R v MK, 2021 ABQB 300

Court of Queen’s Bench of Alberta Citation: R v MK, 2021 ABQB 300 Date: 20210419 Docket: 190191197Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - MK Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify NA must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice A. Woolley _______________________________________________________

Introduction [1] The Crown alleges that in 2017 the accused, MK, committed two acts of unlawful sexual touching in relation to his great-niece, NA. It further alleges that he showed her sexually explicit material for the purpose of facilitating a sexual offence. The relevantcounts of the indictment state: 2. That he, on or about the 14th day of January, 2017, at or near Calgary, Alberta, did, for a sexual purpose, unlawfully touch,directly or indirectly, with a part of the body or with an object, a part of the body of [NA], a person under the age of sixteen years,contrary to

section 151 of the Criminal Code of Canada. 4. That he, on or about the 14th day of January, 2017, at or near Calgary, Alberta, did, transmit, make available, distribute or sellsexually explicit material to [NA] who was, or who the accused believed was, under the age of 16 years, for the purpose of facilitatingthe commission of an offence under

section 151 or 152, subsection 160(3) or 173(2) or

section 271, 271, 273 or 280 with respect to thatperson, contrary to

section 171.1(1)(

b) of the Criminal Code of Canada. 6. That he, between the 15th day of January, 2017, and the 31st day of August, 2017, both dates inclusive, at or near Calgary,Alberta, did, for a sexual purpose, unlawfully touch, directly or indirectly, with a part of the body or with an object, a part of the body of[NA], a person under the age of sixteen years, contrary to

section 151 of the Criminal Code of Canada. [2] The Crown chose not to proceed on other charges related to the same events but based on s. 152 and s. 271 of the CriminalCode. [3] For the reasons that follow, I find that the Crown has proven MK’s guilt on all three Counts. [4] Attached as Appendix A is the plain language

summary of these reasons for judgment that I delivered orally in Court onFriday, April 16, 2021. Elements of the Offence – Sexual Touching/interference [5] To establish sexual interference or touching under s. 151 of the Criminal Code, the Crown must prove beyond a reasonabledoubt that the accused directly or indirectly touched the body of a person under 16 years of age for a sexual purpose.

The Crown mustshow that the accused specifically intended the touching for a sexual purpose, “for his sexual gratification or to violate the complainant’ssexual integrity”: R v H(DA), 2017 ABQB 193 at para 5-6, aff’d 2019 ABCA 26; R v WEM 2013 ABQB 680 at para 172, aff’d 2015ABCA 7 R v BJT, 2019 ONCA 694 at para 37; R v Chase (SCC), [1987] 2 SCR 293 at para 11. Elements of the Offence – Using Sexually Explicit Materials toFacilitate an Offence [6]

Section 171.1(

b) has not yet been subject to extensive judicial consideration, although decisions of this Court have held thatestablishing guilt under s. 171.1(

b) requires the Crown to prove beyond a reasonable doubt that the materials were sexually explicit asthat term is defined in the Criminal Code, that the accused made them available to a complainant under the age of 16, and that theaccused did so for the purpose of facilitating one of the offences listed in the provision. The cases note that s. 171.1(

b) is a specific intentoffence. R v H(DA) at para 8; R v MJM at para 174. [7]

Section 171.1(

b) structurally parallels s. 172.1(

b) of the Criminal Code.

Section 172.1(

b) makes it an offence tocommunicate via telecommunication with a person “who is, or who the accused believes is, under the age of 16 years, for the purpose offacilitating the commission of an offence under

section 151 or 152, subsection 160(3) or 173(2) or

section 271, 272, 273 or 280 withrespect to that person”.

Section 171.1(

b) makes it an offence to make available sexually explicit material to a person “who is, or who theaccused believes is, under the age of 16 years, for the purpose of facilitating the commission of an offence under

section 151 or 152,subsection 160(3) or 173(2) or

section 271, 272, 273 or 280 with respect to that person”. [8] The Supreme Court of Canada has identified the elements of s. 172.1(b). It noted that the offence is an incipient or inchoateoffence, a “preparatory crime that captures otherwise legal conduct meant to facilitate in the commission of a completed crime.

Itcriminalizes conduct that precedes the commission of the sexual offences to which it refers, and even an attempt to commit them”: R vLegare 2009 SCC 56 , [2009] 3 SCR 551 at para 25, emphasis in original. [9] The Court held that facilitate in this context means “helping to bring about and making easier or more probable”: Legare atpara 28, emphasis in original. The focus of the assessment is on “the intention of the accused at the time of the communication bycomputer”: Legare at para 29.

The relevant intention is specific, “[r]equiring the Crown to prove that the accused communicated bycomputer with the specific intent” to facilitate the commission of one of the designated offences: Legare at para 32-35. The Courtsummarized the elements of that offence as:

(1) An intentional communication by computer; (2) with a person whom the accused knows or believes to be under 14 years of age; (3)for the specific purpose of facilitating the commission of a specified secondary offence – that is, abduction or one of the sexual offencesmentioned in s. 172.1(1)(c) – with respect to an underage person: Legare at para 36. All of which, the Court emphasized, must be proven beyond a reasonable doubt.

[ 10 ] Applying the principles of Legare to s. 171.1(

b) establishes the elements of the offence consistent with the prior decisions of this Court. Specifically, the Crown must prove beyond a reasonable doubt that (1) the material was sexually explicit as defined by s. 171.1(5); (2) that the accused transmitted, made available, distributed or sold sexually explicit material; (3) to a person whom the accused knew or believed to be under 16 years of age; (4) for the specific purpose of facilitating the commission of an offence listed in the provision. Evidence of the Crown [ 11 ] The Crown offered the evidence of one witness, the complainant NA.

NA’s evidence was proffered in the form of a videotaped police interview from January 11, 2019, when she was 14 years old, admitted under s. 715.1 of the Criminal Code , and through testimony at trial given from outside the room in the presence of a support person, as contemplated by s. 486.1(1) and s. 486.2(1) of the Criminal Code . [ 12 ] During her video evidence, the police officer explained that the only “rule” was that she would tell the truth. He asked if she promised to tell the truth and she responded, “I promise to tell the truth”. [ 13 ] In January 2017 NA was eleven years old.

As of the trial, she is a 15-year-old currently attending high school. [ 14 ] NA testified that on the evening of January 14, 2017, which she recalled was a weekend, she attended a family gathering at the home of the accused MK. The gathering was attended by her family, and her aunts, uncles and cousins, although she was not certain how many people were there. [ 15 ] During the course of the evening, she was in the basement with six other children, all younger than herself.

She had been told by her sister to go downstairs to supervise the children, because they were little, between three and nine years old. [ 16 ] The accused MK was also there. She was on one couch in the basement with a corner to her right and a television to her left. MK was on a couch on the same corner of the room (with the corner on MK’s left), facing the TV. [ 17 ] NA testified that while they were sitting on the couches, MK started showing her videos – “porn” – on his phone, and was “jacking off”.

She said that she knew something was weird and wasn’t right, she had a weird feeling that she wasn’t supposed to be seeing this stuff. In response, NA recorded what MK was doing. She pretended that she was on her phone, but she was really recording him. MK did not know that NA was recording him. [ 18 ] NA kept the recordings and, when she ultimately told her parents about what happened with MK, she showed them the videos. When she went to the police, she shared the videos with them. The videos were introduced in evidence at trial.

The accused admitted the authenticity of the videos, and that they were recorded by NA on January 14, 2017. [ 19 ] The first video, taken at 9:56pm, is eight seconds long. It shows the accused, MK, sitting on a couch with a blanket up to his neck. No phone is visible in the video. The video shows MK moving his hand under the blanket in a motion consistent with him repeatedly stroking his penis. At the end of the video, he pats the couch once with his left hand.

During the video, MK looks in the direction of NA (since NA was holding the phone making the video), but also looks in a range of directions, including glancing up to his right. [ 20 ] The second video, taken at 10:11pm, is one second long. It shows the accused sitting on the couch. The blanket is beside him, not over him. He is looking in the direction of NA and smiling. He has a phone in his right hand, which has the screen pointed towards NA. A small child is in front of him. The small child is looking at him, and he flips the screen of the phone back towards his body.

MK is wearing a checked cotton shirt, and blue jeans. [ 21 ] The third video, taken at 10:13pm, is nine seconds long. It begins with only MK’s hand visible, showing the hand holding a phone with the screen towards NA. The image on the screen of MK’s phone appears to be people, but it was not possible to see the image accurately. The video taken by NA then shifts so that MK is visible. He has a blanket covering his body from the waist down. His right hand is out of the blanket, holding his phone. His left hand is under the blanket. The hand is moving in a motion consistent with him touching his genitals.

It does not have the same obvious stroking motion as in the first video, although the motion is consistent with sexual touching, not scratching, especially given MK’s facial expression. MK is staring intently at NA. [ 22 ] NA said that she could see that MK “was jacking off….I could see the blanket moving up and down…Very, like, subtly. So it was just, like, uh, he thinks I, like, wouldn’t notice or something”.

She said she could see the blanket moving “Around his, like, dick area…he wasn’t really being subtle about it”. [ 23 ] She said that while she did not really know that he was jacking off, she also did know: “I don’t really know how to explain it. But, like, I didn’t assume but kinda did at the same time”. She knew that the behaviour was not normal. She said, “you could see him looking at me really weirdly.

And it just gave me, like, a weird vibe kinda thing”. [ 24 ] NA testified that she understood MK patting the couch as him telling her to “come sit beside him…he, like, patted and I knew that I was, like, to come sit beside him”. She said that that was when she left. She said that he did not verbally tell her to come sit with him, but he “kept looking at me weird” and the pat is “normally what people mean”. [ 25 ] With respect to what was on MK’s phone, NA stated repeatedly in the police interview that it was porn. She also said in her police interview that “I didn’t know it was anything.

I was ju’ – I was, like, - I was eleven so I didn’t know anything”. She said in the interview that it was possible to see on the videos she recorded that it was porn. She said that she could see that the images he was showing her were porn. She said, “Based on the video you could see it and I could see it in person”. [ 26 ] At trial NA confirmed that she could see porn, she could see two people having sex on MK’s phone. On cross-examination,

when asked if she had been able to see what was on his phone in 2017, or whether she had zoomed in on it in the video she recorded and seen it later, NA responded that she did not know. [ 27 ] MK said that when she went upstairs she did not tell anyone because she “didn’t really wanna, like, make it seem like anything”. [ 28 ] NA then testified that about one hour later, on the same day, she went back downstairs to play hide and seek with her younger relatives.

She does not recall details of the game – for example, who was “seeking” – but she testified that she and her young cousin M were hiding together between the couches. They were lying on their backs facing up. She testified that MK took a pillow and used it to cover his hand while he touched her breast. She visually indicated that he was trying to touch the underside of her breast, and said that he was touching her with his palm. She said that she could feel his hand.

She said that she tried to resist, that she moved “very subtle and then, I, like, took the pillow and I, like, forced it under his hand”, so that eventually his hand was on top of the pillow. She said that she and the other children continued to play hide and seek, and MK returned to the couch. [ 29 ] NA said that at the time of this incident MK was the only adult in the basement. [ 30 ] NA testified that sometime in the months following the first incident, between January and August 2017, she attended another gathering, at a home in Chestermere. MK was also there.

There were more people at this event than had been at MK’s home. [ 31 ] NA was in the basement of the home, which was a large open area with three couches, a television and a play area. NA was sitting on a couch, and MK was also sitting on the couch. NA said that MK put a blanket over “Me and him”. NA said it was “really weird. And then he moved closer and closer” at which point he tried to put his hand down her pants. She said she tried to move away, but she eventually couldn’t move any further away, because she was at the end of the couch.

He put his hand halfway down her pants, touching in between her pubic hair and her vagina. She moved his hand away, and got up. [ 32 ] NA said she then went upstairs, but after she got there, her mother told her to go and hang out with the children downstairs. She went back downstairs and sat back on the same couch, because she was watching the children. She was sitting on the couch with her feet curled up. [ 33 ] MK was on the couch beside her and, again, put the blanket over the two of them. He then grabbed her left foot, removed her sock, and pressed it against him.

NA described it “something like soft and then it was, like, a bump”. NA said she was not sure if what she felt was fabric or skin, she said she “I was just, like, scared. So I didn’t know. I wasn’t really thinking”. She also said she could feel her leg on his leg. NA could not remember anything else about the incident. [ 34 ] NA said that she told one of her cousins about what MK did a couple of weeks after it happened. She told her family in late December 2018. [ 35 ] There were some inconsistencies and gaps in her testimony.

In her video statement, NA originally said the incidents happened in 2016, but later corrected that the date was in 2017, after looking at her videos.

She explained this inconsistency in her testimony by noting that she was asked by the police officer to give a rough idea of the time, and she got a bit mixed up when she did that. [ 36 ] NA also originally said in her police interview that the incident where MK touched her breast occurred on a separate date than when she recorded the videos, but later corrected herself in the interview to say that it occurred on the same day, one hour after she recorded the videos.

NA corrected this error unprompted. [ 37 ] NA in her video evidence said that she went upstairs after MK patted the couch beside him; however, that video was the first in the series of videos she took, not the last, so this evidence does not accord with the video record. [ 38 ] She also described the movement of the blanket as subtle, yet said that that he wasn’t being subtle. [ 39 ] Counsel for the defence identified a question with respect to the reliability of NA’s evidence that she and the younger children were playing hide and seek one hour after the videos were made.

Given that the videos were made between 9:56 and 10:13pm, an hour later would have been after 11pm. This meant that, in NA’s testimony, children of 7 and 8 were up and playing after 11pm.

Counsel also questioned the reliability of NA’s testimony given how many people were in the home – that is, whether it was plausible that MK would have behaved as NA described given how many people were around. [ 40 ] Finally, counsel for the defence noted that NA had an incomplete recollection of events; she did not remember the reason why they were at MK’s house, she did not remember whether any of the fathers of the children were in attendance or how many people were there, she did not recall how long she’d known MK, why she went back to the basement on January 14, 2017, how many kids were there when they played hide and seek, who was “seeking,” or how many kids were in the basement in Chestermere.

In addition, during her testimony at trial, she did not give an independent account of what happened in the Chestermere incident. NA asked to refer to the transcript of the video interview, then said she just remembers the two incidents, but not anything else about them. Evidence of the Accused [ 41 ] MK testified on his own behalf with the assistance of an interpreter. He said that he is currently 64 years old and married with five children. Two of the children live with him, and he is regularly employed.

He immigrated to Canada in 2013. [ 42 ] In January 2017 he was living with his wife and two children, while another of his adult children, his daughter-in-law and granddaughter lived in the basement. [ 43 ] MK acknowledged his familial relationship with NA, and that he knew that she was under 16, although he did not know her precise age. He acknowledged that he had been in the basement of his home with her, and had also been in the basement of the

Chestermere home with her. [44] MK denied touching NA’s breast. He denied putting his hand down her pants. He denied using her foot to touch his penis. Hedenied showing her pornography. He acknowledged that he had sexually explicit videos on his phone, but said that he did not show themto her, would never show them to children and would only watch them when he was on his own. [45] He said that he was downstairs during the family events because people smoke in the home, including his wife and children,and he finds the smoke unpleasant. [46] He said that in the videos taken by NA he was not masturbating.

Rather, he was scratching because he has persistent fungalinfections that he has experienced since he was a child. He said that he had not seen a Canadian doctor about these issues prior to Januaryof 2017, because he had brought medication with him to Canada when he immigrated in 2013. [47] He showed the court boxes and tubes of medication, along with a prescription that he later received in 2018, but the Court wasgiven no evidence about the nature of the medications, and the medication packaging did not state explicitly what they were for (e.g.,with a label like ‘anti-fungal cream’).

MK acknowledged that he had never filled the 2018 prescription. He said that the fungal infectionwas not on his penis, but was rather on his testicles and in the groin area. He said that it is always painful and itchy. [48] MK acknowledged that he was wearing jeans, but rejected the suggestion on cross-examination that the thick material of thejeans would have prevented him from scratching. He said that the jeans were stretchy and he could scratch through the jeans.

He saidthat he was not touching his penis in the videos, but was rather scratching his fungal infection through his pants. [49] With respect to the type of movement visible in the videos, he said that when he moved his hand up and down it was becausethe underwear lifts up and gets stuck, and he tries to get it down because the material caused a bad smell.

On being shown the video, hedenied that the movement was more consistent with masturbation than with scratching his groin. [50] MK was asked on cross-examination why he did not go to his bedroom or bathroom to apply the medication if he was itchy.He said that he only applied medication at night because it created a mess in his underwear. He also said that he could only apply themedication by lying on the bed, which precluded using the bathroom, and there were children sleeping in the bedroom.

He said it was hishouse, and he was sitting in his house, where was he going to go? [51] MK was asked about the length of time he was scratching. He denied that he was scratching for an extended period of time,although acknowledged that the videos showed him making the movement he said was scratching during intervals over ten minutesapart. He said that when he is itchy he scratches, and that no one was watching. [52] MK denied that during the videos he was looking at NA. He said that he did not pay attention to her, and that he had noreason to look at her.

He said that he was rubbing himself and scratching and did not pay attention to her. When it was pointed out that inthe video he can be seen looking at her, he denied that this was the case, saying that he did not pay attention to her, and asking why hewould look at her. When then asked where he was looking, he responded by asking where he was going to look, would he look at thesky? He said it was his house, and he wants to be comfortable in his own home and could look wherever he wanted.

Then, on the Crownnoting that he could have looked anywhere but did not, he questioned what NA was doing so that he was looking at her. [53] With respect to patting the couch, MK said that had he wanted to ask someone to come over, he would have patted the couchthree to five times, not once as is shown in the video. He said anyone Arabic is the same.

He denied that the patting motion in the videowas to invite her to sit beside him. [54] When asked about the video showing him turning the phone forward, he denied that he was turning the phone towards NA.He said that he did not remember what he was doing with his phone, but that he was not showing his phone to anyone. When asked aboutthe phone changing direction, he said that he changed it for maybe a second. He said that he does not let anybody watch anything on hisphone.

He further denied that he turned the phone into his body when his granddaughter was in the video to hide sexual content fromher. [55] When asked about the video showing him glancing towards NA as he put the phone down, he said he turned it because hewanted to watch, but that NA doesn’t mean anything to him, that he does not think about her. Burden of Proof [56] The Crown has the obligation of proving MK’s guilt beyond a reasonable doubt as that term is used in criminal law: R vLifchus, (SCC), [1997] 3 SCR 320 at para 39; R v Starr, 2000 SCC 40 at para 93.

MK does not have an obligation toprove his innocence, or to disprove the evidence offered by the Crown. [57] The Supreme Court explained what proof beyond a reasonable doubt means in cases where credibility is at issue in R v W(D), (SCC), [1991] 1 SCR 742 at para 10-11, noting that the trier of fact must acquit when they believe the accused, or whenthey do not believe the accused “but still have a reasonable doubt as to his guilt after considering the accused’s evidence in the context ofthe evidence as a whole”.

It set out a “formula” for trial judges to use when instructing juries on this issue, to avoid the “oft-repeatederror” in which a trial judge suggests to a jury that they “must decide whether they believe the defence evidence or the Crown’sevidence”: W(

D) at para 11 and 9. [58] The Court of Appeal elaborated on W(

D) in its decision in R v Ryon, 2019 ABCA 36 at paras 26-54, noting the problems withthe W(

D) formula becoming an incantation, particularly given that as an incantation it contains some aspects that could be confusing ormisleading. Justice Martin emphasized, for example, that it is only if the trier of fact believes exculpatory evidence that acquittal follows,but also that exculpatory evidence can arise elsewhere than in the testimony of the accused. He noted that the W(

D) formula does not

sufficiently distinguish between the subjective and objective elements of the offence, does not capture those circumstances where theburden of proof lies with the accused, and creates the risk that the trier of fact will use reasonable doubt in relation to one offence toacquit in relation to another offence, even though the basis for the doubt does not apply to the second offence. [59] Most significantly, Justice Martin emphasized that W(

D) does not provide sufficient guidance as to what it means to find areasonable doubt, noting Justice McLachlin’s point from R v S (WD), (SCC), [1994] 3 SCR 521 at 544 that “if the juryrejected…all of the evidence of the accused, it is difficult to see how that very evidence, having been rejected, could raise a reasonabledoubt” (cited in Ryon at para 37). Justice Martin said that triers of fact need to understand that they can accept, reject or be uncertainabout evidence.

And, importantly, where a trier of fact cannot decide which version of events is true, “that will usually indicate theyhave a reasonable doubt as to that evidence”: Ryon at para 40. [60] Finally, Justice Martin said that, in assessing the evidence, the trier of fact ought not to view the accused’s evidence inisolation from the evidence as a whole; rather, as suggested by the Ontario Court of Appeal in R v Carrière, (2001), (ON CA), 151 OAC 115, a trier of fact “could not assess an appellant’s evidence, except in the context of the rest of the evidence” (citedin Ryon at para 46). [61] More recently, in R v Randall, 2020 ABCA 52, the Court emphasized that importance of avoiding treating Ryon as the newincantation, noting that W(

D) remains the governing authority. Further, as a matter of principle, the key point is “to ensure that theburden never shifts from the Crown to prove every element of the offence beyond a reasonable doubt. When faced with competingstories, the trier of fact must not simply prefer one over the other”: Randall at para 62.

If the trier of fact believes exculpatory evidencenegating an element of the offence (or establishing a defence), cannot decide whom to believe, or cannot “resolve conflicting materialevidence”, they must acquit: Randall at para 62; Ryon at para 49; R v Osman, 2021 ABCA 114 at para 32. [62] The Court of Appeal has also cautioned that the fact that the accused simply denies the commission of the offence “isconsistent with the presumption of innocence and to reject it as self-serving, without more, would undermine that presumption and theconcerns underpinning the seminal decision of R v W(D)”: R v Titong, 2021 ABCA 75 at para 9.

Child Witnesses [63] NA is a child such that her evidence must be assessed consistent with the law governing child witnesses. The Supreme Courthas directed that evidence from children ought neither to be automatically discounted nor subject to a lesser standard of proof. Rather, itmust be assessed on a common sense basis, “taking into account the strengths and weaknesses which characterize the evidence offered ina particular case”: R v W(R), (SCC), [1992] 2 SCR 122 at para 25. [64] In his decision in R v H(DA), Justice Michalyshyn provided a comprehensive review of the case law governing childwitnesses.

While he noted that cases turn on their specific facts (at para 13), his analysis suggests some patterns in the case law. Issueswith reliability of child testimony arose in cases where the child only remembered the incident when thinking hard about it, where thereis evidence of coaching, where the child admits that certain core and material allegations did not happen, or did not happen as alleged, orwhere the child is inconsistent with respect to essential elements of the offence.

Reliability is not, however, called into question simplybecause the child does not recall, or is inconsistent about, peripheral or inconsequential aspects of the events: R v H(DA) at paras 9-50. Has the Crown Established Beyond a Reasonable Doubt MK’sguilt on Counts 2 and 4 of the Indictment (SexualTouching/Interference)? [65] I am satisfied that the Crown has established beyond a reasonable doubt that on January 14, 2017, and again between Januaryand August 2017, MK touched NA for a sexual purpose with a part of his body, contrary to

section 151 of the Criminal Code. [66] I reach this conclusion because I believe and accept the evidence of NA, I do not believe and do not accept the evidence ofMK, no other evidence raises a reasonable doubt about an element of the offence, and I have no uncertainty or disquiet about theinculpatory evidence sufficient to raise a reasonable doubt. [67] With respect to MK, I cannot reconcile his evidence at trial with the images on the videos made by NA. In the 9:56pm video,MK’s hand is not in the area of his testicles or his groin.

It is higher on his body, and moves to and from his body in a manner consistentwith stroking his penis, not scratching himself. At some points in that video, the shapes under the blanket are consistent with a hand andthe tip of a penis. In short, given what I can see on the videos, I do not believe MK’s evidence that he was scratching himself because ofa fungal infection.

Indeed, I do not believe that he was scratching himself at all; instead, the images on the videos are consistent withNA’s evidence, that MK was “jacking off” under the blanket. [68] I note in this respect that MK’s evidence explaining the movement of his hands as being an attempt to adjust his underwearalso does not accord with the images in the video. His testimony on this point was also somewhat incoherent; it appeared moreconstructed than an authentic recollection. [69] Further, the videos show MK looking right at the phone held by NA – that is, they show him looking right at her.

In the onesecond video from 10:11pm, he looks and smiles at her in a way I would describe as flirtatious. This cannot be reconciled with hisrepeated and somewhat hostile insistence that he never looked at her and had no interest in her. [70] Finally, his claim that he was not showing her the images on the phone are inconsistent with the video, especially the video at

10:13pm, showing him looking directly at her, and moving his phone with some deliberation towards himself, then to where she could see it.

MK was unable to articulate any real explanation as to why he moved the phone in the way that he did. [ 71 ] I also note in relation to the plausibility of his evidence that the medical evidence provided by MK did not meaningfully corroborate his claim that he had a fungal infection; it was evidence that he once received a prescription, and that he possesses tubes of medication, but it was not evidence that he has a persistent fungal infection which causes continual itchiness, and for which he, personally, has received medication or medical treatment.

The only evidence of his claim of a persistent fungal infection was his statement that he had one. [ 72 ] MK’s evidence about why he could not use medications to manage his alleged itchiness, rather than scratching his groin area so dramatically in front of – and while looking at – a pre-teen girl (which, if his evidence were believed, is what the video would show him doing), was also not convincing. The testimony that he had to lie down on a bed to put some cream on his groin, or that rubbing cream into his body would soil his underwear sufficiently that doing so needed to be avoided, were not believable.

Applying cream is not that onerous. [ 73 ] Ultimately, these problems with MK’s testimony undermine his credibility significantly enough for me to generally disbelieve his evidence, including his blanket denials that he touched NA in the way that she claims. Those denials do constitute exculpatory evidence, and that they are bare denials is not a sufficient reason to reject them; however, in the context of his evidence as a whole I do not believe them, and they are not sufficient to raise a reasonable doubt. [ 74 ] Conversely, I do find NA’s evidence to be believable.

She “was able to provide a coherent narrative, delivered in age- appropriate language” of the events of January 14, 2017, from her discomfort with MK’s “weird” behaviour and her resulting decision to film him, to her description of what he was doing while she recorded the videos and of his subsequent touching of her breasts: R v PS , 2019 ONCA 637 at para 27 . [ 75 ] NA was also able to provide a clear and consistent explanation of how MK touched her, the touching of her breast as well as what happened when he put his hand down her pants and when he used her foot to touch his penis.

In the recorded interview with the police officer, NA seemed somewhat embarrassed and reluctant to describe exactly what happened, but when she did so her description did not waiver at any point then or under cross-examination at trial. [ 76 ] As noted by counsel for the defence, NA did have inconsistencies in her evidence, and there were things that she did not remember. These inconsistencies do not, however, undermine her credibility or reliability as a witness. The inconsistency about whether the breast touching occurred on the same day as the videos or subsequently was corrected by her independently.

She was also able to explain why she originally said 2016 rather than 2017. [ 77 ] Further, none of the inconsistencies went to the elements of the offence. The timing of when she went upstairs is incidental.

In addition, in the context of her evidence, her description of the movement of the blanket as subtle, while saying that MK was not being subtle, is not necessarily inconsistent and, in my view, reflected her honest attempt to describe what she had seen. [ 78 ] I also do not view NA’s evidence that the children were playing hide and seek at 11pm as sufficiently implausible to call her reliability or credibility into question.

I do not have evidence to allow me to conclude that very young children would not be playing hide and seek after 11pm on a weekend, particularly as the video shows a very small child playing after 10pm. Nor am I prepared to draw a common sense inference that children would not be playing hide and seek after 11pm; the ordinary variations in parenting, and in the needs and habits of children, make doing so unreliable. [ 79 ] I also do not accept the defence submission that the number of people in the home makes NA’s evidence unbelievable or unreliable.

We know from the videos that MK was willing to act in inappropriate sexual ways despite the number of people in the home, including children.

Further, what NA describes – MK using a pillow to hide his hand while he touched her breast, and putting a blanket over him and her while he touched her – is consistent with him being aware of the number of people in the home, and trying to hide his activities from being discovered. [ 80 ] I agree with counsel for the defence that NA did not have a complete recollection of events, and there were things she did not know – for example, why they were at MK’s house, or who exactly was there – that an adult witness would likely have been able to recall.

These gaps in her recollection are, however, the type of gaps that Justice McLachlin suggested are typical of children, “Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection”: W(

R) at para. 24 . [ 81 ] Some of her other gaps in NA’s memory, such as who else was playing hide and seek, were not necessarily gaps specific to her being a child; they were, however, also reflective of the normal imperfections in human memory.

Given everything else she says happened that night, that NA cannot remember who else other than M was playing hide and seek with her is unsurprising; it does not suggest that her memories generally are suspect or unreliable. [ 82 ] I have considered the concern that NA was not willing or able to describe at trial the events that happened at Chestermere, asking to look at the transcript of the police interview, rather than answering the questions now being asked of her.

It was reasonable for counsel to ask her about those incidents to explore them on cross-examination, and NA could not answer the questions other than to say that she remembered the two incidents. Counsel was polite and appropriate in her questioning.

Ultimately, however, that does not detract from the clear evidence NA gave in 2019 on this point, including her description of the room they were in, where she and MK were sitting, and the interactions between them leading up to MK putting his hand down her pants, and placing her foot on his penis. [ 83 ] Having summarized and assessed the evidence in light of the presumption of innocence, I thus find that MK intentionally touched NA for a sexual purpose directly and indirectly with a part of his body contrary to s. 151 of the Criminal Code .

In particular, I find that he put the palm of his hand on her breast, outside her shirt. I find that he put his hand on her genitals inside her pants. I also find that he put her foot on his penis, although I make no determination whether it was inside or outside his pants. I also find that MK deliberately touched NA in these ways for his sexual gratification.

Has the Crown Established Beyond a Reasonable Doubt MK’s guilt on Count 3 of the Indictment (Sexually Explicit Materials)? [ 84 ] The first issue with respect to Count 3 is whether the Crown has established beyond a reasonable doubt that the video on MK’s phone were sexually explicit. In particular, did the Crown establish that the videos show people engaged in explicit sexual activity, or “the dominant characteristic of which is the depiction, for a sexual purpose, of a person’s genital organs or anal region or, if the person is female, her breasts” (s. 171.1(5)). [ 85 ] The evidence supporting the conclusion that the images were sexually explicit is in

part circumstantial. The third video shows MK acting in a manner consistent with him groping his genital area while showing his phone to NA and looking at it himself. He acknowledged that he had sexually explicit videos on his phone. He can be seen putting the phone down when his granddaughter looks at him. [ 86 ] NA provided direct evidence that the images were pornographic, and specifically that she could see two people having sex. [ 87 ] MK offered no evidence as to what the images were, if they were not what NA claimed them to be. [ 88 ] There are, though, some limits with the evidence on this point.

NA told the police that she “didn’t know it was anything…I was eleven so I didn’t know about anything”. She seemed to rely on having seen in her videos that the images were pornographic but, at least in the versions made available to me, it was not possible to see in the videos whether the images were pornographic. I could see that they were images, not text, but not what they were images of.

I also note that MK denies that he showed sexually explicit materials to NA but, for the reasons previously explained with respect to MK’s credibility, I do not put any weight on those denials. [ 89 ] In assessing this evidence, I note the guidance provided by the Supreme Court in R v Villaroman , 2016 SCC 33 at para 30 , that in assessing circumstantial evidence of guilt, the trier of fact must consider whether the evidence excludes any reasonable explanation or conclusion other than that that they were sexually explicit materials. [ 90 ] When considered in this way, along with the direct evidence, I am satisfied that the Crown has discharged its burden of showing that the materials were sexually explicit.

I do not know what other sorts of images MK would have been watching while touching himself in a sexual manner. It is not impossible that he was looking at cat videos or their equivalent, but it does not seem to be a reasonable possibility given his behaviour on the videos. This is particularly so given NA’s certainty, at trial and when talking to the police, that the images were pornographic.

She was specific in identifying that the image was of two people having sex. [ 91 ] I accept that NA may have become more confident in her knowledge that the videos were pornography as she matured and developed an understanding of what had been shown to her. That she later understood what she saw and could identify it does not, though, show that that identification is inaccurate. [ 92 ] My greatest disquiet comes from the reliance NA placed on what she saw in her own videos, where I could not see the images in the video myself. NA did not, though, see the videos in the same format or medium that I did.

She also had seen the images herself in 2017, not just on video, which I did not. I thus do not see that concern as sufficient to draw a negative inference as to NA’s reliability or credibility on this point. [ 93 ] As such, while I do not have unequivocal proof that the images were sexually explicit, the totality of the evidence satisfies me beyond a reasonable doubt that they were. [ 94 ] The second issue with respect to s. 171.1 is whether the Crown has established that MK showed NA the images for the specific purpose of facilitating the commission of an offence.

The evidence supporting this allegation is that MK showed NA the videos shortly before he touched her breast. He was showing her the video while touching himself in a sexual manner. He was looking at her in a way that was suggestive or flirtatious. And he patted the couch which, despite his evidence saying that a single pat is not an invitation, looks like an invitation for her to come and sit closer to him. As NA put it in response to the police officer’s question about why she understood it was a suggestion for her to sit next to him, “Uhm, because I knew he kept looking at me weird.

And then he – like, was like come sit. Like he didn’t say it…But, like, that’s normally what people mean”. [ 95 ] I am satisfied that this evidence establishes beyond a reasonable doubt that MK showed NA the images for the specific purpose of facilitating the commission of an offence. [ 96 ] With respect to the remaining elements of s. 171.1, MK admits that he knew that NA was under 16.

The videos prove that he showed the images to her. [ 97 ] As such, I find MK guilty of Count 4 of the indictment, that he made sexually explicit material available to NA a child, for the purpose of facilitating sexual offences against her, contrary to s. 171.1 of the Criminal Code . Heard on the 12 th day of April, 2021 to the 14 th day of April, 2021 and the 16 th day of April, 2021. Dated at the City of Calgary, Alberta this 19 th day of April, 2021.

A. Woolley J.C.Q.B.A. Appearances: Matt Dalidowicz for the Crown Eleanor J. Funk for the Accused Appendix A Mr. K, I am going to explain the reason for my decision to you in Court today. I have written my decision, and that will be provided to your lawyer on Monday, and she can provide it to you. But it will just explain in more detail, and with more technical lawyer language, the same things I am going to tell you right now. What I say here is taken from that decision. I’ve just summarized it and put it in language that will be easier for the translator to translate to you, and for you to understand.

We are in Court today because the Crown says that you committed crimes in relation to your great-niece, NA. The Crown says in particular that on January 14, 2017 you touched N for a sexual purpose. It says that you did that a second time in the six months after January 2017. And, finally, it says that you committed another crime because you showed N sexually explicit materials to facilitate the commission of sexual offences, including sexual touching. The provisions of the Criminal Code that the Crown says you violated are s. 151 and s. 171.1 .

The Crown had charged you with some other crimes, but they decided not to go ahead with those charges because they were all related to the same events as the charges they did proceed with. The Crown said you did these crimes. And my job, and the point of this trial, is to see whether the Crown can prove that you did them. As a person accused of a crime, you are entitled to be presumed innocent. You are presumed innocent. You do not need to prove your innocence, or disprove the evidence offered by the Crown. Rather, the Crown has to prove beyond a reasonable doubt that you committed the crimes.

What that means is that is I have to be convinced that you are guilty based on reason and common sense, looking at the evidence before me. If using reason and common sense, and looking at the evidence or absence of evidence, I have doubts about your guilt, and those doubts are not imaginary or frivolous, then I must acquit you. I am going to start with the crimes of sexual interference – which are the ones about you touching N for a sexual purpose.

To find you guilty of those crimes, I have to be satisfied beyond a reasonable doubt that you directly or indirectly touched the body of a person under the age of 16 years for a sexual purpose. I have to be convinced that you specifically intended to touch her for a sexual purpose, which means something like touching her for your sexual gratification. The evidence I have heard in this trial has convinced me that you are guilty of those crimes, both because of what happened on January 14, 2017, and because of the incidents at the Chestermere house.

My reasons for that decision are, first, that I do not believe the evidence that you gave denying that you touched N’s breast and denying that you put your hand down her pants and denying that you used her foot to touch your penis. I do not believe your evidence in part because I thought your testimony about what the video tapes show you to be doing was not true. What I saw on the videos was you touching your body above the area of your testicles and groin, which is where you said you were itchy. The motion of your touching looks like you are stroking and fondling your penis, not like you were scratching.

When I look at the videos it looks to me like you are doing what N said you were doing, “jacking off”. I do not think that your evidence that you were scratching yourself is true. The explanation you gave that the reason your hand was moving like it was is because you were adjusting your underwear did not make a lot of sense, and I thought it was something you were trying to come up with not your actual memory.

Also, you said a number of times that you were not looking at N, but on the videos I can see you looking at her and smiling at her. In the short video it looks like you are trying to flirt with her. You seemed quite angry and hostile when you denied looking at her in your testimony. Yet, as I said, the videos show me that you were looking at her. I think your evidence that you were not looking at her, and that you had no reason to look at her and no interest in looking at her, was not true. You also were not able to explain why you were moving the screen of your phone towards N and away from yourself.

Your actions look deliberate, but you could not explain them. I have considered your evidence about the fungal infection, and the medications you brought to court. But I can’t tell what those medications are for, and they might not even be yours – they don’t have a name on them. I don’t know what the prescription was for, you only received it in 2018 and it was never filled. The only evidence I have about your fungal infection is your testimony, and I don’t think your testimony was honest or reliable. You might have a fungal infection, or have had one from time to time. That is believable.

But I do not believe that you had a fungal infection that caused you to itch and made you scratch that night. I do not believe you were scratching. I also was troubled by your evidence about not going to the bathroom to apply the cream. Part of that is because, if I believed your evidence about scratching, which as I have explained I don’t, what you were doing would not have been very nice. You would have been overtly and dramatically scratching your groin while staring at an 11 year old girl.

And the only reason you gave for doing that instead of going to the bathroom to apply the cream to relieve your itching was that you had to lie down on the bed to apply the cream, and applying cream would make your underwear dirty. I don’t think that’s a believable story. Applying cream is not that big a deal. And even if it was a big deal, it would have been much more appropriate than doing what you were doing under that blanket. Again, though, I confirm that I do not believe you were scratching yourself. All of these things make me think that you were not truthful in what you said to the court.

And that makes me think that your other evidence, denying what happened, wasn’t truthful either. I do not believe your evidence denying that you touched N’s breast, denying that you put your hand down her pants and denying that you used her foot to touch your penis. I don’t believe it because I do not think your testimony to the court was honest or truthful. Also, as I will explain, I do believe N and think her evidence was truthful and reliable. You did admit that you knew that N was under 16 years of age and I accept that admission. My second reason for finding you guilty is because I think N told the truth.

She gave reliable evidence to the court which establishes that you committed the crime you were charged with. She provided what some courts call a “coherent narrative” about what happened. She was clear and she was consistent on all the important things about when you touched her and where. She told the Court that she was uncomfortable with what you were doing on the night of January 14, 2017 and so she started filming you.

Through the video of her interview with the police, and her testimony by video in court, she told the court that she could see you jacking off, and that you showed her porn, you showed her images of two people having sex. She said that later, while she was playing hide and seek and hiding with M, you put your hand on her breast, while concealing your hand with a pillow. She said she resisted, and subtly moved the pillow between your hand and her breast. She also described how, at the later event in Chestermere, you were sitting on the same couch as she was.

You came towards her on the couch, and you put your hand down her pants, to the area between her pubic hair and her vagina. She described how you took her foot, removed her sock, and put it on something she thought was your penis – it was soft with a bump on the end. She couldn’t tell whether it was her foot on your pants or directly on your skin. She could feel her leg on your leg. N did have inconsistencies in what she said. She did have things she did not remember, but many were things that could be expected from a child witness – about which family members were there and what the event was for.

None of her inconsistencies went to what we would call the “elements of the offence” which means her evidence about you touching her body for a sexual purpose. I do not think the fact that her story depends on children being up after 11 makes her story not plausible. Parents and children vary a lot in how they behave, and the event was on a weekend. Plus we know your granddaughter was up and playing after 10pm, so this was a situation where little children were up late.

Also, I think even a non-child witness who experienced the things N did that night might not remember some of the details that she couldn’t remember, like who else was playing hide and seek beside her and M. Those gaps in her memory do not make me disbelieve N. The issue raised by your lawyer, of N not answering her questions at trial about what happened at Chestermere, was something I considered. Your lawyer was very polite and appropriate in her questions, and the questions she asked were reasonable.

Ultimately though I did not think that the limits on N’s testimony on that point were enough to undermine the believability of her evidence in 2019 about what happened in Chestermere. Finally, I also find you guilty because when I consider everything as a whole, I don’t have any facts that I’m uncertain or unsure about, with respect to whether you committed these offences, and I don’t have any doubts about the evidence which shows your guilt. As a result, I find that you, Mr. K, intentionally touched N for a sexual purpose directly and indirectly with a part of your body contrary to s. 151 of the Criminal Code .

In particular, I find that you put the palm of your hand on N’s breast, outside her shirt. I find that you put your hand on her genitals inside her pants. I also find that you put her foot on your penis, although I make no determination about whether it was inside or outside your pants. I also find that you deliberately touched N in these ways for your sexual gratification. That brings me to the charges about you showing her sexually explicit materials to facilitate the commission of an offence.

To find you guilty of that offence, I have to be convinced that the Crown has proven beyond a reasonable doubt that the images were sexually explicit, that you made them available to a person under the age of 16, and you did so for the purpose of facilitating another criminal offence, including the sexual interference. I have to find that you specifically intended this purpose.

The two difficult questions on that charge are about whether the images were sexually explicit, and the purpose you had in showing them to N. You have said that you knew she was under 16, she was under 16, and it’s clear from the video that you showed the images to N. With respect to the images, the evidence that supports the conclusion that they are sexually explicit is, first, what you were doing on the videos when you showed the images to N – that you were groping your genital area in a sexual manner. Second, that you acknowledged that you had sexually explicit images on your phone.

Third, that you put the phone down when your granddaughter was looking at you. Fourth, that N said the images were pornographic and, specifically, that they showed two people having sex. It is also relevant that you had no evidence about what the images were if they were not sexually explicit. I understand that it was a long time ago and you might reasonably not remember, but it is one consideration in my analysis.

Evidence which complicates the conclusion that the images were sexually explicit was that N said that at the time she was eleven and “didn’t know about anything.” Also, she seemed to rely on her videos in concluding that the images were pornographic. But when I looked at the videos, I was unable to see what they were, other than that they were images not text. You denied showing sexually explicit material to N, although because of what I said earlier I don’t put any weight on your denial.

In looking at this evidence, I have taken into account the guidance of the Supreme Court, which says that evidence like this can support a conclusion that something is proven beyond a reasonable doubt only if the only reasonable explanation or conclusion is the one the Crown wants me to reach. Here, that the images were sexually explicit. I have decided that this is the only reasonable explanation. I do not know what other sorts of images you would have been watching while touching yourself in a sexual manner.

It is not impossible that you were looking at cat videos or something like that, but it does not seem to be a reasonable possibility given your behaviour on the videos. In reaching this conclusion I rely on N’s certainty, at trial and when talking to the police, that the images were pornographic. She was specific in identifying that the image was of two people having sex, which is a sexually explicit image as defined by s. 171.1 of the Criminal Code .

I accept that N may have become more confident in her knowledge that the videos were pornography as she matured and developed an understanding of what had been shown to her. That she later understood what she saw and could identify what it was does not, though, show that that identification is inaccurate. My greatest uncertainty comes from the reliance N placed on what she saw in her own videos, where I myself could not see the images in the video. N did not, though, see the videos in the same format or medium that I did. I also did not have the benefit of having seen the images in real life, as she did.

I thus do not see that concern as sufficient to draw a negative inference as to N’s reliability or credibility on this point. As such, while I do not have unequivocal proof that the images were sexually explicit, the totality of the evidence satisfies me beyond a reasonable doubt that they were. That is the only reasonable conclusion based on the evidence I have. That leaves the final issue, about whether you showed N the images for the specific purpose of facilitating the commission of an offence. The evidence supporting this allegation is that you showed N the videos shortly before you touched her breast.

Shortly – it was an hour. You were showing her the video while touching yourself in a sexual manner. You were looking at her in a way that was suggestive or flirtatious. You patted the couch which, despite your evidence saying that a single pat is not an invitation, looks like an invitation for her to come and sit closer to you. As N put it in response to the police officer’s question about why she understood it was a suggestion for her to sit next to you, “Uhm, because I knew he kept looking at me weird. And then he – like, was like come sit. Like he didn’t say it… But, like, that’s normally what people mean”.

I am satisfied that this evidence establishes beyond a reasonable doubt that you showed N the images for the specific purpose of facilitating the commission of an offence. Mr. K, would you please stand up. The Court finds you guilty of the charge of sexual touching, contrary to Criminal Code s. 151 , as contained in Counts 2 and 6 of the indictment; and, finds you guilty of the charge of showing a sexually explicit image to a minor to facilitate a listed criminal offence, contained in Count 4 of the indictment.