COURT FILE NO.: CR-21-30000416 DATE: 20230414 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
his MAJESTY THE king – and – J.C. Defendant
Counsel: Eadit Rokach, for the Crown Dragi Zekavica, for J.C.
HEARD at Toronto: January 9, 10, 11, 12, 13, 16, 17, 18 and 19, 2023
PUBLICATION RESTRICTIONS NOTICE
A non-publication order in this proceeding has been issued pursuant to subsection 486.4(1) of the Criminal Code. By order of this court, any information that could identify the Complainant shall not be published in any document, broadcast or transmission.
REASONS FOR JUDGMENT
DAVIES J.
A. Overview
[1] J.C. is charged with two counts of sexual assault, two counts of sexual interference, one count of assault and one count of accessing child pornography.
[2] The Crown alleges that on March 10, 2019 J.C. masturbated onto his two-year-old daughter, S., while she was sleeping. The Crown alleges that J.C. assaulted his wife, A.A., that same day during an argument over whether J.C. had done something inappropriate with their daughter. The Crown also alleges that J.C. put his hand down the pants of his 9-year-old niece, K., and touched her vagina when their families were vacationing together at Great Wolf Lodge in November 2017.
[3] During the investigation into the alleged sexual offences involving S. and K., the police executed a search warrant at J.C.’s home and seized several electronic devices, including a desktop computer and an external hard drive. The police found 15 images on the desktop computer and one image on the external hard drive that J.C. admits constitute child pornography under the Criminal Code.
[4] J.C. testified at trial. He denied touching S. or K. in a sexual manner. He denied downloading or accessing child pornography on the desktop computer or external hard drive. J.C. admitted he pushed A.A. during their argument on March 10, 2019 but said he was acting in self-defence or in defence of his property.
[5] The burden is on the Crown to prove each element of each offence beyond a reasonable doubt. The outcome of this case turns largely, but not entirely, on the credibility and reliability of the witnesses. I must not simply choose whose version of events I prefer. Such an approach would erode the presumption of innocence and improperly shift the burden of proof. Rather, I must decide whether I accept J.C.’s exculpatory evidence. If I accept his exculpatory evidence in relation to any offence or if his exculpatory evidence in relation to any offence raises a reasonable doubt, he must be acquitted of that charge. If I reject his exculpatory evidence in relation to any charge, I must decide whether the evidence I do accept in satisfies me beyond a reasonable doubt that J.C. is guilty of that offence.
[6] For the following reasons, I find J.C. guilty of sexual assault and sexual interference with respect to his daughter S. (counts 3 and 4). I find J.C. not guilty of assaulting A.A. (count 5). I find J.C. guilty of accessing child pornography (count 6). And I find J.C. guilty of sexual assault and sexual interference with respect to K. (counts 1 and 2).
B. Sexual Assault and Sexual Interference against S.
[7] It is alleged that J.C. sexually assaulted his two-year old daughter, S., March 10, 2019 (count 3). It is alleged that J.C. touched his two-year old daughter for a sexual purpose on March 10, 2019 (count 4).
[8] J.C. and A.A. were at home with their three children on March 10, 2019. A.A. was upstairs with S. and her twin brother until approximately 11:00 a.m. Their older son was in his room playing video games. A.A. took the twins downstairs at approximately 11:00 a.m. and made breakfast for the family. At approximately 2:30 p.m., A.A. took S.’s twin brother back upstairs for a nap. A.A. stayed upstairs with their son and J.C. stayed downstairs with S..
[9] Shortly after 4:00 p.m., A.A. came downstairs. S. was asleep on the sofa. S.’s underwear and pants were down. One side of her diaper was open and the Velcro on the other side of the diaper was askew. A.A. got upset and asked J.C. if he had taken pictures of S. while she was sleeping. A.A. grabbed J.C.’s phone to see if there were any photos of S. on his phone. A.A. and J.C. got into an argument over J.C.’s phone. During the argument, J.C. pushed A.A. She called the police.
[10] A.A. gave the police the diaper S. had been wearing that afternoon because she thought it smelled like semen. The diaper was sent to the Centre for Forensic Science for testing. Semen was detected on the inside rear panel and the right leg opening of the diaper. It is an agreed fact that the semen stain on diaper was 8.5 cm by 7.5 cm. A sample was taken from the stain for DNA analysis. One male DNA profile was developed from the stain and was compared to J.C.’s DNA. It is more than 1 trillion times more likely that the DNA from the diaper came from J.C. than from another unknown person unrelated to J.C..
[11] It is the Crown’s theory that while S. was sleeping on the sofa, J.C. opened her diaper and masturbated onto her, causing the semen stain on the back of her diaper.
[12] The defence theory is that J.C. must have unknowingly had semen on his hands that was transferred onto S.’s diaper when he started to change her. J.C. denies masturbating on S. while he was with her in the living room. He testified that he masturbated in the washroom while S. was sleeping and did not wash his hands before he started to change S.'s diaper.
[13] For three reasons, I do not accept J.C.’s evidence about masturbating in the washroom. First, some of his testimony is inherently implausible and not credible. Second, some of his testimony is internally inconsistent. Finally, his testimony is contradicted by the forensic evidence.
[14] J.C. testified that after A.A. went upstairs with their younger son, S. continued to play in the living room. Eventually, she climbed on the sofa and fell asleep. J.C. testified that at approximately 3:30 pm, when S. was asleep, he got up and went to the washroom. J.C. testified that while he was in the washroom he masturbated into the toilet. He testified he was in the washroom for 5 or 6 minutes. He testified that he did not wash his hands after he masturbated because he was worried about how long he had left S. alone. It defies logic that J.C. was comfortable leaving S. alone for 5 or 6 minutes while he masturbated but was not comfortable leaving her for a few additional seconds to wash his hands. J.C.’s evidence that he masturbated and did not washing his hands is not credible.
[15] J.C.’s description of how he masturbated changed during his testimony when it became clear his initial description was inconsistent with the forensic findings. J.C. testified that when he went back to the living room after masturbating in the washroom, S. was still asleep on the sofa. He testified that he moved her to the corner of the sofa so he could lie down as well. He testified he slid his left hand under S.’s legs and his right hand was under her back to moved her. He testified that as he moved S., he could feel that her diaper was wet so he decided he should change her diaper. J.C. testified he pulled down S.’s underwear and opened her diaper while she was lying on the sofa. J.C. testified that he ran the side of his hand and his pinky finger between S. and the diaper on both sides to make sure the diaper was not sticking to her skin. He then gently lifted S. up to remove the diaper from underneath her. He testified that the palm of his hands would have been touching S.’s sides as he lifted her up. He did not remove the diaper from S. because he realized he needed a clean diaper. He says he put S. back down and went to get a diaper from the changing area in the dining room. He said A.A. came downstairs as he was returning to the sofa with the clean diaper.
[16] J.C. agreed if his original version of events was true, it would have been his left hand that touched the right side of S.’s diaper where the semen was found on the diaper as he ran his hand down the side of the diaper and picked her up. To explain the forensic findings, J.C. must have had semen on his left hand when he touched S.’s back, leg and diaper. However, J.C. initially testified that he used his right hand to masturbate. When the Crown pointed out that the innocent transfer theory would only work if J.C. had semen on his left hand, J.C. then said he used both hands to masturbate. He said his right hand was on his penis and he used his left hand to push his penis into the toilet bowl when he ejaculated. He also said it was more likely he would have had semen on his left hand than his right. I find that J.C. changed his version of events during his testimony to address an obvious flaw in his original story.
[17] Finally, J.C.’s testimony is not consistent with the forensic evidence. J.C. does not dispute that it was his semen on the inside of S.’s diaper. J.C. testified that he does not know how his semen got on the inside of the diaper. He suggested there must have been semen on his hand after he masturbated because there is no other way his semen could have ended up in S.’s diaper.
[18] J.C. testified that he does not recall there being any semen on his hands when he finished masturbating and left the washroom. He testified he did not feel any semen on his hands. J.C. initially agreed in cross-examination that if there was semen on his hands, he would have felt it. Later he testified that, unbeknownst to him, there could have been semen on the back of his fingers or the side of his hand. J.C. agreed in cross-examination that if he had noticed semen on his hands, he would have washed them.
[19] If I were to accept J.C.’s evidence that he did not see or feel any semen on his fingers or hands after he masturbated, he could only have had a minute amount of semen on his hands without feeling it. However, the semen stain on the inside of S.’s diaper was 8.5 cm by 7.5 cm. Even if there was a small amount of semen on J.C.’s hand after he masturbated that he could not feel, that would not explain the large stain inside the diaper. This is particularly true given J.C.’s description of what he says he did after he finished masturbating. He testified he pulled up his own underwear and pants using both hands, opened the bathroom door, went over to the sofa, slid both hands underneath S. to move her, removed her pants and underwear, and opened her diaper. Even if, unbeknownst to J.C., there was a trace amount of semen on his hands after he masturbated, whatever remained on his hands after he slid both hands between S. and the sofa to move her could not create a stain that was 8.5 cm by 7.5 cm. I find that the stain observed by the forensic analyst cannot be explained by an innocent transfer of an undetectable amount of semen from J.C.’s hand to the diaper in the manner he described.
[20] The undisputed facts are that J.C. was alone with S. in the living room on the afternoon of March 10, 2019. When A.A. came downstairs, S.’s underwear and pants were pulled down and one side of her diaper was opened but the diaper was still on her. J.C.’s semen was on the back panel and right leg opening of S.’s diaper. The only reasonable inference from the totality of the evidence is that J.C. masturbated directly or indirectly onto S. while she was sleeping on the sofa and his semen ended up on the back and side of her diaper. I find J.C. intentionally touched S. for a sexual purpose by masturbating on her or putting his semen on her. I, therefore, find him guilty of sexual assault and sexual interferences in relation to S. (counts 3 and 4).
[21] There were several factual disputes about what happened on March 10, 2019 that I do not need to resolve. For example, there is a dispute over whether J.C. knew A.A. was watching him on their in-home surveillance video while he was in the living room with S. There were several video cameras in J.C.’s home. The camera in the corner of the dining room captured most of the living room as well. A.A. and J.C. could monitor what was happening in various rooms in the house using an app on their phones. When someone was watching the video using the app, a blinking light appeared on the camera. A.A. testified that while she was upstairs with their son, she periodically checked the app to see what J.C. and S. were doing in the living room. At approximately 4:15 p.m., A.A. saw J.C. sitting on the sofa looking at his phone or a tablet. S. was no longer on the floor playing. A.A. testified that J.C. looked up at the camera in the dining room. She believes he saw the blinking light on the camera. She testified that he quickly got up from the sofa and grabbed a diaper in the dining room. The Crown’s theory is that J.C. jumped up when he realized A.A. was watching him to cover up what he had been doing. J.C. denies seeing the blinking light on the camera. He denies that he got up quickly to get a diaper. I do not need to resolve these disputes in their evidence. Whether J.C. saw the light on the camera or not does not change my analysis. Either way, when A.A. came downstairs, the semen-stained diaper was opened but was still on S.
[22] Second, much was made about what J.C. did with the diaper and what sort of diaper he grabbed. A.A. testified that J.C. left the diaper on the change table in the dining room and went back to the sofa empty-handed, which she thought was strange. J.C. testified he had the diaper in his hand when A.A. came downstairs. I do not need to resolve this dispute either. Whether the diaper was on the change table or in J.C.’s hand does not matter. The parties agree that at some point J.C. was holding a pull-up diaper. The Crown argued J.C. grabbed a pull-up diaper rather than a regular diaper because he was in a hurry to cover up what he was doing. I do not agree with the Crown’s interpretation. The lights were off in the living room and dining room when S. was asleep on the sofa. The pull-up and regular diapers were in the same storage container in the dining room. J.C. could have grabbed the wrong diaper by mistake in the dark. I do not take anything from this evidence.
[23] Finally, the Crown brought an application to admit the evidence that J.C. accessed child pornography and sexually assaulted his nine-year old niece as positive evidence that he sexually assaulted S. I do not need to decide that application now because I am satisfied beyond a reasonable doubt that J.C. is guilty of sexually assaulting S. and touching S for a sexual purpose without considering the other discreditable conduct.
C. Allegations of Assault Against AA
[24] J.C. and A.A. had an argument after A.A. came downstairs and confronted J.C. about what he was doing with S.. A.A. wanted to look at J.C.’s phone to see if he had taken pictures of their daughter while she was asleep. J.C. and A.A. had a physical altercation over the phone. J.C. pushed A.A. during that altercation. A.A. testified that she was holding S. in her arms when J.C. pushed her. She says she fell onto the sofa and S. hit her head on the wall.
[25] J.C. admitted he pushed A.A. However, he testified that A.A. was assaulting him and grabbing for his phone when he pushed her. J.C. testified he only pushed A.A. to stop her from assaulting him further or from taking his phone. In other words, J.C. claims he was acting in self-defence or acting in defence of his property.
[26] There is an evidentiary burden on J.C. to establish his claim of self-defence or defence of property has an air of reality: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3. If there is an air of reality to his claims, the onus shifts to the Crown to prove beyond a reasonable doubt that J.C. was not acting in self-defence or in defence of property. If the Crown cannot defeat J.C.’s claim of self-defence or defence of property, he is entitled to an acquittal on the assault charge against A.A.
[27] When deciding whether J.C.’s self-defence and defence of property claims have an air of reality, I must assume the evidence he relies on in support of those claims is true: Cinous at para. 53. J.C. testified that A.A. was assaulting him and trying to take his phone from him when he pushed her. He testified that he only pushed A.A. to stop the assault and to stop her from taking his phone. Assuming J.C.’s evidence is true, there is an air of reality to his claim of self-defence and defence of property.
[28] The Crown must therefore prove beyond a reasonable doubt that J.C. was not acting in self-defence or in defence of his property when he pushed A.A. on March 10, 2019. To defeat J.C.’s self-defence claim, the Crown must prove one of the following beyond a reasonable doubt:
- J.C. did not believe force was being used against him by A.A.;
- J.C. did not push A.A. to protect himself from her use of force; or
- Pushing A.A. was not reasonable in the circumstances.
To defeat J.C.’s claim of defence of property, the Crown must prove one of the following beyond a reasonable doubt:
- J.C. was not in peaceful possession of his cell phone;
- J.C. did not believe A.A. was about to take his cell phone;
- J.C. did not push A.A. to prevent her from taking his cell phone; or
- Pushing A.A. was not reasonable in the circumstances.
[29] J.C. and A.A. agree on how their argument started. When A.A. went downstairs on the afternoon of March 10, 2019 and saw S. sleeping on the sofa with her diaper open, she asked J.C. if he had taken a picture of S. when she was asleep. That question made J.C. mad and he responded in an aggressive voice. He denied taking any pictures of their daughter. A.A. grabbed J.C.’s phone that was on a charger nearby. She tried unsuccessfully to unlock his phone. A.A. gave J.C. the phone and asked him to unlock it. It is at this point their stories diverge.
[30] A.A. testified that J.C. unlocked his phone and showed her small images of his recent photos. She could not tell if any of those photos were of S. A.A. testified she wanted to look at J.C.’s phone herself. She tried to grab the phone from J.C. but he pulled it away. A.A. testified that J.C. told her to stop grabbing the phone. A.A. said she continued to grab at J.C.’s phone after he told her to stop. A.A. testified that J.C. then pushed her as she was grabbing for the phone. She testified that she was holding S. at the time. She lost her balance and fell on the sofa. She testified that S. hit her head on the wall behind the sofa when she fell.
[31] J.C. testified that after A.A. entered the wrong password on his phone, he offered to unlock it for her. J.C. testified that as he was trying to unlock the phone, A.A. was hitting him and trying to grab the phone from him. He testified that she was not being rational. J.C. testified that he turned his back to A.A. and raised the phone above his head. A.A. continued to hit him and reach for the phone. J.C. testified that he told her to stop. J.C. denied he showed her photos on his phone before A.A. started grabbing for the phone. J.C. testified that he pushed A.A. because she continued to hit him and grab for the phone after he told her to stop. J.C. testified that he does not remember where he pushed A.A. He does not remember A.A. falling on the sofa. He also testified did not realize A.A. was holding onto S. when he pushed her.
[32] I find that J.C. and A.A. were both very upset during the argument on March 10, 2019. I accept that A.A. was physically attacking J.C. as she tried to get his phone from him. I also accept that in the frenzy of the moment, J.C. pushed A.A. to stop her from physically attacking him and to stop her from taking his phone. The Crown argues that even if J.C. believed A.A. was assaulting him and pushed her to stop the assault, it was not reasonable for him to push her because (a) he is bigger than her, (b) he had other options to stop her attack, and (c) she was holding their child.
[33] To decide whether it was “reasonable in the circumstances” for J.C. to push A.A., I must consider “the relevant circumstances of the person, the other parties and the act” including the nature of the force used by A.A., the proportionality of J.C.’s response, whether there were other means available to respond to A.A.’s use of force and their respective sizes and physical attributes: Criminal Code, s. 34(2).
[34] J.C. was much bigger than A.A. However, I have little evidence about the amount of force used by either of them. J.C. just said A.A. was hitting him as she was grabbing for his phone. A.A. testified that J.C. pushed her hard enough that she lost her balance and fell onto the sofa but it is not clear how much force would have been needed to cause her to lose her balance.
[35] In terms of whether there were other means available to J.C., A.A. admits J.C. told her to stop grabbing for the phone but she persisted. J.C. testified that he also turned his back to A.A. but she continued to hit him from behind and grab for the phone. When it was suggested to A.A. that she could have stopped grabbing for the phone when he told her stop, she said she wanted to double check for herself that he had not taken any photographs of their daughter. I find that A.A. was determined to get J.C.’s phone. I am not satisfied that she would have stopped attacking him even if he tried to walk away.
[36] I am not satisfied beyond a reasonable doubt that J.C.’s actions were unreasonable or disproportionate. The physical altercation happened quickly – A.A. testified it lasted only 20 seconds. A.A. was determined to get the phone from J.C.. A.A. was attacking him and grabbing at his phone. He asked her to stop and she persisted. He pushed her and she lost her balance. I am not satisfied that J.C. realized A.A. was holding S. when he pushed her. If the argument escalated quickly and lasted only 20 seconds as A.A. said and if J.C. had his back to her for part of the argument, he may not have realized she was holding their daughter when he pushed her. In all the circumstances, I am not satisfied beyond a reasonable doubt that he was not acting in self-defence.
[37] J.C. is acquitted of the assaulting of AA.
D. Accessing Child Pornography
[38] Child pornography was found on a desktop computer and an external hard drive seized from J.C.’s residence. [^1] J.C. and other members of the family were using the desktop computer in March 2019. J.C. testified the external hard drive was the hard drive from their old computer, which crashed in 2012. J.C.’s father removed the hard drive from the computer and J.C. put that hard drive into an external casing so he could access its contents. [^2] The police forensically analyzed both devices. The police found 15 images on the desktop computer and 1 image on the external hard drive that J.C. admits are child pornography as defined in s. 163.1(1) of the Criminal Code. [^3]
[39] J.C. is charged with one count of accessing child pornography between 2011 and 2019. The offence of “accessing child pornography” can be proven in two different ways: Criminal Code, s. 163.1(4.2). First, the Crown could prove beyond a reasonable doubt that J.C. knowingly viewed child pornography. Alternatively, the Crown could prove that he knowingly caused child pornography to be transmitted to himself. The Crown’s theory is that J.C. did both – he knowingly caused child pornography to be transmitted to himself by searching for it and downloading it, and he viewed what he downloaded.
[40] J.C. argues that it is not enough for the Crown to prove that he knowingly downloaded a file containing child pornography. J.C. argues that he must then transmit it to himself by saving it onto his computer after downloading it to be guilty of accessing child pornography. I disagree. J.C.’s position conflates possessing child pornography with accessing child pornography.
[41] The Supreme Court of Canada explained the difference between possessing and accessing child pornography in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 65-66. The Court found that merely viewing images of child pornography online does not constitute possession. To prove possession of child pornography, the Crown must prove the defendant took control of the image by saving it onto a device. The Court explained this difference at para. 66 of Morelli as follows:
Accordingly, in order to commit the offence of possession (as opposed to the offence of accessing), one must knowingly acquire the underlying data files and store them in a place under one’s control. [emphasis in original]
[42] For the Crown to prove J.C. accessed child pornography, the Crown does not need to prove that he took control of the underlying data by saving it to his hard drive. It is enough for the Crown to prove that J.C. knowingly viewed the child pornography online or knowingly downloaded it. In any event, this argument is academic because Officer Firth, who examined the electronic devices seized from J.C.’s residence, testified that when a file is downloaded using a peer-to-peer network it is saved on the recipient’s device.
[43] There is also no basis to suggest the Crown must prove that J.C. transmitted the child pornography to himself. The language of s. 163.1(4.2) simply says that the Crown must prove that J.C. caused the child pornography to be transmitted to himself. J.C. must be the one who caused the child pornography to be transmitted. He does not need to be the one who transmitted the child pornography.
[44] The issue for me to decide is whether J.C. knowingly accessed the child pornography by viewing it or by causing it to be transmitted to himself. J.C. admitted he used the peer-to-peer file sharing programs but denied he ever knowingly downloaded child pornography onto either the desktop computer or external hard drive. The defence theory is that the child pornography must have been embedded in other files that J.C. or someone else downloaded.
[45] The issues for me to decide are as follows:
- Was child pornography knowingly downloaded onto the two devices?
- Did J.C. knowingly download the child pornography onto either device?
- In the alternative, did J.C. view the child pornography on either device?
[46] For the following reasons, I am satisfied beyond a reasonable doubt that J.C. knowingly searched for and downloaded child pornography onto the external hard drive. I am also satisfied beyond a reasonable doubt that he opened and viewed the child pornography he downloaded. Finally, I am satisfied he either transferred child pornography onto the desktop computer. I, therefore, find J.C. guilty of accessing child pornography.
i. Did someone intentionally search for and download child pornography onto the external hard drive or desktop computer?
[47] J.C. admits there is child pornography on the desktop computer and external hard drive but denied he ever searched for, downloaded or viewed child pornography on either device. The defence theory is that the child pornography found on the desktop computer and external hard drive must have been surreptitiously embedded in other files that J.C. (or someone else) downloaded.
[48] The defence theory is inconsistent with the forensic evidence. First, peer-to-peer file sharing programs require a user to enter search terms to initiate a search. The names of the files on the external hard drive suggest that someone repeatedly searched for and knowingly downloaded child pornography onto that device. Second, most of the files that appear to contain child pornography were not downloaded at the same time as any other files and, therefore, could not have been embedded in other files. Finally, the officers testified it is difficult to surreptitiously embed child pornography into other files and they have never seen a virus that downloads child pornography over a peer-to-peer network.
a. The file names suggest the user was searching for child pornography.
[49] Officers Kidd and Firth were both involved in the forensic examination of the desktop computer and external hard drive. They found two peer-to-peer file sharing programs on the external hard drive: uTorrent and Ares. Officer Kidd testified that peer-to-peer file sharing programs use different protocols for accessing and downloading files but they all require the user to enter search terms to initiate a search. Once a user enters search terms, the program reaches out to other computers on the network to find files that match those search terms. The program produces a list of available files that match the search terms entered. The person conducting the search must choose which file or files to download. The selected files are downloaded onto the user’s computer before they can be viewed by the recipient. Officer Kidd testified that one user of a peer-to-peer network cannot download or drop a file onto another user’s computer without their knowledge.
[50] The Crown adduced a list of files downloaded onto the external hard drive using the Ares peer-to-peer program. Officer Kidd confirmed that, like all peer-to-peer file sharing programs, Ares users must enter search terms to initiate a search for files on the network. Ares then produces a list of files it found on its network that match the search terms entered and the person conducting the search can choose which file or files to download.
[51] Officer Kidd testified that Ares maintains a log of every file that the program downloads in a file called “Ares Downloads”. The Ares Downloads file is program generated and is not visible to the user. It contains the name of every file downloaded, the date and time each file was downloaded and the Hash value for each file (which is a unique number assigned to digital images).
[52] According to the Ares Downloads file, approximately 350 files were downloaded onto the external hard drive between December 16, 2010 and May 26, 2012. Some of the downloaded files appear to be music. Some appear to be movies. But many files in the Ares Downloads file have names that clearly suggest they contain child pornography. For example, one file downloaded on February 5, 2011 is called “Young Indian Girls Eat Cum.” Another file downloaded on February 5, 2011 is called “Beautiful Indian Girl Sex In.” A file downloaded on January 4, 2012 is called “Asian preteen Lolita incest ddoggprn!9fuksis (incest kiddy rap”. A file downloaded on April 12, 2011 is called “Bd-company ped0filia pthc (3).” Officer Firth and Officer Kidd both testified that “PTHC” is an acronym for “pre-teen hard core.” Both officers testified that “PTHC” is a term commonly used on peer-to-peer networks to search for child pornography.
[53] On April 28, 2011 a file called “Lsm pthc chi1d ped0 porn sex ls-magazine” was downloaded. A file with the same name was downloaded on December 12, 2011. A file called “Ls-magazine – models ptff pthc totally nude” was downloaded on April 28, 2011. Several other files downloaded on April 28, 2011 contain “11ans nicky-40-16 lsm pthc u15 littlegirl, lsmagazine” in the file name. Officer Firth testified that LS Magazine is a European online platform. LS Models, or LSM for short, is part of the same platform. He testified that the LS platform employs girls between the ages of 8 and 16 as “models”. Officer Firth testified that many LS images meet the Criminal Code definition of child pornography.
[54] Officer Firth testified that LS images typically have a watermark on the image. The one image found on the external hard drive that J.C. admits is child pornography has an “LS Island” watermarked on the top left side of the photograph. That image is of the vaginal and anal region of a girl between the ages of 10 and 14. The police cannot say whether the image found on the external hard drive with the LS Island watermark is one of the files in the Ares Downloads file. That image was recovered from unallocated space on the hard drive, which means it was on the hard drive at some point but deleted. When a file is deleted, the operating system removes its file name from the system directory and designates the space it occupies on the hard drive as “available”. Eventually, the computer system will over-write the deleted file with other data. Until that happens, the content of the deleted file remains on the hard drive (albeit not accessible to the user). Forensic tools can recover deleted files from unallocated space. However, the file name and information about when the file was created, modified or saved is not recoverable. Because the image of child pornography on the external hard drive was recovered from unallocated space and its original file names is not known, the police cannot tell if that image was one of the files in the Ares Downloads file.
[55] In total, more than 150 files were downloaded to the external hard-drive using Ares that had “pthc”, “lsm”, “ls-model” or “ls-magazine” in the title. Many of the files also contain terms like “girl”, “littlegirl”, “little girls” or “cute girls”. Some contain a form of the word pedophile or pedophilia. It defies logic that Ares would identify more than 150 files with names that clearly indicate the content is child pornography if the Ares user was not actively searching for child pornography.
[56] Officer Kidd also testified about “UsnJrnl” files on the external hard drive. Officer Kidd explained that the Windows operating system creates a journal of what happens to each file on the system. The UsnJrnl files are not accessible to the user. Many of the UsnJrnl files also contained “ls magazine” and/or “pthc” in the file names. One of the UsnJrnl files was called “11ans nicky-40-16 lsm pthc u15 little girl, ls-magazine, video-a(5)(2)(3)(2).jpg”, which is almost identical to the name of five files downloaded to the external hard drive on April 28, 2011. When Officer Kidd examined the external hard drive the content of the files in the UsnJrnl were no longer on the computer, which suggests those files had been deleted.
[57] Based on the number of files in the Ares Downloads file with names clearly indicative of child pornography, I am satisfied that the user of the old computer (now the external hard drive) was actively and repeatedly searching for child pornography and entered search terms into Ares they knew (or hoped) would generate files containing child pornography. I also find that the files with names that contain “PTHC” or any reference to pedophilia (even in an abbreviated form) or any reference to little children and sex contain child pornography.
b. Most child pornography files were not downloaded at the same times as legal files.
[58] If the child pornography found on the external hard drive was embedded in harmless music, video or program files, as J.C. suggested, one would expect to see those being downloaded at the same time as other files. But that is not what the Ares Downloads file shows. Most of the files that I have found contain child pornography were not downloaded on the same day or at the same time as any seemingly harmless file.
[59] The Ares Downloads file shows that between December 16, 2010 and January 18, 2011, many music and movie files were downloaded, including Christmas music, pop songs and a Disney movie. No files containing child pornography were downloaded during that period. Conversely, nearly 80 files containing child pornography were downloaded between 9:39 a.m. and 2:25 p.m. on April 28, 2011. The files downloaded that day include “11ans nicky-40-16 lsm pthc u15 little girl, ls-magazine, video-a”, “Lsm pthc chi1d ped0 sex ls-magazine(2)(2)”, “Ptff lsm ls-magazine models 2 sexy girls one girl holding anoth” and “d!ptff ls-magazine models 3 cute little girls in the tub sho”. No harmless videos, images or programs were downloaded on April 28, 2011 in which the child pornography could have been embedded. On September 11, 2011, someone downloaded several apparently legitimate music files. No child pornography was downloaded that day. But on November 14, 2011, someone downloaded 27 files that appear to contain child pornography. No legitimate files were downloaded that day in which the child pornography could have been embedded.
[60] July 17, 2011 is the only day on which both child pornography and legitimate music files were downloaded. That is the only day the child pornography could have been embedded in another file. However, the first two music files were downloaded at 1:46 and 1:48 p.m. Three “lsm” files were downloaded more than 20 minutes later at 2:12 p.m., which suggests they were the result of a separate search, not embedded with the music files that were downloaded earlier.
[61] There is no forensic evidence that the files containing child pornography were downloaded at the same time as any harmless or legitimate files. There is, therefore, no support for the defence theory that the child pornography was surreptitiously embedded in other files.
c. Child pornography cannot be embedded in image or video files.
[62] Officer Kidd testified that it is possible for a downloaded file to contain a file that the user did not request and did not know was included. Officer Kidd could not say whether the 16 images of child pornography found on the external hard drive and desktop computer were downloaded as stand-alone files or as attachments to another files. However, Officer Kidd testified it is difficult to hide images of child pornography in another image or video files. Officer Kidd explained that .jpeg files (image files) and .mp4 files (video files) are structured in a very specific way. Virus scanners usually detect if something is embedded in one of those types of files.
[63] Officer Kidd testified it is easier to surreptitiously embed an image or video file into a program or .exe file, which do not have a rigid file structure. Only one program file – Adobe Photoshop – was downloaded onto the external hard drive using the Ares peer-to-peer network. That program was downloaded on January 16, 2012. No child pornography was downloaded that day.
[64] Officer Kidd was asked whether a computer virus could be used to deposit child pornography onto a computer without the user’s knowledge. J.C. testified that he had problems with viruses on his old computer (now the external hard drive) before it crashed in 2012. Officer Kidd agreed that viruses can take over a computer’s operating system and can download files onto a computer without the user’s knowledge. However, Officer Kidd testified that in the hundreds of child pornography investigations he has conducted, he has never seen a virus that surreptitiously downloads child pornography onto a user’s computer. He has also never seen a virus that operates over a peer-to-peer file sharing network.
[65] I reject the defence theory that child pornography was embedded in other, legal files and surreptitiously or unknowingly downloaded onto the external hard drive. I am satisfied beyond a reasonable doubt that someone intentionally searched for and downloaded child pornography onto the external hard drive using a peer-to-peer file sharing program. I accept the officers’ evidence that “PTHC” is an acronym for “pre-teen hard core.” I find that someone entered search terms, including “PTHC”, into the Ares peer-to-peer program on J.C.’s old computer between February 5, 2011 and May 26, 2012 looking for child pornography. I find that whoever entered those search terms selected and downloaded many files containing child pornography, including the 1 image recovered from unallocated space on the external hard drive that meets the Criminal Code definition of child pornography.
ii. Did J.C. intentionally download the child pornography?
[66] J.C. was not the only person who had access to the desktop computer and external hard drive. Both devices were seized by the police from A.A. and J.C.’s oldest son’s bedroom. A.A. had access to both devices. Their oldest son had access to both devices. A.A.’s parents lived with them and, in theory, had access to the electronic devices in the house. J.C.’s father had the old computer after it crashed so he had access to what is now the external hard drive.
[67] J.C. admits he used file sharing programs on the old computer to download files but denies he downloaded child pornography. He also denied knowingly downloading or transferring child pornography to the new desktop computer. If I accept J.C.’s evidence or if it leaves me with a reasonable doubt about whether he was the person that downloaded the child pornography, he is entitled to an acquittal on this count. There is no burden on J.C. to prove who did download the child pornography onto either device. The burden is on the Crown to prove beyond a reasonable doubt that it was J.C. and nobody else.
[68] I am satisfied beyond a reasonable doubt that A.A.’s parents did not download child pornography onto either device. A.A. testified, and I accept, that prior to 2020 her parents did not know how to use computers. A.A. testified that during the COVID pandemic, she had to teach her father how to use the computer so he could help the children log-on for online school. A.A. testified that before the pandemic, her parents would not have even known how to turn a computer on.
[69] I am also satisfied that their son did not search for and download child pornography onto the external hard drive or desktop computer. A.A. testified and I accept that their son mostly used the desktop computer for gaming. In March 2019, their oldest son was 10 years old. When the first child pornography was downloaded onto the external hard drive in 2010, their oldest son was only 2 years old. In May 2012, when the last child pornography was downloaded onto the external hard drive, he would have been 4 years old. I, therefore, exclude their son as the person who downloaded the child pornography onto either device.
[70] I can also exclude J.C.’s father as the person who downloaded the child pornography onto the external hard drive. J.C. testified the old computer crashed in 2012. He testified he gave it to his father in 2015 or 2016 for a few months to clean up the hard drive. I have already found, based on the Ares Downloads file, that someone searched for and downloaded child pornography onto what is now the external hard drive between February 2011 and May 2012. That is several years before J.C.’s father had what is now the external hard drive in his possession.
[71] That leaves J.C. and A.A., both of whom used the old computer (now the external hard drive) and the new desktop computer.
[72] A.A. testified that she knew Microsoft Word, PowerPoint and Excel were installed on both computers. She testified that they could also check email on both computers. A.A. knew the old computer crashed and would not turn on. She said she did not know about any viruses on the old computer. A.A. testified that she did not know how many accounts were set up on the desktop computer. During cross-examination, counsel suggested to A.A. that a program called Limewire was installed on the old computer. A.A. said she does not know what Limewire is. She testified that she does not know what an external hard drive is. She was shown a photo taken by the police of the external hard drive in their son’s desk and she said she did not know what it was. She said she thought it was a speaker. I accept that A.A.’s knowledge of computers is very limited. I find that she did not know how to use peer-to-peer programs to did not download child pornography onto the desktop computer or external hard drive.
[73] I find that J.C. was the only person who used the Ares program on the old computer. I reject his evidence that he did not download child pornography onto that device.
[74] J.C. admitted he installed and used Ares, LimeWire and uTorrent to download movies and music onto their old computer (now the external hard drive). J.C. admitted he downloaded many of the files listed in the Ares Downloads file. He admitted he downloaded music files between December 16, 2010 and January 18, 2011. He admitted he downloaded Toy Story 2 and Toy Story 3, which are both children’s movie, on February 1, 2011. He admitted he downloaded another children’s movie, Finding Nemo, on February 2, 2011. He admitted he downloaded several music files on November 2, 2011. J.C. testified that he could have been the one who downloaded Adobe Photoshop on January 16, 2012. In fact, on any day when only legitimate music, video or program files were downloaded, J.C. admitted he either downloaded those files or could have downloaded those files.
[75] J.C. also admitted he downloaded pornography using Ares. For example, he admitted that he downloaded a file called “beautiful Indian girl” on February 5, 2011. He testified that it is possible he also downloaded the file “young Indian girls eat cum” on February 5, 2011. J.C. agreed that the pornography he downloaded on February 5, 2011 was not embedded in any other files.
[76] J.C. agreed that many of the file names in the Ares Downloads file suggest the files contained child pornography. But he denied downloading any of those files. He testified he never saw anything related to child pornography when he was downloading files using Ares. He testified he had never heard of LS magazine. He testified he never saw any file names that contained PTHC or LS magazine. I reject his denial entirely. I find J.C. was the only person who knew how to use the Ares program. I find beyond a reasonable doubt that he searched for and downloaded child pornography onto the external hard drive. Based on the number of files downloaded, the number of searches and the names of the downloaded files, I find J.C. knew some of the files he downloaded contained child pornography. I, therefore, find that J.C. knowingly caused child pornography to be transmitted to himself through the peer-to-peer network by downloading files containing child pornography onto his old computer.
[77] The evidence is less clear about how the 15 images of child pornography ended up on the desktop computer. Those images were also recovered from unallocated space so there is no information about the file names associated with those images, or how those files were created. J.C. testified that he does not know how the child pornography got onto the desktop computer. However, J.C. testified that he connected the external hard drive to their new desktop computer. He testified he did that to retrieve some old files and to confirm all their wedding and Christening photos were still on the old hard drive. I find that J.C. knowingly transferred 15 images of child pornography onto the desktop computer when he attached the external hard drive to the new computer.
iii. Did J.C. view the child pornography?
[78] Having found that J.C. knowingly searched for and downloaded child pornography using the Ares peer-to-peer network, I do not need to decide if he also viewed the images he downloaded to find him guilty of accessing child pornography. However, if the Crown has proven that J.C. viewed the images, that may be relevant on sentencing.
[79] I accept that a user can download a file over a peer-to-peer network without knowing the content of the file. It is also possible that the name of a downloaded file does not match its contents. I also accept that, in theory, J.C. could have deleted all the files containing child pornography from external hard drive without opening them.
[80] There is no forensic evidence that J.C. opened any of the files containing child pornography that he downloaded and J.C. testified that he never opened any files containing child pornography. He testified he never saw anything related to child pornography when he was downloading files from the internet. J.C. testified that when he downloaded movies using a peer-to-peer program, for example, he burned the movie onto a disk and delete everything else without looking at the file names.
[81] I have already found that J.C. knowingly searched for and download child pornography onto the external hard drive several times between February 2011 and May 2012. Some days J.C. downloaded only a few files. Other days, he downloaded many, many files. With one exception, there is no evidence he shared the files he downloaded with anyone else. [^4] The only reasonable inference from the number of files downloaded and J.C.’s pattern of searching for child porngraphy is that he not only downloaded the files but also opened and viewed the content of the files he downloaded: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000. It defies logic that he would download dozens and dozens of files over several months and not open them. J.C. also transferred at least 15 files containing child pornography to the new desktop computer. He must have known those files were child pornography when he decided to transfer them from one device to the other.
[82] I find J.C. guilty of accessing child pornography by both causing it to be transmitted to himself and by viewing it.
E. Incident at Great Wolf Lodge
[83] It is alleged that between November 1 and December 1, 2017, J.C. put his hand down the front of K.’s pajama’s and touched her vagina. K. is the daughter of A.A.’s cousin. K. says this happened while her family and J.C.’s family were at Great Wolf Lodge together. K. would have been 9 years old at that time.
[84] J.C. admits that his family went to Great Wolf Lodge for one night with K.’s family in November 2017. J.C. also admits that after dinner that night, he was in one of the hotel rooms with some of the children, including his oldest son and K. The issue is whether J.C. touched K. in a sexual manner when they were in the hotel room together, which turns entirely on the credibility and reliability of K. and J.C.
[85] J.C. denied touching K. in a sexual manner in the hotel room at Great Wolf Lodge. If I accept his denial or if it leaves me with a reasonable doubt, J.C. is entitled to an acquittal on these two counts. I have already found that J.C. was not truthful about what happened with his daughter, S., on March 10, 2019. I have also found that he was not truthful when he said he never searched for, downloaded or viewed child pornography. In assessing the credibility of J.C.’s denial in relation to K., I am entitled to consider all his evidence: R. v. P.E.C., 2005 SCC 19, [2005] 1 S.C.R. 290; R. v. D.M., 2022 ONCA 429 at para. 97. My assessment of J.C.’s credibility and reliability on the other counts can inform my assessment of the credibility of his denials in relation to K. However, I cannot use the fact that I found J.C. guilty on some of the other counts or the substance of his testimony on those counts as positive evidence on the counts related to K. or to find that he is the sort of person who would have touched K. as she described unless it satisfies the similar fact evidence rule: R. v. M.R.S., 2020 ONCA 67 at paras. 63-64. Having found that J.C.’s evidence about the incident involving S. and the child pornography was not credible, I do not accept his denial about what happened with K. Nor does his denial raise a reasonable doubt.
[86] But just because I do not accept J.C.’s denial does not mean I accept K.’s evidence. Rejecting J.C.’s denial does not bolster the credibility or reliability of K.’s evidence. I must consider whether the evidence I do accept about the trip to Great Wolf Lodge satisfies me beyond a reasonable doubt that J.C. intentionally touched K. in a sexual manner.
[87] K. was interviewed by the police on April 26, 2019. During her interview, she described what happened at Great Wolf Lodge. K. adopted her statement at trial and it was admitted as part of her evidence under s. 715.1 of the Criminal Code.
[88] K. told the police J.C. put his hand down the front of her pants and touched her vagina. She said she was in a hotel room with just J.C. and his son. She testified that nobody else was in the room with them when J.C. touched her vagina. She testified that she and J.C.’s son were goofing around on the bed. J.C. grabbed his son from behind, pulled his son towards him and put his hand down the front of his son’s pants. She testified J.C. then did the same thing to her. She said J.C. had his hand in her pants for about 5 seconds. K. testified that J.C. did not say anything while he was touching her. She testified that she got off the bed when J.C. stopped touching her and started playing with J.C.’s son again. K. did not say tell anyone about J.C. touching her at the time.
[89] During her police statement, K. disclosed that she has autism and ADHD. She explained her autism and ADHD sometimes cause her to be distracted and to lose focus. She also explained that she sometimes feels overwhelmed if she gets overstimulated. K.’s autism and ADHD provide important context about the way she answered questions in her police statement and in her testimony at trial. At times she appeared distracted during her testimony. At times she seemed impatient and frustrated. She had some trouble focusing when we were watching her videotaped statement, which was more than an hour long. K. also answered questions very literally even when I understood the question to have a different intended meaning. There is no evidence or indication that K.’s autism and ADHD affect her ability to accurately perceive or recall events. Nor did the defence suggest her autism or ADHD undermine her credibility or reliability.
[90] The defence suggested that K. had a motive to fabricate the allegations against J.C.. The defence argued that K. made up the allegations to get attention. The evidence does not support this theory. First, K. did not tell her parents what happened with J.C. at the time. In fact, it is not clear that she had told her parents what happened at Great Wolf Lodge before she spoke to the police in April 2019. She was very curious about how the police knew something happened at Great Wolf Lodge. She asked the officer conducting the interview if her parents told her about what happened. The officer told K. she heard about it from a colleague. K. asked the officer who told her colleague about it and the officer said she did not know. K. speculated that A.A. must have said something about what happened. At the end of the interview, K. asked the officer “when are you gonna tell me…who told the co-worker?” The officer said she would tell K.’s mother who told her colleague about the Great Wolf Lodge incident. K. then said, “I’m praying [my mother will] just keep it private again.” The officer told K. that it could not be kept private because the police know about it. Second, K. was clearly uncomfortable talking about what happened with J.C. during her police interview. She volunteered very few details. She answered the officer’s questions but had to be prodded for details. K.’s preoccupation with how the police found out about the incident, her reluctance to talk about the details and her hope that her mother would keep it private are inconsistent with someone who wants attention so I reject the defence theory that K. fabricated the allegations against J.C. to get attention.
[91] The fact that I have rejected the defence theory does not enhance K.’s credibility. And it does not mean she had no motive. My finding that K. was not seeking attention just neutralizes a theory which, if accepted, would have undermined her credibility.
[92] There are a few problems with the reliability of K.’s testimony about what happened at Great Wolf Lodge.
[93] First, K. was wrong about when they went to Great Wolf Lodge. She told the police in April 2019 that they went “near the summer” of the previous year. In cross-examination, K. said they went to Great Wolf Lodge in the summer of 2018. A.A. testified they went in November 2017 to celebrate a few family birthdays.
[94] Second, K. appears to be wrong about who was in the hotel room when the alleged sexual assault took place. K. testified that when J.C. put his hand down her pants and touched her vagina, she was in the hotel room with just J.C. and his son. According to K., nobody else was in the room. She testified that all the other people were in a different room. J.C. and A.A. both testified that there were two other children, both around the same age as K. and J.C.’s son, in the hotel room with J.C. that night.
[95] Neither of these mistake undermines the overall credibility or reliability of K.’s evidence. K. was just 9 years old when J.C. allegedly touched her. She was still a child when she spoke to the police and testified. Children perceive the world differently than adults. Details that are important to adults may be irrelevant to children: W. (R.), 1992 SCC 56, [1992] 2 S.C.R. 122 at p. 134. When a child testifies, “the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying”: W. (R.), at p. 134. The date of the family trip to Great Wolf Lodge or who was present in the hotel room during the alleged sexual assault are peripheral details about which an honest witness could be mistaken or confused.
[96] The defence argued that K.’s credibility was undermined by the fact that the police did not charge J.C. with sexually assaulting his son. K. said that she saw J.C. put his hand down his son’s pants before he put his hand down her pants. The police interviewed J.C.’s son but did not charge J.C. with sexually assaulting his son. The defence asks me to infer from the fact that no charges were laid that J.C. did not touch his son in a sexual manner and K. was lying about that. The fact that J.C. was not charged in relation to his son does not mean he did not touch his son as K. described. There are many reasons the police might choose not to lay charges. Without more, the absence of charges in relation to J.C.’s son does not support an inference that K. was lying or assist me in assessing her credibility.
[97] K. did not tell anyone about what happened with J.C. at Great Wolf Lodge at the time. In cross-examination, K. said she did not tell her parents what happened because she “thought it was normal at that time.” In closing argument, the defence argued that if K. thought it was normal, she must have been sexually assaulted by someone else in the past. The defence did not bring a s. 276 application to adduce evidence that K. was sexually assaulted in the past. There is no evidentiary basis for that assertion. It was improper and irresponsible for counsel to make that argument without following the statutory procedure for advancing evidence of other sexual activity. I entirely reject this argument. I also take nothing from the fact that K. did not report the incident immediately after happened: R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at 32.
[98] The Crown adduced evidence about another incident involving J.C. and K. that does not form the basis of any charge. K. told the police that during one of her birthday parties, J.C. put his phone inside the side of her pants and took a picture of her hip. K. said that she was sitting on the sofa in the basement of her family home watching videos at the time. J.C. was sitting on the sofa beside her. She said she looked down and saw J.C. holding his phone near her hip. She said J.C.’s hand was inside the side of her pants, which were loose. She said she could see the light from his phone on her skin. She said she heard a sound like he was taking a picture with his phone. K. testified that she did not say anything to J.C. when this happened. She went upstairs and told her mother what happened. K’s mother and A.A. went downstairs and confronted J.C.. They searched his phone but did not find any photo of K. A.A. testified that K. was wearing overalls that day and the side buttons of K.’s overalls were open when she came upstairs.
[99] The Crown brought an application to adduce this evidence as similar fact evidence to support a finding that J.C. touched K. in the hotel room at Great Wolf Lodge. There are some problems with K.’s evidence about this incident. First, K. appears to be mistaken about when it occurred. She testified that it happened at her birthday party in 2018 or 2019. Her birthday is in January. However, A.A. testified this incident happened in September 2018 during a different family event. Second, K. gave inconsistent evidence about what she was wearing that the day. During her police interview she said she was wearing a formal dress at the start of her birthday party and changed into a more casual dress with polka dots. Later in her statement, K. said she was wearing loose pants when J.C. took a picture of her. The Crown asked K. about this inconsistency. Initially K. said that when she changed from the formal dress into a casual dress was not the same day that J.C. took a picture of her. She then said it was the same day but she changed from the casual dress into loose pants later on during the party. Third, A.A. searched J.C.’s phone immediately after K. reported what happened and did not find any photos of K. or any deleted photos of K., which tends to undermine the reliability of what K. said J.C. did. Given the inconsistencies in K.’s evidence and the absence of any photos on J.C.’s phone, I am not satisfied on a balance of probabilities that the events at the family gathering happened exactly as K. described or that J.C. took a picture of her. This incident is, therefore, not admissible as similar fact evidence.
[100] The question, then, is whether the inconsistencies in K.’s evidence about the incident at her home undermine the credibility and reliability of her evidence about the incident at Great Wolf Lodge. As with J.C.’s evidence, my findings in respect of K’s credibility and reliability on one incident can inform my assessment of her credibility and reliability on the other: D.M., at para. 97. The errors or inconsistencies in K’s testimony about the photo incident do not, in my view, undermine her overall credibility or reliability. The date on which J.C. allegedly took a picture of her leg is precisely the sort of peripheral detail a child could forget or mix up. And if K. is confused about when that incident happened, she might also be confused about what she was wearing that day. Finally, the absence of a photo or deleted photo of K. on J.C.’s phone does not prove she was lying about what she saw. She may have simply misinterpreted what she saw J.C. doing with his phone that day.
[101] Notwithstanding the issues with K.’s reliability, I find that she was overall a credible witness. Even if I am not satisfied by the reliability of some of her evidence, I can still accept her evidence on other points. I am entitled to accept some, all or none of her evidence. K. testified in a very straightforward manner. Her evidence about what J.C. did to her in the hotel room at Great Wolf Lodge was clear and unshaken in cross-examination. I accept that she was telling the truth when she said that J.C. put his hand down her pajama pants and touched her vagina for about 5 seconds and that she accurately described what J.C. did to her that day. Unlike the incident in her family home involving J.C.’s phone, there is little room for K. to have misunderstood or misinterpreted what J.C. did to her at Great Wolf Lodge.
[102] I am satisfied beyond a reasonable doubt that J.C. intentionally put his hand down K.’s pants and touched her vagina. That touching was obviously of a sexual nature. I, therefore, find J.C. guilty of sexually assault and sexual interference in relation to K.
[103] Because K.’s evidence satisfies me beyond a reasonable doubt as to J.C.’s guilt, I do not need to rule on the Crown’s application to rely on the fact that J.C. sexually assaulted his daughter and that he accessed child pornography as similar fact evidence to prove the actus reus and mens rea of the assault on K. at Great Wolf Lodge.
F. Conclusion
[104] I find J.C. guilty of sexual assault and sexual interference with respect to K. (counts 1 and 2). I find J.C. guilty of sexual assault and sexual interference with respect to his daughter S. (counts 3 and 4). I find J.C. guilty of accessing child pornography (count 6). I find J.C. not guilty of assaulting A.A. (count 5).
Davies J.
Released: April 14, 2023
Footnotes
[^1]: I heard lots of evidence about usernames, passwords, email address and other files that connect J.C. to the desktop computer and the external hard drive. I do not need to review that evidence because J.C. admitted he bought and used both devices. [^2]: J.C.’s evidence about the external hard drive containing the hard drive from an old computer is consistent with the evidence of Officer Kidd, who forensically examined the external hard drive. Officer Kidd testified the external hard drive contained a full operating system and could be booted up as a functioning computer. Officer Kidd testified it was a back-up of an old computer or the actual hard drive from an old computer. [^3]: I have not looked at the images the Crown alleges constitute child pornography. The parties filed a written description of each image. Based on the descriptions and J.C.’s admission, I accept that the 16 images are child pornography as defined in s. 163.1(1) of the Criminal Code. [^4]: The police found evidence that one file that was shared (as opposed to downloaded) by the external hard drive to another user on the Ares network. That file name was Ls-magazine-lsm-pthc-als-nudism-ls-island-ism-022-104. Files with the same name were downloaded onto the external hard drive on April 28, 2011, May 10, 2011, March 28, 2012 and May 26, 2012. I heard evidence that the default setting in Ares is to make all files available to other users on the Ares network.