COURT FILE NO.: CR-18-00001281-0000

DATE: 2022 11 21

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

Gregory Hendry for the Crown

• and -

SCOTT MCFARLANE

Carolyne Kerr for the Accused

HEARD: April 4, 5, 6, 7, 8, 11, 12, 13, 14, 19, 20, 21, 22, August 22, 2022

REASONS FOR JUDGMENT

F. DAWSON J.

[1] Scott McFarlane is charged with one count of sexual interference, contrary to s. 151 of the Criminal Code and two “luring” offences, contrary to s. 171.1(1)(b) and s. 172.1(1)(b) of the Criminal Code. The sexual interference offence is charged between June 14, 2014 and October 31, 2017. It is alleged that while coaching the young female complainant, K.J., who was a high- performance gymnast, he repeatedly touched her buttocks in a manner that was not necessary while coaching or spotting her. The two luring charges arise from an allegation that, after his coaching relationship with the complainant ended, the accused communicated with K.J. by electronic means and sent her pictures of his penis.

[2] The trial proceeded by judge alone. Both the complainant and the accused testified for multiple days. Counsel examined and cross-examined on details of what transpired over a period of almost six years. Fourteen witnesses were called in total.

[3] When the complainant testified at trial she was 19 years old. She was testifying about events which occurred when she was between the ages of 11 and 15. The accused was 32 years old when he testified at trial.

[4] Credibility is the central issue in this case. The accused denies that he touched K.J.’s buttocks for a sexual purpose or that he transmitted images of his penis to her. No one else saw the touching described by the complainant and the photos she alleges were sent to her disappeared from Snapchat and were not recovered or produced in evidence. Counsel on each side endeavoured to develop evidence of surrounding circumstances which supported their position or detracted from their opponent’s position. However, the only direct evidence comes from the complainant and the accused.

[5] I will first review the narratives as they emerged from the testimony of the complainant and the accused while identifying some issues or points of controversy. I will make some minor findings of fact as I do so. Then I will turn to the evidence of the other witnesses and make findings concerning the credibility and reliability of their evidence. Once those controversies are resolved I will assess the credibility and reliability of the evidence of K.J. and the accused and set out my reasoning and conclusions. I will add more detail and deal with alleged inconsistencies in the complainant’s evidence during my analysis.

Onus and Burden of Proof

[6] The onus is upon the Crown to prove each of the essential elements of the offences charged beyond a reasonable doubt. In a case such as this one, where there are competing versions of the key events, I have instructed myself in accordance with R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, at p. 757, as explained and expanded upon in cases such as R. v. D.(B.), 2011 ONCA 51, at para. 114; R. v. Smits, 2012 ONCA 524, at para. 37 and R. v. Brown, 2018 ONCA 481, at paras. 67-69. It is not a matter of simply choosing between the competing versions. The issue is whether, having considered all the evidence together, I am satisfied of the guilt of the accused beyond a reasonable doubt. In making that determination I recognize that evidence favouring the defence, even if not accepted, may raise a reasonable doubt. Equally, I understand that even if the accused’s evidence or other evidence favouring the accused’s position is rejected, there can be no conviction unless I am satisfied based on the evidence which I do accept that the guilt of the accused has been established beyond a reasonable doubt.

[7] It is only after I have considered all the evidence together and made findings of fact that I am to ask myself whether I am satisfied of the guilt of the accused beyond a reasonable doubt. In making my findings of fact I may accept some, none or all of the evidence of any witness.

[8] The correct approach to the onus and burden of proof as set out in the authorities cited above does not require that I analyze the evidence or make my findings of fact or credibility in any particular order. What is required is that, after considering all the evidence together, the requirement for proof beyond a reasonable doubt remains the central consideration: R. v. Vuradin, 2013 SCC 38, at para. 21.

Chronological Overview and The Issues Regarding Count 1

[9] The accused was hired as a coach at Manjak’s Gymnastics in Mississauga on July 1, 2013. He was a level two coach with prior coaching experience and a background as a competitive gymnast. While at Manjak’s he became a level three coach and was working towards his level four, the highest level.

[10] The accused was 23 years old when he started at Manjak’s. K.J.’s parents had recently moved her training to Manjak’s Gymnastics. In approximately September 2013 the accused became one of K.J.’s coaches. Kelly Manjak, who opened the gym the previous year and was well known for coaching a Canadian gymnast to an Olympic gold medal, described the accused as a capable coach who was eager to learn more. Mr. Manjak described the complainant, already a competitor, as a very talented athlete who was highly motivated and about to become eligible for the national gymnastics team. K.J. was 11 years old. Within a short time, the accused became K.J.’s primary coach, although other coaches were also involved in K.J.’s training.

[11] The complainant trained in a group of about eight high-performance female athletes. She was at the elite level. At times she was ranked in the top three in the country in her age group. She and her group trained in the gym six days a week spending 27 hours or more at the gym each week. She attended a special school program designed to accommodate her training schedule.

[12] Manjak’s Gymnastics is a large facility with 20,000 square feet of gymnasium space and 5,000 square feet of office and viewing space. It is described as a busy place. Videos placed in evidence demonstrate that. In addition to various age groups of elite and high-performance athletes, there are also lower-level competitive groups training as well as recreational programs operating. Due to the size of the gym a closed-circuit television system has been installed. Cameras near the gymnastics equipment and floor exercise areas broadcast to monitors installed in the viewing areas. This allows parents and others to watch what is taking place throughout the gymnastics area. Kelly Manjak explained that the cameras also record. Recordings are kept for 30 days. He and his business partners have an app which allows them to view any part of the gym from anywhere at any time. All coaches and employees are aware of the camera system.

[13] K.J. testified that everyone in her group was talented and they all learned a lot from the accused when he started coaching them. She said that as she knew more skills than the others the accused coached her more and they became close quickly. He would spot her more and let the others work on their own. She said the accused treated her with favouritism almost from the start.

[14] K.J. testified that she and the accused began texting regularly. They used Facebook to communicate a few times. She said one day her mother saw a text conversation and said it seemed weird. When she told the accused, she said he suggested they use Snapchat. Messages sent via the Snapchat app disappear after a period set by the users.

[15] K.J. testified that the accused was like a best friend. She was in grade 6 and 7. She did not think anything of it. By the one-year point, it was more like a relationship. She said she and the accused would message all day, including, saying such things as, “I love you, goodnight”. She said they also got closer in the gym. If she forgot to hug the accused at the gym he would get annoyed.

[16] There is conflicting evidence about whether Manjak’s Gymnastics had a policy at that time that coaches were not to communicate with their athletes on social media, about the extent to which any such policy was adhered to and whether the accused was advised not to use social media with the athletes he coached.

[17] K.J. testified that six months to one year after she and the accused began using Snapchat he became “more handsy” at the gym. She said he started to touch her buttocks when spotting her. While accidental touching of private areas of the body happens in gymnastics during spotting, coaches are trained to acknowledge the touching and to apologize. K.J. said the accused did not do that when he touched her butt. The touching was described as the accused holding his hand on her buttocks for two to five seconds without grabbing or squeezing. The touching would occur often when she was being coached or spotted, for example on the uneven bars or during hand stands on the equipment. The touching was limited to the buttocks. K.J. does not suggest that the accused ever touched her breasts or vaginal areas.

[18] Coaches were involved stretching and massaging athletes at the end of a training session. K.J. had problems with her feet and lower legs. During stretching and massage the accused would sometimes pull on the complainant’s toes. As a result of other evidence, an issue arises as to whether there was any sexual connotation to the accused touching K.J.’s feet or pulling on her toes, an activity the two jokingly called “diswans”, in relation to which toes would be pulled.

[19] Throughout her evidence K.J. described a relationship with the accused that was unusually close. She testified that it was not until August 2016, when she attended a training camp with the accused in Kelowna, British Colombia that she started to develop an awareness that their relationship was different than that between other athletes and their coaches.

[20] K.J. said that if she did not respond to the accused’s messages he would stand off at the gym and not coach her as much. If they had a small argument, she would have to apologize to fix the relationship. Sometimes at the end of training, if the other girls were not around, the accused would tell her he loved her. She did not think anything of it. Once the touching of her buttocks started, she said she was confused.

[21] The Kelowna event in August 2016 was primarily for coaches. The accused testified that he was honoured to be invited by Gymnastics British Columbia to participate as part of the faculty. He was able to bring two athletes with him, but they had to be qualified at the high-performance level. At that time only the complainant and a girl named K.L. were so qualified and K.L. was not available. K.J. accompanied the accused to Kelowna with her parents’ approval.

[22] In Kelowna K.J. shared a room with other female athletes. The accused roomed with another coach. The accused was there to instruct on coaching on the uneven bars. There were social activities which included a trip to a beach, a dinner, and use of the swimming pool and hot tub at the hotel.

[23] K.J. testified that while in Kelowna she noticed that she was the only athlete who had a snapchatting relationship with her coach. She was the only athlete invited into the hot tub by her coach. None of the other athletes and coaches were taking pictures together at the beach, as she and the accused were. The accused tickled her in the swimming pool. Other coaches did not do that. K.J. testified that at the hotel one evening before she went up to her room the accused hugged her while placing his hands on her buttocks. She testified that it did not feel like a normal hug. At that time K.J. was 14 years old. The accused was 26.

[24] K.J. testified that after Kelowna she felt things were “off” and that her relationship with the accused was “too close”. She began to pull away from the accused and expressed interest in having other coaches more involved with her training. She said the accused became frustrated. She continued to work with him, but they were not in contact as much.

[25] From sometime in the fall of 2016 until sometime around April 2017 K.J. was unable to compete or participate in training due to an injury. However, she continued to attend the gym for conditioning and to do what she could. She was receiving medical treatment and physiotherapy with prescribed exercises. Her motivation was waning.

[26] As K.J. got back to full training in the spring of 2017 she arranged to have Kelsey Arnold take over as her coach on balance beam. This increased tensions between K.J. and the accused. The accused was hurt and disappointed.

[27] K.J.’s motivation remained in question. At some point, K.J.’s mother attended a meeting at the gym and expressed concern about her daughter’s training and commitment. She said that if things did not improve, the family might pull K.J. from the gym or the sport.

[28] There is limited confirmatory evidence about the Snapchat messaging relationship the complainant testified she had with the accused, although there is some. As mentioned, Snapchat messages usually disappear within seconds of being sent. However, either party to a message can save it or take a screen shot of it. If that is done the app notifies the other party. If the message is saved it remains visible to both parties and is marked along the side with a thick blue line. If a screen shot is taken the other party receives a message that a screen shot has been taken.

[29] K.J. preserved some of the Snapchat messages by photographing them with another device. The accused was not aware that she had done that. Four images of the preserved messages form part of Exhibit 1. They became a central feature of the trial. There is nothing of a sexual nature in the preserved messages. Parts of the messages, however, suggest an unusually close relationship between the accused and the complainant.

[30] In his testimony the accused acknowledged that some of the language in the preserved messages is inappropriate for a coach to be using with an athlete. He explained the circumstances that led to his use of such language, while maintaining that some of the context needed to properly understand the messaged conversations is missing.

[31] An issue arises regarding whether the imaged messages contain all that was said during the exchange of those messages. There is evidence to support a finding that portions of the exchange were saved and portions “unsaved” before the messages were photographed, possibly resulting in the Snapchat app bringing the saved portions together. Whether the complainant’s selective saving was by design or not, the accused submits that context which could assist in evaluating the intent of his messages is missing.

[32] Returning to the timeline, in September 2017 the complainant’s mother found the imaged messages. She took them to Manjak’s Gymnasium. As a result of the messages, and some other issues I have not been made fully aware of, the accused was called to a meeting on September 22, 2017. He was sent home. He was fired on September 26, 2017.

[33] An investigation was launched by Gymnastics Ontario. The details of that investigation are not in evidence. It is a matter I have not considered except to help understand the relevant narrative.

[34] There is some evidence to suggest that the accused’s firing and the subsequent investigation were also related to the accused’s interaction with S.G., a female athlete over the age of 18 who was the accused’s girlfriend through parts of 2015 and 2016. I mention this only to reflect that there seem to have been a few factors which led to the accused’s firing and the Gymnastics Ontario investigation, and because the accused testified about his relationship with S.G. as part of his defence.

[35] In October 2017 the accused obtained employment at a gymnastics centre in Oakville. However, the Gymnastics Ontario investigation led to a three- month suspension, ending sometime in January 2018. The accused decided to give up coaching and moved back to his parents’ home in Ottawa. Sometime prior to Christmas 2017 the accused had completed the move and had a new job outside the field of gymnastics.

[36] The accused testified that he never deliberately touched the complainant on the buttocks, or anywhere else, for a sexual purpose. In terms of touching the complainant’s feet or pulling on her toes, he described that as part of the stretching, massage and physiotherapy regimen that was prescribed and appropriate, given the problems the complainant had with her legs and feet. He explained that the term “diswans” developed as a light-hearted reference to which leg, foot or toes the complainant wanted him to work on at the end of a training session. He said he had no romantic or sexual interest in the complainant or her feet.

[37] The accused said K.J. was extremely talented and learned quickly. He described how he became close to K.J.’s family. K.J. had an older sibling on a full athletic scholarship in the United States and K.J.’s parents were interested in K.J. achieving high goals as a competitive gymnast. The accused described working with the family to set goals and make training plans. He was invited to dinners, barbeques and to watch the Grey Cup with the family. He received gifts from them. He described how K.J.’s family became a support for him in many ways after he moved to Mississauga.

[38] The accused also explained that to reach certification as a level four coach he had to demonstrate his role in developing an athlete to the level of national or international competition. His own goals included coaching in international competition and at the Olympics. He saw K.J. as the athlete most likely to help him achieve these goals.

[39] The accused explained that he was coaching the youngest group of female athletes at the high-performance and elite level. They were called the “Babies”, and eventually “Scott’s Babies.” The name stuck as the girls got older. Other groups in the gym had similar names, such as the “Goats” for the oldest group. Other evidence supports this testimony.

[40] The accused acknowledged using social media with his athletes. He said he only started to use Snapchat because his athletes wanted him to. He initially resisted but eventually gave in to pressure from the group. He maintained that, aside from using Snapchat to send photos, his first choice when communicating with his athletes outside the gym was text messaging. However, if an athlete responded by Snapchat or messaged him on Snapchat, he would respond on Snapchat.

[41] The accused denied that he was messaging K.J. on Snapchat to the extent she described. He denied that they would chat all day or that he would regularly text her things such as “good night, I love you”. He acknowledged that happened occasionally. He said that he participated in “streaks” on Snapchat with K.J. and his other athletes.

[42] Snapchat is primarily a platform for sending photos, but captions or messages may be attached. Filters can be applied to photos to add comic features or distort faces. Sending “streaks” relates to exchanging photos with someone or several people every day for several days. The Snapchat app congratulates those who keep streaks going for many days in a row. Various witnesses testified that young people were very interested in maintaining streaks. It was the thing to do. The accused said he participated to maintain a good relationship with his athletes.

[43] The accused testified that, to his knowledge, there was no policy at Manjak’s that coaches were not to have contact with athletes on social media. He denied that he was ever told that in a meeting at Manjak’s. He did recall a meeting with Ed Sternberg, Kelly Manjak’s business partner, who told him that another gym had complained because he had their athletes on his social media. The other gym was concerned about poaching. The accused said he agreed to take athletes from other gyms off his social media accounts.

[44] Photos of the accused and K.J. were placed in evidence during the Crown’s case. The photos were found on the complainant’s phone or other devices. Four photos are of the accused’s face, some of which have distorting filters applied. One is of the accused dressed as a groomsman for a wedding. Some are group photos taken at the gym depicting the accused with some of his athletes, including K.J.

[45] One photo depicts a collage of five other photos of the accused and K.J. together. Two of the five photos in the collage show the accused and K.J. posed in front of a banner at a gymnastics competition. Two of the photos in the collage show the complainant and the accused in a gym, dressed in athletic wear and hugging. One is of the accused and K.J. in bathing suits at the beach near Kelowna. The accused explained his recollection of the photos. He indicated that several of them were likely part of a streak where the photos would have been sent to others as well as to K.J.

[46] I observe that none of the photos have a sexual connotation, although Crown counsel submits the photo in bathing suits is inappropriate. I do not accept that characterization. The accused and K.J. are depicted standing back-to-back with their arms crossed in front of their chests. They are at a public beach. The evidence is that the photo was taken by one of the chaperones or by another participant attending the Kelowna training camp.

[47] The complainant testified that the collage was displayed in her bedroom and that her mother was aware she had photos of her and the accused up in her room. The photos demonstrate that the complainant was growing up over the time covered by the collage of photos. She was becoming taller and more mature in appearance.

[48] Considerable evidence about hugging was led during the trial. Consistent with the evidence of all the witnesses, the accused testified that it was a rule at Manjak’s Gymnastics that athletes and coaches were to hug each other at the beginning and the end of each training session. Kelly Manjak confirmed that, although he said the practice has since been discontinued. At the time it was felt that having coaches and gymnasts hug at the beginning and end of training assisted in overcoming the stresses and failures experienced with intense training. Hugs were also sometimes given when there was a notable success during training or a competition.

[49] Kelly Manjak confirmed that his vision for the gym was to have a more positive and friendly atmosphere than existed in other gyms, which took a more authoritarian approach. The accused testified that the atmosphere at Manjak’s was vastly different than he had experienced elsewhere. There was a fun attitude at the gym and training was based on encouragement rather than aggression. Consequently, he agrees that he engaged in roughhousing, tickling, and game playing with his athletes. He described himself as an immature coach who liked to relate to his athletes through fun and games.

[50] The accused said he would take humorous selfies on his athletes’ phones if they were not following the rules regarding limited cellphone usage during training. This could also explain some of the pictures found on K.J.’s phone. Other athletes confirmed there was roughhousing, game playing and that the accused would grab their phones and take selfies for breaches of the rules.

[51] The accused agreed that two of his other athletes complained that they were not being coached as much as K.J. The accused acknowledged they were right, apologized to them and adjusted. One of those athletes, L.M., testified that after she and her friend spoke to the accused their concerns were addressed to their satisfaction.

[52] The accused testified that in 2015 he began a romantic relationship with S.G., a female athlete at the gym who was over the age of 18. He was not S.G.’s coach. While he and S.G. kept the relationship quiet, he said Kelly Manjak was aware of it. The accused also told K.J.’s mother. K.J. testified that the accused told her about his relationship with S.G. when they were coming back from a training camp in Mexico. The relationship factors into the narrative because S.G. broke off the relationship after obtaining an athletic scholarship to an American university. The break-up was in August or September 2016. The accused explained that he was upset and that the break-up was one of several things throwing him off kilter in the period after the Kelowna training camp. It was also in the post-Kelowna period that K.J. began to pull away from him and express interest in other coaches. She wanted Kelsey Arnold as her beam coach. The complainant was also experiencing back pain, which stemmed from problems with her heels. Her motivation was down. Then she was diagnosed with an injury and could not compete. There was a meeting at the gym which included the accused, the complainant’s family, and Kelly Manjak. The accused learned that K.J.’s mother might pull K.J. from the gym if she did not become motivated. The accused said that was hard to hear. He said he was frustrated and as a result he may have been harder on K.J. than he should have been. K.J. became more distant. Problems with motivation continued when K.J. was able to resume training.

[53] The accused testified that all of this was in the background when he and K.J. communicated in the Snapchat messages K.J. photographed. He agreed some of his language was inappropriate. He was frustrated and upset. K.J. said she preserved those messages because they seemed “off” or were “off-putting”. The accused testified that he was sure there was more to the messages than the images reflect, although he could not say with precision what was missing. I will deal with the imaged Snapchat messages in more detail later. As I have said, there is nothing of a sexual nature in those messages.

[54] The accused testified that by the time K.J. recovered from her injury she had lost her high-performance status. As she recovered her attitude improved but there were ups and downs. He continued to coach K.J. but Kelsey Arnold took on a more prominent role, particularly with respect to balance beam and floor exercises.

[55] The accused said he was called to a meeting at Manjak’s on September 22, 2017. K.J.’s family had sent the photographed messages to the gym. He was asked about them and was sent home. He was fired the following week.

Chronological Overview and the Issues Regarding Counts 2 and 3

[56] As amended at trial, Count 2 charges an offence under s. 172.1(1)(b) between October 1, 2017 and January 11, 2018. As amended at trial, Count 3 charges an offence under s.171.1(1)(b) during a more restricted time period, from January 1, 2018 to January 11, 2018. Count 2 alleges the accused used telecommunications to communicate with K.J. for the purpose of facilitating one or more of several specified sexual offences. It goes on to particularize that he did so by exposing his genitals to K.J. Count 3 alleges that the accused made sexually explicit material available to K.J. for the purpose of facilitating one or more of several specified sexual offences. Count 3 alleges that the offence was committed by the accused exposing his genitals to K.J. Both counts are awkwardly worded, with particularization of the act alleged coming at the very end of the count. I have seen this approach to drafting offences under ss. 171.1 and 172.1 before. In my respectful view it is unsatisfactory and can lead to confusion in some cases.

[57] Counts 2 and 3 are restricted to the time after the accused was fired from Manjak’s. K.J. and the accused both testified that the accused blocked or removed K.J. from all his social media accounts after he was fired. Both K.J. and the accused testified that K.J. made repeated attempts to renew communications with the accused. There are differences in their evidence on this point, however, as the accused’s recollection is of specifics he recounts, while much of the complainant’s evidence falls into the category of acknowledging in cross- examination that certain attempts by her to initiate communication were possible, sounded right, may well have happened or could be so.

[58] That said, K.J. did testify in examination-in-chief to some efforts on her part to continue communicating with the accused. She said that she sent the accused a Happy Birthday text in October 2017. The accused’s birthday is October 11.

[59] K.J. also testified that she attended the accused’s residence to drop off a letter. The accused testified he was home but did not answer the door or speak to K.J. He removed the letter she left in his mailbox and threw it out without reading it. The complainant said she wrote in the letter that she should not have known about S.G. or other personal things, but also that the accused had “crossed the line” in certain situations. She did not explain in her testimony what she meant. This evidence is not admissible to support the complainant’s allegations but is of assistance in evaluating her state of mind.

[60] In cross-examination it was suggested to K.J. that she also sent the accused 10 Facebook messages. She agreed she sent some. She agreed that around Christmas 2017 she sent the accused a Happy New Year message. She agreed that it was “possible” she wanted to communicate with the accused and that it was “possible” she was sending the accused “pokes” on Facebook between Christmas and New Year’s. Sending a “poke” is a means of notifying another person on Facebook that you want to communicate.

[61] The accused testified that K.J. also sent him a Snapchat message after he started working in Oakville. In the message she said she was upset that he was now working with her competitors and that the atmosphere at Manjak’s was not the same since he left. The accused said he responded on Snapchat only to say that she would be fine as she was in good hands.

[62] The accused said that the complainant reached out to him on Facebook Messenger around Christmas 2017 to wish him Merry Christmas. He responded on Facebook by telling her that it was not appropriate for her to be contacting him. He told her he appreciated the sentiment but, given his suspension, moving forward he would prefer she not contact him. By then he was living in Ottawa and was re-establishing himself. His townhouse in Mississauga was for sale.

[63] The accused testified that he continued to receive pokes and friend requests from K.J. after Christmas. These were on his personal Snapchat and Facebook accounts. He said he received several pokes and friend requests on New Year’s Eve and New Year’s Day while he was engaged in activities with his friends in Ottawa. The accused said he had had enough and decided to contact K.J. to tell her that if she did not stop trying to contact him, he would inform her mother.

[64] On the evening of New Year’s Day, after returning from skiing with friends, the accused said he set up a new Snapchat account for this express purpose. He said he did that because he did not want K.J. to have access to information about his new life in Ottawa which was on his other social media accounts. Asked in examination-in-chief if he named the new Snapchat account “diswans” he said that was possible, adding that he did not have enough recollection to dispute that.

[65] The accused said the first Snapchat he sent on the new account was a photo of his cat. K.J. had previously looked after the cat for him. K.J. sent back a picture with written text indicating she was aware he was the person contacting her. They then had a brief conversation. He recalled K.J. saying that she missed him at the gym and that she was unhappy at the gym without him. He said she asked if he was still in Mississauga as she had seen his townhouse for sale. She also said that she wanted to give him a final parting gift.

[66] In cross-examination K.J. agreed it was “possible” these topics were raised by her and agreed that some of the things suggested to her in cross- examination sounded familiar or could have occurred. She said it was possible she said she wanted to see the accused to give him a gift. She said it was also possible she told the accused her parents would be away shortly after New Year’s, although she did not recall doing so.

[67] The accused said the complaint told him that her parents would be away for the weekend starting January 5, 2018 and that the final gift she wanted to give him was a kiss. K.J. denied that she offered a kiss as a gift during the conversation.

[68] The accused testified that from the beginning of the Snapchat exchange he refused to engage with K.J. on the subjects she was bringing up. He testified that “from the get-go” he told her that she needed to stop contacting him. When she raised that her parents would be away and that she wanted to kiss him he became stern and told her that, if she ever contacted him again, he would be speaking with her mother. He said at that point he ended the conversation and deleted the new Snapchat account.

[69] The accused said he made no effort to save the messages exchanged. He was not concerned about K.J. saving them or photographing them as all he had said was that he did not want any contact with her. At no time did he send photos of his penis to K.J. He said there was nothing of a romantic or sexual nature said by him during the exchange of messages.

[70] The complainant testified that when she received the friend request from the “diswans” account she assumed it was the accused. “Diswans” was a term only the two of them were aware of. The first picture she received was of the accused’s cat. She sent back a picture of her wall. Her feet could be seen in the photo she sent.

[71] K.J. gave inconsistent evidence about the timing and duration of the messaging that preceded the sending of the penis pictures and her final version conflicts with important evidence given by her friend A.F. Her evidence about the timing of the messages also conflicts with the evidence of the accused and one of his friends. I will deal with those conflicts later.

[72] K.J. testified that she and the accused started to exchange messages on the diswans account on New Year’s Eve. In examination-in-chief she said they messaged for about a week before the accused sent her two pictures of his erect penis. This timeline changed significantly in cross-examination. After being referred to notes typed by Kelsey Arnold as she spoke to K.J. on January 14, 2018, K.J. agreed the notes refreshed her memory. While she continued to assert that the messaging started on New Year’s Eve, she changed her testimony to indicate that she received the penis pictures on January 1 or early on January 2, 2018 at the latest.

[73] K.J. testified that shortly before she received the penis pictures the accused was telling her that he still loved her. She testified that she told the accused she loved him, but like a brother. She said that, while she could not recall the accused’s exact words, he messaged back that he did not love her like that but “more than that”. She also testified that before she received the penis pictures the accused asked her to send him pictures of her feet and that she did so. She did not know why the accused asked for pictures of her feet.

[74] In the first penis photo a sock had been placed over the end of the penis. A second penis picture, sent soon after, may also have involved a sock. K.J.’s evidence about the second penis picture was somewhat inconsistent. I keep in mind that pictures sent on Snapchat disappear soon after being sent. K.J. said she did not save or screen shot the messages or the pictures because she knew she should not be communicating with the accused. She said her biggest fear was her mother.

[75] K.J. did not disclose what had happened to her to her mother or to the police. Instead, she contacted her friend, A.F., to seek advice about how to tell her coach, Kelsey Arnold, what had happened. Without seeking K.J.’s agreement, A.F. told Kelsey Arnold about K.J.’s disclosure. Kelsey Arnold then interviewed K.J. on January 14, 2018. Ms. Arnold used her computer during the interview to make notes about what K.J. told her.

[76] These events led to police involvement. When interviewed by the police, K.J. was shown Kelsey Arnold’s notes. K.J. told the officer the notes were accurate, subject to one small correction. Significantly, the notes are not part of the evidence. The police contacted the accused on January 24, 2018. Charges followed.

The Supporting Witnesses

[77] Each side called several witnesses to support their position. Issues addressed included the use of social media at the gym, the approach to training, the nature of the relationship between coaches and athletes and observations concerning the nature of the relationship between the accused and K.J. and her family. I will deal with this evidence on an issue-by-issue basis.

The Use of Social Media

[78] It is Crown counsel’s position that the accused was told by Kelly Manjak at meetings in July 2013 and April 2014 that he should not communicate with gymnasts on social media. Crown counsel submits that the accused’s continuing use of social media with K.J. in contravention of his employer’s wishes supports an inference that such communication was not for an innocent purpose.

[79] The accused denies that he had ever been so instructed. He testified that he was only asked to remove athletes from other gyms from his social media by Ed Sternberg after another gym complained.

[80] Based on my assessment of Kelly Manjak’s evidence and the evidence of other witnesses, I find there was no clear policy against using social media with athletes at that time. While Kelly Manjak was candid and helpful in his testimony, I find his evidence to be unreliable on this point. It was apparent that Mr. Manjak had poor recall for the period in question. He had withdrawn from the gym around the relevant time. As he put it, he took a break from being fully involved.

[81] Crown counsel concedes that parts of Mr. Manjak’s evidence concerning the meetings and the social media policy at the gym were contradictory and vague. Although Mr. Manjak spoke of meetings with the accused he said Ed Sternberg conducted the meetings. At one point he said that Ed Sternberg told him about the meetings. I am concerned that some of Mr. Manjak’s testimony on this point is based on hearsay. I am not certain Mr. Manjak was present for the meetings the Crown relies upon, but even if he was, I am not prepared to rely upon his evidence that the accused was told not to use social media with his athletes. By the end of Mr. Manjak’s evidence I formed the impression that the policy prohibiting coaches from using social media with athletes was not fully developed until after the accused was fired.

[82] Other witnesses testified that the use of social media by coaches with their athletes was not uncommon at the gym. Kelsey Arnold, a coach who was in a personal relationship with Kelly Manjak, said she did not think there was such a policy at the time, although she was unsure. She said she used Facebook and Instagram to communicate with athletes. She would tag photos on Facebook after a competition so they would show up on athletes’ Facebook accounts. She would also send text messages about training.

[83] However, Kelsey Arnold was concerned about the extent to which the accused used social media with his athletes. She thought it was too extensive and was unwise. She said she conveyed that to the accused on more than one occasion, but he would just play it down.

[84] K.J.’s friend, A.F., testified that when she trained at Manjak’s she used Instagram, Snapchat, Facebook and other forms of social media. She had Kelly Manjak, Kelsey Arnold and the accused on Facebook. She said she used Snapchat with the accused, but only three or four times.

[85] L.M. was an athlete who trained with K.J. at Manjak’s. She had Kelsey Arnold and the accused on Facebook and Kelsey Arnold, the accused and one of the men’s coaches on Instagram. She had the accused on Snapchat. She said her mother, K.J.’s mother and some of the other parents were all on Snapchat.

[86] Overall, the evidence of the accused’s former athletes is that they used Snapchat and pressured him to use the app. They testified Snapchat was used mostly to send photos and maintain streaks, including with the accused, and that it was used to exchange messages with the accused to a lesser extent. None of the other athletes described having a Snapchat relationship with the accused that was as extensive or personal as that described by K.J. They supported the accused’s testimony that he would usually use text messages to initiate communication but would reply on Snapchat to their Snapchat messages or to send them photos.

[87] In the circumstances the accused’s use of social media with his athletes does not seem to have been contrary to any recognized policy. I do not see his general use of social media with K.J. as inconsistent with an innocent purpose. Any interference to that effect would have to flow from the specifics of the accused’s social media communication with the complainant. Consequently, the analysis of the contents of the few preserved Snapchat messages is important.

The Imaged Snapchat Messages

[88] There are four electronic images of Snapchat messages between the accused and K.J. that appear on Exhibit 1. They are labeled 5005_8, 5005_17, 5005_23 and 5005_33. They are not dated, and I am satisfied their numerical designations do not reflect their chronological order. Based on my examination of the images, I accept the accused’s testimony that 5005_17 and 5005_33 is a continuation of one conversation and that 5005_23 flows into 5005_8. The accused testified that _33 and _17 reflect an exchange that took place prior to _23 and _8. I conclude that may well be so, although the precise order of the exchanges is not of critical importance

[89] It is more important to situate the messages into the general chronology so that surrounding events can be considered to help attribute meaning and intent to the messages. In this regard, _17, which is likely the first message, contains the words, “since Vancouver.” Based on the evidence, this is a reference to the Kelowna training camp in late August 2016, so this message was sent sometime after that.

[90] I note that _8 has the date “April 9th” written in light grey text, apparently generated by the app, at the bottom of the image. This must be a reference to April 9, 2017.

[91] The content of the words recorded in the images is consistent with the other evidence about what was happening post-Kelowna and into the spring of 2017. This includes the time during which the complainant was pulling away from the accused; was seeking greater involvement by other coaches, particularly by Kelsey Arnold on beam; was getting back to training post injury; was having motivational problems and during which K.J.’s mother was considering pulling K.J. from the gym. Most of the messages seem to deal with the turmoil associated with those events, as described by both K.J and the accused in their testimony. The accused was also upset because S.G. had broken off their relationship.

[92] However, the issue which arises is the extent to which the language used in the messages demonstrates an unusually close or unhealthy relationship, the extent to which it supports the testimony of the complainant and/or the accused and whether it contributes to an inference that the accused had a romantic and/or sexual interest in the complainant.

[93] This last issue is a matter I will leave until later, when I will consider all the evidence together. For now, I restrict my comments to a review of some of the language used by the accused and to an examination of some of the surrounding evidence which assists in assessing the probative value of the Snapchat message evidence.

[94] First, I observe that in all four images it is only the words of the accused which are depicted. This seems unusual and raises the question of missing content.

[95] The complainant was extensively cross-examined about how Snapchat worked and about whether she saved and unsaved messages selectively before photographing them, resulting in an incomplete preservation of the messages exchanged. Much of her evidence on that topic was confusing and uncertain. Her memory was incomplete. She acknowledged the possibility that there was more to the messages, including things she said to which the accused may have been responding. She said that sometimes she saved part or all of a message because she wanted to reread it later to try to figure out what the accused meant by it. She said she photographed these messages because they were off-putting or seemed off. This suggests that these messages are not representative of messages exchanged between them. She agreed, based on her knowledge of the Snapchat app, that there were things such as paragraph spacing and where capital letters appeared, which suggested parts of the messages are missing. This is more so with respect to _23 and _8 than _17 and _33.

[96] The accused gave evidence that some content is missing. He opined that some of the things he said were in response to questions or comments by K.J. However, he could not remember specifics. He also pointed out various aspects of the paragraphing, spacing and capitalization as suggesting the messages had been edited.

[97] I find that the images of the messages do not reflect the full content of the messages that were exchanged. Consequently, I caution myself to be careful in evaluating and assigning weight to this evidence. Neither side called expert evidence about how the Snapchat app functioned.

[98] I am not making a finding that the complainant deliberately manipulated the app for the purpose of creating a misleading picture. However, I proceed on the basis that the images do not reflect the entirety of the exchanges in which the accused transmitted what is recorded. Important context may be missing.

[99] Turning to the messages as imaged, counsel focused on certain passages. I will refer to some of them to convey the flavour of the messages.

[100] The first message, _17, starts with “K. literally next to my family I care about you more than anyone in the world. I told you I cared more about losing you than my own girlfriend. Since Vancouver you haven’t said I love you one time to me when I’ve said it so much to you.” The message then goes on to say the accused is putting up with K.J. ignoring him in the gym and on Snapchat, that he did not fight her taking a break from him at the gym, describing the use of his own time to make training plans for her and complaining about how she does not listen to him in the gym. The accused expresses frustration, saying that because she will not follow his training plans he does not know what to do.

[101] As the message continues in _33, the accused says, “Like I love you so much my heart is breaking everyday cause you don’t love or care for me back. And you want me to be happy at the gym but I’m miserable because I lost my baby.” He asks K.J what he should do. At the bottom of _33 the accused asks K.J. to “unsave those messages” because he must scroll through them all the time. He says that when she starts to care about him it will be easier for him to care about her.

[102] The messages captured in _23 seem to be a conglomeration of messages sent by the accused in response to missing messages sent by K.J. What is recorded seems to be about the gym and K.J.’s lack of motivation, which is frustrating to the accused due to the effort he feels he is making. The accused does say towards the end, “I just miss you. Like I really miss K.J. if that makes any sense.” He says she used to work for him and do everything he asked. The purport is that she no longer makes that effort for him in relation to her training.

[103] Words at the top of image _8 are an overlap with the end of _23, indicating that _8 is a continuation. This image clearly suggests that only what he transmitted has been saved. The accused said that regardless of what was happening he was still there for her and that she was still his girl. There is a comment about her not wanting him as her coach on beam and reference to the fact that two other athletes he is coaching just won a major competition. The context is clearly the gym, K.J.’s lack of motivation and the accused’s frustration.

[104] There is nothing sexual in any of the imaged messages. There are indications of an unusually close relationship. For example, it is apparent that the accused and the complainant have been saying they love each other. There is evidence from other athletes who testified that it was not unusual for coaches to say things like “I love you guys” or that they loved an athlete in relation to their success or for the effort they put in. However, when the imaged messages were put to other athletes who testified, they said that some of the content went beyond what was commonly said in the gym. For example, K.L. testified that in _17, where the accused complained that K.J. had not said she loved him when he had been saying it to her, was out of line with what would be said at the gym. She testified that athletes did not say “I love you” to their coaches. However, she testified that the accused had said he loved her so much that his heart was breaking on one occasion when she was not working hard at the gym. She also said their group was known as the “babies” and that the accused would refer to individual athletes as being his baby in that context.

[105] These messages support the complainant’s testimony that she and the accused had an unusually close relationship. She saved them because they seemed “off”. The messages, on their own do not reveal that the accused had any sexual interest in K.J. They signal a degree of closeness and affection going beyond what many would consider healthy between unrelated individuals with such an age disparity. Nonetheless, the context is of years of intense training where the two were working closely together, the accused had become close to K.J.’s family and K.J.’s injury and lack of motivation were leading to understandable frustration and disappointment on the part of the accused, who feared this was impacting achieving his own goals.

The Observations of Others

[106] Each side called witnesses who had an opportunity to observe the accused interacting with the complainant over a significant length of time. None of them saw the accused touch K.J. on the buttocks in the manner she complained of. Three of them, however, described interactions between the accused and K.J. which they felt were inappropriate, although not overtly sexual in nature. The credibility and reliability of some of their evidence is challenged. I will deal with the credibility and reliability of the evidence as I review it.

Kelsey Arnold

[107] Kelsey Arnold was asked if she had seen the accused touching K.J. inappropriately. She said that she had seen tickling, hugging, roughhousing, and poking, all of which she felt was inappropriate. She said that the accused did not roughhouse with everyone. However, some other witnesses described games and roughhousing.

[108] Ms. Arnold acknowledged that hugging between athletes and coaches was part of the routine at the gym. However, she felt the accused and K.J. engaged in “long cuddling hugs.” She also said the hugging between them was not confined to the beginning and end of training sessions but would occur randomly during training and at other places. She said the hugs were more frequent than she felt necessary or appropriate.

[109] Asked if the accused made any comments about K.J.’s body parts, Ms. Arnold recalled that he said K.J. had a nice “bubble butt’ or that he used words to that effect. She said that the accused made such comments multiple times at various places, including the gym. However, Ms. Arnold had only one specific recollection. She testified that in 2016 she was with the accused and a group of athletes at the national final’s competition in Edmonton. They were taking photos on the competition floor. K.J. was wearing a new gym suit. She recalled the accused saying that K.J.’s butt looked good in the suit because it made her look “nice and tight”. Ms. Arnold felt this was not a normal comment to make about a body part.

[110] The accused was asked about the comment. He responded, “I didn’t make any comments about K.’s bum at that competition.” He acknowledged that on another occasion he made “some stupid comment” about K.J.’s buttocks by referring to “J. Lo.” He said he was running K.J.’s group through a series of skills and noticed that K.J.’s line appeared off. He did not feel K.J. was squeezing and tucking her bum in.

[111] Kelly Manjak explained in his evidence that an athlete’s line is very important. He said that athletes need to learn to squeeze their buttocks and tighten other muscles to show a good line. Competition judges watch for this. He explained that it was not uncommon for coaches to poke or touch an athlete’s buttocks to ensure they were squeezing their buttocks muscles, although he made it clear that did not include touching the buttocks with an open hand for two to five seconds, as K.J. described.

[112] The accused said he made the “J. Lo” comment because he did not feel K.J was complying with his instructions. He denied making any other inappropriate comments about K.J.’s body parts. As he put it, “I may have made a comment about her gymnastics, but not her specifically.”

[113] Kelsey Arnold agreed in cross-examination that she had never mentioned the “bubble butt” comment prior to her trial testimony. She agreed she did not mention it in her police interview or at the preliminary inquiry. Nor did she include it in a letter to Gymnastics Ontario after she found out the accused had only received a three-month suspension, which she felt was inadequate. However, in re-examination it was established that she did report to Gymnastics Ontario that the accused had made comments about gymnasts who were “so cute”, “so pretty”, or “so beautiful” in what she considered to be a “creepy way.” She said she had the butt comments in mind when she expressed that sentiment.

[114] My assessment is that Kelsey Arnold harbours a bias against the accused. She said she did not like the way he Snapchatted with athletes and felt that he was putting himself at risk. She did not think the suspension he received from Gymnastics Ontario was adequate.

[115] Nonetheless, I formed the impression that Ms. Arnold was making every effort to be accurate when giving her evidence. She was quite precise and careful in explaining what she could and could not remember about various events. If she was unsure about something or did not have a clear recollection, she was careful to say so. I accept her evidence that on more than one occasion the accused made a comment about K.J.’s buttocks which she felt to be inappropriate. However, I observe that her opinion concerning propriety is subject to her bias and her opinion on propriety is not what is of evidential value.

[116] I accept that the accused made one or more comments to the effect that K.J.’s buttocks or bum looked good, or nice and tight. Given Kelly Manjak’s evidence and other evidence to the effect that appearing to have tight buttocks is something noticed during competition when evaluating an athlete’s line, these comments could, but do not necessarily, reflect a sexual interest or intent.

Susan Manjak

[117] Susan Manjak is a level four coach. She worked at Manjak’s Gymnastics off and on throughout the relevant time. She testified that in February 2016 she attended the Elite Canada competition in Halifax with the accused, K.J. and K.J.’s mother.

[118] Ms. Manjak testified that she saw what she deemed to be inappropriate contact between the accused and K.J. She described that as the accused tickling K.J. and K.J. sitting on the accused’s lap between events at that competition. She also referred to displays of affection between the two. The tickling, giggling, and other signs of affection took place in the back seat of the rental car in which K.J.’s mother drove them between their hotel and the competition venue. K.J.’s mother was in the car at the time.

[119] Ms. Manjak testified that the accused was invited to a meeting with Ed Sternberg at Manjak’s after the competition. She and Kelly Manjak were also present. She said she confronted the accused at the meeting and told him she felt some of his behavior was inappropriate. She said she warned him such conduct could escalate and get him into legal trouble. She said the accused was very quiet, put his head down and said he did not realize that.

[120] The accused denied that K.J. sat on his lap at the competition venue in Halifax. He said such conduct would have been inappropriate and he would have been ejected from the competition. However, he did not deny that the type of conduct mentioned by Ms. Manjak occurred.

[121] Whether K.J. sat on the accused’s lap at the competition is immaterial. The affectionate conduct is. Notably, it was in the presence of K.J.’s mother and was not of a sexual nature. It is consistent with much of the other evidence about the nature of the accused’s relationship with K.J. and members of her family.

The Evidence of M.S.

[122] During cross-examination of the complainant counsel for the accused elicited that the first person K.J. talked to about the accused touching her buttocks was her friend, M.S., who was part of her training group.

[123] M.S. gave evidence about gymnastics training, the spotting of athletes, the use of social media and about the culture at the gym. She recalled that K.J. told her that she thought the accused was touching her butt. Crown counsel agrees that I can use the complainant’s statement to M.S. only to help me understand why M.S. may have seen things that others at the gym did not notice. Crown counsel submits that M.S. had reason to be on the lookout for the accused touching K.J. after K.J. spoke to her.

[124] M.S. did not specify precisely when K.J. spoke to her about the touching. She thought it was towards the end of her time at Manjak’s which, based on her other evidence, means it would likely have been in 2017. K.J. testified in cross-examination that she thought she told M.S. about her concerns in 2016. Either way, this puts it towards the end of the relevant time.

[125] M.S. testified that she would watch the accused and K.J. and thought that the accused was touching K.J. more than necessary or professional when spotting her. However, M.S. did not describe seeing the accused place his hand on K.J.’s buttocks for two to five seconds as K.J. testified. M.S. described what she saw as the accused’s hands grazing down K.J.’s body and butt. She said it was not holding. M.S. felt this spotting had no gymnastics purpose because it occurred after the skill was complete and at a point where M.S. felt K.J. was “safe to come off the bar.”

[126] Significantly, M.S. said she noticed that the accused also did this with many athletes in the gym. She said his spotting style was different than other coaches. I observe that this evidence by M.S. cannot be used as bad character or propensity evidence. However, it opens the possibility that the touching M.S. saw, which is dissimilar to that which K.J. complains about, is reflective of how the accused spotted athletes. I also observe that Kelly Manjak testified that by the time the accused left the gym he was a very good spotter.

[127] My assessment is that M.S. was doing her best to assist the court. The evidence of M.S. is significant in that it is the only evidence from a third party who saw the accused touch K.J.’s buttocks in any way. However, the touching M.S. describes is dissimilar to the touching the complainant alleges – stationary touching with an open hand for two to five seconds.

Other Evidence Related to Count 1

[128] I will briefly refer to some other items of evidence from various witnesses during the trial.

[129] M.S. testified that K.J. and the accused acted like they were best friends rather than in an athlete and coach relationship. She said the pair would do things together outside the gym and would hang out together.

[130] K.L. always trained in the same group as K.J. She said she was in the gym with K.J. and the accused six days a week for up to 30 hours. She never saw the accused touching K.J.’s buttocks as alleged and she frequently watched K.J. perform. She saw K.J. and the accused hug every day and never saw the accused place his hands on K.J.’s buttocks. She said she did see the accused touch K.J. close to the buttocks area for two to five seconds but identified the areas touched more precisely as the lower back and the hamstring area. She never saw the accused slide his hand over K.J.’s butt. She said it was normal for coaches to poke or touch an athlete’s butt on occasion to ensure they were tightening their muscles.

[131] K.L. testified that she and the other girls in the group begged the accused to get Snapchat. It took the accused a few months to get it. She said everyone in the group wanted high streaks on Snapchat. She and the others were involved in streaks with the accused. They would also engage in playful fun and games in the gym.

[132] L.M. trained at Manjak’s with K.J. and the accused from 2015 to 2018. She, K.J. and K.L were always together in the same training group. She described the importance of an athlete squeezing their buttocks muscles to get a good line, particularly in a handstand, which is a fundamental move on the uneven bars. Sometimes coaches would poke an athlete’s butt for that reason. She saw the accused do that to K.J. However, she never saw the accused touch K.J. on the buttocks in the manner K.J. described.

[133] L.M. confirmed that coaches assisted in stretching and massaging athletes. She testified that K.J. had problems with her feet and toes and that the accused would often pull or “crack” the complainant’s toes.

[134] L.M. commented on K.J.’s attitude when injured. She described K.J. as sad and unmotivated. She said the accused tried to motivate K.J. without success before turning his coaching efforts towards herself and K.L. L.M. said K.J. reacted to that with jealousy.

[135] L.M. testified that previously K.J. was very focused on the accused. She described K.J as being “attached to the accused at the hip.” L.M. said K.J. constantly brought up the accused’s name and would say she wondered what he was doing. K.J. printed out photos of herself and the accused together and put them all over her room. L.M. said K.J.’s social media profile included pictures of herself and the accused together. She said K.J. would always run to the car to sit beside the accused in the front seat if he was driving them somewhere. She said K.J. always wanted to be beside the accused in the gym.

[136] S.L. is K.L.’s mother. A.M. is L.M.’s mother. Both testified that they were often in the viewing area at the gym watching their children and the others in the group train. They could see all activities on the closed-circuit television monitors. They also attended many competitions. Neither saw the accused touch K.J. on the buttocks or in any inappropriate way.

[137] A.M. was a police officer from 1988 to 2003. She described herself as a survivor of childhood sexual abuse. She said she was always on the lookout for signs of sexual abuse. She saw none. A.M. said that both her daughter and K.J. were strong on the uneven bars and that she would watch K.J. on the bars. A.M. described the accused as a “fun coach” and “a hugger” who had a “different way” of motivating athletes. She saw tickling at the gym, which did not concern her.

[138] A.M. said she would often Snapchat with the accused. Snapchat was popular with the kid’s moms. She engaged in Snapchat with K.J.’s mother.

[139] Steve McFarlane is the accused’s father. He gave evidence which contradicted K.J.’s evidence that when she and another athlete stayed overnight in the McFarlane home during a competition in Ottawa, the accused made special arrangements for her to have his old room and introduced her to his parents as if she was his girlfriend. Steven McFarlane said his son treated K.J. as he did any other athlete he brought to their home. He explained that his wife had readied two bedrooms for the girls and the other athlete picked the room she wanted first. During a second overnight stay K.J. elected to stay in the room she used before. Moreover, Steve McFarlane testified that both rooms had been his son’s bedroom at one time.

[140] Randy Foster is a certified athletic physiotherapist who treated K.J. He occasionally attended Manjak’s to observe his patients while they were training. While he was sure he had met the accused he was unable to recall speaking to the accused about the complainant’s physiotherapy. Consequently, his evidence has little value.

[141] I have no reason to reject the evidence of any of the supporting witnesses as not credible. In my assessment, they were all attempting to be truthful and helpful. The credibility of these witnesses has not been challenged. However, each of them has some limitations that affect the weight of their evidence, in the sense that they were not able to make observations of every interaction between the complainant or the accused or because they have an opinion or bias due to the nature of their relationships with the complainant or the accused.

Additional Evidence Regarding Counts 2 and 3

[142] Jonathan Jiwan is a friend of the accused who lives in Ottawa. He testified that he and two other friends were with the accused on New Year’s Eve in 2017. The group went out for dinner at around 5:00 p.m. They then returned to the accused’s parents’ home where they played board games until 1:00 to 1:30 a.m. The group had a rule that they did not use their cell phones during play. Mr. Jiwan does not drink alcohol. I have no reason not to accept his evidence, which supports the accused’s testimony on these points.

[143] The accused’s father, Steve McFarlane, gave evidence concerning two couches that were in the basement of the family home on the two occasions when K.J stayed there while attending competitions in the Ottawa area. He testified that both couches, which were dark green leather, had been removed from the home in May 2017. They were replaced with a light beige cloth sectional. This evidence is significant as it is capable of being viewed as inconsistent with an important part of K.J.’s evidence.

[144] K.J. testified that the penis pictures she received were of the accused because she recognized a mole he had on his left hip and because she recognized the decor of the accused’s parents’ home in other pictures sent during the messaging sessions on the “diswans” account. She said, “I believe he was in the basement; it was like a leather couch.” She also said that in the penis pictures the accused was sitting on a couch, which she recalled as being dark brown. Photographs of the old couches and the new couch show they are very different in both colour and fabric.

[145] A.F., who I have already referred to, is an important witness in relation to counts 2 and 3. A.F. was called by the Crown, but only after counsel for the accused opened the door to her testimony by cross-examining K.J extensively on the timing of her receipt of the penis photos, the timing of her disclosure of that to A.F., and on the contents of text messages between K.J. and A.F. transmitted on January 2, 2018 commencing at about 11:25 p.m. (see Exhibit E). The Police recovered those text messages during an examination of K.J.’s iPhone.

[146] K. J. testified that she was “freaked out” by the penis pictures. K.J agreed in cross-examination that the contents of the texts she sent to A.F. starting at 11:25 p.m. on January 2, 2018 are inconsistent with her having previously received penis pictures from the accused. In those texts K.J. asked A.F. if she had “heard the news on Scott”. She then informed A.F. that Gymnastics Ontario had suspended the accused to the end of January after which he would be on probation and could resume coaching.

[147] At 11:27:26 p.m. on January 2, 2018 K.J. texted to A.F., “… I’m at the point where I’m kinda over it like if I saw him I would be fine its just crazy that’s all he got…” K.J. did not seem upset and made no mention of the penis pictures. Yet, after having her memory refreshed in cross-examination from Kelsey Arnold’s notes, K.J. testified that she received the penis photos on January 1, 2018. She further testified that she told A.F. about the photos within 24 hours of receiving them.

[148] A.F. testified that she was at school in Mississippi in January 2018. She was about four years older than K.J. She was communicating with K.J. on a regular basis by text messages, phone calls, Facetime, and Snapchat. A.F. thought K.J informed her about the penis photos during a Facetime call. A.F. said the call was sometime within the first week of January. Then she said it was about three weeks before she spoke to the police on February 1, 2018. She described K.J. as “very upset by it, disturbed.” She said K.J. was not crying but was “not her usual self.” In cross-examination A.F. added that the call was two weeks prior to January 22, 2018.

[149] Consequently, A.F.’s evidence about when K.J. told her about the penis photos varied from sometime during the first week of January to between about January 8 and January 11, 2018. In addition, A.F. testified that K.J. told her she had waited three to four days to tell her about the incident. This contradicts K.J.’s evidence that she told A.F. within 24 hours.

Analysis

[150] As I said at the outset, there is no direct evidence to support the complainant’s allegations. No one saw the accused touch K.J. in the manner she described. No penis pictures or messages transmitted on the “diswans” Snapchat account have been produced. The complainant says these things happened and the accused denies they did.

[151] Given all that has been learned by the courts and society about sexual abuse and the grooming and control of child victims by adult sexual predators in recent decades, the evidence of some of the circumstances surrounding the allegations raises suspicions of an inappropriate relationship between the accused and the complainant. But the circumstances alone are also consistent with a close and multi-faceted relationship which developed between the accused, the complainant and her family during a prolonged coaching relationship, which included strong emotional attachment and remained within the bounds of the law. Consequently, my assessment of the credibility and reliability of the evidence of the complainant and the accused will determine the outcome.

[152] I remind myself that count 1 and counts 2 and 3 relate to different time frames. Count 1 deals with alleged events during the time the accused was coaching at Manjak’s Gymnastics, while counts 2 and 3 relate to the time after he was fired. No similar fact evidence application was brought by the Crown and evidence relating only to counts 2 and 3, notably the penis picture evidence, is not available to be considered on count 1. The converse is also true.

[153] However, my assessment of credibility and reliability of the witnesses is not so restricted. Credibility findings made in relation to a witness’s evidence given in relation to one alleged offence may be considered in relation to another. This obviously applies to both the complainant and the accused.

[154] I also observe that, by its wording, count 1 is geographically restricted to misconduct occurring within Ontario. Consequently, K.J.’s allegation that the accused touched her buttocks in Kelowna, British Columbia cannot constitute the act which founds count 1. Nonetheless, evidence related to what occurred in Kelowna is relevant to count 1 and may be considered, particularly with respect to credibility and reliability and in relation to proof of criminal intent or sexual purpose.

[155] I commence my credibility analysis by commenting on the way K.J. and the accused, gave their evidence. Care must be taken not to give excessive weight to a witness’s demeanour, but it remains a relevant factor. K.J. and the accused were each in the witness stand for several days. Each was extensively cross-examined.

[156] K.J. was 19 when she testified about events that occurred when she was between 12 to almost 16 years of age. I assess her evidence on the basis that she is a young adult. However, I keep in mind that many of her relevant memories were formed when she was significantly younger. I will take that into account when evaluating inconsistencies and other aspects of her evidence. This approach is mandated by R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at p. 134.

[157] K.J. remained calm and composed over the four days on which she testified, three of which involved detailed and prolonged cross-examination. She was never argumentative or disrespectful. She listened to and answered the questions asked, seeking only reasonable clarification. She presented as being of at least average intelligence with a fairly good ability to articulate.

[158] For many events her memory was poor, although understandably so, given her age and the passage of time. Her initial testimony sometimes changed when she was referred to prior statements, prior testimony, or other material, either to refresh her memory or to contradict her. I will refer to several significant inconsistencies in her evidence below.

[159] Some of K.J.’s changes in recollection seem to involve her subsequent re-evaluation and re-interpretation of past events as she has matured and thought about them. Crown counsel submits, and I agree, that the court must be mindful that the complainant has literally been growing up as this case has unfolded.

[160] Nothing about the way K.J. gave her evidence sends up a red flag on the truthfulness or credibility front. She conceded that she continued to attempt to initiate contact with the accused after he was fired. However, she was sometimes vague in her responses. She often said that certain things that were suggested to her which she had not testified to “sounded right” or “could have happened”.

[161] Based on the way K.J. gave her evidence, but based also on the content of her evidence, I have more concerns about the reliability of her evidence than her truthfulness. It is apparent K.J. views certain things differently now than she did when she was younger. Some things she previously did not think anything of she now views as indicative of abuse. This is understandable as she gained maturity but raises reliability concerns about whether her perceptions at the time of the events or as remembered and advanced now, are more reliable.

[162] Turning to the way the accused gave his evidence, I can only say that he was a good witness. He also presented as calm and composed, intelligent and articulate. He was not argumentative or obfuscatory. He was responsive and to the point in answering questions. He provided a reasonable amount of detail. He withstood cross-examination very well. He conceded some points when pressed. He stood firm on others. He was always respectful and tried to be helpful. Nothing about his demeanour or the way he gave his evidence leads me to have concerns about the credibility or reliability of his evidence.

[163] Having canvased demeanour and the manner of giving evidence, I wish to clarify that I do have concerns about relying on some aspects of the evidence of each of the complainant and the accused. I will highlight these as I turn to explaining my verdicts in relation to each of the counts.

Determination on Count 1

[164] Count 1 charges the accused with sexual interference contrary to s. 151 of the Criminal Code. To obtain a conviction Crown counsel must prove beyond a reasonable doubt that the accused deliberately touched K.J. for a sexual purpose. If his subjective purpose was not sexual or if the touching was unintentional, the offence is not made out. If the evidence fails to establish beyond a reasonable doubt either that the touching was intentional or that the purpose in touching was sexual, an acquittal must follow. See R. v. B. (G.), 2014 BCCA 88, at paras. 24-25, 28-29; R. v. Palmer, 2020 ONSC 15, at paras. 32-33; R. v. D. (D.A.), 2014 ONSC 3254, at para. 69; R. v. D. M., 2022 BCCA 120, at paras. 32-35, 37.

[165] For several reasons considered cumulatively I find, after considering all the evidence, that I am left in a state of reasonable doubt on count 1.

[166] First, no one saw the touching described by the complainant. This is not a case where the alleged improper touching occurred in private. K.J. said it happened during training at the gym, particularly when she did hand stands or was being spotted on the uneven bars. Other people, often many, were usually around. That included other coaches. By the end of her evidence K.J. said that the accused put his hands on her butt up to half the time when he hugged her at the gym. He hugged her almost every day over several years, often more than once a day. Yet none of the other coaches or athletes who testified saw the alleged touching.

[167] Second, except for the hug at the Kelowna training camp, K.J. gave no evidence of the accused touching her buttocks on any other occasion outside the gym. Yet the evidence shows that they went other places together. They travelled to training camps and competitions. They went to Canada’s Wonderland. The accused would drive K.J. and others home or to other places.

[168] Third, over the years K.J. does not claim the accused touched her in any other way which had an obvious sexual connotation. There was no progression of the touching to more intimate areas, as one might expect if the accused had a sexual interest in K.J.

[169] Fourth, I note that K.J. does not claim that there was any sexual content in their texting or Snapchatting relationship, until the penis pictures were sent to her in January 2018. There is no sexual content in the imaged messages found in Exhibit 1. There is no sexual content in any of the photographs put in evidence. Except for the alleged buttocks touching, almost all of which took place in the gym, there was no evidence of any sexualized behaviour of any kind during the period alleged in Count 1. While there were “I love you’s”, that was the extent of it, and that evidence must be evaluated in the context of the language used at the gym and the unusually close relationship between the accused, K.J. and K.J.’s family.

[170] Fifth, there are several inconsistencies in K.J.’s evidence which I cannot characterize as minor. Rather, there are inconsistencies that go to the core of her allegations. They relate to whether she perceived the impugned touching as improper at the time it occurred and to how extensive it was. Here I will deal only with the inconsistencies in relation to Count 1.

[171] K.J.’s evidence was that the touching of her buttocks started when she was about 12 years old and that it took her about a year to realize it was not appropriate. She said it continued and never stopped, although a lot of things changed after Kelowna. In other words, there must have been at least many dozens of occasions when it occurred before she told M.S. about it in 2016.

[172] K.J. was cross-examined on her preliminary inquiry testimony. There she testified that she first became uncomfortable with the accused touching her in 2016. She testified at the preliminary inquiry, as she did at trial, that M.S. was the first person she talked to about the touching. However, in contrast to her trial testimony that the repetitive touching had been going on for an extended period and, significantly, that she was sure it was intentional, she testified at the preliminary inquiry as follows: “I just told her that – like, I was feeling a little uncomfortable at the gym and like I didn’t know if I should say anything about it or if I just – or if I should just see if it was a one time thing.”

[173] When this passage was put to K.J. her trial testimony was: “To be honest, I wasn’t sure what was going on at all because it didn’t feel right. I wasn’t sure if it was me being crazy or what was happening…”

[174] This passage of the preliminary inquiry is significantly different than K.J.’s trial testimony in a number of significant respects. It raises the question of how and why her evidence has evolved. It brings the reliability of her evidence into question and highlights that she has been engaging in an interpretative process.

[175] K.J. has also been inconsistent when describing the accused touching her buttocks as he hugged her in Kelowna. One would think this incident would stand out as it was the only situation in which K.J. alleged improper touching outside the gym. In her trial testimony concerning this incident K.J. said she knew right away that the accused touched her butt intentionally as he hugged her. She said it was not a slip.

[176] At the preliminary inquiry she said that the accused had only touched her butt while hugging her one time, and that was in Kelowna. She then went on to say: “…so I don’t know if it was intentional or if it just like slip, but…” Asked if she had an explanation for the inconsistency, K.J. said that she now thought it was intentional. While it may well be that K.J.’s thinking has evolved, this shows that her evidence has firmed up and changed on material matters she has reflected upon. This again highlights my concern for the reliability of her evidence, as she has re-interpreted past events.

[177] K.J. has also been significantly inconsistent about how often the accused touched her buttocks while hugging her. Towards the end of her April 6, 2022 trial testimony K.J. said: “Other than B.C. there was never an incident of us hugging and me thinking it was off.” By “off” she said she meant the accused touching her butt while they hugged. Her earlier trial testimony was also to the effect that the accused hugged her only once in Kelowna.

[178] In her statement to the police on January 22, 2018 K.J. said she thought the accused had touched her butt twice after giving her hugs while they were in Kelowna. More significantly, however, K.J. went on to tell the interviewing police officer that the accused placed his hands on her butt “probably half the hugs he gives me.” Asked by the officer if that was more than five times she said, “…well, I like hugged him every day for four years.” K.J. then adopted that as her trial testimony. This is a very significant change in her evidence. It is not the sort of thing that can be brushed aside because of her age at the time of the events or during her police interview. It suggests a significant degree of unreliability, whether attributed to her memory or otherwise.

[179] By the end of her evidence, it was K.J.’s testimony that the accused touched her buttocks during half the hugs he gave her in the gym over a period of four years. It is virtually inconceivable that one of the other witnesses who testified would not have seen this if it occurred. Hugs in the gym were almost always at the beginning and ending of training sessions when multiple coaches and athletes were present and parents would likely be in the viewing area.

[180] Sixth, there is a body of evidence, not yet referred to, from which I find that K.J. had a crush on the accused. K.J. denied having a crush on the accused, but I reject her evidence on that point. This evidence leads me to conclude that K.J. was prone to misinterpreting events as an indication of affection or romantic interest in her by the accused. When speaking to Kelsey Arnold on January 14, 2018, K.J. described the accused giving her gifts which she felt reflected such an interest, said that he was trying to use his girlfriend, S.G., to make her jealous and claimed that when she and others helped the accused move to his new townhouse, he deliberately gave her his underwear drawer to move. These views, formed by K.J. when she was younger and when I am satisfied she had a crush on the accused, were debunked by the evidence of several other witnesses.

[181] As to the crush, I accept L.M.’s evidence that K.J. constantly brought up the accused’s name, talked about the accused a lot, printed photos of herself and the accused together and wanted to sit beside him whenever possible. K.J. was of an age where young people of both sexes often develop crushes on somewhat older individuals whom they admire. I recognize that this can make them more vulnerable to abuse, but I also generally accept the defence submission that it can lead young people to misinterpret events. There is evidence of that in this case, which I accept.

[182] For example, K.J. testified that the accused gave her his underwear drawer to carry during the move from his apartment to his townhouse. This made her feel weird. I accept the testimony of H.M.’s mother, A.M., who was helping to supervise K.J. and some of the other girls who were helping with the move. A.M. testified that the accused was not present at the time. She said most of his belongings had been prepacked and no assignments were given as the girls randomly carried the accused’s belongings to a van. A.M. said that K.J. made a “big scene” about having the accused’s underwear to carry to the vehicle. A.M. said K.J. often acted in that fashion at that age.

[183] K.J. also testified about various gifts the accused gave her and interpreted them as showing unusual personal interest in her. The accused gave evidence about each of these gifts, which I accept. He agreed that he bought K.J. a T-shirt at a competition, but explained he purchased it at the request of K.J.’s mother and that K.J.’s mother paid for it. He said he also brought some of his old clothing to the gym to share with any athletes who wanted it, not just as a gift to K.J. He indicated that he had elastic bracelets around his water bottle which he would give out to athletes, not just to K.J. He did agree that he bought some gifts for K.J. but noted that K.J. and her family provided him with gifts consistent with their close relationship. There is other evidence to similar effect.

[184] K.J. also testified that the accused introduced her to his parents as if she was his girlfriend, treated her differently than another athlete that was with her on that occasion and arranged for her to sleep in his old bedroom. I accept the evidence of the accused’s father that none of these things occurred.

[185] Counsel for the accused refers to some other similar circumstances. However, they are not as clear in the evidence, and I do not rely upon them.

[186] There is also some evidence that K.J. would become jealous if the accused was devoting too much attention to his other athletes. I accept L.M.’s evidence that even when K.J. was injured and resisted the accused’s attempts to motivate her as she recovered, K.J. became jealous when the accused turned his attention to K.L. and L.M. The complainant acknowledged that she would become jealous and testified she and the accused had developed a code word they could use if either of them was becoming jealous. The accused denied there was such a code word.

[187] Pulling back to look at the evidence broadly, I accept that at the Kelowna training camp K.J. began to question the normalcy of her very close relationship with the accused. The evidence establishes that the relationship went beyond what was normal for a male coach and a young female athlete. The evidence also shows how that relationship developed. However, the evidence falls short of showing that there were sexual aspects to the relationship.

[188] Aside from Kelowna, which falls outside the indictment, the only improper touching alleged at the start of the trial was touching of the buttocks in circumstances where K.J was being spotted by the accused. Given my other findings, the Crown’s case in that regard depends entirely on my acceptance of the complainant’s evidence. In view of the significant inconsistencies and the reliability concerns I have described I have examined the record for anything that would lend support to the complainant’s testimony. I have considered the evidence of Kelsey Arnold, Susan Manjak and M.S. in this regard. However, this evidence does not, for all the reasons previously stated, eliminate the reasonable doubt I harbour.

[189] The accused’s denial also contributes to my reasonable doubt. As I will explain when I deal with counts 2 and 3, there are aspects of the accused’s evidence in relation to those counts which negatively impact my assessment of his credibility. That carries over to count 1 to the extent that I do not accept all aspects of his evidence. However, this does not lead me to reject his evidence in relation to count 1. As held in R. v. W.(D.), defence evidence which is not accepted may raise a reasonable doubt, provided it is not rejected as untrue.

[190] When I consider all of the evidence together I find I am left with a reasonable doubt at stage two of the R. v. W.(D.) analysis. Even if I were to reject the accused’s evidence, a reasonable doubt would remain at stage 3 of that analysis. The doubt relates both to whether the buttocks touching described by K.J. occurred and to whether the accused had any sexual purpose in any touching that did occur while he was spotting or coaching K.J.

[191] This leaves the touching of K.J.’s feet and the pulling of her toes to be considered. There is evidence that the accused did both when stretching and massaging K.J. after training sessions.

[192] When the trial commenced it was not part of Crown counsel’s position that the touching of the complainant’s feet formed part of the offence. That only became an issue after I raised it during the trial. As the evidence unfolded, I learned that the Snapchat account allegedly used to transmit pictures of the accused’s penis was called “diswans”, which was a reference to K.J.’s feet and toes. K.J. also testified that before the penis pictures were sent to her the accused asked K.J. to send him pictures of her feet. She said that the first penis photo showed the accused’s penis with a sock over it. These circumstances, all related to feet, raised my concern about whether the accused may have had a sexual interest in K.J.’s feet. I felt obligated to raise it with counsel because count 1 as drafted would capture such conduct. Accordingly, I would be required to consider it, as there was an air of reality to that theory of liability as the record was developing.

[193] At the end of the case and based on a consideration of all the evidence, I am not satisfied beyond a reasonable doubt that the accused touched the complainant’s feet for a sexual purpose. I observe that the evidence capable of supporting a finding that the accused was sexually interested in the complainant’s feet was led in relation to counts 2 and 3, which deal with a different time frame than count 1. It was not within counsel’s contemplation that the evidence might also be relevant to count 1 as neither the accused nor Crown counsel had considered this possible route to liability. Consequently, fairness issues arise. After I raised the issue, the evidence remained the same. I also observe that my findings in relation to counts 2 and 3, which I have yet to get to, impact my assessment of this potential basis for liability on count 1.

[194] As I have a reasonable doubt concerning proof of both the actus reus and the mens rea of the sexual interference offence, the accused is found not guilty on Count 1.

Counts 2 and 3

[195] Proof of each of the offences created by ss. 171.1(1)(b) (Count 3) and 172.1(1)(b) (Count 2) of the Criminal Code requires proof that the accused engaged in the conduct particularized in the respective count “for the purpose of facilitating” the commission of another sexual offence. In the case of the s. 171.1(1)(b) offence (Count 3), that conduct is making available sexually explicit material. In the case of the s. 172.1(1)(b) offence (Count 2), that conduct is communicating by a means of telecommunication. Both offences require that the victim be known or believed by the accused to be under the age of 16 years. There is no doubt this last requirement is satisfied in this case.

[196] As both offences require the doing of something for the purpose of facilitating another offence, these are preparatory or inchoate offences. See R. v. Legare, 2009 SCC 56, [2009] 3 S.C.R. 551. In the case of s. 172.1, the use of a means of telecommunication need not be criminal in and of itself. However, to establish either of these offences Crown counsel must prove beyond a reasonable doubt that the accused’s purpose, his specific intent at the time he engaged in the described conduct, was to facilitate, in other words to make it easier, for him to commit another sexual offence: Legare, at paras. 28, 32, 38.

[197] Earlier I indicated that Counts 2 and 3 are drafted in a confusing fashion. I will elaborate.

[198] Count 2 alleges that between October 1, 2017, and January 11, 2018 the accused “by means of a telecommunication did communicate with K.J., a person under the age of 16 years, for the purpose of facilitating the commission of an offence with respect to K.J. under s. 151 [or s. 152 or s. 160(3) or 173(2) or s. 271 or s. 272 or s. 273 or s. 280], to wit: by exposing his genitals to K.J., contrary to section 172.1(1)(b)...”

[199] Count 3 alleges that during a more restricted time period from January 1 to January 11, 2018 the accused, “did make available sexually explicit material to K.J., a person under the age of 16 years, for the purpose of facilitating an offence with respect to K.J. under s.151 [or s. 152 or s. 160(3) or s. 173(2) or s. 271 or s. 272 or s. 273 or s. 280], to wit: by exposing his genitals to K.J., contrary to s. 171.1(1)(b)...”

[200] The potential for confusion is apparent. Take Count 2 as an example. At first reading it is unclear whether the exposure of genitals, which if done for a sexual purpose would constitute a separate offence under s. 173(2) of the Criminal Code, is the offence the accused is alleged to be facilitating or a particularization of how he used a means of telecommunication. This is a matter of some significance in view of the evidence in this case.

[201] I conclude that the only reasonable interpretation of Count 2 as drafted is that the alleged exposure of his genitals particularizes how the accused is alleged to have used a means of telecommunication, because the count lists offences under s. 151 and several other sections as the offence the accused intended to facilitate. If the allegation were simply that the accused engaged K.J. in an exchange of messages for the purpose of facilitating the offence of exposing his genitals for a sexual purpose to a person under 16, an offence under s. 173(2) of the Criminal Code, there would be no need to include in the count the list of offences found in s. 172.1(1)(b).

[202] Count 3, as drafted, suffers from the same problem. I conclude the reference to exposing genitals found at the end of the count, reasonably read, particularizes the act of making sexually explicit material available to K.J. As with Count 2, there would be no need for the long list of offences facilitated if that was not the case. I also note that the evidence and the investigation in the case revealed only one episode when pictures of genitals were transmitted. There is no suggestion this happened on any occasion prior to the pictures being sent at the end of the discourse between K.J. and the accused on the “diswans” Snapchat account.

[203] The confusion inherent in how Counts 2 and 3 are drafted became evident in Crown counsel’s closing submissions with respect to Count 3. Crown counsel submitted that the offence facilitated by the act alleged in Count 3 of making sexually explicit material available to K.J. was the alleged transmission of the penis pictures, which Crown counsel correctly points out is an offence contrary to s. 173(2) of the Code, if done for a sexual purpose. When I asked Crown counsel if he took the same position with respect to Count 2, he said he did. He submitted that the act of using a means of telecommunication should be viewed separately from the transmission of the penis pictures.

[204] Based on Legare, it is the use of a means of telecommunication to facilitate sexual offences with minors that was Parliament’s target in enacting s. 172.1. It follows that a similar objective was behind s. 171.1. However, as Counts 2 and 3 of the indictment are particularized, Crown counsel is asking that the same conduct, “to wit: exposing his genitals to K.J.” be used for two purposes: to establish the act that facilitates and as constituting the act to be facilitated. I find this to be manifestly inconsistent with the offences established by ss. 171.1(1)(b) and s. 172.1(1)(b) of the Criminal Code.

[205] With respect to Count 2, as particularized the use of a means of telecommunication is restricted to the accused’s exposure of his genitals for the purpose of facilitating some other sexual offence. The exposure of his genitals by a means of telecommunication cannot serve both as the preparatory act of the inchoate offence and the offence thereby facilitated. Similar reasoning applies to Count 3.

[206] Crown counsel may have been compelled to advance the submissions I have just outlined because, aside from any inference that may flow simply from the act of sending pictures of his penis, there is insufficient evidence to support an inference that the accused’s alleged exposure of his genitals was for the ulterior purpose of facilitating another sexual offence. I point out that not a single argument was advanced to that effect in either written or oral submissions.

[207] I understand from Legare that, when it comes to the use of a means of telecommunication to facilitate another sexual offence, there is no requirement for there to be sexually explicit language or obviously sexual discourse. I point out, however, that the time period contemplated by Counts 2 and 3 differ and both relate only to the period after the accused was fired from Manjak’s. There is no significant evidence of two-way communication between the complainant and the accused in the period between the accused’s firing and use of the “diswans” account. K.J. tried to establish communication but the accused did not engage except to tell K.J. her training was in good hands without him and that she should not be contacting him.

[208] Even if I were to accept all the complainant’s evidence about her discourse with the accused during the time frame covered by Counts 2 and 3, I note that there is no evidence the accused suggested they meet or continue some form of a sexting relationship. Aside from any inference available from the sending of the penis pictures themselves, there is no evidence of an intent to facilitate the commission of another offence.

[209] I now turn to whether the accused sent pictures of his penis to the complainant.

[210] The critical factual findings required in relation to Counts 2 and 3 are whether the accused transmitted pictures of his penis to the complainant and whether he did so for the purpose of facilitating another specified sexual offence. Aside from how the “diswans” Snapchat communications were initiated, the testimony of K.J. and the accused is divergent. As these factual questions comprise the essential elements of the offences charged in Counts 2 and 3, they must be established beyond a reasonable doubt.

[211] Crown counsel mounted his strongest attack against the accused’s overall credibility in relation to Counts 2 and 3. He submitted that the accused could have used other means of communication to deliver his threat to contact K.J.’s mother if K.J. did not stop trying to contact him. He could have emailed K.J., her mother or both. He could have used Facebook to respond to K.J. He could have sent a text message, communicated in his own name on his personal Snapchat account, or communicated through a third party, like Kelly Manjak. Crown counsel emphasized that the accused was fired based on his earlier Snapchat communications with K.J. He was suspended as a coach for the same reason. Crown counsel submits that in these circumstances it is beyond belief that the accused would set up a separate Snapchat account and call it “diswans” just to convey his ultimatum to K.J. Crown counsel also emphasized that the accused knew K.J. had a history of saving such messages on other devices and yet he took no actions to save the “diswans” communications to protect himself.

[212] To these submissions I would add that the accused chose to name the new Snapchat account “diswans”. While that was a name that would be known to K.J., I observe that it would not likely be recognized by K.J.’s mother or anyone else. I also found it odd that the accused said he did not really recall the name of the account.

[213] These submissions are persuasive and leave me unable to affirmatively accept the accused’s evidence. However, when I consider all the evidence, I conclude I am not able to outright reject the accused’s evidence as untrue. I observe that the circumstances were such that no amount of direct communication between K.J. and the accused would likely be acceptable to K.J.’s parents. Yet K.J. was repeatedly trying to contact the accused in circumstances when she said her greatest fear was that her mother would find out. The accused’s evidence is that he intended to convey that he would tell K.J.’s mother if she did not desist. His objective was not to get K.J. in trouble by immediately notifying her mother. This is worth keeping in mind. There is also some logical force in the accused’s testimony that he did not want to proceed in a fashion which would allow K.J. to see anything about his new life in Ottawa, which was on his personal social media accounts. There is also force in his testimony that he did not keep copies of the “diswans” communications, or care if K.J. did, because all he had told her to do was to stop contacting him.

[214] My conclusion that I do not affirmatively accept the accused’s evidence covers stage one of the W.(D.) analysis.

[215] Turning to stages two and three of W.(D.), I have difficulty overcoming the reasonable doubt left by the cumulative effect of the following matters. I mention the cumulative effect because, taken individually, some of these things might be explained by confusion on the part of K.J., by her faulty memory, or by the passage of time. However, cumulatively they impact my assessment of whether Crown counsel has proven the offences charged beyond a reasonable doubt.

[216] First, although I recognize there is no requirement that K.J.’s testimony be confirmed by other evidence, it remains a significant feature of this case that the penis photos which K.J. says were sent to her are not available as evidence. Proof of their sending is entirely dependent on my being sure that I can rely on K.J.’s evidence. While I do not accept the accused’s evidence, I have not rejected it as untruthful. It remains a factor to be considered as part of the evidence.

[217] Second, K.J.’s evidence changed significantly during her testimony. Initially she testified that she and the accused communicated over the “diswans” account for about a week before he sent her the penis pictures. After refreshing her memory from Kelly Arnold’s notes of their conversation on January 14, 2018, she said the communication lasted only a day or slightly more, and then the pictures were sent to her. This is not a minor change in her evidence.

[218] Third, despite other changes in her evidence, K.J. has been consistent and unwavering in her assertion that her first communication with the accused on the diswans account was on New Year’s Eve. I am satisfied based on the evidence of the accused, as supported by the evidence of his friend Jonathan Jiwan, that the accused was engaged with his friends and not using his cell phone or other devices on New Year’s Eve. Mr. Jiwan was not challenged on this evidence in cross-examination. He was only cross-examined to establish that the accused was living in the basement of his parent’s home at the time.

[219] Fourth, K.J.’s evidence is generally to the effect that, based on what she observed in the photos, the accused was in his basement sitting on a dark leather couch when the penis photos were taken. I accept the evidence of the accused’s father that the two leather couches the complainant was familiar with from her visits to the house had been removed months before and replaced with a light beige sofa.

[220] I acknowledge that there is some imprecision in the complainant’s evidence concerning this point. Because she had been in the basement when the leather couches were there, and because photos sent on Snapchat disappear, her memory may be playing tricks on her. There is also the possibility that the penis pictures were taken at an earlier time and were stored on the accused’s phone. However, I have no evidence to support such theories to explain any significant divergence between K.J.’s description of what she says she saw and the nature of the furnishings in the basement at the time.

[221] Fifth, K.J.’s refreshed testimony that she received the penis pictures on January 1, 2018 or early January 2, 2018 is inconsistent with the sentiment she expressed to A.F. about the accused during their text messages commencing January 2, 2018 at 11:25 p.m. There K.J. said she would be fine if she saw the accused because she was over what had occurred. K.J. herself agreed this was how she felt before she received the penis photos. That, in combination with A.F.’s evidence that K.J. probably told her about the penis pictures between January 8 and 11, 2018 could add up to K.J. simply being in error when she changed her initial testimony as reflected in my second point above. However, I am not sure of that.

[222] Sixth, K.J. testified that she told A.F. about receiving the penis pictures within 24 hours. A.F., however, said K.J. told her that she waited three to four days to tell her about the pictures.

[223] Finally, K.J. agreed that the accused warned her during their communication that if she told anyone they were communicating, then he would tell her mother. I agree with defence counsel’s submission that this is illogical and would have placed the accused in jeopardy. That is especially so if, as alleged, the accused was acting for the purpose of facilitating a sexual offence. This is a point of some significance given the accused’s testimony that he did threaten to contact K.J.’s mother if K.J. did not stop contacting him.

[224] All of this is set against the background of the complainant making repeated efforts to initiate communication with the accused and the accused not engaging with her. I prefer the accused’s clearer recollection that the complainant was persistent in those attempts than K.J.’s muted acknowledgments in that regard.

[225] I want to be clear that that I am not making an affirmative finding that K.J. has been untruthful in her allegation. There are aspects of her account which support her credibility. For example, it seems to me that it would be extremely unlikely that a made-up story of receiving a penis picture would include a sock being placed over the penis and the accused having previously asked her for pictures of her feet. I have carefully reflected upon whether such considerations, combined with Crown counsel’s effective submission that the accused’s testimony about setting up the “diswan’s” account to convey his warning to K.J. does not make sense, should lead me to find that the penis photos were sent. However, at the end of the day the circumstances I have referred to leave me unsure. It could be that the accused successfully resisted acting upon an interest he had developed in K.J. until that broke down after K.J.’s repeated efforts to promote further contact. But in the absence of the photos, due to the inconsistencies and problems with K.J.’s evidence and the history of the accused resisting K.J.’s attempts to renew communication, I am left with a reasonable doubt about whether the penis photos were transmitted as alleged.

[226] In the circumstances, having regard to the way in which Counts 2 and 3 are drafted, acquittals must follow. For clarity, I am satisfied beyond a reasonable that the accused used a means of telecommunication to communicate with K.J., whom he knew was under 16 years of age. I have a reasonable doubt about whether the accused transmitted photos of his genitals to her. And in view of that conclusion, and for similar reasons, I have a reasonable doubt about whether his use of a means of telecommunication was for the purpose of facilitating another sexual offence as alleged in Counts 2 and 3. On this last point I observe that there is no evidence that the accused communicated anything else to K.J. to promote improper contact or the commission of any other offence.

[227] Accordingly, the accused is found not guilty on Counts 2 and 3.

F. Dawson J.

Released: November 21, 2022

COURT FILE NO.: CR-18-00001281-0000

DATE: 2022 11 21

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

- and –

SCOTT MCFARLANE

REASONS FOR JUDGMENT

F. Dawson J.

Released: November 21, 2022