Court File and Parties

COURT FILE NO.: CR-23-1333 DATE: 2024-06-07

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – Donovan McEwan Accused

COUNSEL: J. Mongeau, for the Crown D. Michel, for the Accused

HEARD at Sudbury: April 8, 11, 12, 2024; May 6, 2024

REASONS FOR JUDGMENT

A.D. Kurke, J.

Overview

[1] The accused is charged on an indictment with five offences: sexual assault, communicate with a person under 18 to facilitate an offence, obtain the sexual services of a person under 18, procuring, and possession of child pornography, allegedly all committed in Greater Sudbury in April and May 2022. A sixth charge, forcible confinement, was withdrawn by the Crown at the close of the Crown’s case. The matter came before this court by way of a direct indictment. Mr. McEwan re-elected to have the matter heard before a judge of this court sitting without a jury.

[2] At the commencement of trial the defence admitted the dates, place, and jurisdiction of the offences, and the identity of Mr. McEwan as the person referred to by the complainant FM as Donovan McEwan. Toxicology and DNA reports with respect to FM, banking records relating to FM and the accused, and a transcript of a plea of guilt on another charge relating to the accused were admitted. Complainant FM testified by CCTV on the Zoom platform and was supported during her testimony by a VWAP worker, Tiffany Pyoli York, on consent of the defence.

[3] The complainant frequently appeared distraught during her testimony. On one occasion, after a question had been asked, the complainant appeared particularly so. Crown counsel offered her belief that it was due to threats that the complainant had received in the period leading up to trial. Counsel for the accused requested a mistrial, but I declined to make such a drastic order, as unnecessary. I am instructing myself to ignore the highly prejudicial and unsupported conjecture that the accused had anything to do with any alleged threatening of FM, a proposition for which no evidence has been advanced.

[4] The narrative evidence at this trial disclosed that the accused was involved in the drug trade and was in a relationship of some kind with a female other than the complainant who was said to be 13- or 14-years old. The accused is not charged in this case with offences directly relating to those facts, and I have instructed myself to avoid the prejudicial reasoning that such facts might encourage and to decide this case on its merits. Accordingly, I use those facts only as I describe in what follows.

Facts

The complainant

[5] FM is now 18 years old. She is currently in a program to become a PSW, which will also allow her to graduate high school. She had never testified in court before and was obviously nervous and tense.

[6] FM testified that she started using drugs at age 14: “molly” and “coke”. She has used marijuana, “meth”, crack cocaine, and fentanyl. The last two were her “DOC”, or “drugs of choice”; these were drugs the accused gave her. In 2022 FM used drugs every day and all night and was very high every day. The drugs made her feel emotional, like a “wreck”, prone to outbursts and blackouts, and anxious all the time. She started treatment two years ago and stopped using drugs a year ago. She stated that she feels much better being sober.

[7] But the drugs have affected her memory, especially during periods when she suffered from blackouts. She “tends not to remember a lot of things from the past,” and can get confused when she is asked about things. It is apparent in her evidence that her knowledge of the timing and dating of things has been compromised to some degree and that various points of detail in her memory have been affected or lost.

[8] FM testified that she first met the accused (whom she spoke of as “Donovan”) when he was in the hospital for getting shot in the leg. She was brought there by her cousin AL and was sitting in the corner drinking Smirnoff vodka that she carried to the hospital with her. FM did not remember how she got the vodka but denied having fake identification by which she secured it. She had not used drugs that day. FM believed this to have been in July 2022, and she had been at Bell Park with people from a group home on an outing. She thinks that she met the accused after March 16, 2022. She remembered saying “hi” to the accused. It is readily apparent that the July 2022 date must be incorrect, considering that the accused was arrested by police in May 2022 after they spoke with FM.

[9] FM was close with AL, who was about 13 or 14 years old at the time, and in some kind of relationship with the accused. FM’s own boyfriend at the time was CC. FM denied the suggestions that CC was buying drugs from the accused, or that she met the accused through CC. FM insisted that it was AL who had supplied FM before she met the accused. It was AL who introduced FM to crack cocaine.

[10] FM did not communicate with the accused for a period of time after that initial meeting. However, a video of FM “went viral” in which FM was hit in the face by an ex-boyfriend, and the accused became aware of it. One day, FM was smoking crack with AL and another girl in a car, and was very high, when FM learned that the accused wanted to see her.

[11] FM went to the accused’s apartment, with AL and the other girl because there was “no way” that she was going to go there alone; she was worried because she thought that the accused was “a creep.” They went into the accused’s bedroom, where the accused was lying “in poor condition,” still healing from his leg problem. He may have had an ankle monitoring bracelet. FM remembered the accused saying that he was going to cut it off one day and “fuck off”. The accused offered FM an iPhone7; FM declined because she was worried that the phone might be tapped. However, she did stay there with AL and smoked crack that was provided by the accused. The accused told FM that he wanted to help her out and be her friend. They exchanged phone numbers, which was the accused’s idea.

[12] From there FM saw the accused again in person, and contacted him over FaceTime, and by text. They started communicating because the accused was giving FM “dope”, which she wanted all the time, and money. While she was an addict before she met the accused, FM testified that she had not been “so much of an addict” until then. She candidly stated, “I went over there and got drugs. I wanted him for drugs and money.” They got to the point of messaging each other daily, and communicated over FaceTime every day, and “sometimes all day”. FM met the accused in person every day at his home until she became scared to “go there.” The accused wanted her to come to his home, as he had an ankle monitoring bracelet and was not allowed to leave his home.

[13] The accused also gave FM money almost every day, in person or by e-transfer, until he went to jail. She asked the accused for money and sometimes he sent her money before she had even woken up, without her even asking. This began about a week after they started talking. But mostly the accused gave her “dope”, that is, crack cocaine and fentanyl.

[14] The complainant testified that her relationship with the accused lasted no more than two months, but she saw him daily. The accused was arrested May 26, 2022, but FM believes that she met the accused in the summertime at the hospital. The complainant did not know during which months her relationship with the accused took place. During this period of time she was living in an apartment with her brother, but she went every day to the accused’s home to get high on crack cocaine. She did not spend any nights with the accused, although she was at his home at night. She was concerned about what the accused would do to her if she passed out in his presence. He had many people visiting or staying with him. “Everybody was doing drugs there.”

[15] Their texting conversations evolved to “sex stuff” when it got to the point of FM owing the accused for the drugs and money that he had given her. FM told the police that she asked for money every day, but downplayed that in her testimony, saying that she was not the kind of person to ask so often for money. When taken to her statement to police, FM then acknowledged that she had asked for money very frequently. The accused also gave FM crack and fentanyl every day. He was her “source”.

[16] Eventually, the accused wanted things in return. At some point, he made her understand that he would not give her drugs until “he got what he wanted from [her].” He may have said so also in texts, but FM did not “really remember” that. He told her that he wanted pictures and “to do stuff in person” in return, that is, sexual acts. FM testified that she always said “no” to such things. But FM commented that at the time that she was 16, “I was a kid; I had nothing to give.” And he wanted to perform sexual acts on her. The accused ended up “eating her out”, which I understand to mean cunnilingus, and touching her in her “private part,” that is, her vagina.

[17] The accused had said that he wanted sex in return, but FM refused to perform sexual acts on him. FM described sitting by the accused’s bed doing crack cocaine. The accused ejected other visitors from his bedroom, grabbed FM and pulled her forward and said that he wanted to eat her out. The accused ended up using his mouth and tongue on her vagina, and he put two fingers in her vagina. She let him do these things to her “for a minute”, and then she pulled away and told him to stop, which he did. She looked away when he took out his “stuff” and tried to show her it in person or on his phone, because she did not want to see it. While the accused did these things to her FM was high on crack that the accused had given her.

[18] One time the accused pulled her from her seat onto his legs and tried kissing her, but FM moved her head aside to prevent it. While this went on, the accused was rubbing FM’s vagina with his fingers under her clothing, until she pulled off of him. The accused then gave her some “dope.”

[19] As to consent, FM testified that she had felt anxious and did “not really” want to do these things, but she was scared about what the accused might do. She did not want to “do it” with an “old man,” but she did not feel that she had a choice. She froze when he said that he wanted to eat her out. She was very anxious and responded “ok”, “yeah”, “sure,” to his requests, even though she did not want the accused to do things to her. She described pulling away after a minute and that he stopped. FM then always asked for crack, which the accused gave her only once he had finished doing what he wanted.

[20] In cross-examination, it was put to the complainant that she did not tell police about the accused using his mouth or tongue on her vagina. The complainant was confident that she had done so, but “maybe off camera.” She testified that she spoke about this and other details to Cst. Lieverse, who she had known for a long time, in non-recorded conversations that they regularly had concerning issues surrounding the case. She felt uncomfortable formally telling the police about the accused using his mouth on her vagina. Cst. Lieverse was not called as a witness by either party to testify about this issue.

[21] FM did not describe further incidents in her evidence, but testified that “towards the end”, when the accused was “about to go to jail”, he told her that he was “going to sell her pretty little pussy soon.” In this way, FM would get more money. FM did not want to do that, though she told him “ok”. The accused’s “baby-momma” Chantal told FM that “this was going to be the life she was going to be living.” The accused had such conversations with FM “a couple of times.” Most of FM’s conversations about this were with Chantal. FM testified that she was not going to sell herself and do sexual things with other people for money. FM testified that she stopped seeing the accused in person for two weeks to avoid this happening, though she did not tell the police that. She did not want to become one of those girls who had to use their bodies for that.

[22] According to FM, the accused also spoke of taking FM to Jamaica and starting a new life there and having a baby with her. Again, FM told the accused “yeah,” and “sure,” because she was scared, but she did not want to go to Jamaica.

[23] The accused also wanted pictures from FM, of her vagina and “boobs and stuff”. FM posed for the accused on FaceTime. FM identified the photograph on page 5 of Exhibit 1 as a photo of her in her boxer shorts and hoodie, and the accused in an inset image in the right upper corner of that photo; the image was captured on FaceTime. The accused asked her to do this, and FM did it because she felt that she “owed” him and had nothing else to give him. There is a similar posed image on page 7 of that Exhibit.

[24] According to FM, the photo on page 8 of Exhibit 1 is of FM’s vagina. The computer record attaching to the image establishes that the image was created at 5:53:23 p.m. on May 22, 2022. FM stated that she took the picture and sent it to the accused because he wanted a picture of her vagina. Challenged in cross-examination to explain how it could be proved that the image was of her vagina, FM explained that she knew her own body, but also pointed to the bed she was on and the presence of the same boxer shorts and hoodie as in the other pictures. Exhibit 1 was sealed when it was entered into evidence, given that it might contain child pornography.

[25] FM was scared that the accused was going to sell her. He was an older man of 54 and she was 16 years old. FM and the accused had discussed their ages when they met. FM had told the accused that she was 16 and explained her background to him. The accused told her that he did not care about her age. This was before anything sexual started. FM did not tell police about this conversation with the accused, but as with respect to other things, the complainant explained that she was an addict and a child, and the police had never asked her about some things.

[26] FM and the accused conversed in text conversations, some of which have been allegedly compiled into Exhibit 2. The bulk of the messages in that exhibit come from the week prior to FM speaking to police for the first time in their investigation into this case. The second tab in the exhibit reconstructs the messages in chronological order. The complainant offered in evidence at first a different telephone number for herself than that on the exhibit but agreed that her telephone number was in fact the one indicated in the downloaded messages. She could not now state what the accused’s telephone number was, though she was apparently able to tell it to police. In what follows, I will discuss the apparent flow of the text conversations as set out in the Exhibit, coupled with FM’s testimony about them. I will refer to FM’s interlocutor as “the accused”, though this is subject to determination below.

[27] In these messages, the accused regularly refers to FM as “my love” and asks for FM to express her love of him, and she does. He offers her a new phone, an iPhone XR. That was the second phone that he had offered her. FM repeatedly requests drugs or money from the accused and asks for the accused’s driver, Mike, to bring her “dope”. The accused requests kisses and other sexual gratification from FM. Exhibit 2 is powerful evidence of a child addict who will say anything for drugs and money and do many sexual things with her drug dealer on whom she is clearly dependant. It is also compelling evidence of that willingness being exploited by FM’s interlocutor.

[28] In his messages, the accused asked the complainant for long intense “French kisses.” FM testified that she was scared. She explained in her evidence that she was reluctant to say no because “he was my resource to drugs and money.” FM refers to the accused as “Babe” or “Baby”, and there are many references to FM waiting for the accused’s driver, “Mike”, to drop off “dope” or “stuff” to her home. FM complains, “How long till he’s here?” FM explained in her evidence that she did not want to go to the accused’s home because he always wanted sexual acts that she did not want to do. She made frequent requests for Mike to bring her drugs.

[29] In one message the accused asks FM to send him “a picture of the pussy my love.” He tells FM that he is thinking about her; “after we have sex I’m going to give you a new phone”. Unidentified “images” from FM follow, to which the accused responds “that’s my baby” and “now tell me you love me.” FM answers: “I love you”. FM sent images to the accused before Mike brought FM the “stuff.” FM testified that she felt that she had no choice but to respond as the accused wanted. FM wrote texts thanking the accused for the drugs that Mike brought to her from him.

[30] On May 22, 2022, FM appears to have wanted money and drugs, badly. In Exhibit 2 she makes repeated requests for money from the accused for various reasons. The accused does not respond quickly, and FM sends unidentified image after unidentified image. Thus, in one text, FM asks the accused for money for pizza bread and juice. FM follows up her request with an “image”. In apparent response, the accused states that “this pussy better be made of sunshine babes”, and FM follows with, “Oh baby it is”. The accused asks, “Can I fuck it anytime I want”? FM replies “Yea”.

[31] At 5:15:57 p.m. on May 22, FM asks the accused: “Okay can mike bring me stuff and money”. The accused responds, “You don’t need stuff. I need your love and pussy. You just need my money and my love. Lol.” At 5:17:48, FM sends back, “I’ll give you my pussy”. At 5:53:36 p.m. on May 22, 2022, the accused writes to FM: “Why are you ignoring me!!!” FM responds one second later by sending the accused an unidentified image. At 6:17 p.m., the accused comments, “You love showing me your pussy, don’t you?” FM responds, “Yea I do…Baby”, and then “can Mike come see me”? It can hardly be coincidental in this context that Exhibit 1 shows that a picture had been taken of a vagina at 5:53:23 p.m. and Exhibit 2 indicates that an image was sent by FM to the accused 14 seconds later.

[32] The accused asks FM if she likes “to fuck”; “do you like when your man talks dirty to you?”; “hair pulled”; “choking?” The accused directs FM to tell him what she likes, and to “be inventive”. He asks FM, “Are you really afraid of cock?” to which FM responds, “yea”. The accused offers up, “And I’m too big for that. You couldn’t take it” and “You’re really small. And tight. You could hardly take my fingers. And you could only take one babes”. The complainant responded that she could “take two max”. FM explained in her testimony that she spoke about sex acts with the accused because she was at the lowest point in her life, and wanted what the accused could provide her, drugs and money. And she was also scared of the outcome if she did not give what he wanted. The evening concludes with repeated requests from the complainant for visits from Mike with “some stuff”.

[33] FM testified that she spoke with police after they reached out to her. She was still addicted at that time and was scared in giving her statement that she “would be a rat and get in trouble for it.” She went to the police and gave a statement May 25, 2022. After giving the statement to police FM never saw the accused again, though she texted him “hey” on May 26, 2022. She gave the police a further statement on January 5, 2023, when she was not yet off drugs. FM also believes that she spoke with Cst. Lieverse about the case in other regular unrecorded conversations.

[34] The police sent FM to hospital for various tests. Her blood sample showed no cocaine, but the presence of an inactive breakdown product of cocaine, consistent with recreational cocaine use. There were also therapeutic amounts of a decongestant and a cough suppressant. FM’s urine sample was unconfirmed or inconclusive for drugs. An examination of FM for DNA found insufficient male DNA on swabs of her genitalia, breasts and underwear to warrant DNA analysis and comparison.

[35] Police took FM’s telephone. FM explained that she did not save the photo of her vagina on her own phone; she just took the picture and sent it to the accused. She was able to be certain that the picture in Exhibit 1 was the one she took of her vagina because she knows her own body, she has on the same underwear as in the photographs of her posing in underwear and hoodie with her face visible that are in the same Exhibit, and she recognized her blue car bed in the picture.

[36] FM was cross-examined that she did not tell the police that she had to perform sexual services in exchange for the drugs and the money. FM responded that she answered the police questions; she thought the text messages would tell the story. FM agreed that the accused never hit her, or threatened her, or told her to go “screw” someone, although she added that he did tell her that this was going to happen soon.

Other evidence

[37] Detective Gianfrancesco of the Greater Sudbury Police Service (“GSPS”) reached out to FM on May 25, 2022 and took her initial statement, and determined that charges would proceed. The Crown admitted that FM did not mention a conversation with the accused about her age or having cunnilingus performed on her by the accused either in her initial statement or in a further statement of January 5, 2023.

[38] FM gave police her telephone, but Det. Gianfrancesco did not know whether a report was prepared about it.

[39] A warrant to search the residence of the accused was prepared by Det. Gianfrancesco and granted on May 26, 2022. A search of the accused’s residence was undertaken that day. The police were mainly searching for electronic devices and paraphernalia. Det. Gianfrancesco took part in the search at the accused’s residence. He assisted with arrest procedures involving the accused. He searched various areas of the residence and seized, among other things, cellphones: five damaged ones from a drawer in the master bedroom, another in the bathroom vanity, and another behind a wastebasket in the hallway.

[40] During the search, a black Apple iPhone with no visible damage was seized, but not by Det. Gianfrancesco. He did not know where in the residence the black Apple iPhone had been located or by whom. The phone from which material was downloaded was a black Apple iPhone, with no visible damage, which was assigned tag #P22-001899. It certainly seems not to have been one of the damaged or discarded phones that were recovered from the residence.

[41] When Det. Gianfrancesco entered the apartment, inside were the accused, Jordan McEwan, Chantal Morrison, Deborah Ranger, and Jason Rivard. Police took no statements from any of these persons. The police did not confirm with the building’s landlord whose apartment they were in.

[42] In the investigation, the black iPhone with images and texts was particularly important to Det. Gianfrancesco. Exhibit 2 reports on data from that phone. The report sets out communications between the accused and FM between about May 20, 2022 at 3:18 p.m. and May 25, 2022 at 7:37 p.m. From the complainant and a police records system, Det. Gianfrancesco was able to confirm that the accused’s telephone numbers were 705-562-2771 and 705-562-0690. The officer’s error originally attributing FM’s telephone number to the accused in his evidence is an obvious blunder, and I accept the officer’s correction. As pointed out by counsel, such an error would likely not have occurred if the officer had spelled out in his notes to whom telephone numbers belonged, and not trusted this to his memory. The officer put into the report messages that were relevant to the charges in that there was a “sexual component” to them, including talk about sex and wanting to have sex. Therefore, only a selection of the messages that had been downloaded from the iPhone was included in Exhibit 2.

[43] Det. Gianfrancesco explained that photos in Exhibit 1 of FM posing in underwear were downloaded from the black iPhone and were taken on Facebook Messenger or FaceTime on May 21, 2022, and showed the accused in the top corner. I find that the picture in the upper corner of those photos is the accused, as the pictures are clear and they closely resemble the accused who answered to the charges and who has been present in court. He was also identified in those photos by FM. The photo of the vagina in Exhibit 1, identified by FM as a photo of her, was taken May 22, 2022 and was downloaded by the officer from the same phone.

[44] Detective Zuliani of the GSPS has been a computer forensic examiner since 2007. He examined the various electronic devices that were seized by warrant from the accused’s residence. He was able to extract data from several of them, mainly from a black Apple iPhone, police exhibit P22-001899. The Grey Key program, an electronic tool that he uses in his work, permitted Det. Zuliani to identify this phone as belonging to Donovan McEwan, with an email address of chancesare@hotmail.ca, and a telephone number of 705-562-2771. Data that he downloaded from that phone were passed on to Det. Gianfrancesco and are located in the Forensic Examination Report (Exh. 2).

[45] Det. Zuliani also testified that the accused’s name is located in many locations on the phone from which he downloaded the data and is associated to the phone’s email address.

[46] Banking records from RBC relating to FM were filed and show the electronic transfer of amounts of money from “D. McEwan” into FM’s accounts, beginning April 13, 2022 with a $50 deposit. Between that date and May 24, 2024, there were no fewer than 22 deposits of small amounts of money, of between $10.00 and $60.00, to FM’s credit at RBC in this fashion. The accused’s banking records from CIBC show the transfer on some 25 occasions of such funds between the same dates, to [FM’s first name].

[47] On September 13, 2022, the accused pleaded guilty to possession of cocaine for the purpose of trafficking in the Ontario Court of Justice in Sudbury. The facts of that plea involved a police search of his person on May 26, 2022. The accused on that date was found to be in possession of 42 grams of crack cocaine of an estimated street value of $4,200, along with $1.300 in Canadian currency. For this offence he was sentenced to a year in custody.

Burden of proof and assessment of evidence

Burden of proof

[48] The accused began this trial presumed to be innocent of the charges before the court. The Crown has the burden of displacing that presumption with proof beyond a reasonable doubt that the accused committed each of the offences with which he is charged: R. v. Lifchus, [1997] 3 S.C.R. 320, at para. 27. That burden applies to the essential elements of each of the charges before the court.

Credibility and reliability

[49] In this case, the main issue that the court must confront is the credibility and reliability of the evidence of the complainant.

[50] In R. v. M.(A.) (2014), 2014 ONCA 769, 123 O.R. (3d) 536 (C.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. [some citations eliminated]

[51] 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.

[52] It is not only witness credibility that must be assessed. The reliability of a witness’s 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.”

[53] In making these assessments, 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 instruct 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. Therefore, a complainant’s evidence should not be considered incredible simply because of delayed disclosure of a sexual assault or of some relevant aspect of a sexual assault case: R. v. D.D., 2000 SCC 43, at para. 65; R. v. E.H., [2020] O.J. No. 2768, at paras. 102-105; R. v. Lacombe, 2019 ONCA 938, [2019] O.J. No. 6023 (C.A.), at paras. 40-42.

Analysis

The complainant’s credibility and reliability

[54] FM was combative in cross-examination and prone to emotional fluctuation. It is plain that without a support person and the order for CCTV, the complainant would not have been able to provide her account in any fashion. However, in general FM presented as straightforward in her evidence, and prepared to acknowledge her own drug dependency and willingness to give the accused things that he wanted in order to feed her addiction.

[55] During the relevant time period of this case, on her own evidence, FM was heavily addicted to drugs, and used them often. FM acknowledged that the drugs had an effect on her memory of some details, though some things the complainant remembered quite well. However, FM’s memory of the dating of things is very unreliable. On the other hand, FM presented in her evidence as sober and lucid, and it is apparent that currently her drug addiction is under control.

[56] FM was also at times desirous to make herself look better, consciously or unconsciously. As an example, FM claimed that she did not take much money from the accused, because she was not the kind of person to ask for money in these circumstances. It was then pointed out to her that she had told police that she asked the accused often for money. FM then readily agreed that she did ask the accused for money frequently. This is an inconsistency that requires me to take care in assessing FM’s evidence so that I do not too readily accept all her claims at face value.

[57] On the other hand, I am not particularly troubled by FM’s late disclosure of the sexual things that she says the accused did to her for the drugs and money, or of the early discussion that she stated that she had with the accused about her age. When questioned about not telling her entire account to police of the accused’s sexual misconduct, the complainant explained that she was a child and a drug addict and did not want to talk about those things to police. She also thought that her text conversations with the accused would tell the story. Moreover, FM stated that the police did not ask her about things, such as conversations with the accused about her age.

[58] In my view, courts need to bear in mind that complainants are not the investigators of crime, and that the completeness of their accounts is often dictated at first instance by the direction and scope of the police investigation, and not necessarily by any desire to leave room for later deception or fabrication.

The iPhone and its contents – identification issues

[59] The defence contends that there are insufficient means of determining whether the black Apple iPhone that was analyzed, and whose relevant contents have been entered as Exhibits 1 and 2 on this proceeding, belonged to the accused. There is little evidence about its provenance, except that it was recovered in the accused’s apartment along with many other electronic devices. The defence argues that the evidence of Det. Zuliani is unable to prove anything. A computer tool did all the work, and its conclusions are unable to be analyzed and assessed.

[60] But the Grey Key program is a tool for use in analyzing electronic equipment, and Det. Zuliani was able to state that he read data on the telephone that indicated ownership in the accused, and that the accused’s name was in several places on the telephone, along with a telephone number: 705-562-2771. Moreover, the telephone number that attaches to the accused’s alleged messages as recipient from FM or sender in Exhibit 2, (705) 562-2771, matches the number discovered on the iPhone by Det. Zuliani. The complainant’s number, (705) 561-2440, the other number in the text conversation in Exhibit 2, was given in her evidence by FM.

[61] While FM testified that she did not know the accused’s telephone number and had just put it in her phone for the telephone to remember, which is common practice for many people, I find that she likely showed the number on her phone to the police officer. FM testified about several things that provide other evidence useful to link the iPhone to the accused.

[62] FM testified that she and the accused spoke very often and texted with each other over the telephone number that she had saved into her phone as belonging to the accused. She identified large portions of the text conversations in Exhibit 2 as being her text conversations with the accused. She provided a context for those conversations and explained such incidental details as those relating to visits by the accused’s driver, Mike, to bring her drugs.

[63] FM also identified her images in Exhibit 1, both the images of her posing in underwear and a hoodie and of her vagina. From my view of FM during her CCTV testimony, I am able to confirm that the face that is clearly visible in the posed images is that of the witness who testified as FM: R. v. Nikolovski, [1996] 3 S.C.R. 1197, at paras. 22, 31.

[64] The evidence is that those conversations and images were downloaded from an iPhone found at the accused’s apartment. FM forcefully explained how she could verify that the picture of the vagina was the one that she took of herself; she knew her body and observed in the image the same boxers and hoodie as in the posed images. She also recognized the blue car bed as the one she was on; that bed is also in the posed images.

[65] On all of this evidence I am satisfied beyond a reasonable doubt that:

a. The iPhone in question was found in a police search at the accused’s apartment and identified by police tag #P22-001899, and belongs to the accused;

b. the accused’s telephone number on this iPhone was (705) 562-2771;

c. the conversations in Exhibit 2 are conversations between FM and the accused and involved electronic messages sent between FM’s telephone number and the accused’s;

d. the vaginal photo in Exhibit 1 depicts FM’s vagina. FM took this photo and sent it to the accused through his telephone number;

e. the iPhone that belonged to the accused and was recovered by police during their search of his apartment must have been in the accused’s possession at least from May 20, 2022 at 3:18:29 p.m., when the accused’s telephone number sent a message to FM, until May 25, 2022 at 7:37 p.m., when the last message was sent that is attributed by the records on that phone to the accused’s telephone number. Between those dates and times, there are extensive communications between the accused’s telephone number and FM’s telephone number.

The accused’s knowledge of FM’s age

[66] According to the testimony of FM, she told the accused early in their relationship what her age was, and he did not care. FM was cross-examined on this evidence and acknowledged that she did not tell police investigators about this conversation with the accused that she has testified to. However, she offered a reasonable explanation for this lapse: she was not asked about this issue. In conjunction with FM’s other explanations for not telling police about various aspects of the case – her youth and the fact that she was a drug addict when she spoke to police – FM has adequately explained this and other omissions.

[67] Cross-examination did not move FM from her position, and no other evidence in the case calls FM’s accuracy and honesty on this point into question. In cross-examination, FM denied having fake identification with which to purchase the Smirnoff’s that she drank at the hospital in the accused’s room; indeed, there are many ways for someone underage to acquire such a drink without identification. I accept FM’s evidence and find as a fact beyond a reasonable doubt that the accused was aware that FM was 16 years old at the time of her dealings with him.

[68] Moreover, the accused had another reason to know or question FM’s age in any event. FM’s introduction to the accused by 13- or 14-year-old AL, a cousin with whom FM spent time, and a frequent guest in the accused’s home, offers an independent reason for certainty that the accused was aware that FM was under 18 during the period of their acquaintance. The accused was close to AL, and the age of a friend of this 13- or 14-year-old would have been a matter of significance to the accused in the circumstances of his personal dealings with FM. I am accordingly satisfied beyond a reasonable doubt on this basis also that the accused either knew FM’s age, or was wilfully blind about her age, or at least didn’t care about her age though he knew it could be an issue, a situation of recklessness that is equally culpable in the circumstances charged: R. v. W.(H.), 2022 ONCA 15, at paras. 10-11.

Sexual assault, Count 1

[69] For a finding of guilt to the charge of sexual assault in Count 1 on the Indictment, the Crown must prove, beyond a reasonable doubt: a touching, of a sexual nature, in the absence of consent. As to mens rea, the accused need only intend to do the touching, as sexual assault is a general intent offence: R. v. Ewanchuk, [1999] 1 S.C.R. 330, at paras. 25, 41.

[70] The Crown must prove that there was no consent. Concerning this element of the complainant’s consent to sexual contact, s. 273.1 of the Criminal Code sets out situations in which no consent is obtained, including s. 273.1(2)(c), where “the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority”.

[71] FM testified that the accused penetrated her vagina with his fingers and that he performed cunnilingus on her, by “eating her out”. These acts are clearly touchings or applications of force by the accused to FM in a sexual context. FM’s account of these acts has been challenged by the accused particularly on the ground that FM’s late disclosure of this conduct must weaken the force of her evidence. As I have discussed, the complainant has satisfactorily explained her “late” disclosure of these acts.

[72] Nevertheless, various messages in the conversation in Exhibit 2 confirm FM’s account and allow me to be satisfied that the acts spoken of by the complainant did actually occur:

a. That FM was able to avoid sexual intercourse with the accused is corroborated by a message on May 21 at 6:29:13: “After we have sex I’m going to give you a new phone”. From May 22 at 7:59:53: “Are you really afraid of cock?” (response from FM: “Yea”). From the accused at 8:00:09: “And I’m too big for that. You couldn’t take it.”

b. That the accused penetrated FM with his fingers is corroborated by a text on May 22, 2022 at 8:01:49, concerning whether the accused’s penis was too large for FM: “You could hardly take my fingers... And you could only take one babes”. The complainant answered that she could “take two max.”

c. The accused challenges FM that she told him “you don’t like your pussy eaten babes” (May 22, 2022 at 7:40:56). I find this a reference to what the accused had already done to the complainant, and the explanation that she likely used to stop this action of the accused after a minute.

[73] However, the accused also submits that the Crown has failed to prove the lack of communicated consent, and that therefore the accused must be acquitted of this charge.

[74] Indeed, the complainant in her testimony agreed that she responded “ok”, “yeah”, “sure” to the accused’s requests to engage in this sexual activity with FM. Such answers appear to be the stuff of communicated consent. FM added, however, that she froze when the accused suggested this sexual contact and did not want to do it. She testified that she was not attracted to the accused because he was old and was taken to her statement to police in which she said the same and added that she was not attracted to him also because he was black. She testified that the accused ceased the sexual incident she described when she communicated that she wanted it to stop. Then why did she agree to such contact at all?

[75] The evidence of this case makes it very plain that FM was motivated by a desire to continue to get drugs from the accused. He had become her “source”, and FM felt that the drugs and money the accused gave her had created an obligation in her to pay the accused back. But she was a “kid” and a drug addict, with no resources to repay the accused. It was only by agreeing to sexual activity with the accused that FM could pay him back. I find that she did this to ensure that the accused continued to give her the drugs that she craved.

[76] The accused argues that FM had a job and sometimes paid for her drugs and had access to drugs from AL and perhaps her boyfriend CC, so she was not truly dependent on the accused for her drugs. In my view, this is to mistake addiction for the recreational or occasional use of drugs. FM was very addicted to the drugs that she got from the accused. She explained that he had helped make her so. When she went to his house she got and used drugs every day. She needed what the accused had available to supply to her.

[77] And the accused knew this. Sex and drugs were rarely not mentioned in close proximity in FM’s dealings with the accused. After the sexual act that FM described in which the accused pulled her to himself and then performed sex acts on her, the complainant asked him for crack. Their sexualized text conversations involve the accused making sexual suggestions: about French kissing; having sex with FM; wanting and needing FM’s “pussy”: “eating” it and “fucking” it; getting FM to say that she loved him; “fucking” FM; talking “dirty”; and the respective sizes or capacity of their genitalia. FM responds to the accused’s sexual conversation, but her comments are interspersed with requests about the accused’s driver, Mike, bringing her “dope”, and how long it will take, and statements of how desperate she is for it. The accused lets FM know, and she acknowledges, that he controls her supply of drugs.

[78] The following conversation, which took place between 6:17:27 and 6:33:39 p.m. on May 22, 2022, is illustrative of the power dynamic between the accused and the complainant:

Accused FM You love showing me your pussy, don’t you? Yea I do Baby Good girl Can mike come see me Stop rushing me. I’m working it out babes Okay sorry baby Just do as I tell you. And don’t rush me. Don’t I always take care of you? Yesss

[79] In all the circumstances of this case, I find that FM was objectively a drug addict and that the accused was her supplier during the period alleged in Count 1 on the Indictment. I find that this relationship subjectively created in FM a dependency on the accused as her supplier. In that circumstance, FM was not able to give independent consent to the accused’s sexual advances. She was not free to choose consent or to entirely refuse it. The accused was aware of FM’s dependency. Indeed, he had fostered it, and the conversations in Exhibit 2 demonstrate very well that the accused was happy to exploit it. What appeared to be communicated consent by the complainant was, in that context, no consent at all: see R. v. A.H., [2000] O.J. No. 3258 (C.A.), at paras. 17-20; R. v. Snelgrove, 2019 SCC 16, at para. 3; R. v. Antoine, 2019 ONSC 3843, at paras. 189-192.

[80] The accused argues that to find that there is a power imbalance in the drug dealer/drug addict relationship is to create a situation where there can be no consensual sexual relationship between a supplier of drugs and their consumer. I disagree. The principle in the A.H. decision requires of those in a position of power, even drug dealers, to learn to recognize the imbalance in their relationship with those in a position of dependency and to take care not to exploit it in sexual contexts.

[81] I find that all the elements of sexual assault have been proved beyond a reasonable doubt. There will be a conviction on Count 1 on the Indictment.

Internet luring, Count 3

[82] To prove the offence under s. 286.1(2) of the Criminal Code as averred in Count 4 on the Indictment, the Crown must prove that the accused intentionally communicated by a telecommunication, with a person whom the accused knew to be under 18, for the purpose of facilitating a child pornography offence or an underage prostitution offence.

[83] The evidence in Exhibit 2 is clearly of communications between the accused and FM by means of a telecommunication. A cellphone is nothing other than a telephone with computer capabilities, and text messaging on a cellphone satisfies the actus reus of the offence: R. v. Woodward, 2011 ONCA 610.

[84] The evidence in Exhibit 2 demonstrates beyond a reasonable doubt that the accused was using his cellphone to achieve his purpose in getting FM, whom he knew to be 16 years old, to send him a picture of her vagina. Although not necessary to complete the offence, the fact that FM did send a photo of her vagina to the accused is a further indication that a request was made by the accused which was satisfied by FM.

[85] The same conversations in Exhibit 2 make it clear that the accused was repeatedly attempting to entice the 16-year-old complainant into further sexual activity with himself, including by engaging in vaginal intercourse, on the understanding that the complainant would be paid for that sexual activity with more drugs and more money or other valuables. Thus, on May 21, 2022 at 6:29:13 p.m., the accused texted FM, “Thinking about you. After we have sex I’m going to give you a new phone”. In addition, therefore, the accused’s clear purpose was to facilitate the child prostitution offence under s. 286.1(1) of the Criminal Code, and the offence on this Count is also made out on that basis, even though no sexual intercourse took place between the two.

[86] The accused argues that FM was able to operate independently of the accused. It was her choice to go to his home for drugs, just as it was her choice to stay away. The accused gave FM drugs and money, but those gifts were not connected to sexual images or activity except through the overzealous lens of the prosecution.

[87] The accused’s construction, however, is simply not borne out by the text evidence in Exhibit 2 or the evidence of FM. She recognized that there was a price to be paid for what the accused gave her. FM decided to stay away when the price to be paid at the accused’s home seemed to her to be too high, and prostitution was suggested. But even at a distance, as the texts in Exhibit 2 demonstrate, FM was asked to provide pornographic images of herself to the accused, and she did so, so that Mike would continue to bring drugs to her from the accused.

[88] The accused is convicted of Count 3 on the Indictment, internet luring.

Child prostitution, Count 4

[89] For the reasons discussed above relating to Count 3, the accused must be convicted as well on Count 4.

[90] In the circumstances of the case, however, I find that, not only did the accused communicate with FM to obtain her sexual services for consideration, he also achieved that purpose in at least the encounter involving cunnilingus and digital penetration of FM’s vagina that FM described in her evidence. The accused secured FM’s cooperation to some sexual activity by letting her know that she owed him for the drugs and money that he had given her. I find beyond a reasonable doubt on the evidence of FM that the accused also compensated her for the sexual liaison that FM described by giving her crack cocaine. This was obtaining the sexual services of a person under 18 for consideration.

[91] A conviction will be registered on Count 4 on the Indictment, child prostitution.

Procuring, Count 5

[92] “Procuring”, the central element in the first manner of committing the offence in Count 5 on the Indictment (s. 286.3(2) Criminal Code), requires that an accused cause or induce or have a persuasive effect upon a person under 18 to offer sexual services for consideration: R. v. Gallone, 2019 ONCA 663, at para. 61. Given the existence of the underage prostitution offence already in s. 286.1(2) of the Criminal Code, I am unable to agree with the Crown’s position that the offence in s. 286.3(2) can be committed if one procures the services of an underage person for oneself.

[93] The accused is also charged alternatively in the same Count with recruiting, holding, concealing or harbouring FM, a person who offers or provides sexual services for consideration. In the further alternative, he is charged with exercising control, direction, or influence over FM’s movements. Such alternative definitions and the logic and structure of the provision seem to me to imply that “procuring” must involve securing the sexual services for another.

[94] FM explained that the accused’s “baby momma” Chantal and the accused spoke with her about FM soon having to prostitute herself to pay the accused back or to continue to have access to money and drugs. The complainant’s evidence about any such conversations with the accused is very unsatisfactory on this charge. I am left uncertain as to the imminency of this prostitution, and I have no details about the words that the accused used with FM on this subject. I am left with a doubt about whether the complainant had actually yet been procured or recruited or was simply being approached by the accused to take a future part.

[95] I am not satisfied that the accused caused, induced, or had a persuasive effect upon FM to engage in such conduct, or recruited her to do so, and there is no evidence that she ever did engage in that kind of conduct with anyone other than the accused. Likewise, there is no evidence before me that, in the circumstances of this case, the accused exercised any control, direction, or influence over FM to engage in such conduct with other people. Rather, FM testified that she resisted any such development by absenting herself from the accused’s immediate presence.

[96] The accused is therefore found not guilty on Count 5, procuring. If I am in error, and “procuring” can import a notion of “securing for oneself”, then this charge would be made out for the reasons relating to Count 4, but subject in any event to the principle in the decision in R. v. Kienapple, [1975] 1 S.C.R. 729.

Possession of child pornography, Count 6

[97] While Det. Gianfrancesco conceded that he is not qualified to determine what is “child pornography”, he does not need to be for the purpose of this case and the allegation under s. 163.1(4) of the Criminal Code in Count 6 on the Indictment.

[98] I have already found that the accused knew that FM was under the age of 18 years. On May 26, 2022, the day of the police search at his apartment, the accused had a photo of the naked vagina of 16-year-old FM on his Apple iPhone, knowing that this was an image of a person under 18. This image of a sexual organ was requested from FM by the accused in the sexualized context of their text conversation in Exhibit 2, was provided to the accused by FM, and was clearly intended for a sexual purpose.

[99] In these circumstances, the accused is convicted of Count 6 on the Indictment, possession of child pornography.

Conclusion

[100] On all of the evidence in this case, for the foregoing reasons the accused is convicted of Counts 1, 3, 4, and 6 on the Indictment. He is found not guilty on Count 5 on the Indictment. Count 2 has already been withdrawn by the Crown.

Justice A.D. Kurke

Released: June 7, 2024