COURT FILE NO.: 4369/18 DATE: 20230109 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – Warren Walls Defendant
COUNSEL: I. Mizel for the Crown F. Miller for the Defendant
HEARD: February 19 and 20, 2020 and August 25, 2020 March 26, 27, 28 and August 14, 16, 26, 27 and November 13 , 2019, March 30 and 31 and August 18, 2022
REASONS FOR JUDGMENT
MCARTHUR J.
Introduction
[1] Warren Walls is charged with three counts involving the complainant, K.J., as follows:
a) Invite her, a person under the age of 16 years, between April 1 and May 21, 2017, for a sexual purpose to touch a part of her body with his body contrary to Section 152 of the Criminal Code of Canada;
b) Transmit sexually explicit material to her, a person he believes was under the age of 16 years, between April 1 and May 21, 2017, for the purpose of committing an offence under Section 271 (sexual assault) or 173(2) (expose his genital organs to a person under 16 years) of the Criminal Code of Canada; and
c) Commit a sexual assault upon her on May 18, 2017 contrary to Section 272 of the Criminal Code of Canada.
[2] A ban on the publication of the complainant’s identity and any information to serve to identify the complainant is also in effect.
[3] This case commenced on February 19, 2020 just before the suspension of the courts due to the Covid-19 pandemic. The evidence was completed by instalments after various Covid-19 and other delays.
[4] This is the decision of the court in this case.
The Legal Issues
[5] The ultimate question in this case is whether the Crown has proven the case beyond a reasonable doubt. The key issues are credibility and reliability.
Applicable General Legal Principles
[6] As I have considered the evidence and both Crown and Defence counsel submissions, I am mindful that the test in a criminal trial is not which side I believe more but whether the Crown has proven the offences beyond a reasonable doubt. All of the evidence must be considered in determining whether the Crown has met its burden.
[7] Mr. Walls is presumed to be innocent unless and until the Crown has proven the offences beyond a reasonable doubt. Reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities.
[8] In assessing the credibility of the witnesses in this case, I also apply the principles articulated by the Supreme Court of Canada in R. v. W.(D.) as applied by subsequent cases and commentary such that:
a) I cannot properly resolve a criminal case by deciding which conflicting version of events is preferred;
b) If I believe evidence that is inconsistent with the guilt of the accused, I cannot convict the accused;
c) Even if I do not entirely believe the evidence inconsistent with guilt of the accused, if I cannot decide whether that evidence is true, there is a reasonable doubt, and the accused must be acquitted;
d) Even if I entirely disbelieve evidence inconsistent with guilt, the mere rejection of evidence does not prove guilt; and
e) Even where I entirely disbelieve evidence inconsistent with guilt, the accused should not be convicted unless the evidence that is given credit proves the accused guilty beyond a reasonable doubt.
[9] In assessing credibility of all witnesses, I have considered the general integrity and intelligence of the witness, each witness’s opportunity to observe, capacity to remember and accuracy in statements. It is also important to determine whether the witness is honestly endeavouring to tell the truth, whether sincere, frank, biased, reticent and/or evasive.
[10] The important issues in this case are that of the witnesses’ credibility and reliability. A valuable means of assessing the credibility of a witness is to examine the consistency between what the witness said in the witness box and what the witness has said on other occasions, whether under oath or not. I also have assessed what is testified to in the context of all the evidence in the case and not on an isolated basis including any inconsistencies and whether these are inconsequential or material and significant to the case. Where an inconsistency is significant, then this court has paid careful attention to it when assessing the reliability of the witness's testimony. This has been a feature and assessment in this case as will become apparent in these reasons.
[11] The role of confirmatory and contradictory evidence can be especially important when assessing the evidence of some witnesses. However, confirmatory evidence in particular, need not directly implicate the accused or confirm the Crown witness’ evidence in every respect. Rather, the confirmatory evidence should be capable of restoring the trier's faith in the relevant aspects of the witness' account.
[12] I have also taken into account the evidence tendered in this case, including the exhibits filed. I have also considered the absence of evidence.
Summary of the Crown’s Case
[13] K.J. was 15 years of age at all relevant times in this case. She was in high school in the spring of 2017 and graduated in 2019. She testified at 19 to 20 years of age. She today would be 21 years of age.
[14] Warren Walls was a co-worker and friend of J.K.J., the complainant’s father. They were both truck drivers with the same employer. Mr. Walls was in his fifties in 2017. Mr. Walls and the complainant met through horse events or her father’s employment by February or March 2017. Both Mr. Walls and K.J. shared a mutual interest in horses. Mr. Walls owned 2 horses that he boarded at a barn property in Morpeth approximately an hour plus drive from Leamington and Harrow, Ontario. The complainant had been involved with horses since age 10.
[15] The complainant testified she exchanged phone numbers with Mr. Walls. They did not talk on the phone often but communicated mainly by text messages or through the SnapChat application, both which transmitted texts, photographs and video. The complainant would accompany Mr. Walls on drives to and from the Morpeth property to work with the horses. The drive one-way would take approximately 1.5 to 2 hours.
[16] The complainant indicated that their conversations and communications were casual for the first two to three weeks, after which the messages from Mr. Walls became flirty. The flirty comments and messages went on for approximately the next two months.
[17] After four to five weeks, while driving, she testified that Mr. Walls asked her to give him a blow job. She did not recall responding to him but recalled blushing.
[18] On May 17, 2017, Mr. Walls was at the residence of the complainant’s family in Harrow, Ontario and was assisting in the rewiring of the lights to a horse trailer owned by the complainant’s father. K.J.’s evidence was that she went into a barn and was followed by Mr. Walls who came behind her and grabbed her butt and made comments to her. She said her father came around into the barn and she was emotionless. Mr. Walls walked out of the area as if nothing happened. She said she felt gross and was shocked when touched by him and that her trust in him was broken. She also testified that she felt emotionally confused, had mixed emotions, felt unsure what to do and was upset but kept herself under control.
[19] The complainant spoke that same night about Mr. Walls’ conduct to her boyfriend, Nick. She spoke to her father a couple days later and made allegations about Mr. Walls but did not make mention of the May 17, 2017 incident at that point. That occurred after she made a statement to police.
[20] The complainant had scrolled through and showed the texts and messages she had with the defendant to her boyfriend who took pictures of some of these text and messages between the complainant and the defendant. She testified she showed her boyfriend anything she thought was questionable. Her boyfriend then sent a file to her of these messages that he took images of which as she described were “over the line”. She also testified that there were other flirtatious messages that she had not saved.
[21] These messages were estimated by the complainant to be perhaps 10% of the total messages between her and the defendant. These images were shown and turned over to the police.
[22] The messages were contained in Exhibits 2 to 13 inclusive.
[23] The complaint testified that she saved the texts she was sure were over the line after about 4 weeks and when she had started not feeling right. Before that, she regarded the comments with Mr. Walls as a sexual sense of humour that she had raised with her mother and another family member who knew Mr. Walls.
[24] She also testified that the defendant sent her over SnapChat a masturbation video and a video of sex with another woman who had a tattoo on her hip. At one point while in the truck with the defendant coming back from Morpeth and after receiving the video, the defendant also showed her a picture of a naked woman and talked about his sex life with his ex-girlfriend, asked the complainant if she was a virgin, a squirter and what types of things she had done with her ex. The complainant testified that she answered, was embarrassed and stared out the window since there had not been any conversation like this before. She felt the relationship had shifted to the sexual and she was uncomfortable.
[25] K.J. also testified that before receiving the videos, the defendant unexpectedly sent her 2 pictures of himself by Snapchat; one with him standing in a mirror in grey boxer underwear and another which was him standing naked with an erect penis. No videos or other pictures in this regard were tendered as evidence.
[26] She testified that after receiving the pictures referred to above, she sent him through SnapChat a picture of her in a bra after he asked for her picture. She was then age 15 years. She testified she did this since the defendant indicated that if she did not, he would show all of her conversations with him to her father. She said she was not comfortable to provide pictures without clothing to the defendant. She did not send any other photos to the defendant.
Summary of the Defence Case
[27] Mr. Walls testified. He denied asking the complainant to perform oral sex on him, denied touching the complainant’s bum in the barn and had no recall of sending or involved in the communications tendered as exhibits 2 to 13.
[28] He testified that he maybe was just with the complainant perhaps 20 times and, in 2017, there were 10 trips with the complainant to Morpeth and that over the 40 hours together, they each got to know one another. He also picked up the complainant from school in the spring upon request by J.K.J. He also recalled some drives to Dresden too with the complainant. He testified that the complainant was never at his house.
[29] Mr. Walls was cross-examined. His testimony on cross-examination was resistant and evasive and he generally maintained a poor memory and recollection. He testified that he was terrible with times and dates.
Essential Elements of the Offences
Sexual Assault
[30] The Crown must prove each of the essential elements of the offence of sexual assault beyond a reasonable doubt. The essential elements of sexual assault are as follows:
a) That Mr. Walls intentionally applied force of a sexual nature to the complainant;
b) That the complainant did not consent to the force applied;
c) That Mr. Walls knew the complainant did not consent to the force he applied.
Distribute sexually explicit material to facilitate an offence
[31] The essential elements of section 171.1(b), that the Crown must prove are:
a) Mr. Walls transmitted, made available, distributed, or sold sexually explicit material;
b) The transmission, making available, or distribution must be to a person the accused believes to be under 16; and
c) Mr. Walls’ purpose in making the transmission must be to facilitate the commission of one of the designated offences with the person to whom the communication is made.
[32] Sexually explicit material is defined in subsection 171.1(5) and can include photograph or video that shows a person engaged in explicit sexual activity or the dominant characteristic of which is the depiction of genital organs for a sexual purpose. Additionally, sexually explicit material is defined as written materials whose dominant characteristic is the description, for a sexual purpose, of explicit sexual activity with a person.
[33] The transmission can involve an electronic thing.
Invitation to sexual touching
[34] The essential elements of Section 152 are that:
a) The person Mr. Walls communicated with was under 16 years old
b) Mr. Walls incited, counselled or invited the complainant to touch him; and
c) The communication for touching was for a sexual purpose.
Assessment and Analysis of the Evidence
[35] The assessment of the evidence must necessarily take into account all of the evidence, content and context of the allegations made. In this case, the allegations made through the Crown witnesses can be characterized as a crass, opportunistic and prolonged sexualized behaviour and conduct by a mature adult male involving a younger teenage female.
[36] The following is the analysis and commentary of the significant features in the evidence of this case that are central to this decision.
[37] The Crown’s case involved the evidence of the complainant and her father, J.K.J. I will make references to the witnesses and additional evidence where necessary for these reasons.
General Comments
[38] As to the evidence of the complainant, K.J. she was responsive and articulate. She generally answered the questions put to her in a straightforward manner. She was emotional at times, but this did not adversely affect her testifying. I have placed some weight on her demeanour, however, in this case I have also substantially considered and based this decision on the content of her evidence. I am also mindful of her age and that she is now testifying as a young adult with the perceptions of a teenage female at that time.
[39] All evidence must be considered in relation to all of the other evidence in this case and each count must be assessed separately in relation to the evidence.
Sexual assault allegation
[40] This was the last alleged incident chronologically. K.J.’s evidence is that the defendant cupped her bottom without consent while standing in the pole barn at the family’s residence. This occurred in the context of Mr. Walls assisting J.K.J. in fixing the lights on the trailer that was for the complainant’s benefit. The receipt tendered as Exhibit #1 for items that J.K.J. obtained from Home Hardware supports this date. J.K.J.’s evidence likewise corroborates these features of the complainant’s evidence.
[41] Mr. Walls acknowledges attending the residence to assist in fixing the trailer that day.
[42] Crown counsel candidly acknowledged in submissions the evidential inconsistencies that the defence raised in submissions to evidential features of the complainant in relation to this incident.
[43] K.J. testified in-chief that she had been asked by her father to obtain a tool from the barn but did not know exactly what tool he was referring to. She testified she went into the barn and was followed by the accused. When she turned toward the toolchest, the defendant grabbed her briefly on the right side of her butt with what she believed was the defendant’s right hand. She testified that her father then came around the corner of the barn and the defendant then walked out of the main door of the barn as if nothing happened.
[44] J.K.J. testified that on this date, he recalled Mr. Walls and his daughter were in the barn together at one point and saw Mr. Walls in close proximity to his daughter. He described his daughter as acting normal when he saw her.
[45] On cross examination, K.J. testified that she did not recall who asked her to obtain the tool from the barn. She later acknowledged that in the course of her interview with the police, she then had stated that she had entered the pole barn at the request of the defendant. She later testified and acknowledged knowing that it was her father who had made the request and she admitted she lied to protect her father from responsibility for the incident in the barn and make it appear that the defendant lured her into the barn and get away from the presence of the complainant’s father.
[46] K.J.’s efforts were a serious fabrication of evidence. She explained she did this due to her immaturity at the time of making a statement to the police. However, even if this was a feature the court could accept, there remain other troubling implications in relation to her evidence. For example, K.J. testified that she was sent by her father to obtain a tool which she was unfamiliar with, had no idea what she was searching for, and that Mr. Walls was with her to help her get the tool. She also testified she was going into the toolbox while the accused stood behind her. The implication was that his access to the toolbox that would have been blocked by her presence and Mr. Walls would not be able to assist her.
[47] There are also other concerning features in her evidence, for example, her testimony that she exited the barn through a “man-door” to avoid her father and did not see him or Mr. Walls after her exit. The additional problematic features need not be expanded upon since the court cannot accept her immaturity as an explanation for such a serious fabrication.
[48] In view of the complainant’s changing versions and her inconsistent and irreconcilable evidence, the court is left in a conundrum as to what to believe as to core features of the in relation to this allegation. The court finds that the explanations offered are unsatisfactory or non-existent and do not account for these problematic features. Ultimately, this court finds there are serious concerns to both the reliability and veracity of the K.J.’s evidence in relation to this incident.
[49] As a result, there is doubt and the court cannot make a finding of proof beyond a reasonable doubt that the act occurred in relation to the allegation of sexual assault. In view of this finding, it will not be necessary to review the evidence of Mr. Walls with respect to this allegation.
Invitation to touch for a sexual purpose allegation and transmitting sexually explicit material
[50] As mentioned earlier, the text message exchanges between K.J. with Mr. Walls were filed as Exhibits 2 to 13. On cross-examination, K.J. grouped the messages as follows along with a summary description of the content as the court has noted:
a) Exhibits 9, 4 and 5 were continuations of the same conversation about training the horse named Sonny, the defendant driving her to Morpeth, providing meals on route and him dating another person. Some comments attributed to the defendant include: “you just put your cute ass on him ok?”, “Besides you make me look good being in that truck”, “your easy on the eyes”, “the longer I can spend with you the better”;
b) Exhibits 12 and 11 were about their ongoing conversations. The complainant expresses she “spent the night feeling guilty and feeling like I’m hiding stuff from Nick (her boyfriend). I can’t be committed to someone and continue on the way we are….I still love talking to you and joking around…it’s eating me alive” and the defendant responds “No worries! It’s all good…I’d love to see what I’m missing out on and I promise not to screenshot them” and “But I may pop [a boner] if I see you in spandex”;
c) Exhibits 2 and 3 are conversations about picking the complainant up for the drive. The defendant comments “…I’ll message you when I’m on my way ok? Those spandex would be nice to see…My stares would keep you warm…. Damn I wish you were single! Lol! Miss the flirting already”;
d) Exhibits 10, 6, 7, 13 and 8 were all separate conversations and not linked together as follows;
i. Exhibit 10 is the defendant wishing the complainant good night with comment “I’d have my lips all over you if you let me” and the complainant responds “Aha but I am very much taken”;
ii. Exhibit 6 is the defendant asking the complainant “So cutie will you do any flirting with me” and the complainant replies “I don’t know”;
iii. Exhibit 7 is the defendant commenting “I would love to nibble on that perfect ass. Hell.. that whole body” and the complainant replies “this whole body is taken is taken by Nick…”;
iv. Exhibit 13 is the defendant’s reply to the complainant’s comment about it eating away at her. He states “I hear ya Hun. I’m still gonna flirt but on a mild note ok? And she replies “Ok”.
v. Exhibit 8 is about the complainant being grounded by her mother and the defendant comments her mother “needs a good stiff dick to cheer her up!”
[51] Mr. Walls testified that he knew K.J. was 14 or 15 years of age at the relevant time. He testified that he did not have any recollection of Exhibits 2 to 13 and he did not recognize these as communications he sent or was involved with. On cross-examination, Mr. Walls maintained his lack of recollection on various features in the evidence. This included comments attributed to him such as enjoying “her ass in tights or spandex” amongst many others in Exhibits 2 to 13.
[52] Mr. Walls also testified he had little memory of anything that happened with the complainant and that his memory was “no good” and that he cannot remember something from two weeks ago. He also testifies that he did not have any physical or cognitive impairments.
[53] This court finds beyond any shadow of a doubt that Mr. Walls engaged in the electronic communications with the complainant as produced in Exhibit 2 to 13. This court rejects Mr. Walls’ evidence of his lack of recollection and his poor memory. One additional telling feature as to his memory was in relation to the barn incident; Mr. Walls had a clear recall about looking for a crimping tool in the barn. Mr. Walls’ explanation for such a recall was that his memory is better when it is something physical. This explanation simply did not make sense.
[54] The activities at J.K.J.’s barn in May of 2017 came at the very end of a three-month period during which Mr. Walls had spent substantial time with the complainant in his truck while driving to and from Morpeth, while at the horse barn in Morpeth and after exchanging many electronic text messages with her. Even given the very limited amount of messages produced, this court finds they were together involved with various unique activities and subjects; accompanied each other on drives to and from Morpeth, discussed various subjects including the complainant’s boyfriend, Nick, and there were numerous examples and references to them flirting.
[55] This content substantially connects and corroborates Mr. Walls as the person exchanging these messages with the complainant. Mr. Walls’ claims of memory recall or lack of recall are those of convenience and defy any rational or sensible explanation.
[56] There was reference in the message exchanges to a horse called Sonny. Mr. Walls went out of his way to indicate that he never had a horse called Sonny. Very little turned on this point in any event.
[57] Mr. Walls’ responses in cross-examination were largely evasive, designed to deflect and distance himself from knowledge and involvement with the complainant over the three-month period. The court finds these were not genuine responses by Mr. Walls that the court can accept. The court rejects his evidence in this regard.
[58] In view of these findings, the real issues specifically are what was transmitted, whether the purpose of the transmissions were to facilitate the commission of the underlying offences (sexual assault or exposure of genital organs) and whether the mens rea of the offence of invitation to sexual touching are made out.
Invitation to sexual touching
[59] The complainant testified that, approximately 4 or 5 weeks after meeting Mr. Walls in February or March and on one of the drives from Morpeth, Mr. Walls spoke to her about his sex life with one of his ex-girlfriends who was very flexible and could do sexual scenarios that most others could not. K.J. assumed Mr. Walls was trying to convince her to do things with him. In this context, K.J. testified Mr. Walls asked her “Would you ever want to give me a blowjob?”
[60] She testified she did not remember responding to him but was embarrassed but recalled Mr. Walls commented about her face being red. She also testified that she did not think he was joking.
[61] K.J. did not recall him saying any other things to her in person. Earlier in her testimony, she stated that about two to three weeks after meeting Mr. Walls, their communications changed from casual to flirty.
[62] On cross-examination, K.J. added other allegations of invitations to sexual touching and that Mr. Walls asked her to put money between her breasts while seated in his vehicle. This was contrary to her testimony in-chief that the only sexual act Mr. Walls had invited her to do in the truck was a blow job. This allegation arose for the first time in cross-examination and had never been disclosed to the police in her police statements or in her testimony at the preliminary inquiry. Although this feature was always in her memory, she stated she did not recall when testifying. This does raise some concerns as to the reliability of the complainant and a possibility of additional fabrication of evidence.
[63] The court is also careful to consider this allegation in context with other evidence in the case and particularly Exhibits 2 to 13 mentioned earlier. The court is mindful that of K.J.’s testimony that the text communications in these exhibits were selected and copied because these messages were considered to have crossed the line vis-à-vis the complainant. The produced messages also represented only about 10% of all such text communications. The implication is that the other 90% of the text messages that were not produced were otherwise unremarkable, at least in the estimation of the complainant.
[64] Some of the communications in Exhibits 2 to 13 are expressly flirtatious, sexually suggestive and demonstrate extremely poor judgment and taste by any adult person toward a teenager. It is very difficult for this court to place the comment testified to as referred to above into a clear sequence or time frame relative to other known activities throughout this period. This disjointed context makes it impractical for the court to discern a reliable and clear meaning or to provide the basis for an understanding of any intention or relationship, whether licit or illicit.
[65] In any event, there is no such a reference or similar comment to a blow job in any other communications including the text messages. The alleged request is also markedly different and direct when compared to all other comments that have been characterized earlier. This lack of coherence with the other evidence tends call into question both the accuracy and reliability of the actual comment as testified to by the complainant.
[66] The impression of the complainant as to the defendant’s intention as testified to, without more in these circumstances, cannot supplant or suffice as evidence to meet the Crown’s onus to prove the defendant’s intention beyond a reasonable doubt on this essential element.
[67] There remains an inference that can be made on the evidence that Mr. Walls’ conduct may also have been jokingly made, however ill-advised and repugnant. This would also be consistent with the tenor and content of the communications through messages that are in evidence and other unremarkable messages that are not in evidence.
[68] As a result, this court finds the mens rea element of the invitation allegation has not be proven beyond a reasonable doubt.
The transmission of explicit material for the purpose to facilitate a sexual offence
[69] The Crown submits that the transmission of explicit material arises through the evidence of the complainant who testified that Mr. Walls sent her two videos; one of him masturbating and the other of him having sexual intercourse with another woman.
[70] Neither of the videos are in evidence other than the oral evidence of the complainant. The complainant testified that one of the features on the SnapChat messaging service pertaining to pictures is that the sender can set the period the receiver can see the picture from one to ten seconds and then the picture disappears, and it is never able to be seen again unless the receiver screenshots the image while displayed. There was no direct evidence presented if also applied to a video.
[71] The complainant testified in relation to Exhibits #11 and 12 that Mr. Walls had been requesting that she send him pictures of herself. As noted earlier, the chronological sequence of these text messages was Exhibit 12 and then Exhibit 11. K.J. testified she was becoming uncomfortable with Mr. Walls’ requests. She testified Mr. Walls’ reference in the message to “promise not to screenshot them” referred to the pictures she might send him.
[72] K.J. testified that the reference at the immediate top of Exhibit 12 “You should save that / Are you home?” referred to a 4 to 5 second duration video clip of Mr. Walls masturbating. She testified it looked as though the video was taken by him holding his phone on his chest pointed at his hip area showing an erect penis and knees. She could not see a face, but the room looked like his house and the video was sent from Mr. Walls’ username. There is no other reference to a video in the text messages. K.J. testified that she never spoke to Mr. Walls about this video.
[73] As to a second video, K.J. testified that on a separate occasion Mr. Walls sent a video of him having sex with another woman. There was no reference to an associated text message or any other circumstances to anchor this nor was there any description of the persons for identification or authenticity. This video might be assumed to have occurred after the earlier mentioned video, but this is unknown. K.J. testified she told Mr. Walls this made her feel uncomfortable and that she did not want to see it. This court also observes that K,J, did not testify that she took either of the videos to mean that Mr. Walls wished to sexually assault her.
[74] The import of the evidence was that K.J. felt extremely uncomfortable and guilty with the “stuff of a sexual nature” as mentioned in her message as she outlines in Exhibit #12. She also indicates “I still love talking to you and joking around and I love spending time with you, but I feel I am being unfaithful, and it is eating me alive.” Mr. Walls’ response as outlined in Exhibit #11 is, at the highest, most unflattering and insensitive.
[75] On this evidence, the court cannot find that the videos were in fact of Mr. Walls or any other identified person, nor determine the source of the video. The court finds that the videos were depictions of a sexual nature that did make the complainant extremely uncomfortable and immediately so. This court finds that the Crown has proven beyond a reasonable doubt that Mr. Walls transmitted sexually explicit material to K.J., then a person Mr. Walls knew to be under 16 years of age.
[76] The remaining essential element that the Crown must prove is that Mr. Walls’ purpose in sending the videos must be to facilitate the commission of one of the designated offences with the complainant, that is, to commit a sexual assault (s. 271 Criminal Code) upon K.J. or commit an indecent act of exposing his genital organs to a person under 16 years of age for a sexual purpose (s. 173(2) Criminal Code).
[77] The term “facilitate” includes to help, to bring about or to make easier or more probable. The Crown does not have to prove that Mr. Walls intended to carry out the specific offences, rather, the Crown need only prove that Mr. Walls did so intending to facilitate the commission of the enumerated offences.
[78] Firstly, as to the offence under s. 173(2) of the Criminal Code and, as found above, the Crown has not proven beyond a reasonable doubt that the identity of the person(s) depicted in the video. The particular section refers to exposure of “his genital organs” and not simply any depiction of genital organs.
[79] Secondly, as to sexual assault, the court must consider the evidence in the context of the totality of the evidence in the case. Here, it is clear and obvious that such video was immediately disturbing and unwelcomed by K.J. However, the issue is the intention of Mr. Walls.
[80] Assuming that the text messages are 10% of the total messages between the complainant and Mr. Walls, the vast preponderance of the communications between them were unremarkable and would have involved the broad spectrum from casual to flirtatious. The basic content of the remaining text messages in Exhibits 2 to 13 has been discussed earlier. Some of those messages have sexual innuendo and could be evidence to support an intention by Mr. Walls to invite or groom the complainant into sexual acts.
[81] The messages can support an inference that this is consistent with Mr. Walls continuing to engage in flirtatious conduct and he was pushing the bounds of this with K.J. Mr. Walls’ replies to her expressed uneasiness include “No worries! It’s all good”, “promise not to screen shot”, “maybe if your become single”. In addition, both Mr. Walls and the complainant specifically reference their flirting, its continuation and their respective desires to do so concurrently in the same message. There is an absence of comments by Mr. Walls that attempt to control, pressure, manipulate by fear or threats or isolate the complainant or expressly or implicitly direct the complainant not to make mention to others.
[82] These messages occur in the period they are driving together on many occasions to and from Morpeth. It is impossible to determine with any real certainty how the text messages can be associated to any period of driving. Notwithstanding this, there is no evidence of any other untoward physical conduct, or any other comments of concern made by Mr. Walls while driving, save and except the comment that forms the basis of the allegation addressed earlier in this decision.
[83] As a result, the court cannot exclude the possibility that the one or both of the videos are part of ongoing flirtatious conduct on the part of Mr. Walls which nevertheless is in exceedingly poor taste and judgment.
[84] This court is also mindful that even though there is evidence that K.J. maintained ongoing contact with Mr. Walls throughout the duration of this time, this court places no reliance on stereotypical views as to how young teenage females would or should behave including any expectation that such a young person would make efforts to avoid contact with Mr. Walls. This is akin to similar prohibited reasoning in context of sexual assaults about a victim’s attempts to avoid the perpetrator. See R. v. A.B.A., 2019 ONCA 124 and R. v. A.R.J.D., 2018 SCC 6. This type of reasoning has no place in this case, and it should be clear that the court in no way makes any adverse findings involving K.J. in this manner.
[85] Mr. Walls’ evidence has been commented on generally earlier. Simply put, Mr. Walls did not impress the court and I have rejected his evidence in some areas already.
[86] However, it is the court’s duty to evaluate the accused’s evidence in the context of all of the evidence adduced at trial involving each of the allegations. I have assessed Mr. Walls’ evidence in light of the whole evidence and, in so doing, compared his evidence with that of all other witnesses as well as the exhibits presented.
[87] In the circumstances, after a careful and considered review of the evidence, I am unable to find that continued intentional flirtatious activity by Mr. Walls in relation to the videos was improbable. Rather, such evidence overall is consistent and is supported by some other evidence as mentioned as well as by the absence of evidence in this case.
[88] Even though there are serious concerns and discrepancies in the overall testimony of Mr. Walls, there remains other evidence in relation to ongoing flirtations that the court cannot reject. Accordingly, this leaves a reasonable doubt as to the remaining essential elements in relation to this remaining count.
Conclusion
[89] In summary, based on the test established in R. v. W.(D.), the Crown has not discharged its burden to prove the case beyond a reasonable doubt in relation to each of the charges for reasons provided. Mr. Walls is found not guilty of each count.
[90] In view of this finding, the court must dismiss the charges against Mr. Walls.
Justice M.D. McArthur
Released: January 9 , 2023