COURT FILE NO.: CR20-0017

DATE: 2021-09-29

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

R. M.-N.

B. Rudnick and J. Bourassa, for the Crown

N. Xynnis, for the Accused

HEARD at Gore Bay: June 28, 29, 30, and July 5, 6, 7, and 8, 2021

Reasons for Judgment

A.D. kurkE j.

Overview

[1] The accused was charged on a 16-Count indictment with offences against five teenaged complainants, including sexual offences, internet luring, communicating for the purposes of procuring sexual services from underage persons, and making threats. Given the current pandemic, the matter was tried at a mixed hearing involving some personal court attendance and some virtual video-attendance, on consent of the parties.

[2] The case proceeded over seven days in Gore Bay. The Crown’s case was made up of the viva voce evidence of four out of the five complainants: S.T. H.P., L.W., and D.P. Complainant J.L. did not attend to testify; her evidence was the subject of a partially successful Crown application to adduce her statements to police as substantive evidence. The Crown also called the evidence of J.L.’s sister and mother, and investigator Det. Cst. Makadebin of the Wikwemikong Tribal Police Service. Agreed statements of fact concerning Facebook account information and police attempts to serve a subpoena on J.L. were also filed.

[3] Ultimately Count 11 was withdrawn by the Crown and Counts 7 to 9 were amended to reflect the evidence actually given or not given by witnesses. Exhibit 1 is the Crown’s main source of exhibits on the trial. Of its 6 tabs, all but Tab 1 were identified by witnesses. I have not considered Tab 1 as evidence in this case.

[4] At the close of its case, the Crown made a similar fact application involving cross-count use of trial evidence and off-indictment evidence and brought its application to adduce J.L.’s out-of-court statements as evidence at trial. The applications were heard on a voir dire. I gave decisions on those applications without producing reasons, so that the trial could proceed. The evidence on the voir dire was applied to the trial. The accused testified on his own behalf. These reasons also include my reasons on the Crown’s applications. To be clear, the accused had not yet testified in the case when I made my rulings on the Crown applications, and his evidence accordingly had no bearing on those decisions.

[5] In the evidence at trial marijuana use and its sale figured prominently. Most witnesses referred to it by the colloquial term “weed”, which I have employed throughout these reasons. Also regularly described were “poppers” a combination of tobacco and marijuana. Several witnesses referred to the accused as “R.” throughout this trial. His personal identity was admitted; his identity as the author of some text messages from the “R.M.” and “B.P.” social media accounts remained disputed until he gave evidence in the defence case.

The evidence of the accused

[6] The accused testified at this trial. I set out below some general aspects of his evidence. His specific evidence relating to each of the complainants or to the evidence given by V.L. will be set out when the evidence of those witnesses is discussed. Of course, even though the evidence is divided up in this fashion for ease of comprehension, in forming my conclusions on credibility and reliability I have considered all the evidence in the case.

[7] The accused was born April 18, 1994 in Wikwemikong (“Wiki”). He grew up there and in Atikameksheng Anishnawbek. He has lived now in Wiki for many years. Before he went into custody he had been living with his girlfriend, but prior to that at his aunt’s house, and before that with his mother. The accused went as far as grade 11 in school but has also taken college courses in welding at Cambrian College. He did not finish that program because he was arrested.

[8] The accused has a criminal record consisting of a luring charge and a break, enter and commit in 2013, for both of which he received probation as a young person. For September 2014 convictions, recorded as sexual interference and six charges of fail to comply with disposition, the accused was sentenced to 75 days jail on top of 15 days pre-sentence custody, and three years probation. Given the similarity of some of these charges to the current allegations, I have cautioned myself that, but for the use of some aspects of the accused’s record for the purposes of similar fact, the record may only be used to assess the accused’s credibility pursuant to s. 12 of the Canada Evidence Act. The record does not figure large in my assessment of the accused’s credibility.

[9] The accused agreed that Wiki is a small community, like a large town of some 3,000 people. Witness B.O.P. is his cousin and is related to J.L. and V.L. He lived minutes away from V.L.’s house. In his mother’s house, his space was the basement, to which he controlled access. The accused testified that he knew most of the people in his community and was generally familiar with how they dressed.

[10] The accused admitted to having been a drug dealer from when he was 18 until a couple months before his arrest in November 2019. He sold a lot of weed, and some speed and cocaine. He himself became addicted to weed and cocaine, and for a short time to speed. He continued to get high on weed “every day, all day” in the months before his arrest. He quit when he got together with his girlfriend. After he stopped being a drug dealer, he still sold the occasional gram of marijuana “to whoever came to my window”. He explained that people would come to his window and knock to see if he was at home, and then the drug deal would take place through the window. The accused is not charged with drug trafficking, and I have cautioned myself against the perils of prejudicial reasoning based on the accused’s acknowledgement that he was a drug dealer.

[11] The accused testified that at the time of events in this case he was doing a lot of drugs and engaging in “impulse writing.” Concerning the time period involved in the charges before this court, he testified that “I don’t remember what I wrote during that period, but I remember writing.” He would often send messages on Facebook when he was “mad.” The accused claimed not to remember a lot of the messages that form part of the Crown’s case, and he could not remember them without looking at them. He has trouble remembering the details.

[12] The accused has been in custody for some time and was transported daily throughout the trial from the Sudbury District Jail. The accused testified that all that travel took a toll on his memory; he was more tired than usual and not getting enough sleep because he had to leave his cell by 6:00 a.m. to get to court. Before this trial he had never testified in court before.

[13] The accused denied any sexual interaction or sexual assault on J.L., H.P., L.W., and denied any communication with these girls about sex or setting up sexual contact with anyone else. He admitted selling drugs to H.P., S.T., and D.P., and once to V.L. for J.L. He also denied any communication with D.P. inviting sex with her. However, he admitted that he communicated with S.T. about having sexual contact with her. He acknowledged that “B.P.” was his gaming account and that he also used the “R.M.” account. He would get drunk or high and engage in “impulse writing”, which afterwards limited his ability to remember the contexts of the conversations.

The complaints

S.T.

[14] S.T. was between 16 and 17 years old at the time of her interactions with the accused. She was born in 2000 and living in Wiki. She testified that the accused gave her weed in exchange for her performing fellatio (“oral sex”) on him. At the time she was desperate for weed. In September 2019, she quit using weed and broke off contact with the accused by around Christmastime. It was after that that she found messages between her younger sister D.P. and the accused.

[15] S.T. communicated with the accused over Facebook Messenger, using his “R.M.” account. S.T. mostly communicated with the accused about buying marijuana, but also engaged at first in casual chats. She also bought speed and cocaine from the accused, without any of the other complainants present. When S.T. bought weed from the accused, he would tell her to come get it or he would deliver it. She went to his mother’s house on several occasions to pick up the drug. She met him at the back door of the house on the back porch, and she went down into the basement. There they smoked weed, listened to music, chilled, and talked. S.T. does not recall anyone else being there when she was with the accused.

[16] Things progressed from there to his offers of marijuana in exchange for fellatio. These discussions were in person. S.T. performed fellatio on the accused a few times but felt disgusted with herself and stopped. She would perform fellatio on him in his vehicle. They would drive somewhere “secretive” at night, where no one could see them. The last time was in the summer of 2018 on Hills Trail in Wiki.

[17] Ultimately, the accused asked S.T. once or twice to get her friends to perform fellatio on him in exchange for double the marijuana that he would give the friends for the service. S.T. agreed to do this, but never actually did it. The accused eventually dropped the subject and stopped asking her.

[18] In 2018, when S.T. started feeling uncomfortable about her dealings with the accused, she blocked him on the “R.M.” account, but she unblocked him because he was her main source of marijuana. Later the accused also messaged S.T. on his “B.P.” account. He identified himself as “R.”, and S.T. asked him to sell to her, but he was upset with her and would not. She was mad at him for that, because she was desperate for drugs, but calmed down after a while.

[19] S.T. did not talk to the accused about her sister D.P. Around December 2019 S.T. saw messages from the accused’s “B.P.” account on her 16-year-old sister’s iPod, offering her weed “if you need it”. So, S.T. unblocked the accused and told him not to contact her sister, and then blocked him again. In fact, their mother went on her sister’s account and told the accused to “leave my daughter alone.” S.T. told D.P. to block the accused, but they did not talk about either of them going to the police.

[20] In his evidence, the accused testified that S.T. used to be his good friend, and he hung out with her from 2016 to 2018. He met her before they ever messaged, but they would have Facebook conversations. When he dealt with her, she was 15 or 16. He sold S.T. weed, and sometimes she paid cash. Sometimes she paid for weed by “sucking his dick”. The accused testified that S.T. would ask him if she could suck his penis for weed. Sometimes he said yes, and sometimes he said no. She did it once or twice. The accused denied asking S.T. to get her friends to perform sexual services on him.

[21] Significantly, S.T. clearly identifies the accused as the user of the “R.M.” and “B.P.” accounts throughout the period of time at issue in this case.

H.P.

[22] H.P. was born in 2002, and lives in Wiki. She knows the accused because she bought weed from him about five times over Facebook. She testified that “B.P.” is the accused’s Facebook account, and it was on that account that she mainly dealt with him over a period of about a month. She would ask for drugs and the accused would tell her to come pick them up. She would walk over to collect the weed from him at his window at his house near the police station. The accused also “sparked up” – provided with weed or smokes – H.P. and her friends on a few occasions.

[23] H.P. testified that the accused’s bedroom was downstairs. There was an open area in the basement with a television, a couch, a computer, and a loveseat surrounded by curtains, about eight feet from the stairs. Outside the curtained area was the accused’s bed.

[24] H.P. testified that on one occasion in June 2019, she went to the accused’s home, where she smoked five poppers in a bong and the accused also gave her a line of coke that she snorted; it burned. The drugs made her feel sleepy. H.P. lay back on the loveseat and watched television. The accused was sitting near her and started fondling H.P.’s feet. She asked him what he was doing. He told her to relax. She was high “out of her mind.” She lay back and fell asleep. When H.P. woke up she was on the bed, and no longer had her leggings on, just her top. The accused was on top of her having intercourse with her, his penis in her vagina. She had not consented. She had said nothing. She hit out with her arm and knocked the accused off of her. She got dressed and left.

[25] Within a week of the incident, H.P. received a message from the accused on his “B.P.” account that he would hit her if she ever came back. H.P. testified that she became scared and did not want to tell anyone what had happened to her. She also said that the threat made her scared the accused would hit her if she confronted him about what he had done. H.P. told her friend S. what had happened to her, and S. told her that she should go to police.

[26] H.P. testified that she saw the accused at his home on another occasion when something happened to L.W.

[27] Regarding the incident with L.W., H.P. testified that she and L.W. went to the accused’s house for smokes. They had been at S.T.’s earlier. H.P. did not remember if L.W. was drunk or high that night, but they had been doing drugs. H.P. stated that she only went to the accused’s house to get smokes, and then she planned to leave right away, because she had been raped by the accused. The girls were only supposed to meet the accused at the park, but L.W. followed the accused to his house, so H.P. went along. She stayed there because she had followed L.W., but she did not warn L.W. about the accused.

[28] L.W. and the accused did drugs in the accused’s basement. H.P. initially denied having any drugs except poppers. However, she admitted in cross-examination, when confronted with her statement to police, that she had forgotten about taking a hit of a white powdered drug that L.W. had been taking also. Then, while H.P. was on the couch playing music loudly on the accused’s PS4, L.W. was on the bed in the other part of the basement. H.P. was not paying much

attention to what was going on between the accused and L.W., and did not hear anything, focused as she was on her music and her phone. L.W. returned and told H.P., “Let’s go,” so they left. By that point L.W. was “pretty high.” Afterwards, L.W. told H.P. what had happened to her.

[29] H.P. recalled no discussion with L.W. about reporting to police what had happened to them. She only told the police what happened to her when the police came and questioned her about L.W. and then asked whether she had been through it.

[30] Initially, H.P. could not say whether the incident involving L.W. took place before or after the incident involving her alone. Ultimately, in cross-examination she confirmed that the incident involving her alone had occurred first. After that incident, she was “pretty upset” and did not want to see the accused again and wanted nothing to do with him. Nevertheless, H.P. claimed that she would still have gone back with L.W. after that incident, as “I needed smokes.” She said that she would continue to be around the accused “as long as someone was with me.”

[31] H.P. identified Exhibit 1, Tab 3 as a text conversation between her and the accused, who was communicating with her on the “B.P.” account. She did not remember whether the conversation at Tab 3 was before or after either of the incidents she described with the accused. Nevertheless, it appears, given some of her answers about the text conversation, that the messages came after the incident that involved her.

[32] H.P. was not able to explain much of what went on in the Tab 3 text conversation. She had “no idea” what the accused meant by “hey come quickly”, or why the accused referred to L.W. in the text. The conversation moved on to the accused asking what H.P. thought about the accused’s “dick,” and H.P. accused him of “overthinking about it.” When pressed by the accused about how he was in bed, H.P. responded “idk” (“I don’t know”) and then “good lol” (“good laugh out loud”) after the accused promised her half a gram of weed for her opinion. In her evidence, H.P. denied knowing why she responded that way, but did indicate that the accused was offering her free drugs for her opinion. The accused asked her “it wasn’t shitty?”, to which H.P. responded, “why you asking? lol.” She responded that she would not answer the accused’s question about whether she would “booty call” him again.

[33] The accused also messaged H.P. that he liked “bj’s” and commented on the people who gave them, and H.P. responded “lol true” but H.P. could not say who he was talking about and claimed to just be “writing anything”. H.P. commented “Why did I tell anyone?”, which I take to mean “why would I tell anyone?” and explained that she did not want the accused to know that she had told her friend S. about the rape. She did not tell “B.P.” not to talk to her. She was scared to confront him after the incident, because he had said that he would hit her.

[34] Whatever other conclusions I arrive at about the evidence given by H.P., she clearly identified the accused as the operator of the “B.P.” account around June 2019.

[35] In his testimony the accused denied any sexual contact with H.P.

[36] The accused testified that he knew H.P. and spent time with her in person in 2019. She was always asking him for weed, but he did not remember ever asking her for sex. He denied giving her a drug that knocked her out. He denied threatening to cause her bodily harm or that he would hurt her.

[37] According to the accused, H.P. suddenly showed up drunk at his home within a month of the incident involving L.W. Although he could have asked her to leave, he did not. He explained, “I’m someone who just doesn’t care.” According to the accused, H.P. lay on his bed and passed out. He did not give her drugs, except for a toke of a popper from a bong. The accused claimed not to be doing drugs himself that day, but he does appear at least to have been using poppers. The accused’s friend G. came over after H.P. was sleeping. The two males played video games for a while and then they left, leaving H.P. on the bed. The accused was with G. most of the time that H.P. was there.

[38] The accused acknowledged the Exh. 1, Tab 3 conversation with H.P. as his own. He claimed that it was just random conversation. He and H.P. used to talk all the time. He was impulse writing and complaining that people were taking advantage of him for free weed. When he wrote to H.P.: “wonder if one of them would blow me”, he said that he was trying to flirt. He acknowledged asking for H.P.’s answer or opinion about something, but he did not know what. This was “because I used to hate myself and ask people’s opinion; I’m naturally depressed all the time.” He stated, “I really hated myself.”

[39] Even in chief the accused claimed not to remember what he was saying when he asked H.P. in a message if she would “booty call me again that how good my dick is?” He claimed that it could not refer to sex with H.P. because he did not have sex with H.P. He explained to H.P. that “i like bj because i think and feel like it shows how much you actually like someone to suck them off” just to tell her how he felt. He did not remember what he was saying when he asked H.P. her opinion on his “dick” and could not say why he would ask her this if she had never seen it. In cross-examination he went so far as to deny even that he was asking her opinion about his dick. He just wanted her opinion, although she had never seen even a picture of his penis. But he was doing a lot of speed at the time. The accused even denied knowing at all what “booty call” meant and cannot explain how the words got into his message to H.P.

L.W.

[40] L.W. was born in 2003. She lives in Wiki.

[41] L.W. was involved in an incident with the accused on June 22 or 23, 2019. The incident happened at the accused’s house across from the police station in Wiki. L.W. knew the accused through her friends H.P., S.T., and L., and had interacted with him three or four times, always when H.P. was with her. L.W. knew the accused as someone from whom her friends, including H.P., bought drugs.

[42] Except for one time, L.W. only communicated with the accused in person. However, “B.P.” messaged her on Facebook Messenger after the incident that she described.

[43] L.W. was 15 years old when the incident happened, and in grade 10. She had gone drinking at S.T.’s house, and was very intoxicated, and close to blacking out. She was with S.T. and another girl, L., and then she invited H.P. over. H.P. arrived and wanted to go to a park for “smokes”; it was dark out. L.W. and H.P. went there by bike, though L.W. was still pretty intoxicated. Then the accused showed up, and the three of them went back to the accused’s house.

[44] They went down to the basement and stayed there for an hour or two. They were mainly in a common area squared-off with curtains, inside of which was various furniture, including a bed, a couch and a television. Outside the curtained area was another bed. Tab 5 of Exhibit 1 is L.W.’s drawing of the space that she made for police. In the basement, they talked, smoked weed, and did poppers in a bong. The accused produced the drugs. L.W. also snorted lines of speed. She became very intoxicated. They watched a movie. The accused told her that he was 25, but L.W. could not remember if he asked how old she was, or any conversation about her age. She felt that the fact the accused knew she was hanging around with “younger kids” would reveal her age. L.W. took a picture of herself at the accused’s home, reproduced as Tab 2 of Exhibit 1.

[45] At one point, the accused went to the bed outside the curtained area, and “insinuated” or “hinted” to L.W. that she should go there also. H.P. urged her to go, telling her that it was going to be fine. So, L.W. went. The accused was lying on the bed. L.W. stood near him but did not get on the bed.

[46] The accused exposed his penis and kept trying to get L.W. to touch it. L.W. said no and told him to do it himself; she did not want to do that. Finally, the accused grabbed one of L.W.’s hands out of her pocket and put it on his penis. He held her hand there for some time before she pulled her hand away or he let her go. The accused then touched and rubbed her thigh and moved his hand and touched L.W.’s vaginal area over her clothes. L.W. was very uncomfortable and did not consent to the accused touching her or making her touch him. But as she puts it: “I didn’t know what to do. I was 15 and scared; it was fucking terrifying.” She kept saying no and to stop, but the accused did not listen to her. Finally, L.W. and the accused returned to where H.P. was.

[47] L.W. sat down and told H.P. that she wanted to go, but H.P. told her that she wanted to stay, to do more drugs. L.W. did not leave because she was worried about H.P. and did not want to leave H.P. alone with the “old man” while she was intoxicated. They continued to smoke weed and talk. They watched a movie and possibly consumed more coke and speed.

[48] The accused left the area for the outer bed a second time. H.P. again encouraged L.W. to follow. L.W. did so, while H.P. blasted music in the living area. L.W. remained standing, and the accused touched her on the leg and vaginal area over her clothes. The accused tried to kiss her, but L.W. “swerved” her head. He succeeded in kissing her on the lips on his second attempt, which L.W. found “really gross”. L.W. was uncomfortable, scared, and shaken up. She was not interested in the accused, whom she considered to be old.

[49] L.W. went back to H.P. and told her that they needed to go, that she was very uncomfortable. They finally left. They went on bicycle back to S.T.’s. She told S.T. and H.P. a “quick version” of what happened but did not remember what she told them. They said that it had happened to them, that they regretted it too, and that it would be fine. L.W. did not recall what S.T. or H.P. told her had happened to them, and I am satisfied that nothing they said had any impact on L.W.’s memory.

[50] L.W. did not talk to S.T. about going to police. H.P. told L.W. not to tell anyone what happened. L.W. told H.P. that she should talk to someone, not police.

[51] L.W. and H.P. hardly talk at all anymore. They started growing distant a couple weeks after the incident with the accused.

[52] L.W.’s level of intoxication was explored extensively in cross-examination. The point of departure was L.W.’s admission that she was close to “blacked out drunk” when she was at S.T.’s house before H.P. arrived. “Blacked out drunk” means to L.W. that she wouldn’t remember anything of what was going on. L.W. had been drinking and smoking at S.T.’s. L.W. admitted to getting close to blacking out at S.T.’s but stated that she then “sobered up slightly”.

[53] It was suggested to L.W. that she had become blacked out drunk at the accused’s home, and L.W. denied it, saying rather that she was “extremely drunk,” but not blacked out. She had had some trouble biking there but did not fall. At the accused’s house they smoked marijuana and she did speed, which gave her a “head buzz.” L.W. admitted to being “pretty high” but “I could still function.”

[54] While L.W. agreed with the general principle that intoxication could make it difficult to understand what was going on, she firmly insisted that she remembered most of what happened that night: “I may have been intoxicated but I still have a good memory. All that occurred sobered me up because it startled me.” And, “having something like that happen you don’t forget. It sobered me up. It got me scared.” I accept L.W.’s reasoned assessment that the effects of alcohol did not compromise her memory of what happened to her.

[55] L.W. was also examined on telling H.P. and S.T. that she had been “raped”, which she acknowledged that she might have said. L.W. explained that she knows that “rape” technically implies forced penetration. She used the word to indicate that she had been touched by the accused without consent, because she didn’t know the “right word” to use. L.W. carefully explained why she used the word “rape,” and I accept that explanation as commonsensical.

[56] L.W. ended up speaking to police twice. The first time she was convinced to go by her school counsellor and her child services counsellor, who both accompanied her to the police station. The second time was after “B.P.” messaged her on Facebook. Tab 4 of Exhibit 1 are police photos of a series of messages from the “B.P.” account that L.W. received on her iPod some days after the incident and prior to June 28, 2019. L.W. knows that that account is the accused’s from talking to H.P. and S.T.; she was not a Facebook friend of “B.P.”. The messages came after she accepted a message request from “B.P.”.

[57] L.W. was concerned about the messages in Tab 4 of Exhibit 1, particularly at the message that stated that “I’m gonna find you fucking snitch”. That message made her feel threatened, and scared and angry at the possibility of what the accused or someone that he knows could do to her: “that is a big accusation to make to a 15-year-old”. She did not understand some of what B.P. seemed to be saying to her, but the snitch part seemed to indicate that the accused was angry that she was telling people what had happened, though she did not mention the drug dealing. She felt that his comment “likeyou dont makethe moves” indicated that he meant she was talking to people about the sexual things that he did to her. She responded by calling him a clown, because in her view, “he is. … he’s trying to convince me that nothing happened.”

[58] Even without the testimony of the accused or any similar fact application, I am satisfied that the accused was the person writing messages to L.W. from the “B.P.” account. Her receipt of the message shortly after her dealings with the accused, its accusation that she snitched and lied about what had gone on, and V.L.’s, S.T.’s, and H.P.’s evidence that the accused was the operator of the “B.P.” account at that period of time make the identification certain.

[59] The accused gave the following account of his dealings with L.W.

[60] In total the accused hung out with L.W. twice.

[61] One evening after doing drugs the accused had gone to pick up speed for himself and was walking on the road when he saw two people on bikes whom he didn’t know personally, but from the community. They were H.P. and L.W. H.P. noticed him and asked if they could come with him, and the accused told her that if they wanted, they could follow him. He didn’t want them at his house, but he “didn’t care.” It was just coincidence that he ran into them; it was not arranged in advance with H.P.

[62] At his house they were smoking weed and doing lines of speed. H.P. and L.W. were flirting with him. In chief the accused testified that he offered them poppers, but in cross-examination stated that L.W. brought her own poppers. L.W. asked if she could do a line of speed, and the accused agreed. He gave L.W. marijuana when she asked for a toke. The accused was not paying attention to how high the girls were. The accused became too high himself and could not function, so he went to go lie down on his bed outside the room dividers.

[63] H.P. convinced L.W. to go to him. The accused was lying down. L.W. stood by the end of the bed, and started moaning “for no reason,” making fake sex sounds, and the accused went back to the area where H.P. was. They did more drugs and then the girls left. The accused denied ever touching L.W.; nothing that L.W. claimed had actually happened. He never talked to L.W. about having sex.

[64] The accused did not remember L.W. looking like she did in the picture that she testified that she took that evening at his home (Exh. 1, Tab 2). According to the accused, L.W. looked older than 21 and was dressed “like a hooker,” by which the accused means “someone who dresses weird and wants to get paid for sex.” She had on fishnet stockings, very short shorts, and a long-sleeved t-shirt.

[65] The accused acknowledged that Tab 4 of Exh. 1 was a message conversation that he had with L.W. on his “B.P.” account. He testified that the next morning after L.W. had been at his house, he had heard that the girls were spreading rumours about how he had raped L.W., which he understood to be forced intercourse. That was why he wrote “get offmyfacebookfucking stuck u lying bitch”. He also wrote “likeyou dont makethemovestogofuckinglieover it” and “or what you get payed”, but he did not remember if she was lying to get paid. He explained in cross-examination that “she was paid to tell the cops on me, I assumed,” a statement that truly makes no sense at all.

[66] He wrote to her “im gonna find you fucking snitch … hoe assbitch” because someone told him that she called the “cops” on him for something he didn’t do. He explained that he does not like people “calling the cops.” He did not mean that he would cause her bodily harm. It was more of an insult than a threat.

[67] There is some corroboration for L.W.’s account in the evidence of S.T.

[68] S.T. saw L.W. and H.P. the night that something happened to L.W. They came to her home between midnight and 1:00 a.m. and knocked on the door. H.P. told S.T. that L.W. had been “raped” by the accused. L.W. was “under the influence” of alcohol and marijuana. L.W. was crying and upset and would not answer questions about what happened. S.T. tried to comfort her. No further details were forthcoming at the time, but L.W. told her within the next couple of days that she had been traumatized, and that “he just touched her” on the leg and made her feel uncomfortable. S.T. never spoke with L.W. or H.P. about her communications or interactions with the accused or about going to police.

[69] While L.W.’s descriptions to S.T. of what happened to her are not in themselves corroborative, they are coupled with her upset emotional state, which does corroborate L.W.’s account. L.W.’s explanation to S.T. that the accused only touched her and made her feel uncomfortable in fact rehabilitates L.W.’s credibility, in that L.W. had backed away from any claim of “rape” long before any cross-examination at trial.

[70] H.P.’s evidence contradicted L.W. in some respects.

[71] H.P. remembered very little of what went on in the accused’s basement. She did drugs and observed L.W. doing lines of white powder. She knew nothing of what was happening to her friend in the other part of the basement. She described L.W. as on the accused’s bed, which neither L.W. nor the accused testified to. H.P.’s music was too loud to allow her to hear what was going on. When L.W. came back and insisted that they leave, L.W. was “pretty high.”

[72] H.P. denied that L.W. claimed to have been raped. Rather, she had said that the accused was forcing stuff on her without her consent, so it was H.P. who used the word “rape” to describe it. At S.T.’s house, H.P. recalls L.W. saying that the accused covered her mouth so that she could not scream, and that he had tried to get her to snort coke from his penis, things claimed by neither L.W. nor S.T.

D.P.

[73] D.P. was born in 2003. It was plain to me that she was not comfortable as a witness and she provided few details of what she said happened to her.

[74] When D.P. was 16 years old in grade 9, she began to receive messages over Facebook Messenger from the “R.M.” account. That account was a Facebook friend. Her own D.P. account had a profile picture, and there were other pictures on her account.

[75] The messages started with “Hi” from the “R.M.” account. That account asked D.P. to suck his “thing” (penis) in exchange for weed. She never did it. The messages stopped in September 2019, after perhaps a month.

[76] Her mother talked to her about the messages she was getting. The police came over and wanted to talk to her about R.M.-N. D.P. had deleted the messages by then.

[77] In his evidence, the accused denied sending any messages to D.P. The accused denied ever communicating with D.P. for sex. D.P. was S.T.’s sister, and she bought weed from the accused. He denied knowing D.P.’s age. When it was suggested to him that D.P. looked like she was 15 years old, the accused answered, “I guess so,” implying to me “if you say so”.

[78] S.T.’s evidence corroborates that D.P. was receiving messages, though from the “B.P.” account. Although S.T. saw no messages proposing fellatio, she did note messages offering weed. She noticed communications around December 2019.

Other evidence concerning the identity of the operator of the “B.P.” account

[79] V.L., the sister of J.L. and daughter of B.O.P., was quite certain that the “B.P.” account belonged to the accused. The accused was an acquaintance of hers and a friend of her boyfriend, with whom the accused played video games. When V.L. was 16 or 17, she had been with the accused and had seen him log in to that account a couple of times when he was setting up to play on the game console that was connected to the television at her cousin’s house. At the time V.L. gave this evidence, the accused had not yet testified, and I found V.L.’s evidence sufficiently credible to consider on the similar fact application.

[80] For his part, in his trial evidence the accused denied logging in to his “B.P.” account when he was playing PS4 at V.L.’s boyfriend’s house, though he admitted that “B.P.” was his gaming account through Facebook. I believe V.L.’s evidence and reject that of the accused. V.L. was able to give a convincing account of how and where she observed the accused sign into the “B.P.” account, and the accused’s denial of this fact seemed half-hearted and unconvincing.

[81] V.L. saw messages from the “B.P.” account that were sent to her sister J.L., which will be discussed below. Some of those messages are in evidence as Tab 6 of Exhibit 1. Others are no longer extant. However, V.L. passed along all those messages to her mother, who had the opportunity to view the first set before they were erased, probably by J.L.

[82] B.O.P. and V.L. went to police June 23, 2019 after V.L. showed B.O.P. the first messages to J.L. that she had seen. The photos in Tab 6 of Exhibit 1 are of a preserved second set of messages sent to J.L.’s Facebook account from the “B.P.” account, according to V.L. V.L. passed them along to her mother, who brought them to police and photographs were taken from B.O.P.’s phone. Although the screen shows “B.”, and not “B.P.”, V.L. testified that this was just part of the account name. She was able to get the full name by clicking on the “i” at the top right of the screen, and it showed “B.P.” as the full account name. B.O.P. specifically remembered that the erased messages came from something like a “B.P.” account because she thought of “Blue’s Clues” when she saw it. J.L. had just turned 13 years old.

The statement of J.L.

[83] At the close of its case, the Crown applied to admit the out-of-court statement of J.L. for the truth of its contents. That statement is made up of the videotaped interview of J.L. by Detective Constable Elizabeth Makadebin of the Wikwemikong Tribal Police Service, and of J.L.’s written and signed statement. After argument, I indicated that I would admit the written statement and the portion of the video-recorded interview between the officer and J.L. up through the production of the written statement. These are the reasons for that decision and a discussion of the evidence of J.L.

V.L. discovers messages sent to her sister J.L.

[84] V.L. was born in 2001. J.L. is one of her younger sisters, born in 2006. They have a younger sister L. Their mother is B.O.P. The accused is a cousin of B.O.P. whom she has known from his childhood, although she did not spend time with his family. Ms. B.O.P. provided five photographs (Exh. 2) of her daughter J.L. from the spring (April/May: Exh. 2e) and summer (July/August: Exh. 2a-d) 2019. Those photos appear to show a girl of her stated age of 13 years.

[85] V.L. testified that she saw messages on two occasions on her youngest sister L.’s electronic tablet over Facebook Messenger from the “B.P.” account to her sister J.L.’s account. V.L. knew that J.L. was the one logged on to social media on the tablet at the time V.L. viewed the messages; L. did not have a Facebook account. B.O.P. confirmed that J.L. had had a Facebook account for about a year, and that her daughter L. did not have one, as she was not yet nine years old.

[86] V.L. testified that in the first messages, “B.P.” said that he was going to “fuck” J.L. He said that his mother was in the bathroom right then, but when she left, he would sneak J.L. in. These messages were in among some five pages of messages between the two. V.L. told her mother what she had seen and provided her mother with copies. B.O.P. testified that V.L. had originally provided her pictures of these earlier messages to J.L., but that J.L. must have gone onto her phone and deleted them. Ms. B.O.P. testified that the messages spoke of the accused sneaking J.L. in when his mother was in the shower.

[87] B.O.P. explained that she and V.L. went to police June 23, 2019 after V.L. showed her the first messages that had been sent to J.L. B.O.P. did not originally remember how long before giving that statement she had seen the messages to J.L., but she was able to reconstruct

that she saw them about two weeks before she saw a second set of messages that now form Exhibit 1, Tab 6. She saw that second set about a week after going to police. It appears that neither V.L. nor B.O.P. gave the earlier messages to police before they were erased.

[88] Tab 6 of Exhibit 1 consists of other messages on Facebook Messenger that V.L. found between “B.P.” and J.L., also on the tablet. When V.L. saw them, she “screen shotted” them, and sent them to her mother. B.O.P. was certain that the messages that are Tab 6 of Exhibit 1 had been sent to J.L., and not to her youngest daughter L. B.O.P.’s explanations are based on clues in the texts themselves. J.L. was the only one of her daughters with an account who was under 16 and who would have asked “am I the only one under 16?” in the Tab 6 conversation. Also, J.L. had a friend D., who is referred to in the Tab 6 messages as well. I am satisfied that the messages in Tab 6 of Exhibit 1 were sent to J.L. long before she made her statement to police. B.O.P. was concerned in the later messages that the accused had threatened to come kick their door down. She went back to police, and the police took pictures of those messages, which she identified as the messages in Exhibit 1 Tab 6.

[89] V.L. was able to remember that at the time she saw the B.P. messages, J.L. was not staying home at night. After their mother was asleep, J.L. would leave the house without permission and tell V.L. that she was going for a walk around the block. V.L. remembers J.L. sneaking out four or five times a week for a month or two. However, V.L. never saw J.L. together with the accused.

The interview of J.L.

[90] Detective Constable Makadebin has been an officer for 29 years. She took part in the investigation of this case, and conducted an interview of J.L., as J.L. chose the female officer to speak to. The defence conceded the voluntariness of J.L.’s statement.

[91] The interview was conducted September 27, 2019 at the police station. Det. Makadebin first spoke with J.L. and B.O.P. in the police station boardroom for about four minutes, and then brought J.L. into an interview room, where their meeting was recorded. The discussion in the boardroom was an information session, and not recorded. Ms. B.O.P. expressed her concerns, and the alleged threat to burn their home, and that the accused was on bail and lived across the street. J.L. said that she did not want her mother in the interview.

[92] In the interview room the officer noted that J.L. was very quiet. She did not appear to be under the influence of drugs or alcohol. There was no warning about the importance of telling the truth or any demand for a promise to tell the truth from J.L. The actions and interactions of Det. Makadebin and J.L. are captured on a videotape that has been entered as an exhibit. The officer acknowledged in cross-examination that it was better to get a child to tell her own story, rather than just giving yes or no answers.

[93] At the beginning of the recorded interview, introductory material came easily enough. J.L. knew R.M.-N. as a friend of her sister V.L. J.L. was 13 years old and V.L. 17. J.L. was born in 2006. V.L. used to tell J.L. “hanging out” stories about what was going on at “Ruby’s” house. R.M.-N. was also there when V.L. would visit with friends.

[94] J.L. had met R.M.-N. on a walk, and they communicated over text and Instagram. R.M.-N. first messaged her “hi” on Instagram in November or December, before Christmas 2018. Requests by the officer for further details were met with responses from J.L. that she didn’t know. She acknowledged that her sister Vanessa had seen messages to her from R.M.-N. but would not tell the officer anything about them. She said “no” when the officer asked her if she was in a relationship with R.M.-N., and “no” as to whether they were still friends.

[95] To the officer, J.L. seemed embarrassed to talk about details of what happened. J.L. said that she didn’t want to be there, and she was shy and withdrawn. When the officer asked if there was anything that J.L. thought she should know, J.L. whispered “I want to tell you, but I just can’t.” When asked if she was afraid of R.M.-N. and if he had threatened her, J.L. nodded in the affirmative. Ultimately, the officer suggested that J.L. write out a statement by herself, with which J.L. agreed.

[96] On an “interview form,” the officer entered data in the top portion and then wrote: “We are investigating incidents involving R.M.-N. and his relationships with females. What, if anything, can you tell me about this?” The officer then left the room while J.L. hand wrote her statement, which is in evidence and states, in its entirety:

“When I went there he would get me high and I would get numb and he would take me to his bed and do stuff and after a few weeks went by I didn’t wanna go there again and he thought I was with someone else and he said if I didn’t keep seeing him he would come to my house and burn it.”

[97] After completing the statement, J.L. collected the officer from outside. She said she wanted to leave. She did not want the officer to read the statement aloud. The officer asked follow-up questions, to many of which J.L. answered that she did not know or did not remember. It is clear to me that J.L. resorted to these answers as a means of refusing to answer. J.L. said that she did not remember when she last went to the accused’s home. She didn’t know if he had bothered her with messages since she last went there. She did not think that her mother or sisters had been in communication with R.M.-N.

[98] The officer persisted, and with specific questions, elicited the following information from J.L., who generally responded non-verbally, through head nods or shakes, agreeing or disagreeing with the questions posed by the officer.

a. What R.M.-N. did to her was sexual. There was sexual intercourse. J.L. did not consent. It happened more than once, though J.L. shrugged in answer to the officer’s question “how many times?” J.L. did not tell any friends about it and kept it to herself until her sister saw the texts. She indicated that he had made no threats other than what she had written down. She was not aware of R.M.-N. doing this to any of her friends.

b. J.L. responded with repeated head shakes to questions about whether she knew if the first time was before Christmas, if she was able to tell the officer what he did, even in writing. J.L. stated aloud that she wanted to leave, that she was in school. She did not know when she was last with R.M.-N. She did not want to see pictures the officer wanted to show her.

c. In a very touching postscript to the written portion of the statement, J.L. shook her head when asked if she wanted to sign the statement, but then explained to the officer that she did not know how to. The officer explained what a signature was, and J.L. wrote her name.

d. After consulting with her colleague Detective Sergeant Fox, the officer explained to J.L. what consent was. The officer asked J.L. to tell her verbally if she consented to having sex with R.M.-N., and J.L. said “no”. She answered “yes” that R.M.-N. “forced sex on her”, and “yeah” that it happened on his bed in his bedroom. Given the choice as to whether the bedroom was “upstairs” or “downstairs”, J.L. answered “upstairs”. J.L. answered “I don’t know” to whether anyone else was in the house, and shook her head in answer to “you didn’t see anybody?” When the officer pressed for more details about positioning during the acts in question, J.L. refused to answer or stated “I don’t know”.

e. J.L. answered “no” to “did he tear any of your clothing?” She answered “yes” to “did he take off your clothing?” Finally, J.L. just retreated into answering “I don’t know” to questions about how many times it happened and was it just the one time. She did not remember when the texting started. When the officer asked her whether there was anything else that she wanted to tell her, J.L. responded “No, I want to go to school now.” The interview was at an end.

J.L. refuses to testify

[99] B.O.P. testified that on May 25, 2021, police came to serve her and J.L. with subpoenas for this proceeding. J.L. refused to accept the subpoena and walked back into the house and cried for a few hours. She refused to return outside. B.O.P. could see that J.L. was upset. She hugged her daughter and told her that she should come to court. J.L. responded, “No. I’m not going.” Police tried the entire weekend prior to the beginning of the case to serve J.L., but ultimately just left the subpoena with B.O.P.

[100] J.L. refused to talk about testifying; “she just shuts down” and stays in her room crying. B.O.P. explained that emotionally J.L. was very distant and keeping to herself. She would act out, and continually leave home for days at a time. She got upset when court was mentioned, and B.O.P. worried that she would hurt herself if police brought her in; J.L. told B.O.P.’s partner two or three weeks previously that she would do so. J.L. would not let B.O.P. talk to her about court preparation with Crown Victim Witness personnel. J.L. just said, “I’m not doing it.” B.O.P. acknowledged that J.L. had never actually tried to hurt herself.

[101] Regarding police efforts to serve J.L. with her subpoena, counsel provided to the Court an agreed statement of facts. Police attempted to serve J.L. at her residence in Wiki on May 25, 2021. They could not serve her, and B.O.P. told them to return in an hour. When police returned, J.L. refused to go outside and talk. J.L. was aware of the reason for police attendance but was

unwilling to take the subpoena and slammed the door on the officer who was attempting to serve her. B.O.P. tried to get her daughter to go to the door but was unable to do so. The serving officer explained to B.O.P. that police would return.

[102] J.L. was not home on June 12 or 23, 2021, when police tried again. Finally, on June 29, 2021 police attempted to serve J.L. at her home and then at another person’s residence. Ultimately police returned to B.O.P.’s home and served her on J.L.’s behalf. B.O.P. told police that she would continue to make efforts to locate and speak to J.L.

The principled exception to the hearsay rule

[103] An out-of-court statement can satisfy the requirements for the principled exception to the hearsay rule and be admissible for its truth at a proceeding where it is both “reasonably necessary” to the determination of trial issues and sufficiently reliable to overcome the traditional hearsay dangers. As the applicant, the Crown bears the onus of proving necessity and reliability on the balance of probabilities: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 47.

[104] Necessity implies the unavailability of the evidence by non-hearsay means, such as by evidence given viva voce under oath or on affirmation at a proceeding. It can be permitted for such reasons as death, incapacity by illness or trauma, incompetence or non-compellability, refusal or inability to testify, or no recollection of the facts in question: R. v. B.(K.G.), 1993 116 (SCC), [1993] 1 S.C.R. 740, at paras. 105-110. The necessity criterion is based on society’s interest in getting at the truth, even in the absence of such a fundamental safeguard as contemporaneous cross-examination: Khelawon, at para. 49.

[105] With respect to the evidence of children, courts must acknowledge the unique problems faced by children who are called upon to testify about intimate facts. Where it is evident from the facts or circumstances of a case or evidence called by the prosecutor that the evidence of a child complainant cannot be available despite reasonable efforts to obtain it, the necessity criterion will be met. However, “fear or disinclination, without more, do not constitute necessity.”: R. v. F.(W.J.), 1999 667 (SCC), [1999] S.C.J. No. 61, at paras. 39-45. The criterion of necessity can be met if a child would likely be traumatized by the experience of testifying: R. v. Rockey, 1996 151 (SCC), [1996] 3 S.C.R. 829, at para. 28.

[106] The threshold reliability criterion looks to whether the statement is sufficiently reliable to be admissible. If a statement is admitted for its truth, it will be for a later point in the proceeding to determine whether the charge is made out beyond a reasonable doubt on the basis of that evidence along with the rest of the evidence in the case.

[107] Threshold reliability requires a showing that the statement is substantively reliable, that is, that there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy. Procedural reliability looks to whether there are adequate substitutes for testing the truth and accuracy of the out-of-court statement, despite the absence of such procedural safeguards as oath, affirmation, or cross-examination. Substantive reliability is concerned with whether the circumstance of the out-of-court statement and any corroborative

evidence provide a rational basis for rejecting alternative explanations for the statement other than the declarant’s truthfulness: R. v. Bradshaw, 2017 SCC 35, at paras. 27, 40.

Position of the accused

[108] On behalf of the accused Mr. Xynnis argues that the criterion of necessity has not been met. The Crown should have sought to have J.L. testify from outside the courtroom or produced expert evidence or sought a material witness warrant for J.L. so that the court could actually know whether she is willing or able to testify. Unless those efforts are made, any finding of necessity is purely speculative and J.L.’s fear or disinclination to testify is not enough. As to reliability, Mr. Xynnis points to the absence of any independent evidence that J.L. was ever seen with the accused at all. He argues that there are few circumstantial guarantees of trustworthiness in her statements, and that the corroboration hinges on a tenuous connection between the accused and the “B.P.” account that was communicating with J.L. at Tab 6 of Exhibit 1.

Discussion

[109] I conclude that the written statement of J.L. and the contents of the oral interview up until the production of that statement by J.L. are admissible pursuant to the principled exception to the hearsay rule. I am satisfied that it is reasonably necessary to receive that statement as evidence and that its threshold reliability is sufficient for admissibility.

[110] As to necessity, I take into account the following factors:

a. J.L. is a teenager, and from my view of her on the videotape and as described in the evidence of Detective Makadebin and B.O.P., she is clearly traumatized at the prospect of having to describe her experience with the accused at all, let alone to the court. She was already clearly unwilling to discuss it in any detail with Detective Makadebin;

b. There is compelling evidence of threats made to J.L. in her written statement and in a message from the “B.P.” account. Threats made by an older male to a young female in the context of charges of this sort can be expected to have the effect of limiting the complainant’s willingness to comply with demands for testimony;

c. J.L. was unwilling to accept the subpoena to attend court from police and would not speak with police who tried to serve her. It is also clear that J.L. evaded service by absenting herself from her mother’s home, where police were trying to serve her;

d. J.L.’s immediate reaction to police efforts to subpoena her was to withdraw, physically and emotionally, and to weep;

e. J.L.’s mother B.O.P. has been unable to convince her to attend court;

f. B.O.P. is concerned about J.L.’s safety, in that J.L. threatened to B.O.P.’s partner to commit suicide. Although the threat of suicide is hearsay, I am satisfied, based

on what I have seen and heard about J.L.’s reaction to efforts to get her to testify and provide a fuller statement, that it reflects J.L.’s state of mind, and represents a legitimate concern;

g. I am also satisfied that any effort to arrest J.L. on a material witness warrant will not produce evidence from J.L. but will only result in deeper trauma to her. If J.L. is forcibly brought to court against her will, I can only anticipate that her reaction would be to say nothing at all in answer to any questioning from the lawyers or myself. In that respect, a material witness warrant will not accomplish what counsel asserts – the ability at least to be cross-examined.

[111] I find that J.L. was reluctant to speak to the officer throughout the interview, and the prospect of saying aloud or even hearing her written statement recited aloud was a torment for her. It can only be the case that the experience of testifying, let alone being taken into custody by police and being forced to testify, would do nothing to encourage J.L. to offer a coherent or comprehensive account of her interactions with the accused. Whether J.L. were to testify in court, behind a screen, or by CCTV or by videolink, the result would be the same. There would be no evidence. Not J.L., but her embarrassment and fear, are holding her account hostage.

[112] As to reliability, I am satisfied that there are procedural and substantive circumstantial guarantees of trustworthiness in the videotaped interview leading up to the written statement and in the written statement as well:

a. At the time of the statement, J.L. was 13 years old. She was brought by her mother to speak to police in her community at the police station. The significance and location of the meeting cannot have been lost on the child;

b. J.L. understood that she was going to have to give a statement, and chose to speak to Det. Makadebin, a female officer instead of a male officer. The gender choice itself signals J.L.’s understanding that she was going to be asked to disclose very personal, sensitive information, and that she wanted to find a way to ease the burden of discussing such personal issues;

c. J.L. was told that her statement was going to be video- and audio-recorded and was acutely aware of that fact throughout her time with the officer. It is evident to me that the recording actually reduced J.L.’s comfort about speaking openly;

d. It was apparent to me from the start of the interview that J.L. was terrified at the prospect of having to speak aloud or give details about what she claims the accused did to her. That fear narrowed J.L.’s statement to bare essentials;

e. The discussion between J.L. and the officer and J.L.’s writing of her statement are video- and audio-recorded. The viewer can easily see J.L.’s reactions, and thereby deduce her emotional state as the interview progresses;

f. Up through the production of the written statement by J.L., the officer’s questions were mainly fact-finding and open-ended. Indeed, J.L. felt free to correct suggestions put to her by the officer;

g. J.L. indicated to the officer that she attended the police station because her sister V.L. had seen messages from the accused. The desire to go to police did not come from J.L., who was a reluctant witness and made it clear that she did not want to talk to police;

h. I find that J.L.’s reluctance to speak to police was caused by her embarrassment and threats made to her, and not by fear of being exposed as a liar. When asked by the officer if there was anything that she could help J.L. with, J.L. responded, in a whisper, that “I want to tell you, but I just can’t”. J.L. then clearly indicated her fear of the accused and that he has threatened her, a threat that gets described in the written statement;

i. The written statement has a benign and general preamble, yet one that indicated clearly to J.L. that she was participating in a police investigation. The question asked was open-ended;

j. J.L. wrote her statement with the officer out of the room, and was free to write down as much or as little as she felt comfortable writing;

k. Although J.L. was not willing to openly discuss details of what happened to the officer, she was willing to sign the statement, once the officer had explained what a signature was. In signing the statement in these circumstances, it cannot have been lost on J.L. that the statement was going to have an important place in the police investigation;

l. I find that J.L.’s embarrassment and fear of the accused limited what she was willing to reveal, so as to minimize that embarrassment and the accused’s reasons to be angry at her. If the statement was inaccurate, it was due to J.L.’s desires to spare herself embarrassment and to say less that inculpated the accused.

[113] Corroboration of material aspects of J.L.’s account comes from other evidence in the case and on the voir dire. I find the following to be corroborative of J.L.’s account:

a. I find that the accused was the controller of the “B.P.” account that sent messages to J.L., S.T., L.W., H.P. and V.L. all testified about their communications with the accused on that account or knowledge of the accused’s control of that account. That J.L.’s contacts were with the accused is corroborated;

b. V.L. corroborated that she knew the accused as a friendly acquaintance, corroborating J.L.’s account of her background with the accused;

c. The first messages described by V.L. include an indication by the accused that he intended to sneak J.L. into his home and “fuck” her. This clearly aligns with the

indications by J.L. in her statement that the accused would “do things” to her in his bed. While the word “fuck” may have variable meanings, depending on speaker and context, it certainly in the context V.L. described implies sexual conduct;

I find on the balance of probabilities that for threshold admissibility, the indications by 1) J.L. that the accused did things to her on his bed and 2) the “B.P.” message that the writer would sneak J.L. into his home and “fuck” her constitute a situation of striking similarity that is not the product of collusion or external influence: R. v. F.J.U., 1995 74 (SCC), [1995] 3 S.C.R. 764, at para. 47;

d. The contents of Tab 6 of Exhibit 1 offer many telling pieces of corroboration:

i. J.L. asks “Am I the first one under 16? Or is there more”. The accused’s answer is not a denial, but a demand to speak on video and abusive words for “alluse tryingto build a case on me”. The sexual connotation is evident;

ii. “B.P.” suggests that his interlocutor could be V.L., the name of J.L.’s sister. The “B.P.” messages are clearly intended for J.L.;

iii. “B.P.” states “you and her and her fuckedme to good sooo”, again implying sexual contact with J.L.;

iv. So too, “you and her are cop callers who fucked me”, implying sexual contact with J.L.;

v. The accused expresses concern that the “cops probably looking for me for really the 1 stupid deshion i ever made in my life”, implying his belief that his contact with J.L. involves criminality, which again suggests sexual interaction, in the context of this chat;

vi. The accused accuses J.L. of cheating on him with a boy J.L. identifies in the message conversation as D., a boy that B.O.P. in her evidence identifies as a friend of J.L.’s. In that context, the accused threatens to “boot fuck” her door in and mentions “lighting houseon fire”. This directly corroborates the threat which is the final aspect of J.L.’s written statement, made because as J.L. also wrote in her statement, “he thought I was with someone else”. The implication of sexual jealousy is almost inescapable.

[114] In all of the circumstances of the corroboration, I am satisfied as a matter of threshold admissibility that there are no other explanations for J.L.’s statement other than that the accused touched her sexually and threatened her. J.L.’s terror at disclosing details to the officer or even speaking details aloud tells against J.L.’s fabrication of the contents of her written statement. J.L.’s ability to describe to the officer how she met and interacted with the accused prior to the making of the written statement vouchsafe the accuracy of her comments before the written

statement. In the accused’s own messages to J.L., he confirms material aspects of her written statement, and even provides more serious details than she was willing to give: Bradshaw, at para. 57.

[115] However, I am not satisfied that J.L.’s answers to questions posed to her by the officer in the portion of the interview that took place upon the officer’s return to the room after J.L. had written her statement are admissible. The questions by the officer are highly focused and specific and when J.L. indicates an answer it is not possible to achieve any level of certainty that the answers reflect anything other than a desire to please the officer or speed the interview along by expressing agreement or inability to answer: F.J.U., at para. 49. Without the opportunity to cross-examine J.L., the defence would be severely prejudiced by the admission of the answers to such questions, and they have not been admitted into evidence.

[116] I am also satisfied that J.L.’s discussion with the officer concerning the making of a signature represents her true state of mind, and it will be admitted.

The accused’s testimony concerning J.L.

[117] When he testified in the defence case, the accused stated that he knew J.L. in person first. His text communications with J.L. started when he messaged her “Hey” on Instagram. They only talked for “like two weeks.” He could not remember why he messaged her, but he saw her name and photo as a “suggested person” to message and decided to message her. He knew she was V.L.’s sister and saw her around the community. He claimed not to have known she was under 16 when he messaged her. He did know that she was under 18, as he knew that V.L. was under 18, and that J.L. was younger. He “did not remember” if J.L. looked under 16. In cross-examination, the accused admitted that he was aware that she was a teenager.

[118] The accused admitted to hanging out with J.L. once, but denied giving her drugs, although he admitted in chief that he sold V.L. drugs for J.L. He explained that he watched a movie with J.L. alone in his basement at his mother’s house. He was smoking weed, and J.L. only had a cigarette. He denied setting their meeting up with a message that he would sneak her in or writing that he would “fuck” her. He “did not sleep with her.” There was no intercourse. Although the accused acknowledged that he was worried about sexual interactions with underage girls or speaking with girls under 16, he “did not care” about spending time alone with J.L. “If someone wants to come over, they can come over. I didn’t invite her over.”

[119] The accused acknowledged that Tab 6 of Exh. 1 was a text conversation between him and J.L. He messaged her in 2019. He did not remember why he had this text conversation with J.L. He claimed, however, that he was doing a lot of drugs at the time, and that affected his judgment in how he talked to her.

[120] According to the accused, he only communicated with J.L. when she reached out to him. He was not trying to reach out to her. However, there are no fewer than 30 indications in the conversation at Tab 6 that J.L. had “missed a video chat with B.”, meaning that the accused had tried to contact J.L. 30 times by video but that she did not answer. Those notices include indications that J.L. should “call back”. Sometimes J.L. responded “no”. The accused also wrote that she should “answer it” and “video me”. He acknowledged in cross-examination that it seemed like he was trying to talk to J.L., but that she did not want to talk to him.

[121] In this conversation J.L. asked him “how many” and “Am I the first one under 16?...Or is there more?” In chief, the accused said that this was about his previous charges and if he had been with others. In cross-examination, the accused claimed that he thought she was asking if she was the first one under 16 he had talked to.

[122] In the face of messages suggesting that J.L. “go to another spot washroom” to go on video with him, and “youcanthide me then bye imma gohidemyself”, the accused testified that he did not care if other people saw their messages.

[123] When asked by J.L. if she was the only one under 16, he responded, “youdeside im not confirming shit to noone … so fuck alluse for tryingto build a case on me.” The accused explained that he always thought people were trying to build cases against him, because of his previous charges. Therefore, he also thought that he could be speaking to V.L., as J.L. refused to go on video with him. The accused ultimately claimed not to know what the conversation was about, but he did acknowledge that, “it was about if she was the first one under 16,” whatever that meant. He agreed that it was a problem if, as J.L. wrote, “they gonna see I’m talking to u,” but he claimed not to know why it was a problem.

[124] Elsewhere in the messages, the accused calls his interlocutor “cop callers,” and testified in chief that he thought he was speaking to V.L. In cross-examination, the accused explained that he was drunk and angry when he wrote that. He thought that they had called the cops on him and charged him and were making up lies. “Who wouldn’t be angry about having the cops called?” He threatened in a message that if he saw the cops he was “walking over their andyou wontlike it… so yeah thanksfor ruiningmy life.” The accused testified that he just meant for them to leave him alone. He claimed that he would not have harmed them. He stated, “this all started after L.W. started some bullshit, so that’s what I was thinking about.”

[125] The accused wrote, “pull up fucking cop caller proveme wrong rightn now.. … lying as bitch likefuck off because your lifes midlifecrises don’t forceme theirto look like the bad person,” and “sorry my life ruined and cops probably looking for me for really the 1 stupid deshion I ever made in my life.” The accused denied that the one stupid decision involved sex with J.L., but nevertheless testified that he did not know what she said that he did. In cross-examination, the accused explained that he believed that he had been reported to police for talking to J.L., and that that was his “one stupid decision,” because of his earlier record. However, the accused agreed that, given that explanation, it made no sense that he continued to try to speak with J.L., except for his assertion that if he stopped talking to her, she would just keep messaging him.

[126] He wrote repeated threats to kick in J.L.’s door, but then wrote “k not kicking indoor lighting houseon fire” and explained that he meant he would not kick in the door and light the house on fire all over one stupid decision. He was “pissed off,” but he says that he would not have kicked in her door. He admitted to having threatened to light J.L.’s house on fire in a different conversation, explaining that “I used to be crazy two years ago.” He admitted that he

threatened to burn J.L.’s property, and that he was mad, “but I never would have done it.” He claimed to have said it to get her to stop talking to him, and he was angry with her. He did not think that it would scare her.

[127] The accused denied being in a romantic relationship with J.L. However, he acknowledged texts in Tab 6 by B. accusing J.L. of “cheating” and spoke of bringing condoms. The accused explained in chief that it was just something to say, and he did not remember what he was saying. He just used to say stuff on impulse. He testified that he was “obviously mad”, but could not remember why, and was saying stuff that he didn’t mean. He asked her “whyhiding dick your sleeping with” but testified that he really did not remember why he wrote that. He wrote to a 13-year-old “have fun fucking whats hisname” and testified that he had seen her walking with someone, but he did not know when. He could not say why he wrote her to “enjoy all the dick you goget,” as “it was so long ago I don’t remember.”

[128] In cross-examination, the accused denied that “cheating” meant being in a relationship with someone and having sex with someone else. Cheating meant “talking or flirting” with someone else when you are in a relationship with someone. Having acknowledged this, the accused nevertheless denied having been in a relationship with J.L., as “I never asked her out.” He admitted being angry at J.L. for cheating. He was “mad” about her walking with a boy, but he did not remember what he meant.

Law

Burden of proof

[129] The accused started this trial presumed to be innocent of the charges he is facing. The Crown has the burden of displacing that presumption with proof beyond a reasonable doubt that the accused committed the offences with which he is charged: R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, at para. 27.

Credibility and reliability

[130] Important in this case are issues of witness credibility and reliability. The allegations made by the complainants are mostly denied by the accused.

[131] Witness credibility should be assessed according to criteria appropriate to a witness’s mental development, understanding and ability to communicate. Evasiveness, the deliberate refusal or feigned inability to answer a question, is cause for concern about a witness’s credibility. Inconsistencies that involve something material about which an honest witness is unlikely to be mistaken, may demonstrate a carelessness with the truth about which the trier of fact should be concerned.

[132] Reliability is a separate issue from credibility. As noted by Watt, J.A. in R. v. C.(H.), 2009 ONCA 56, credibility focuses on a witness’s veracity, while reliability has to do with the witness’s accuracy. Accuracy involves the ability to observe, recall and recount events that are in issue. So, at para. 41: “Any witness whose evidence on an issue is not credible cannot give

reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence.”

The rule in W.(D.)

[133] In the circumstances of this case, the accused has provided exculpatory evidence. Accordingly, in assessing the evidence, I have instructed myself in accordance with the direction of the Supreme Court of Canada in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, in which the Court offered the following guidance on how to approach “credibility contests” (at 757-58):

In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in the context of the evidence as a whole. [emphasis in original, references omitted]

… A trial judge might well instruct the jury on the question of credibility along these lines:

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

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

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

The mental element of offences involving complainants under the age of 16 years

[134] For offences set out in s. 150.1(4) of the Criminal Code, including sexual assault, sexual interference, and invitation to sexual touching, the analysis concerning the issue of the complainant’s age now follows the rulings by the Ontario Court of Appeal in R. v. Carbone, 2020 ONCA 394, at paras. 129-131; and R. v. W.G., 2021 ONCA 578, at paras. 54-62. First, the trier of fact determines whether there is an air of reality to any defence that the accused believed the complainant was of age and took all reasonable steps to determine her age. If not, then that defence will not figure in the analysis. If yes, then the Crown must negate the defence beyond a reasonable doubt, or an acquittal will follow. The third step requires that the Crown prove that the accused knew the complainant was underage, or was wilfully blind that the complainant was underage, or was reckless as to her underage status.

Findings

[135] The accused’s evidence was highly unsatisfactory in many respects. Both in chief and in cross-examination he was unable to explain or remember significant aspects of text conversations with the complainants. In cross-examination, when suggestions were put to him or if he was asked to agree with propositions put by the Crown, the accused would often answer “I guess so.” When pressed, it appeared that the accused simply meant by this that he did not know, or “if you say so.” He gave the impression of not even trying to remember things.

[136] The accused’s inability to remember or explain significant aspects of his text conversations with the complainants cannot simply be attributed to the lapse of time, or excessive drug use, fatigue from traveling to court, or compulsive messaging. It is noteworthy that his memory seemed to fade particularly when requested to explain comments that were obviously sexually based or sexually suggestive. That inability or unwillingness to recall what was going on in messages that still do exist must also affect my view of the accused’s denials about sending sexually suggestive messages that no longer exist.

[137] The accused claimed memory or knowledge failure also when he was asked the ages of the complainants. In such a small community, when the accused expressed familiarity with the people who lived in Wiki, his ignorance of the age of the girls he so deliberately sought out and messaged is not believable. In my view, his claimed failures of knowledge and memory can only be explained by deliberate evasiveness in order to avoid answering questions that were bound to incriminate him. I reject any claims by the accused that he believed any of the underage complainants were of the age of consent.

[138] I found S.T.’s evidence to be highly credible and reliable. She acknowledged her strong addiction to drugs and her willingness to be with and do things with the accused to secure them. Her evidence was hardly challenged in cross-examination and was corroborated by the evidence of the accused. However, I reject the accused’s evidence that it was S.T. who made the offer to him of oral sex for weed. He was substantially older than S.T., and he it was who set the terms of S.T.’s access to the drugs she craved. In their relationship, the accused was the one who made sexual advances, and offered S.T. weed for oral sex.

[139] Counsel for the accused conceded that a conviction should be registered on Count 13 on the indictment, communicating to obtain for consideration the sexual services of a person under 18, S.T. I am satisfied beyond a reasonable doubt that the accused’s offer to his friend S.T., his friend whom he certainly knew to be under 18, of weed for fellatio, constitutes this offence, and a conviction will be registered.

[140] Concerning the allegation involving H.P. as complainant, I cannot accept the accused’s account about his dealings with H.P., and I reject it. On all the evidence of this case, the accused was H.P.’s drug supplier. She did not go over to his house just to fall asleep on his bed. Concerning the accused’s assertions of passivity in his relations with females, I reject his claim that “he just doesn’t care,” at least when it comes to teenaged females wandering into his basement.

[141] The accused’s denials of sexual interaction with H.P. are implausible. His text conversations with H.P. are highly sexualized and he was close enough to H.P. to openly discuss such things with her. I reject the accused’s denials about H.P. having seen his penis. I reject his denials that he did not know what he meant when he used the words “booty call” in his messages to H.P. It is obvious to me that he is desperately attempting to deny that anything sexual occurred with H.P. in the face of his sexually explicit messages to her and the plain inferences that must be drawn from them.

[142] That said, even having rejected the evidence of the accused, I am nevertheless not satisfied beyond a reasonable doubt on Counts 4, 5, and 6 on the Indictment, those Counts that concern H.P.

[143] H.P.’s unwillingness to discuss much of the contexts of her text conversation at Tab 3 of Exhibit 1 is matched only by the accused, and as in his case, detracts from her credibility. I conclude that H.P. knew far more about the text conversation in Tab 3 than she was willing to admit.

[144] H.P. was 16 years old when her solo incident with the accused took place. She was legally capable of consent to sexual activity. But her apparent evasiveness in testifying about the content and meaning of her text conversation with the accused, her inability to situate in time the two incidents involving the accused in which she took part, her agreeable willingness to offer her opinions in her texts to her alleged rapist about his sexual prowess in order to get drugs, and the minimal details that she could provide about what was happening to her friend L.W. at the hands of this same alleged rapist cause me grave concern about the reliability of H.P.’s evidence.

[145] While on all the evidence it appears that the accused likely engaged in sexual intercourse with H.P., on the charge of sexual assault in Count 4 I am left with a doubt about the essential element of H.P.’s consent and about whether she was actually unconscious as she testified at the time the accused began to engage with her in sexual intercourse. That doubt must figure in the charge of administering a stupefying drug to H.P. in Count 5 as well. I am confident that the accused gave H.P. drugs, as he did so often, but I am unable to find that it was for the ulterior purpose of permitting him to engage with her in sexual activity without her consent. There will accordingly be acquittals on Counts 4 and 5 on the indictment.

[146] Count 6 hinges on whether the accused’s message to H.P. that he would hit her if she ever came back constituted a threat to cause bodily harm. I am unable to find that such a threat necessarily, or even actually in the circumstances of this case, implied that H.P. would suffer bodily harm from the accused hitting her. Moreover, H.P. claims to have been made fearful by the threat, but to have gone to his home a week later, and to have brought her friend L.W. along, just because she wanted “smokes.” I do not accept that the threat, if it was one in law, inspired actual fear in H.P., or was even intended to cause fear or to intimidate. There will be an acquittal on Count 6 on the indictment.

[147] Concerning the counts in relation to L.W., I reject the accused’s account of his dealings with L.W. It does not leave me with a reasonable doubt. When this incident took place, he was at least 24 years old and a drug dealer. As in his account of H.P.’s solo entry into his home, I

cannot accept the passivity that he projects in his evidence. Right from the start, the unwanted girls followed him home, but he did not care. I reject the accused’s assertion that the meeting between him and these girls was coincidence, as he would have it. In his testimony, H.P. and L.W., the one 16, the other 15 years old, happen upon him and impose themselves into his home, use drugs that he provided to them, and then for no apparent reason set up a situation involving feigned sexual relations with him when he was incapacitated. His changing evidence about the source of L.W.’s poppers appears geared to minimizing his responsibility for making L.W. more compliant with the encouragement that I accept H.P. gave to L.W.

[148] The accused admitted that he had twice “hung” with L.W., and it is difficult to imagine that one of those times was after this one. Yet he claims to have believed that this child was 21 years old. His evidence describes L.W. as dressed like a hooker. He claims to remember what L.W. was wearing, even given his intoxication and incapacitation by drugs, in an apparent effort to make her seem older and sexually aggressive and feed into her inexplicable moaning as she stood by his bed. I reject as fiction the accused’s account and his claim not to know L.W.’s age.

[149] I do not accept H.P.’s account of what occurred on this occasion as almost deliberately vague about the L.W. incident while it was happening and, in some respects, completely at variance from L.W. and S.T.’s account about the words used by L.W. at S.T.’s house afterwards. As L.W. was never confronted with the words H.P. attributes to her, I do not have the benefit of L.W.’s comments on them. However, I am not troubled by any inconsistencies between H.P.’s and L.W.’s accounts. I find that H.P.’s evidence is generally unreliable concerning most of what she testified to about what happened to her friend L.W. I find that H.P. minimized her own part in contributing to what went on or was herself too intoxicated to remember the evening accurately. Her claims of following L.W. to the accused’s home, and her failure to mention encouraging L.W. to go to the accused at his bed very much call into question H.P.’s reliability. That H.P. claimed to see L.W. on her rapist’s bed but did nothing about it, and observed nothing more, is simply not believable.

[150] Instead I find that elements of the “B.P.” text conversation in fact confirm L.W.’s account. The accused admitted that he sent the Exhibit 1, Tab 4 messages to L.W. In the text conversation, the accused accuses L.W. of being “paid” and of being a “hoe”, vulgar parlance for a prostitute. In the accused’s testimony, he described L.W. as dressed like a “hooker”, someone who gets paid for sex.

[151] I accept L.W.’s evidence as intelligent, cohesive and straightforward. She was particularly compelling in her answers to challenging questions in cross-examination. I find as fact beyond a reasonable doubt, based on L.W.’s account of the evening, and as corroborated by S.T.’s evidence of L.W.’s emotional state shortly afterwards, that: the accused placed L.W.’s unwilling hand on his bare penis; the accused twice groped L.W.’s vaginal area over her clothing as she stood beside where he lay on his bed, and kissed her on the lips, try as she might to avoid it.

[152] To the accused, he had paid for his right to fondle the teenager by giving her the drugs that she wanted. While I do not need to address every stray aspect of the accused’s evidence, it

seems likely to me that the accused portrayed L.W. as moaning in his account to create a narrative of his exploitation by these two teenagers, a narrative that I completely reject.

[153] Regardless of L.W.’s age and the accused’s knowledge of it, I find beyond a reasonable doubt that L.W. clearly and verbally communicated her non-consent to the accused of his forcing her to touch his penis with her hand, and of his touchings of her vaginal area. So too she communicated her lack of consent to his kiss on her lips by swerving her head to avoid it.

[154] Even further, I find that at the time that he did these things to L.W., the accused either knew that L.W. was under 16 years old or knew that there was a risk that she could be under 16 and simply did not care about her age, which is recklessness. Wiki is a small community, and the accused claimed to know the people who live there. He had been H.P.’s drug dealer and communicated with her often. He must have observed that H.P. and L.W. were friends. He partied that evening with H.P. and L.W. and must have realized how young L.W. was. It is clear that although he knew she was young, he did not care what L.W.’s age was. She was a “hoe” who had been paid with drugs, and she had to earn her pay.

[155] I find beyond a reasonable doubt that the accused at least recklessly with respect to L.W. being under 16 invited L.W. to touch him on his penis (Count 9) and touched L.W. with his penis (Count 8). He sexually assaulted L.W. (Count 7) by twice touching her vaginal area over her clothing and by kissing her on the lips with an obviously sexual intent in a sexual context, all without her actual consent, and at least recklessly that she was under 16. Either knowledge or recklessness about L.W.’s age also suffices for the mens rea for all of these offences.

[156] Accordingly, the accused is convicted on Counts 7, 8, and 9 on the Indictment.

[157] As with H.P., the wording of the accused’s threat in Count 10, “im gonna find you fucking snitch” is not sufficiently clear, in my view, to constitute a threat to cause bodily harm. While wording such as this could suffice for the actus reus of a charge of criminal harassment by threatening conduct pursuant to s. 264(2)(d) of the Criminal Code, it does not satisfy the actus reus requirement for the charge of threatening bodily harm pursuant to s, 264.1(1)(a). Count 10 is dismissed.

[158] With respect to the charges involving D.P., I find that the accused’s memory of the messages that he sent to D.P. is intentionally or unintentionally poor. Whether that is to be attributed to substance abuse, the passage of time, lack of sleep, impulsive texting, or self-preservation, I reject the accused’s denial of sending the messages to D.P. as incredible and unreliable. That denial does not leave me with a reasonable doubt. I find on the evidence of D.P., as corroborated by S.W., that the accused communicated with D.P. by Facebook, and that she may have bought drugs from him that way. The accused was aware that D.P. was the younger sister of S.T., who had been providing him fellatio for weed.

[159] I find that there was no conscious or unconscious collusion between S.T. and her sister D.P. There is no indication that D.P. was aware of the arrangement that S.T. had with the accused. I accept D.P.’s evidence as credible and reliable. I accept her testimony of the contents of the message from the “R.M.” account offering weed in exchange for fellatio. I am also

satisfied, on the clear evidence of S.T., the accused’s former friend, that the accused was the operator of the “R.M.” account at this period of time, even in the absence of any similar fact evidence. I do not need to rely on the similar act evidence in my conclusions with respect to D.P. Moreover, the evidence of the accused has confirmed that identification, though I have rejected his denial of having sent the message.

[160] However, I am left with a doubt that D.P. was under the age of 16 when the accused texted her his offer. Her evidence twice was that she was 16 when she received the accused’s offer. Her later correction that she received messages from the accused for a short period of time leading up to and around her sixteenth birthday in 2019, is insufficient to establish beyond a reasonable doubt that the offer was made when she was still under 16 years old. Counts 14 and 15, internet luring and invitation to sexual touching, both involve the essential element that the complainant be under the age of 16 years and those counts must therefore be dismissed.

[161] On the other hand, I find that the accused knew D.P.’s age, and certainly knew her to be under 18 when he communicated to her his offer that she suck his penis for weed. D.P. had a profile picture on Facebook, and the “R.M.” profile was a Facebook friend. The accused was for a time a close friend of D.P.’s older sister S.T. The accused also testified that he was D.P.’s drug dealer and must have had the opportunity to communicate with her in person, at least when she was picking up her orders, and could observe her age. As in the case of S.T., the consideration that was offered for D.P.’s sexual services was weed. I find that all of the elements of s. 286.1(2), communicating with a person under the age of 18 for the purpose of obtaining her sexual services for consideration, are established beyond a reasonable doubt. There will be a conviction on Count 16.

[162] With respect to the allegations concerning J.L. I am satisfied that the first set of messages from B.P. that were testified about by V.L., and less accurately by B.O.P., were sent to J.L. from the “B.P.” account by the accused. I found V.L.’s evidence to be focused, clear, and straightforward, and I accept her evidence about what was in the first set of text messages to J.L., and where her evidence is contradicted by that of the accused, I reject his evidence.

[163] The accused confirmed J.L.’s details about how they met and began to interact. However, I reject most of the accused’s account and his denials of sexual activity with J.L. or of giving J.L. drugs or threatening her as evasive, implausible and self-serving. His evidence does not leave me with a reasonable doubt.

[164] The accused’s account of the text conversation at Tab 6 of Exhibit 1 is impossible to credit. A few examples will suffice. The accused claims that J.L. was constantly contacting him when Tab 6 shows that it is the accused that was frantic to communicate with the child. His attempts to deny his overweening jealousy of a boy that J.L. was walking with; his refusal to admit the obvious, that he considered himself in a relationship with this child, whom he accused of “cheating”; his ridiculous claim that his one bad decision was in merely talking to a girl under 16, all require me to reject his denials of improper conduct involving J.L.

[165] Nevertheless, the accused’s testimony that he watched a movie in his basement with this 13-year-old, the only occasion he spent time with her, and that he did drugs while she smoked, is

a startling admission of opportunity. The photographs of J.L. that her mother provided clearly show a child. Although the accused chose to be oblivious to issues of age, I find that the accused must have known and did know that J.L. was under 16 years old and that she was therefore incapable of consenting to sexual activity. I reject the accused’s denials of this obvious fact as self-serving and incredible, just as I again reject his claim that J.L. invited herself over to his house and he passively permitted her to stay. The accused was twice J.L.’s age.

[166] J.L.’s account mainly derives from her written statement, as supplemented by the text conversation that was first seen by V.L. J.L. knew the accused, and it is clear that in her statement J.L. attributed the conduct in question to the accused.

[167] Having rejected the accused’s denials of misconduct involving J.L., I accept that V.L. saw the earlier text conversation that she described in her evidence. I find that it contained a suggestion by B.P., the accused, that he sneak J.L. into his home and “fuck” her. That sexual intention certainly corroborates and fills out J.L.’s written account. Since the accused has testified, I do not need to rely on similar act evidence to confirm that the accused was the operator of the “B.P.” account that communicated with J.L.; there is ample corroboration of his control of that account and he has admitted using that account.

[168] It is significant in J.L.’s account that the accused got J.L. high. He took J.L. to his bed and did “stuff” to her when she got “numb”. I find the following things beyond a reasonable doubt:

a. the accused touched J.L. sexually, in an objectively sexual context, after giving her drugs: He did things to her on his bed after getting her high. His own stated intent was sexual; he was going to “fuck” her;

b. This happened on more than one occasion: “he would get me high… and he would take me to his bed”; “after a few weeks went by I didn’t want to go there again”;

c. the accused’s dealings with J.L. occurred within about a two-week period, as he testified and J.L. wrote, and certainly within the period charged in the indictment, likely at the time shortly before V.L. and B.O.P. went to police for the first time.

[169] However, what that sexual contact consisted of cannot be determined with much precision. I am satisfied beyond a reasonable doubt that the accused touched some part of J.L. directly or indirectly, and for a sexual purpose, but beyond that the evidence cannot take me. Accordingly, Count 1 alleging that J.L. was touched with the accused’s penis, although unfortunately probably accurate, must be dismissed.

[170] Nevertheless, my findings of fact suffice for convictions on Count 2 (sexual assault) and Count 12 (internet luring). I am satisfied beyond a reasonable doubt that the accused touched J.L. sexually on more than one occasion in some fashion knowing that she was under 16 and too young to consent. I am also satisfied beyond a reasonable doubt that the accused intended to facilitate the commission of the inset offence of sexual interference on J.L. by engaging in some form of sexual touching on her person. He did this when he communicated by Facebook with her in the messages (telecommunications) observed by V.L. and communicated his intention to sneak J.L. into his home and “fuck” her. That is internet luring.

[171] I am also satisfied that the accused, as he admitted, threatened to burn down J.L.’s dwelling house. While the accused denied that he intended the threat to be taken seriously, it figures in a series of repeated threats in Tab 6 of Exhibit 1 made when the accused was expressing jealousy over J.L.’s apparent dalliance with another male. I reject the accused’s denial of his intent and find that the threat was made intentionally to scare or intimidate J.L. to get her to “keep seeing him”, as J.L. wrote in her statement. There will be a conviction on Count 3.

Postscript: Similar act

[172] Here follow my reasons on the admissibility of similar act evidence in the circumstances of this case. Although in the result I did not need to rely on any similar act evidence to reach my conclusions, I include here my reasons for my mid-trial rulings.

[173] I have permitted the Crown to use cross-count evidence as “similar act” to assist in proving the identity of the user of the “R.M.” and “B.P.” accounts. The issue of identification of the author of text messages does not readily lend itself to concerns about collusion, where it has not been suggested that the messages are forgeries. It is V.L. who saw the unpreserved messages involving “B.P.”’s desire to “fuck” J.L. There is no evidence that V.L. spoke with any other complainant about these events, and J.L. does not describe what happened to her as “fucking,” as that word is commonly understood, in any admitted portion of her out-of-court utterances. L.W. heard from S.T. and H.P. that the accused was the person behind the “B.P.” account, but the texts to her exist, and what L.W. learned from the other two does not affect the analysis.

[174] I have also permitted the Crown to use off-count proven prior facts involving S.C. and D.W. to assist in making determinations about the actus reus of the charges involving D.P. I find no realistic possibility of collusion among D.P. and the other two girls. I intended to include S.T. in my ruling on similar fact for the purpose of actus reus with respect to the charges involving D.P. but did not do so. Out of fairness to the accused, who was entitled to know my ruling before presenting a case, I did not include her in the mix.

The law

[175] Evidence of extrinsic misconduct on the part of an accused that shows that he is a person of “bad character”, and therefore likely to have committed the offence charged, is presumptively inadmissible since it encourages prejudicial reasoning on the part of the trier of fact. However, evidence that is relevant and material, but which incidentally tends to show that an accused is a person of bad character, can be admissible so long as its probative value exceeds its prejudicial effect: R. v. Arp, 1998 769 (SCC), [1998] S.C.J. No. 82, at para. 41.

[176] “Prejudice” in this context does not mean that the evidence will increase the chance of conviction; rather, the concern is its improper or unfair use by the trier of fact: R. v. L.B., 1997 3187 (ON CA), [1997] O.J. No. 3042 (C.A.), at para. 22. Such improper use can include aspects of moral or reasoning prejudice, such as 1) a determination by the jury that the evidence proves the accused to be a “bad man” and likely guilty of the offence charged; 2) the jury’s determination that the accused

deserves punishment for the extrinsic conduct through conviction for the charged offence; and 3) a finding of guilt on the charged offence because of confusion as a result of the introduction of the evidence of extrinsic misconduct: R. v. Handy, 2002 SCC 56, at paras. 31, 72, 100, 145; Shearing, 2002 SCC 58, [2002] S.C.J. No. 59, at para. 64. The risks from prejudicial reasoning are not a significant concern in a judge-alone trial: R. v. J.H., 2018 ONCA 245, [2018] O.J. No. 1354 (C.A.), at paras. 23-24.

[177] As is the case with respect to all evidence of an accused’s bad character, the concern is to ensure that what gets put before the trier of fact has probative value beyond the mere prejudicial force of the accused’s disposition. In Handy, the Supreme Court of Canada offered guidance for determining the admissibility of similar act evidence. The controlling issue is whether the probative value of the evidence in relation to a particular issue outweighs its prejudicial effect. If that is proven on the balance of probabilities, then the evidence can be admitted: Handy, at paras. 55, 101.

[178] Similar act evidence proper takes its force from the degree of distinctness or uniqueness of the alleged similarities. The greater the similarity of the evidence, the greater the objective improbability of coincidence. The inferences to be drawn from the similar act evidence must accord with common sense, intuitive notions of probability, and the unlikelihood of coincidence, and be sufficiently cogent as to outweigh the incidental prejudice that derives from disposition reasoning: Handy, at para. 42. For proof of identification, a high degree of distinctiveness with respect to the manner of the commission of the offence at issue is required: Handy, at para. 77.

[179] Collusion between witnesses can subvert the value of similar act evidence, and where there exists an air of reality to the possibility of collusion, the Crown has a duty to disprove it: Handy, at paras. 110-112.

[180] At paras. 81-84 of Handy, the Supreme Court clarified that the probative value of proposed similar act evidence is determined by considering the cogency of the evidence in relation to the inferences sought by the prosecution, as well as the strength of the proof of the similar acts themselves. A non-exhaustive list of factors to consider for similarities with respect to the proposed similar act evidence and the charged conduct can include:

a. proximity in time of the similar acts;

b. the extent to which the acts are similar in detail to the charged conduct;

c. the number of occurrences of the similar acts;

d. circumstances surrounding or relating to the similar acts;

e. any distinctive features unifying the incidents;

f. intervening events; and

g. any other factor which would tend to support or rebut the underlying unity of the similar acts.

[181] The analysis is not to be treated as a balance sheet, where similarities are set against dissimilarities, and similar features that differ in points of detail are to be treated as dissimilarities: Shearing, at para. 60. In cases involving allegations of sexual misconduct, it is often the circumstances surrounding the sexual conduct that are more telling than the sexual conduct itself: R. v. S.C., 2018 ONCA 454, at para 23.; L.B., at para. 37.

[182] Evidence on different counts on an Indictment may be considered as similar act evidence with respect to other counts on the same Indictment, provided that cogency is established between the counts with respect to a relevant issue: R. v. Guay, 1978 148 (SCC), [1979] 1 S.C.R. 18; R. v. Hatton 1978 2398 (ON CA), [1978] O.J. No. 460 (C.A.), at paras. 55-63; J.H., at para. 21. In cases involving similar act considerations between counts, the risk of prejudicial reasoning is reduced, as the evidence of each count is already before the court: J.H., at paras. 22-24.

Cross-count similar fact

[183] I have permitted the Crown to use evidence cross-count on the indictment among the charges involving the several complainants in order to assist in proving the identity of the author of text messages sent to D.P. and J.L. from the “R.M.” and “B.P.” social network accounts. The relevant facts to which my ruling applies have been summarized above. I keep in mind that at the time of my similar fact rulings, the accused had not yet testified, and I have excluded any consideration of his evidence from my determinations and these after-the-fact reasons.

[184] A central issue is the identity of the person who sent messages to D.P. and J.L. I have found that the evidence in this case may be used cross-count to establish the identity of the person who sent messages to D.P. offering marijuana for oral sex; and to J.L. the deleted message testified to by V.L. and the messages preserved as Tab 6 of Exhibit 1.

[185] To ground proof of identity, I first must find sufficient evidence linking the accused to accounts that sent messages to D.P. and J.L. There is firm evidence in this case from S.T. that the accused was the controlling operator behind the “R.M.” text account from 2016 on. Her evidence and that of H.P. and V.L. also confirm the accused as the operator behind the “B.P.” account during the period from at least 2018 to December 2019. The circumstances of the case also help me to conclude that the accused was also behind the “B.P.” messages to L.W.

[186] I find that the evidence among the various counts on the indictment describes a clear and distinctive pattern that includes the evidence of S.T., H.P., L.W., and V.L. and extends it towards proving that the same writer wrote the texts that are in evidence in this case to D.P. and J.L. I find that there is a high degree of distinctiveness among the conduct given by the several witnesses that can assist in proving that the accused was the user behind the “R.M.” and “B.P.” accounts in this case.

[187] In particular, I note the following cross-count similarities regarding the various messages that are in evidence:

a. The events at issue occurred within a narrow period of time between 2016 and 2019;

b. D.P. attributes the messages that she received to the “R.M.” account, which was a Facebook friend. The account name is also similar to that of the accused;

c. The messages at Tab 6 of Exhibit 1, which have been identified as having been sent to J.L., and the messages described by V.L., came from the “B.P.” account;

d. Both accounts were used to send messages to Indigenous teenaged girls in the Wikwemikong community;

e. Both accounts messaged for the purpose of sexualized conversation with local teenaged girls, or conversation about drugs with a teenaged girl who became sexually involved with the accused. In particular, the “R.M.” account was the account: S.T. used with the accused at the time that she provided him fellatio for weed; and that proposed weed for fellatio to D.P. It was the “B.P.” account that: spoke to H.P. about free weed, smokes and drinks to girls “when she askes”; proposed sneaking J.L. into its author’s home so that the author could “fuck” the teen; discussed “bj’s” and “booty calls” with H.P.; and called L.W. a “hoe”, among other things;

f. Drugs were offered to secure what the text author and the accused wanted from his correspondent: answers to his questions from H.P.; oral sex from S.T.; oral sex from D.P., and from the statement of J.L., sexual touching;

g. The evidence of S.T. and messages from both accounts express a strong preference for fellatio from teenaged girls. That is the request made of D.P., and it is especially true of the messages with H.P., where the author goes on at some length about the significance he attaches to “bj’s”;

h. The evidence of S.T. and of both accounts shows that the accounts were used to set up meetings with teenaged girls at the accused’s residence at least to share drugs. S.T. arranged her drug transaction pick-ups at the accused’s house by the “R.M.” account. H.P. speaks of two encounters at the accused’s home where drugs were provided by the accused to teenaged girls; she communicated with the “B.P.” account. “B.P.” discussed sneaking J.L. into his home, where J.L.’s statement explained that “he would get me high”;

i. The text writer expressed strong animus against those he thought were reporting him to police in the cases of H.P., L.W., and J.L. (or, as the text writer suggests, possibly J.L.’s sister and mother);

j. The “B.P.” account was used to make threats to three of the girls in the case when he felt that they crossed him: H.P., that he would hit her; L.W., that “im gonna find you” and J.L., that he would kick in her door and burn her house.

The off-indictment similar fact

[188] I have determined that the off-indictment evidence of D.W. and S.C. may be used to assist in determining that the accused indeed sent a message to D.P. offering her weed if she would suck his penis. Concerning the off-indictment facts, they are contained in Exhibit “D” on the voir dire, as facts supporting the accused’s pleas of guilt to earlier charges.

[189] The facts can be briefly summarized. On September 18, 2014, the accused pleaded guilty to a charge of sexual touching and counts of failing to comply with disposition imposed after a prior finding of guilt, either by communicating with girls under 16 or failing to keep the peace. The facts in relation to S.C. and D.W. include the following:

a. S.C. was 15 years old between July and September 2013. She had been in contact with the accused on Facebook during that period of time. In one conversation he told her that he would give her a free gram of marijuana if she would “suck his dick”. She did give him money to buy alcohol for her and he told her that “if you don’t give me a blow job, I won’t give you your stuff”. She told him to keep the stuff. The accused continued to contact her even though she told him to “fuck off and stop it”;

b. In early October 2013, the 19-year-old accused contacted D.W., who was 15. The accused talked to her on Facebook, offering “free stuff” for “blowjobs”. He asked her, “didn’t your boyfriend almost cheat on you? Don’t you want to ride a different ‘dick’?”

[190] In particular, I note the following similarities that permit me to find that what D.P. describes in her evidence aligns beyond the possibility of coincidence with the proven claims of D.W. and S.C.:

a. Contact was made with D.P. by Facebook, as in the cases of S.C. and D.W.;

b. In the circumstances of the cases involving D.P. and S.C., they were sent messages offering marijuana if they would suck the accused’s penis. D.W. was offered “free stuff” for oral sex; in the same context, the accused offered D.W. his “dick” to “ride”. I find that the “free stuff” on offer was likely marijuana;

c. All three girls: D.P., S.C., and D.W., were 15-year-old Indigenous girls living in small Indigenous communities: D.P. in Wikwemikong, and the other girls in Atikameksheng Anishnawbek. There is a noteworthy age preference shown by the sender of the texts in all three cases;

d. The incidents involving the on-indictment and off-indictment use of messaging went from 2013 to 2019 (D.P.). Although the incidents are separated by six years in time, the conduct remains remarkably similar.

[191] I find that these similarities can assist me in determining whether the accused did indeed send D.P. the messages that she claimed, and I also find that there was no realistic possibility of collusion among D.P. and the other two girls that would detract from the force of the similarities.

[192] When he testified, after my ruling, the accused denied messaging girls under 16 about drugs in exchange for sex. When he was confronted with his admission of such conduct upon the Crown reading in facts with respect to S.C. (“one gram of weed to suck his dick”), the accused answered that “it was a long time ago; I barely remember.” He denied remembering at all messaging his cousin D.W. about “bj for free stuff”. The accused did not deny that the facts involving those two girls were very serious (“I guess so”) but he claimed not to remember the details at all. I need offer no further comment on this evidence by the accused.

Conclusions

[193] There will be convictions on counts 2, 3, 7, 8, 9, 12, 13, and 16 on the indictment. Count 11 has already been withdrawn at the request of the Crown. The remaining counts are dismissed.

A.D. KURKE J.

Released: September 29, 2021

COURT FILE NO.: CR20-0017

DATE: 2021-09-29

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

R. M.-N.

Reasons for Judgment

A.D. KURKE J.

Released: September 29, 2021