Court File and Parties
Court File No.: CR-23-3/047 Date: 2023-03-24 Ontario Superior Court of Justice
Between: His Majesty The King - and - R.K.T.
Counsel: Alexandra Penny, for the Crown R.K.T., on his own behalf (unrepresented) Marissa Etwaroo, counsel for the accused, to cross-examine the complainant
Heard: January 10-12, 16-19, 23-25, 30-31, February 1, 2023
Subject to any further Order of a court of competent jurisdiction, an Order has been made in this proceeding, pursuant to s. 486.4 of the Criminal Code, directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast or transmitted in any way.
K.L. Campbell J.:
Reasons for Judgment
I Overview
[1] The accused, R.K.T., is charged with: (1) surreptitiously making a visual recording of a person, in circumstances when that person was nude and had a reasonable expectation of privacy; (2) possession of child pornography; (3) making child pornography; and (4) distributing child pornography. The accused is alleged to have committed these various offences in Toronto between January 1, 2015 and July 13, 2019. Essentially, the accused is alleged to have committed these offences of voyeurism and making and distributing child pornography, by surreptitiously recording his younger step-sister, C.M., while she was disrobed and at least partially naked in the bathroom of his own residence and/or while she was in the bathroom of his mother’s residence, and at a time when she was under 18 years of age.
[2] The unrepresented accused has pled not guilty to all of these alleged offences. Initially, he elected trial by jury, but subsequently, during the litigation of the pre-trial motions in relation to this case, he re-elected to be tried by judge alone. The parties both sensibly agreed that the evidence heard as part of the pre-trial motions, and which was ultimately admitted (after editing), would form part of the evidence at trial, so that it did not have to be needlessly repeated.
[3] The accused has acted on his own behalf throughout the trial of this matter, except that counsel was appointed, pursuant to s. 486.3 of the Criminal Code, R.S.C. 1985, Chap. C-46, to cross-examine the complainant.
Part II The Presumption of Innocence and the Burden of Proof on the Crown
[4] The accused is, of course, presumed to be innocent. That presumption of innocence has been with the accused throughout the trial and remains with him unless and until the Crown establishes his guilt for these alleged offences beyond a reasonable doubt. That heavy burden of proof never shifts. The accused has no obligation to establish his innocence. This important and long-standing principle of our criminal law is constitutionally entrenched in s. 11(d) of the Canadian Charter of Rights and Freedoms. See: R. v. Dubois, [1985] 2 S.C.R. 350, 22 C.C.C. (3d) 513, at p. 357; R. v. Pearson, [1992] 3 S.C.R. 665, 77 C.C.C. (3d) 124, at pp. 682-683, 687.
[5] It is also important to recall the nature of the heavy burden of proof on the Crown. As juries are typically instructed, a reasonable doubt is not an imaginary, far-fetched or frivolous doubt, or a doubt based on sympathy or prejudice. Rather, it is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the lack of evidence. Of course, it is not enough for a trier of fact, whether it be judge or jury, to believe that an accused is probably guilty or likely guilty, as that is not proof beyond a reasonable doubt. However, the Crown is not obliged to establish, with absolute certainty, the alleged guilt of an accused, as such a standard of proof is impossibly high. Nevertheless, as the Supreme Court of Canada stated in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 242, proof beyond a reasonable doubt is much closer to proof of absolute certainty than it is to proof of probable guilt. At the end of the case, after considering all of the evidence, a trier of fact must be sure that an accused committed the alleged offence before finding him or her guilty of that offence, because it is only at that point that the trier of fact can be satisfied beyond a reasonable doubt as to the guilt of the accused. See also: R. v. Lifchus, [1997] 3 S.C.R. 320, 118 C.C.C. (3d) 1, at paras. 13-43; Mr. Justice David Watt, Manual of Criminal Jury Instructions (2015, 2nd ed.), at pp. 261-267.
Part III The Testimonial Silence of the Accused
[6] Of course, an accused need not testify in his or her defence and, if the accused elects to remain silent in the face of the criminal allegations, as the accused elected to do in the present case, no adverse inference can be drawn against him for his reliance upon that important right. As the Supreme Court of Canada has confirmed, an accused’s testimonial silence at trial “is not evidence” of guilt and “cannot be used as a makeweight for the Crown in deciding whether the Crown has proved its case.” In other words, if, after considering the whole of the evidence, the trier of fact is not satisfied that a charge against an accused has been proven beyond a reasonable doubt, the trier of fact cannot look to the accused’s failure to testify to remove that doubt and help the Crown prove its case beyond a reasonable doubt. See: R. v. Prokofiew, 2012 SCC 49, [2012] 2 S.C.R. 639, at paras. 4, 10-12, 15, 20-21, 26, 64-65; R. v. Noble, [1997] 1 S.C.R. 874, 114 C.C.C. (3d) 385, at para. 72; R. v. Tomlinson, 2014 ONCA 158, 307 C.C.C. (3d) 36, at paras. 97-98; R. v. Caron, 2014 BCCA 111, [2014] B.C.J. No. 492, at paras. 24-26; R. v. Duhamel, 2012 ONSC 6449, [2012] O.J. No. 5817, at paras. 91-92.
IV The Relevant Background Facts
[7] There are a number of facts in this case that are not seriously the subject of any real dispute between the parties. In any event, I have no difficulty accepting, beyond any reasonable doubt, the following background facts to be true.
[8] There were a series of video recordings made of the complainant, C.M., when she was in the bathroom of the accused’s home, and when she was in the bathroom at the residence of the accused’s mother. In these video recordings, the complainant is at least partially or fully naked, and is using the bathroom facilities to shower, or change her clothing, or is using the toilet facilities for one reason or another.
[9] The recordings were clearly made in those two specific locations because there are unique, identifying features that can be seen in both bathrooms. There can be no doubt in this regard.
[10] While there is some suggestion that these video recordings might have been made by the complainant herself, on her own cell phone, or might have been made by some third party who somehow had surreptitious access to her cell phone by some technological means, I have no hesitation rejecting those suggestions as wholly unrealistic speculations without any sensible evidentiary support. The complainant denied any such suggestion. In my view, these video recordings were made by someone who had reasonable access to the two different bathroom locations where the recordings took place, and who used some type of hidden camera to surreptitiously make the video recordings, entirely unbeknownst to the complainant.
[11] These video recordings of the complainant were then uploaded and/or posted to various pornographic websites that catered, at least in part, to “hidden camera” videos of naked or partially naked individuals. I am satisfied that the accused was not the person directly responsible for the uploading and/or posting of the videos to the pornography websites. He may have provided the video recordings to others, but he did not personally post the video recordings himself. Rather, despite the fact that the accused had admitted (in a statement to the police) that he had previously accessed these same pornographic websites, these video recordings were uploaded or posted to the pornography websites by other unknown individuals who had “published” the video recordings in this fashion. The investigating police officers were, admittedly, never able to identify who had, in fact, “published” these hidden camera video recordings to these pornographic websites.
[12] The complainant was born in May of 2000, and she, predictably, turned 18 years of age in May of 2018. I accept the testimony of the complainant that, in at least one of the video recordings, she was but 15-16 years of age, making at least that video recording “child pornography” pursuant to s. 163.1(1) of the Criminal Code. Of course, the accused clearly knew the date of birth of his step-sister, and her corresponding age at the time of the various video recordings.
[13] The complainant first became aware of these video recordings in July of 2019, when she was told, by some anonymous individual, via text message, about their existence on the pornographic websites.
V Analysis of the Other Important Evidence
[14] As I have indicated, in my view, these video recordings of the complainant were surreptitiously made by someone who had reasonable access to the two different bathroom locations where the recordings took place. The accused is clearly someone who falls into that relatively small category of individuals. Based upon the evidence, and common sense, the accused clearly had regular access to the bathroom in his own home, and similarly had regular access to the bathroom located in his mother’s residence, where he frequently visited. Accordingly, the accused was a member of a small group of individuals who could potentially have made these surreptitious video recordings.
[15] Further, in early December of 2017, the accused sent a Facebook message to his male cousin, C.MF., a Facebook “friend” who clearly had an interest in such “hidden camera” videos, that contained an electronic link to one of the pornographic websites which linked to one of the video recordings of the naked complainant, as well as six screen shots or still images taken from the video recording of the naked complainant. This video recording (and the accompanying still images) is the video recording where the complainant is but 15-16 years of age. Significantly, in the accompanying still images, unique identifying artwork from the bathroom background has been rendered obstructed, or not viewable. In other words, the unique identifying artwork in the background that would otherwise identify the bathroom in which the video recording was taken was somehow electronically manipulated so as to hide this distinctive artwork, and thus the actual physical location of the video recording. The accused indicated, in the accompanying text message, that these images showed that the complainant had a “sweet bod.” The accused also communicated with C.MF. in a way that showed that he had read some of the “comments” that had been posted on the pornographic website about the video recording of his step-sister. In the ensuing, text message communications between the accused and his cousin, the accused indicated that he obtained this website link and the still images in a random email message he received from the pornographic website itself.
[16] I note in passing that the police recovered these important text message communications lawfully, through their interview of the accused’s cousin, C.MF., and through his voluntary conduct in providing the police with these recorded text message communications.
[17] This evidence makes it clear that, in early December of 2017, the accused knew about at least one of the surreptitious video recordings of the complainant. Further, I entirely reject the suggestion that the accused came into possession of these six still images of the naked complainant when she was less than 18 years of age, through some random “spam” email message from the pornographic website that displayed this video recording. In my view, it is simply incredible to suggest: (1) that any pornographic website would send out random “spam” emails containing links and still images of naked, young women to anyone – even individuals who may have subscribed to access their website; and (2) the only random “spam” email to the accused from this pornographic website contained a link and still images of the accused’s naked, young step-sister.
[18] Instead, the only sensible inference to be drawn from this evidence is that: (1) the accused had access to this surreptitiously recorded video recording of the naked, young complainant; (2) the accused knew that this video recording had been posted on a pornographic website; and (3) the accused had access to still images of this video recording of the naked, young complainant, that had been somehow manipulated so as to conceal unique, identifying features of the bathroom where the video recording had been surreptitiously taken.
[19] In October of 2019, the investigating police officers executed a search warrant at the home of the accused, and seized, amongst other things, a hard drive “Simple Tech” back up, and a computer hard drive from the desktop computer. The police also arrested the accused that day. Expert analysis of these two electronic devices revealed two images on these devices, contained in a file that was called the “backup” of the accused’s android phone. These images showed the naked body of the complainant from one of the video recordings, but with her head cropped out of the images. According to the expert evidence that explained this finding, these images were located on the accused’s android cell phone before May 16, 2017.
[20] In short, the electronic information, and the accompanying expert evidence surrounding these images, show that the accused was in possession of these images of the naked young complainant, taken from one of the surreptitious video recordings, before May 16, 2017.
[21] At one point, earlier in the police investigation, the police suspected that the accused’s cousin, C.MF., had committed these alleged offences. Indeed, at one point he was arrested in connection with these offences. He was someone who was clearly interested in these types of “hidden camera” video recordings. Indeed, he agreed that he had committed similar offences in relation to two other women. However, the police investigation of C.MF did not support his involvement in these alleged offences concerning the complainant. Rather, the police investigation showed that C.MF. could not have committed these offences, but the investigation pointed rather to the accused. C.MF. testified in this matter and effectively denied having committed any of the alleged offences concerning the complainant. I accept his evidence in this regard.
[22] I should note, as well, that the largely exculpatory pre-trial statements made to the police by the accused did not cause me to have any reasonable doubt as to the guilt of the accused with respect to any of the alleged offences.
Part VI Conclusion – Verdict
[23] In the result, the accused is found guilty of: (1) surreptitiously making a visual recording of the complainant when she was nude and had a reasonable expectation of privacy; (2) possession of child pornography; (3) making child pornography; and (4) distributing child pornography, by providing it to his cousin. See: R. v. Morelli, 2010 SCC 8, 2010 SCC 253, [2010] 1 S.C.R. 253, at paras. 14-19; R. v. Chalk, 2007 ONCA 815, 88 O.R. (3d) 448, at paras. 3-4, 17-27; R. v. Downes, 2023 SCC 6, at paras. 1-5, 12-15, 22-24, 26-30, 32-36, 39-54.
[24] In short, I am satisfied beyond a reasonable doubt: (1) that the accused surreptitiously made the various visual video recordings of the complainant when she was nude and had a reasonable expectation of privacy in the bathrooms; (2) that the accused knowingly possessed child pornography by knowingly possessing images of his naked step-sister when she was under 18 years of age; (3) that the accused made child pornography by surreptitiously making a video recording of the naked complainant when she was under 18 years of age; and (4) that the accused distributed child pornography, by providing the images of the naked complainant, when she was under 18 years of age, to his cousin, C.MF.
[25] Accordingly, the accused will be convicted of all counts of the indictment.
Kenneth L. Campbell J.
Released: March 24, 2023
COURT FILE NO.: CR-23-3/047 DATE: 20230324 ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING - and - R.K.T. REASONS FOR JUDGMENT K.L. Campbell J. Released: March 24, 2023