SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-23-50000247-0000
DATE: 20241017
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
GM
Defendant
S. Rothman, for the Crown
M. Byers, for the Defendant
HEARD: September 12-13, 2024
molloy j.:
REASONS FOR JUDGMENT
A. INTRODUCTION
[1] GM was charged with sexual interference with his daughter (“M”) between November 28, 2013 and November 28, 2015, when she was 6 and 7 years old. He was also charged with voyeurism and making child pornography, based on photographs he allegedly took of his daughter when she was 8 or 9 years old.
[2] The Crown called two witnesses: M and M’s mother. GM testified in his own defence and LG (his romantic partner for the past ten years) also testified briefly for the defence. At the close of the evidence, the Crown conceded that the charge of making child pornography had not been proven because there was no evidence that the photographs were taken or used for a sexual purpose, and invited me to dismiss that charge. The Crown argued that the voyeurism charge should still stand because it did not depend on there being a sexual purpose for the photographs. However, I ruled that even if I accept the complainant’s evidence, the conduct alleged does not constitute voyeurism and I therefore dismissed that charge as well.
[3] Finally, after hearing submissions from both parties, I dismissed the sexual interference charge. I stated at the time that I would provide written reasons for these decisions. It is important for all parties involved, particularly the complainant, that I explain the reasons for my rulings. Those reasons follow.
B. COUNT 1: SEXUAL INTERFERENCE
Testimony of M About the Alleged Offences
[4] The sexual interference count is particularized as relating to the period between M’s 6th and 8th birthdays – November 28, 2013 and November 28, 2015. During this time, M was living with her mother and staying with her father every other weekend, from Friday evening to Sunday evening. She described conduct by her father that took place during those weekend sleepovers. She described in some detail one such incident. She said that she was alone with her father on the weekend at his home in Etobicoke (“the Etobicoke house”). Her father ran a bath for her. In accordance with his usual routine, the door to the bathroom had to be left open and she had to get his permission to get out of the tub. When he said she could, she would get out and wrap herself in a towel and go to her bedroom. Her father would be in the bedroom getting her clothes ready for her to put on. She said there was one bed in the room, which was a “day bed” from IKEA that pulled out to a size that held two twin mattresses.
[5] On the occasion she described, after coming into the bedroom in a towel, she laid on her back on the bed to put her clothes on, and her father then knelt beside the bed and put his finger “in and around” her vagina. When asked, she confirmed that he actually inserted his finger into her vagina. She said her father told her that he was doing this to make sure that she was “normal and clean.”
[6] M testified that after this incident, this conduct by her father continued in exactly the same way every time she had a bath on the weekends at the Etobicoke house, but only when she was there alone with her father. There was never a variation in the routine. She said there was no such touching other than after a bath, nor in any residence other than the Etobicoke house. Her father never touched her like this when her sister A was also there for a weekend visit. A was three years younger than M. They had the same father, but different mothers. M and A shared a bedroom at the Etobicoke house. M testified that there was a period of about two years when A did not come for weekends with her father, which is when all these assaults occurred. She said this was when she was 6 and 7 years old. She said her father told her that A was not coming because her mother did not want her around him or M. M said that when she was around 8 years old, A started coming back for regular weekends again, at which point the assaults stopped. M also said that the assaults did not occur after her father was in a relationship with LG and she started being there on weekends.
[7] According to M, during this approximately two-year period, her father would touch her in this manner every time she had a bath on her weekend visits. There would be times when she missed a weekend here and there for various reasons, and also some weekends when she did not have a bath. However, she said she was touched in this manner by her father more times than she could count. She agreed that it was probably more than 30 times, but was not sure if it would have been as many as 40 times.
[8] On cross-examination, M was shown an array of photographs taken by her father that depict her sister A visiting with her father on multiple occasions throughout the two years covered by the indictment. These include many photos of M and A together at their father’s home or in his company at various places, such as a summer cottage belonging to A’s grandparents.
[9] M identified two beds in the girls’ bedroom in Etobicoke in January 2015, one of which was hers and the other a pink “Minnie Mouse” toddler bed used by A. M was also shown photographs of herself at IKEA and photographs of a day bed being assembled in the girls’ room in the Etobicoke house on December 27, 2015 (when M would have been 8). M acknowledged she was depicted in the IKEA photographs but denied that the day bed shown in those photographs was the one in the Etobicoke house upon which she described being assaulted when she was 6 and 7 years old.
Circumstances of the Disclosure by M
[10] M continued to see her father every second weekend through the years when she was 8 and 9, along with her sister A. However, she testified that she had a falling out with her father when she was 10 years old and stopped seeing him completely for a period of time. She testified in chief that this was because she had a male teacher in Grade 5 who reminded her of her father because he was always angry and slamming books on his desk, which she said reminded her of how her father behaved. Her father had planned to take her out for dinner for her 10th birthday, along with her sister A, her grandmother, and LG. However, M cancelled because she did not want to go. At the last minute, she changed her mind but was told it was now too late for everyone to get there. She recalled being upset about that.
[11] Also in Grade 5, apparently around December or January, M started refusing to go to school. Initially in her evidence she attributed this to her difficulties with her teacher. However, she also acknowledged in cross-examination that she had a falling out with her friends at school and was being bullied, which was part of her reason for not going to school. She acknowledged that she was upset around that same time about getting only a “Satisfactory” grade on her report card. She agreed that it was ultimately her father who took her back to school. She said that this was because she was required to choose between going back to school with her father or being taken there in the back of a police car.
[12] For reasons that were not fully explained, M started going back to see her father when she was 12 years old. However, she said that after a few months she had a heated argument with her father. She testified that this was the day before her birthday, on November 27, 2020. M testified that she was exposed to COVID at school and had to go home and isolate. She called her father and told him, and said that he responded “okay” and that she should just be safe. However, M testified that she was then present and heard her father talking to her mother on the phone and insisting that M should be taken to hospital. She said that her father said that if her mother did not take her to the hospital, he would call the Children’s Aid Society (“CAS”). She talked to her father and was very angry. He called her a “little girl”, which further infuriated her. She told him that if he called the CAS, she would tell the police that he had threatened her, referring to an earlier point when he texted her that hanging up on him was a decision she “would live to regret.” After that, she refused to see her father again. She testified that this was in November 2020, just as she was turning 13 years old.
[13] M’s mother took her for psychiatric help when she was in Grade 5 (December 2017/January 2018) and having behavioural issues, particularly around school attendance. According to M’s mother, M was diagnosed with severe anxiety and depression. M testified that she did not disclose to her therapist, or anyone else, what her father had done to her. She said that the way she was dealing with trauma was to make jokes about it. She also said that she made a joke about it to her aunt (her mother’s sister) and her aunt asked her to explain. She told her aunt what her father had done, and her aunt said she was going to tell the police. M could not remember the nature of the joking statement she made to her aunt that caused her aunt to ask her questions leading to the disclosure. M also testified that she had previously told her best friend and her boyfriend about the abuse, but was not sure when. She said this was way before she told her aunt, but then said it was about one month before. Given that she was 13 at the time, those two things might well mean the same thing to her and I do not consider them to be necessarily inconsistent. M said that the disclosure to her aunt was about one month before her statement to the police. The police statement was recorded on September 22, 2021. M denied having discussed this with her mother at any time prior to the police statement. When asked in cross-examination if her mother came over to her aunt’s house and took her aside to have a conversation about it, she denied it, stating, “Her and I never had a conversation.” She also denied hearing from her mother on that occasion that the version of the events she had just given to her mother was different from what she told her aunt.
[14] Neither the aunt, the best friend, nor the boyfriend were called as witnesses. However, M’s mother testified that she first learned of the allegations in 2021, just before M started high school. She said she heard the allegations first from her sister, and then took M out to the backyard and asked her about it. She said that M was a little hesitant at first, but then told her about her father touching her while in the bedroom at his home. M’s mother also testified that her sister told her that M disclosed a slightly different version to her, in that the touching occurred while she was in the bath. Without the evidence of the aunt, it is impossible for me to determine whether this is an inconsistency in M’s version of the event, or a misunderstanding by the aunt as to what M said, or a misunderstanding by M’s mother as to what the aunt told her.
Testimony of M’s Mother
[15] M’s mother confirmed that when M was 6 and 7 years old, she would spend every second weekend with her father, usually from Friday evening to Sunday evening. She also testified that at some point Wednesday evenings were added, but she did not remember when that happened.
[16] M also testified in her examination-in-chief that there were times when M did not want to go to her father’s unless her sister A was also going to be there. She said that on those occasions, M would not go for her scheduled weekend visit. M was not asked about this in her testimony.
[17] M’s mother testified that when M was 10 years old a police officer came to their condo because M had been acting out. According to M’s mother, the officer told M that she had the right to decide whether to see her father and that she did not have to go. She said that it was after this that M stopped going to see her father on weekends for a period of two or three years. This incident with the police and the alleged advice given by the officer were also never put to M in her testimony.
[18] M’s mother testified that when M was between the ages of 6 and 8, she began having behavioural problems. She said that M would be angry when she came home from visits with her father, and would start hitting and pounding on her. She said she sat M down and asked what was wrong, but could not figure out what was going on. She maintained that M was not like this before she left for visits, but would return that way. Again, this is an issue not raised with M in her evidence.
[19] M’s mother also described noticing that when she would bathe M, she would sometimes see redness around her vaginal area. She asked M if she was being bathed when at her father’s. M’s mother denied that this was a diaper rash, stating that it was when M was between 4 and 7 years old. She did not report this to anyone, nor seek any treatment for M, other than giving her oatmeal baths. She was unclear how often this happened, but said she noticed it “more than once.” She could not remember if she had ever mentioned this to GM.
[20] M’s mother denied that M’s behavioural problems and difficulty at school had anything to do with a falling out with her friends or getting a “Satisfactory” on her report card. In cross-examination she was taken to a text message exchange she had with GM about M’s behaviour in which she wrote, “Part of the issue with school is the fact that she received an “S” on her report card.” She continued to maintain no memory of this being an issue, or of having sent the text message.
[21] M’s mother testified that M told her she hated men, and that she threatened to hurt her brother and threatened her grandfather. She recalled meeting with the guidance counsellor and principal at school, but said nothing was brought up about the teacher in that meeting. She testified that the guidance counsellor told them that GM was “part of the problem.” That statement is clearly hearsay, is denied by GM, and is not admissible in evidence for its truth.
Testimony of GM
[22] GM testified in his own defence. He denied ever having touched his daughter M in the manner she described. He also denied that there was ever a period of time when his daughter A did not come for regularly scheduled visits every second weekend. Of course, there would be individual weekends when one of the girls would not be there for one reason or another, but he said there was never a block of time when A did not come. He produced 82 photographs of his daughters ranging in date from November 17, 2013 to January 24, 2016. Although those pictures do not include every weekend when GM would have had his daughters for access visits, there are not many such weekends that are not represented. It is clear from the evidence that, through this two-year period, A was regularly present with GM, along with M, as depicted in multiple pictures of them together at various places including GM’s previous home in Brampton, A’s family cottage, multiple entertainment venues and parks, and GM’s Etobicoke home.
[23] GM also testified that the day bed in the bedroom shared by the two girls was purchased at IKEA just after Christmas in 2015. He produced photographs of M at IKEA on December 27, 2015, as well as a photograph of the bed and mattresses still in their boxes at IKEA. He said he put the bed together that night and produced a photograph of the various parts set out on the floor of the bedroom taken at 7:02 p.m. on December 27, 2015. Finally, there is a photograph of A sitting on that bed, which was taken on January 22, 2016. There are earlier photographs of the room during the time period when M alleges the assaults occurred, which show that there were two beds in the room at that time, one of which was a small toddler bed for A.
[24] GM testified that he did not move into the Etobicoke home until March 1, 2014. Based on the photographs, this appears to be accurate.
[25] He also testified that he met LG in July 2014 and that they consider August 16, 2014 to be the official start of their relationship. He said he introduced her to the girls towards the end of August 2014 and that she was at his home most of the time, and always on weekends, ever since. They are still a couple.
[26] Although M maintained that her father’s routine for bath time was to put her clothes out for her in her bedroom, GM denied this, stating that he would put the clothes in the bathroom, along with a towel. He agreed that he required M to keep the door open and not get out of the bathtub without telling him. He said he did this because earlier she had fallen in the bathtub at her mother’s house and injured herself. He said that LG followed the same routine.
[27] The access schedule for M and her father was set out in a consent order of the Ontario Court of Justice dated February 3, 2012. However, it refers to a consent filed on September 28, 2011 and to access commencing on Friday, September 30, 2011. The order provides that GM would have M every second weekend from Friday evening to Sunday evening, and on Wednesday nights during vacation. There is no reference to M coming every Wednesday night, but everyone, including GM, agreed that eventually this was the case. None of the witnesses could remember when that started, but it can be assumed it would have been after the order was made on February 3, 2012. M thought it was when she was about 9 years old. The order also deals with access visits for birthdays and special holidays, none of which are relevant for the purposes of this case. GM testified that he had a similar order for access with A, but that A did not come on Wednesdays.
[28] GM described his time with his daughter M up until her 10th birthday as “amazing”. He was unaware of her being angry or abusive towards her mother after returning from access visits when she was between the ages of 6 and 8. He said he heard that for the first time when M’s mother testified at the trial. He also denied being told anything about M having a rash or redness in her vaginal area.
[29] GM’s recollection of the incident involving M being upset about the birthday dinner plans when she turned 10 (in 2017) was similar to M’s. He was also aware that she was having behavioural issues around that time and he attended a meeting at M’s school about her problems there. GM said there was no mention of any problem with him at that meeting, and also no discussion about M’s teacher. His access visits with M changed after this incident. He was actively involved in getting her to go back to school after the police were called in January 2018 and said he took her there himself for the four days following that intervention. He then saw M from time to time, but not on the same schedule as had been previously in place. He said he was away a lot in 2019 and that M started coming again for regular visits in the summer of 2020. This continued up to the major disagreement on November 27, 2020.
[30] His version of the discussion on November 27, 2020 about M being exposed to COVID and his wanting M’s mother to take her to the hospital was similar to the evidence of both M and her mother. He agreed that after this M stopped coming to his home for visits.
Testimony of LG
[31] LG testified that she has been in a relationship with GM since August 16, 2014. She testified that they treat that date as their anniversary. She said she probably met his two daughters the next weekend. Thereafter, she said she was there every weekend unless she was ill. She corroborated GM’s version of the bath time routine, which was that both the bath towels and clothes (pajamas) were placed in the bathroom. She testified that there was never a time when A did not come regularly for visits every second weekend.
Analysis
[32] GM testified in his own defence. Although there is corroborative and contradictory evidence about some of the details, essentially this case involves two different versions of what happened at a time when M testified that she and her father were the only people present. In that sense, this is a “she said/he said” kind of case. Clearly, the principles established in R. v. W.(D.) apply.[^1] The formula suggested by the Supreme Court in W.(D.) was designed to prevent finders of fact from falling into the trap of determining credibility based on which of two competing versions they prefer, without properly taking into account the burden on the Crown to prove its case beyond a reasonable doubt. The “formula” involves three steps which, if I followed rigidly in this case, would take me through the following analysis:
If I believe the testimony of GM denying that he did the acts alleged, then I must find him not guilty.
Even if I do not fully believe GM’s evidence, if his evidence leaves me with a reasonable doubt, I must acquit.
If I do not have a reasonable doubt based on the defence evidence, I must go on to consider the whole of the evidence at trial (including the defence evidence) and determine whether I am satisfied beyond a reasonable doubt that GM committed the offence alleged.
[33] The Supreme Court of Canada has been clear, both in W.(D.) and other cases, that the formula in W.(D.) is not a rigid formula or a series of steps that must be followed in every case in the order set out. As long as it is clear that the burden is not placed on the accused to disprove the allegations, the W.(D.) formula is not mandatory. For example, in R. v. S.(W.D.), Cory J. (who also authored the decision in W.(D.)) noted:
Obviously, it is not necessary to recite this formula word for word as some magic incantation. However, it is important that the essence of these instructions be given. It is erroneous to direct a jury that they must accept the Crown's evidence or that of the defence. To put forward such an either/or approach excludes the very real and legitimate possibility that the jury may not be able to select one version in preference to the other and yet on the whole of the evidence be left with a reasonable doubt. The effect of putting such a position to the jury is to shift a burden to the accused of demonstrating his or her innocence, since a jury might believe that the accused could not be acquitted unless the defence evidence was believed.[^2]
[34] In a similar vein, with respect to the order in which the three steps are analyzed, Abella J. held in R. v. C.L.Y. as follows (the trial judge in that case having started with an analysis of the credibility of the complainant’s evidence):
It is noteworthy that in W. (D.) itself, despite the trial judge’s error in instructing the jury that they were engaged in a credibility contest, the conviction was upheld. This of course does not give trial judges licence to wrongly analyse credibility issues, but it does serve to remind that what W. (D.) offered was a helpful map, not the only route. Its purpose was to ensure that triers of fact — judges or juries — understand that the verdict should not be based on a choice between the accused’s and Crown’s evidence, but on whether, based on the whole of the evidence, they are left with a reasonable doubt as to the accused’s guilt.[^3] [Emphasis added; citations omitted.]
[35] In this case, I believe the interests of justice are not served by starting with findings of credibility. Further, I choose not to determine whether I believe or disbelieve either M or her father. Rather, I am focused on what the Crown must establish in order to find GM guilty of sexually touching his daughter as alleged. The evidence of M must not only be credible, it must also be reliable. For me, the issue is not whether I believe M to have deliberately made up lies about her father or whether she honestly believes her testimony to be the truth. Rather, my focus is on whether her evidence is sufficiently reliable to find a person guilty of a criminal offence.
[36] It is useful at this point to explain what I mean about the difference between credibility and reliability. Credibility has to do with honesty and whether a person is telling the truth to the best of his or her ability. Many honest witnesses try their very best to tell the truth but are nevertheless mistaken in their recollection. This may happen for various reasons, including because they misapprehended the circumstances even as they were occurring, or because their memory of the events became unreliable or tainted over time. Many honest witnesses provide evidence that is unreliable. A classic example is eyewitness evidence in which neutral third-party witnesses give diametrically opposed descriptions of a perpetrator. Those witnesses may be honest and truthful, but nevertheless inaccurate and therefore unreliable.
[37] To ground a finding of guilt in a criminal case, the evidence supporting that finding must be both credible and reliable, and it must be sufficient to satisfy me of the accused’s guilt beyond a reasonable doubt. In this case, I do not find the testimony of M to be sufficiently reliable to support a finding of guilt.
[38] Before setting out the reasons I find M’s testimony to be unreliable, I wish to highlight two important principles. First, I recognize that the testimony of children must not be assessed with the same lens as would be applied to an adult.[^4] Second, notwithstanding the allowances made for the difference in the testimony of children, their evidence must still be sufficient to establish the guilt of the accused beyond a reasonable doubt.[^5]
[39] The most significant difficulty with M’s testimony is the timing of the alleged assaults. M testified that the assaults occurred at the Etobicoke house after she would have had a bath, and that neither A nor LG were present for any such occasion. This makes sense since A and M shared a room and M’s own testimony was that they would have baths together when A was there. Also, when LG was there, there would be little or no opportunity for such assaults to occur. Indeed, LG was herself directly involved in bath times when she was there. It is clear from the evidence that GM did not move to the Etobicoke address until March 2014. He testified to that effect and there are photographs taken at the Brampton home from mid November 2013 through to February 2014. There is a photograph of A with her father on March 22, 2014, which was a Saturday. Presumably, there would have been an access visit on the weekend of March 8, 2014 as well, although there are no photographs from that weekend. That means that the first time the incident as described by M could have occurred, based on the location being the Etobicoke house, was March 8, 2014. March 22, 2014 would not have provided such an opportunity because A was also with her father that weekend.
[40] I am satisfied on the combined evidence of M, GM, and LG that after LG was in a relationship with M’s father, LG would be with them on weekends. I also accept the evidence of LG and GM that the relationship was official in mid-August and LG was there on weekends after that. To allow a margin of error, I will treat September 1, 2014 as the beginning of the period of time when LG was almost always there on weekends.
[41] That leaves the period from April to August 2014 inclusive when the assaults (as described by M) might have occurred. The photographic evidence establishes that on Saturday, April 12, 2014, A was at the cottage with her father. GM was also at the cottage on the weekends of April 12, May 31, June 15, June 29, and July 6, as evidenced by photographs from his phone on those dates. Those photographs include A. The photographs from June 15 and 29 also show that M was at the cottage with her father and A. She was likely there for the other weekends as well, but there is no photographic proof of that. What is clear, however, is that A was consistently present throughout that period.
[42] There are photographs from GM’s phone taken on Sunday, August 24 depicting A playing soccer and at a park. There are no photographs from weekends in September, but by then LG was there on weekends.
[43] Thus, there would have been very little possibility of M being assaulted at the Etobicoke address on a weekend when A was not present for the whole of March through to September 2014.
[44] Further, the photographs demonstrate that there was no extended period of time when A had stopped visiting her father every second weekend, much less a period of two years as described by M. Even making allowances for the misperceptions of time so common in young children, this discrepancy is concerning.
[45] There are also smaller details about which M was mistaken. For example, she was only able to describe one incident, and then said that this same conduct occurred over and over again, many, many times, in exactly the same way. She testified at trial that this always involved her father kneeling beside the day bed as he put his finger (or fingers) inside her vagina. At the preliminary hearing in March 2023, M testified that her father would always be standing beside the bed. When cross-examined about this inconsistency and the fact that the testimony before me was the first time she described him as kneeling down, M said that her father kneeling down is the way she remembers it. This is a detail that has therefore changed over time.
[46] The number of times M said this occurred is also impossible. There were very few opportunities during the relevant period, but M testified that there would have been more than 30 such assaults. Children are frequently unable to quantify such incidents with accuracy. However, M’s evidence that it happened every weekend for a period of close to two years is considerably out of line with the opportunities for it to have occurred, which is problematic.
[47] M was very clear about the bed upon which this happened, which she described as having three drawers. She was shown a photograph from January 2015 which shows both A and M in the girls’ bedroom at the Etobicoke home. There are two beds in the picture, one of which is a small pink bed, which M identified as belonging to A. The other bed, which was used by M at that time, is clearly not the IKEA day bed she described. M was also shown photographs depicting her at IKEA on the afternoon of December 27, 2015 and a daybed from IKEA that appears to have been purchased that day, along with a photograph of that bed in the process of being assembled in the girls’ bedroom at the Etobicoke house that same evening. There is also a photograph of A sitting on that day bed in the girls’ room in Etobicoke in January 2016. The evidence is clear that the bed M described was not at the Etobicoke home until after the period when LG was always there on weekends.
[48] None of these details necessarily mean that M’s account of the sexual abuse is untrue. However, her evidence about where it happened, when it happened, the circumstances in which it happened, the opportunity for it to have happened, and the number of times it happened are not reliable. Independent evidence, including incontrovertible evidence in the form of photographs, establishes that M was wrong about some of these details, including very crucial ones. In those circumstances, I cannot accept her unsupported evidence of a single memory to be sufficiently reliable to prove the charge beyond a reasonable doubt. I might conclude differently if there was any other independent evidence to corroborate aspects of M’s testimony. However, I do not find any other reliable evidence to corroborate any aspect of her testimony. Clearly, as a question of law, corroboration of a complainant’s evidence is not required for the Crown to establish the guilt of an accused. However, as a practical matter, such confirmatory evidence can be very helpful, particularly where (as here) there are frailties in the complainant’s recollection.
[49] The Crown points to a number of points of evidence which he argues are corroborative of M’s allegations: (1) the manner of disclosure; (2) M’s mother’s evidence that M was upset and abusive when she came home from access visits; (3) M’s mother’s evidence that M would tell her she did not want to go to her father’s house when her sister A was not there; and (4) the redness in M’s vaginal area as described by her mother. I do not find any of these to be corroborative.
[50] First, the manner of disclosure is not clear. M says she made a joking reference which caused her aunt to make an inquiry and that she then disclosed the assaults. The aunt was not called as a witness. M cannot remember what she said that triggered the inquiry from her aunt. M’s mother testified that she immediately went to the aunt’s home, took M aside in the yard, and discussed the allegation with her. M denies ever talking to her mother about it, and specifically denies the discussion in the yard described by her mother. Further, M’s mother said that the version relayed to her by M’s aunt involved an assault in the bath, whereas M told her (as she told the court) that it was in the bedroom. In addition to not being put to other witnesses, much of this evidence is hearsay. The circumstances of disclosure do not assist me in determining the reliability of M’s account.
[51] Second, the only evidence of M being upset and abusive when she returned from access visits came from M’s mother. It does not appear that M’s mother ever spoke to GM about this, which I consider odd in the circumstances. This behaviour was also never canvassed with M at trial. M’s mother is clearly antagonistic towards GM, which is understandable if she believes him to be the perpetrator of sexual abuse against her daughter. Nevertheless, I found her to be so clearly hostile that it is difficult to accept her testimony with nothing to support it.
[52] Third, M’s mother said that M would not want to go to her father’s house for visits unless A was also going to be there. This was not put to M, so there is nothing to corroborate that M ever said this. GM denied knowing anything about this, and it does not appear that M’s mother ever told him. He also testified that there would be no reason for him to ever call M’s mother to tell her that A was not coming, which seems logical to me. Finally, it is possible that there were occasions where M knew in advance that A was not going to be there on a given weekend. However, M and A were very close and enjoyed playing together at their father’s home. It is therefore quite possible that any negative statements by M about her sister not being there were more attributable to disappointment, than to fear or avoidance. Indeed, the witnesses agreed that the Wednesday night access visits for M were set up because she asked to spend more time with her father, and these were nights when A was not there. I therefore find that M’s mother’s hearsay statements about what M told her do not constitute any corroboration about M’s fear of going to her father’s home without her sister being there.
[53] Fourth, there can be many explanations for redness in the vaginal area. Even if I accept M’s mother’s evidence that she witnessed it, her evidence about when it occurred is vague. She never brought it to the attention of M’s doctor, and never asked GM about it. It cannot constitute corroboration of digital penetration.
[54] Any one of these frailties in M’s evidence may be attributable to her young age at the time of the alleged incidents and the passage of time since then. If there was independent corroboration, I would find these frailties to be less troubling. Also, if there were not as many weaknesses, I might be able to find the evidence of M to be reliable. However, in all of the circumstances, I cannot come to the conclusion that M’s evidence is sufficiently reliable to support a finding of guilt. Considering the whole of the evidence, I am left with a reasonable doubt. I therefore found GM not guilty on the sexual interference charge.
C. COUNTS 2 and 3: CHILD PORNOGRAPHY and VOYEURISM
[55] On these counts, the Crown’s case rests entirely on M’s testimony about photographs she saw on her father’s cellphone. M testified that the bedroom she shared with her younger sister A at the Etobicoke house did not have air conditioning and could be hot in the summer. She said that because of the heat, she and her sister sometimes slept without wearing pajama tops. She said that at some point when she was 8 or 9 years old (and when her sister would have been 5 or 6), her father showed her a picture of her and A asleep in their room at the Etobicoke house, when they were both wearing pajama bottoms, but no pajama tops. She said her father had been texting that photo to someone, but she did not know who. When her father showed her the photograph, he commented about how cute they both looked. M testified that on a later occasion when she was in her father’s car and using his cellphone to play videogames, she looked in his photographs and saw at least one other similar photograph, or possibly two, taken at the same time as the one she had been shown by her father.
[56] GM denied ever taking photographs of his daughters sleeping while not wearing pajama tops.
[57] I have decided this charge on a pure question of law. Even if I accept the evidence of M as true, GM is not guilty of either of the charges of making child pornography (Count 3) or voyeurism (Count 2). The Crown conceded that the pornography charge should be dismissed as there was no sexual aspect to the images taken. I agree. However, the Crown argued that because the children were sleeping, the photographs taken of them were taken surreptitiously at a time when they were in a place or circumstances where they could reasonably be expected to be nude and where they had a reasonable expectation of privacy. Therefore, the Crown submitted that I should find GM guilty of voyeurism.
[58] GM is charged with voyeurism under s. 162(1) of the Criminal Code, which states:
162 (1) Every one commits an offence who, surreptitiously, observes — including by mechanical or electronic means — or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if
(a) the person is in a place in which a person can reasonably be expected to be nude, to expose his or her genital organs or anal region or her breasts, or to be engaged in explicit sexual activity;
(b) the person is nude, is exposing his or her genital organs or anal region or her breasts, or is engaged in explicit sexual activity, and the observation or recording is done for the purpose of observing or recording a person in such a state or engaged in such an activity; or
(c) the observation or recording is done for a sexual purpose.[^6]
[59] There is no suggestion here, and no evidence, that the photographs of M and A were taken for a sexual purpose. Therefore, s. 162(1)(c) does not apply. The circumstances described in s. 162(1)(b) also do not apply. The Crown’s case is based on s. 162(1)(a). The voyeurism count on the indictment is particularized to bring the charge within s. 162(1)(a) and states that the accused made a visual recording of M “without lawful excuse, surreptitiously” and described M as “a person who was in circumstances that gave rise to a reasonable expectation of privacy when that person was in a place in which that person could reasonably be expected to be nude, to be exposing his or her genital organs or anal region or exposing her breasts, or to be engaging in explicit sexual activity.”
[60] Crown counsel relies on the Supreme Court of Canada decision in R. v. Downes in support of the proposition that a father taking pictures of his sleeping child is a voyeur within the meaning of this provision.[^7] In that case, a hockey coach was convicted of voyeurism by surreptitiously taking 38 photographs of 2 adolescent boys, between the ages of 12 and 14, clad only in their underwear, in a hockey arena dressing room. It was against the rules of the arena to take photographs in the dressing room. To begin with, I would distinguish the Downes case on its facts. There is a vast difference between a hockey coach secretly taking pictures of adolescent boys in their underwear in the dressing room of a hockey arena and a father taking a photograph on his cellphone of his daughters (aged 6 and 9) sleeping in their own bed in their bedroom at his home.
[61] In Downes, it was conceded that the photos were taken “surreptitiously” and “in circumstances that give rise to a reasonable expectation of privacy.”[^8] The issue was whether there was a temporal component implied in the requirement that the photos be taken “in a place where a person can reasonably be expected to be nude.” The defence argued that the Crown must establish that there was a reasonable expectation that the persons photographed would be nude at the time the photos were taken. The Court found that there was no such temporal requirement.[^9] That is not the issue in this case and is another reason I found Downes to be of little assistance in helping me decide this case.
[62] It is important to note that the offence of voyeurism is established by proving either observation or recording, provided the other requirements of the main provision are met (“surreptitious” and “in circumstances that give rise to a reasonable expectation of privacy”), as well as the particulars required by the lettered subsections. The additional requirement for s. 162(1)(a) would be the nature of the place. Given that the Supreme Court held in Downes that there is no temporal requirement in s. 162(1)(a), a bedroom easily meets the definition of a place where a person could reasonably be expected to be nude, for the purposes of getting dressed if nothing else.
[63] What I consider important, however, is the emphasis placed by the Court in Downes on its earlier decision in R. v. Jarvis, particularly with respect to the fundamental nature of the offence of voyeurism and the purposes for which it was enacted.[^10]
[64] The facts underlying the voyeurism charge in Jarvis were also quite different from the case before me. In that case, a high school teacher used a camera concealed in his pen to surreptitiously record images of the upper bodies and breasts of female students as they were engaged in ordinary school-related activities.[^11] This was the first occasion for the Supreme Court to consider the voyeurism provisions in the Criminal Code since their enactment, and Wagner C.J. (writing for the majority) therefore spent some time analyzing the purpose of the legislation.
[65] In Jarvis, the Court reiterated the well-known principle of statutory interpretation that the words in a statute should be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.”[^12]
[66] The Court in Jarvis gave extensive consideration to the purpose for which this legislation was enacted and held that this purpose must be borne in mind when interpreting the language used.[^13] The Court noted that the purpose of the legislation was “to protect individuals’ privacy and sexual integrity” and was “motivated by concerns about the potential for rapidly evolving technology to be abused for the secret viewing or recording of individuals for sexual purposes and in ways that involve a serious breach of privacy.”[^14]
[67] In my view, although s. 162(1)(a) does not specifically require that the observation or recording be made for a sexual purpose, the underlying intention of Parliament must still be considered in determining the nature of the privacy interest that arises. Further, the place in which the observation or recording is made is not determinative. The surrounding circumstances must be taken into account in determining whether there was a breach of a reasonable expectation of privacy.
[68] I am not aware of any decision in which “surreptitious” is defined. Ordinary dictionary definitions include:
• done, made, or acquired by stealth;[^15]
• acting or doing something clandestinely;^16
• kept secret, especially because it would not be approved of;[^17]
• done, acquired, etc, in secret or by improper means;[^18]
• stealthily or fraudulently done, taken away, or introduced.[^19]
[69] In my opinion, “surreptitious” within the context of the voyeurism provisions of the Criminal Code requires something more than taking a photograph of someone without that person having known or consented to it. The fact that a person is asleep when he or she was observed or photographed is not sufficient to constitute “surreptitious” behaviour on the part of the person making the observation or recording.
[70] In Jarvis, the Court held that the circumstances that give rise to a reasonable expectation of privacy within the meaning of the voyeurism provisions must be circumstances in which “a person would reasonably expect not to be the subject of the type of observation or recording that in fact occurred.”[^20] In this case, it is argued by the Crown that a parent who entered the bedroom of his two sleeping children and observed them to be asleep was acting “surreptitiously.” Further, the fact that he took a picture of them innocently sleeping there was a “surreptitious” act. I disagree. There was nothing in this conduct that would constitute “surreptitious” behaviour as that word is known in ordinary language, particularly when seen within the context of the purpose of the legislation and the relationship between the parties. There was nothing covert or secret about GM’s conduct. Indeed, according to M, he showed her one of the pictures, and also let her have free access to his phone where other similar photographs were stored (along with many, many other pictures of his daughters).
[71] Further, in Jarvis the Court held that a contextual approach should be adopted and the whole of the circumstances taken into account. The Court provided a non-exhaustive list of considerations for determining whether the person observed or recorded was in circumstances that give rise to a reasonable expectation of privacy:
(1) The location the person was in when she was observed or recorded. The fact that the location was one from which the person had sought to exclude all others, in which she felt confident that she was not being observed, or in which she expected to be observed only by a select group of people may inform whether there was a reasonable expectation of privacy in a particular case.
(2) The nature of the impugned conduct, that is, whether it consisted of observation or recording. Given that recording is more intrusive on privacy than mere observation, a person’s expectation regarding whether she will be observed may reasonably be different than her expectation regarding whether she will be recorded in any particular situation. The heightened impact of recording on privacy has been recognized by this Court in other contexts, as will be discussed further at para. 62 of these reasons.
(3) Awareness of or consent to potential observation or recording. I will discuss further how awareness of observation or recording may inform the reasonable expectation of privacy inquiry at para. 33 of these reasons.
(4) The manner in which the observation or recording was done. Relevant considerations may include whether the observation or recording was fleeting or sustained, whether it was aided or enhanced by technology and, if so, what type of technology was used. The potential impact of evolving technologies on privacy has been recognized by the courts, as I will discuss further at para. 63 of these reasons.
(5) The subject matter or content of the observation or recording. Relevant considerations may include whether the observation or recording targeted a specific person or persons, what activity the person who was observed or recorded was engaged in at the relevant time, and whether the focus of the observation or recording was on intimate parts of a person’s body. This Court has recognized, in other contexts, that the nature and quality of the information at issue are relevant to assessing reasonable expectations of privacy in that information. As I will discuss further at paras. 65-67 of these reasons, this principle is relevant in the present context as well.
(6) Any rules, regulations or policies that governed the observation or recording in question. However, formal rules, regulations or policies will not necessarily be determinative, and the weight they are to be accorded will vary with the context.
(7) The relationship between the person who was observed or recorded and the person who did the observing or recording. Relevant considerations may include whether the relationship was one of trust or authority and whether the observation or recording constituted a breach or abuse of the trust or authority that characterized the relationship. This circumstance is relevant because it would be reasonable for a person to expect that another person who is in a position of trust or authority toward her will not abuse this position by engaging in unconsented, unauthorized, unwanted or otherwise inappropriate observation or recording.
(8) The purpose for which the observation or recording was done. I will explain why this may be a relevant consideration at paras. 31-32 of these reasons.
(9) The personal attributes of the person who was observed or recorded. Considerations such as whether the person was a child or a young person may be relevant in some contexts.[^21]
[72] An an analysis of these factors supports my conclusion that the conduct in this case does not fall within the meaning of the voyeurism offence. I will deal with them in the order in which they are listed in Jarvis.
(1) Location. This was a bedroom occupied by two little girls aged approximately 6 and 9 years old. They cannot have any expectation that their own father would not enter their bedroom in his home and observe them while they were sleeping. Every parent does that. And every child knows that. Taking a photograph of a sleeping child is also well within what parents and children expect will happen in the ordinary course.
(2) Nature of the Conduct. I recognize that the photograph would be a less expected type of activity than mere observation. However, the next day, according to M, her father showed her the photograph to point out how cute she and her sisters were. This conduct does not appear to be intrusive or covert.
(3) Awareness of the Conduct. The children were asleep and therefore unaware of the photograph being taken. However, they would have been well aware of the potential for it.
(4) Manner of the Recording. This was a simple fleeting image taken on a cellphone (or perhaps two or three taken at the same time). This was not a video recording, nor was it taken by a hidden camera. However, many, many parents keep a monitor in their children’s rooms so that they can peek in on them electronically from time to time, or keep a monitor running all the time so that they can monitor their safety or needs while they are sleeping. That is not criminal conduct. It is an everyday occurrence in the homes of families across the country.
(5) Subject Matter. The subject matter of the recording was two innocent sleeping children. Neither of the children were sexually developed. Neither had breasts. Neither was fully nude. There was a commonplace, innocent explanation for the absence of pajama tops, as described by M in her testimony.
(6) Rules. There are no rules, regulations, or policies that apply.
(7) Relationship. The person allegedly taking the photographs was the father of the children depicted in the photographs. They were in their own bed in their own bedroom in his home. He took frequent pictures of his two daughters, both separate and apart, documenting all kinds of fun activities and life events, as parents typically do.
(8) Purpose. There was no sexual purpose for taking the photos. I can safely assume that if they were taken, it was for the purpose attributed to them by M – because the two girls were so cute sleeping together in their bed.
(9) Attributes. The young age of the children lends further support to the innocent nature of these photographs.
[73] I note as well that this count on the indictment was particularized to allege that GM was “without lawful excuse” in taking photographs of his children in their bedroom. In my view, the young age of the children, his role as their father, and the wholly natural behaviour involved constitutes a lawful excuse.
[74] The voyeurism provisions of the Criminal Code were not enacted to prevent parents from taking photographs of sleeping children. Parents are expected to enter their young children’s bedrooms and do so all the time. There is nothing whatsoever wrong with that. It is normal, responsible parenting. It is not surreptitious. It is not a violation of the child’s sexual integrity or expectation of privacy. It is normal conduct engaged in by parents from the beginning of time and, hopefully, forever into the future. Further, there is also absolutely nothing wrong with parents taking photographs of their children in this manner, provided it is not in the context of some illegal act (such as for a sexual purpose). For the Crown to seek to criminalize or label as “voyeuristic” such innocent and commonplace activity by a parent in relation to his own children is, in my view, extremely unfortunate and not in the interests of justice. The conduct alleged here meets none of the requirements of the offence charged. I find GM not guilty of this offence.
MOLLOY J.
Released: October 17, 2024
COURT FILE NO.: CR-23-50000247-0000
DATE: 20241017
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
GM
Defendant
REASONS FOR JUDGMENT
Molloy J.
Released: October 17, 2024
[^1]: R. v. W. (D.), [1991] 1 S.C.R. 742 [W.(D.)], 1991 93 (SCC).
[^2]: R. v. S. (W.D.), [1994] 3 S.C.R. 521, at p. 533, 1994 76 (SCC).
[^3]: R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at para. 8.
[^4]: R. v. F.(C.C.), [1997] 3 S.C.R. 1183, at para. 47, 1997 306 (SCC).
[^5]: R. v. B.(G.), [1990] 2 S.C.R. 30, at pp. 54-55, 1990 7308 (SCC); R. v. W.(R.), [1992] 2 S.C.R. 122, at pp. 133-134, 1992 56 (SCC).
[^6]: R.S.C. 1985, c. C-46, s. 162(1).
[^7]: R. v. Downes, 2023 SCC 6, 479 D.L.R. (4th) 579 [Downes].
[^8]: Ibid, at para. 23.
[^9]: Ibid, at para. 39.
[^10]: R. v. Jarvis, 2019 SCC 10, [2019] 1 S.C.R. 488 [Jarvis].
[^11]: Ibid, at para. 2.
[^12]: Ibid, at para. 24, citing Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21, 1998 837 (SCC), and E. Dreidger, Construction of Statutes (2nd ed. 1983), at p. 87.
[^13]: Jarvis, supra note 10, at paras. 48-53
[^14]: Ibid, at para. 49.
[^15]: Merriam Webster (online version) sub verbo “surreptitious”.
[^17]: Oxford Languages (online) sub verbo “surreptitious”.
[^18]: Collins Dictionary (online) sub verbo “surreptitious”.
[^19]: Bryan A. Garner, Black’s Law Dictionary, 12th ed. (USA: Thomson Reuters, 2024) sub verbo “surreptitious”.
[^20]: Jarvis, supra note 10, at para. 28.
[^21]: Ibid, at para. 29.