R. v. Keough, 2011 ABQB 48

Court of Queen ’ s Bench of Alberta Citation: R. v. Keough, 2011 ABQB 48 Date: 20110126 Docket: 090409517Q2 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Jason Andrew Keough Accused Restriction on Publication: By Court Order, information that may identify the Complainant or Witnesses described in this judgment as the Complainant or Witnesses May not be published, broadcast, or transmitted in any manner. There is also a ban on publishing the contents of the application for the publication ban or the evidence, information or submissions at the hearing of the application.

See the Criminal Code , s. 486.4 Corrected judgment: A corrigendum was issued on January 27, 2011; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Don J. Manderscheid _______________________________________________________ I. Introduction.............................................................................................................. Page: 3 II. Video Material Related Allegations.....................................................................

Page: 4

A. Residency and Possession...................................................................... Page: 4 B. Testimony Relating to the Video Materials............................................. Page: 6 1. S.C................................................................................................... Page: 7 2. M.A.................................................................................................. Page: 8 3. L.C................................................................................................. Page: 11 4.

S.H................................................................................................. Page: 12 5. C.V................................................................................................ Page: 15 6. J.W................................................................................................ Page: 17 C. The Video Materials................................................................................ Page: 18 1. Exhibits 2A, 2B............................................................................ Page: 19 2.

Exhibits 3A, 3B............................................................................ Page: 20 3. Exhibits 4A, 4B............................................................................ Page: 20 4. Exhibits 5A, 5B............................................................................ Page: 21 5. Exhibits 6A, 6B............................................................................ Page: 21 6. Exhibits 7A, 7B............................................................................ Page: 21 7. Exhibits 8A, 8B............................................................................

Page: 22 8. Exhibits 9A, 9B............................................................................ Page: 22 9. Exhibits 12A, 12B........................................................................ Page: 22 10. Exhibits 14A, 14B........................................................................ Page: 22 11. Exhibit 15...................................................................................... Page: 22 12. Interrelationship of the Recorded Materials.............................. Page: 23 13. Relevance of Recorded Materials.............................................

Page: 23 D. “Similar Fact” Arguments....................................................................... Page: 23 E. Voyeurism Charges................................................................................. Page: 25 1. Evidence....................................................................................... Page: 26 2. The Law........................................................................................ Page: 27 3. Analysis - Expectation of Privacy............................................... Page: 31 4. Making Voyeuristic Material - Criminal Code, s. 162(4) ......... Page: 32 F.

Child Pornography - S.C. and M.A........................................................ Page: 32 1. Evidence....................................................................................... Page: 32 2. The Law........................................................................................ Page: 35 3. Analysis - s. 163.1(4), Possession of Child Pornography....... Page: 38 4. Analysis - s. 163.1(2), Making Child Pornography................... Page: 42 G. Child Pornography - J.W. and C.V......................................................... Page: 47 1.

Evidence....................................................................................... Page: 48 2. The Law........................................................................................ Page: 51 3. Analysis - s. 163.1(4), Possession of Child Pornography....... Page: 51 a. Prima Facie Possession of Child Pornography.......... Page: 51

b. R. v. Sharpe Private Use Exception - Third Parties.... Page: 51 c. Distribution of Private Use Materials............................. Page: 53 d. Limits to Third Party Receipt of Private Use Materials Page: 54 i. Consent by All ‘Owners’...................................... Page: 54 ii. Vitiated ‘Owner’ Consent................................... Page: 55 iii. Loss of ‘Owner’ Control...................................... Page: 55 iv. Possession in Exchange for Consideration..... Page: 56 v. Conclusion - Third Party Possession of Private Use Materials Page: 56 e. The R. v.

Sharpe Private Use Exception is a Defence Page: 56 f. Application of the R. v. Sharpe Private Use Exception Defence to the J.W./C.V. Recordings....................................................................... Page: 58 4. Analysis - s. 163.1(2), Making Child Pornography................... Page: 60 H. Conclusion - Video Material Related Offenses.................................... Page: 60 III. Sexual Touching Allegation................................................................................ Page: 61 1. Evidence.......................................................................................

Page: 61 2. The Law........................................................................................ Page: 62 a. Elements of Criminal Code , s. 153(1)(a)..................... Page: 62 b. Witness Credibility........................................................... Page: 63 c. Reasonable Doubt........................................................... Page: 65 3. Analysis......................................................................................... Page: 66 a. Similar Fact Evidence..................................................... Page: 66 b.

Was the Complainant a Young Person?....................... Page: 67 c. Did the Sexual Touching Occur?.................................... Page: 67 d. Was Keough in a Position of Trust or Authority?.......... Page: 68 IV. Conclusion............................................................................................................ Page: 68

Schedule I......................................................................................................................... Page: 70 I. Introduction [ 1 ] Jason Andrew Keough [the “Accused”] is charged with a variety of sexual criminal offenses. The Crown alleges the Accused: 1. possessed child pornography ( Criminal Code , R.S.C. 1985, c. C-46, 163.1(4)),

2. made child pornography (Criminal Code, s. 163.1(2)), 3. engaged in voyeurism (Criminal Code, s. 162(1)), 4. made voyeuristic materials (Criminal Code, s. 162(4)), and 5. was a person in authority or trust who touched a young person for a sexual purpose (Criminal Code, s. 153(1)(a)). [2] The specifics of these charges are discussed in more detail within the body of this judgment, and the exact language of thecharges is found in

Schedule I, which reproduces a part of the indictment of September 30, 2010. [3] Keough did not testify and did not call any evidence in his defence. [4] These charges can be split into two groups. Keough’s home was searched by the RCMP in 2008 and that led to theidentification and recovery of a number of video materials which are alleged to represent child pornography or to document voyeuristicactivities. The supporting facts of the sexual touching offense are quite unrelated, and as a consequence I will largely address thesegroups of offenses separately in the analysis that follows. II.

Video Material Related Allegations [5] The video materials relevant to this matter were seized by the RCMP from Keough’s home. Keough’s home was searchedand in his bedroom a number of video materials were seized. These depicted sexual activities. Some of these materials allegedlyrepresent either child pornography, or were recorded surreptitiously and thus fall into the Criminal Code ‘voyeurism’ offenses. A.

Residency and Possession [6] As a preliminary issue, the Defence in its closing arguments challenged whether the Crown had adequately linked theAccused to the location from which the video materials were recovered. The Defence argues this means the Crown failed to prove thatthe Accused possessed the various video materials. If the Crown has not proven possession, then that fatally undermines all of the videomaterial related charges. The recordings might belong to someone other than the Accused. [7] This argument flows from the clear common-law principles that possession requires control (R. v.

Terrance, (SCC), [1983] 1 S.C.R. 357, 147 D.L.R. (3d) 724) and knowledge, both of which are also necessary elements to prove constructivepossession (R. v. Kocsis (2001), (ON CA), 146 O.A.C. 383, 157 C.C.C. (3d) 564 (Ont. C.A.)). [8] Defence counsel has cited a number of cases she says indicate that constructive possession of property in a residence needs tobe proven by specific facts on what might be described as a high standard. I have reviewed these cases and have a number ofobservations. I do not think R. v.

Abdulgany, 2006 ABCA 349, 401 A.R. 37, an oral decision of Slatter J.A., actually relates to that issue.As is apparent from paras. 2 and 11, the Court of Appeal ordered an acquittal because the trial judge had not provided adequate reasonsto explain the inferences which led to the trial judge’s finding of possession. [9] R. v. Berube, 2004 ABQB 131, 61 W.C.B. (2d) 21 had Ross J. quash committal to stand trial of a woman who was foundsleeping with her boyfriend in the boyfriend’s house. There was clear evidence the boyfriend had previously sold drugs from thatresidence.

Justice Ross concluded that while the evidence did support that the woman might have known a sale of drugs had occurred,there was no evidence she had control of the proceeds (para. 16).

[ 10 ] R. v. Egresits , 2002 BCCA 163 , 165 B.C.A.C. 63 provides another example of where weak evidence did not link a person to a residence. Here, a house had two separate residences (upstairs and downstairs), each with different keys (para. 1). The upper property was apparently unoccupied (para. 6), while the lower area contained a marijuana grow-op (paras. 1-2). The Court of Appeal noted that at least four people could be linked to the grow-op (paras. 7-8). The trial judge inferred the accused was the one who had operated the grow-op, but that inference was based on tenuous evidence.

In other words, the investigation had failed to exclude other plausible alternative offenders (para. 8). A related situation was addressed in R. v.

Nguyen , 2005 ABQB 544 , 379 A.R. 244, where Veit J. observed where at least two persons who had a plausible connection to a basement marijuana grow-op one cannot simply infer one had control (para. 24), though Justice Veit had no doubt the accused was well aware the grow-op existed (para. 24). [ 11 ] The Crown noted a number of facts which linked Keough to the location where the video materials were found: 1. various witnesses had identified the photographs of that residence as being occupied by Keough; 2. various witnesses reviewed video recordings that involved one of the two bedrooms, the ‘spare’ bedroom that was not occupied by Keough; 3. the residence had two bedrooms, one of which was the spare bedroom where some of the video recordings were made, while Keough presumably used the other bedroom for himself; 4. this residence was known by the RCMP to belong to Keough as RCMP officers involved in the search had previously served Keough at that location; 5. correspondence addressed to Keough was found at the house at the time of the seizure; and 6.

Keough arrived at this location and was arrested by RCMP while the search was being executed. [ 12 ] Succinctly, I am quite satisfied that the Crown proved beyond a reasonable doubt that Keough lived at the location where these video materials were recovered, and that this home was his residence. I also accept the bedroom where the materials were found was Keough’s bedroom. [ 13 ] That inference is driven by all the evidence identified above, but what I see as particularly relevant is that the RCMP officers who searched that property were familiar with that location as Keough’s residence.

Keough was a person known to those officers, which is not particularly unexpected given Keough’s apparent involvement with troubled youth. Athabasca is also a quite small centre, and I am therefore not surprised that Keough and probably a number of his youth associates were known to the local RCMP. [ 14 ] I also note that there was no testimony that the location where the recordings were recovered was a property controlled by some other person. Other people lived there or visited, but Keough ran the property. All the witnesses who testified clearly saw Keough as the owner of this residence.

For example, the witness C.V. said he lived with Keough at the house; while C.V. stayed there, it was clearly Keough’s property. Similarly, witness S.H. described visiting Keough at this residence, and called ahead to speak to Keough so that they could arrange for S.H. to use the spare bedroom as a location to have sex, and to allow Keough to deploy and conceal a video camera. [ 15 ] Unlike the cases cited by the Defence, there is no other reasonable alternate person in control of the bedroom where the recordings were identified.

On that basis and from the broad range of evidence that links Keough to the house and the bedroom, I can and do infer that these video materials were in Keough’s possession.

B. Testimony Relating to the Video Materials [ 16 ] An unusual aspect of this particular case is that the character of the video materials can only be properly assessed in relation to the testimony of what are, essentially, the participants in those recordings. All of the video materials, except for Exhibits 9A, 9B, document sexual activities between individuals ranging in age between approximately 15 and 20 years. In certain instances the witnesses were unable to state their precise age at the time the materials were produced. [ 17 ] These charges flow from recorded sexual activities of three couples: (

a) S.C. and M.A., (

b) J.W. and C.V., and (

c) L.C. and S.H. There is also a video recording of C.V. masturbating by himself. [ 18 ] At the time these recordings were made, the non-police witnesses testified that they knew the Accused, and this association seems to have been on a social basis. During the period in which the video recordings were made, Keough had a number of occupations, for example he was at some points a guidance counsellor, youth counsellor, or social worker in Athabasca, however, those professional activities do not seem to be directly involved in the alleged offenses.

Rather, his contact with young persons in the area seems to have been the way Keough met and became involved with some of the people in the video materials. Several other witnesses came from Nova Scotia to stay with Keough. [ 19 ] There is a certain overall pattern that emerges from the testimony of these witnesses. All acknowledge being acquainted with Keough, some identify him as a friend, or a friend of a friend. All acknowledge that they are the persons depicted engaged in sexual activities.

However, their accounts diverge on the explanation for their involvement, or how these materials ultimately came into Keough’s possession. [ 20 ] At this point I believe it is helpful to outline another pattern that emerges from the video evidence and the witnesses. The majority of the Crown's witnesses were not honest in their testimony. They lied about why the video materials were created and how the recordings came into Keough's possession. Their motivation is simple; these witnesses are attempting to minimize the criminal consequences of their conduct.

At a later point in this judgment I will review and compare their testimony and reconstruct what I believe happened. 1. S.C. [ 21 ] S.C. testified that at the age of 14 she began dating M.A. Their relationship continued for three years. At this time S.C. was a student at Edwin Parr Composite High School. S.C. testified that she became acquainted with the Accused while he was a guidance counsellor. When she was 15 years old Keough assisted her in that role. S.C. testified that Keough knew her age, and I accept that. [ 22 ] S.C. further testified she socialized with Keough when she was 15.

At that time Keough lived in a trailer. Keough invited M.A. for supper and S.C. came along as well. S.C. further testified that later, when the Accused moved out of the trailer and into a house, M.A. would stay and sleep at Keough’s residence as M.A. lived out of town. S.C. joined M.A. on occasion. [ 23 ] In total, S.C. visited Keough with M.A. for supper on four occasions. Sex was a topic for discussion at these gatherings. The first time that subject came up was at the Accused’s trailer, and the topic was anal sex. M.A. jokingly brought up the subject of anal sex

and Keough, who was apparently very serious about the topic, advised S.C. and M.A. as to how they could engage in that activity. [ 24 ] S.C. then testified that M.A. asked her to make a video recording of their sexual activities. She agreed. At that time she was 15 and M.A. was 18. S.C. reviewed the recording of sexual activities found in Exhibit 2B, and confirmed she was the female participant and M.A. the male. [ 25 ] S.C. testified that M.A. borrowed a video camera to make the sex video, which was recorded at M.A.’s residence.

She says that after the recording was made, and although she had not seen it, S.C. asked M.A. to destroy the recording. When she gave that instruction S.C. understood that M.A. had already taken the recording, then on a mini-cassette, for transfer to a different format, VHS videotape. S.C. was clear that she and M.A. had discussed that format change and she had agreed that should be done; M.A. wanted a VHS format recording. S.C. explained that she understood Keough would make the format transfer.

S.C. testified M.A. agreed to destroy the VHS recording when she made that request. [ 26 ] S.C. testified she never gave permission for Keough to have a copy of the VHS recording. [ 27 ] Some other facts emerged on cross-examination. S.C. testified that she and M.A. had argued about the recording shortly after its production, as S.C. had heard that M.A. had shown the recording to his two roommates. She testified this event was the trigger for her demand that the recording be destroyed. M.A. had agreed to do so and she thought M.A. had disposed of the tape.

S.C. testified it was only after she had viewed the recording with the police and questioned M.A. as to how he disposed of the tape that M.A. told her that he had given the tape to Keough and asked that it be destroyed. [ 28 ] When questioned by Defense counsel as to whether or not M.A. often lied to her, she advised that it was her belief that he did. S.C. further confirmed to Defense counsel that there were other individuals either living or visiting with the Accused at his residence and that their names were J.M., L.M. and K. [ 29 ] I found S.C. to be an extremely credible witness.

While M.A. and S.C. provided all but identical accounts on how the recording was made, their testimony diverges on who had suggested making the recording, and the arrangement for the VHS recording’s (alleged) destruction. In particular I note that M.A. at no time appears to have mentioned to S.C. that Keough had provided the video camera, and Keough had been asked to dispose of the VHS recording. [ 30 ] I have no doubt that S.C. willingly participated in recording her sexual activities with M.A. but that she never intended that recording be viewed or owned by anyone else.

Instead, S.C. only wanted the recording destroyed. 2. M.A. [ 31 ] M.A. testified he first met the Accused at the Native Friendship Centre in Athabasca when he was 16 years old. M.A. was then performing community service hours as part of his sentence for a minor charge. At that time the Accused was employed at the Native Friendship Centre as a Native youth coordinator; Keough became M.A.’s supervisor. [ 32 ] M.A. continued his affiliation with the Accused when the Accused became a youth counsellor at the school that M.A. attended, Edwin Parr Composite High School.

By that point M.A. was dating S.C.; their age difference was three years. [ 33 ] M.A. testified that when he was 16 years old he would visit Keough at a trailer which was Keough’s residence, and they would have a couple of beers together. Later, when the Accused moved to a house in the town of Athabasca, M.A. and S.C. would visit Keough. M.A. says the couple spent a couple of nights there. Youth visitors to that household were not unusual, Keough always had such youths staying at his home.

M.A. did not know whether or not these individuals were living there long-term or were just troubled youths with no place to go.

[ 34 ] M.A. testified that around this time he told Keough that M.A. was interested in becoming involved in the pornography industry. Keough explained that he knew how this could be accomplished. Although the subject of M.A.’s involvement in the pornographic industry was later raised several times by the Accused, M.A. says he did not pursue the matter any further. [ 35 ] M.A. testified that he and S.C. had discussed a homemade sex video of themselves, but that M.A. did not have the funds to acquire a video camera for that purpose.

As a consequence, M.A. then asked Keough if Keough would loan M.A. video cameras to make that recording; Keough obliged. M.A. further testified it was M.A.’s intention the recording of himself and S.C. was only for their own personal use and not to be viewed by anyone else. At this time, M.A. testified he would be either almost 18 or 18 years old and S.C. was under 18 years of age.

M.A. said only one of the loaned cameras worked, and so he only used that one. [ 36 ] Once the sexual encounter had been recorded, M.A. took the mini-cassette tape from the video camera and gave it to the Accused so that the recording could be transferred onto a VHS format cassette. Although M.A. received the VHS tape from the Accused, he says he forgot about the mini-cassette that he had given to the Accused. M.A. had no idea what happened to that mini-cassette.

M.A. testified that S.C. did not view the VHS recording, and that when M.A. viewed the tape he decided the couple did not look good on camera, and that the recording should be destroyed. [ 37 ] M.A. says he then took the VHS tape to Keough and instructed Keough to destroy the recording. At trial M.A. explained this choice was because he trusted the Accused with this delicate matter. M.A. feared that if the tape were to fall into the wrong hands it could prove embarrassing to him at a later date.

M.A. further testified that S.C. had requested that he retrieve the tape from the Accused and that M.A. should destroy the recording himself, however when he asked Keough for the VHS recording, Keough claimed it was lost. M.A. testified Keough gave that explanation about one month after M.A. had given him the tape to Keough to destroy. The Accused was then still employed at the Edwin Parr Composite High School. [ 38 ] M.A. testified he never gave Keough permission to make more than one copy of the original VHS tape.

M.A. viewed the Exhibit 2B recording in court and confirmed that the male and female recorded having sex were himself and S.C. M.A. further testified that he had not given the Accused permission to have the two copies of the tape in his residence on September 5, 2008. Furthermore, M.A. testified that after he had requested the Accused destroy the tape, he and S.C. visited the Accused’s residence, and it was on that occasion that the subject of anal sex between himself and S.C. was discussed.

Keough suggested a couple of different ways that would make it easier for the couple to engage in anal sex. [ 39 ] In cross-examination by Defense counsel, M.A. acknowledged he had provided somewhat different testimony at the preliminary inquiry. M.A. then said he and S.C. had tried to watch the tape but realized that it was awful and that they both wanted nothing to do with it. S.C. asked M.A. to throw the recording out. [ 40 ] From my review of his testimony, the nature of M.A.’s relationship with Keough is unclear.

At first glance it would appear that he and the Accused became close friends, notwithstanding a 20 year age difference. In this respect, the Accused would appear to have taken on the role of M.A.’s mentor, at least in so far as his sexuality was concerned. M.A. paints a picture of the Accused operating what would appear to be a halfway house for troubled teens. I think there is little question that a person in Keough’s position should not be providing alcohol to an under-aged individual, nor should he be counselling them on a career making pornography.

That said, did Keough really encourage M.A. to become a porn actor? [ 41 ] I am further made suspicious by M.A.’s testimony that he never once considered the mini-cassette’s ultimate fate after he gave the Accused both the video recorder and mini-cassette. Surely, if he was concerned with the contents on the VHS tape, which was copied from the mini-cassette, M.A. should have been equally concerned about the mini-cassette’s potential survival.

Yet M.A. testified that never occurred to him. [ 42 ] The extremely doubtful aspect of M.A.’s testimony is his account of how the VHS recording of himself and S.C. ended up in Keough’s hands. M.A.’s explanation is that he gave Keough the VHS recording so that Keough could destroy it. The plausibility of M.A.’s explanation was challenged on cross-examination, and M.A. could not explain why he did not simply cut up or burn the recording. M.A.’s manner during cross-examination was highly defensive; he was quite obviously aware his explanation had holes.

I have no doubt that the ‘transfer to destroy’ explanation by M.A. is a complete fabrication. I believe M.A. gave Keough the VHS recording for some other purpose. [ 43 ] These defects lead to a strong suspicion that M.A. was neither honest or forthright in his testimony. I did not find him a

credible witness. I am therefore left in the unenviable position of drawing conclusions from the facts provided. [ 44 ] I have some concern with M.A.’s testimony that Keough encouraged M.A. to pursue a career as a pornographic actor. That said, I have little difficulty concluding that Keough and M.A. discussed sexually related matters, and that M.A.’s testimony on Keough providing the video recording equipment is accurate. [ 45 ] I am highly skeptical of M.A.’s explanation of how Keough received the S.C./M.A. recording.

I will return to that question later in the judgment; at this point I will simply observe that it seems far more likely M.A. received something in turn for him secretly giving Keough the a copy of the tape. 3. L.C. [ 46 ] L.C. testified that in 2008 she had a “friends with benefits” relationship with S.H.; they were friends who occasionally had sex together. L.C. knew Keough as a friend of S.H. and S.H.’s mother. L.C. explained that she had been a student at Edwin Parr Composite high school until grade 9.

At that time Keough was a counsellor at that school. [ 47 ] L.C. further testified that because S.H. lived far away at a place called Collington, when she and S.H. wanted to hang out and have sex they would go to Keough’s house. Although she could not recall exactly how many times she did this, she believes that it was probably between one and five times. L.C. testified that during these visits Keough was either in his room, on the phone, or just walking around.

She did not recall either herself or S.H. discussing with the Accused the use of a bedroom in his home for sex. [ 48 ] L.C. testified that she had never discussed recording a video of her sexual activities with S.H., and she had no knowledge that she and S.H. were recorded while engaged in those activities. Indeed, she never saw a camera in the room.

L.C.’s evidence was the first time she became aware she had been recorded was when she reviewed video recordings with Constable Meloche. [ 49 ] At trial L.C. reviewed a number of video recordings and confirmed she and S.H. were recorded engaged in sexual activities in Exhibits 4B, 5B, 6B, and 7B. She confirmed that all the recordings appeared to occur in the spare bedroom of Keough’s house. She was uncertain how many times she had been recorded, but agreed with Crown counsel that at least two instances had occurred.

L.C. recognized two separate covers on the bed, one was a striped design, another time a different design was visible. Her belief is she may have been recorded as many as five times. [ 50 ] On questions from the Court, L.C. confirmed that prior to going to the Keough residence with S.H. there was no previously planned arrangement between herself and S.H. that they were going to that location to engage in sex. She further confirmed to the Court on questioning by the Court that she had never previously visited the Keough residence; the first time she ever visited was when she and S.H. arrived and had sex.

That said, she explained the couple had first spent some time together in the house with Keough, they then decided they would go into the spare bedroom and engage in sexual activities. [ 51 ] Although for the most

part I believe L.C.’s testimony, what concerns me most is the fact that without any prior discussion between her and S.H., she allegedly accompanied S.H. to a person’s home (the Keough residence). L.C. says that without any specific consent from the owner she accompanied S.H. into a bedroom and had sex, not on simply one occasion but possibly five or more instances. [ 52 ] Either she is a very naïve or promiscuous individual, or she had discussed this arranged venue for sex with S.H. and she knew it was alright with Keough. There seems to be a piece of the puzzle missing, but what that piece is I do not know.

It may be as simple as local young persons in Athabasca knew they could use the Keough spare bedroom for sexual activity at their convenience, but that explanation has its own disquieting character. [ 53 ] I accept that L.C. had not known nor consented to being recorded during her sexual activities with S.H., and that she was very upset when that fact came to light.

4. S.H. [ 54 ] S.H. testified that he had attended high school at the Edwin Parr Composite School in Athabasca, and at that time he lived in a place called Collington which is located approximately 15 minutes south of Athabasca. S.H. testified that he knew Keough, who was then employed as a student counsellor at the high school. S.H. explained that a friendship developed between himself and Keough. This friendship was a result of Keough’s assistance with reading and other school-related matters.

S.H.’s mother specifically sent S.H. to Keough. [ 55 ] After completing high school S.H. continued his friendship with Keough, on occasion S.H. would visit Keough at Keough’s home. S.H. testified that between June 2006 and September 5, 2008 he became aware that one or two people had stayed at Keough’s home but S.H. did not know for how long. He recalled the identities of some of these individuals: R.L., L.M. and his girlfriend. [ 56 ] S.H. testified that while in school he initially began to discuss the topic of pornography with Keough as a kind of joke, he joked how he could become a porn star.

S.H. explained that later after he was out of school the discussion progressed. Keough made a dare, that he thought S.H. would not agree to be videotaped while nude. S.H. further testified that the Accused then instructed him as to what S.H. had to do in order to enter into the pornography industry; one was to take photos and a video of himself with or without somebody while engaged in some sort of sexual activity. These materials would then be sent to someone in Los Angeles, California. [ 57 ] S.H. testified that he was reluctant to make these kinds of videos. Nevertheless, Keough continued to encourage S.H.

Keough had a video camera ready for him. S.H. testified that eventually the Accused offered him $200 if S.H. would either record a videotape of S.H. nude, or S.H. engaged in sexual activities with someone. S.H. ultimately agreed to make a recording, as he was “in a tight spot with money at the time” and that the payment of the $200 was part of a bet by the Accused to S.H. that “I bet you $200 that you couldn’t do that”.

S.H. testified that he and Keough discussed this bet approximately 20 times. [ 58 ] At trial, S.H. testified that the Accused had advised him that if S.H. was to do the video, the girl had to be over 18 years of age. Further, Keough allegedly said that if both persons were over the age of 18 and that if “somebody was knowing about the tape that it wouldn’t matter if it was taken or not as long as it wasn’t shared”. S.H. confirmed that when filming the sexual activity that S.H. would be the person who would be aware that a recording was made in the room.

S.H. stated that ‘the rules’ for the recording were discussed on about three or four occasions. [ 59 ] S.H. testified that his relationship with L.C. was that they were “friends with benefits” which meant that “it’s a complete relationship without the commitment to each person”. S.H. further testified that Keough had advised S.H. that he had a room in his house which S.H. could use as he liked. It would not matter if S.H. brought someone over, even a girl; S.H. could do anything he wanted. [ 60 ] S.H. explained how the first recorded encounter with L.C. was arranged.

S.H. was coming back from the bar after meeting up with L.C. and they both walked to Keough’s house. He testified that he was 18 when the video recordings were made; L.C. was also 18. S.H. testified that on this occasion he phoned Keough and asked if he could come over. Keough agreed and asked whether S.H. was ready to make the video. S.H. replied that he was. [ 61 ] Once S.H. and L.C. arrived at Keough’s residence there was no mention of the video recording or camera. S.H. testified he never explained that part of the arrangement to L.C.

L.C. and S.H. then went into Keough’s spare bedroom and engaged in sexual activities. S.H. testified that these sexual relations were recorded by a video camera which had been placed on a dresser in the bedroom. The Accused had pre-deployed and activated this camera in the bedroom at some point prior to the couple’s arrival at the Keough residence.

S.H. did not point the camera out to L.C. and he testified that the camera was not very visible given the lighting in the room and the various clothing and condoms on the dresser. [ 62 ] At trial S.H. testified that after the sexual activity, he and L.C. spent the night in the bedroom. They left together in the morning. After the night of the video, S.H. testified that Keough asked if S.H. wanted to see the result, to which S.H. replied that he did not really, but might as well.

A week after the making of the first video recording Keough gave S.H. the $200. [ 63 ] S.H. further testified that he believes that he made one additional video with L.C. in that bedroom, but that he never watched

the video, nor received any payment for the second video. He testified that he had no idea what happened to the two video recordings, though S.H. says that Keough promised to tape over the recorded sexual activities once Keough had proof that S.H. had won the bet. [ 64 ] S.H. further testified he believes the second video recording was made on July 1, 2008. Again, Keough set up a video camera in the same location, on the dresser in the bedroom.

S.H. testified that he did the second video because he thought he was going to get another $200 from the Accused, and on this or any subsequent occasion when a video was made which recorded sexual activities between himself and L.C. S.H. is explicit that L.C. had no knowledge of that arrangement, which was strictly between Keough and S.H. [ 65 ] S.H. viewed a number of the exhibits entered by the Crown. He confirmed a recording in Exhibit 4B was of Keough’s spare bedroom, and that he was the male participant in a sequence; the female was L.C.

S.H. also reviewed Exhibit 5B, and confirmed Keough is the person who was filmed deploying the video camera in the spare bedroom. S.H. indicated the spare bedroom was the location where all the L.C./S.H. videos were made. [ 66 ] Upon cross-examination by Defense counsel, S.H. testified that he had not been advised by the Accused that if he was going to record sexual activities with another person, that second person had to be aware of the taping.

Defense counsel then cross-examined S.H. in regards to his testimony at the preliminary inquiry (June 17th, 2009), and in particular the question that, “when you spoke with Mr. Keough about possibly taping it, I’m going to suggest that he asked you about how old they were and if they knew it was going to be happening? Did you have that conversation with him?” In reply, S.H. acknowledged that he had such a conversation and that the Accused had told S.H. that if he was going to bring a girl over to do a video she had to be 18.

S.H. also admitted he might have been asked by Keough whether that other participant had been informed about being filming. [ 67 ] Subsequently during cross-examination by Defense counsel, S.H. confirmed that he recalled a little bit of Keough’s statement that any participating girl had to know that she was being recorded. [ 68 ] S.H. at trial commented on a statement he had made to police, specifically that he had told police that he did not know if L.C. knew that the video camera was present but that when the L.C./S.H. sequences were recorded the video camera had been visible and was not concealed.

At trial, S.H. agreed that statement was false, and reaffirmed that S.H. had known the video camera was hidden and that at no time he told L.C. that their sexual activities were being recorded. S.H. acknowledged he lied to the police, but explained, “Because I didn’t know what I was saying”, and that “It was late at night. It was a mistake”. S.H. was consistent that only two recordings had been made. [ 69 ] I believe that the majority of S.H.’s testimony is corroborated by L.C.’s evidence, and where that evidence aligns I accept his testimony as accurate.

However, S.H.’s lies to police and at the preliminary inquiry undercuts his reliability on other fronts. [ 70 ] I note his conduct during his testimony. S.H. was very vague in his answers. S.H. may possibly face criminal charges for his collabortion with Keough in recording L.C. without her consent or knowledge, and so it is understandable that S.H. may wish to slant his answers so that they point directly to Keough as the perpetrator. [ 71 ] I conclude S.H. is not a very credible witness whenever his testimony minimizes his participation or fault for the L.C./S.H. recordings.

I am, for example, very sceptical of his story as to how the recordings were made, and the ‘bet’ and ‘dare’ aspects. I do think S.H. was telling the truth when he acknowledged being paid to make these recordings, however I think it far more probable that this was less a ‘dare’ than a conspiracy - and S.H. was paid once he delivered the goods. 5. C.V. [ 72 ] C.V. testified he became acquainted with the Accused via a mutual friend, L.M., while C.V. lived in the Maritimes.

Keough was the caretaker for L.M. when L.M. was 15 years old. [ 73 ] C.V. testified that in 2005 after Keough had moved from Nova Scotia to Alberta, Keough contacted C.V. and asked whether

C.V. wished to move west to work at a job. C.V. accepted the offer when informed there was a job position waiting for him. C.V. was 20 at that time. It was agreed that his 16 year old girlfriend, J.W., would accompany C.V. and would stay with Keough. J.W. moved to Athabasca a couple weeks after C.V. relocated. C.V. testified this was the first time J.W. had met Keough. At this point Keough was living in his trailer.

C.V. says Keough was well aware of J.W.’s age, and would tease her about it. [ 74 ] As with several of the other witnesses, C.V. said he and Keough discussed sex and pornography, and that Keough discussed him and J.W. recording themselves and providing Keough with the recording. C.V. also testified that Keough frequently asked C.V. to make a solo video where he would masturbate to ejaculation, but that C.V. refused to do so. [ 75 ] At this point C.V. says Keough began to exert pressure on the couple to provide him with pornographic materials.

C.V. says Keough threatened that he would have a foster family take J.W. if C.V. and J.W. did not make him a sex video. That said, C.V. seems to indicate that at least some video materials were made for a different reason. He testified that when C.V. first arrived in Athabasca, Keough tried to talk him into doing a video with J.W. but that C.V. refused. After J.W. arrived there was more discussion about that possibility and then recordings were made, but those were only for J.W. and C.V.’s own enjoyment. The couple would keep the tapes.

C.V. says the first recording was made on that basis, but that he believes Keough then took the recordings. Curiously, C.V. testified he never confronted Keough about that. [ 76 ] C.V. says the domestic arrangements changed when Keough moved from the trailer to the house. At this point Keough refused to allow J.W. to visit and stay the night, unless the couple recorded sexual activities and provided Keough with that recording.

C.V. testified that the Accused “would force us to watch it with him” and that Keough would make suggestions on how to improve the recording, for example on the manner in which they were having sex. [ 77 ] C.V. believed he and J.W. probably made a total of seven or eight tapes. These tapes were kept by Keough. He says this ‘sex recording for overnight visitation’ arrangement went on for approximately seven months. Subsequently, C.V. and J.W. decided they did not want to stay with Keough and moved back to Nova Scotia.

C.V.’s testimony is that before they left the couple asked Keough about the recordings, and were told all recordings had been destroyed. [ 78 ] C.V. was then questioned by the Crown as to whether he had any knowledge of a sexually explicit video recording of himself which did not involve J.W.; C.V. testified that he did not, and that the only explanation he could give for any such video would be “Other than Jason planting a camera in my room, I don’t know how”. Just such a recording does exist, and C.V. testified he never had any inkling of its existence until he was shown the recording by the Crown.

C.V. confirmed it showed him engaged in masturbation while in his bedroom in the Accused’s trailer. C.V. acknowledged that Keough had wanted him to make just such a video because “He wanted to send it away and have it for -- to make porn videos and make money off of them”. C.V. viewed part of Exhibit 3B and in Court confirmed that the male in the room who was masturbating was himself, and that the recording was in C.V.’s bedroom in Keough’s trailer.

C.V. also viewed parts of Exhibits 2B and 8B, and confirmed the couple recorded while engaged in sexual activities were himself and J.W., and that these recordings were either in C.V.’s bedroom in the trailer, or in Keough’s house. In particular, C.V. noted a distinctive Jack Daniels Tennessee Whiskey blanket given to C.V. by his mother that was visible in many of these recorded sequences. [ 79 ] C.V. explained he was unaware the recordings still existed until he was contacted by police.

He currently resides in Nova Scotia, and remains in a relationship with J.W. [ 80 ] On cross-examination by Defense counsel it was pointed out to C.V. that, during the preliminary inquiry, C.V. had testified that he had concerns about making a video with J.W. because she was under 18 years of age but that during his examination in chief, he testified that he had no such concerns. Defence counsel also inquired why C.V. and J.W. had not met at some other location, and observed that several months after the couple relocated to Alberta J.W. had moved in with several of her Athabasca area friends.

C.V. said it was not realistic for him to spend the night with J.W. at that residence as her bedroom was very small, and “plus the people that she was staying with did not really get along with me as well as they did with her”.

Defense counsel noted that at the preliminary inquiry C.V. had offered a different explanation, that C.V. had to get up early for work and the Accused provided him a ride. [ 81 ] Defense counsel also questioned C.V. about the solo masturbation video, noting he had sat in two different positions, the first position where he is facing the video in a somewhat seated position on the bed, and the second where he is lying lengthwise on the bed. C.V. confirmed that is what the video recording depicted, and when challenged as to just how he had ended up “at all times you’re in the center of the camera’s image?

I was -- it was pointed right at my bed, so yes”. That said, C.V. disagreed with Defense counsel that he was “in fact, the person who set up that camera and that you knew that you were being taped”.

[ 82 ] I found points of C.V.’s testimony dubious, especially in regards to the solo masturbation scene. Review of the video recording makes it seem highly unlikely that the recording was obtained surreptitiously and without C.V.’s knowledge. C.V.’s explanation of the manner in which the J.W./C.V. recordings were obtained is problematic, and I found his explanations of that evasive and very defensive. I believe C.V.’s testimony is far from credible on that subject, and that his explanation of his interactions with the Accused must be examined with caution.

Later in this judgment I will conduct a more thorough review of C.V.’s account of his stay in Alberta and his interactions with Keough 6. J.W. [ 83 ] J.W. testified that she had been dating C.V. for the past five years. Their relationship started when she was 15 and lived in Wilmot, Nova Scotia. She testified that she travelled to Athabasca on June 6th, 2006 to live with C.V. and Keough at Keough’s home.

J.W. testified she had not met Keough prior to that point, though she had earlier spoken to Keough on the phone and indicated her age (16). [ 84 ] Most of J.W.’s testimony on the recordings of the couple parallels that provided by C.V. J.W. says she and C.V. had discussed making recordings of their sexual activities for their own purposes, but also that Keough had participated in those conversations. Specifically, J.W. testified that she and C.V. had first discussed recordings, Keough’s initial involvement was that he could provide the cameras.

However, J.W. testified that she and C.V. decided to not record their sexual activities. That was the point when Keough began to make demands. She testified that in a discussion with Keough he advised J.W. that if she was not willing to go back to school he was going to put her in foster care: “If I didn’t go to school, then I would be kicked out or put into foster care.

I got kicked out, so I moved in with a couple of my friends and then if I wanted to see Chris, then we had to make videos” at the Accused’s trailer. [ 85 ] J.W. testified that she and C.V. discussed the ‘sex recording for accommodation scheme’ and “agreed that we didn’t feel comfortable doing it, but we wanted to be together”. J.W.’s account was that after a recording had been made, C.V. would bring the camera into Keough’s bedroom, where Keough would take the camera and review the recording.

After the Accused had watched the video he would tell them whether or not J.W. was allowed to stay or not. [ 86 ] J.W.’s account was that this arrangement with Keough continued both at the trailer and subsequently at Keough’s house. J.W. believes that she and C.V. made about five of these videos. J.W. testified that ultimately both she and C.V. could not “take it anymore” and they did not “want to be separated anymore”, so they moved back to Nova Scotia. She testified that at this point both she and C.V. were told by the Accused that the videos had been destroyed.

J.W.’s testimony is that she never watched the recordings with Keough, the most she did was she once reviewed a recording “And it was through the eyepiece of the camera and that was in Chris’s bedroom”. [ 87 ] J.W.’s account was that she had minimal involvement recording the couple’s sexual activities, instead “Jason would bring the camera into our bedroom or Chris’s bedroom and put the camera on Chris’s dresser and show Chris which button to push to turn it on to record it and turn it off”. [ 88 ] J.W. testified that when she first came to live in the Accused’s trailer there were several other residents, a J.M. and L.M. came and stayed with them.

J.W. had never previously met either of these individuals although she knew of L.M. [ 89 ] J.W. viewed parts of several exhibits. On Exhibit 2B she recognized the blanket on the wall as being the one that C.V.’s mother had sent to him for his 21st birthday, the male in the video was C.V., and the location was the bedroom in Keough’s trailer. J.W. also viewed Exhibit 8B and confirmed she and C.V. were the participants engaged in sexual activities. The same blanket was visible on the wall. [ 90 ] J.W.’s account differs from C.V. on why the couple persisted in using the Keough residence.

She agreed her bedroom in the friend’s residence was very small, but J.W. did not indicate there was friction with the other residents. Instead, J.W. explained that C.V. and her friends socialized together, and that the couple had in fact met and had sex on several occasions at the friends’ residence. C.V. would come “over a couple of nights when he was allowed to. If they didn’t want him there, then he didn’t go there.” J.W. elaborated that when C.V. was not permitted to stay, he “wasn’t very happy with [that]”.

During cross-examination J.W. testified that the people with whom she stayed were good friends with C.V. and that the friendship was mutual.

[ 91 ] I found J.W.’s testimony to be plausible, except for her explanation of the origin and details of the various video recordings of her and C.V. Similarly, her account of her interactions with Keough is strange, it is unclear just how she and her boyfriend interacted with this person. I believe her account of her living arrangement with her friends.

Though her account of how C.V. got along with her roommates is different, I believe her explanation is more probable, particularly as she explained that C.V. could and had stayed overnight, but within certain parameters. [ 92 ] As noted, the testimony concerning the video recordings of sexual activities is troubling. It is my conclusion that the extortion scheme described by her and C.V. was designed to minimize their participation and instead make Keough squarely responsible for the creation of the J.W./C.V. recordings.

J.W. did not have a good explanation of why she did not respond to Keough’s demands by contacting the police, her parents, or some other authority. C. The Video Materials [ 93 ] Obviously, the video materials and their content are the lynchpin of this particular case. Two versions of most recordings were entered into evidence: a videotape recording, and a DVD copy of the same recording. These pairs were entered into evidence as the “A” and “B” versions of various exhibits: “A” is the videotape, “B” the DVD version. The DVDs were produced by RCMP during their investigations.

The Defence did not challenge that the DVD versions of the video exhibits were accurate reproductions of the VHS versions. The witnesses only viewed the DVD versions of the various exhibits, other than for Exhibit 15. [ 94 ] Early in the trial the Defence objected to the admission of certain video materials and challenged the relevance of some portions of specific recordings. I previously ruled on this point; that decision is reported as R. v. Keough , 2010 ABQB 736 . [ 95 ] To briefly recap that decision, two exhibits which depicted sexual activities of unidentified individuals were entirely excluded.

Certain other video materials which included recordings of the complainants and/or other witnesses also had portions that depicted sexual activity of unidentified individuals. I ruled that I would restrict the relevance of those other sequences to two points: 1. that there was further sexually explicit material on those recordings, and 2. that certain recordings appeared to have been ‘assembled’ in that sexually explicit sequences had been ‘recorded over’ other video recordings.

For example, Exhibits 3A and 3B have sexually explicit material apparently recorded over an earlier video recording of the Oprah Winfrey show. Similarly, Exhibits 4A and 4B appear to ‘collect’ other separate recordings. [ 96 ] All of these materials are clearly ‘amateur’ productions made with home recording equipment and ersatz lighting. Some have poor to very poor audio components, which impedes review of what is said by the various participants. [ 97 ] In

summary, the recordings have the following content: 1. Exhibits 2A, 2B [ 98 ] The original recording is a VHS videotape. This tape begins with the filming of S.C. and M.A. engaged in consensual sex. The next phase of the recording shows C.V. and J.W. engaged in consensual sex, this duplicates the sequence in Exhibits 12A and 12B, and the final sequence in Exhibits 8A and 8B.

[ 99 ] The next sequence recorded shows a lone and unidentified male masturbating. That is followed by a several second recording of a small female child (no sexual content or context) which is then apparently copied over by a series of sequences which show a single unidentified couple engaged in consensual sex and intimate activities. 2. Exhibits 3A, 3B [ 100 ] This recording, in a VHS format, begins with two sequences of an unidentified male engaged in masturbation.

Following that portion is a recording of C.V. engaged in masturbation in a relatively dimly lit room that contains a bed positioned parallel to a wall. At trial C.V. identified himself in that recording and stated this appeared to be the spare bedroom in Keough’s trailer. This recording is the one C.V. claims was made without his knowledge. [ 101 ] The C.V. sequence commences with C.V. entering into the field of the camera’s view, he then sits and lays nearly centered in the camera’s frame, and commences masturbating. C.V.’s position is unusual, as C.V. lays cross-ways across the bed, but facing the camera.

After several minutes he removes the pillow from the head of the bed, places the pillow behind him against the wall adjacent to the bed, and resumes masturbating. When C.V. initially sits and then lays across the bed, and while repositioning with the pillow, C.V. at various points appears to make eye contact with the camera. He then shifts once more, now laying lengthwise on the bed, with the pillow returned to the head of the bed.

That positions C.V. lengthwise to the camera. [ 102 ] The scene continues until C.V. reaches orgasm, at which point he almost immediately stands, moves directly towards the camera, extends his right arm out, and then the recording appears to cease, but immediately thereafter there is a short several-second sequence of the exact same room filmed from what appears to be the identical position, but now in daylight. No one is visible during the daylight sequence. The tape concludes with a recording of the Oprah Winfrey show and other television programming. 3.

Exhibits 4A, 4B [ 103 ] The original version of this recording is on a VHS format tape. This tape begins with the filming of an unidentified couple engaged in consensual sex. That is followed with a brief recording of two clothed females (no apparent sexual context) in what appears to be a commercial television program or movie. What follows immediately is a sequence of S.H. and L.C. engaged in consensual sex. L.C. appears to wear a short sleeved off white top with light colored short slacks.

The sexual activity occurs in the spare bedroom room in Keough’s residence that had the string of blue lights over the bed. There is no evidence that the couple are aware of the fact that they are being filmed. [ 104 ] The next phase of the tape shows S.H. and L.C. in the same room having consensual sex. The camera appears to be in the same location as the previous filming. L.C. is now wearing a dark top and cut off jeans or a short skirt.

The recording ends with S.H. covering the camera lens with a piece of cloth. [ 105 ] The following component of the tape shows S.H. and L.C. in the same room, again engaged in consensual sex. Once more, the camera appears to be in the same location as the previous filming. However, on this occasion L.C. is wearing a light-colored top somewhat like a halter top and long off-white pants. I conclude this is definitely not the same light colored long sleeved top she wore in the initial L.C./S.H. recording on this tape.

Comparing the three sequences on this tape I conclude there were three distinct occasions where L.C. and S.H. were filmed. The tape ends with a recording of various television shows. 4. Exhibits 5A, 5B [ 106 ] The original of this recording is a mini-cassette. The initial recorded sequence shows an individual who resembles the Accused. He appears to be hiding the camera lens under some clothing. This recording is in Keough’s spare bedroom. Later in the recording this person is more clearly visible; I conclude that this figure is Keough.

He appears to be setting up the room being recorded, he adjusts lighting, replaces bedding, and adjusts the position of the camera.

[ 107 ] That is followed by an extended period in which there is no visible activity recorded, but then L.C. and S.H. enter the room. L.C. is wearing the same short sleeved top and short legged pants that she was wearing in Exhibits 4A, 4B; the recorded sexual activity duplicates that in the first L.C./S.H. sequence in Exhibits 4A, 4B. The recording continues and L.C. and S.H. engage in sex. They leave. At the end of the recording an individual enters the room, picks up, and turns off the camera. I could not identify this person. 5. Exhibits 6A, 6B [ 108 ] The original recording, Exhibit 6A, is a mini-cassette.

The recording shows an unidentified individual who would appear to have the same body build as the Accused in the spare bedroom of the Accused’s residence. The figure appears to place the camera and set up the room. [ 109 ] The tape then shows L.C. and S.H. enter the room. L.C. is wearing the same light-colored top somewhat like a halter top and long off white pants that she was wearing in Exhibit 4A, 4B. The tape then shows S.H. and L.C. engage in consensual sex. At the end of the tape, an individual enters the room and covers the camera lens with a piece of cloth and turns off the camera.

The identity of this person is unknown. 6. Exhibits 7A, 7B [ 110 ] Exhibit 7A is a mini-cassette recording. The start of this recording shows an individual who has the same body type and build as Keough; he appears to be setting up lighting in the room, and places the camera. Again, the recorded space is Keough’s spare bedroom. There is a lengthy period in which no activity occurs. L.C. and S.H. then enter the room and engage in consensual sex. L.C. is wearing the same dark top and cut off jeans or short skirt as in Exhibits 4A, 4B.

The filming ends with S.H. covering the camera lens with a piece of cloth; the recording continues with the cloth-covered lens for a period of time. 7. Exhibits 8A, 8B [ 111 ] Here the original recording is a VHS format videotape. This tape commences with a recording of an unidentified couple engaged in consensual sex. What follows are a series of five recordings of J.W. and C.V. engaged in various sexual activities. The sequences appear to occur in at least two distinct locations.

The parties appear very well aware they are being filmed, C.V. appears to activate and deactivate the camera, both participants often look at the camera. The camera’s position and field of view remains constant in each sequence, with the exception of the end portion of the first recording, in which the camera is handheld, possibly by C.V. or an unidentified third party.

Sometimes the camera is picked up at the beginning or end of a recorded sequence. [ 112 ] The RCMP officer who searched Keough’s residence, Constable Meloche, testified he recovered this particular cassette from inside the VCR in Keough’s residence. 8. Exhibits 9A, 9B [ 113 ] This recording, a mini-cassette, was excluded from evidence, per my R. v. Keough , 2010 ABQB 736 decision. 9. Exhibits 12A, 12B [ 114 ] Here the original recording is a mini-cassette. This recording starts with an extended sequence of young persons at what seems to be a house party; there is no sexual content.

What follows is a sequence of C.V. and J.W. having consensual sex, this appears to be the same recording as the final sequence of that couple engaged in consensual sex found in Exhibits 8A, 8B. 10. Exhibits 14A, 14B

[ 115 ] The original recording was on a mini-cassette. This is a further recording of C.V. and J.W. engaged in consensual sex, and appears to be an exact duplicate of the first four sequences of this couple found in Exhibits 8A, 8B. 11. Exhibit 15 [ 116 ] No DVD version of this recording was entered into evidence; here the original is a VHS recording. It duplicates the S.C./M.A. recording present on Exhibits 2A and 2B. 12. Interrelationship of the Recorded Materials [ 117 ] A number of ‘duplicate’ sequences exist among the exhibits. For example, Exhibits 4A and 4B ‘collect’ the other S.H./L.C. recordings.

Some of these duplicates are ‘edited’, and eliminate or reduce parts of other recordings in which nothing occurs or rooms are being set up by Keough or a person who may be Keough. Exhibit 5A, 5B duplicates the first sexual recording of S.H. and L.C. on 4A, 4B, however Exhibits 4A and 4B do not reproduce certain parts of the recording (the room setup by Keough, the pre- and post-encounter sequences). Similarly, 7A, 7B is the same recording as the second L.C./S.H. sequence recorded on 4A, 4B; 6A, and 6B duplicates the third L.C./S.H. sequence in 4A, 4B.

When reproduced on Exhibits 4A and 4B, the 7A, 7B and 6A, 6B sequences have also been ‘edited’ to only include those parts of the recordings that depict sexual activity. I also note that all the ‘source’ recordings are in a mini-cassette format, which thus seem to have been ‘cropped’ and ‘collected’ onto a single VHS recording. [ 118 ] Similarly, there are duplicate sequences of J.W. and C.V.; 8A and 8B appear to collect the contents of 12A, 12B, 14A and 14B, both of which were mini-cassettes.

The J.W./C.V. sequence on 12A and 12B is also part of the Exhibit 2A and 2B compilation. [ 119 ] The two versions of the S.C./M.A. sequence (Exhibits 2A, 2B, and Exhibit 15) appear to be essentially the same. 13. Relevance of Recorded Materials [ 120 ] I note for clarity that the fact that Keough was in possession of recorded materials of a sexual or pornographic nature is not, in itself, relevant to this case. The Court recognizes that possession of any legal materials of these kinds does not reflect on the Accused character, his predilections, or his guilt or innocence.

D. “Similar Fact” Arguments [ 121 ] The Crown advanced an argument that there are parallels between the various alleged offenses which support the probability that events occurred in the manner described by the witnesses. This “similar fact” argument is that there are similarities between the alleged offenses that are sufficient that these similarities cannot simply be coincidental. Parallels in witness testimony reinforce witness credibility. The Crown notes that here the similarities do not relate to the identity of a wrongdoer, which was the principle consideration in R. v.

Handy , 2002 SCC 56 , [2002] 2 S.C.R. 908. Where similarities are used to link an accused to an offense, the similarities between the offenses must involve unusual features that provide a “calling card” or “fingerprint” (paras. 79, 91). [ 122 ] Here the identity of the alleged offender is not in question, rather the Crown argues the similarities provide more confidence

[122] Here the identity of the alleged offender is not in question, rather the Crown argues the similarities provide more confidencethat a particular witness ought to be believed, as that witness’s account parallels the account of another witness: R v. B.(C.R.), (SCC), [1990] 1 S.C.R. 717 at 739, 107 N.R. 241; R v. Carpenter (No. 2) (1982), (ON CA), 142 D.L.R.(3d) 237, 1 C.C.C. (3d) 149 (Ont.

C.A.). [123] Counsel for the Crown has identified a number of what she says are parallels between the various alleged offenses, whichinclude: 1. all the video materials were found in the same location, the Accused’s bedroom; 2. certain witnesses report Keough said the video materials had been destroyed or not retained; 3. Keough had groomed the recorded participants, particularly by suggesting careers in pornography; 4. Keough had provided the video recording equipment in each case; and 5.

Keough had retained the various video materials. [124] These parallels, the Crown says, should lead me to believe the accounts of the witnesses are accurate. She argues it would bedifficult for the various witnesses to collude with one another over what are a range of recordings made by different persons over aperiod of years, and involve people who were not generally in contact with one another. [125] With respect, I do not see the parallels as being quite so probative as the Crown would suggest.

I have earlier commented on myevaluation of the witnesses and their credibility; I believe that M.A., C.V., J.W., and S.H. were not honest and forthright when theytestified. In particular, I concluded the explanations provided by these persons of how the video recordings came into existence andKeough’s possession were implausible.

To a degree, that disrupts the parallels identified by the Crown, but in its place another importantsimilarity emerges. [126] I concluded M.A., C.V., J.W., and S.H. attempted to minimize their contribution to the creation of what is potentially illegalmaterial, either recordings of voyeurism or child pornography. All attempted to provide some explanation of how Keough obtained therecordings which would paint these witnesses in a more favourable light or as innocents.

For these witnesses to do so is not all thatsurprising, they were, in effect, attempting to divert attention from their own potential criminal misconduct. [127] The extent to which these witnesses have distorted or misstated their interactions with Keough is not easily assessed, but I notethe subject of their lies goes directly to the alleged parallels identified by the Crown. Was Keough a mastermind, shaping the behaviourof the various witnesses? Their lies are very different. S.H. says it was a dare, a bit of fun. M.A. says he trusted a friend and wasbetrayed.

J.W. and C.V. say they are the victims of a cruel coercive arrangement by their landlord. I do not believe any of them, and as aresult have little idea of whatever actually happened. [128] The three scenarios (or what I can reconstruct of them with any confidence) are quite different. One is a commercial transaction.M.A. testified he had no idea of the fate of the mini-cassette, so Keough may have obtained the S.C./M.A. recording from that source, orhe may have later been given or purchased the VHS recording.

With J.W. and C.V. almost every aspect of their relationship with Keoughis obscure. [129] Another point on which I am uncertain is how or if a prospective career in the pornography industry may be involved in thecreation of the various sexually explicit recordings. I do not doubt that sex was a topic discussed by Keough and his youngeracquaintances, however I am not certain I believe the account by M.A. and S.H. that Keough had encouraged these persons to enter intothe pornography industry. Similarly, I am skeptical that any of the recorded materials were for that purpose.

The strongest evidence thatsupports that parallel is the C.V. masturbation recording, which does seem to meet the descriptions by the witnesses of an ‘audition tape’.Of course, C.V. provides an entirely different explanation for how that recording must have been obtained. I can, at best, conclude that

there is a possibility that at least some of the recorded materials were produced for Keough’s benefit, but any marketplace or ‘audition’ use for the various sexually explicit video recordings is strictly hypothetical. [ 130 ] Another alternative (and one that I see as more probable) is that Keough had induced these young men to manufacture sexually explicit recordings that involved themselves under the guise that the recordings would then be used to promote a career in the pornography industry, but in fact that was simply an excuse; Keough always intended these materials for himself.

Nevertheless, these are hypotheses. Since I view the three male witnesses as unreliable I cannot identify a prospective pornography career as a parallel in the three video related offense scenarios. [ 131 ] Given the broad differences between the scenarios and the questionable quality of crucial Crown witness testimony, I do not see parallels that are ‘more than a coincidence’. I will therefore assess each of the three video related sets of offenses independently. [ 132 ] I will now turn to the three sets of charges, their supporting evidence, and my analysis of each. E.

Voyeurism Charges [ 133 ] The Criminal Code, s. 162(1) and 162(4) charges relate to Exhibits 4A, 4B, 5A, 5B, 6A, 6B, 7A, and 7B, all of which are recorded sexual activities of L.C. and S.H. I note that while C.V. testified that the video recording of his masturbation activities (Exhibits 3A, 3B) was made without his knowledge, no charge was laid on that basis. This analysis will therefore be restricted to the L.C. and S.H. recordings. 1. Evidence [ 134 ] L.C. testified that she was the female person in the recordings, and that she was unaware that her sexual activities had been recorded.

I have concluded that testimony is credible. Her account is bolstered by her conduct in the recordings. It would appear from my review of the recordings that she did not make deliberate eye contact with the camera, nor does she appear to position herself in relation to the camera. [ 135 ] Further, she testified and I accept that when she first became aware the recordings existed she was angered, and communicated that fact to S.H. in a text message. That reaction was acknowledged by S.H. in his testimony. [ 136 ] S.H.’s testimony is much more suspect. For the most

part I accept S.H.’s explanation of how he and Keough arranged to secretly film L.C. and S.H. having sex. The videotape evidence is very helpful as it clearly shows Keough prepared the video camera and the spare bedroom. [ 137 ] I am very certain that S.H. was well aware his sexual activities with L.C. were being recorded, indeed he testified that was the case.

Further, the manner in which he made eye contact with the camera, positioned himself between L.C. and the camera, and on one occasion apparently covered up the camera lens all indicate he knew the recording was underway, and that L.C. did not know she was being filmed. [ 138 ] I believe S.H. lied to make it seem that these recordings were the result of a playful wager, rather than what might be called an entrepreneurial scheme or conspiracy between Keough and S.H. to provide Keough with recordings of sexual activities.

S.H. admitted he was paid, and that he expected he would be paid every time ‘he delivered the goods’. S.H. said there were only two recordings, but careful examination of the physical exhibits reveals three. [ 139 ] I conclude S.H. was probably paid for each of the three recordings. It seems very strange that anyone would assume they would be paid each time they won a bet. However, when a person repeatedly provides a product (and essentially the same product), payment is

expected in each instance. [ 140 ] S.H. says this was just a casual bet, a bit of (extremely) misguided fun. I do not think that is correct, and I have concrete evidence on which to make that inference. The RCMP recovered the L.C./S.H. recordings in two forms; what appear to be the original or ‘raw’ recordings, and a compiled and edited version on a VHS tape (Exhibits 4A and 4B). I see no reason to believe anyone other than Keough had possession of the original mini-cassette versions of the recordings; he is the one who sets up the camera.

He logically is the one who took the original recordings, and compiled them into a VHS form in which the ‘uninteresting’ parts were removed. [ 141 ] Production of the collected and edited version of the recordings tells us something about Keough’s perspective on the L.C./S.H. recordings. These were sufficiently valuable and interesting that Keough took the time to assemble and edit the collected sequences into an easy to view format which he then retained.

That implies these recordings were not the product of some playful dare, but rather an end product that Keough found valuable for their obvious use, Keough’s own pleasure. I think S.H. knew that, and his explanation that the tapes would be erased once he ‘won the bet’ is a lie, and nothing more than another attempt on his part to minimize his wrongful conduct. [ 142 ] S.H. admits he was recruited by Keough to make the L.C./S.H. recordings, and was paid for his services. Keough clearly wanted and saved these recordings for his own use.

S.H.’s lies are to disguise the essentially exploitive character of their scheme, but those lies are made obvious by the form in which the L.C./S.H. recordings were recovered. [ 143 ] The accounts by S.H. and L.C. as to how they ended up in Keough’s spare bedroom are somewhat peculiar. L.C. did not seem all that closely associated with the Accused. That said, I accept that Keough had made his home available as a location for certain persons to engage in sexual activities, though how exactly that happened or with whom remains unclear.

The testimony of the witnesses does establish that it was not unusual for young persons and young adults to be present at the Keough residence. Apparently, the Keough residence was not only a ‘hang out’, but a convenient location at which Keough’s acquaintances could engage in sex. [ 144 ] Evidence of Keough’s participation in making the L.C./S.H. recordings flows from two sources. S.H. testified that Keough set up and concealed the camera.

Further, Exhibits 5A and 5B clearly shows Keough doing just that, and I have concluded that without a doubt the person deploying the camera in the spare bedroom is the Accused. Similarly, Exhibits 6A, 6B, 7A and 7B show the spare bedroom being prepared by a person who might be Keough. I conclude it was Keough who is recorded setting up the spare bedroom in the 6A, 6B, 7A and 7B recordings.

The parallels between the activities recorded in these exhibits, the clear identification of Keough in Exhibits 5A and 5B, and the testimony of S.H. and L.C. all support that conclusion. [ 145 ] I do not conclude that Keough’s absence from the Exhibit 4A and 4B L.C./S.H. recordings means anything other than Keough had edited himself out when he assembled that L.C./S.H. compilation recording. 2. The Law [ 146 ] Keough is charged both with what could be called ‘voyeuristic activities’ ( s. 162(1) ) and ‘making voyeuristic materials’ ( s. 162(4) ): 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.

(2) In this section, “visual recording” includes a photographic, film or video recording made by any means. ...

(4) Every one commits an offence who, knowing that a recording was obtained by the commission of an offence under subsection (1) , prints, copies , publishes, distributes, circulates, sells, advertises or makes available the recording, or has the recording in his or her possession for the purpose of printing, copying, publishing, distributing, circulating, selling or advertising it or making it available. [Emphasis added.] [ 147 ] There has been relatively little judicial commentary or application of these two Criminal Code provisions.

As a consequence, the specific wording of these sections will guide in my analysis. It seems that the s. 162(1) offense, what I have called ‘voyeuristic activities’, has three components: 1) surreptitious observation and/or recording, 2) where the observed or recorded person had a reasonable expectation of privacy, and 3) either: (

a) exposure or expected exposure of genitals and/or breasts, (

b) sexual activity, or (

c) the observation or recording was for a sexual purpose. [ 148 ] In this case the physical evidence establishes a recording was made and that sexual activity was recorded. The question thus is whether that recording was surreptitious, and whether the recorded persons had a reasonable expectation of privacy. [ 149 ] I have accepted that L.C. did not know she was being filmed. S.H. testified the camera used to film the L

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