, which was posted on July 5, 2017, and played it for the police during her interview. V.C. identified Peso as the male in the two screenshots of Mr. Redhead that were extracted from A.R.’s phone. She also identified the two RICI photographs of Mr. Redhead as Peso.

[184] V.C.’s evidence was supported by the Snapchat logs, which show Mr. Redhead communicating with her on May 27, 2017 and continuing through the month of June 2017. V.C. recalled that Peso’s Snapchat username was “daneggared.” As reviewed earlier in these reasons, the chat entries and images contained in the Snapchat logs identify Mr. Redhead as the user of that account. For example, the user identified himself as “Dawson,” which was a nickname used by Mr. Redhead. The user gave other people his phone number, which was Mr. Redhead’s phone number, and also provided his Instagram name – “_Peso 94” – which was Mr. Redhead’s Instagram name.

[185] V.C. had spoken to Peso on the phone and saved his cell phone number, which she provided to the police. That number was Mr. Redhead’s cell phone number. There is no evidence of anyone else using that phone.

[186] The timing of the Snapchat messages is consistent with V.C.’s recollection that she met Peso in person during the last week in June 2017. She testified that on June 28, 2017, after she made a posting on Snapchat, Peso responded to it at 12:40 p.m. and she, in turn, responded to his message. She testified that after he sexually assaulted her, she did not respond to any of his messages because she did not want to speak to him anymore. On June 29, 2017, Peso sent her a message. V.C. did not respond to it. There were no other communications between them other than the brief exchange on July 22, 2017, when V.C. wanted to see if Peso would apologize to her. The fact that V.C. responded to his message on the afternoon of June 28 and not to his message on June 29, implies that they met in person on the evening of June 28, 2017.

[187] Counsel for Mr. Redhead took the position that the Crown has not established that V.C. was under the age of 16 in June 2017. However, V.C. testified that her date of birth was [month, day] 2001, which means that she was 15 years old throughout the month of June 2017. It was never suggested to V.C. that she was lying or mistaken about her date of birth.

[188] V.C. presented as a somewhat unsophisticated young person. She completed high school in the applied stream but acknowledged that she struggled with English and switched to a lower stream for that subject. During her police interview and at trial, her answers to questions were generally short and without detailed explanations. She sometimes had trouble recalling the details of an event or in describing locations. However, she answered questions directly and without hesitation. She was not argumentative or hostile while giving her evidence and demonstrated no animus toward Mr. Redhead.

[189] V.C. appeared to be sincere or trying her best to answer questions about events that took place when she was 15. She is now 19 years old. While it is not uncommon for witnesses to testify about events that happened some years earlier, the courts have recognized that doing so is generally more challenging for young people. This reality led to the enactment of s. 715.1 of the Code, the purpose of which is to capture a young person’s evidence closer to the event.

[190] It has also been recognized that the evidence of children and young people ought not to be approached in the same manner as that of adults when assessing their reliability and credibility. The courts have stressed the importance of taking a common sense approach: R. v. B.(G.), 1990 7308 (SCC), [1990] 2 S.C.R. 30, at para. 48; and R. v. W.(R.), 1992 56 (SCC), [1992] 2 S.C.R. 122, at para. 25.

[191] In W.(R.), at para. 26, McLachlin J., as she then was, wrote:

In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying.

[192] I bear these principles in mind when assessing V.C.’s testimony.

[193] Defence counsel submits that V.C. had a poor memory, given the fact that she could not recall much, if anything, about her conversations with Peso. However, I gather from V.C.’s evidence that the conversations were casual in nature and not that memorable. For example, they would say “Hi” and ask each other what the other one was doing. V.C. testified that she never told Peso anything about her family members or friends. Similarly, Mr. Redhead gave her only limited personal information about himself. He told her that his name was Peso and that he was 19 years old. During her interview, she recalled that he initially told her that he was 19 but after they met in person, he told her that he was 20. V.C. recalled that during their conversations, Mr. Redhead told her multiple times that he wanted her to be his wife or “to be mine.”

[194] Defence counsel submits that V.C.’s poor memory was evident from the fact that when she was asked during cross-examination to list all the occasions when she and A.R. spoke of Peso, she omitted two such occasions that she had mentioned during her police interview and which she adopted during her examination-in-chief – that is, i) that A.R. told her that she intended to meet up with Peso and ii) that A.R. told her that she liked Peso. V.C. also failed to mention the December 25, 2017 text messages between herself and A.R. (Exhibit 7(a)), when A.R. asked her for Peso’s Instagram information. In re-examination, V.C. explained that since these events occurred a few years ago, she could not recall “every single topic” without reference to the “evidence,” by which I understood her to mean her police interview. In the end, I find that these omissions are not particularly informative in terms of V.C.’s ability to recall what she alleges happened between herself and Peso when they were in his car in the park.

[195] V.C. was reluctant to come forward as a complainant as she did not want to be in a position where she had to repeat what had happened to her over and over again. She also testified that she was not comfortable disclosing the assault to her parents. When she attended at the police station on March 6, 2018, which was eight months after the alleged assault, she still had no intention of proceeding as a complainant in this case. She went to the police station that day at the request of the police and in connection with A.R.’s complaint.

[196] It is apparent from V.C.’s police interview that the subject of Mr. Redhead having sexually assaulted her only came up by happenstance when the officers asked her if A.R. had given her a description of Peso’s car. When V.C. told them that she had been in the car and described it as grey, the officers inquired into that circumstance. This led her to relate the events of that day in late June when Mr. Redhead picked her up outside the school and drove her to the park.

[197] V.C. declined to press charges against Mr. Redhead even after disclosing the alleged assault to the police on March 6, 2018. According to an agreed statement of facts, it was not until October 22, 2018 or eight months later that she told the police that she was prepared to come forward as a complainant.

[198] Counsel for Mr. Redhead noted that V.C. testified that she decided to proceed with the charges only one or two weeks after her interview on March 6, 2018, as opposed to eight months later. Given the passage of time, V.C.’s confusion as to when she advised the police of her decision to press charges is somewhat understandable. She testified about the timing of her decision in this regard on August 19, 2020, or almost two and a half years after the interview.

[199] I place little significance on the errors made by V.C. in describing the location of the school where Mr. Redhead picked her up on June 28. Defence counsel submits that these “errors” were actually lies. I do not find them to be so. In my view, they are simply mistakes that fall into the category of “peripheral matters” referred to by McLachlin J. in W.(R.) and are of little moment.

[200] V.C. was cross-examined in great detail about the school in question. She thought that the name of the school was “Mount Dennis” but readily conceded, after viewing photographs of the school, that it was actually the Dennis Avenue Community School. V.C. was never a student at that school. She happened to be there that day in order to attend the barbeque.

[201] During her police interview, V.C. described the school as being on Guestville Avenue, near Weston Road. The school is actually on Dennis Avenue, between Guestville and Weston Road. Although V.C. named the wrong street, she was certainly talking about the same area where the school is, in fact, located. She readily identified the school when shown a map and a photograph of it. She was also able to point out the playground and area where the barbeque was held, as well as the sidewalk where she and V.Q. stood waiting for Peso.

[202] During her police interview, V.C. stated that Peso dropped off V.Q. near her house on Guestville Avenue. At trial, she testified that he dropped V.Q. off right in front of her house. V.C. also failed to recall that Dennis Avenue is a one-way street and that Mr. Redhead would have had to go around the block to take V.Q. home.

[203] Again, I find that these errors are trivial in nature and of little moment when assessing V.C.’s testimony with respect to the alleged sexual assault. There is no reason that V.C. would have felt any need to commit to memory the route that Peso took to take V.Q. home. It was, in any event, a short trip that took no more than a couple of minutes.

[204] V.C. was inconsistent in her evidence as to whether she and Mr. Redhead were in or out of the car when they watched the soccer game at the park prior to the sexual assault. During her police interview, she stated that they walked over to the field and watched the game for about five minutes before returning to the car. In her examination-in-chief, she testified that they stayed in the car while watching the game. In cross-examination, she adopted her earlier statement and testified that they definitely got out of the car to watch the game and then returned to the car. It is most likely that they were outside of the car when watching the game, as that was her recollection during her interview, which was closer in time to the day in question. She also “re-adopted” that recollection during cross-examination. In any event, this inconsistency does not, in my view, impact in a material way the credibility or reliability of her testimony with respect to what happened after they got back inside the car.

[205] During her police interview, V.C. stated that Peso asked her to come to his side of the car and sit on his lap. She stated that she complied with this request because she was scared, given the force that he had used earlier when grabbing her thigh as they were driving. During her interview, V.C. did not describe or say how she managed to get to the driver’s side and sit on his lap. At trial, she testified that although she could have just “gone over” Peso, she told him that she would go “out and around.” He then unlocked the doors and she walked around the car to the driver’s side. Her evidence in this regard was not inconsistent with her statement to police – it merely elaborated on how she complied with Peso’s demand that she sit on his lap.

[206] V.C. was cross-examined as to why she did not take the opportunity while out of the car to run away, especially since there were still some people in the area who were playing soccer. She explained that the soccer field was some distance away and she feared that Peso would chase after her. Given V.C.’s diminutive stature, it is unlikely that she could have outrun him. She also testified that she could not call anyone because her phone was dead or dying, and she did not know how to get back home.

[207] V.C. described how Mr. Redhead kept trying to kiss her after she was seated on his lap and how she kept turning her head away from him to prevent him from kissing her. She described how he started to put his hand down her pants. She grabbed his hand to move it away, but he used force and managed to “get to the bottom of [her] pants.” V.C. told him that if he did not stop, she would call the police. He said “Okay. Relax.” There was a pause but then he started kissing her neck and trying again to put his hand down her pants. She pushed him away and tried to open the door, but it was locked. She told him to let her out. He told her “not yet” and again started to put his hand down her pants. When she managed to grab his hand and push it away, he told her “okay” and unlocked the doors. She got out, got into the front passenger seat, and asked him to take her home. She described herself as shaking and “kind of crying.” She was shocked and confused. There was no conversation in the car. Mr. Redhead dropped her off at a corner near her house.

[208] Despite her attempts to prevent him from reaching into her pants, Mr. Redhead managed to touch but not penetrate her vagina with his finger a couple of times.

[209] V.C. testified that following the assault, Mr. Redhead continued to send her messages over Instagram and Snapchat. She stated that she wanted no further contact with him and did not respond to his messages. Her evidence in this regard is supported by the Snapchat logs. On June 29, 2017, at 1:57 p.m., she made two posts that were unrelated to Peso. He responded by sending her the message, “Thanks to know.” V.C. did not respond.

[210] V.C.’s only other contact with Mr. Redhead after the events of June 28, 2017, was on July 22, 2017, when she posted a picture on Snapchat. Mr. Redhead responded, “What’s up?” This led to an exchange of text messages between them in which he asked her how she was doing. She posed the same question to him and “that was all.” When asked why she had any conversation with him, V.C. stated that she wanted to see if he would apologize.

[211] There is no evidence that V.C. and A.R. colluded or fabricated their allegations. Both of them freely admitted to the police during their respective interviews that they had spoken to each other about what Mr. Redhead had done to them. Although there are similarities in their allegations with respect to the communications that they had with him, the sexual acts alleged are very different.

[212] The content of some of the conversations that V.C. and A.R. had about Mr. Redhead in regard to A.R.’s intention to go to the police has been filed. There is nothing in the text messages between them that indicates any intention on their part to mislead the police or to be untruthful.

[213] On March 4, 2018, when A.R. told V.C. that she was going to press charges against Peso, V.C. was anything but enthusiastic, asking her “Why?” V.C. testified that she did not encourage A.R. to go to the police because she was concerned that A.R. would not be comfortable having to explain to others what had happened to her.

[214] V.C. herself had no intention of making a complaint to the police for basically the same reason – she did not want to have to explain over and over what Mr. Redhead had done to her. It was only during her interview in regard to the investigation into A.R.’s allegations that she ended up disclosing her own allegations. It took her another eight months before she decided to proceed with the charges. In my view, her reluctance to proceed speaks to her credibility. I note that no reason to support a motive to falsely accuse Mr. Redhead was ever suggested to V.C. during her testimony. That said, I bear in mind that there is no onus on Mr. Redhead to prove any motive on the part of V.C. to falsely accuse him of sexual assault.

[215] Having considered all of the evidence and submissions of counsel, I find that the Crown has established beyond a reasonable doubt that Mr. Redhead sexually assaulted V.C. in his car on June 28, 2017 by touching her vagina without her consent. He is accordingly found guilty on Count 7.

Count 8: Sexual Interference

[216] Count 8 charges Mr. Redhead that he

sometime between and including the 1st day of June in the year 2017 and the 30th day of June in the year 2017 at the City of Toronto, in the Province of Ontario, did for a sexual purpose touch a person under the age of sixteen years, namely V.C. directly with a part of his body, to wit: his hand, contrary to Section 151 of the Criminal Code.

[217] As stated earlier, there can be no doubt that V.C. was 15 years old in June 2017, when she met Mr. Redhead in person. She did not turn 16 until [month, day] 2017.

[218] The defence to this count arises out of s. 150.1(4):

S. 150.1 (4) Mistake of age

It is not a defence to a charge under section 151 … that the accused believed the complainant was 16 years of age or more at the time the offence is alleged to have been committed unless the accused took all reasonable steps to ascertain the age of the complainant.

[219] Pursuant to s. 150.1(4), the pivotal issues in determining whether Mr. Redhead is guilty on count 8 are whether the Crown has established beyond a reasonable doubt that he:

1. did not honestly believe that V.C. was at least 16 years old; or

2. did not take all reasonable steps to ascertain her age.

Legal Principles: Reasonable Steps

[220] In R. v. George, 2017 SCC 38, [2017] 1 S.C.R. 1021, at para. 8, the Court observed that Parliament, in enacting s. 150.1(4), imported an objective element into the fault analysis to enhance protection for youth. As a result, to convict an accused person who demonstrates an “air of reality” to the mistake of age defence, the Crown must prove, beyond a reasonable doubt, either that the accused (1) did not honestly believe the complainant was at least 16 years old (the subjective element); or (2) did not take “all reasonable steps” to ascertain the complainant’s age (the objective element).

[221] The Court in George emphasized that determining what raises a reasonable doubt in respect of the objective element is a highly contextual, fact-specific exercise. In some cases, it may be reasonable to ask a partner’s age. It would be an error, however, to insist that a reasonable person would ask a partner’s age in every case. Conversely, it would be an error to assert that a reasonable person would do no more than ask a partner’s age in every case, given the commonly recognized motivation for young people to misrepresent their age. Such narrow approaches would contradict the open-ended language of the reasonable steps provision. That said, at least one general rule may be recognized: the more reasonable an accused’s perception of the complainant’s age, the fewer steps reasonably required of them. This follows inevitably from the phrasing of the provision (“all reasonable steps”) and reflects the jurisprudence and academic commentary: George, at para. 9.

[222] In R. v. Duran, 2013 ONCA 343, 301, 3 C.R. (7th) 274, at paras. 52 and 53, the Court stated that there is no automatic checklist of considerations applicable to every case. In some cases, an accused’s visual observation of the complainant may be enough to constitute reasonable steps. Other considerations would include the accused’s observations of the complainant; the complainant’s appearance and behaviour; the information the complainant told the accused about herself, including any information about her age; and the age differential between the accused and the complainant. The Court, at para. 54, set out the following passage in R. v. L.T.P. (1997), 1997 12464 (BC CA), 113 C.C.C. (3d) 42, (B.C.C.A), where Finch J.A. stated:

In considering whether the Crown has proven beyond a reasonable doubt that the accused has not taken all reasonable steps to ascertain the complainant’s age, the Court must ask what steps would have been reasonable for the accused to take in the circumstances. As suggested in R. v. Hayes, [1991] A.J. No. 1232, supra, sometimes a visual observation alone may suffice. Whether further steps would be reasonable would depend upon the apparent indicia of the complainant’s age, and the accused’s knowledge of same, including: the accused’s knowledge of the complainant’s physical appearance and behaviour; the ages and appearance of others in whose company the complainant is found; the activities engaged in either by the complainant individually, or as part of a group. And the times, places, and other circumstances in which the complainant and her conduct are observed by the accused. The Court should ask whether, looking at those indicia, a reasonable person would believe that the complainant was fourteen years of age or more without further inquiry, and if not, what further steps a reasonable person would take in the c­ircumstances to ascertain her age. Evidence as to the accused’s subjective state of mind is relevant but not conclusive because, as pointed out in R. v. Hayes at p.11, “[a]n accused may believe that he or she has taken all reasonable steps only to find that the trial judge or jury may find differently”.

[223] In R. v. H.L., 2017 ONSC 6205, 41 C.R. (7th) 348, Harris J., at paras. 104 – 106, reviewed the case law dealing with the issue of what constitutes “all reasonable steps.” The accused in H.L. testified that he believed the complainant was 16 years old, which Harris J. described as on the “cusp of illegal territory.” He noted that in some circumstances, a purported age just over the legal limit warrants further explanation, particularly in light of the well-recognized motive on the part of young people to say that they are older than they really are.

Whether the Crown has established beyond a reasonable doubt that Mr. Redhead did not take all reasonable steps to ascertain V.C.’s age

[224] As stated in Duran, what constitutes “all reasonable steps” depends on the context and all of the circumstances.

[225] In the present case, V.C. told Mr. Redhead that she was 15 years old when she first started talking to him in May 2017. He told her that he was 19. Later on, she told him that she was 16. It appears from her police interview that she linked the time when she told him that she was 16 with the time that he told her that he was 20, which she recalled was the day of the barbeque. Her evidence-in-chief was to the same effect: she recalled that she used social media to tell him that she was 16 just prior to his arrival at the school to pick her up. In cross-examination, V.C. expressed some uncertainty as to when she told Mr. Redhead that she was 16 – it could have been a few days or a week or so before they met, but it was definitely less than a month before that time.

[226] Although V.C. could not give an exact date as to when she told Mr. Redhead that she was 16, I find that it was most likely closer to the day of the barbeque than it was to the start of their communications on May 27, 2017. During her police interview, which was closer in time to these events than her testimony at trial and when her memory was fresher, she stated that at the time of barbeque, which was on June 28, 2017, she considered herself to be 16 as her birthday was only [redacted] days away.

[227] V.C. described herself as looking “really young” when she met Mr. Redhead outside the grounds of the school and got into his car. That, no doubt, is a fair assessment of her appearance at that time. I note that eight months later, when she was actually 16 years old and being interviewed by the police, V.C. still presented as someone who could well be younger than 16. Even during her testimony at trial, when she was 19 years old, V.C. could easily be taken to be younger than her actual age. She has a young face, is quite petite, speaks in a soft or quiet voice and is under five feet in height.

[228] On the day that she met Mr. Redhead, V.C. was wearing black tights and a sweater or shirt. She was not wearing any make-up. She was also in the company of an 11-year-old girl, who got into the car with her. V.C. was of the view that V.Q., who was taller than V.C. and wearing make-up, looked older than she did. However, that is not to say that V.Q. necessarily looked as old as 16, which would have been five years older than her actual age.

[229] When Mr. Redhead stopped his car outside the elementary school, the barbeque was still going on. A number of young children and their parents were still present on the school grounds and in the playground.

[230] There is no evidence that Mr. Redhead ever asked V.C. for other information about herself that would tend to support or confirm her bare assertion to him that she was 16. V.C. testified that during their communications leading up to June 28, 2017, they did not exchange much, if any, personal information about themselves. She never spoke to him about her family or friends.

[231] The age differential between an accused and a complainant is a relevant factor in determining whether the steps taken are reasonable as “almost without exception, the greater the disparity in ages, the more inquiry will be required”: R. v. Chapman, 2016 ONCA 310, 130 O.R. (3d) 515, at para. 46; see also R. v. K. (R.A.), 1996 7277 (NB CA), 175 N.B.R. (2d) 225, 106 C.C.C. (3d) 93 (C.A.). There is a fairly significant age gap between Mr. Redhead and V.C. Although Mr. Redhead told V.C. that he was 19, he was actually 23 years old and therefore almost seven and a half years older than her.

[232] Given the totality of the circumstances, a reasonable person in the position of Mr. Redhead ought to have been suspicious of the truthfulness of V.C.’s claim that she was 16. She was young in appearance, small in stature, immature in her presentation, and in the company of an 11-year-old girl when he met her. When he picked them up, they were outside an elementary school, where young children were present. Like the complainant in H.L, V.C. gave an age that was just over the legal limit or on the “cusp of illegal territory.” That fact, in combination with the other circumstances, including the age differential between V.C. and Mr. Redhead, cried out for further inquiry or investigation by him as to her professed age, particularly in light of the commonly recognized motivation for young people to say that they are older than they really are.

[233] Despite these circumstances, which should have put Mr. Redhead on the alert, he took no steps to determine V.C.’s true age prior to having sexual contact with her. There is no evidence that Mr. Redhead even asked V.C. what grade she was in or what school she attended. Instead, within minutes after dropping off V.Q., Mr. Redhead started grabbing or gripping V.C.’s thigh near her vagina. She pushed his hand away at least five times, but finally gave up after he used more force and gave her an angry look. Mr. Redhead demonstrated that he had neither concern for her actual age nor whether she was consenting to this activity or the later touching of her vagina when they were in the park.

[234] I find that the Crown has established beyond a reasonable doubt that Mr. Redhead did not take all reasonable steps to ascertain V.C.’s age. Mr. Redhead is accordingly found guilty on Count 8.

Count 6: Luring a Child Over the Internet

[235] Count 6 of the indictment charges Mr. Redhead that he,

sometime between and including the 1st day of May in the year 2017 and the 30th day of June in the year 2017 at the City of Toronto, in the Province of Ontario, did by means of telecommunication, communicate with a person, namely V.C., who was under the age of sixteen years, for the purpose of facilitating the commission of an offence under s. 151 of the Criminal Code with respect to that person, contrary to section 172.1(2) of the Criminal Code.

[236] Section 172.1 (1)(b) states:

Every person commits an offence who, by a means of telecommunication, communicates with

(b) a person who is, or who the accused believes is, under the age of 16 years, for the purpose of facilitating the commission of an offence under section 151 … .

[237] Section 172.1 (4) states:

It is not a defence to a charge under paragraph … (1)(b) … that the accused believed that the person referred to in that paragraph was at least … sixteen years … unless the accused took reasonable steps to ascertain the age of the person.

[238] Subsection 172.1 (3), which established a rebuttable presumption of knowledge of age, where the other person was represented to the accused as underage, has been held by the Supreme Court of Canada to be unconstitutional and of no force or effect: R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3.

[239] Subsection 172.1 (4), which continues to be in force, eliminates the defence of mistake of fact as to the age of the other person, unless the accused took reasonable steps to ascertain the age of the person.

[240] In Morrison, Moldaver J., in speaking for the majority of the Court, clarified that this section does not create a secondary pathway to conviction but simply limits the application of a defence. Consequently, if the Crown proves beyond a reasonable doubt that the accused did not take reasonable steps, then the trier of fact is precluded from considering the defence that the accused believed the other person to be of legal age. But that does not relieve the Crown of its ultimate burden of proving beyond a reasonable doubt that the accused believed the other person was underage. Thus, for example, if the trier of fact can only conclude from the evidence that the accused was negligent or reckless with regard to the other person’s age, the Crown has not met its burden, and the accused is entitled to an acquittal, since negligence and recklessness are states of mind that do not entail any concrete belief about the other person’s age. In short, there is but one pathway to conviction: proof beyond a reasonable doubt that the accused believed the other person was underage: Morrison, at paras. 80 – 90.

[241] Parliament’s purpose in creating this offence was “to combat the very real threat by adult predators who attempt to groom or lure children by electronic means.” The offence seeks to protect children by “identifying and apprehending predatory adults who, generally for illicit sexual purposes, troll the Internet to attract and entice vulnerable children and adolescents”: Morrison, at para. 39.

[242] Section 172.1 criminalizes conduct that precedes the commission, or even the attempted commission, of certain designated offences, most of which involve the sexual exploitation of children. It creates an essentially inchoate offence – that is, a preparatory crime that captures conduct intended to culminate in the commission of a completed offence: Morrison, at para. 40; and R. v. Legare, 2009 SCC 56, [2009] 3 S.C.R. 551, at para. 25.

[243] The three essential elements that the Crown must establish with respect to this offence are:

1. An intentional communication by means of telecommunication;

2. With a person whom the accused knows or believes to be under the age of 16 years old; and

3. For the specific purpose of facilitating the commission of sexual interference (s. 151 of the Code).

First Essential Element: Communication by means of “Telecommunications”

[244] “Telecommunications” is defined in s. 35 of the Interpretation Act, R.S.C., 1985, c. l-21, as follows:

telecommunications means the emission, transmission or reception of signs, signals, writing, images, sounds or intelligence of any nature by any wire, cable, radio, optical or other electromagnetic system, or by any similar technical system

[245] This definition clearly captures any communication over the Internet.

[246] In this case, Mr. Redhead communicated with V.C. over the social media platforms Instagram and Snapchat. They also spoke on the telephone and communicated via text messages. This element has been established beyond a reasonable doubt.

Second Essential Element: Whether Mr. Redhead knew or believed V.C. was under the age of 16 years

[247] The second element requires the Crown to establish beyond a reasonable doubt that Mr. Redhead knew or believed that V.C. was under 16 years of age.

[248] V.C. was clear in her evidence that she told Mr. Redhead sometime near the outset of their communications that she was 15 years old. She was, in fact, 15 throughout all their communications leading up to the day that they met in person on June 28, 2017. She did not turn 16 until [month, day] 2017.

[249] V.C. testified that she looked really young as she had a very young face. The Snapchat logs contain two videos of V.C. in which she appears to be 15 years old or possibly younger.

[250] There is no evidence that Mr. Redhead expressed any concern about V.C.’s age when she told him that she was 15. He continued to communicate with her with that knowledge. The fact that he told her that he was 19 or 20 years old, when he was actually 23, supports the inference that he accepted as a fact that she was 15 and lied about his own age in order to make his attempts to develop a relationship with her less suspicious or inappropriate.

[251] At some point during their communications, V.C. told Mr. Redhead that she was 16 years old. During both her police interview and her evidence-in-chief, she recalled telling him that she was 16 on the day that they met in person at the barbeque. In cross-examination, she allowed that she could have told him that she was 16 a few days or a week or so before they met, but it was definitely less than a month before their meeting. I find that it was more than likely that V.C. told Mr. Redhead that she was 16 closer to the day of the barbeque on June 28, 2017 than to the start of their communications on May 27, 2017. By June 28, 2017, V.C. was [redacted] days shy of her 16th birthday and, at that point, considered herself to be more or less 16.

[252] There is no air of reality to the defence of mistake of age in this case. In Morrison, at para. 119, Moldaver J. discussed the “air of reality” test as it relates to this defence as follows:

In my view, the defence that the accused believed the other person was of legal age has an air of reality only if the trier of fact could find, on the evidence, that the accused took steps capable of amounting to “reasonable steps” in the circumstances to ascertain the other person’s age and that the accused honestly believed the other person was of legal age. In other words, the accused will only meet the air of reality threshold if he or she can point to evidence capable of supporting findings that:

(1) the accused took steps to ascertain the other person’s age;

(2) those steps were reasonable; and

(3) the accused honestly believed the other person was of legal age.

[253] In the present case, there is no evidence that Mr. Redhead took any steps or made any effort at all to ascertain V.C.’s age. It appears that he accepted as a stated fact that she was 15 and continued to communicate with her despite the fact that she was underage.

[254] In Morrison, at para. 129, Moldaver J. explained that the reasonable steps requirement under s. 176.1(4) does not provide an independent pathway to conviction. Therefore, the inquiry does not end if and when the Crown establishes that the accused did not take reasonable steps. Instead, the trier of fact is then required to consider the whole of the evidence, including the evidence relating to the accused’s failure to take reasonable steps, not to reintroduce the defence of honest belief in legal age, but in determining whether the Crown has discharged its burden of establishing beyond a reasonable doubt that the accused believed the other person was underage. Only if that element is proven can a conviction be entered.

[255] I am satisfied on the whole of the evidence that Mr. Redhead knew that V.C. was underage while communicating with her in May and most of June 2017. I accept her evidence that she told him that she was 15 at or near the outset of their communications. She looked to be that age or younger. There is no evidence that Mr. Redhead ever expressed any doubt or concern about her age. He lied about his own age, telling her that he was three or four years younger than his actual age, thereby narrowing the almost seven-and-a-half year age gap between them. As stated earlier, this lie supports the inference that Mr. Redhead knew that V.C. was only 15 years old – that is, he accepted as true her statement that she was 15 – and wanted his efforts to develop a relationship with her appear to be less suspicious or inappropriate.

[256] The Crown has established beyond a reasonable doubt that Mr. Redhead believed that V.C. was underage.

Third Essential Element: Whether the communications were for the specific purpose of facilitating the commission of the offence of sexual interference

[257] The final essential element that the Crown must establish is that the communications were for the specific purpose of facilitating the commission of the offence of sexual interference contrary to s. 151. “Facilitating” in this context includes “helping to bring about and making easier or more probable – for example by luring or grooming young persons to participate in the prohibited conduct”: Legare, at para. 28.

[258] In R. v. Pengelley, 2010 ONSC 5488, 79 C.R. (6th) 272, Hill J. undertook an analysis of the definitions offered for the term “facilitate,” as used in this section. After reviewing various dictionary definitions of the word, which largely define it as “to make easy or easier,” he offered, at para. 96, the following summary:

As said, the concept of “facilitating” does not require proof of steps amounting to an attempt to commit an offence such as the s. 151 crime: Alicandro, at para. 20: Legare, at para. 57, 59. In other words, preparatory conduct, falling short of an attempt in law, is within the scope of s. 172.1(1)(c) liability. As in the instance of possession of child pornography, which “may facilitate the seduction and grooming of victims and may break down inhibitions or incite potential offences” of a sexual nature against children (Sharpe, at para. 28), so too computer communications may serve to sexualize or groom or trick a child toward being receptive to a sexual encounter, to cultivate a relationship of trust, or to undertake a process of relinquishing inhibitions, all with a view to advancing a plan or desire to physical sexual exploitation of a young person.

[259] At para. 98, Hill J. concluded his analysis of the term “facilitate” as used in s. 172.1(1)(c) as follows:

Preparatory conduct in the form of communications linked to promoting, advancing, laying a foundation, making easier, helping or removing impediments toward the commission of an act to sexual exploitation such as the conduct prohibited by s. 151.

[260] In Legare, at paras. 30 – 33, the Supreme Court made it clear that it is not necessary that the communication include sexually explicit language. Instead, the focus must be on the intention of the accused at the time of the communication. Those who communicate with children or adolescents in this fashion often first groom them online by gaining their trust through conversations about their home life, their personal interests, or other innocuous topics. The content of the communication is not necessarily determinative. What matters is whether the evidence as a whole establishes beyond a reasonable doubt that the accused intentionally communicated for the purpose of facilitating the commission of the secondary offence.

[261] Taking into account all of the evidence in the present case, I am satisfied beyond a reasonable doubt that Mr. Redhead communicated with V.C. with an intention to facilitate an offence under s. 151 of the Code. In coming to this conclusion, I have considered the following aspects of the evidence:

1. The development of a friendship, which was initiated by Mr. Redhead, with a view to V.C. being his “wife” or “girlfriend”;

2. The sexually explicit content in the Snapchat log sent by Mr. Redhead to V.C.; and

3. The commencement of sexual activity at the first in-person meeting between Mr. Redhead and V.C., which began almost immediately after he got V.C. alone in his car.

[262] When Mr. Redhead first messaged V.C. on Instagram on May 27, 2017, she had no idea who he was. They then started using Snapchat to communicate. When Mr. Redhead asked her for her phone number, she gave it to him. They spoke on the phone and also communicated via text messages. Although he would “always try to talk to [her],” V.C. testified that she often ignored him because she had a boyfriend.

[263] The Snapchat logs show that Mr. Redhead made repeated efforts to develop a rapport with V.C. The following are some examples of this behaviour:

i) On May 29, 2017, he sent her the message, “I’m trying to get to kno u” and “u remind me of myself”;

ii) On June 7, 2017, he stated, “I want u to be my girl.” V.C. testified that Mr. Redhead repeatedly told her on the phone and sent messages to her stating that he wanted her to “be mine” and “I want you to be my wife”; and

iii) On June 8, 2017, he sent V.C. two sexually explicit images, thereby introducing a sexual aspect to their relationship. Although V.C. did not recall receiving these images, they are relevant in terms of Mr. Redhead’s intention or purpose in communicating with her. On June 9, 2017, Ms. Couto sent Mr. Redhead a video of herself dancing or twerking, although she testified that she did not recall having sent this video.

[264] On June 19 and 26, 2017, Mr. Redhead responded to posts made by V.C. on Snapchat that were unrelated to him. On June 19, shortly after V.C. posted an image of her friend Ethan, Mr. Redhead messaged her, “U don’t want me.” On June 26, 2017, Mr. Redhead saved a post made by V.C. of herself wearing a red sweater and then sent her the message, “Your my wife.”

[265] When taken as a whole, Mr. Redhead’s messages and his communications with V.C. show that they were for the purpose of facilitating a sexual encounter. He started out by telling her that he wanted to get to know her. However, shortly thereafter, he suggested that they have a relationship – “I want you to be my girl.” V.C. did not want such a relationship as she already had a boyfriend. She often ignored his messages. By including sexual content in the files that they shared, Mr. Redhead was clearly suggesting his desire to have a sexual encounter with V.C.

[266] Finally, the sexual assault itself informs the analysis of Mr. Redhead’s intention during the time that he was communicating with V.C. On June 28, 2017, while she was at the barbeque, he sent her a message asking her to “hang out” or meet up with him so that they could “just talk and everything.” She initially told him “no” but later relented when he asked her to “give him a chance.” V.C. asked V.Q. to come with her. However, as soon as the girls got into his car, Mr. Redhead asked V.C., “Can your friend go home?” After V.Q. was dropped off, Mr. Redhead, in response to V.C.’s question as to where they were going, told her that they would “probably just drive around.”

[267] V.C. believed that this was a chance to hang out and try to be friends with Peso. However, Mr. Redhead’s behaviour demonstrates that he was only interested in this meeting as a sexual encounter. Within minutes after they were alone in the car and while he was driving, he started grabbing V.C.’s left thigh close to her vagina. She kept pushing his hand away but he “just kept doing it.” She finally gave up after he applied “some force” and she could not remove his hand.

[268] Once they were at the park, very little time passed before Mr. Redhead had her sit on his lap, forced her to kiss him by turning her head toward him, and then forcefully put his hand down her pants, touching her vagina. Mr. Redhead acted aggressively toward V.C. and had no regard for her wishes or the fact that she was actively resisting the sexual activity being forced upon her.

[269] In summary, the evidence regarding the communications between Mr. Redhead and V.C. shows that Mr. Redhead intended that the communications would facilitate or “make easier” the sexual offence should they meet. The fact that once they did meet, Mr. Redhead almost immediately embarked on a sexual assault makes it clear that this was his intention all along and from the outset of his communications with her.

[270] Having considered all of the evidence and submissions of counsel, I am satisfied beyond a reasonable doubt that Mr. Redhead initiated his relationship with the 15-year-old V.C. over the Internet in order to facilitate a sexual encounter with her, regardless of her willingness to engage in such an encounter. Mr. Redhead is accordingly found guilty on Count 6.

[271] Additional support for the findings of guilt on counts 6, 7, and 8 is found in the cross-count similar act evidence, which is set out in these reasons following my analysis with respect to counts 1, 2, and 3 in the indictment.

2. Charges Relating to the Complainant A.R.

Count 2: Sexual Assault

[272] Count 2 charges Mr. Redhead that he

sometime between and including the 1st day of October in the year 2017 and the 31st day of October in the year 2017 at the City of Toronto, in the Province of Ontario, did commit a sexual assault on A.R., contrary to Section 271(a) of the Criminal Code.

[273] A.R., who is two years younger than V.C., was 13 and in Grade 8 when Mr. Redhead first messaged her on Snapchat in June 2017 while she was on a school bus and heading to Niagara Falls. She was 14 at the time of the alleged sexual assault on October 30, 2017. Four months later, she gave her DVD-recorded statement to the police, where she appears to be a young teenager. She was 17 when she testified at this trial.

[274] A.R. gave her evidence in a direct and straightforward manner. There were no material discrepancies in her recounting of the details of the assault. She was unshaken in cross-examination with respect to those details. Her evidence is supported by other evidence, such as the text messages exchanged between herself and Mr. Redhead after October 30, 2017.

[275] Counsel for Mr. Redhead submits that A.R.’s evidence is neither reliable nor credible. Counsel referred to A.R.’s testimony as to how Mr. Redhead first contacted her as an example of the unreliability of her evidence. Counsel submits that the first contact could not possibly have been in June 2017 when A.R. was on a school trip to Niagara Falls and that it must have been much earlier. At para. 36 of her factum, counsel explains her reasoning in this regard as follows:

[A.R.] told the police and testified that she was on a school trip to Niagara a week or two prior to school ending. Peso messaged her on Instagram and said he saw her on the bus earlier in the morning and that is how they started talking. She later gave him her Snapchat and the conversation moved on there. And then eventually closer to her going to Spain was when they also connected on the phone and on FaceTime, which is how they talked when she was in Spain in August. However, when looking at Mr. Redhead’s phone, the Snapchat contact by the name of [A.R.’s nickname], with the contact information identified as belonging to A.R. was created on May 22, 2017. That means that by her story Instagram communication would have happened at some point earlier in the month of May and certainly would not have been able to happen in the way that she says – messaged while on a trip to Niagara during the last few weeks of school.

[276] I would first note that A.R. was clear in her evidence that Peso’s first communication with her was not on Instagram but on Snapchat. They never used Instagram. A.R. was unaware as to how Peso got her Snapchat username, but noted that she had posted it on her Instagram account. A.R. did not recall V.C. telling her via a text message that she had given her Instagram account to Peso after he asked her for it.

[277] V.C. testified that she probably gave A.R.’s Instagram account to Peso in May 2017. It is reasonable to infer that Mr. Redhead likely accessed it shortly thereafter, which enabled him to learn A.R.’s Snapchat username. Although Mr. Redhead created the Snapchat contact information for “[A.R.’s nickname]” on his phone on May 22, 2017, that does not mean that he actually contacted A.R. on that date. It could have been much later or, as A.R. testified, sometime in June during the last few weeks of school.

[278] I accept A.R.’s evidence as to how and when Mr. Redhead first contacted her.

[279] Defence counsel submits that A.R. had a motive to fabricate her allegations against Mr. Redhead. Counsel relied in this regard on A.R.’s conduct toward the girl whom she wanted to confront at the elementary school on October 30, 2017. A.R. was angry with the girl for saying insulting things about her on social media, such as calling her a “bitch” and a “fat elephant.” She acknowledged that if she had located the girl, she planned to “fight her or whatever.” A.R. testified that some months later, she returned to the school with A.A.-R. and another classmate. This time they found the girl, who was in the company of another student. Nothing happened as the school principal showed up and later reported the incident to A.R.’s school. As a result, A.R. was suspended from school for two days. Counsel for Mr. Redhead submits that in light of these events, A.R. showed that she could be confrontational and vindictive, and that it is reasonable to infer that when she is rejected by someone whom she likes, she is capable of making up allegations. However, there is no evidence that A.R. and the girl had ever been friends, that she had ever liked the girl, or that she fabricated any allegations against the girl. A.R. was simply angry with her for calling her insulting names on social media and wanted to confront and possibly fight with her.

[280] There is, in my view, nothing to link the manner in which A.R. interacted with this girl to a motive by A.R. to make up allegations against the accused. There is no evidence that Mr. Redhead “rejected” A.R. On the contrary, after October 30, 2017, he was constantly asking her to “chill” with him. It was A.R. who rejected Mr. Redhead. Her text messages in Exhibit 12(c) make it clear that she did not want to see him again after that date.

[281] Counsel for Mr. Redhead noted that A.R. did not report the assault until March 5, 2017, or four months later. However, A.R. gave a reasonable explanation for the delay. She testified that initially she did not intend to report the assault but found that it was constantly on her mind. She criticized herself for having let Peso take advantage of her so easily. She was concerned that Peso was in the area where she lived. On one occasion he sent her a live video of her house. She was afraid to be home alone.

[282] A.R. testified that things came to a head on March 2, 2018, which was her brother’s birthday. She was really upset that day and crying in her bedroom. Her mother wanted to know what was wrong. A.R. disclosed the assault to her mother at that time. She and her mother attended at the police station on March 5, 2018, and A.R. returned for her police interview on March 6, 2018.

[283] Although V.C. agreed to be interviewed as a witness in regard to A.R.’s allegations, it appears that she played no role in encouraging A.R. to go to the police. If anything, she discouraged her from reporting the matter because she was concerned that A.R. would not be comfortable having to explain to others what had happened to her. As stated earlier, there is no evidence that V.C. and A.R. colluded or fabricated their allegations. There is nothing in their text messages to each other that indicates any intention to mislead or lie to the police. Both of them freely admitted during their respective police interviews that they had spoken to each other about what Mr. Redhead had done to them. Although there are similarities in their allegations with respect to the communications that they had with him, the sexual acts alleged are very different.

[284] Counsel for Mr. Redhead submits that A.R. was dishonest in her testimony as to how she felt about Peso and pointed to inconsistencies in her evidence as to whether or not she liked him. For example, A.R. testified that during her conversations with Peso while she was in Spain, he would tell her that he wanted to see her when she returned to Toronto. She would tell him “okay” just to be nice, but she did not, in fact, want to see him. A.R. explained that Peso made her feel uncomfortable when he asked her for photographs of her buttocks and thighs. She also found it “creepy” that he would call her “Mama” or “Mommy” as she was only 14 years old. However, in cross-examination, she acknowledged that over the course of their conversations in August 2017, she developed a “friendship bond” with him and trusted him or felt close to him “a little bit.” According to V.C., A.R. told her that she felt close to Peso. In my view, A.R.’s testimony about her feelings toward Peso prior to October 30, 2017, simply reflects the fact that it was not a “black or white” situation in terms of whether she liked or did not like him. She enjoyed passing the time by talking to him when she was in Spain. She felt a “friendship bond” develop between them, but there were some aspects about him that she did not like, such as the fact that he sent her a photograph of his penis. In addition, her current feelings toward Peso are obviously tarnished by the events she described as having taken place on October 30, 2017, when she was only 14 years old.

[285] A.R.’s recounting of events leading up to the sexual assault and the assault itself was clear. After Mr. Redhead dropped off A.A.-R., he drove to an apartment building and parked in the underground garage. He told A.R. that he was going to retrieve something and asked her if she wanted to go up with him. She agreed to go because she did not want to be left alone in the parking garage. She testified that Mr. Redhead was touching her buttocks as they rode up in the elevator, which made her nervous and scared. She told him to “relax,” which she testified was her way of saying “no” or “stop.”

[286] It is apparent that Mr. Redhead had no need or desire to retrieve anything from the apartment. He never searched for any item and did not take anything with him when they left. The first thing that he did after entering the unit was to offer A.R. an alcoholic beverage. She only took a sip and was not affected by it.

[287] A.R. testified that Mr. Redhead told her to stand up while they were seated on the couch in the living room. She testified that she initially refused because she was shy but eventually complied with his request. Mr. Redhead then grabbed her buttocks and also slapped her buttocks hard. A.R. described how he forced her to perform fellatio in the bathroom, after which he kept trying to pull down her pants. She resisted but he was eventually able to remove them, leaving them on the bathroom floor. He then took her into the bedroom, put her on the bed and penetrated her from behind. She was screaming that it hurt.

[288] What stands out most in this series of events is A.R.’s account as to how the sexual assault ended. A.R. testified that intercourse did not last long and ended abruptly when she asked Mr. Redhead, “Aren’t you 20?” He replied “Yeah” and then just “stopped the assault cold.” He did not ejaculate.

[289] When A.R. asked him what happened and why he looked depressed, Peso told her that he remembered something and that he would tell her about it in the car. Once in the car, he stated that he had been arrested three years earlier for arranging to have sex with a girl who was selling herself and who set him up by telling him that she was 19 when she was actually only 15. As it turned out, Peso’s description to A.R. of the charges for which he had been arrested were similar to the charges that Mr. Redhead was facing at that time.

Prior Discreditable Conduct: York Region Charges and Peso’s Admission to A.R.

[290] As stated earlier, the Crown sought during a pre-trial motion to admit as evidence prior discreditable conduct of Mr. Redhead – namely, that at the time that he allegedly committed the offences against A.R., he was facing charges related to luring a child over the Internet. I allowed the application as I found that its probative value with respect to the issue of identity (which was not admitted by the defence) and the credibility of A.R. as a witness was not outweighed by its prejudicial effect.

[291] According to an agreed statement of fact, members of the York Regional Police were engaged on March 17, 2016 in an undercover operation and posted an advertisement on Backpage.com for a female escort, suggesting that she was 18 years old. Mr. Redhead responded to the advertisement. After a brief discussion about availability and location, a discussion about age and services was initiated. Part of that exchange was as follows:

Girl: Are you ok if am not 18 yet?

Mr. Redhead: Yeah, where are we gonna meet?

Girl: Text me when you get here. I’ll give you hotel. I’m 15 though, ok?

Mr. Redhead: We can shower and go for a drive. It’s good.

Girl: I’m not going for a drive. I’m only 15. Sorry, in calls only

Mr. Redhead: Ok

Girl: Did you want to book?

Mr. Redhead: Yeah.

[292] The conversation continued regarding sexual services offered and an agreement was made to meet at a hotel. Mr. Redhead attended the hotel that same day and was arrested upon his arrival. He was in possession of the cellphone that he used during the above exchange and $100 in cash.

[293] The charges against Mr. Redhead were resolved on January 17, 2018, when he pleaded guilty to attempting to commit the offence of sexual interference, contrary to s. 151 of the Code.

[294] In terms of the issue of identity, the discreditable conduct evidence is not “bang on” with the information that Peso provided to A.R. regarding his prior arrest. Peso told A.R. that he was arrested three years ago, whereas Mr. Redhead was arrested 19 ½ months prior to the sexual assault alleged by A.R. Peso told A.R. that the girl told him that she was 19 years old. In Mr. Redhead’s case, he responded to an advertisement on Backpage.com, which suggests that the girl was 18. However, other details of Mr. Redhead’s arrest were the same as those related by Peso to A.R. – that is, Mr. Redhead’s arrest arose from a “set up” by a 15-year-old girl (who was really a police officer) who was “selling her body.”

[295] Although the precise details are not exactly the same, which could be the result of Mr. Redhead stating them incorrectly, perhaps due to the passage of time, or A.R. restating them incorrectly, the core parts are consistent: the arrest resulted from an attempt to have sexual relations with a minor. The similarity in the two events supports the Crown’s position that the person described by A.R. as Peso was, in fact, Mr. Redhead, as the potential for coincidence that Peso and another person were facing similar charges at the very time of the allegations is unlikely.

[296] The evidence that Mr. Redhead was facing charges relating to child luring at the time of the alleged sexual assault of A.R. also has probative value in terms of assessing A.R.’s credibility. Her knowledge of Mr. Redhead’s outstanding charges is compelling and speaks to her credibility, as it would be highly unlikely that she could have made up this aspect of her evidence.

[297] I place little or no weight on A.R.’s subjective assessment of Mr. Redhead’s demeanour – that is, that he looked “guilty.” However, I find that Peso’s physical reaction when A.R. asked him, “Aren’t you 20?” is significant as it implies that he knew that what he was doing – that is, having non-consensual sex with a 14-year-old girl – was wrong. He replied “Yeah” and immediately stopped the assault. When A.R. asked him what was wrong and why he looked depressed, he told her that something had happened in the past and that he would tell her about it in the car. Once in the car, he stated that he was reminded of the time when he was previously arrested for attempting to arrange sexual activity with an underage prostitute. Mr. Redhead’s explanation to A.R. as to why he so abruptly ended intercourse after she asked him about his age implies that he was reflecting on his prior illegal acts in relation to his current wrongful actions towards her. In other words, it implies that he was aware that he was having sexual activity with A.R. and that she was underage.

Implied Admissions in After-the-Fact Communications (Text Messages) with A.R.

[298] Crown counsel submits that the text messages exchanged between A.R. and Mr. Redhead sometime after October 30, 2017, (most likely on December 25, 2017) show that he had sex with her on that date and that he had no concern about her age. The text messages in issue appear as screenshots that A.R. took of their communications and are contained in Exhibit 12(c).

[299] In her text messages, A.R. told Mr. Redhead that she did not want to “link him” or meet with him because if she did, he would probably have sex with her again, which was something that she never wanted to happen in the first place. Mr. Redhead did not deny this allegation. Instead, he responded to her suggestion that he was 20 years old by stating that he was only 18. This was a lie, as he had turned 24 on December 12, 2017.

[300] For ease of reference, I have reproduced the relevant portion of this text message below:

A.R.: I’m 14 n ur 20 u should just cool it n relax cos knowing u if I link u, ur prolly gonna fuck me again n like I just never wanted that to happen.

Peso: Who’s 20 tf (meaning “the fuck”) buddy I’m 18 n k

A.R.: U told me u were 20 wen u took me to ur crib

Peso: Nah I’m 18 still

I wanted to see how u was gonna

move afterwards but I got it still

[301] Counsel for Mr. Redhead submits that it has not been established that the “Peso” with whom A.R. was communicating in these text messages is the same “Peso” whom she met on October 30, 2017. In support of this submission, she relies on two screenshots taken by A.R. when A.R. was doing searches using the username, “daneggared.” Both screenshots display that same username and “6:15 PM” as the time. However, they show different Snapchat images: one shows a bitmoji; the other shows a ghost, which indicates that the user had blocked A.R. Defence counsel submits that this shows that there must have been two “Pesos” – one who blocked her and one who did not. A.R. could not explain this discrepancy, but noted that she used the same username – “daneggared” – on both occasions.

[302] This apparent discrepancy appears to be explained by Exhibit 20, which is an agreed statement of fact in regard to the findings of Detective Constable Saini, who conducted a forensic analysis of A.R.’s iPod. Items 3 and 4 of that exhibit state:

3. The images appearing in Exhibit 12(c) are screenshots as indicated by .png in the file name. They are thumbnails created by the device itself, as opposed to the full screenshot images. …

4. The dates and times that appear beside the images in Exhibit 12(c) refer to the date and time the thumbnail was created, not necessarily when the screen shot itself was created. DC Saini cannot say whether any specific screenshot was created at the same time as the thumbnail since that depends on the type of system and application used. [Emphasis added.]

[303] It therefore appears that the time – 6:15 PM – could simply reflect when the thumbnails were created as opposed to when A.R. took the screenshots. The two screenshots in issue could have been taken at different times. In other words, A.R. could have taken the screenshot showing the bitmoji before Peso blocked her and the other screenshot with the ghost emoji after he blocked her.

[304] Counsel for Mr. Redhead observed that Detective Saini’s forensic examination of Mr. Redhead’s Samsung cellphone shows that there were multiple e-mail accounts on the phone. Defence counsel submits that this suggests that there could have been many different people who were logging in and using the phone seized from Mr. Redhead upon his arrest. However, as observed by Crown counsel, one individual may have a lot of different e-mail accounts. There is no evidence that anyone else had access to Mr. Redhead’s phone.

[305] In any event, it is implicit in Peso’s responses to A.R.’s text messages in Exhibit 12(c) that he and the person who met A.R. on October 30, 2017 are one and the same person. Peso’s responses show that he knows exactly the incident to which she is referring. When she tells him that she is 14 and that he is 20, and that she did not want to have sex with him, he does not dispute her age or the fact that he had sex with her or that she did not “want that to happen.” His only response is to try to convince her that he is 18. When she texts him that he told her that he was 20 before he took her to his “crib,” Peso repeats that he is 18 but then goes on to state that he wanted to see how she was going to react or “move afterwards” but he “got it still.” Again, it is clear from his responses that he is talking about the same event that A.R. is talking about – namely, what happened when he took her to his “crib.” For the reasons already stated, including A.R.’s familiarity with Peso’s appearance through their many Facetime calls and the video of himself that he sent to her, which is a video of Mr. Redhead, there can be no doubt that Mr. Redhead was the person who brought her to the apartment on October 30, 2017.

[306] Crown counsel submits that Mr. Redhead’s silence or failure to deny A.R.’s allegation in her text message that if they met in person he would probably try to have sex with her again, which she had never wanted in the first place, can be viewed as an admission against him. The Crown relies in this regard on the principle enunciated in R. v. Baron and Wertman, 1976 775 (ON CA), [1976] O.J. No. 2304 (Ont. C.A.), at para. 36:

The silence of a party will render statements in his presence evidence against him of the truth if the circumstances are such that he could reasonably have been expected to have replied to them. Silence in such circumstances permits an inference of assent.

[307] In R. v. Warner (1976), 1976 775 (ON CA), 14 O.R. (2d) 173 (C.A.), at paras. 20 – 21, the court stated that silence may be taken as an admission where a denial would be the only reasonable course of action to be expected of the person if he or she were not responsible and where such an expectation is reasonable.

[308] The criteria for admission of this type of evidence is set out in R. v. Henry, [2006] O.J. No. 4167 (S.C.J.) at paras. 26 – 27:

i) the statement must have been made in the presence of the accused;

ii) The circumstances of making the statement were such that the accused would be expected to respond;

iii) The accused’s failure to respond could reasonably lead to the inference that by his silence the accused adopted the statement; and

iv) The probative value of the evidence outweighs its prejudicial effect.

[309] I am satisfied that the above criteria have been met in this case. The statements by A.R. were made in the presence of Mr. Redhead as they were made over his Snapchat account, with the name “Peso” plainly visible. A.R. testified that the video of Mr. Redhead smoking and drinking a beer was from the same Snapchat account and showed the individual whom she met in person and who was known to her as Peso.

[310] Given the content of A.R.’s statements, one would expect Mr. Redhead to respond to them. A.R. clearly outlined the incident that she was referencing, stating, “u told me u were 20 wen u took me to ur crib.” Mr. Redhead responded: “nah I’m 18 still.” He then implicitly acknowledged the incident by stating, “I wanted to see how u was gonna move afterwards but I got it still.” The plain meaning of this response, as Crown counsel submits, is that Mr. Redhead wanted to see how A.R. was going to act after he had sex with her and that he “still” had sex with her in any event.

[311] Counsel for Mr. Redhead noted that A.R., when asked how she interpreted Mr. Redhead’s response, did not explicitly reference sexual activity. However, it was implicit in her answer. She testified that she understood that Peso was telling her that he wanted to see how she would act afterward or “if the bond (of friendship) would still be there” – that is, whether it would still be there after he had sex with her.

[312] In admitting this evidence, I am satisfied that the probative value outweighs any prejudicial effect. I note that this is a judge alone trial and that the text messages are admissible in any event as after-the-fact-communications between Mr. Redhead and A.R. about the very event in question.

[313] In summary, Mr. Redhead engaged in a conversation with A.R. about having had sex with her. In these circumstances, one would expect him to respond with either a denial or an alternate version of the event. Instead, he not only failed to deny the event but continued to lie about his age. His failure to directly deny the event supports the inference that he adopted the allegation by A.R. as true – that is, that he had sex with her – and that he knew that she was 14.

[314] Counsel for Mr. Redhead submits that little if any weight should be given to the communications in Exhibit 12(c) as A.R. acknowledged that she did not screenshot the entirety of the messages between herself and Peso – there are two places where part of the communication is missing. A.R. did not recall omitting parts of the messages but stated that if she did, they were probably not relevant. Defence counsel submits that by “handpicking” the evidence in this way, A.R. was “attempting to control the narrative.” I do not find this to be the case. In any event, there are no “cuts” from the portion of the text messages reproduced above. It is clear from those messages that Mr. Redhead accepted A.R.’s allegation that he had sex with her at his “crib.” It is also clear that he is lying to her about his age, telling her, “Nah, I’m 18 still.”

After-the-Fact-Conduct: Statements made by Mr. Redhead to Police Following his Arrest

[315] The position of the Crown is that Mr. Redhead made certain denials during his police interview that constitute provable lies that show he was aware of his guilt of the specific allegations being made against him.

[316] Defence counsel noted Mr. Redhead’s somewhat quiet or subdued demeanour during the interview and submitted that he exhibited signs of impairment. In addition, defence counsel submits that Mr. Redhead’s denials do not rise to the level of an admission; they cannot be said to be akin to a false alibi; and they are far removed from being conclusory of guilt.

[317] As stated earlier, a voir dire was held to determine the admissibility of Mr. Redhead’s statement. I found that Mr. Redhead clearly understood the questions asked of him, understood what he was saying, and understood that whatever he said could be used in the proceedings against him. None of the officers who dealt with Mr. Redhead following his arrest observed any signs of impairment. I found that Mr. Redhead was not impaired by marijuana or any other drug and that the statement was voluntary. The “operating mind” test was clearly satisfied.

[318] I turn then to the denials made by Mr. Redhead and which the Crown submits are provable lies that show he was aware of his guilt of the allegations against him. According to O’Connor, there must be evidence of fabrication before such an adverse inference can be drawn. Mere disbelief of a statement is not sufficient.

[319] At the outset of the interview, Mr. Redhead was told that he was charged with luring a child, sexual assault, and sexual interference. It would therefore have been clear to him that the charges involved an allegation that he communicated with someone who was underage and that he had sex with that person. It was in this context that Mr. Redhead made a number of denials that are provable lies.

Mr. Redhead’s denial that he knew anyone by the name of [A.R.’s nickname] or [A.R.’s first name]

[320] The most direct lie indicating that Mr. Redhead was aware of his complicity in the allegations is his denial that he knew anyone by the name of [A.R.’s nickname] or [A.R.’s first name]. That denial was clearly a lie, given the abundance of independent evidence showing it to be so.

[321] Mr. Redhead created the contact information for [A.R.’s nickname] on his phone in May 2017. During his first Snapchat communication with A.R. in June 2017, she told him that her name was [A.R.’s nickname]. When she gave him her telephone number over Snapchat, her name appeared as “[A.R.’s full name lower case]1212.” The Facetime logs from A.R.’s iPod show that Mr. Redhead had video communications with her over a number of months, with some calls lasting over an hour. A.R.’s name was obvious from her e-mail address: [A.R’s full name]2003@hotmail.com. There can be no doubt that Mr. Redhead knew a person by the name of “[A.R’s nickname]” or “[A.R’s first name].”

[322] It is also evident from Mr. Redhead’s implied admissions in Exhibit 12(c), as reviewed earlier, that he had met [A.R.’s nickname] in person, knew that she was 14, and that he had sex with her.

Mr. Redhead’s denial that he used social media

[323] During his police interview, Mr. Redhead denied having sex with anyone under the age of 18. Officer Pinfold then provided him with further details regarding the allegations made by A.R. He told Mr. Redhead that it was alleged that he had sex with someone under the age of 16 and that he and the complainant had lengthy online communications before they had sex. When asked if he had any idea why someone would make these allegations against him, Mr. Redhead stated that he did not know. He then added that he did not trust anyone since his last charges, that he does not talk to anyone, and that he tries to “stay in my corner.” When asked if he went online, Mr. Redhead stated: “Me, I don’t social myself – talk much on there.” He stated that he had Facebook but did not use it. He denied using any other form of social media, including Snapchat, Instagram, and Twitter. When told that the complainant, who was a high school student, alleged that they started chatting on Snapchat in June, Mr. Redhead reiterated that he did not have Snapchat on his phone, and denied chatting with any high school girls.

[324] Mr. Redhead’s denials that he used Snapchat, Instagram, or other social media applications were clearly lies as he initiated communication with both V.C. and A.R. over social media and continued to use social media to communicate with each of them over a significant period of time.

[325] Mr. Redhead tried to downplay the importance of social media to him by explaining that he did not trust people after he was charged with the York Region offences. That was clearly a false explanation or fabrication as the evidence shows that he was busy chatting on social media with both V.C. and A.R. regardless of those earlier charges. Social media was the means by which Mr. Redhead met both complainants and by which he ultimately met each of them in person.

[326] As Crown counsel submits, Mr. Redhead’s denial that he used social media is somewhat akin to an accused fabricating an alibi. The offence of luring is alleged to have been committed online on social media. Mr. Redhead’s denials that he had social media or used social media is the equivalent of his saying that he was not present at the scene of the crime. However, the evidence clearly establishes that this was a “false alibi”. Mr. Redhead used Instagram and Snapchat over the course of a month to communicate with V.C. During those communications, he asked her to give him A.R.’s Instagram account, which led to his communicating with A.R. over Snapchat for four months. Mr. Redhead had both Instagram and Snapchat installed on his phone. His denial that he used social media supports an inference that he was conscious of having committed the offences charged.

Mr. Redhead’s denial that he told A.R. about his arrest for a similar charge

[327] Mr. Redhead denied telling anyone, including his mother, about the York Region charges regarding a similar offence. This denial arose after Officer Pinfold provided further details to him about A.R.’s allegations. He asked Mr. Redhead:

Officer Pinfold: Any reason someone would describe you to a tee, and the place there on Martha Eaton Way, that they’ve been there, that something happened there, and that you told them about what happened to you back with the York Region charges? You confided in them about those charges.

Mr. Redhead: No.

Officer Pinfold: Who have you told about these – this other stuff – these other charges?

Mr. Redhead: Uh hm, no one, not even my mom knows.

Officer Pinfold: Why would someone else know?

Mr. Redhead: Uh, don’t know. I don’t know.

[328] Later on during the interview, Officer Pinfold provided more details to Mr. Redhead about the allegations. He told him that it was alleged that at the end of October, before Halloween, he gave a girl a lift because she had a beef with another girl at another school. He and the girl then went to his place to get something and the girl came up with him. Mr. Redhead stated, “Don’t know.” Officer Penfold told him that “then something happens there.” Mr. Redhead state, “Don’t remember. Tryin’ to. No.” Mr. Redhead was then asked if he recalled telling the girl about the charges he was dealing with. Mr. Redhead responded: “Uhm, I don’t know – telling no one else anything, no.”

[329] As stated earlier, A.R.’s knowledge that Mr. Redhead had previously been arrested for attempting to arrange sexual activity with an underage prostitute is compelling. It is a fact that she could not possibly have made up and is a unique aspect of her allegation that speaks to her credibility. Her evidence in this regard is supported by the fact that Mr. Redhead later pleaded guilty to attempted sexual interference based on the facts set out in the agreed statement of facts: Exhibit 23. Mr. Redhead’s denial that he told anyone about the York Region charges is a provable lie that supports an inference of his guilt with respect to A.R.’s allegations.

Conclusion with respect to Count 2

[330] A.R. gave a direct and straightforward account of the events that took place on October 30, 2017 when she was 14 years old. Her narrative of events was not shaken in cross-examination or contradicted in any material way. Much of her testimony was supported by other evidence, such as the Facetime and Snapchat evidence.

[331] A.R.’s evidence as to how the sexual assault ended abruptly when she asked Peso, “Aren’t you 20?” and his subsequent explanation to her in which he referenced a charge similar to the charge that Mr. Redhead was facing at that time was compelling, as it is highly unlikely that A.R. could have known or fabricated those details. Furthermore, in the text messages between A.R. and Peso contained in Exhibit 12(c), Mr. Redhead implicitly acknowledged that he had sex with A.R. and that he knew that she was 14.

[332] After considering the whole of the evidence, I also find that Mr. Redhead’s after-the-fact conduct – that is, his denial that he knew anyone by the name of [A.R.’s nickname] or [A.R.’s first name], his denial that he used social media, and his denial that he had ever spoken to anyone about the York Region charges – are provable lies that support an inference of his guilt with respect to A.R.’s allegations. The denials constitute circumstantial evidence that is consistent with Mr. Redhead having sexually assaulted A.R. as she described in her testimony.

[333] Based on all of the evidence and submissions of counsel, I find that the Crown has established beyond a reasonable doubt that Mr. Redhead sexually assaulted A.R. He is accordingly found guilty on count 2.

Count 3: Sexual Interference

[334] Count 3 charges Mr. Redhead that he

sometime between and including the 1st day of October in the year 2017 and the 31st day of October in the year 2017 at the City of Toronto, in the Province of Ontario, did for a sexual purpose touch a person under the age of sixteen years, namely A.R., directly with a part of his body, to wit: his penis, contrary to Section 151 of the Criminal Code.

Whether the Crown has established beyond a reasonable doubt that i) Mr. Redhead did not honestly believe that A.R. was at least 16 years old; or ii) did not take all reasonable steps to ascertain her age

[335] During their first meeting over the Internet in June 2017, Mr. Redhead asked A.R. how old she was. She told him that she was 13. This was part of a conversation in which he stated that he wanted to get to know her and asked her other personal details about herself. There is no evidence suggesting that Mr. Redhead expressed any concern about her age.

[336] Mr. Redhead wished A.R. a happy birthday when she turned 14 in [month] 2017. A.R. explained that he probably learned that it was her birthday from Snapchat, where her birthday but not her age appeared. In any event, he would have known at that point that she was 14 years old.

[337] Mr. Redhead had hours in which to observe A.R.’s face during their Facetime conversations in August and September 2017. In her DVD-recorded interview in March 2018, which took place about seven months later, A.R. appears to be her stated age, that is, 14.

[338] Mr. Redhead lied to A.R. about his own age, telling her at times that he was 20 years old, and at other times that he was 18. These lies support the inference that he accepted as a fact that A.R. was 13 and turned 14 in [A.R.’s birth month]. By presenting himself as closer in age to her, he was less likely to draw suspicion in terms of developing a relationship with her.

[339] That Mr. Redhead knew that A.R. was underage is apparent from the admission that he made to her on October 30, 2017. When she asked him, “Aren’t you 20?” he immediately stopped having intercourse with her. She asked him what was wrong. He later explained to her that he had previously been arrested for trying to arrange sex with an underage girl. This admission implies that Mr. Redhead knew that A.R. was underage at the time of the sexual assault.

[340] Finally, the text messages contained in Exhibit 12(c) show that Mr. Redhead knew that A.R. was 14 years old. When she stated, “I’m 14 n ur 20 u should just cool it …” Mr. Redhead made no comment about her age. Instead, he responded by denying that he was 20 and asserted that he was 18.

[341] Taken as a whole, the evidence is overwhelming that Mr. Redhead knew that A.R. was under the age of 16 when he sexually assaulted her on October 30, 2017. Mr. Redhead is accordingly found guilty on Count 3.

Count 1: Luring a Child Over the Internet

[342] Count 1 charges Mr. Redhead that he,

sometime between and including the 1st day of June in the year 2017 and the 28th day of February in the year 2018 at the City of Toronto, in the Province of Ontario, did by means of telecommunication, communicate with a person, namely A.R., who was under the age of sixteen years, for the purpose of facilitating the commission of an offence under s. 151 of the Criminal Code with respect to that person, contrary to section 172.1(2) of the Criminal Code.

[343] The first essential element under s. 172.1(1)(b) has been established beyond a reasonable doubt: Mr. Redhead communicated with A.R. by means of “telecommunication.”

[344] The second essential element has also been proven. For the reasons already stated, I find that the Crown has established beyond a reasonable doubt that Mr. Redhead knew that A.R. was under the age of 16 years. There is no air of reality to a defence of mistaken belief in age in this case. There is no evidence that Mr. Redhead expressed any concern about A.R.’s age when she told him that she was 13 during their first conversation. There is no evidence that he took any steps in order to determine her age, apart from asking her how old she was. When she told him that she was 13, he appears to have accepted that as a fact. He wished her a happy birthday when she turned 14.

[345] The final essential element that the Crown must establish is that the communications were for the specific purpose of facilitating the commission of the offence of sexual interference contrary to s. 151. The evidence relevant to Mr. Redhead’s intention in communicating with A.R. includes the following:

1. The development of a friendship initiated by Mr. Redhead, with a view to eventually meeting A.R. in person;

2. The sexually suggestive or implicit content during their conversations – that is, Mr. Redhead asking A.R. to show him her thighs and buttocks, and his sending her a photograph of his penis; and

3. The commencement of sexual activity on the first in-person meeting between Mr. Redhead and A.R., which began almost immediately upon getting A.R. alone in his apartment.

[346] A.R. testified that when Mr. Redhead first contacted her, he expressed interest in getting to know her and asked questions about her background. He told her that he had “seen her around,” including having seen her that morning at the bus stop. He seemed “nice.” A.R. was puzzled as to how he had learned her Snapchat username.

[347] The communication between Mr. Redhead and A.R. increased in frequency fairly quickly, mostly at Mr. Redhead’s initiation. A.R. testified that he would “message me all the time.” She stated that she ignored a lot of his messages, especially when he suggested that they Facetime, or “hang out” or “chill.” She testified that Mr. Redhead would call her “Mama” or “Mommy,” which she found “creepy” and made her feel uncomfortable.

[348] As time passed, their communications became more frequent. They began Facetiming after she was in Spain. The logs from A.R.’s iPod show frequent communication between them from August 12, 2017 until October 30, 2017. The communication ended, for the most part, at that time.

[349] A.R. testified that while she was in Spain, Mr. Redhead would tell her that he wanted to see her when she returned to Toronto. Although she would say “okay,” she did not really want to see him as his requests that she show him her thighs and “bottom” made her feel uncomfortable. She sent him a video of herself twerking, but she was wearing shorts. Mr. Redhead sent her a photograph of his penis. These communications clearly show that Mr. Redhead was interested in sexual contact with A.R.

[350] Finally, Mr. Redhead’s behaviour when he met A.R. in person for the first time establishes that his communications with her over the Internet was for the specific purpose of facilitating a sexual offence against her. Mr. Redhead lured A.R. up to the apartment on the pretext that he had to pick up something. While they were in the elevator, he began touching her buttocks. Once in the apartment, he made no effort to locate any item. Instead, he offered her an alcoholic beverage. Shortly thereafter, he began to sexually assault her, first in the living room and then in the bathroom, where he forced her to perform fellatio. A.R. resisted but to no avail. He eventually managed to remove her pants, although she kept trying to pull them back up. He then took her into the bedroom, where he had vaginal intercourse with her as she was screaming that it hurt. He only stopped the assault when A.R. asked him the question, “Aren’t you 20?”

[351] Having considered all of the evidence and the submissions of counsel, I find that the Crown has established beyond a reasonable doubt that Mr. Redhead initiated his relationship with the 13-year-old A.R. over the Internet for the purpose of facilitating a sexual encounter with her, regardless of her willingness to do so. As all the essential elements of the offence of child luring under s. 172.1(1)(b) have been established, Mr. Redhead is found guilty on Count 1.

[352] Additional support for the findings of guilt on counts 1, 2, and 3 is found in the cross-count similar act evidence, which is set out below.

The Cross-Count Similar Act Evidence

[353] Crown counsel brought an application at the end of the Crown’s case for an order that the evidence of A.R. could be used to support the evidence of V.C. and vice versa. The Crown did not seek to rely on the similar act evidence to prove identity. Rather, Crown counsel submitted that the similarity in the allegations made by V.C. and A.R. supports their credibility in terms of the actus reus of the offences. I allowed the application after finding that the probative value of the evidence outweighed its prejudicial effect.

[354] I find that the similar act evidence between the counts in the indictment is additional circumstantial evidence that supports the findings of guilt on counts 1, 2, and 3, which relate to the complainant, A.R., and counts 6, 7, and 8, which relate to the complainant V.C.

[355] There is no doubt that the sexual activity alleged by the two complainants is very different. V.C. alleged that Mr. Redhead aggressively tried to kiss her and aggressively put his hand down her pants in an effort to touch and digitally penetrate her vagina as she tried to move his hand away. He managed to touch her vagina a couple of times. A.R. alleged that Mr. Redhead grabbed and slapped her buttocks, forced her to perform fellatio, and then vaginally penetrated her.

[356] Although the actual sexual acts are dissimilar, there are many points of similarity in the evidence of V.C. and A.R. with respect to Mr. Redhead’s preparatory and predatory conduct that support the inference that he committed the offences as alleged by them. In R. v. S.C., 2018 ONCA 454, 361 C.C.C. (3d) 419, at para. 23, the Court recognized that in cases of sexual assault, similarities or dissimilarities between the alleged sexual acts are relevant but often not as compelling as the circumstances surrounding the incidents.

[357] The similarities in the circumstances surrounding the incidents in this case include the following:

1. The complainants are in the same age group in that both were young teenagers under the age of 16. A.R. was 13 when Mr. Redhead first contacted her but turned 14 shortly thereafter. V.C. was 15 throughout the month of June 2017 when she interacted with Mr. Redhead. She turned 16 in [V.C.’s birth month].

2. Mr. Redhead sought out both complainants using social media. In each instance, he initiated communication with them. He asked V.C. for A.R.’s Instagram account and, after receiving that information, contacted A.R. and began communicating with her.

3. Mr. Redhead used social media to communicate with each complainant over a period of a month or more.

4. Mr. Redhead attempted to kindle a friendship or develop a rapport with each complainant via social media. For the most part, he was not directly sexual with them, as he first focused on developing a friendship.

5. However, Mr. Redhead’s motives for the communications became clear over time as he began to insert sexual images into their chats. He sent pornographic images over Snapchat to V.C., asked her to be his girlfriend, and told her, “your [sic] my wife.” He sent a photograph of his penis to A.R. and asked her to show him her buttocks and thighs.

6. Mr. Redhead repeatedly asked both V.C. and A.R. to meet with him in-person. They both initially refused but, over time, had less concern about meeting him.

7. Mr. Redhead was told by each of the complainants their respective ages. He showed no concern about how young they were in relation to him and continued to communicate with them. He was 7 ½ years older than V.C. and 9 ½ years older than A.R.

8. Mr. Redhead lied to both V.C. and A.R. about his own age, which supports the inference that he was aware of the age disparity between himself and the complainants and the inappropriateness of the communications that he was having with them.

9. Mr. Redhead made no effort to clarify the age of the complainants. He took no steps to enquire further into how old they were.

10. Both complainants allege that Mr. Redhead took advantage of them after dropping off their respective friends. Both complainants allege that he sexually assaulted them almost immediately after he was alone with them. There was no conversation or discussion about sex leading up to the assaults, and no suggestion that the sexual activity could have been consensual. It is significant that in each instance, Mr. Redhead sexually assaulted the complainants on the first occasion that they met him, thereby indicating that this was his intention throughout the course of his communications with them.

[358] In assessing similar act evidence, the differences must also be taken into account.

[359] In addition to the dissimilarities in the sexual acts alleged by the two complainants, defence counsel noted that Mr. Redhead’s communications with V.C. lasted for only one month whereas his communications with A.R. continued for over four months. However, one month is still a significant amount of time and far from a fleeting type of communication. I also find that the fact that Mr. Redhead spent more time communicating with one complainant than with the other prior to meeting them in-person is not particularly significant. It is to be expected that the time required to develop the requisite level of trust such that a complainant would agree to meet with him would be different for each complainant.

[360] Defence counsel submits that the communications between Mr. Redhead and V.C. were different in nature from those between Mr. Redhead and A.R., who appear to have had longer conversations and spent a lot of time Facetiming. However, it appears that any differences in the nature or length of the calls was partly due to the difference in the complainants’ personal circumstances. When A.R. was in Spain, she was bored and liked to pass the time talking to Mr. Redhead. There were often “other people around” during their conversations as Mr. Redhead often called her from a day camp, where she believed that he was working. Over time, A.R. felt “a little bit close” to him. V.C., on the other hand, was less responsive to Mr. Redhead’s attempts to befriend her, especially when he told her that he wanted her to be his girlfriend or his wife. V.C. was not interested in that kind of relationship with him as she had a boyfriend. Nevertheless, she continued to communicate with him over social media as well as speaking to him on the phone. When he asked her to “chill” with him on June 28, 2017, she initially said “no,” but then said “yes” after he asked her to “give him a chance,” by which she understood he meant a chance to be her friend. The general tone of the conversations that Mr. Redhead had with both complainants appears to have been casual, friendly, and superficial in nature.

[361] Defence counsel noted that Mr. Redhead initiated the meeting with V.C. on June 28, 2017. After she agreed to “hang out” with him, he picked her up and drove her to the park. On the other hand, Mr. Redhead’s meeting with A.R. on October 30, 2017 was triggered by A.R. who, in a posting, asked if anyone could give her a ride. I do not place much significance on this difference as it was Mr. Redhead who chose to respond to the post and told her that he could drive her to the school. In other words, it was Mr. Redhead’s initiative that led to his in-person meetings with both complainants.

[362] Both of the alleged assaults took place after Mr. Redhead had dropped off a friend of the complainants. However, when Mr. Redhead met V.C., he took an active role in creating a situation where he was alone with her: as soon as V.C. and V.Q. got into the car, Mr. Redhead asked V.C., “Can your friend go home?” Defence counsel noted that Mr. Redhead never asked A.R.’s friend, A.A.-R., to leave the car, and drove both A.A.-R. and A.R. to the elementary school, as they had requested. When they were unsuccessful in finding the girl that they were looking for, A.A.-R. asked Mr. Redhead to drive her home and he complied with that request. In these circumstances, Mr. Redhead had no need to take any steps to find himself alone with A.R. When A.R. told him that she had to go home but was not in any hurry, Mr. Redhead drove directly to the apartment building, where he told her he had to pick up something and where A.R. testified that he sexually assaulted her. This parallels the situation attested to by V.C.: as soon as V.Q. was dropped off, Mr. Redhead drove her to the park, where she testified that he sexually assaulted her.

[363] Counsel for Mr. Redhead noted that the sexual assault alleged by A.R. took place in a private setting whereas the sexual assault alleged by V.C. took place in a public location – namely, in a car in a parking lot in the park. However, it is apparent from V.C.’s evidence that the car afforded some degree of privacy. She described the windows as “really dark” and testified that there were only two or three other vehicles in the parking lot, all of which were unoccupied. She described the soccer field, where some people were still playing, as “some distance away.”

[364] In my view, the differences or variations in the details of the allegations made by the two complainants do not detract in any significant way from the overall pattern of predatory conduct employed by Mr. Redhead during his interactions with them. When the similarities listed above are considered as a whole, what emerges is a course of predatory conduct that is probative of the actus reus of the offences alleged by each of them. Mr. Redhead located the victims using social media and then groomed them by developing a level of trust, so that they became less concerned about meeting him in-person. He lied about his age in order to further gain their trust and confidence. He showed no concern about their ages and took no steps to clarify any uncertainty as to how old they were. The cumulative effect of the similarities in the predatory conduct supports the testimony of the complainants as to what they allege in terms of the offences of child luring, sexual interference, and sexual assault.

[365] There is no evidence that V.C. and A.R. colluded or fabricated their allegations. They had the opportunity to collude, as they are close friends, and both of them freely admitted to the police during their interviews that they had spoken to each other about what Mr. Redhead had done to them. However, the sexual acts that they allege are very different. There is no evidence of any attempt by them to fabricate or to try to get their stories to mesh. Their text messages to each other do not show any intention to mislead the police. Notably, V.C. did not encourage A.R. to complain to the police about her allegations.

[366] V.C. herself did not want to lay charges. She only attended at the police station in order to provide a witness statement in connection with A.R.’s allegations. It was more or less by happenstance during her interview that she revealed that she had been in Mr. Redhead’s car. Further questioning by the police about those circumstances led to her disclosure of the sexual assault by Mr. Redhead while she was in the car. When asked that day if she wanted to press charges against Mr. Redhead, she stated “no.” It was not until eight months later that she decided to proceed with the case.

[367] I am satisfied that there was no collusion between V.C. and A.R. and that the discussions between them did not consciously or unconsciously colour their evidence in regard to their allegations as to what Mr. Redhead had done to them. I am also satisfied that neither V.C. nor A.R. had a motive to fabricate their allegations.

[368] In conclusion, I find that the cumulative effect of the similarities in Mr. Redhead’s preparatory and predatory conduct toward V.C. and A.R. supports the testimony of each of the complainants as to what they allege in terms of the offences of child luring, sexual interference, and sexual assault. Although I am satisfied that the Crown has met its burden on counts 1, 2, 3, 6, 7, and 8 without reliance on the similar act evidence, that evidence lends additional support for the finding of guilt on those counts.

Counts 4, 5, 9, 10, and 11: Failing to Comply with a Recognizance

[369] During the time of these allegations, Mr. Redhead was on a recognizance following his arrest on child luring and related offences on March 17, 2016. The bail ended on January 17, 2018, when Mr. Redhead pleaded guilty to attempted sexual interference, received a 90-day intermittent sentence, and was placed on probation for a period of two years.

[370] Counts 4, 5, 9, 10, and 11 in the indictment charge Mr. Redhead with breaching various conditions of his bail.

Count 4: Communicating with a person under the age of 18 - A.R.

Count 9: Communicating with a person under the age of 18 – V.C.

[371] One of the conditions of Mr. Redhead’s recognizance was that he have no communication, direct or indirect, or by any means with anyone under the age of 18 years.

[372] Count 4 charges Mr. Redhead with failing to comply with this condition during the period from June 1, 2017 to January 17, 2018, which covers the timeframe of his communications with A.R., who was 13 and turned 14 during that period. Based on A.R.’s evidence and the communications captured from her iPod, the Crown has established beyond a reasonable doubt that Mr. Redhead communicated with A.R. within that timeframe and while she was under 18 years of age. Mr. Redhead is accordingly found guilty on Count 4.

[373] Count 9 charges Mr. Redhead with failing to comply with his recognizance during the period from May 27, 2017 to June 30, 2017, which covers the timeframe of his communications with V.C. V.C. was 15 years old during that period. Her evidence with respect to her communications with Mr. Redhead is supported by the Snapchat logs and images. The Crown has established beyond a reasonable doubt that Mr. Redhead communicated with V.C. during the aforesaid period and while she was under 18 years of age. Mr. Redhead is accordingly found guilty on Count 9.

Count 5: Attending a school ground on October 30, 2017 – A.R.

[374] Count 5 charges Mr. Redhead with breaching the term of his recognizance that he not attend at a school ground. Crown counsel submits that Mr. Redhead failed to comply with that term on October 30, 2017, when he drove A.R. and her friend, A.A.-R., to a school and parked on the street beside the school.

[375] There is no evidence that Mr. Redhead got out of his car at any point or stepped onto the school property. It appears that he remained in his car while waiting for the girls to return, which they did after a few minutes. He then drove away.

[376] Crown counsel submits that although Mr. Redhead did not go onto the school grounds, he parked beside the school, which violated the spirit or purpose of the condition – namely, to keep him away from schools.

[377] Defence counsel observed that if the purpose of the order was to keep Mr. Redhead from being in the general vicinity of schools, it would have been a simple matter to make that clear by prohibiting him from being within a certain radius of any school. Such orders are quite common. She also noted that since Mr. Redhead was on public property the school would not have been able to charge him with trespassing or enforce such an order.

[378] Counsel for Mr. Redhead also referred to the case of R. v. Jacobs, 346 Nfld. & P.E.I.R. 97, in support of her position. In Jacobs, Walsh J. considered the meaning of “attend” where the accused was charged with breaching an order under s. 161 of the Code, which prohibited him from attending at any daycare or school ground. The accused was observed across the street from a school and daycare facility. He was walking slowly and appeared to be focused on or was facing the daycare and school area at all times. He was also seen placing his hands on his genital area on one or two occasions.

[379] In his reasons, Walsh J. referred to the principle of statutory interpretation set out in Bell ExpressVu Ltd. Partnership v. Rex, 2002 SCC 42, [2002] S.C.J. No. 43, at para. 26, “that the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.” He also referred to the Supreme Court’s decision in R. v. McIntosh, 1 S.C.R. 686, at para. 18, where Chief Justice Lamer, in writing for the majority, stated that a statute should be interpreted in a manner consistent with the plain meaning of its terms. At para. 40, Chief Justice Lamer stated:

As stated above, the overriding principle governing the interpretation of penal provisions is that ambiguity should be resolved in a manner most favourable to accused persons. Moreover, in choosing two possible interpretations, a compelling consideration must be to give effect to the interpretation most consistent with the terms of the provision. As Dickson J. noted in Marcotte, supra, when freedom is at stake, clarity and certainty are of fundamental importance. He continued, at p. 115:

If one is to be incarcerated, one should at least know that some Act of Parliament requires it in express terms, and not, at most, by implication.

[380] As Walsh J. stated, that same principle holds true in the case of court orders.

[381] Walsh J. noted that the Oxford Dictionary of British & World English defines the verb “to attend” as “to be present,” and that Cambridge Dictionaries Online defines “attend” as “to go to an event, place, etc.” In accordance with these definitions, he concluded that the plain meaning of attending at a school ground would be that one would be physically present on the property. This could be inside the buildings or otherwise physically present on the real property forming part and parcel of the daycare or school ground. He found, however, that it did not include being on the opposite side of the street.

[382] In my view, the plain meaning of attending at a school ground also does not include being in a car parked on public property on a street outside the school. There is no evidence that Mr. Redhead ever got out of his car, set foot on the property, or tried to speak to anyone at the school. As stated in McIntosh, when freedom is at stake, clarity and certainty are of fundamental importance. Had the purpose of the order in the present case been to keep Mr. Redhead outside a certain radius from schools, that purpose could have been easily and clearly expressed.

[383] I conclude that Mr. Redhead did not “attend” at a school ground on October 30, 2017. As the Crown has failed to establish that he breached that condition of his recognizance, Mr. Redhead is found not guilty on Count 5.

Count 10: Attending a public park where persons under the age of 16 are present or can reasonably be expected to be present or attending a school ground in June 2017 – V.C.

[384] Count 10 charges Mr. Redhead with breaching his recognizance in two different ways: i) by attending a school ground and ii) by attending a park where children under the age of 16 are present or could reasonably be expected to be present.

[385] On June 28, 2017, Mr. Redhead parked on Dennis Avenue beside Dennis Avenue Community School in order to pick up V.C. who, along with her friend V.Q., was waiting for him on the sidewalk outside the school. The girls were not on school property at the time. Photographs of the area show that a fence separated the sidewalk from the school, the school’s playground, and the area where the barbeque was being held, although the playground and scene of the barbeque would have been visible from the sidewalk. Mr. Redhead did not get out of his car and thus was never on school property. The girls approached his car on their own and got in. Mr. Redhead then drove V.Q. home. Applying the same reasoning to this fact scenario as was applied with respect to Count 5, I conclude that Mr. Redhead did not “attend” a school ground on June 28, 2017.

[386] With respect to the allegation that Mr. Redhead breached this condition of his bail by attending a public park, Crown counsel fairly concedes that he did not elicit from V.C. during her testimony any details with respect to the ages of the people who were in the park or evidence as to whether people under the age of 16 could reasonably be expected to be present. As a result, any conclusion in this regard is somewhat speculative and falls short of the standard of proof beyond a reasonable doubt. Mr. Redhead is accordingly found not guilty on count 10.

Count 11: Possession and Use of a Digital Device with Access to the Internet

[387] Count 11 charges that Mr. Redhead, between May 1, 2017 and January 17, 2018 breached the term of his recognizance that he not possess or use any computers or any other device that has access to the Internet or other digital network.

[388] It is clear from the data extracted from the Samsung phone that was in Mr. Redhead’s possession when he was arrested on March 7, 2018 that he had this phone and used it to connect over the Internet between May 1, 2017 and January 17, 2018. The e-mail address in use on the phone – dawsonredhead@gmail.com – was the same address that he used to communicate with A.R. over Facetime. There is evidence on the Samsung phone that Mr. Redhead had an iPhone at the time, which would have been the phone that he used for Facetime. A.R. testified that Mr. Redhead told her that he had an iPhone. In addition, there is a saved contact from Snapchat on the Samsung phone for “[A.R.’s full name]1212” dated May 22, 2017, which indicates that he sometimes used this phone to use the Snapchat application. In order to use Snapchat and Instagram, as described by A.R. and V.C., Mr. Redhead would have had to use a computer or cellphone: see Exhibit 21 – Admission Re: Data Recovered from Samsung Cellphone.

[389] Based on this evidence, I am satisfied beyond a reasonable doubt that Mr. Redhead breached the condition of his bail as alleged in this count.

Count 12: Failing to Comply with Probation by Failing to Report Address to Probation Officer

[390] Pursuant to his probation order, dated January 17, 2018, Mr. Redhead was required to notify his probation officer in advance of any change of address, live at a place approved of by his probation officer, and not change his address without obtaining the consent of the probation officer in advance. Count 12 charges Mr. Redhead with breaching these conditions.

[391] It is clear that Mr. Redhead was residing at 15 Martha Eaton Way, Unit 1505 on March 6, 2018, based on his telephone conversation with Officer Jonkman that day. Although he confirmed his Keele Street address, he also told her that he had an alternate address, namely, the apartment at 15 Martha Eaton Way. He agreed to meet with her at that address at 4:00 p.m. the following day.

[392] When police arrived at Unit 1505 at 15 Martha Eaton Way on March 7, 2018, Mr. Redhead answered the door and was arrested. Mr. Redhead was in possession of a key to the apartment at that time. It appears that he had clothing at the apartment: he asked to change his footwear and was given a pair of shoes that were at the entranceway. He was also given a jacket to wear but then asked for a different jacket, which was provided to him. Sergeant Pinfold observed a bag of soccer balls in the living room of the apartment, which is consistent with Mr. Redhead having an interest in soccer. He had told both V.C. and A.R. of his interest in that game and that he had been a soccer coach.

[393] When asked for his address during the booking process at 12 Division, Mr. Redhead gave both the Keele Street and the Martha Eaton Way addresses.

[394] Mr. Redhead had met with his probation officer on March 6, 2018, at which time he confirmed for her his Keele Street address. However, he failed to advise her of the Martha Eaton Way address, which he had described to Officer Jonkman on that same day as his alternate or secondary address. His failure to advise his probation officer of the Martha Eaton Way address constituted a breach of his bail condition. In addition, Mr. Redhead was also required by the order to advise his probation officer in advance of any change in address, which Mr. Redhead did not do.

[395] The Crown has established beyond a reasonable doubt that Mr. Redhead failed to comply with his probation order by failing to advise his probation officer of the Martha Eaton Way address. Mr. Redhead is accordingly found guilty on count 12.

Count 13: Failing to Comply with SOIRA – Failing to Report a Change in Address or Secondary Address Within Seven Days of Change

[396] Count 13 charges Mr. Redhead with failing to report his address according to the SOIRA order, which was made on January 17, 2018.

[397] Pursuant to that order, Mr. Redhead was required to report his address and any secondary address to the police each year. Any change in the main or secondary address was to be reported within seven days of the change.

[398] Mr. Redhead reported his address for the first time and in-person on February 7, 2018. He provided the Keele Street address at that time. He did not report the Martha Eaton Way address until March 12, 2018, which was after his arrest.

[399] The main issue with respect to this count is whether the Crown has established beyond a reasonable doubt that the date of March 12, 2018 was not within seven days of Mr. Redhead’s move to the Martha Eaton Way apartment.

[400] As stated earlier, it is clear that Mr. Redhead was living at apartment 1505 on Martha Eaton Way on March 6, 2018, as he told Officer Jonkman on that day that it was his alternate address. If that was the day that he moved in, his reporting of that address to the registry on March 12, 2018 would be within seven days of his change of address and would be compliant with the order.

[401] Crown counsel submits that Mr. Redhead was residing at 15 Martha Eaton Way from at least February 9, 2018. He relies in this regard on the fact that no one was at the Keele Street address on that date when Officer George knocked on the door at 7:30 a.m. However, Officer George did not leave a business card or message for Mr. Redhead asking him to get in touch with him. Thus, if Mr. Redhead were living there but not home at the time, he would have no way of knowing of the officer’s visit.

[402] Mr. Redhead was also not at the Keele Street address on February 16, 2018, when Officers George and Jonkman attended there at 8:15 a.m. and spoke to his mother. Mrs. Redhead’s conversation with the officers is hearsay as she was not called as a witness.

[403] On March 1, 2017, Officer Jonkman called Mr. Redhead and advised him of the two compliance checks at the Keele Street address. Mr. Redhead told her that he left early for work and that 6:00 p.m. “would work better” for him. Officer Jonkman told him that they would try to accommodate him in that regard.

[404] On March 6, 2017, Mr. Redhead advised Officer Jonkman of his alternate residence at 15 Martha Eaton Way.

[405] Although there is some circumstantial evidence linking Mr. Redhead to 15 Martha Eaton Way, it predates the making of the SOIRA order that required him to report his address. For example, in a Snapchat message on June 18, 2017, Mr. Redhead told another individual, “I’m at 15 Martha Eaton Way,” although that comment does not necessarily imply that he was living there. A.R. could not remember the outside of the apartment building where Mr. Redhead took her on October 30, 2017. She recalled, however, that it was on the 15th floor and in the area of Jane and Trethewey, which is the approximate location of 15 Martha Eaton Way.

[406] Having considered all of the evidence relating to this count and the submissions of counsel, I find that it has not been established beyond a reasonable doubt that Mr. Redhead failed to report his change of address to 15 Martha Eaton Way within seven days of that change. In other words, it has not been established that he moved to 15 Martha Eaton Way prior to March 6, 2018. Mr. Redhead is therefore found not guilty on this count.

DISPOSITION

[407] For the reasons given, Mr. Redhead is found guilty on Counts 1, 2, 3, 4, 6, 7, 8, 9, 11, and 12. He is found not guilty on Counts 5, 10, and 13.

Garton J.

Released: May 31, 2021

COURT FILE NO.: CR-19-50000188

DATE: 20210531

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

DONSON REDHEAD

REASONS for judgment

Garton J.

Released: May 31, 2021