COURT FILE NO.: CR-19-00000020-0000 DATE: 2023/04/28

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – R. C.

Counsel: Z. Huywan, counsel for the Crown J. Raftery, counsel for R.C.

HEARD: February 27, 28, March 1, 2, 2023

Justice S.K. Stothart

INTRODUCTION

REASONS FOR JUDGMENT

S.K. STOTHART, J.

Overview

[1] The accused, R.C., is charged on a 6-Count indictment with the following criminal offences:

(1) Sexual interference contrary to s.151 (a) of the Criminal Code, alleged to have occurred between June 10, 2011 and June 9, 2013;

(2) Invitation to sexual touching, contrary to s.152 of the Criminal Code, alleged to have occurred between June 10, 2015 and June 9, 2016;

(3) Communication for the purpose of facilitating an offence (Luring), contrary to s.172.1 of the Criminal Code, alleged to have occurred between June 10, 2016 and June 9, 2017;

(4) Sexual assault, contrary to s.271 of the Criminal Code, alleged to have occurred on or about August 16, 2017;

(5) Making child pornography, contrary to s.163.1(2) of the Criminal Code, alleged to have occurred between June 10, 2011 and August 10, 2017; and

(6) Possession of child pornography, contrary to s.163.1(4) of the Criminal Code, alleged to have occurred between June 10, 2011 and August 16, 2017.

[2] A four-day trial was conducted before me and I heard evidence from five witnesses, the complainant S.V., Staff Sgt. Jason Long, Cst. Steven Nizzero, Cst. Scott Buchanan, the accused R. C., and the accused’s wife J. C.

[3] The accused, R. C. was a friend of the complainant’s mother. At the time of the allegations, he lived in a home with his wife and children in North Bay, Ontario. All of the offences are alleged to have occurred in North Bay.

[4] The complainant, S.V. alleges that when she was between the ages of 10 and 16, she was sexually abused by the accused and that he took nude photographs of her. She provided statements to the police detailing her allegations of sexual abuse in October, 2017 and the accused was arrested shortly thereafter. Her evidence is the basis of counts 1 to 5 of the indictment.

[5] During the police investigation into the complainant’s allegations, the police seized cell phones from the accused’s residence which allegedly contained child pornography. The evidence seized from the cell phones is the basis of count 6 of the indictment.

[6] The accused testified and denied that he sexually abused the complainant, denied that he took nude photos of her and denied that he possessed child pornography. His position is that he did not commit any of the offences charged.

THE CROWN’S CASE

The complainant - S.V.

[7] The complainant was born on June 10, 2001. At the time of trial, she was 21 years old.

[8] The complainant testified that R. C. was a friend of her mother and had been in her life as long as she could remember. Sometimes she would go to the accused’s home for play dates with two of the accused’s children when she was younger, sometimes she would spend the night when her mother needed a break and other times she would visit the accused. The accused would also visit her mother at their home.

[9] The complainant did not have a good home life. Her mother had several boyfriends while she was growing up and the complainant avoided being at home as much as possible. The accused was “Uncle R.” to her, although she was not biologically related to him. The accused is 16 years older than the complainant. It was not unusual to refer to “uncles and aunties” that were not blood related.

[10] The complainant testified that the accused’s house was either on Cassells Street or Fisher Street in North Bay. She described it as being adjacent to Pellerin Paints and across from a Shell gas station.

[11] Smoking marijuana (weed) was a common past time for the complainant and the accused when she visited. The two would smoke weed outside on the porch and then go inside the house and play a video game called “Call of Duty” or watch television in the living room. The complainant testified that they would go out to the porch and smoke weed multiple times until it got late enough, the rest of the house would be asleep or not there, and that’s when things would “kick off”.

Incidents at the accused’s home

[12] The complainant testified that the first thing she remembered was an incident when she was sitting out on the porch at the accused’s home, smoking weed. She was “really young” and it was before grade 7. The accused started talking to her about how he was thinking of getting a girlfriend and that maybe she could be his girlfriend. She testified she had an awful feeling in the pit of her stomach.

[13] The complainant testified that she recalled an incident at the accused’s home that occurred prior to her attending grade 7. She was sitting on the couch in the living room and the accused asked her to come and sit on an armchair with him. While they were sitting on the chair, the accused had his hand on her hip and thigh and was massaging the muscle in her leg. He then slowly moved his hand and tried to put his hands down her pants to touch her. She got up and moved back to the couch. The accused sat there for a bit and told her that his hands were just naturally attracted to warm places and that he didn’t realize that they were moving. The complainant testified that she did not believe the accused’s wife or his children were around for this incident.

[14] The complainant testified that on this occasion the accused touched her groin (which she later clarified to mean vagina), chest, thigh and her butt. The accused rubbed her clitoris, which the complainant described as digital penetration.

[15] The complainant described another incident that occurred at the accused’s home. During this incident she was nude, sitting and posing on the armchair while the accused took photos of her. The accused would move forward, touch her, and then back up and take more photos. He would tell her how to pose, where to place her hands, whether to face the camera or face a certain way. She could not recall how her clothes came off. She described remembering how cold the leather felt and that she was uncomfortable. She testified that the accused used a cell phone to take the photos and that she believed it was not an Apple product. She testified that she was really, really, young and that she was small enough that everything in the room looked huge to her.

[16] The complainant testified that usually after the photos and posing were done, the accused would ask her to sit on the couch and he would get “handsy”. After the photo sessions, she would usually rush to put her clothes back on because she felt uncomfortable and ashamed.

[17] The complainant testified that when these incidents occurred, the accused’s wife, J. and the children were not present. She testified that the majority of the incidents occurred before she started grade 7. She was between 13-14 years old when she began attending grade 7 at Chippewa High School in North Bay.

[18] The complainant testified that there was a pattern. She and the accused would smoke weed, go inside and play Call of Duty or watch t.v. When the others in the house would be asleep or the others were not there, the touching and the photos would start.

[19] During cross-examination, the complainant testified that she slept over at the accused’s home countless times and she would usually sleep on the couch. She agreed that when she was there the accused’s wife would see her, however added that there were evenings when she came over and the accused’s wife had gone to sleep or was not there. There were several instances where she believed that the accused’s wife was away with her parents.

[20] It was suggested to the complainant that the only time she slept over at the accused’s house was when the accused’s spouse spoke to her mother and arrangements were made ahead of time. The complainant agreed that in the beginning there would be calls ahead of time. Other times she would come over when the accused’s wife was gone and would leave the same night. Not all incidents occurred when she slept over at the accused’s home.

[21] In cross-examination it was suggested that it would not have been possible for the alleged incidents to occur without the accused’s wife waking up and hearing what was going on. The complainant testified that it happened plenty of times and that there are ways to be quiet. The complainant testified that she and the accused would listen to loud music, watch t.v. and play Call of Duty after the accused’s wife went to bed and this did not wake her up on normal visits.

Incident outside the complainant’s house on Second street

[22] The complainant described a particular incident that occurred when she was living with her mother on Second Street in North Bay. The accused was at their home visiting and at one point they ended up alone. The accused escorted her to the back of the property, to an area behind her bedroom. The complainant recalled that her bedroom was in the basement and had a high cellar window.

[23] The complainant testified that this was an area where it would be unlikely that they would be seen because no one was allowed in her bedroom, you could not be seen by the neighbours from this location, and the house backed on to a dirt lot.

[24] The accused asked her to pull up her shirt so that he could take a few photos. She obliged and the accused took a few photos of her chest. Then they went back inside with everyone else, her mother and everyone inside were enjoying music and food. She testified that this occurred when she was in early grade 7, around the age of 13-14.

[25] The complainant testified that the accused would show her the photo gallery on his cell phone and that she saw photos of herself and photos of other women on his phone. A lot of the photos did not have faces.

[26] In cross-examination, the complainant testified that when she saw photos of herself on the accused’s phone, she recalled seeing photos from Second street and from the couch/chair posing. The couch photos were full nudity. There were some photos of just her chest that were taken on the deck outside. She was able to recognize her own chest because she is lopsided and was very small.

The move to Webbwood

[27] The complainant testified that when she was around 13 years old, her mother met a man named Fraser, who moved them out to Webbwood which is a small community just outside the Town of Espanola. The complainant attended Espanola High School. The complainant was not happy during this time and her parents were abusive. She felt isolated and was bullied in school. She became involved in drug use, including the use of “Hydro” and “Oxy’s” and suffered from serious mental health issues to the point where she was hospitalized.

[28] While living in Webbwood, the complainant was involved in an incident where she and her friends falsely claimed that she had been beat up in a field by the school. She agreed in cross-examination that she only admitted to making the story up when the police showed her a video of the field. She maintained her story because she thought her friends were backing her up. She agreed that she made up the story to get attention. She was charged with public mischief and completed a diversion program.

[29] The complainant testified that she is not the same person as she was when this incident happened. She is older now and has had extensive therapy. She realizes now that she was in a bad place in her life and was seeking attention. She testified that she is now in a much better place and has undergone healing.

Incident near the church/power station

[30] The complainant testified that shortly after her sixteenth birthday, it was decided that she should move back to North Bay and live with her grandparents. This would have been the summer of 2017.

[31] The complainant testified that on one occasion she had been in a big argument with her grandparents and wanted to get out of the house. She and the accused had been messaging and one of them suggested they go for coffee. The accused came and picked her up at her grandparents, in his car.

[32] The complainant testified that they may have gone to Champlain Park first, as this was a place they had gone together before. Eventually they made their way to an area near the Gateway Pentecostal Church, which is near Booth Street and the Happy Haven complex. They parked at a parking lot that was near electrical transformers. The complainant recalled that it was around 8 p.m. and everything was closed.

[33] While they were parked, the two engaged in small talk about life and why the complainant had come back. The accused told her that she had filled out really well and said he had missed her. At some point the complainant’s pants were down around her ankles and the accused put his fingers in her vagina. The complainant recalled that she panicked when the accused put his fingers inside of her.

[34] The complainant testified that she was not lubricating as much as the accused wanted and he made some comments about that. While this was going on, she was not really responding and stared out the window. The complainant testified that she went to a different place in her brain where she felt she deserved this, this was meant to be and what was the point of fighting.

[35] The complainant testified that a truck pulled up and that snapped her back to reality. She jumped for her pants and underwear which were around her ankles. She started to pull them up and forced the accused to remove his hand and get away from her. She testified that she thought the truck left before they did. She believes they just went home after this.

[36] The complainant testified that her memory was fuzzy on how her pants ended up down around her ankles and whether she touched the accused during this incident. She agreed that her memory on these points had been affected by the passage of time. During cross-examination, she was taken to her evidence at the preliminary hearing where she testified she may have jerked the accused off during this incident at the power station. The complainant agreed with her testimony at the preliminary hearing but indicated that her memory was not as good at trial. She testified that she did not want the touching but she wanted to make R. happy and she understood that this made him happy and she did what she was told.

[37] The complainant’s evidence was inconsistent with respect to when this incident occurred. When she was reviewing Facebook messages during her examination in chief, she initially thought that this incident occurred on September 5, 2016 because there were messages from that date where the complainant and the accused messaged each other about the accused picking her up. The complainant provided the address for her grandparents’ home, and later on that evening, around 11:04 p.m. the accused messaged her indicating he had had fun with her that night.

[38] The complainant was directed by the Crown to another portion of the Facebook messages, from August 16, 2017, where again the complainant and accused messaged each other about the accused picking the complainant up. In these messages the accused tells the complainant that he will pick her up at 7:45 p.m.. At 10:06 p.m. the accused wrote to the complainant and said ”Had fun today” to which the complainant responded “I did too” (smiley emoji) and the two go on to message back and forth. The complainant testified that this might have been a time that they went to Champlain Park, smoked a joint and flirted. She testified her memory had “escaped her” and she could not remember what happened on that occasion.

[39] The complainant was cross-examined about what she meant when she used the term “digital penetration”. She testified that she meant “putting your finger in her vagina”. She testified that this was a term that the police used when she was giving her statement. When she would use the word “fingering” the police would shorten that to digital penetration.

[40] The complainant was taken to a portion of her evidence at the preliminary hearing where she testified that the accused touched her a lot in the vaginal area but never digitally penetrated her. The complainant testified that at the time she thought digital penetration had to be full penetration and that the person would have to massage around for more than a couple of moments. She thought if someone put their finger in her vagina and then withdrew it, that would not count. She now realizes that there is no time limit on the term and that what the accused would do to her was more touching and teasing her vaginal area.

[41] When asked about the August 16, 2017 incident the complainant agreed that she wanted to go for a drive with the accused. In her mind there were two versions of the accused, the sweet and kind uncle figure and the one that made her feel uncomfortable and do things she did not want to do. He was her leading father figure at the time and the only stable male figure in her life. She was craving validation and attention and the accused flattered her and made her feel loved.

Accused’s requests to touch him

[42] The complainant testified that the accused would sometimes ask her to touch him and “jerk him off”. She testified that she did this a few times. She felt pressured to say yes because she would be in a car or in his living room and felt there was nowhere to go. She believed she may have touched the accused during the power station incident but her memory on this was fuzzy. The accused may have also had her touch him while they were at Champlain Park, but she could not recall this incident very well.

[43] The complainant testified that what would usually happen is that they would be talking about sex in general, what their turn-ons were and who they were attracted to, and then the accused would gradually take his penis out and it would move to touching from there. She described the accused taking out his penis and saying “look at that, isn’t that magnificent, just touch it, just touch it”. Sometimes she would panic and he would back down. On other occasions she would end up jerking him off with her hands.

[44] In cross-examination, the complainant was taken to her evidence at the preliminary inquiry where she testified that she had jerked the accused off once or twice. She testified at the preliminary hearing that one of the times might have been the night down at the power station and then another time was when they were on his couch but she could not put a time frame on that incident. The complainant agreed with her evidence at the preliminary hearing and testified that her memory was not as good at the time of the trial due to the passage of time.

[45] The complainant was asked in cross-examination if the accused’s penis was circumcised. The complainant testified that she didn’t know the difference between one that was and one that was not. She recalled that when she would push down on his penis, it would move out of the sheath and that when she stroked his penis it would move, do things and get harder.

[46] The complainant agreed during cross-examination that she had never mentioned the accused’s comments about his penis being magnificent in her statements to the police or during her evidence at the preliminary hearing. She testified that it was inherent that when someone is trying to get you to touch them that there will be words of encouragement, however she could not recall every sentence the two exchanged about this.

The Facebook Messages/Texts

[47] Facebook messages between the accused and the complainant were entered as exhibit 1 at trial. The messages appear to be in a chat format where the parties send short messages back and forth. During the trial these were often referred to as “texts”.

[48] The complainant and accused agreed at trial that the messages in grey came from the accused and the messages in blue came from the complainant. There was no objection to the introduction of these messages at trial.

[49] Based on the complainant’s evidence at trial and time stamps found on some of the messages, the messages appear to cover a range of time between July, 2016 and October 9, 2017.

[50] The complainant was taken through the messages at trial and placed some of them in context and time. She described them as typical of the conversations she would have with the accused. At the time she liked having someone talk nice to her and tell her that she was pretty. At the time she thought it was a crush. She now realizes that she was a child and did not know what love was.

[51] In one of the messages the complainant indicated that she would give the accused “lots of pictures”. She testified that she was referring to nude pictures and posing for the accused. At the time she thought pictures didn’t count because people swapped nude pictures and it did not seem like a big deal.

[52] In one conversation the accused indicated that he had just got “boobs” on Whisper. The complainant testified that Whisper was an app. where people would post secrets. You would post a photo and write at the top of it and this would be whispering to others. The complainant understood the accused’s comments to mean he received a photo from someone on Whisper.

[53] Many of the messages contain only portions of the conversations between the accused and the complainant. Some of the conversations are cut off either at the top or bottom of the page. Others appear to represent an entire conversation.

[54] The complainant was cross-examined on many of the Facebook messages. It was suggested to her that in the messages the accused was concerned about her and wanted to assist her. The complainant did not agree.

[55] It was also suggested that many of the things the accused said in the messages were lighthearted or joking because he frequently added words like “he he” and “lol”. The complainant disagreed and testified that these terms were just masking or shaking off the tension in the conversation.

Other Issues

[56] The complainant testified that there were other incidents, including having photos taken when she was in the accused’s car and possibly sexual touching while at Champlain Park. The complainant testified that her memory was not very clear with respect to these incidents.

[57] The complainant was asked about her drug use and the effect the drugs had on her. She testified that at the time, drugs made her more awake and almost hyper aware. She did not sleep or eat, but her grades were soaring at school. The complainant testified that she now has memory issues from her drug use and trauma.

[58] When asked about her memory issues, the complainant testified that she has trouble connecting the front and back of her mind, unless something triggers a memory. She has a hard time remembering certain things that her brain deems unnecessary and often has to repeat things or write things down.

[59] The complainant testified that she remembers traumatic events because her brain considers this essential information and so her memory holds the bad memories. She agreed that the passage of time has affected her memory and that she has memory blockages and flashbacks. At times she feels unwell and tries hard to make her brain forget things.

[60] The complainant was asked about her diagnosis of Dissociative Identity Disorder (DID). She testified that she was told her disorder was caused by extreme traumatic events. The complainant has been under the care of psychologists and counsellors for many years.

[61] The complainant agreed that she had a conversation with a high school principal on October 17, 2017, in which she stated the accused had raped her more than once; that he lived on Cassells Street; that he had pictures and a video of her giving him a hand job; that she saw photos of herself on his phone; and that she had chat and Facebook messages. The complainant testified that she could no longer recall if the accused had a video of her giving him a hand job due to the passage of time. With respect to the term “rape” the complainant testified that meant unwanted sex or unwanted sexual advances such as forcible touching.

[62] The complainant agreed in cross-examination that she initially told the police that the accused threatened her into silence and then later recanted that statement. The complainant testified that she had originally confused the accused with another situation involving another person. When she went back and looked at her journals, she realized that she had made a mistake and she told the police about her mistake.

Staff Sergeant Jason Long

[63] Staff Sgt. Long is employed by the North Bay Police Service. He testified that he became involved in the investigation on October 1, 2017. He monitored the interview of the complainant and received a series of chats that were downloaded from the complainant’s Facebook account. He was given permission to log into the complainant’s Facebook account and he accessed and downloaded the public Facebook profiles for the complainant and the accused.

[64] Staff Sgt. Long also assisted in the execution of a search warrant at the accused’s home. Initially the police attended at 1129 Fisher Street in North Bay, however learned that the accused had moved next door to 1119 Fisher Street. S/Sgt. Long testified that the accused’s house is near a large parking lot next to Pellerin Paints and is across from a Shell gas station.

[65] The police executed a search warrant at the accused’s home on October 21, 2017. S/Sgt. Long was assigned to be the exhibit officer and took custody of a number of items including a laptop, a tablet, USB sticks and five cell phones. The cell phones consisted of two Samsung Galaxy phones, two LG phones and one Motorolla phone.

[66] Continuity of the seized cell phones was admitted by the defence at trial.

Constable Steven Nizzero

[67] Cst. Nizzero is a police officer employed by the Greater Sudbury Police Service who was asked to assist with the investigation because he worked in the computer forensic unit. He was qualified at trial as an expert in computer and digital forensic analysis and was permitted to provide expert evidence regarding the authenticity and extraction of digital files.

[68] Cst. Nizzero examined the two LG phones seized from the accused’s home which were an LG G4 cell phone and a LG Stylo 3 plus. He used software called “Celebrite” which allowed him to look in certain areas of the phones and gather data about their usage. He prepared two reports with respect to each cell phone, which were marked as exhibit 4 (related to the LG G4) and exhibit 5 (related to the LG Stylo 3 Plus) at trial.

LG G4 Cell Phone

[69] Cst. Nizzero determined that the LG G4 cell phone was registered in the name of R. C. and it was registered under that name on May 11, 2017. The first phone call and first text message sent from the phone were on May 10, 2017. There was only one registered user for this phone.

[70] Cst. Nizzero observed that an application called “Keepsafe” was installed on the phone. Cst. Nizzero testified that “Keepsafe” allows a user to store or upload images into the application which are then encrypted. In order to access or view the photos, you must enter a password. The application is difficult to get into.

[71] Cst. Nizzero testified that the use of “Keepsafe” piqued his interest as it is commonly used to hide images. In his line of work, there are often child pornography images encrypted within the “Keepsafe” application.

[72] At the time Cst. Nizzero first examined the LG G4 cell phone, he was unable to access any materials kept in the “Keepsafe” application. He was, however, able to observe the names of files kept in a “main folder” and a “trash folder” within the application. He took a screen shot of those names and included them in his report. The “main folder” appeared to contain 120 files and the “trash folder” appeared to contain 60 files. Some of the screen shot names that appeared in the “main folder” in the “Keepsafe” application on the LG G4, also appeared on the Samsung Galaxy SIII cell phone that had been seized from the accused’s home.

[73] Cst. Nizzero testified that when someone takes a screenshot of an image on their phone, the phone will create an auto generated name that will include the date and time when the screen shot was taken. In this case, the main folder in “Keepsafe” contained several file names that were indicative of screen shots taken in 2015, 2016 and 2017. Other file names were indicative of images taken by a phone application. Those file names contained the date on which they were taken, using year, month and date. One file name was indicative of potential child pornography, it was named “Amateur-Babe-Red-Head-Small-Tits-Teen” and appeared three times in the “main folder”.

[74] Most of the files in the “trash folder” were indicative of photographs taken with a phone application, again using the year, month and date format in their names.

[75] Cst. Nizzero observed that the file format for some files found on this cell phone appeared to be the same file format that appeared on photographs contained on another cell phone seized from the accused’s home, a Samsung Galaxy SIII.

[76] Cst. Nizzero testified that he was able to locate search terms that were used for internet searches conducted on the LG G4 cell phone. He took a screen shot of search terms used on October 10, 2017 between 12:05 a.m. and 1235 a.m. and included them in his report. These search terms included: “3d hantia nude youn”, “3d hantia porn”, and “littles nudes”. Cst. Nizzero testified that ‘little nudes” is a common term used in connection with child pornography.

[77] Cst. Nizzero was able to determine that the LG G4 cell phone was used on October 10, 2017 at 12:05 a.m. to access a website called “Fresh preteen licking- pre nude angel. pr teens in pantyhose”. When the officer visited this website during his analysis, it contained child pornography.

[78] Cst. Nizzero then used a website called “Way Back”, which allowed him to go back in time to see what the website looked like on April 28, 2017. The officer was able to confirm the website contained mainly child pornography images at this time as well.

[79] Cst. Nizzero testified that he was able to locate images on the phone. Only one child pornography image contained on the LG G4 cell phone had EXIF data (dates and times). Based on the meta data attached to the image, the officer was able to determine that the image was screen captured and saved on the “clip tray” on the LG cell phone on June 27, 2017 at 2:33 p.m.

[80] Following his review of the LG G4 cell phone, Cst. Nizzero reached out to officers with the North Bay Police Service to see if the accused was willing to provide the password for the “Keepsafe” application. A password was provided by the accused, and the officer was able to observe and copy images contained in the application to his work-station.

LG Stylo Plus Cell Phone

[81] Cst. Nizzero produced a further report with respect to the LG Stylo Plus, which also had the “Keepsafe” application. The officer testified that the “Keepsafe application” on this phone contained 123 files in the “main folder” and 63 files in the “trash folder”. He took a screen shot of these folders and included it with his report.

[82] Cst. Nizzero was only able to extract 45 images from the “main folder” of the “Keepsafe application” on this phone. The officer noted that many of the images had the same file names that had appeared in the “Keepsafe” application when he examined the LG G4. He was not able to retrieve the meta data for the images. Cst. Nizzero testified that he forwarded these images to Cst. Buchanan for review and categorization.

[83] Cst. Nizzero testified that potential images taken on the Samsung cell phone could have been transferred directly to the LG cell phones, or they could have been transferred using the “Keepsafe” application. Users are able to back up their files on the “Keepsafe” server/cloud and this allows them to access the photos using another phone.

Constable Scott Buchanan

[84] Cst. Buchanan is a police officer employed with the North Bay Police Services. Between 2017 and 2021 he was assigned to the Internet Child Exploitation Unit. As part of this assignment, he was involved in investigations related to children and the internet, particularly luring. He has received training and is qualified to characterize child pornography.

LG G4 Cell Phone

[85] Cst. Buchanan testified that he received data extracted by Cst. Nizzero from the LG G4 cell phone on September 21, 2018. There were over 4000 media files extracted from the LG G4 cell phone. He reviewed the data using a software called “Griffeye” which is a software used by police agencies to categorize child pornography.

[86] On October 4, 2018, Cst. Buchanan began categorizing the media files. He testified that there are three categories typically used in Canada when categorizing child pornography. The first category (category 1) includes images or videos that depict a person who is, or who is depicted to be, under the age of 18, typically engaged in explicit sexual activity or where the dominant characteristic of which is a depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of 18 years. This is the Criminal Code definition of child pornography.

[87] In this case, Cst. Buchanan found that 58 images extracted from the LG G4 cell phone fell within category 1.

[88] With respect to the second category (category 2), Cst. Buchanan testified that he would place any files that were of investigative interest into this category. This category would include images of children in suggestive poses or bathing suits where there was not enough information to determine if the dominant characterization was for a sexual purpose. It would also include pictures of a chest or penetrative act, but not enough information to tell the age of the person depicted. The officer was aware that the accused had children, and photos of those children would be placed into this category as well. In this case Cst. Buchanan found that there were 1472 images of investigative interest.

[89] With respect to the third category (category 3), Cst. Buchanan testified that he would place all other files into this category. It would include adult pornography, family albums and photo albums.

[90] I was shown each of the 58 images that Cst. Buchanan placed in category 1. Cst. Buchanan also provided descriptions of each photo for the record.

LG Stylo Plus Cell Phone

[91] On December 11, 2019, Cst. Buchanan examined the data extracted by Cst. Nizzero from the LG Stylo Plus. During this examination, the officer used a software called “S-21” to categorize the files. The officer noted that there were 1125 files extracted from the phone. Of those, 45 files were extracted from the “Keepsafe” application.

[92] Of the 45 files found in the “Keepsafe” application, 21 files were categorized as category 1, child pornography. Of those 21 files, 18 were unique files, and others were duplicates.

[93] I was shown each of the 21 images that Cst. Buchanan placed in category 1. Cst. Buchanan also provided descriptions of each photo for the record.

[94] While reviewing the 21 images, I noted that images 1, 15,17 and 18 had also appeared in the category 1 files extracted from the LG G4 cell phone.

Breast development

[95] It was suggested in cross-examination that Cst. Buchanan used breast development when categorizing an image. Cst. Buchanan disagreed with this suggestion and testified that he looks at the entire image to determine whether the person depicted appears under the age of 18. He testified that there were multiple photos on the cell phones that depicted just a torso and/or genitalia. He placed these images into category 2, unless he was able to determine that a reasonable observer would conclude that the person in the photo was under the age of 18, such as in the case of a toddler or child.

EVIDENCE CALLED BY THE DEFENCE

The accused – R. C.

[96] The accused, R. C., was born on December 10, 1985. At the time of trial, he was 37 years old. He is married to J. C. and has three children. He and his family live in a home on Fisher Street in North Bay, Ontario.

[97] R. C. testified that he has difficulties with communication because he has a learning disability and suffered injuries to his head in an accident in 2005. He attended high school and college, but only made it through two years of college. He received special assistance during his education due to his difficulties with reading, writing, comprehension and communication.

[98] R. C. testified that he met the complainant’s mother about 18 years ago and the two were good friends. They met when the complainant was three years old. He would see the complainant’s mother almost every weekend and would help her out with things including driving one of her children to Ottawa for medical appointments. They stopped talking about six years ago when he was charged with these offences.

[99] R. C. testified that when the complainant started high school her attitude shifted and she became disrespectful to her mother. He attributed this to a friend who was a bad influence. Prior to this, the complainant was very polite, listened and did well in school.

Overnight visits to his home

[100] The accused testified that over the years he became a buffer between the complainant and her mother when they would fight. On occasion, the complainant would spend the night at his house so that she and her mother could have some time apart. R. C. testified that he saw himself as a friend to the complainant and he would listen to her problems.

[101] R. C. testified that the complainant stayed overnight at his house between 4-5 times. On all of those occasions his wife and children were at home. Prior to any overnight visits, R. C. would talk to the complainant’s mother who would ask him if the complainant could spend the night. On those occasions the complainant would come over after his children had gone to bed. This was because the complainant used bad language.

[102] When the complainant would come over she would set up, brush her teeth, and then they would play “Call of Duty”. R. C. testified that they watched a movie once. R. C. testified that he and his wife would go to the porch and have a cigarette to get away from the complainant and her yelling. He and his wife would have a midnight joint and then go to bed.

[103] R. C. testified that his wife and the complainant did not like each other. His wife did not like that the complainant would swear a lot when they played “Call of Duty”. He would tell the complainant to stop swearing multiple times, but she would not listen.

[104] R. C. testified that when the complainant would come over, his wife would go into the master bedroom, lie on heating pad on her bed, and play a video game called “The Sims”. His wife suffers from fibromyalgia and at times has trouble standing and walking. R. C. testified that the complainant would spend less than 24 hours at his house because his wife was not a big fan of the complainant because of the way she acted, her hygiene and her drama.

[105] R. C. testified that the house he lives in was built in 1904. It has creaky floors, the walls are “paper thin” and there is no soundproofing. He can hear if his child snores upstairs. R. C. testified that the living room had a couch and a loveseat, and that they had never had an armchair. The complainant would sleep on the couch, which was in front of the pocket doors that led to the master bedroom where he and his wife slept.

Car trips to Champlain Park

[106] R. C. testified that he has only been in a car with the complainant twice. On both occasions they went to Champlain Park, which he described as a busy area with no privacy. When he and the complainant went there, they went to the swings and did not stay inside his car. He denies that anything sexual occurred.

[107] R. C. testified that he has never been to an electrical plant with or without the complainant.

[108] R. C. testified that he and his wife would play a video game on their cell phones every night at 9 p.m. called “King of Avalon”. This was time he and his wife enjoyed together after the children were in bed and they were heavily invested in the game. When he would pick the complainant up and go to Champlain Park, he would have her home by 8:30 p.m., so he could be back home in time to play this video game with his wife.

Physical contact with the complainant

[109] With respect to any physical contact with the complainant, R. C. testified that the “worst” that he did was hug her, and even that was “iffy” because of the complainant’s poor hygiene. He testified that you could smell the complainant from 2-3 feet away and he did not want to touch her. At most he would give her a reluctant hug.

[110] R. C. specifically denied taking nude photos of the complainant, touching her vagina, having her lift her top to expose her breasts or having her masturbate him. He specifically denied having any sexual interest in the complainant.

Relationship with the complainant

[111] The accused denied that he was in a position of authority with respect to the complainant. He testified that he had no idea why the complainant referred to him as “Uncle” and that he perceived their relationship to be one of friends. When the Crown suggested that he was in a position of authority when the complainant slept over, the accused agreed that she would have to listen to him but noted that she never really did.

[112] R. C. testified that he did not know the complainant’s last name until the week before the trial took place.

Use of cannabis

[113] R. C. testified that he would smoke weed to help him sleep or address his hand/wrist injury. The only person he smoked weed with was his wife in the evenings. He specifically denied ever providing weed to the complainant or smoking it with her.

Use of technology and the accused’s cell phones

[114] R. C. testified that he has very limited skills with respect to technology. His wife picks up his cell phones because he is not very smart with technology and does not know much about them. He does not know how to use a laptop and his wife assists him with it. He does not like to take photos because of the issues he has with his hands and the photos come out blurry. R. C. testified that sometimes when he types messages, what he says in his head does not come to his hands, so he will pass the phone to his wife and ask her to text for him.

[115] The accused testified that while he is married, he sexually prefers men and is not a fan of women. His wife sexually prefers women. He testified that his wife is an anomaly and that she is his soul mate.

[116] R. C. denied that he had ever seen the photographs found on his two LG phones that were examined by the police. He testified that he and his wife would switch cell phones when they looked at pornography. His wife would set up male pornography on her phone and he would watch videos on his wife’s cell phone because the sound was better. His wife would look at images on his phone.

[117] R. C. testified that his wife downloads the apps on his phone and she downloaded the “Keepsafe” application on his cell phone. He testified that he does not know how to move images from one phone to another. He denied being able to search for anything on the internet.

[118] R. C. testified that his wife had the password to “Keepsafe” and he has never seen the photos in the application. He testified that his wife might have looked up the stuff that was on his cell phone.

Facebook messages

[119] R. C. admitted that he engaged in the Facebook messages that were tendered at trial, however he noted that the conversations produced were often missing portions of the conversations and time stamps.

[120] When the accused was taken to specific Facebook messages, he testified that he was just trying to be a friend to the complainant. When taken to messages that were sexually suggestive, the accused testified that the complainant liked people to talk to her like that and it gave her more confidence. When there were discussions about touching, the accused testified that he was joking and had no intent to do these things. He was just trying to make the complainant feel better. When they talked about the complainant sending him pictures, they were talking about the complainant sending him some drawings.

[121] The accused testified that he knew the conversations made him look bad, but he was just trying to be friendly. He wanted the complainant to feel happy and feel that there was someone out there who cared for her. He felt he was just being nice.

J.C.

[122] J. C. is the accused’s spouse. She and the accused have been together for 14 years and married for 9. They have an open marriage. J. C. testified that she is bi-sexual with a strong preference for women, while her husband is queer.

[123] J. C. testified that she met the complainant in 2008, through the complainant’s mother. She would describe her husband as almost a father figure to the complainant. The complainant called her husband Uncle and called her Aunt J. The complainant and the accused were very close and she would describe them as having a family relationship.

[124] J. C. testified that she found the complainant to be overwhelming at times and she tried to keep her interactions with the complainant to a minimum because she is an introverted person and the complainant needed constant social interaction. J. C. testified that the complainant was struggling with non-present parents and, after her step-father was arrested for sexual allegations (not involving the complainant), she would have outbursts, lie a lot, and engage in self-harm. J. C. was concerned for the complainant’s mental health and spoke to her about mental health resources.

[125] J. C. testified that the complainant slept over at their home 4-5 times, when she was between 12-13 years old. At the time, the complainant’s mother would call the night before and ask if they would take the complainant to provide her mother with a break. The complainant’s mother would send her over by cab or she walked. J. C. testified that her husband drove the complainant once. The complainant would leave by lunch the next day, because they had limited food resources and she did not want another mouth to feed.

[126] J. C. testified that after the incident involving the complainant’s step-father, they all agreed that visits would be supervised by J. C. for everyone’s comfort. She assured the complainant’s mother that the complainant would not try to do any attention-seeking behaviour in her household.

[127] J. C. testified that she was always inside if the complainant was over. She has fibromyalgia and does not leave the home often. When the complainant was over, J. C. would be in the living room, kitchen or in her bedroom playing a video game with the door open. When the complainant slept over, she slept on the couch which was just outside the pocket doors to the master bedroom.

[128] J. C. testified that she would definitely have heard any conversation between her husband and the complainant. Many times, she had to tell the complainant to quiet down when she would get over excited and loud.

[129] J. C. testified that you can hear everything in their house and that she would have “definitely heard” every move/shift of a person on the long couch. She testified that she would have heard if the complainant showed up at night because the master bedroom is beside the front door. J. C. testified that there was no opportunity for her husband to behave sexually towards the complainant in their home.

[130] J. C. testified that she was “positive” that her husband did not consume marijuana with the complainant. When she was shown page 53 of the Facebook messages, she testified that she perceived the messages as her husband being sarcastic and joking. She then testified that the complainant had not smoked marijuana with her husband to her knowledge.

[131] In cross-examination, J. C. testified that she was aware of two occasions where her husband picked up the complainant and spent time alone with her. On those occasions the complainant contacted her husband and asked him to hang out. She would tell her husband to make it quick because they both played King of Avalon almost nightly at 9:00 p.m. J. C. agreed that there was an opportunity for something to have occurred on those occasions. She testified that she was not there and that you “can’t keep eyes on everyone all the time”.

[132] J. C. testified that her husband is very “tech inept”. He has trouble getting technology to work or remembering passwords. She testified that she downloaded every single application on the accused’s phone.

[133] J. C. testified that there was an incident where her brother-in-law used her husband’s phone and saw a nude photo of herself. She testified that she downloaded the “Keepsafe” app so that she could store files of herself and/or her husband of an explicit nature. That way if anyone used their phone, they would not come across the photos because they were password protected.

[134] At this point in her testimony, J.C. specifically asked for protection under the s. 5 of the Canada Evidence Act and section 13 Charter of Rights and Freedoms. She confirmed that she had spoken to a lawyer about her decision to invoke these protections prior to testifying at trial.

[135] Following invoking these protections, J.C. testified that she and her husband would swap cell phones. They did this because her husband was in the closet and they didn’t want evidence of his viewing male pornography to show up on his cell phone. She would set her husband up on porn hub on her cell phone, and then she would look on google or porn hub at females on his cell phone. She acknowledged that the two LG phones were her husband’s cell phones. She believed she used a Motorolla product.

[136] J.C. testified that she would look for pictures of petite women with small breasts and no pubic hair. She used the search term “young” because she was looking for young adult women. She used “teen” to search porn hub because she was looking for 18-19 year old females. She has looked up “cartoon porn” on Huntai because she was curious.

[137] J. C. was shown exhibit 5, which was a screen shot of file names found on the LG Stylo cell phone. She testified that she recognized the file named “Amateur-Babe-Red-Head-Small-Tits-Teen” as a file that she saw that depicted a beautiful woman with red hair. She took a screen shot and saved a copy to the “Keepsafe” app. J. C. testified that she did not download photos. She would only take screen shots.

[138] When asked if she gave the password to “Keepsafe” to her husband, J. C. testified that she believes she told him what it was, however she doesn’t believe he remembered the password after she told him. According to J. C., she was the only one who had access to “Keepsafe” and she did not give the password to anyone else.

[139] When asked what images she kept in the “Keepsafe” app, J. C. testified that she kept anime, images of women with small breasts, one or two straight sex photos showing an adult male and adult female and maybe photos of female genitalia. She testified that the last time she accessed the photos on “Keepsafe” was five or six years ago. She denied having any photos of children under the age of 10 involved in a sexual act.

GOVERNING LEGAL PRINCIPLES

The Presumption of Innocence and the Burden of Proof

[140] The accused is presumed innocent. That presumption remains with him unless and until the Crown establishes his guilt beyond a reasonable doubt. This is a heavy burden, and it never shifts. The accused has no obligation to establish his innocence. This an important and long-standing principle of our criminal law is constitutionally entrenched in s.11(d) of the Canadian Charter of Rights and Freedoms. Regina v. Pearson, [1992] 3 S.C.R. 3 S.C.R. 665 at pp. 682-683, 687.

The Application of R v. W.D.

[141] While under no obligation to do so, the accused testified and denied all of the criminal allegations in this case. He also called his wife to testify in his defence. Accordingly, the principles set out by the Supreme Court of Canada in Regina v. W. (D.), [1991] 1 S.C.R. 742 are applicable to my analysis.

[142] In these circumstances, in assessing the evidence I have instructed myself in accordance with the direction of the Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742, at pp. 757-758:

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

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

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

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

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

[143] While it has been said that these three W.(D.) steps are not a “magic incantation”, following the analytic framework set out in that case ensures that the correct burden and standard of proof are applied: R. v S.(W.D.), [1994] 3 S.C.R. 521, at 533. As noted by Charron, J. in R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 23:

In a case that turns on credibility … the trial judge must direct his or her mind to the decisive question of whether the accused's evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. Put differently, the trial judge must consider whether the evidence as a whole establishes the accused's guilt beyond a reasonable doubt.

Credibility and reliability

[144] In this case, the issue that directly confronts the court is the credibility and reliability of the evidence of the complainant and of the accused, and of the other trial witnesses.

[145] In R v. M.(A.) 2014 ONCA 769, Watt J.A. summarized the appropriate approach to the evaluation of a witness’ credibility as follows:

Every witness, irrespective of age, is an individual who credibility and evidence should be assessed according to the criteria appropriate to his or her mental development, understanding and ability to communicate.

No inflexible rules mandate when a witness’ evidence should be evaluated according to “adult” or “child” standards. An inflexible, category-based system would resurrect stereotypes as rigid and unyielding as those rejected by the recent developments in our approach to children’s evidence: R v. W.(R.), [1992] 2 S.C.R. 122, at p. 134.

[146] In R v. M.(A.), Watt, J.A. reviewed applicable principles for assessing the evidence of witnesses as to credibility issues. I excerpt the following for consideration in the circumstances of this case (from paras. 12-15):

12 …[O]ne of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath: R. v. G. (M.)… (1994), 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 354[,] leave to appeal to S.C.C. refused, [1994] S.C.C.A. No. 390. Inconsistencies may emerge in a witness' testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.

13 Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G. (M.) , at p. 354.

14 …[A] trial judge giving reasons for judgment is neither under the obligation to review and resolve every inconsistency in a witness' evidence, nor respond to every argument advanced by counsel: R. v . M. (R.E.) , 2008 SCC 51, [2008] 3 S.C.R. 3…, at para. 64. That said, a trial judge should address and explain how she or he has resolved major inconsistencies in the evidence of material witnesses: G. (M.) , at p. 356[;] R. v. Dinardo , 2008 SCC 24, [2008] 1 S.C.R. 788…, at para. 31.

15 …[P]rior consistent statements of a witness are not admissible for their truth: R. v. Stirling , 2008 SCC 10, [2008] 1 S.C.R. 272 …, at para. 7. Mere repetition of a story on a prior occasion does not make the in-court description of the events any more credible or reliable: R. v. Curto , [2008] O.J. No. 889 , 2008 ONCA 161 …, at paras. 32, 35; R. v. Ay , [1994] 93 C.C.C. (3d) 456 (C.A.) , …at p. 471 C.C.C. [some citations eliminated]

[147] While inconsistencies on minor matters or matters of detail are normal and are to be expected, a trial judge must be careful not to improperly discount “major inconsistencies” by labeling them as “peripheral”, and thus avoid the duty to address and weigh them: R. v. D.H ., 2016 ONCA 569, at paras. 37, 50, 69-71; R. v. Vuradin , 2013 SCC 38, at para. 17.

[148] It is not only witness credibility that must be assessed. The reliability of a witness’ evidence is a separate, but related issue. As noted by Watt, J.A. in R. v. C.(H.), 2009 ONCA 56, [2009] O.J. No. 214 (C.A.), credibility focuses on a witness’s veracity, while reliability has to do with the witness’s accuracy. Accuracy involves the ability to observe, recall and recount events that are in issue. So, at para. 41: “Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence.”

[149] It is necessary to bear in mind that people react to events differently. Courts must avoid resorting to stereotypical thinking about how people should or should not react to traumatic events. In particular, the authorities teach that courts must decide sexual assault cases “without resort to folk tales about how abuse victims are expected, by people who have never suffered abuse, to react to the trauma”: R. v. Shearing , 2002 SCC 58, at para. 121.

[150] Generally, where an adult testifies about events alleged to have occurred when they were a child, credibility should be assessed according to the criteria applicable to adult witnesses. However, the presence of inconsistencies, especially on peripheral matters such as time, location, sequence and calculation of the number of events and other things that do not lie at the center of memory, should be considered in the context of the age at the time the alleged events occurred. Regina v. W.(R.), at p. 134.

[151] The degree of scrutiny in assessing the credibility and reliability of crown evidence and defence evidence must remain balanced. Just as a court should avoid stereotypical thinking with respect to a complainant, the same applies to an accused. Regina v. Kiss, 2018 ONCA 184 at para. 82.

[152] A trial is not a credibility contest where the court simply chooses one version of evidence over another. The court must consider the whole of the evidence. The burden of proof remains squarely with the Crown at all times and any reasonable doubt, based on the whole of the evidence, must result in an acquittal. Regina v. Y.(C.L.), 2008 SCC 2 at para. 8.

ANALYSIS

The complainant’s evidence

[153] Having observed and listened to the evidence of the complainant, I found her to be a reliable and credible witness. She testified in a clear and articulate manner. Her evidence at trial was internally consistent and there were no material inconsistencies. She was cross-examined extensively and was not shaken in any material respect.

[154] When the complainant was taken to her evidence at the preliminary hearing, she agreed that her memory at that time was better than it was at trial. This is not surprising, given that the trial occurred almost six years after the complainant provided her statement to the police and four years after the preliminary inquiry The complainant provided her statement to the police when she was 16 years old. By the time she testified at trial, she was 21 years old. It was clear to me that the passage of time had dimmed some of her memories and the complainant agreed that certain memories had become “fuzzy”.

[155] Despite the impact of the passage of time, the complainant remained clear on the core aspects of her evidence. While her evidence related generally to repeated incidents that occurred when she was between the ages of 10 and 16, she was able to describe specific incidents at the accused’s home, at her home and in the accused’s car near a church/electric station. She was able to provide specific details with respect to some of the incidents, for example she could recall feeling the cold from the accused’s leather chair when she was asked to pose for naked photographs. She was able to describe the way the sheath of the accused’s penis would move when she touched his penis. She was able to describe the way she felt panicked when the accused put his fingers in her vagina and the panic she felt when a truck pulled up and interrupted the incident at the church/electric station.

[156] There were times during the complainant’s evidence where it appeared she felt the need to explain or justify why the incidents occurred. It was clear to me that she was attempting to explain how she now viewed the events with the eyes of an adult, as opposed to a child. At times the complainant became upset and emotional when it was suggested that the accused had acted only as a caring and loving friend. The complainant was able to articulately explain that with the passage of time, therapy and maturity, she now understood that the attention she craved and received from the accused was inappropriate and harmful to her.

[157] In my view, the Facebook messages corroborate aspects of the complainant’s evidence, particularly with respect to the nature of her relationship with the accused. They corroborate her evidence about the use of cannabis, the accused’s interest in some type of physical contact, that the accused wanted their relationship to be private, and that on occasion the accused would pick her up in his vehicle and they would spend time together alone. I have turned my mind to and have specifically not used the Facebook messages to infer that because the accused engaged in this type of conversation with a teenage girl, that he is more likely to have committed the offences he is charged with because he is a “bad person” or the “type of person” to engage in these offences. This type of reasoning is prohibited.

[158] The complainant’s evidence was not without issues. For example, she agreed that she lied to the police in the past about being assaulted at school. I accept the complainant’s evidence that at the time she was a young, teenage girl, with a very troubled home life, seeking attention. As such, while this incident has led me to approach her evidence with caution, I am satisfied that it does not impact her credibility such that I cannot accept her evidence at trial.

[159] There were other issues raised at trial about the complainant’s evidence that I have turned my mind to. These include the complainant’s evidence that while in high school she was heavily using drugs and that this drug use, along with her trauma, had impacted aspects of her memory. I accept the complainant’s evidence that while she is able to remember the traumatic incidents in her life, she struggles with remembering the day to day, more mundane aspects of her life.

[160] I have considered the complainant’s evidence that she initially told the police that the accused had threatened her into silence and only realized that she had confused the accused with someone else when she went back and reviewed her journals. I accept the complainant’s evidence that she made a mistake in this regard and corrected that mistake by going back to the police. I am satisfied that this mistake does not materially affect the reliability of her evidence about the incidents of sexual contact with the accused.

[161] Counsel for the accused submitted that there were other aspects of the complainant’s evidence that rendered it not credible or reliable. He points to the complainant’s use of the term “digital penetration” at the preliminary hearing and at trial. At the preliminary hearing the complainant testified that the accused touched her a lot in the vaginal area, but there was no digital penetration. At trial, the complainant described the accused’s touching as digital penetration. The complainant testified that the police first raised the use of this term when she described, at sixteen years old, that the accused would “finger her”. She testified that she thought digital penetration meant more than just touching and teasing her vagina, she now realizes that it even if the accused put his finger in her vagina for a second, that that would consist of digital penetration. I find that the complainant’s inconsistent use of the term digital penetration does not significantly impact her credibility. She has always described that the accused touched her vagina. Whether it is called fingering, touching, massaging or digital penetration, the act she describes has remained the same. I find no inconsistency in her evidence in this regard.

[162] Counsel for the accused submitted that the complainant’s evidence was not reliable because she told the police and a high school principal that the accused lived on Cassells Street. At trial, the complainant testified that the accused lived on either Cassells Street or Fisher Street and explained that she was not very good on street names. I do not find this to be significant to the complainant’s credibility or reliability. Firstly, there is no issue that the complainant attended the accused’s home on several occasions. Secondly, the complainant has always consistently described the location of the accused’s home as being adjacent to Pellerin Paints, and across from a gas station/convenience store. The evidence of Staff Sgt. Long was that the accused’s home is, in fact, on Fisher Street, adjacent to Pellerin Paints and across from a gas station/convenience store.

[163] Counsel for the accused submitted that I should have concerns about the reliability of the complainant’s evidence because of her mental health, including a diagnosis of dissociative identity disorder and the fact that she testified that she had spent time in a psychiatric hospital when she was a teenager. In my view, I must be cautious about drawing conclusions about the impact of a medical mental health diagnosis on a complainant’s reliability in the absence of evidence that would demonstrate what impact that diagnosis could have on a complainant’s evidence. As stated in Regina v. O’Connor, [1995] S.C.J. No. 98 at para. 143:

Similarly, the mere fact that a witness has a medical or psychiatric record cannot be taken as indicative of the potential unreliability of his or her testimony. Any suggestion that a particular treatment, therapy, illness, or disability implies unreliability must be informed by cogent evidence, rather than stereotype, myth or prejudice. For these reasons, it would also be inappropriate for judicial notice to be taken of the fact that unreliability may be inferred from any particular course of treatment. See R v. K.(V). (1991), 4 C.R. (4 th ) 338 (B.C.C.A.) at pp. 350-51.

[164] Counsel for the accused submits that the complainant’s evidence should not be accepted because on the totality of the evidence the complainant had hygiene issues which would make it unlikely that the accused would want to spend time with her. In my view this is contradicted by the accused’s own evidence that he picked the complainant up on two occasions and spent time with her, alone in his vehicle. Further, it was admitted at trial that the accused would spend time with the complainant in his living room playing Call of Duty.

[165] Counsel for the accused submits that the complainant’s evidence was seriously undermined by the fact that the police did not find the photos she described, including full nudity photos taken in the accused’s home and the photo of her chest taken at her mother’s home on Second Street. Firstly, the cell phones were seized from the accused in October, 2017. This would have been years after the photos the complainant described. Secondly, both cell phones had deleted image files that the police were unable to retrieve. In my view, the fact that the police did not find photos of the complainant on the accused’s cell phones in 2017, does not undermine her evidence at trial.

[166] Counsel for the accused submits that the complainant’s evidence should be rejected because it was highly unlikely that any of the incidents could have occurred at the accused’s home without the accused’s wife becoming aware of them due to the paper-thin walls and the position of the master bedroom. On the totality of the evidence, I find that I am able to rely on the complainant’s evidence as to incidents at the accused’s home. Firstly, the complainant testified that for some incidents she did not believe the accused’s wife was at home. Secondly, the evidence was that the accused’s wife would try to avoid being in the room with the complainant because she found her to be overwhelming. Thirdly, the evidence was that the complainant and the accused would play Call of Duty and that the complainant would often be loud when they would play. In my view, it would be reasonable for the accused’s wife to tune out or disregard the noise in the living room in those circumstances. Finally, as I will set out below, I do not believe the accused’s wife’s evidence that she specifically watched the complainant when she was at their home.

[167] Counsel for the accused submits that the complainant’s evidence about posing on a leather armchair at the accused’s home is inconsistent with the accused’s evidence that he never owned an armchair. The accused produced two photographs taken of his living room which showed a leather love seat in the living room, near the pocket door. The complainant testified that at the time she was very young and that everything in the room looked huge to her. She could recall the cold feeling of the leather against her exposed skin. Given the complainant’s age at the time and her perspective as a young child, I do not find this to be a material inconsistency. It could very well be that the chair was in fact a loveseat. In any event, I find that the complainant’s evidence on this point does not cause me great concern with respect to her credibility or reliability.

The evidence of the accused

[168] In assessing the accused’s evidence, I have remained mindful of his brain injury and his learning disability and turned my mind to any impact that these may have had on his testimony. Having observed the accused’s testimony, I found that the accused was able to understand the questions posed to him and was able to communicate his answers in a clear manner. At times he may have stumbled over the use of some words, but he was able to correct himself. His evidence was not rushed and he was permitted time to consider the questions posed and to provide his answers in a fulsome manner.

[169] Overall, I found that the accused’s evidence was unreliable and not credible. I found him to be dishonest on certain points and contradicted on others. There were times where I found his evidence to be overstated and contrived.

[170] During the accused’s evidence he attempted to portray himself as someone who could not easily use a cell phone or other electronic devices. For example, he testified that he didn’t really like to take photographs because he had difficulty using his hands; that his wife had to set up his cell phone so that he could review or download materials on the internet; and that did not know how to search for things on the internet. I found his evidence on this point to be an exaggerated and dishonest attempt to distance himself from the allegations that he took nude photographs of the complainant and that he possessed child pornography. His evidence is inconsistent with other credible evidence that demonstrated that the accused was able to navigate technology sufficiently to use Facebook messenger to communicate with the complainant for over a year, to text others using his cell phone, to play Call of Duty on his x-box, to use a cell phone to play a video game with his wife, and to access a website called “Whisper”.

[171] I reject the accused’s evidence that at the time of the allegations he was more of a friend to the complainant rather than an uncle or male authority figure. The evidence clearly establishes that the accused met the complainant when she was a young child and that he was an adult friend of her mother. The accused was someone that the complainant’s mother trusted when she needed a break from her daughter. The complainant referred to the accused as “uncle” in their conversations. Even the accused’s wife agreed that he was almost a father figure to the complainant.

[172] I find the accused’s evidence on this point was an attempt to distance himself from the complainant. The accused’s claim at trial that he did not know the complainant’s last name until shortly before the trial was incredible. Quite apart from knowing her for many, many years, her full name, including her last name, is clearly listed on the accused’s Facebook profile and she is listed as his “niece”.

[173] The accused testified and denied ever supplying or smoking cannabis (weed) with the complainant. I reject his evidence on this point. I find that his evidence on this issue was an attempt to distance himself from engaging in any inappropriate activity with the complainant. The accused’s evidence is directly contradicted in his Facebook conversations with the complainant, including an exchange at page 53, where the accused asks the complainant if she still gets high, and then says “Haha, bet you prefer getting high with me (smiley emoji)”. The accused’s explanation that he was just joking when he said this simply does not make sense and I reject it.

[174] I found the testimony of the accused and his wife with respect to the switching of their cell phones to be inconsistent and nonsensical. The accused testified that he used his wife’s cell phone to view male pornography because of his limited technical skills and because the sound was better on her phone. The accused’s wife testified that they switched phones in an attempt to prevent anyone from discovering that the accused was gay and viewed male pornography. She said they switched phones following an incident where the accused’s brother accessed the accused’s phone and saw nude photos of themselves. Either professed explanation does not explain why the accused’s wife would need to view or store pornography on the accused’s cell phone. On all of the evidence she had her own cell phone and laptop and could view her personal choice of pornography on her own devices. I find that their evidence was a contrived attempt to place responsibility for the child pornography located on the accused’s two cell phones, on the accused’s wife.

[175] I find that the accused’s evidence that his Facebook conversations with the complainant were simply those of a concerned friend who sometimes liked to joke around was not credible. I appreciate that many of the conversations were not reproduced in their entirety. I have cautioned myself about the impact that this may have on my ability to appreciate their significance in the absence of context. However, some conversations are sufficiently detailed that I am able to discern their meaning.

[176] For example, the requests by the accused to the complainant to tell him how she wants to kiss him occur repeatedly in one conversation (pages 1 to 4). The accused, after persisting in this line of questioning says “I probably let you. But keep that to ourselves”. The complainant responds “Of course. All our shit we say is private” to which the accused says “So how come you never tired (sic) it the passed (sic)? What else did you wanted to do. Just curious lol”. The complainant was able to place this conversation in time because she references having to back upstairs with “Stina”, a woman she would stay with when she lived Webbwood. The conversation is also time stamped in the middle “07/13/2016 5:46 p.m.” which is consistent with the time the complainant lived in Webbwood.

[177] At other points in the Facebook messages the accused is engaging in suggestive and/or flirtatious conversations with the complainant. For example, in one conversation the accused refers to getting turned on when he gets high and asks the complainant if she gets turned on (in the message the accused spells “on” as “now” but it is clear this is a misspelling). In another message the accused asks the complainant how long she has had a crush on him and asks the complainant what she would want to do to him. In another message the accused asks if he will get lucky when he sees the complainant next. In another conversation the accused says that the complainant could be his girlfriend but not to say anything.

[178] I do not accept the accused’s evidence that he was joking around when saying these things. The accused is persistent when asking the complainant whether she would touch or kiss him. I accept the complainant’s evidence that the use of “lol”, “he he” or smiling emoji’s are often used to cut the tension in what the accused is suggesting to the complainant in an effort to make the conversation appear light-hearted. In my view, the Facebook messages demonstrate elements of grooming behaviour on the part of the accused in an effort to encourage a physical relationship with the complainant.

The evidence of J. C.

[179] Having observed and listening carefully to the evidence of J. C., I found that she tended to overstate her evidence in a clear effort to protect her husband. Examples of this are as follows:

a. When asked about her husband’s knowledge of the password for “Keepsafe” she testified that she didn’t believe that he remembered it after she told him;

b. When asked about her husband smoking weed with the complainant, she initially testified that she was “positive” that her husband had not consumed marijuana with the complainant. When she was shown the Facebook messages, she initially testified that her husband was joking and then conceded that she had no knowledge of the two smoking marijuana;

c. When asked about her ability to hear someone on the long couch, outside the master bedroom, she testified that she “definitely” would have heard any movement, even a person shifting, on the couch;

d. She testified that her husband had no opportunity to be alone with the complainant in their house and that there had been an agreement with the complainant’s mother that she would personally supervise the complainant to ensure everyone was comfortable following allegations of sexual assault against the complainant’s step-father. When it was pointed out that her husband had been alone with the complainant in his vehicle on two occasions, she testified that she always knew where her husband was, where he was going, how long he would be away and that she told him to make it quick on these occasions;

e. When asked about the possibility that her husband went somewhere other than where he told her he was going, J.C. testified “it was technically possible”. When asked if there was an opportunity for the accused to be alone with the complainant when he was out of the house, she responded “Yes, on a macro level”; and

f. When asked if it was possible that her husband searched for terms indicative of child pornography like “littles” she testified that he could have but she did not believe he did. She then added that others used their phones and it could have been someone else.

[180] It was clear, having heard the evidence of J. C., that she was not fully aware of the extent of the relationship between the accused and the complainant.

[181] It was clear, having heard the evidence of J. C., that only two people had the password to the “Keepsafe” application. The accused and J. C.. It was also clear that J. C. wished to convey to the court that she was solely responsible for the contents of the “Keepsafe” application on her husband’s two phones.

[182] With respect to J. C.’s evidence about the “Keepsafe” application, I noted that she initially testified that she downloaded the app to store intimate pictures of herself and her husband. She wanted to ensure that if anyone accessed their phone, they would not come across these photos. This was following an incident where her brother-in-law used her husband’s phone and saw a nude picture of herself.

[183] J. C.’s evidence, following her specific request for protection against self-incrimination, was that she would look for images of petite women with small breasts and women without pubic hair on her husband’s cell phone. She testified that she would take a screen shot and save a copy of the image on “Keepsafe” because she didn’t like to leave explicit things out.

[184] I specifically reject J. C.’s evidence with respect to her use of the “Keepsafe” application. Her evidence is contradicted by the images found in the “Keepsafe” app. that were shown to me during the trial. Of the 58 images found on the LG G4 cell phone and the 21 images found on the LG Stylo Plus, that I observed, not one depicted an image of an adult female with small breasts and no pubic hair. All of the images clearly depicted children, male and female, clearly under the age of 18 years in either sexually explicit activity or posed in a manner where their sexual organs were displayed in a sexually suggestive manner.

[185] J. C. testified that she recognized the file called “Amateur-Babe-Red-Head-Small-Tits-Teen” and described it as an image showing a beautiful woman with red hair. I have viewed this image. It does not depict a “woman’ with red hair. It depicts a female child, with red hair, clearly under the age of 18, with very little sexual development, standing in a field.

[186] Finally, as I have indicated earlier, I do not accept the evidence that J. C. would use the accused’s two cell phones to view and securely store pornography. She had her own cell phone and laptop. One would expect that if she wished to view and store pornography, she would do so on her own devices. There was no expressed concern or need for her to be cautious about the use of her own cell phone and devices.

Images found on the LG G4 and LG Stylo Plus Cell Phones

[187] Having viewed the images, it is important to describe some of them. They were not images of a young woman with small breasts and shaved pubic hair. They were clearly images of children. For example:

(1) Image 2 depicted an image of two female children with no indication of sexual development;

(2) Image 5 – was an image of a male child with no indication of sexual development;

(3) Image 6 – depicted two children, one of which was a male child involved in vaginal intercourse with an adult woman;

(4) Image 10 -depicted a muscular adult male having intercourse with a small female child;

(5) Image 20- depicted a little girl holding an erect male penis.

(6) Image 25- depicted an image of a young boy inserting his penis into a naked adult female;

(7) Image 28- depicted a small girl with her top lifted up and her underwear pulled in exposing her vaginal area. I would estimate the child is about 5 or 6 years old;

(8) Image 34 – depicted a very young girl, clearly under the age of 10. She is placed in a position where her legs are splayed apart, and the focus is on her vaginal area;

(9) Image 36 – depicted a small female child with an adult penis placed in her mouth;

(10) Image 39- depicted an adult female assisting a young female child with holding an adult male penis. The young child is about to place the adult male penis in her mouth;

(11) Image 46- depicted a young child, under the age of 10, with her buttocks exposed to the camera in an unnatural pose; and

(12) Image 49- depicted a very small child, about to place an adult male penis in her mouth.

[188] A smaller number of images of child pornography were extracted from the LG Stylo. Eighteen (18) distinct images were extracted from this phone, that were viewed and identified as child pornography by Sgt. Buchanan, were shown to the court. Having reviewed all of those images, I am satisfied beyond a reasonable doubt that all of them fall within the Criminal Code definition of child pornography. All of the images depicted a child who was clearly under the age of 18 either engaged in explicit sexual activity or the dominant characteristic of the image was the person’s sexual organs, for a sexual purpose.

[189] The images shown to me were clearly images of female children and were not images of adult women with small breasts and shaved pubic hair. Some of the images were the same as those found on the LG G4 cell phone. All eighteen images depicted female children with a primary focus on their chest area. The female children in the images had little, if any, breasts or pubic development. The images shown to me do not accord with and indeed contradict the evidence of J.C..

Do I accept the evidence of the accused

[190] I do not accept the evidence of the accused. For the reasons expressed above, I reject his evidence with respect to the nature of his relationship with the complainant and his interactions with her. I also reject his evidence with respect to his professed ignorance of the contents of his cell phones and the “Keepsafe” application.

Am I left in a reasonable doubt by the evidence of the accused

[191] I am not left with reasonable doubt by the evidence of the accused. Having rejected his evidence, and having considered his evidence as against the totality of evidence that I do accept, it does not leave me with a reasonable doubt.

Am I convinced, based on the evidence that I accept, of the accused’s guilt beyond a reasonable doubt?

[192] Having rejected the evidence of the accused and having concluded that his evidence does not leave me with a reasonable doubt, I must go on to assess whether I am satisfied of the accused’s guilt, beyond a reasonable doubt, in relation to each count on the indictment.

[193] I have instructed myself that I must consider each charge separately and not use evidence relating to one count as evidence on any of the other counts. I have also instructed myself that I must also not rely on other counts or evidence of uncharged misconduct as proof that the accused is the sort of person who could commit the offence charged. R v. M.(B.), 1998, 42 O.R. (3d) 1 (Ont.C.A.); R v. Dawson, 2016 ONCA 883 at paras. 22-24.

Count 1: Sexual interference

[194] In order to establish the offence of sexual interference, the Crown must prove beyond a reasonable doubt that (i) the complainant was under 16 years of age at the time of the incident or incidents in question; (ii) that the accused touched the complainant with a part of his body; and (iii) the touching was for a sexual purpose. The indictment alleges that the accused committed this offence between June 10, 2011 and June 9, 2013. This would have been when the complainant was between the ages of 10 and 12 years.

[195] I reject the accused’s evidence that he did not touch the complainant for a sexual purpose. Further, his evidence does not leave me with me a reasonable doubt as to whether he touched the complainant for a sexual purpose when she was under the age of 16.

[196] I reject the evidence of the accused’s spouse that there was no opportunity for this offence to have occurred in the home undetected and her evidence does not leave me with a reasonable doubt with respect to this count on the indictment.

[197] I found the complainant’s evidence to be clear, detailed, credible and compelling with respect to this charge. On all of the evidence in this case, I am satisfied, beyond a reasonable doubt, that the accused touched the complainant, for a sexual purpose, when she was under the age of 16. Specifically, I accept the complainant’s evidence with respect to the incident where the accused touched her hip, thigh, buttocks and under her pants near her groin/vagina when she was between the ages of 10 and 13, at his home. I also accept the complainant’s evidence that at around the same time period the accused would touch her body for a sexual purpose while taking photographs of her.

[198] The complainant places this incident as occurring between the ages of 10 and 13. She was able to place the incidents at the accused’s home as occurring before she entered grade 7 in North Bay, when she was 13 years old.

[199] On all of the evidence in this case, I am satisfied beyond a reasonable doubt as to the accused’s guilt and I find the accused guilty of count 1 on the indictment.

Count 2: Invitation to Sexual Touching

[200] In order to establish the offence of invitation to sexual touching, the Crown must prove beyond a reasonable doubt that (i) the complainant was under 16 years of age at the time of the incident or incidents in question; (ii) the accused invited the complainant to touch a part of his body with a part of her body; and (iii) that the invitation to touch was for a sexual purpose. The indictment alleges that the accused committed this offence between June 10, 2015 and June 9, 2016. The indictment, as drafted, narrows this offence to the time the complainant was 14 years old.

[201] Although I have rejected the evidence of the accused and his evidence does not leave me with a reasonable doubt, I must go on and consider whether I am satisfied of his guilt, based on the totality of evidence, beyond a reasonable doubt.

[202] The complainant testified that the accused invited her to touch his penis on more than one occasion. She was able to describe with some specificity the physical act of touching the accused’s penis, including moving it in and out of its sheath and that the accused’s penis would get hard and move. The complainant testified that the details surrounding the time, place and circumstances of the touching were “fuzzy” given the passage of time. She testified that it could have happened at the accused’s home on his couch and in the accused’s car, but her memories were unclear.

[203] While I find it is likely that the accused invited the complainant to touch him, and likely that the complainant did in fact touch the accused’s penis, I am not satisfied, beyond a reasonable doubt, as to the accused’s guilt with respect to this offence. The complainant’s evidence with respect to where, when and how these incidents occurred was not sufficiently detailed such that it could ground a criminal conviction, which requires proof beyond a reasonable doubt.

[204] As such, I find the accused not guilty of count 2 on the indictment.

Count 3: Luring

[205] In order to establish the offence of luring, the Crown must prove beyond a reasonable doubt that (i) there was an intentional communication by means of telecommunication with the complainant (ii) that the accused believed the complainant was under the age of 16; and (iii) the communication was for the purpose of facilitating the commission of the offence of sexual interference with respect to the complainant. The indictment alleges that the accused committed this offence between June 10, 2015 and June 9, 2016. Regina v. Allen , 2020 ONCA 664 at para. 21-22; Regina v. Drury, 2020 ONCA 502 at paras. 49-60.

[206] In this case, I was provided with Facebook messages that took place between July, 2016 and October 9, 2017. During this period the complainant would have been 15-16 years old. The complainant turned 16 years old on June 10, 2017.

[207] On the totality of the evidence, I find that it is highly probable that the accused was aware of the complainant’s age, given he had known her for many years. Indeed, in the Facebook messages the complainant confirms at one point that she is in grade 10.

[208] With respect to the telecommunications that would fall within the offence of luring, I can only consider Facebook messages/communications that would have taken place before the complainant turned 16. These would only include messages that occurred before June 10, 2017.

[209] Within that time frame, there is only one Facebook conversation where the accused and the complainant discuss plans that involve the accused picking the complainant up at her grandparent’s residence. That conversation is date stamped August 1, 2016.

[210] The complainant initially testified that she thought that this conversation preceded the incident near the church/power station. However, the complainant later testified that she was not sure about that when she reviewed similar communications on August 16, 2017. The complainant testified that the 2016 messages may have preceded an incident where she and the accused went to Champlain Park and no sexual contact occurred, only flirting.

[211] For reasons I will explain below, I am satisfied beyond a reasonable doubt that the church/power station incident occurred on August 16, 2017 when the complainant was 16 years old.

[212] This leaves me with a reasonable doubt with respect to the communication in August, 2016, and whether the plans made between the complainant and the accused to meet were for the purpose of facilitating the offence of sexual interference or were for a meeting of a non-sexual purpose.

[213] As such, I find the accused not guilty of count 3 on the indictment.

Count 4: Sexual Assault

[214] In order to establish the offence of sexual assault, in the circumstances of this case, the Crown must prove beyond a reasonable doubt that the accused intentionally touched the complainant in circumstances of a sexual nature; (ii) that the complainant did not consent; and (iii) that the accused knew she was not consenting or was reckless or wilfully blind in relation to whether she was consenting. The indictment alleges that the accused committed this offence on August 16, 2017.

[215] The complainant testified that the church/power station incident occurred when she returned to live with her grandparents shortly after she turned sixteen years old. This would have been in the summer of 2017. She testified that she did not return to Espanola High School that fall and she spoke to the police about the incidents involving the accused in October, 2017.

[216] The complainant became confused about the date of the church/power station incident later in her evidence when she was shown two sets of Facebook messages, one from 2016 and one from 2017, both of which involved a discussion about the accused picking her up at her grandparent’s home. Despite this confusion, I am satisfied, beyond a reasonable doubt, that this incident occurred on August 16, 2017. The complainant was able to place this incident in time using other significant milestones in her life, including the fact that she had turned 16 and did not return to Espanola after this incident.

[217] The complainant described the accused touching her vagina and putting his fingers inside of her, while her pants and underwear were down around her ankles. She recalled that the accused made a comment that she was not lubricating as much as he wanted. The incident was significant in her mind because they were interrupted when a truck pulled into the parking lot, which brought the sexual touching to an abrupt and sudden halt.

[218] At trial, counsel for the accused advised that if the court found, beyond a reasonable doubt that this incident occurred, it was admitted that the complainant did not consent. The complainant testified that she did not want this touching, and subjectively did not consent. While she testified that she went along with it to please the accused, I find that her lack of resistance was the result of the accused’s ongoing emotional manipulation of the complainant within his position of authority, as a father-figure to her. The accused did not testify that he thought the complainant was consenting.

[219] I reject the accused’s evidence that he never attended at the church/power station with the complainant and I reject his evidence that he did not touch her in a sexual manner at that location. Further, his evidence does not leave me with a reasonable doubt with respect to this incident.

[220] I found the complainant’s evidence to be clear, detailed, credible and compelling with respect to this charge and I accept it. There were specific reasons why she remembered this incident and it stood out in her mind. On all of the evidence in this case, I am satisfied beyond a reasonable doubt that the Crown has proven all of the essential elements of the offence of sexual assault.

[221] On all of the evidence in this case, I am satisfied beyond a reasonable doubt as to the accused’s guilt and I find the accused guilty of count 4 on the indictment.

Count 5: Making child pornography

[222] In order to establish the offence of making child pornography, the Crown must prove beyond a reasonable doubt that the accused made child pornography. In the circumstances of this case, it would require the Crown to prove that the accused took photos of the complainant with his cell phone and that those images would meet the definition of child pornography. The indictment places this offence as occurring between June 10, 2011 and August 10, 2017. During this time, the complainant was under the age of 18.

[223] The complainant testified that the accused took photographs of her, completely nude, in his home. She described that the accused would place her into specific poses and would then take pictures with his cell phone. When the photo sessions would end, she would quickly put her clothes back on. She later saw photographs of herself from these sessions on the accused’s cell phone. Based on the complainant’s evidence, these photographs would have been taken sometime before she turned 13 on June 10, 2014.

[224] The complainant also testified that the accused took a photograph of her chest when she was living with her mother on Second Street in North Bay. This would have been before the complainant moved to Espanola when she was 13-14 years old, which would place the photos being taken before June 10, 2015. The complainant testified that she saw this photograph of her chest on the accused’s cell phone and recognized herself because of her small breasts and the fact that they were lopsided.

[225] I have considered the fact that no photographs or images of the complainant were found on the accused’s cell phones which were seized in October, 2017. By the time the accused’s cell phones were seized, over two years would have elapsed. Given the significant passage of time, the absence of these photographs on the accused’s phone does not leave me with a reasonable doubt as to whether the photos were taken and were once on a cell phone owned by the accused.

[226] Child pornography is defined in s.163.1(1) of the Criminal Code as follows:

163.1 In this section, child pornography means

(a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,

(i) that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity; or

(ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years.

[227] The photos, as described by the complainant would fall within this definition.

[228] I reject the accused’s evidence that he never took photographs of the complainant. Further, his evidence does not leave me with a reasonable doubt.

[229] On all of the evidence in this case, I am satisfied beyond reasonable doubt that the accused took nude photographs of the complainant when she was between the ages of 10 and 14. I found the complainant’s evidence to be credible, detailed and specific with respect to the incident in the accused’s living room and the incident behind her mother’s house on Second Street. I accept her evidence that she later saw the photos of herself on the accused’s cell phone in his phone gallery. I am not left in doubt by the fact that the photos were no longer on the accused’s phone years later.

[230] I have considered the complainant’s evidence with respect to the content of the photographs taken of her, and I am satisfied that they meet the definition of child pornography as set out in s.163.1(a)(ii). During the incident in the accused’s living room, the complainant was completely nude and placed into specific poses while the accused would touch her. During the incident behind the complainant’s home, the dominant characteristic of the photograph would have been the complainant’s chest. I am satisfied beyond a reasonable doubt that the photographs were taken for a sexual purpose.

[231] On all of the evidence in this case, I am satisfied beyond a reasonable doubt as to the accused’s guilt and I find the accused guilty of count 5 on the indictment.

Count 6: Possession of child pornography

[232] In order to establish the offence of possessing child pornography, the Crown must prove beyond a reasonable doubt that the accused knew the nature of the images in question, he had the intention to possess them, and had the necessary control over them. Regina v. Villaroman , 2016 SCC 33 at para. 10.

[233] In this case, the Crown must prove beyond a reasonable doubt that the accused was aware that he had physical custody of the images and was aware of what the contents of those images were. It is irrelevant if the accused knew that the contents constituted child pornography. Regina v. Chalk , 2007 ONCA 815 at para. 18; Regina v. Farmer , 2014 ONCA 823 at para. 26.

[234] In addition, the Crown must also prove that the accused had a measure of control over the images in issue. Control refers to power or authority over the item whether exercised or not. This requires the Crown to prove beyond a reasonable doubt that the accused stored and retained the images on his cell phones. Regina v. Chalk , at para. 20, Regina v. Morelli , 2010 SCC 8 at para. 65-66.

[235] The Crown is not required to prove that an accused viewed the child pornography material in order to obtain a conviction. In Regina v. Daniels (2004), 2004 NLCA 73, 191 C.C.C. (3d) 393 (N.L.C.A) at para. 12, Welch J.A. explained the concept of control in these terms:

To be in possession of child pornography, it is not necessary for the individual to have viewed the material. For example, a person may obtain pornographic material in an envelope, but without viewing it, either place it in a drawer or dispose of it in the garbage. It is the element of control, including deciding what will be done with the material, that is essential to possession.

[236] I have reviewed the images found on the accused’s two cell phones and “Keepsafe” application and am satisfied beyond a reasonable doubt that all of the images shown to me meet the Criminal Code definition of child pornography. I have described some of them earlier. All of the images are of children. Some pictures are of real children and some are anime depictions of children. All either depict children engaged in explicit sexual acts or display the child’s sexual organs in a manner where their dominant feature is for a sexual purpose.

[237] The fact that these images met the definition of child pornography was not seriously in dispute at trial. At trial the key issue was whether the accused knowingly possessed these images.

[238] In this case, the evidence regarding the offence of possession of child pornography was entirely circumstantial.

[239] When the Crown's case is based wholly or substantially on circumstantial evidence, a finding of guilt may only be reached where the trier of fact is satisfied beyond a reasonable doubt that guilt is the only reasonable inference to be drawn from the evidence as a whole. R. v. Villaroman , at para. 20.

[240] It is important to keep in mind that circumstantial evidence is not to be assessed on a piecemeal basis. It is the evidence, assessed as a whole, that must meet the reasonable doubt standard. R. v. Lights , 2020 ONCA 128 , at para. 37; R. v. Johnson, 2023 ONCA 120 at para. 7.

[241] When assessing whether guilt is the only reasonable inference to be drawn from the circumstantial evidence in the case, the trier of fact must consider other plausible theories and reasonable possibilities inconsistent with guilt so long as they are grounded in logic and experience as opposed to fevered imaginings or speculation. That said, inferences consistent with innocence need not arise from proven facts. Rather, they may arise from a lack of evidence. Regina v. Villaroman , at para. 35.

[242] While Crown counsel must negate reasonable possibilities inconsistent with guilt, he/she need not negate every possible conjecture, no matter how irrational or fanciful, which might be consistent with an accused's innocence. Regina v. Lights , at para. 38.

[243] I find that I am satisfied beyond a reasonable doubt that the only reasonable, and non-speculative, inference to be drawn from the evidence as a whole in this trial is that the accused knowingly possessed child pornography on his two cell phones.

[244] It was admitted at trial that the LG G4 and LG Stylo Plus cell phones belonged to the accused and that he used them. The LG G4 was registered in the accused’s name in May, 2017. A screenshot taken of the cell phone activity on both phones was consistent with the accused using them.

[245] The “Keepsafe” application was installed on both of the accused’s cell phones and images of child pornography were found on both of the accused’s cell phones.

[246] On the totality of the evidence, there were only two individuals who possessed the password to the “Keepsafe” application, the accused and his wife.

[247] I do not accept, and specifically reject the evidence of the accused and his wife that they swapped cell phones. Their explanation for why they did this was inconsistent with each other. I find the accused’s wife’s evidence that she would store her personal pornography on the accused’s two phones, as opposed to her own phone, to be incredible.

[248] The accused’s wife, with full protection afforded by the Canada Evidence Act and the Charter, testified that she saved pornographic images of adults (individuals over the age of 18) within the “Keepsafe” application on the accused’s cell phone. In my view, she did so in an attempt to protect her husband. The difficulty with her evidence, was that it was clear to me that she had no knowledge of the actual child pornography images contained within the “Keepsafe” application and on the accused’s cell phones.

[249] I reject the accused’s evidence that he had no knowledge and did not possess the images of child pornography found on his cell phones. Further, his evidence does not leave me with a reasonable doubt with respect to his knowledge and control of child pornography found on his cell phones.

[250] I reject the accused’s evidence that he did not possess the technical ability to download images to his phones. The accused was experienced in the use of cell phones, the use of internet based messaging systems including Facebook and Whisper, and the use of electronic gaming devices to play video games such as Call of Duty. In the Facebook conversations with the complainant, the accused bragged that he received pictures of “boobs” through Whisper and the two discussed the complainant sending him pictures.

[251] I reject the accused’s wife’s evidence that she may have placed the child pornography images on the accused’s cell phones and in the “Keepsafe” app. without his knowledge. Further, her evidence does not leave me with a reasonable doubt as to the accused’s guilt in relation to this charge.

[252] Having considered all of the evidence in this case, I conclude that the only reasonable and non-speculative inference to be drawn is that the accused knowingly stored images of child pornography on his two cell phones and within the “Keepsafe” application. I am satisfied beyond a reasonable doubt that the accused knew the nature of the images in question, he had the intention to possess them, and had the necessary control over them and as such committed the offence of possession of child pornography.

[253] On all of the evidence in this case, I am satisfied beyond a reasonable doubt as to the accused’s guilt and I find the accused guilty of count 6 on the indictment.

CONCLUSION

[254] For these reasons, the accused is found not guilty on counts 2 and 3 on the indictment, the charges of invitation to sexual touching and luring.

[255] The accused is found guilty on counts 1, 4, 5 and 6 on the indictment, which are the charges of sexual interference, sexual assault, making child pornography and possession of child pornography.

Justice S.K. Stothart Released: April 28, 2023

COURT FILE NO.: CR-19-00000020-0000 DATE: 2023/04/28 ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING -and- R.C. PUBLICATION RESTRICTION NOTICE INFORMATION THAT COULD IDENTIFY THE COMPLAINANT IN THIS CASE CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO AN ORDER UNDER SECTION 486.4(1) OF THE CRIMINAL CODE OF CANADA, MADE BY JUSTICE S.K. STOTHART ON FEBRUARY 27, 2023

REASONS FOR JUDGMENT S.K. STOTHART, J. Released: April 28, 2023