R. v. Schmid, 2024 ONSC 5572
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
Adrian Blair Schmid
Accused
Aquilas Kapend for the Crown
Bruce Engel for the Accused
HEARD: September 11- 13, 16 – 20, 23 – 27, and October 10, 2024
Restriction on Publication
Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding under subsection 486.4(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46, directing that the identity of the victims or witnesses and any information that could disclose such identity shall not be published in any document or broadcast or transmitted in any way. Any breach of this Order may result in criminal charges.
REASONS FOR DECISION
Roger J.
1The accused, Adrian Blair Schmid, is charged with five counts of sexual abuse against two young complainants, N.M. and T.C., over the period from January 2020 to June 2022, and three counts of child pornography.
2The allegations are that the accused befriended the complainants and their parents and gained their trust for the children to attend overnight stays at his residence. It is alleged that he groomed the children to normalize various sexual behaviours and his sexual assaults on the children.
3The allegations are many and serious. They include instances of touching a child’s penis, masturbation, fellatio, and anal penetration. The allegations also involve pornographic images of two known children, N.M. and J., and countless other pictures of unknown children, some engaged in various sexual acts including masturbation, fellatio, and anal penetration.
4The accused testified and denied all allegations. He denies the allegations of the two young complainants, and he maintains that the pornographic images found on his electronic devices are not his.
5The evidence may be considered count to count as the Crown successfully brought a similar fact application. Also, identification, authentication, and continuity of the seized evidence were admitted, as were the facts relating to the execution of the search warrant.
Background
6The indictment relates to three young complainants, N.M., T.C., and J. The complainants were between 13 and 15, and 9 and 10 at the time. The indictment also relates to unknown children, those visible on the many child pornography images.
7N.M. was born in 2006. He met the accused through his involvement in the Air Cadets program that he joined when he was about 12. It is not disputed that N.M. frequently stayed overnight at the accused’s residence.
8T.C. was born in 2012. He met the accused while visiting his sister at his sister’s adoptive family, which is related to N.M.’s family. T.C. also occasionally stayed overnight at the accused’s residence. The accused testified he considered adopting T.C.
9J. is N.M.’s younger brother. J. was born in 2012. The accused was his godfather. It is not disputed that J. also occasionally stayed overnight at the accused’s home, sometimes with and sometimes without N.M.
10The accused was born in 1975. He worked for an insurance company and was an officer, a captain, in the Air Cadets program. Through his involvement in that program, the accused met N.M.’s and J.’s parents (“the parents”) and became friends with them. The parents described the accused as a “good friend”. The father of N.M and J. (“the father”) considered the accused as a “best friend” at the time of the alleged incidents. The accused agreed that they were “close friends”.
11The accused lived alone, and the parents included the accused in their family. The accused was part of their COVID-19 bubble. They had him over to their house and to their trailer for dinners, and sometimes, overnight as their friendship progressed. Eventually, the accused was considered an uncle to their children, and became the godfather of one of their children, J. Both parents testified that the accused was a nice person and they trusted him. The father did free renovations at the accused’s home, and N.M. regularly came over to help, after staying overnight, as did J, on occasion.
12It is not disputed that N.M. often stayed overnight at the accused’s home during the period covered in the indictment—from January 2020 to about June 2022. N.M.’s and J.’s mother (“the mother”) testified that N.M. slept over at the accused’s home almost every weekend starting in about October 2020. She said that J. also liked to stay overnight at the accused’s home, that he liked the attention he received from the accused.
13N.M. testified the accused touched his penis and his buttocks, asked him to undress and be naked around the house. He said the accused asked him to masturbate in his presence and engage in mutual masturbation, fellatio, and anal intercourse. He testified he was also encouraged to use a blue dildo in his anus and a black vibrating sex toy as directed by the accused, to watch men and boy porn with the accused, and was repeatedly told that the accused was “teaching him”. N.M. also testified the accused counselled or invited him to have sexual contact with him and with T.C.
14The father helped the accused with his home renovations, starting in the spring of 2020. The accused agreed that N.M. came over with his father and helped as well, as did J. on occasion. N.M. stayed overnight at the accused’s home to watch movies and be more easily ready the next morning to continue assisting his father with the ongoing renovations. On such occasions, the accused testified that he and N.M. had dinner, watched a movie, and eventually that each separately went to bed.
15The accused testified that nothing inappropriate occurred on the many occasions that N.M. stayed overnight. The accused agreed that on one occasion, N.M. undressed in the presence of T.C., but the accused said that he immediately asked N.M. to get dressed, which he said N.M. did. The accused also testified that on one occasion, N.M. sent him a picture of himself naked while seated on a toilet. The accused said that he told N.M. not to do this again and to delete that message. Three images of a boy’s penis while seated on a toilet were found to have been deleted from the accused’s phone. No child pornography images were found on N.M.’s phone.
16With regards to N.M.’s allegations that the accused threatened him not to tell what was occurring at his home, the accused testified that early on, he did tell N.M. to be careful while N.M. was replacing the blades of a box cutter. He said that he might have told N.M., in that context, to be careful or he might regret it. He said that he never threatened N.M. not to tell anyone as N.M. alleges.
17The accused agreed that he told N.M. that he was teaching him but said that it was in the context of his Air Cadets aviation test. He also testified that he never instructed N.M. to delete their text messages as N.M. alleges.
18With regards to T.C., the accused agreed that he considered adopting a child. He discussed this with the mother, who mentioned that they were aware of a young boy for whom adoption might be an option. This is how he met T.C. T.C.’s father testified that T.C. was then a difficult boy to manage, they considered giving T.C. up for adoption. He said that some respite time while T.C. was with the accused was welcomed as the accused was helping, including with the boy’s schoolwork. As a result, T.C. started going to the accused’s residence, and occasionally stayed overnight.
19T.C. testified the accused touched his penis with his hand, that the accused and N.M. asked T.C. to pull down his pants, that they measured his penis, that the accused pulled down T.C.’s pants, touched his penis and “did something that was probably sex related” “asking him if he was ready to have sex”, that N.M. touched his penis, and that the accused touched his penis “trying to see if I was ready to have kids or not”. T.C.’s allegations also include that the accused counselled or invited T.C. to have sexual contact with the accused and with N.M., and N.M. described instances of sexual contact that N.M. had with T.C.
20The accused admitted that T.C. stayed overnight at the accused’s starting in February 2022, and subsequently on about 20 to 25 occasions. The accused testified that nothing inappropriate occurred with T.C. except for N.M. once undressing in T.C.’s presence, as described above.
21The allegations involving J. relate to naked images of J. found on the accused’s phone. The police recovered from the accused’s cellular telephone, text messages with N.M. and, among many legal images on his phone, they recovered 237 thumbnail images of J. naked in the accused’s shower. These were from 38 original images of J. naked in the accused’s shower. The focus of most of these original images is on J.’s genital area. In most of these images, J.’s penis is visible, and in some, his face is not visible. These images were deleted at some unknown date and were found in the glide cache, a storage site where images can be found even after they have been deleted and are no longer available to the user. The detective who testified about this explained that if these 237 images were from a video taken of J. in the shower, as the accused testified, he would have expected to find only one unique image, not the 38 unique images that were found.
22The Crown did not call J. to testify. The accused testified that J. asked him to take a video of himself in the shower blowing bubbles. The accused agreed and explained in-chief that when he was filming, he was focused on the bubbles and not always on what his phone was filming. He also said during his examination-in-chief that at some points, he had to adjust the water temperature of the shower and that his cat knocked his arm, both of which moved the focus of his phone. He said that he told the mother about this and, as she recommended, deleted this video. The mother remembered a conversation with the accused when he told her that at J.’s request, the accused had taken a video of J. in the shower while J. was singing. J. does not appear to be singing in the images, but in some, he is blowing a bubble. The mother remembered telling the accused to delete this video as it could be considered as child pornography. She did not mention J. being behind a towel while this was being filmed by the accused, as the accused said was the case during part of his cross-examination.
23The police also recovered, on the accused’s cellular telephone, three images of a young teenage boy seated on a toilet with his penis visible. This photo appears to have been taken from an above angle, as if by the young boy taking a photo of his penis while seated on the toilet. As well, the police also found ten images of N.M. on the accused’s phone that were taken at N.M.’s home. In these images, N.M. is seated on a chair with only his face and bare chest visible. The Crown did not question N.M. about these photos. During his examination-in-chief, N.M. said that he was not aware of the accused having any nude picture of him, and during his cross-examination, he denied sending a nude picture of himself while on the toilet. This is similar to what he had said in the police video statement, that he was not aware that the accused took any nude picture of him and did not remember being uncomfortable about any photo that the accused took of him.
24The police searched another cellular telephone of the accused. They recovered from that telephone text messages with N.M. and 22 images which at some unknown time had been saved on his phone. Although also deleted at some unknown time, these images were still present and recoverable as cache file images. They were images of unknown naked boys, between the age of about 5 to 14 years old, in sexualized poses, including some depicting anal or oral penile penetration by a boy of about the same age, with the focus of the images being on the genital and anal region of the boys.
25The accused testified that the above was his older phone, which he was no longer using. He said that it was downstairs on the coffee table and was not password protected. He testified that he does not know how these images happen to be on this phone, that he did not put them there. He said that J. occasionally used this phone to play games, implying that it might have been J who put these images on this phone.
26The hard drive of the accused’s computer was also searched. Of the thousands of legal images on this device, three were of naked boys. One is a close-up of a child’s penis, the other is of a child’s penis held by a hand and stretched out against a white measuring tape, and the third is of a shirtless teenage boy, about 14 years old, leaning against a young woman with her bare breasts visible.
27The accused agreed that the above was his computer and testified that he cannot say how these images got onto his hard drive. He said that his computer was not password protected and that the boys, N.M., J., and T.C., had access to his computer and were not always supervised.
28The police also recovered 11,144 images and 148 videos of mostly young naked boys on a distinctive looking yellow and white USB key which was found inserted in the USB port of the accused’s computer. These were mostly of naked young boys, some between 6 to 8 years old, and others about 14 to 16 years old. They include images of masturbation, showing a boy masturbating or boys masturbating each other, as well as images of anal and oral penile penetration of young boys by other young boys, and of digital penetration of a young boy’s anus. These images had been deleted at some unknown date. One of the recovered deleted videos involved ejaculation on a child’s face, another was of young boys masturbating, another of young boys performing fellatio on other young boys, and another of young boys performing anal sex on other young boys. One of the sample videos involved a 6- to 8-year-old girl performing fellatio.
29The accused testified that he found this USB key outside his previous apartment in 2009 or 2010. To find its owner, he looked at four images and saw that they were child pornography. He said that he then deleted all the images and started using this USB key to save work and Air Cadets documents.
30The police also searched N.M.’s cellular telephone and recovered some text messages with the accused. They did not recover any child pornography on N.M.’s cellular telephone.
31The police also found computer searches about young naked boys on some of the accused’s electronic devices. During his examination-in-chief, the accused admitted that he conducted these searches and used such words to find sites that guaranteed that their models were 19- to 25-years-old males, yet “who looked younger”, implicitly admitting a sexual attraction to young looking boys.
32In May 2022, T.C. disclosed instances of sexual abuse by the accused to a school counsellor and to his parents, after which the police became involved and started their investigation.
33The mother testified that on May 26, 2022, she heard that T.C. was accusing the accused of touching him. At the time, she was not aware of N.M.’s allegations and did not believe T.C. She texted the accused to warn him. The accused agreed that towards the end of May 2022 or very early June 2022, the mother or her sister-in-law told him that T.C. had made allegations against him.
34On June 2, 2022, the parents were contacted by the investigating detective and informed that the accused was under investigation for allegations involving N.M., J., and T.C. The parents were also then informed that some of T.C.’s complaints involved N.M. inappropriately touching T.C. Later that evening, N.M. told his parents, for the first time, that the accused had touched him. As T.C.’s allegations also involved N.M. touching T.C., the parents contacted a lawyer on June 3, 2022. They consulted this lawyer with N.M. on June 6, 2022. With the assistance of his grandmother, N.M. wrote a statement on the evening of June 6, 2022, and the family attended the police station on June 7, 2022, when N.M. was interviewed.
35The accused was arrested, and his home was searched on June 14, 2022. His electronic devices were searched, and two sex toys found in his home were sent for DNA analysis. A blue and a dark dildo were found to have (or stated more precisely, it could not be scientifically excluded that they contained) the DNA of the accused and of N.M. on them.
Issues
36The ultimate issues in this case are whether the Crown has proven beyond a reasonable doubt that the accused committed the offences charged.
General Principles
37Accused persons are presumed innocent and the burden of proving their guilt beyond a reasonable doubt is always on the Crown.
38Proof beyond a reasonable doubt is a doubt based on reason and common sense that logically arises from the evidence or from the absence of evidence. A reasonable doubt is not far-fetched or frivolous; it does not involve proof to an absolute certainty or proof beyond any doubt.
39To be convinced beyond a reasonable doubt means to be certain that an offence has been made out. A finding of not guilty is required where the evidence only manages to prove that an offence probably or likely occurred.
40A finding of guilt beyond a reasonable doubt may arise from circumstantial evidence where the accused’s guilt is the only reasonable conclusion available on the totality of the evidence: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55. However, the circumstantial evidence does not have to totally exclude other conceivable inferences and a verdict is not unreasonable simply because “the alternatives do not raise a doubt”; it is “for the trier of fact to decide if any proposed alternative way of looking at the case is reasonable enough to raise a doubt”: Villaroman, at para. 56.
41The assessment of the credibility and reliability of the witnesses’ evidence is important. Credibility relates to a witness’s veracity, whereas reliability concerns the accuracy of the witness’s testimony.
42A judge can believe or disbelieve a witness, but still be left with a reasonable doubt considering all the evidence. When considering the testimony of a witness, a judge can accept all, some, or none of a witness’s testimony. If the evidence does not convince the judge beyond a reasonable doubt that the accused committed the offence, the accused must be acquitted.
43A judge must be sensitive that “children may experience the world differently from adults, [and] it is hardly surprising that details important to adults, like time and place, may be missing from their recollection”: R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at p. 133. A common-sense approach should be adopted when dealing with the testimony of children as “children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it”: W. (R.), at p. 133.
44The credibility and reliability of every witness must be carefully assessed. In assessing the evidence of a child, it is important for the judge to consider the witness’s mental stage and intellectual level, comprehension, and ability to articulate his or her recollection, while at the same time maintaining the same standard of proof.
45The Supreme Court of Canada provides seminal instructions with respect to the analysis of reasonable doubt when an accused testifies in R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, at p. 758. Those instructions can be paraphrased as follows:
a) In the context of all the evidence, consider whether you believe the accused. If you do, you must acquit.
b) If you disbelieve the accused, consider whether his evidence, in the context of all the evidence, nonetheless leaves you with a reasonable doubt about the guilt of the accused. If it does, you must acquit.
c) Even if you disbelieve the evidence of the accused, and even if you are not left with a reasonable doubt based on the accused’s evidence, this does not mean that the Crown has proven its case. If the accused’s evidence does not leave you with a reasonable doubt, you must determine whether the totality of the evidence has proven the accused’s guilt beyond a reasonable doubt—whether, on all the evidence, the Crown has proven each element of the offences charged beyond a reasonable doubt.
46For a conviction of sexual interference contrary to s. 151 of the Criminal Code, R.S.C. 1985, c. C-46 (“the Code”), the Crown must prove beyond a reasonable doubt that the accused intentionally touched (i.e., intentionally physically contacted) any part of the body of a complainant who was under the age of 16 years, directly or indirectly, with a part of the body or with an object for a sexual purpose: R. v. Clement, 2023 ONCA 271, at para. 20; R. v. R.V., 2019 ONCA 664, 147 O.R. (3d) 657, at para. 19. The accused must intend to touch the complainant for a sexual purpose, and the Crown must prove that the accused knew or was reckless about the fact that the complainant was under 16.
47For a conviction of invitation to sexual touching contrary to s. 152 of the Code, the Crown must prove beyond a reasonable doubt that the accused invited, counselled, or incited a complainant who was under the age of 16 years to touch the body of any person, directly or indirectly, for a sexual purpose: R. v. Carbone, 2020 ONCA 394, 150 O.R. (3d) 758, at paras. 59-61; R.V., at para. 20. The accused must intend that the touching be for a sexual purpose and be aware that the person counselled or invited to touch is under 16, or, stated differently, the accused must knowingly communicate with a person under the age of 16 in a prohibited way. However, it is not necessary for the Crown to prove that the young complainant actually touched someone. It is enough if the accused said something to a young complainant that amounts to an invitation to touch the body of any person for a sexual purpose: Carbone, at paras. 61-62.
48For a conviction of making sexually explicit material available to a child contrary to s. 171.1 of the Code, the Crown must prove beyond a reasonable doubt that the accused made available sexually explicit material to a complainant who was, or who the accused believed was, under the age of 16 years, for the purpose of facilitating the commission of sexual interference or invitation to sexual touching.
49For a conviction of making child pornography contrary to s. 163.1(2) of the Code, the Crown must prove beyond a reasonable doubt that the accused created an instance of child pornography, as defined in the Code, that is new or different from already existing instances of child pornography: R. v. Bowers, 2022 ONCA 852, at para. 24; and R. v. A.H., 2023 ONSC 2005, at para. 73. The created instance of child pornography must be in a tangible format: R. v. McSween, 2020 ONCA 343, at para. 43. The accused must intend to create the material knowing it depicts child pornography.
50For a conviction of possessing child pornography contrary to s. 163.1(4) of the Code, the Crown must prove beyond a reasonable doubt that the accused had both control over the child pornographic images and videos, and knowledge of the images and videos, including knowledge of the criminal character of the images and videos: R. v. M.N., 2017 ONCA 434, at para. 12; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 15; and R. v. Winter, 2015 ONCA 150, at paras. 12-14. As indicated in Morelli, possession of an image in a computer means possession of the underlying data file in some way that constitutes control, not its mere visual depiction. The viewer must have control of the data to possess it. Simply viewing child pornography images online, over which the viewer has no control, is not possession but rather the separate crime of accessing child pornography. To establish possession of child pornography images found in the cache file of a computer, telephone, or other electronic devide, it must be showed that the file was knowingly stored and retained though the cache as “the automatic caching of a file to the hard drive does not, without more, constitute possession”: at para. 36. This is because the automatic caching does not establish the mental or fault element essential to finding possession: that the accused knowingly used the cache as a location “to store copies of image files with the intent to retain possession of them through the cache”: at para. 37. The accused must have both custody of the materials and knowledge of its nature.
51For a conviction of accessing child pornography contrary to s. 163.1(4.1) of the Code, the Crown must prove beyond a reasonable doubt that the accused knowingly caused child pornography to be viewed by, or transmitted to, himself or herself: Criminal Code, s. 164.1(4.2); Morelli, at paras. 25-26. The accused must intend to view the child pornography or transmit the child pornography to himself or herself.
Analysis
52The defence argued, during closing submissions, that the accused answered questions fairly and to the best of his abilities. That although the circumstances are suspicious, the accused’s evidence should leave the court with a reasonable doubt. I disagree.
53I find that the accused’s evidence did not make sense and that the accused was occasionally evasive. In the context of all the evidence, I do not believe the accused’s exculpatory evidence. Further, his evidence does not leave me with a reasonable doubt about the charged offences. I explain why I make these findings below.
54The accused was not believable, and his evidence did not leave me with a reasonable doubt about the charged offences because the accused’s versions of events and explanations do not make sense. Many of his explanations defy logic and common sense, and some gave the impression that they were concocted by the accused as he testified, in an unconvincing attempt to explain the evidence. Moreover, the accused remembered details that he would have had no reason to remember, and remembered precise facts which would be impossible to remember. All of this undermined his credibility, such that I found the accused not to be a credible witness.
55Significant aspects of the evidence corroborate many of the complainants’ allegations. For example, there are inappropriate text messages between the accused and N.M. that are highly suggestive of an inappropriate relationship between them. There are text messages between the accused and the parents of the boys, or evidence, which support N.M.’s and T.C.’s version of occasionally not wanting to go to the accused’s home, and of the accused applying subtle pressure on the boys’ parents. There are computer searches conducted by the accused and the title of some electronic documents found on some of his electronic devices, including “12yo erect boy”, “young nude boy”, “young teen gay nude”, and “naturalist young boys” which could corroborate the child pornography images. Also, in his police statement, N.M. described sex toys that he said were used on him, and similar sex toys were found at the accused’s residence with DNA evidence of N.M. found on each of the accused’s two sex toys. As well, N.M. told the police that he was made to watch pornography, and pornography was found at the accused’s home and child pornographic images were found on four of the accused’s electronic devices, some not dissimilar to some of the young complainants’ allegations. The accused addressed this evidence during his testimony and his explanations defy logic and common sense. Here are some examples.
56On October 16, 2021, the accused texted N.M. “Ate u [sic] home alone?” N.M. immediately replied, “Yes I am”, to which the accused responded, “Have you tried anything that we discussed at the trailer?” N.M. replied, “Yes but I think I not doing it right. Because I don’t feel anything”, to which the accused responded, “How far are you going in?” N.M. replied, “Half a marker”, to which the accused responded, “Try going almost all the way in. Go slow and you should feel a second set of muscles. Push past those and angled towards your stomach. You could also use your middle finger.” N.M. replied, “Ok”, and later during the same exchange added, “and there is sometimes some poo in it”, to which the accused replied, “Ah, I’ll have to get you a kit to wash your insides. If you’d like that is.”, and moments later, the accused asked, “Did you want to come over next Saturday after I get home?”
57During his examination-in-chief, the accused said that he did not remember sending the above first two texts, implying that the first text “Ate u [sic] home alone?” contained uncharacteristic typos and might have been sent by someone using his phone. The latter would have been highly unlikely considering that not more than about three minutes separated his first and admitted third texts. In any event, during his cross-examination, the accused contradicted himself and admitted also sending the first two texts.
58In-chief, the accused explained that at the parent’s trailer, N.M., the father, and himself had a frank discussion about why people enjoy having “a penis inserted up their anus”. He explained that his texts were about prostate stimulation, which they discussed in the father’s presence at the trailer. He said that he sent these texts to share information for N.M. to make better informed decisions.
59During his cross-examination, the accused was asked why he initially inquired whether N.M. was home alone. It was put to him that he wanted to make sure that N.M. was alone before discussing such a topic. He denied this and said that it was not his intention to inquire about this topic when he initially asked N.M. whether he was home alone. This explanation does not make sense considering the accused’s subsequent text messages and the tight timing of these messages. Indeed, one minute after his first text asking N.M if he was alone and 30 seconds after N.M. answered that he was alone, the accused asked, “Have you tried anything that we discussed at the trailer?” From this question, I fail to see how it was not his intention to inquire about this topic. The accused also said that although they had discussed this in the presence of the father, he did not think that N.M. was “going to do that”. Again, this explanation does not make sense because it is contradicted by the accused’s text asking N.M. whether he tried what they discussed at the trailer.
60Further, the accused explained that he was not shocked that N.M. had inserted a marker up his anus “because I just wasn’t, it’s not my nature to be excited about that, I thought he was using his hand”. He denied that he was coaching N.M., explaining that he was simply curious whether N.M. had tried what they had discussed. He said that he simply wanted to ensure that N.M. was doing it right by providing N.M. more information about it. The accused found nothing inappropriate about having such a conversation with 15-year-old N.M. because N.M. was “more comfortable discussing this with me than with his parents”, and because of the special “nephew”-like relationship the accused enjoyed with N.M. and with the family.
61The above explanations were not put to the father by the defence during the father’s cross-examination, despite them implicitly contradicting the father’s evidence who did not mention participating in such a conversation with N.M. and the accused, nor giving permission to the accused to discuss such a topic with N.M. Moreover, despite his stated concerns about N.M., the accused never communicated this text message exchange, or any of the other inappropriate text message exchanges that he had with N.M., to the parents—the accused’s admitted close friends. In this context, failing to advise the parents does not make sense, even more so if the accused’s explanation is accepted that he was concerned about N.M. Another example is the following.
62Shortly after, on November 5, 2021, the accused texted N.M. asking, “Why dors [sic] J. [N.M.’s younger brother] know about the toy for your butt?” and “He also said you showed him a G string”.
63During his examination-in-chief, the accused said that he sent this text to N.M. to warn him that his brother had seen him because he was concerned that N.M. should not be intentionally doing this in front of his younger brother. However, the accused contradicted himself during his cross-examination when he said that J. had told him that he had seen this through a hole in the bathroom wall.
64Further, during his cross-examination, the accused denied that this text was directed at finding out whether N.M. had talked about what was occurring at the accused’s home. He said that he was simply asking a question to find out if J. was telling the truth. However, it is telling that in these text messages the accused does not ask N.M. whether he did this, but rather he asks, “Why dors [sic] J. know about the toy for your butt?” (Emphasis added). It is also telling that if the accused was concerned about N.M. intentionally doing this in front of his younger brother, whether or not J. was lying about this, the accused did not communicate any of his concerns arising from this information to the parents.
65Furthermore, as indicated above, during his cross-examination, the accused said, for the first time, that J. had said that he had seen N.M. using a sex toy through a hole in the bathroom wall. However, this contradicts his evidence in-chief about writing these texts out of concern that N.M. was intentionally showing his younger brother. Moreover, in the text exchange the accused replied, “I don’t know” to N.M.’s asking how J. had seen this, which also contradicts the accused’s testimony that J. had told him that he had seen this through a hole in the wall.
66Another example of an explanation that defies logic is the following. On May 12, 2022, the accused sent a late evening text to N.M. enquiring, “We need to come up with a password or phrase so that if you text me like last night, I will know it’s you and not someone using your phone.”
67The accused testified that earlier that evening he received a text from N.M.’s phone asking, “can you make me hard or how to make me hard”. The accused said that he sent the text message asking for a password because, initially, he was not certain whether the “make me hard” text was from N.M. He said that this was out of character for N.M., who would not have sent such a text.
68The accused said that he later concluded that the “make me hard” text was from N.M., that he felt confused, and that he told N.M. that this was inappropriate. He explained that this is why he sent the password text, so that if N.M. sent him another similar text about getting him hard, he would know that it was from N.M. instead of initially thinking that it might have been from either J. or a friend of N.M.’s “goofing off”.
69This explanation does not make sense for several reasons. These include that asking to create a password suggests an intention to secretly pursue such inappropriate conversations which contradicts the accused’s testimony that he told N.M. “No, … this is inappropriate”, or that he wanted to know if the text was from N.M. to “shut it down sooner” if it reoccurred. As well, it defies logic that an “uncle” in the accused’s position, where N.M. frequently stayed overnight at his home, receiving such a text from his 10-year-old godson, J., or from a friend of his 15-year-old nephew would consider such a text as “goofing off”. Further, considering the accused’s longstanding leadership role in the Air Cadets, with its focus on child safety and measures to avoid inappropriate relationships, it defies logic that upon receiving such a text from a 15-year-old boy with whom the accused spent and was still spending significant time alone, the accused’s response would be to suggest that they “come up with a password or phrase so that if you text me like last night I will know it’s you and not someone using your phone”, rather than, considering how concerning this should have been, bringing this to the attention of his friends, N.M.’s parents.
70Contrary to what was argued by the defence during the accused’s closing submissions, these text messages are not irrelevant distractions, but cogent corroborating evidence of the complainants’ allegations.
71As well, the accused’s explanations about the child pornography images found on his yellow and white USB key are also unbelievable. As indicated earlier, the accused said that in 2009 or 2010, he found the yellow and white USB key, which contained a significant amount of child pornography material, in the hallway of his previous apartment building.
72It seems an unlikely coincidence that similar illegal child pornography material was also found on three of the accused’s other electronic devices. Further, accepting his version of events, knowing that the yellow and white USB key contained deleted illegal child pornography material, it defies logic and common sense that the accused, who testified that he did not trust the police, despite his long-standing military connections, assumed that the images were gone and decided that it was safe to keep this USB key to store documents. It also seems an unlikely coincidence that this same USB key was still in the accused’s possession about 12 years later when the search warrant of his premises was executed on June 14, 2022, and, even more so, that it was found connected to a USB port on the accused’s computer (as shown by a photo taken by the police during the execution of the search warrant).
73As indicated above, a forensic search of this USB key revealed that it contained 11,144 deleted child pornography images and 148 deleted child pornography videos. These images are of nude young boys, some as young as 6 to 8 years old, and other teenagers, performing manual stimulation of each other, oral penetration, anal digital penetration, and anal penile penetration, and single subject nudity with a focus on the boys’ genital or anal region, bearing some similarity to some of the complainants’ allegations.
74As well, the accused was a civilian officer with the Air Cadets and a board member of the co-op where he resided when he said he found the yellow and white USB key, back in 2009 or 2010. Yet, knowing that someone who frequented their building had child pornography material on a USB key, involving what he admitted were vulnerable children, the accused did not report this to the board of his building, to his military leadership, or to the police. Instead, if his explanation is accepted, he deleted its known criminal child pornography content and assumed that it was gone, possibly destroying evidence of countless serious crimes, and took no steps to attempt to protect these vulnerable children. This explanation defies logic and common sense considering the accused’s longstanding military connection and leadership role in the Air Cadets, a youth program for young people 12- to 18-years-old, where safety is paramount.
75Further, when explaining why he had naked images of J. on his cellular telephone, the accused contradicted himself and some of his explanations were contrived. During his testimony in-chief the accused’s explanations about why the focus of many of the naked images of J. were on J.’s penis were contrived, bordering on fanciful. Moreover, during parts of his cross-examination, the accused contradicted his evidence in-chief about this when he said that J. was behind a towel, and when he said that he did not know how these images came to be on his phone, that he did not take them, implying that maybe one of the children did. His evidence about this does not make sense.
76In-chief, and seemingly for a moment at the start of his cross-examination on this topic, the accused testified that as he filmed J. making bubbles in the shower, he did not pay attention to his phone, had to adjust the water, and said that his cat bumped his arm—all of which he said impacted where his phone focused. This is not believable and is fanciful when you consider that the focus of many of these images is on the area of J.’s penis. Further, the accused said that he deleted this video before he had the opportunity to view it. This is contradicted by the detective’s evidence who testified that these images had been accessed on the accused’s device.
77Finally, examples of the accused unconvincingly purporting to remember unimportant details include his explanation of the first alleged incident of sexual assault on N.M. Although there is no known precise date of when this incident occurred and although the accused described a normal evening during which nothing out of the ordinary occurred, the accused remembered that during this evening, over four years ago, he innocently slapped N.M.’s knee using his left hand to “get him to go get some supper”. He also remembered what they had for dinner and what movie they watched. Similarly, for the third alleged incident on N.M., for which there is also no known precise date, I find the accused’s detailed recollection of that evening disingenuous and unbelievable.
78Another example of the accused’s incredible memory is when, during his cross-examination, the accused remembered and described, in viewing order, the four child pornography images that he said he looked at, back in 2009 or 2010, when he alleges that after finding the yellow and white USB key in the hallway of his apartment building, and noticing its illegal child pornography content while looking for its owner, he decided to delete its illegal content and keep the USB key to save documents. His stated sequential recall of these images I also find not believable.
79The accused’s evidence defies logic and common sense. I do not believe it. It does not leave me with a reasonable doubt.
80Next, I consider whether the Crown has proven its case. That is, whether, on all the evidence, the Crown has proven each element of the offences charged beyond a reasonable doubt.
81The Crown presented a strong case. This includes the complainants, N.M. and T.C., who were credible and reliable witnesses. As well, this includes the parents, N.M.’s grandmother, and T.C.’s father, who were also credible and reliable. In fact, all witnesses, except for the accused, presented his or her evidence fairly, attempting to answer to the best of their recollection, irrespective of whether the questions were asked by the Crown or by the defence.
82The strong Crown case also includes that some of the complainants’ evidence is corroborated by text messages, computer searches, sex toys, DNA evidence, and pornographic images. As well, some of the allegations of the two complainants corroborate some of the allegations of the other, and one of the two complainants, N.M., witnessed, participated, and described some of what happened to T.C. (in a context where collusion is not alleged by the accused, and, in any event, where there is no evidence of collusion impacting the reliability of the evidence).
83The strong Crown case also includes child pornography images found on four of the accused’s electronic devices, which also corroborates N.M.’s narrative that he was made to watch pornography, and strong forensic evidence by three witnesses who testified candidly.
84Consequently, when I consider the evidence, I find that the Crown has proven each element of the offences charged beyond a reasonable doubt.
85The defence argued that N.M. is not a reliable witness because he only remembered a handful of events (despite telling the police that he was assaulted on more than 40 occasions), because he did not remember much context or remembered little about the facts surrounding the alleged assaults, and because of inconsistencies in his evidence. The defence also argued that N.M. made up his allegations, including what N.M. said he did to T.C. at the urging of the accused, to shield himself from the allegations made against him by T.C.
86For the reasons that follow, I do not agree.
87N.M. was 13 to 15 years old when the alleged events occurred, over two years ago. He was almost 16 during the police video statement and was 18 when he testified in this trial in September 2024. His parents and grandmother testified that N.M. has learning difficulties, and N.M. appeared younger than his age during his testimony. N.M. was nervous and testifying appeared difficult for him. Nonetheless, N.M. testified calmly, candidly, and fairly, irrespective of which lawyer was asking him questions. He was cross-examined extensively yet did not contradict the core of his evidence.
88Further, N.M. described a routine of being frequently and regularly sexually assaulted by the accused. He described the accused and himself often being naked at the accused’s home, and testified that there were multiple instances of masturbation, fellatio, and anal sex. It is not surprising that N.M. could not describe sequentially and precisely what happened to him.
89N.M. described how it started. He said that he felt unsure, nervous, and that he was “scarred and not scarred”. He described the lubricant that he said was occasionally used during masturbation and anal sex, and described the sex toys that he alleges he used at the accused’s direction. He described with varying detail some of the alleged instances of sexual abuse. Further, during his examination-in-chief, N.M. described how the accused occasionally made him watch porn involving men and boys having sex.
90N.M. said that the sexual assaults started after his third overnight stay at the accused’s, at the start of COVID-19, when N.M. and his father were doing renovations at the accused’s home. This timeframe coincides with the mother’s evidence, and all witnesses agreed that N.M. regularly stayed overnight at the accused’s home starting about that time until May 2022. The parents were fine with this and saw the accused as a mentor to the boys. The mother understood that the accused, who lived alone, always wanted to have children, and was thinking of adopting or fostering a child. The parents testified that they trusted the accused.
91N.M. remembered the first time that he was sexually assaulted. He testified that it was after dinner. He was seated on the couch with the accused seated beside him. He said that the accused put his hand on N.M.’s lap and started rubbing. That the accused moved his hand to rub N.M.’s groin area. He testified that the accused slowly went inside N.M.’s pants and rubbed his penis over and under his clothing. He did not remember how long this lasted until the accused stopped. They went to bed and nothing else happened on that occasion.
92N.M. did not remember at what time the first assault occurred, nor how long he and his father worked on the ongoing renovations at the accused’s earlier that day. He did not remember if his father stayed for dinner, what they had for dinner, or how long dinner lasted. He did not remember on what side of the couch the accused was seated, what hand the accused used to touch him, whether the accused said anything as he touched him, or how long the sexual assault lasted. But these are details that most would not remember, and N.M. testified that he was in shock and has since made efforts to try and forget what happened to him.
93Nonetheless, N.M. remembered the first occasion when the accused touched his penis and provided the above description. As well, N.M. provided further details. He testified that the next day, his father returned after breakfast, and that they continued working on the accused’s renovations. That evening, N.M. stayed overnight at the accused’s home again. He could not explain why he stayed nor later why he kept returning. After his father left, N.M. testified that the accused told him not to tell or “something bad will happen”.
94N.M. remembered that he was sexually assaulted again that evening. He did not remember when, or if it happened after dinner. However, he remembered that they were seated on the couch when the accused asked him to undress. N.M. testified that he felt he had no choice. He explained that the accused was an adult and that he does not disobey adults. He was asked “to get naked”, and he “got naked” because “I had no choice”. He testified that the accused asked him to masturbate, and he masturbated. He said that the accused undressed while N.M. masturbated. He testified that the accused touched N.M.’s penis and masturbated him. N.M. did not remember how long this lasted until it stopped. Then he said the accused asked him to masturbate the accused, and he testified that he did.
95N.M. had difficulty remembering and describing the third occasion of sexual abuse. He said that he could not fully remember. He thought that it happened the following weekend but was not certain. He did not remember and could not explain why he returned to the accused’s home. He did not remember what happened before but remembered the accused asking him to “get naked”. He undressed and testified that the accused undressed. The accused asked him to masturbate, and N.M. testified that “the same stuff happened”. The accused also asked him to masturbate the accused, and N.M. did so. He testified that on this occasion, the accused showed him the blue dildo, and told him how to use it. N.M. said that he used the blue dildo on himself, inserting it in his anus, and said that he masturbated the accused. He was not certain but believed that the accused ejaculated on his chest. He ejaculated but did not remember where. Later, during his cross-examination, when answering questions about his statement, N.M. mentioned that the accused used his sex toys on him on more than one occasion.
96N.M. could not remember what happened on the fourth occasion of sexual abuse. He said that he could not remember but that it happened on 20 to 30 occasions.
97However, N.M. remembered that T.C. started to come over. He remembered the accused asking him to “get naked” in front of T.C. This is corroborated in part by T.C. who described N.M. being naked on the couch for about 30 minutes, although T.C. did not observe the accused asking N.M. to undress, only that this happened after the accused mentioned that they would have to take a shower before bed. However, T.C. corroborated that the accused tried to normalize this behaviour, that he said that this was normal. T.C. contradicts the accused who testified that he immediately asked N.M. to dress.
98Moreover, N.M. remembered that he was sexually assaulted by the accused after T.C. went to bed that evening. N.M. said that the accused touched him that evening, that he could not fully remember, but said that he remembered the accused “putting his penis in my butt”. N.M. did not remember the context or what else happened that evening.
99N.M. testified that the following weekend, the accused asked both N.M. and T.C. to undress. He said that T.C. was hesitant but testified they both undressed. N.M. did not remember what happened after on this occasion, and T.C. did not describe a similar instance.
100N.M. remembered that they both went back the following weekend. He said that they undressed after the accused asked them to do so. He testified that the accused asked him for help to measure T.C.’s penis. This is corroborated in part by T.C. who testified that his penis was measured with a soft yellow measuring tape, but T.C. did not remember N.M. being naked. N.M. said that they measured T.C.’s penis with a tailor’s measuring tape that the accused kept in the living room. In his police statement, N.M. said “I think it was red. I’m not sure”. During his cross-examination, he said that it was red. Two tailor’s measuring tapes were found at the accused. None was red but a white tape with a red string was found, and a yellow tape was also found. In his police statement, N.M. said that the accused thereafter also measured N.M.’s penis but during his cross-examination he said that afterwards, the accused asked him to show T.C. how to masturbate. N.M. did not remember how long he showed T.C. how to masturbate. He said that T.C. eventually went to bed and afterwards, he masturbated the accused and performed fellatio on the accused. He said that the accused ejaculated but he did not remember where.
101The defence argues that N.M. is not reliable because he described a red measuring tape and because of the above contradictions. Regarding the above contradictions, I find that these are explained by the fact that it would be impossible for N.M. and T.C. to remember what happened where similar sexual assaults frequently happened, particularly when each testified that he is trying to forget what happened. This also explains why, during his testimony, N.M. described less instances of sexual assault, and why he might be overstating how often he was assaulted. Regarding the colour of the tape, I find that this is a detail. Moreover, in-chief, N.M. indicated that he was not certain, and a red string was found with a white tape. Moreover, T.C. testified that the tape was yellow, and contrary to the defendant’s closing submissions, a yellow tape was found at the accused’s home (see Exhibit 3 at p. 90138). In any event, and more importantly, two complainants testified that T.C.’s penis was measured, in an evidentiary context where collusion is not alleged or supported by evidence. Consequently, I find that the differences between the complainants’ evidence about when and how T.C.’s penis was measured, the colour of the tailor’s measuring tape that was used, and what happened after, does not detract from the strength of their evidence that this sexual assault happened.
102In his statement and during his police video statement, N.M. said that the accused once asked him to remove his pyjamas and insert his penis in T.C.’s anus. He said that he did this on that one occasion upstairs while the accused read a book to T.C. He said that the accused told T.C. “it’s okay”, told N.M. “to keep on going”, and told T.C. to “masturbate”. During his cross-examination, N.M. did not recall what happened before or what happened after this incident, did not remember what T.C. said, but remembered that T.C. looked at him and that the accused told T.C. “it’s okay”. T.C. did not remember a penis being inserted in his anus and I will address this later in my reasons.
103N.M. also testified that on more than one occasion the accused asked him to take a shower with T.C. while the accused watched, seated on the toilet. As well, that the accused asked him to kiss T.C., which N.M. said he did on about three occasions. N.M. testified that the accused used his sex toys with T.C. Also, during his cross-examination, N.M. said that although he does not remember specifically what happened, or how often, he remembered that there were other instances of inappropriate things occurring with T.C., including T.C. touching N.M. at the accused’s request (which T.C. remembered). I will also address this later in my reasons.
104N.M. testified that he felt bad about what he did to T.C., he felt that it was “disgusting”, and it bothered him. He said that he was scarred and hoped that it would soon end. He could not explain why he kept returning, other than he did not want the accused to think that he had told anyone.
105N.M. testified that at some point his younger brother J. also attended at the accused’s. He explained that he did not discourage J. from attending or tell their parents because the accused had warned him not to tell. He described J. taking a shower before going to bed. In his police video statement, N.M. testified that the accused was never with him when J. was taking a shower. This is corroborated in part by the naked images of J. in the accused’s shower found on the accused’s phone. N.M. also described being sexually assaulted by the accused after J. had been put to bed. During his cross-examination, N.M. remembered one occasion, after J. had taken a shower and gone to bed, when the accused came down and asked N.M. to undress and to masturbate.
106In his police video statement, N.M. said that the accused asked him to masturbate in his presence and to masturbate the accused. He also said that the accused would send him a text asking him to masturbate. As well, in his police statement, N.M. says that he performed fellatio on the accused, and the accused performed fellatio on him, until each ejaculated in the mouth of the other, on about 20 to 30 occasions. He also said in his police statement that he and the accused had anal intercourse on about 20 to 30 occasions, sometimes with or without a condom or lubricant. He said that the accused frequently walked around naked, and that he was asked to walk around naked on about five occasions. Again, I am not surprised that N.M. could not describe each of these instances of sexual assault, and find, considering the evidence, that it would have been impossible for N.M. to remember and describe each instance of sexual assault. Conversely, considering N.M. and his evidence, I am also not surprised by the possibility that N.M. overstates how often he was assaulted.
107I found N.M. to be a credible and reliable witness despite the contradictions and lack of additional detail or added context in his evidence in part because N.M. did not exaggerate his evidence and answered questions fairly during his cross-examination. N.M. said that he was trying to forget what happened and I would have found it unconvincing if N.M. had remembered the level of detail seemingly expected from some of the questions asked during his cross-examination. Considering the evidence, I would have found it implausible if N.M. had been able to describe sequentially more than a few instances of sexual assault, and untenable if he had been able to describe everything that happened to him.
108Further, my assessment of the complainants’ reliability and credibility is also assisted by the evidence which corroborates their respective narratives, and by the Crown’s evidentiary pieces fitting well together. All of this informed my assessment of the complainants’ reliability and credibility and distinguish this case from others where the court arrived at a different conclusion.
109For example, N.M. first mentioned that the accused had sex toys in the written statement of June 6, 2022. In his police statement, on June 7, 2022, N.M. described the accused’s two sex toys as a blue dildo and a black vibrator. He said that they were kept in a drawer in the accused’s bathroom, with the lubricant that they used. Two sex toys matching N.M.’s description and a tube of lubricant were found in a drawer in the accused’s bathroom. Moreover, the presence of N.M.’s DNA could not be excluded from either of these sex toys. N.M. did not remember when lubricant was first used, but he said that it was occasionally used on his penis and anus.
110The defence argues that N.M. could have found these sex toys and touched them, which would explain that N.M. knew where they were, how N.M. could describe them, and the DNA results. Indeed, N.M. was familiar with the accused’s home and obviously knew where these sex toys were. However, contradicting the defence’s submission, N.M. was believable when he described how he, N.M., used the blue dildo on himself as instructed by the accused. Moreover, I find it convincing that N.M.’s narrative about this is corroborated by a text message exchange with the accused during which the accused asked N.M. why his younger brother J. knew about “the toys for your butt?”.
111Importantly, the other two text message exchanges that were found between N.M. and the accused, described above in the analysis of the accused’s evidence, also corroborate N.M.’s and T.C.’s evidence. N.M. testified that the accused asked him to delete their text messages. He said the accused regularly inspected N.M.’s phone for compliance, but N.M. forgot to delete some messages. As indicated above, in one text exchange, the accused asked N.M. whether he tried what they discussed, involving anal penetration, and in the other, he informed N.M. that they need to come up with a password after N.M. texted him “can you make me hard or how to make me hard”. Considering the context of the evidence, the text messages are strong evidence of grooming and of an inappropriate relationship between the accused and N.M. They corroborate the complainants’ allegations.
112Moreover, N.M.’s evidence that he was made to walk around the accused’s home naked is corroborated in part by T.C., and T.C. contradicts the accused’s narrative that the accused immediately asked N.M. to cover himself. I find that such conduct is also evidence of grooming and of the accused’s efforts to normalize abnormal sexual behaviour with the children, as were the viewing of pornographic material with N.M. and the accused’s inappropriate text messages to N.M.
113Additionally, the mother corroborated N.M.’s evidence in-chief that on occasion N.M. did not want to go to the accused’s residence. She testified that when that happened, she would receive a text from the accused that the father might need help and she would ask N.M. to go and help his father, which she said made sense because N.M. was “handy”. The accused sent a similar text aimed at encouraging T.C. attending at his home to T.C.’s mother when T.C. indicated that the did not wish to attend at the accused’s.
114N.M. testified in-chief that he was sexually abused and saw the accused naked on at least 20 or 30 occasions, and that he never observed any tattoo or mark on the accused’s body. The accused denied ever being naked in N.M.’s view and testified he had four scars and a dark mole that were visible on his body. As explained above, I do not believe the accused and his evidence about this does not leave me with a reasonable doubt. Further, if I accept that the accused had some scar or mark on his body, without a photo or something describing how visible any of these might have been in 2020-2022, I find that this statement has no impact on my assessment of N.M.’s reliability because without such evidence, I cannot assess what N.M. allegedly did not notice or remember.
115I now address what I twice indicated would be addressed later in my reasons. N.M. described events involving T.C. that T.C. did not remember or describe, and T.C. described less incidents and described some incidents differently from N.M. For example, N.M. said that at the accused’s request, N.M. inserted his penis into T.C.’s anus once, T.C. was made to walk around the house naked with N.M. on about two occasions, the accused measured N.M.’s penis in T.C.’s presence, the accused asked N.M. to show T.C. how to masturbate, the accused asked N.M. to take a shower with T.C. while the accused watched on about three occasions, the accused asked N.M. to kiss T.C. on about three occasions, and N.M. believes the accused used his sex toys with T.C. T.C. did not remember or describe such events, and T.C. remembered some events differently from N.M.
116I start by pointing out what I mentioned earlier, that when assessing the evidence of a child, it is important for the judge to consider the witness’s mental stage and intellectual level, comprehension, and ability to articulate his or her recollection, while at the same time maintaining the same standard of proof.
117T.C. was 9 years old when the alleged events happened, 10 when he gave his police video statement on June 2, 2022, and 12 when he testified in this trial. N.M. is almost six years older. It was readily apparent that T.C. is a smart young boy. He testified impressively, with a vocabulary exceeding his years. He testified fairly and candidly, irrespective of who was asking him questions. He made efforts to answer questions and demonstrated an above average memory (for example his impressive recall of the accused’s address). T.C. was an excellent witness. Moreover, parts of his evidence are corroborated by other evidence, as indicated above. As a result, subject to what follows, I believe and accept T.C.’s evidence.
118However, although T.C. did his best to answer all questions as best he could, it is clear from his testimony that T.C. did not remember all that happened to him. He testified in-chief that he does not want to remember being touched, and that thinking about this frustrated him, and caused him to misbehave and not be able to focus or think straight. He said that he is doing everything not to remember what happened.
119It was apparent from T.C.’s evidence that he did not remember all that happened to him. For example, T.C. remembered that something sexual happened with the accused in the accused’s bedroom but did not remember what it was. He only remembered that the accused pulled down T.C.’s pants “and basically, did something … sex-related … asking me if I was ready to have that … which would be sex and that made me really uncomfortable”. But T.C. did not remember what the sexual thing the accused did was and did not describe this instance of sexual assault during his cross-examination.
120Other examples where T.C. did not remember all that happened include the following. T.C. said that he wondered if those things were normal, including the inappropriate touching by the accused and N.M., and said that he did not consider the accused a friend “after all the inappropriate things he did to me”. He testified that he “was wondering if those things were normal”, in reference to the accused and N.M. touching him or N.M. asking to be touched. Similarly, he testified that he got angry at N.M. “for stuff and I did not want him to do that stuff to me”. However, during his testimony, T.C. did not mention in what circumstances he got angry at N.M. or what stuff T.C. did not want N.M. to do to him. He also mentioned that the accused did things that he could not remember. He could only remember one or two things and said that both the accused and N.M. would normally just touch his penis unless it was for “sex”, however when questioned about this he answered that “sex” never happened with either of them.
121Contrasting the above and N.M.’s evidence with the fact that T.C. described few instances of sexual abuse during his cross-examination, supports a finding that there were more instances of sexual abuse than those described by T.C. during his testimony because, as per his candid admission, T.C. is doing everything not to remember what happened. This explains why T.C. agreed during his cross-examination that the accused touched his penis once and could not then recall more than about three incidents involving the accused.
122Further, N.M. was older and better understood some of what was occurring at the accused’s home. At the time, T.C. was 9 years old and although very intelligent, it was apparent from his testimony that he was still very much a child, with a more limited understanding of what was occurring.
123As well, N.M.’s evidence describing what he did to T.C., including his evidence and admissions of sexual touching which T.C. did not remember, could be contrary to N.M.’s legal interests. In concert with the corroborating evidence, the fact that parts of N.M.’s testimony could be contrary to his legal interests contradicts the accused’s arguments that N.M., after consulting with a lawyer, made up his allegations as a shield against the T.C.’s allegations. Granted, N.M. testified that he acted at the urging of the accused, but this is evident from the evidentiary context, including from the accused’s grooming and efforts to normalize abnormal sexual behaviour. As well, the defence argument that N.M. made up his allegations as a defence to the T.C.’s allegations is contradicted by the corroborating evidence, including the text messages, and by T.C.’s evidence that he was sexually abused by the accused, by T.C.’s evidence that the accused attempted to normalize such behaviour, and by T.C.’s evidence that the accused repeatedly asked T.C. if he was ready for sex.
124All this gives weight to the conflicting evidence of N.M. and explains T.C.’s evidence.
125Accordingly, I find that the above explains the conflicting evidence between N.M. and T.C., and, consequently, their conflicting evidence does not negatively impact my assessment of their respective credibility and reliability.
126As a result, I believe that what N.M. observed, did, and described regarding T.C. and the accused happened. However, because some of what N.M. observed, did, and described regarding T.C. would have directly involved and impacted T.C. but somehow this was not remembered by T.C., for those instances, I am nonetheless left with a reasonable doubt (for those instances described by N.M. that directly involved and impacted T.C. which T.C. did not remember). These instances include that at the accused’s direction: N.M. inserted his penis into T.C.’s anus once; T.C. was made to walk around the house naked; after measuring T.C.’s penis, N.M. showed T.C. how to masturbate; N.M. and T.C. took showers together; N.M. and T.C. kissed; and the accused used sex toys with T.C.
127On the other hand, for conflicts between N.M. and T.C.’s evidence that relate to N.M. being counselled or invited by the accused to sexually touch and be sexually touched by T.C., I believe N.M.’s evidence about this. I am convinced beyond a reasonable doubt that what N.M. did to T.C. for a sexual purpose, he did because the accused counselled or invited N.M. to do so. I arrive at this finding because N.M. had better and direct knowledge of the accused’s influence and encouragements and because this is supported by the bulk of the evidence, including by the accused’s grooming and normalizing efforts, which are corroborated by the text messages and by T.C.’s evidence.
128During closing submissions, the defence agreed that T.C. was an “impressive young man”. However, the defence argued that T.C. was not reliable, including because T.C. mentioned that the accused “tried touching my private parts”, gave conflicting evidence, provided little by way of context and details, and only described approximately four incidents.
129With one exception, being whether the accused only tried to touch his private parts, these arguments are answered by the above.
130With regards to whether the accused touched him, T.C. explained during his cross-examination that he used the “wrong grammar” in the police video statement when he first mentioned that the accused tried touching his private parts. This is confirmed when later, on several occasions during the police video statement, T.C. mentioned that the accused touched “his private part”, touched his “penis”, “at least, more than five times from what I can remember”. He said that the accused touched his penis while asking him questions such as whether T.C. was okay with what the accused was doing, “asking a whole bunch of questions”, including telling T.C. that if he wanted to do something he would first have to let the accused touch his penis, and asking T.C. if he was ready for sex. T.C. said that the accused touching his penis was always on his skin, under his clothes.
131During the police video statement, T.C. also said that there was one time when he was not sure what the accused was doing exactly, but believes that “around the beginning”, the accused tried “to see if I was ready to have kids or not”. In the context of the evidence, I am satisfied beyond a reasonable doubt that this refers to an occasion of the accused masturbating T.C.
132From the police video statement, considered in the context of the evidence, I am also satisfied beyond a reasonable doubt that T.C.’s penis was frequently touched by the accused and N.M. for a sexual purpose, and that T.C. was frequently asked to touch N.M.’s penis for a sexual purpose. T.C. said that the “stuff” is what “normally happened at the beginning”, that the days were “always the same after that”, and that “they would do the same thing”. He also said that “after he did all of those things of touching my private parts, he would just act as though those were just a regular day”.
133T.C. remembered touching N.M.’s penis, normally in the living room. T.C. said that the same thing as with the accused touching his penis would happen after, “pretending it was a normal day”. T.C. believed that he told the accused that N.M. was asking him to be touched. However, in another demonstration of how fairly and candidly T.C. testified, he said that because he was not certain that he told the accused, he preferred not to say that he did.
134T.C. said during his examination-in-chief that the accused touched his penis with his hand on five to six occasions, and that N.M. touched T.C.’s penis at least 10 to 20 times. He said in-chief that the accused might also have touched his penis with something other than his hand, but he was not certain and did not remember.
135T.C. also said in-chief that N.M. sometimes touched T.C.’s penis over his clothes, sometimes with “my clothes off”. N.M. corroborates some of this as he agreed and testified that he frequently touched T.C.’s penis, and, as explained above, also described more serious incidents.
136T.C. also corroborates that the accused and N.M. measured his penis and testified that the accused reassured him that measuring his penis was normal.
137As well, T.C. denied ever importing sexual images on any of the accused’s electronic devices.
138During his cross-examination, T.C. only remembered one to three incidents involving the accused and remembered fewer than 10 to 20 incidents involving N.M. as explained above.
139Furthermore, T.C. corroborates that N.M. was once naked at the accused’s home, and that the accused normalized such behaviour. T.C. saw N.M. naked at the accused’s once for about 30 minutes. He said that N.M. was acting normal, on the couch, with the accused saying nothing and acting normal, just looking at him, and not asking N.M. to dress despite T.C. asking the accused to do so. Contradicting the accused, T.C. testified in the police video statement that the accused asked him why he was confused by N.M. being naked.
140The above also corroborates that by January 2022, the accused had groomed and normalized abnormal sexual behaviour with N.M. and that he was proceeding to attempt to groom and normalize such behaviour with T.C. The above, considered in the context of the evidence, establishes beyond a reasonable doubt that through his ongoing efforts at grooming and normalization, the accused encouraged and created an environment that encouraged N.M. to have sexual contact with T.C.
141Consequently, considering the evidence, I am satisfied beyond a reasonable doubt that the accused touched T.C.’s penis for a sexual purpose using his hand on T.C.’s skin on at least five to six occasions, which include one instance of attempted masturbation of T.C. and another of measuring T.C.’s penis, contrary to s. 151 of the Code. As well, I am satisfied beyond a reasonable doubt that the accused, through the environment that he created and through his encouragements, counselled or invited N.M. to touch T.C. and N.M. being touched by T.C. for a sexual purpose on at least 10 to 20 occasions, contrary to s. 152 of the Code. Furthermore, I am convinced beyond a reasonable doubt that while touching T.C.’s penis, the accused frequently asked T.C. if he was ready to have sex, thereby counselling or inviting T.C. to have more serious sexual contact with the accused or with N.M., contrary to s. 152 of the Code.
142As well, considering the evidence, I am satisfied beyond a reasonable doubt that the accused sexually assaulted N.M. on at least 15 occasions, contrary to ss. 151 and 152 of the Code. This includes the accused:
i) Touching N.M.’s penis and masturbating N.M. to ejaculation on multiple occasions.
ii) Counselling or inviting N.M. to touch the accused’s penis and to masturbate the accused to ejaculation on multiple occasions.
iii) Performing fellatio on N.M. to ejaculation on at least one occasion.
iv) Counselling or inviting N.M. to perform fellatio on the accused to ejaculation on at least one occasion.
v) Touching N.M. with a sex toy and counselling or inviting N.M. to touch his own body with a sex toy on at least two occasions, including when a dildo was inserted into N.M.’s anus while N.M. masturbated the accused to ejaculation, and when N.M. inserted a marker into his anus as described in the text exchange.
vi) Inserting his penis into N.M.’s anus and performing anal sex on N.M. on at least one occasion.
143Furthermore, considering the evidence, I am satisfied beyond a reasonable doubt that the accused occasionally showed pornography to N.M., including images or videos of men and boys having sex or engaged in explicit sexual activity, for the purpose of facilitating the accused touching N.M. or the accused being touched by N.M. for a sexual purpose, contrary to s. 171.1 of the Code. N.M. was believable when he described this. Further, his evidence about this is corroborated by the evidence, including by the child pornography evidence.
144With regards to the child pornography counts, the defence argues that the accused did not make, possess, or access child pornography.
145The defence argues that the accused did not intend to make child pornography. The defence argues that the images of J. are thumbnail images and the images showing that J. was behind a towel when the accused took a video of J. blowing bubbles are missing. The defence also argues that he did not intend to make pornography, but a video of J. blowing bubbles, and that this is corroborated by the fact that he mentioned this video to the mother, proving his lack of intent. The defence argues that the accused found the yellow and white USB key and deleted its content. The defence argues as well that there is no evidence that the accused accessed any of the illegal images found on his devices, that these were not downloaded or accessed by him but by an unknown user, possibly one of the children who he testified had easy access to his devices. The defence also argues that the accused did not have care and control of the deleted images found in the cache file of his devices.
146I find, with one exception, that the alleged illegal images are all instances of child pornography, as defined in s. 163.1 of the Code. All depict at least one child, and in some instances, several children, under the age of 18, either engaged in explicit sexual activity, or the dominant characteristic of which is the depiction, for a sexual purpose, is of a sexual organ or the anal region of a child under the age of 18 years. The exception are the images of N.M. shirtless and seated on a chair in his home, these do not meet the definition of child pornography.
147As indicated and explained earlier in my reasons, I do not believe the accused’s exculpatory evidence and his evidence does not leave me with a reasonable doubt. As a result, I do not believe that J. was behind a towel when the accused took those images of J. naked in the accused’s shower, that a cat or the accused adjusting the water temperature of J.’s shower impacted the focus of the accused’s phone (which incidentally was primarily on J.’s penis and anal area), that N.M. sent the accused a picture of his penis while seated on a toilet (this was denied by N.M. during his cross-examination and no pornographic images were found on N.M.’s phone), that the accused found the yellow and white USB key and deleted its content as he described in 2009 or 2010, and that the illegal images found on the accused’s devices were imported onto his devices and accessed by people other than the accused. As well, as explained, the accused’s exculpatory evidence did not leave me with a reasonable doubt. However, as explained in the general principles section, this is not the end of the analysis as the onus of proof is always on the Crown to prove, beyond a reasonable doubt, the elements of the offences charged.
148Detective Desjardins testified and was qualified as an expert to provide his opinion about the acquisition, seizure, examination, storage, and analysis of the data and images on the accused’s electronic devices.
149The detective provided evidence that confirmed that the seized electronic devices were the accused’s devices. This included similar passwords used on the devices, the accused’s email addresses, credit card information, documents authored by the accused, and other personal information of the accused found on the devices.
150As indicated in the background section of my reasons, the detective found in the glide cache of the accused’s cellular telephone, thumbnail images, including 237 images of J. naked in the accused’s shower, three images of a young teenage boy seated on a toilet with his penis visible, and ten images of N.M. seated on a chair with his face and bare chest visible.
151The detective explained that of the 237 images of J. naked in the shower, 38 were original images. All the illegal images were found in the phone’s glide cache. I agree with the defence submissions that once in the glide cache or cache of the accused’s devices, the accused had no control over the material. The detective explained that a cache is a storage site where images can remain even after being deleted, and that while in the cache, the images are not accessible by the device user. As well, the detective explained that thumbnail images are a smaller representative image of a larger image, that thumbnail images are the reduced-sized version of original images. He said that if these images originated from one video of J. in the shower, only one unique image would be expected to be found on the thumbnail, not the 38 unique images that were found. The detective said the data obtained shows when the images were last accessed, in May and early June 2022, but not when the images were created or deleted. However, of note, and as discussed above, the mother testified that on May 26, 2022, she warned the accused that T.C. was making allegations against him. The accused also agreed that he was warned about allegations towards the end of May or early in June 2022.
152Further, the accused implicitly acknowledged he knew what child pornography was when he testified about viewing four pornographic images on the yellow and white USB key.
153Considering the evidence, I am satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the evidence is that the accused took images of J. naked in his shower, intending to focus on the child’s penis and anal region, knowing that it depicted child pornography, thereby making child pornography contrary to s. 163.1(2) of the Code. Similarly, I am satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the evidence is that the accused accessed these images and possessed these images up until he deleted them after being warned of allegations against him by early June 2022 and prior to his arrest on June 14, 2022, knowing that they were child pornography. Indeed, Detective Desjardins testified that some of these images were accessed or modified on May 14, 2022. This was the accused’s cellular telephone and he testified about taking these images. He told the mother about these images at the outset to establish trust with the parents, but did not delete the images as instructed because, based on the data, some of these images were accessed or modified in May 2022. Further, there is no evidence that any of the children or that someone else other than the accused accessed the accused’s telephone. This argument is pure speculation. As a result, the accused will also be found guilty of accessing and possession of child pornography contrary to ss. 163.1(4.1) and 163.1(4) of the Code.
154Regarding the three images of a young teenage boy seated on a toilet with his penis visible, the evidence does not establish that these were created by the accused. However, the evidence establishes, beyond a reasonable doubt, that the only reasonable inference that can be drawn from the evidence is that the accused accessed these images, knowing that they were images of child pornography and that he knowingly possessed these images until he deleted them just prior to his arrest, also in breach of ss. 163.1(4.1) and 163.1(4) of the Code. Again, his argument that these were accessed by someone else is pure speculation.
155Detective Desjardins also testified about 22 images found in the cache file of the accused’s older cellular telephone. These are images of unknown naked boys, between the age of about 5 to 14 years old, in sexualized poses, including some depicting anal or oral penile penetration, with the focus of the images being on the boys’ genital and anal regions. As explained above, I did not believe the accused’s evidence about why the images were found on his device, including his suggestion that J., who was then 9 or 10 years old, might have downloaded them or somehow put them on the accused’s phone, nor did his evidence about this leave me with a reasonable doubt.
156This device was the accused’s older or prior cellular telephone. It was not password protected. It was seized in the accused’s home on the day of his arrest. Detective Desjardins testified that the 22 illegal images would have been saved on the accused’s phone at some unknown date prior to being deleted, which, considered in the context of the evidence, establishes care or control. Once deleted, these images remained in the phone’s cache file where they were no longer available to the user.
157Considering the evidence, I am convinced beyond a reasonable doubt that the only rational inference that can be drawn from the evidence is that the accused saved these 22 child pornography images on this phone prior to deleting them after being warned of allegations against him. It would be pure speculation to accept the accused’s arguments that J. or someone else did this. As a result, the accused had possession of this child pornography, knowing that they were child pornography, contrary to s. 163.1(4) of the Code, from the time that he saved these images up until the time that he deleted them prior to his arrest. For the same reasons, I arrive at the same conclusion for the three child pornography images found on the hard drive of the accused’s computer, as they too had been saved prior to being deleted.
158Detective Desjardins also recovered 11,144 images and 148 videos of young naked boys on a yellow and white USB key found inserted in the USB port of the accused’s computer. These were mostly of naked young boys, some between 6 to 8 years old, and others about 14 to 16 years old. Samples of these images include images of masturbation, young boys masturbating each other, as well as images of anal and oral penile penetration of young boys by other young boys, and of digital penetration of a young boy’s anus. Samples of the recovered deleted videos involved ejaculation on a child’s face, young boys masturbating, young boys performing fellatio on other young boys, young boys performing anal sex on other young boys, and one of the sample videos involved a 6- to 8-year-old girl performing fellatio.
159These images and videos had all been deleted at some unknown date and were found on the USB key’s unallocated space. Detective Desjardins prepared a voluminous report and his testimony about images and videos on the USB key establishes that some of these images were accessed and manipulated prior to being deleted.
160Considering the evidence, I am satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the evidence is that the accused saved these images on the yellow and white USB key, knowing that they were child pornography, and that he accessed and manipulated these images prior to deleting them before his arrest. As a result, the accused accessed and possessed child pornography, contrary to ss. 163.1(4.1) and 163.1(4) of the Code.
161Indeed, similar images were found on four of the accused’s devices. Web searches conducted by the accused searched for words including “young nude boys”. Young nude boys are what most of the images found on the accused’s devices depict. The accused admitted, during his examination-in-chief, that he conducted web searches using such words. The accused also then admitted that when conducting web searches, he was looking for males who, although 19- to 25-years-old, looked younger than 19, implicitly admitting that he was sexually attracted to young boys and that he knew that the images were child pornography images. Most of the images found on his devices depict males who are younger than 18. Furthermore, the evidence indicates that the accused accessed some of the illegal images, some as late as about one month prior to his arrest.
162As well, some of the illegal images found on the accused’s devices mirror some of the complainants’ allegations. For example, the accused’s web searches focused on nudity and young boys, and the complainants testified that the accused encouraged their nudity while at his house. N.M. testified that he was often naked at the accused’s home and the accused asked him to undress. T.C. corroborated that the accused acted as if N.M. being naked was normal. As well, some of the sexual acts depicted on the illegal images mirror some of the complainants’ allegations. For example, the boy-on-boy pornographic images are quite similar to some of the allegations of sexual acts between N.M. and T.C. Further, some of the text messages between N.M. and the accused also corroborate a focus by the accused on the sexuality of young boys, which is what most of the illegal images focus on.
163These facts, considered in the context of the evidence, establish beyond a reasonable doubt that the only reasonable inference is the accused’s guilt on the child pornography counts. The defence arguments that part of the images are missing because the images are thumbnail images, including that a towel was present on the images of J. but was not depicted because the images are thumbnails, are simply not supported by the evidence. Further, as indicated above, it would be pure speculation to accept the accused’s arguments that someone else, including that one of the children, accessed any of the illegal images found on his devices when there is no evidence supporting such an inference.
Conclusion
164I did not believe the evidence of the accused, and his evidence did not leave me with a reasonable doubt. When I considered the evidence, I found that the Crown proved each element of the offences charged beyond a reasonable doubt.
165Consequently, the accused is found guilty of all eight counts on the indictment.
Roger J.
Released: November 18, 2024
CITATION: R. v. Schmid, 2024 ONSC 5572
COURT FILE NO.: 22-11402621
DATE: 2024/11/18
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
Adrian Blair Schmid
Accused
reasons for decision
Roger J.
Released: November 18, 2024