His Majesty the King - v. -, 2023 SKPC 43

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2023 SKPC 43 Date: July 17, 2023 Information: 991147947 Location: Regina _____________________________________________________________________________ Between: His Majesty the King - and - Brent O. Nerenberg Appearing: Mr. Loren Klein For the Crown Mr. Danish Shah and Gulzaib Fida For the Accused JUDGMENT D. KOVATCH , J BACKGROUND [ 1 ] The accused posted an advertisement asking for models for a photoshoot. The complainant applied, and the complainant and accused executed a form of written agreement.

The complainant attended at the accused’s studio on two occasions for the photoshoot. Immediately following the second session, the complainant reported the matter to the police and the accused was charged with sexual assault. Following the trial, I reserved my decision. This is that decision.

The

Section 278 Application [ 2 ] The accused posted an ad on the Internet, in which he asked for models to pose for a photoshoot. The complainant answered that advertisement, and they met at the accused’s studio. At that time, they executed a written agreement, which I will examine in more detail later. At this time, suffice it to note that the agreement provided for the complainant to pose for various types of photography, including lingerie, topless, nude, art nude, etc.

One provision of the written agreement was that the complainant would release and turn over all property rights in the photographs to the accused, so that he could attempt to market them. On two separate occasions, a number of photographs of the complainant were taken in various states of undress. [ 3 ] Following the commencement of these proceedings, defence counsel complained that the Crown did not obtain and seize copies of all of these photographs, and make them part of the evidence at trial.

Crown counsel advised that not only would he not put the photos into evidence, it was his position that these photos were private records of the complainant that were in the possession of the accused, and that pursuant to

section 278.92, the defence would have to make an application for their admission. Defence counsel argued that the complainant had turned over all property in these photos to the accused and had no privacy interest in the photos. As a result, a

section 278 application was not required. The matter proceeded to argument as a stage one application pursuant to

section 278, or alternatively, an application to the Court for directions. I concluded that they were private documents and the

section 278 application would have to proceed to stage two. In addition, I held the parties could not negate the effect of

section 278 simply by executing an agreement. Further, I held the complainant never contemplated that these photos could be produced for cross-examination in a criminal prosecution. [ 4 ] At the stage two application, it was common ground that the photographs were simply nude photos, and did not provide any evidence of a sexual assault. I suggested that if the Crown admitted as a fact that the photos did not provide any indication or evidence of an unwanted touching or sexual assault, then defence counsel would be in the same position as if the photos were actually admitted into evidence.

An agreement was reached to that effect. The Crown formally read an admission into the record. It was my view then, and remains my view, that nothing of any probative value would have been gained by admission of the photos. The only purpose to be served by admission of those photos was embarrassment and intimidation of the complainant. The factors set forth in

section 278.92(3) all pointed to proceeding on that basis. The trial did proceed on that basis. The Defence Application for a Mistrial [ 5 ] During cross-examination of the complainant, Defence counsel suggested that she went to the police and reported a sexual assault to attempt to stop the accused from publishing or placing the photographs on the Internet. The complainant said she went to the police to report an unwanted sexual touching and sexual assault, and that she was not concerned about the photos being posted on the Internet. Defence counsel then asked the Court to declare a mistrial.

He argued that she admitted under oath that there was no privacy interest, that my ruling was wrong and denied his client a fair trial. [ 6 ] I dismissed defence counsel’s motion. Defence counsel implied that the complainant’s counsel at the stage two application, took this position without authorization or direction from the complainant. There was not the slightest evidence of that. The complainant and her counsel were entitled to take the position they took regardless of statements made by the complainant under cross- examination about how she felt about release of the photos.

Further, these statements did not mean there was no privacy interest. Most importantly, whether there was or was not a privacy interest, the photos were not relevant and had little or no probative value. There is no question or issue that the photos were taken. The question is whether there was a sexual assault on the date of the photoshoot. The photos are irrelevant and provide nothing of probative value in the determination of this question. The accused had a full right of cross- examination, and no possible defence was denied to him as a result of the ruling.

The Evidence [ 7 ] The complainant, C.I., testified that she is 29 years old. She has a grade 12 education, and resides in Saskatchewan. She was 27 at the time of this incident. [ 8 ] She testified that she was doing the same job for some time, and was looking to supplement her income. She had no experience in modelling or as an independent contractor. She noticed an advertisement on Facebook. It indicated “Models Wanted”. She did not recall if it indicated what kind of models. She looked at some reviews of the accused’s company, BN Photography and found no negative reviews.

She responded, through Facebook Messenger, thinking she would try something new. The accused asked some questions that she responded to. There was some discussion over the Internet, and they arranged for an interview.

[ 9 ] They personally met for the first time in mid-September of 2020. She drove to the accused’s home in north Regina. The interview took place in his studio, which was located in a separate and detached garage that had been converted into a studio. Only the accused and the complainant were present for the interview. He spoke of his business and studio. He indicated that he was previously doing landscaping but COVID had ruined his business. [ 10 ] She indicated that he showed her some photographs of others that he had taken. He gave her a contract to sign. She did not read it, but signed it.

He said he would submit the photos to somebody else and she could get a cut of the sale proceeds. He advised her that he would tell her how to pose and he would take the pictures. They agreed that he would take boudoir and nude photographs of her. [ 11 ] He advised her as to what kind of clothes to wear and what not to wear. He advised her to wear lingerie and heels, and skimpy clothes. He suggested that she bring with her some props, such as sex toys.

She stated he indicated these would only be props, and he did not say anything about using them. [ 12 ] During this initial interview, he had her take off her clothes and took some photos to show that she was fine and comfortable with nude photos. He then indicated to her that she would get the modelling position. [ 13 ] A questionnaire that was completed at the initial session was entered as Exhibit P-1. She was in agreement with boudoir, lingerie and nude photography, but not with fetish or erotic photography. She advised that she expected to pose in the nude.

However, there was no discussion or expectation of any sexual touching. She indicated that she expected money for the photos and in fact was looking forward to the extra money. However, she also agreed that the contract itself did not give her anything. She agreed she filled out and signed the contract without reading it. [ 14 ] The Crown entered an exhibit containing screenshots of text messages between the complainant and the accused. In one text, she asked about the pay, and the accused appears to avoid a response. Via the texts, they agree and confirm the initial meeting on September 17 of 2020.

The actual photoshoot was initially scheduled for just days after September 17. However, it was delayed at least a couple of times, and actually took place on October 7, 2020. Prior to October 7, there were a number of texts about the outfits that the complainant would wear for the photoshoot, about toys and getting ready for the photoshoot. The communications between the accused and the complainant leading up to the October 7 photoshoot appear to be casual and unremarkable. [ 15 ] C.I. testified that on October 7, 2020, she had the day off. She had a bad feeling about the upcoming session.

She packed a box with clothes for the photoshoot. She had at least five outfits, high heels and sex toys. She drove from her home in the Lumsden area to the accused’s home and studio in north Regina. She arrived there just a few minutes early, and went to the studio which was located in a garage at the back of the yard, on the alley. She entered the studio and the accused closed and locked the door. The studio had a chair, lights, a bed and a dresser. On the dresser was a vibrating dildo.

She indicated it did not appear to be a well equipped or professional type studio. [ 16 ] On arrival she had on street clothes and had the various outfits for the photoshoot in a tote box. She changed into lingerie. He began taking pictures. She said he kept touching her boobs. He kept telling her how to pose. He said use the dildos. She said no, as the dildos had no batteries. They were only props. At this time, he grabbed hers and told her how to use it. He then grabbed it and started using it in her. He fingered her clitoris and kept on telling her to smile.

During one of the changes of outfits, he again grabbed and felt her boobs. [ 17 ] She indicated there was no private place, or even a screened off area for her to change in. He took photos for about 10 minutes, then there was a change of outfits. Again, he kept telling her how to pose. [ 18 ] She described the studio and where the bed and dresser were located within the studio. She then indicated that the first photoshoot using the first outfit was not very long. There was no inappropriate touching or conversation during the first part of the shoot. He did not like the first outfit, so she changed.

The second outfit was similar, but in different colours. The photos continued. At this time the touching started. He had his hand on her boobs, and was touching, squeezing and holding them. She indicated it was the non-dominant hand. The dominant hand held the camera. She could hear the camera clicking, and thought he was taking pictures. She said later, he was squeezing her boobs harder and touching more. She did not think he was taking photos then. He never said anything about touching her. She felt awkward.

[ 19 ] He then wanted her to change into lingerie and take pictures on the bed. She wore a purple lace bra. He told her to lay on the bed and to spread the props on the bed. She told him the props had no batteries. He said okay and gave her the purple dildo that he had. He turned it on and gave it to her. She stated that she was shocked and did not know what to do. She held it near her vagina. She was trying to look like she was using it. At that time he grabbed it and started using it on her. He was not taking photos anymore. He inserted it inside her vagina. He did not say anything. She did not say anything.

She indicated that she did not know what to do. Finally she said she would do it herself. He giggled and laughed and said okay. [ 20 ] He then asked her to get on her knees on the bed. He kept moving towards her. She felt that he was trying to rub his genitals against her but admitted it was hard to tell. [ 21 ] He then suggested another outfit change. She changed and went to a back wall to pose. Again he was grabbing at her breasts and pinched and grabbed them. He pulled out her boobs and put them over her shirt. [ 22 ] At one time he said I guess I should have asked if that was okay.

He kept telling her to smile, and to try different poses. [ 23 ] He wanted her to go back to the bed. She wanted to stop the photoshoot and get out. She started making excuses about being very tired and not feeling well. The accused seemed disappointed but they agreed to reschedule and resume the photoshoot the following Wednesday. She stated that she changed as quickly as possible, put her things in her tote box and left. [ 24 ] She said she drove to her home in the Lumsden area. It would normally take 25 minutes to get there.

This time it took longer, as she had to stop as she was having a panic attack. [ 25 ] Once at home, she called a couple of friends. Then she called the Lumsden detachment of the RCMP. They asked her to come in and give a statement. She drove to that detachment, arriving about 4:30 to 5:00 p.m. [ 26 ] She testified that the accused showed her only a few photos that were taken right at the beginning. He never sent her all of the photos. She said she was never paid anything. [ 27 ] After the photoshoot, he sent her a number of messages on Facebook. She took screenshots of a number of the messages sent to her.

These were entered as Exhibit P-2. The last messages he sent were dated October 27, 2020, and appear at page 48 of Exhibit P- 2. Those messages read as follows: Hey C_____, I am just confirming that we are still good for our photoshoot tomorrow (Wed) at 1:00 pm? I haven’t heard from you so I will cancel our shoot for tomorrow (Wednesday). It has been two weeks and I haven’t heard back from you so I will delete all photos and move on. thanks.

She said she believed he had deleted all of the photos. [ 28 ] She testified that a little while later, she put a review page on Facebook, warning other models not to have anything to do with him. [ 29 ] She advised she was completely sober during the interview and photoshoot. She believes he was sober. Lastly, she stated there was no consent to any physical touching. [ 30 ] Under cross-examination, C.I. advised that she is 29 years of age and has a grade 12 education. She worked as a cook. She is not now under any prescribed meds and was not on any prescribed meds in October of 2020.

She advised that she thinks she is a good reader and has a cell phone.

[ 31 ] She was asked about executing a number of personal and financial documents, and confirmed that she has executed such documents. She said she usually reads such documents. [ 32 ] She indicated that she looked at the “Jobs Hiring-Local” heading on the Internet and got to the accused’s website. She was looking for extra income. Counsel referred her to Exhibit P-1, the contract and questionnaire. She agreed that she wanted to try something new and gain self- confidence. In answer to question number five, she answered that she was self-conscious.

She agreed that at the initial interview, she agreed to do nude modelling and that the accused took a number of pictures of her. This happened in his studio. She stated there was no place to change, and no private change area. He asked her to take off her clothes and she did. She had to stand in front of him as she did that. [ 33 ] She was shown a series of pictures, which were marked as Exhibit D-1 for identification. She stated that the pictures did not show how the studio was set up at all.

She indicated there was no privacy screen when she was there. [ 34 ] When asked about her memory, she indicated she had a photographic memory, and could recall everything that the accused did. She then agreed there were some differences between her testimony and what she told the RCMP. She acknowledged that she has blocked some things out as it was a very traumatic experience. She stated she had a clear recollection of what happened. She did agree she was very scared and nervous at the photoshoot and was hypersensitive. [ 35 ] She stated that it was the accused’s idea that she bring sex toys to the photoshoot.

She brought three dildos and some other things. She also agreed that she brought the toys with no expectation that they would be used. [ 36 ] On October 6, she had a tattoo placed on her leg. She sent a picture of that to the accused. She agreed it takes some time for a tattoo to heal. She also sent the accused a picture of the tote box containing the items that she would bring to the photoshoot. [ 37 ] She indicated she did not discuss with anyone what process would be followed in the photoshoot or what was required to be a nude model.

She agreed that she told the accused she would be comfortable in nude photos, and that he was courteous in his text messages. [ 38 ] For the photoshoot, he directed her on what clothes to wear and how to pose. He had his clothes on the entire time. She believed the props, i.e. the dildos and sex toys, were only to be there as props; they were not to be used. [ 39 ] She stated that she did not use the dildo on herself, and she believed she told the RCMP this. She was confronted with a videotape of her statement to the RCMP. It appears she told the officer at that time that she did use the dildo on herself.

She denied she was lying and said she was in a fog. She stated that she did not push the dildo into herself. She then stated that she was on her period at that time. She agreed she made no mention of that in her statement to the RCMP. She testified that she may have touched herself with the dildo but she did not insert it into her vagina. [ 40 ] She agreed she told the officer “she went with it”. She also agreed she told the RCMP officer she could do it herself. Defence counsel suggested that she did not tell the accused to stop. I believe she agreed with that.

Counsel also suggested that the accused asked if he could touch her boobs and she did not respond. She stated that he did not ask at all. She also stated that the accused put his fingers on her clitoris. She stated she was pretty sure she told the RCMP officer this. She agreed she told the RCMP officer that the accused took pictures as he touched her boobs, and that she did not tell him to stop. She agreed he did not object to her leaving. [ 41 ] She stated she has never seen the photos taken. She agreed the accused touched her as he held the camera. She heard the clicking shutter.

She thought he was taking photos. She could not recall if he took pictures of all the touches. She could not recall for how long the photoshoot went on. She did say she grew more anxious when he started touching her. She could not recall which hand he held the camera in. He used more than one camera. One was bigger and appeared heavier. One was older and smaller. She stated he did not need both hands to manipulate the camera. It was possible that he held the camera in his left hand. [ 42 ] The complainant testified that she believed she was laying down when he handed her the dildo. He was standing beside her.

Then he got on the bed. His knees and hands were on the bed as he took photos. He was leaning over her as he pushed the dildo into her. She did not recall telling the RCMP that he was on the bed. She emphatically denied that he accidentally touched her breast, and stated that he put his full hand on her breast.

[ 43 ] When asked if her leg got sore from being on the bed, she stated that it did not. She told the accused the tattoo was sore, and used this as an excuse to end the photoshoot and to leave. [ 44 ] She stated that at the time she was okay with the photos being put on the Internet. She did not regret the photos being taken until he started touching her. She advised her friends what had happened, and they advised her to go to the police. She denied her goal in going to the police was to prevent him from selling the photos. She stated her goal was to hold him accountable.

Under re- examination, she agreed that she did not remember everything. She agreed that at one time the accused said he should have asked if it was okay that he had touched her. This happened after the touching. She did not know how to answer this, and said “yah sure.” [ 45 ] The next witness was Ms. Lorraine Armstrong. She testified she is a Detective Services Assistant at the RCMP’s Lumsden detachment. She was working there on October 7, 2020, and dealt with the complainant on that day. At approximately 3:30 p.m., she took a phone call from the complainant. The complainant was very distraught.

She had to spend some time calming the complainant down. She then had the complainant come into the detachment. On arrival, the complainant was kind of in shock but was somewhat calmer than before. The witness googled BN Photography, and got the accused’s name. The RCMP took a video statement from the complainant, C.I. and referred the matter to Regina Police Services. [ 46 ] At the start of the second day, defence counsel made the motion for a mistrial. I dismissed that motion. [ 47 ] The Crown then led the evidence of some police witnesses, employed by Regina Police Services.

I have concluded that their evidence is largely irrelevant, so I will review that evidence only in the most

summary fashion. The information commencing these proceedings was sworn on December 7, 2020. The matter was set for trial to commence before myself on June 13, 2022. On that date, the trial was adjourned, prior to the commencement of evidence, so that defence counsel could bring the application under

section 278 of the Criminal Code to admit the photos into evidence. Subsequent to that, the Regina City Police officers obtained a search warrant for a search of the accused’s photography studio. The officers testified that on July 29, 2022, they searched the accused’s studio pursuant to the warrant. They testified that the accused’s studio was located in what was a detached garage at the very back of the accused’s property. They entered the accused’s studio. It looked approximately as it appears in Exhibit D-1 for identification.

More specifically, when they searched the studio, it had a privacy screen as shown in Exhibit D-1 for identification. [ 48 ] On the date of search, July 29, 2022, the police seized some computers and electronic devices. They subsequently searched these devices. On these devices, they were able to locate all of the photographs that had been made the subject of the

section 278 application. They also ascertained there were some additional photographs of the complainant that had been deleted. However, they did not ascertain or gather any information as to what may have been in these photos. They also could not gather any information as to when these photos were deleted.

Most specifically, they could not ascertain whether the photos were deleted prior to or after the date in December, 2020, when these legal proceedings were commenced, and the accused informed of them. [ 49 ] I believe that the police were attempting to establish that after the accused learned of these proceedings, he deleted certain incriminating photos, and presented a sanitized version of the photos to the Court on the

section 278 application. However, when the accused testified, and I will come to this, he admitted that he did delete some photos. He said he deleted these photos fairly shortly after the photoshoot, and he did so as part of the normal editing process. In other words, these photos were not very good and so they were deleted. [ 50 ] I have determined that I can draw no conclusions that the deleted photographs contained any incriminating evidence, or that the accused deleted those photographs in an attempt to thwart the investigation.

Following the conclusion of the police evidence, the Crown closed its case. [ 51 ] Defence counsel called the accused, Brent Nerenberg as its only witness. He testified he is 53 years of age. He has lived in Regina his entire life, and presently lives at a home in north Regina. Prior to October 2020, he owned a landscaping business. He has also done photography for about 25 years. He said he has done photography professionally for about seven years. He has been married to his wife Pam for about 24 years. [ 52 ] He said he had posted an ad on Facebook, looking for models. The complainant applied.

She submitted an application over the Internet. He contacted her and set up a time for an interview. He stated this was not to be a paid position. It was: “A time for print position”. This meant that for her time and his time, both parties would get the photos. He stated he wanted to update his portfolio. He contacted the complainant on Facebook. They communicated back and forth, and set up the interview. He believed it took place on or

about September 13, 2020. On that date, she came to his studio. They had some small talk, and he had her fill out a couple of forms. He advised her that if they got any good images, then they could be published. They agreed that he would take head shots, and she would do nude modelling. He took a number of nude photos of her. He was shown Exhibit P-1, the questionnaire portion. He indicated that he showed her this first and had her fill it out. He wanted to understand what she was comfortable doing. She filled in a number of categories.

Then he had her complete and execute the model release form, which was also part of Exhibit P-1. By this form, models say they are comfortable in having photos taken and that he can use the photos. She signed it and there was a discussion about publishing. He stated that if there were good images then they could be published or sold. He advised her that any proceeds from sale would be split 50/50. [ 53 ] He indicated that at this initial interview, she said she would do nude modelling. She undressed and he took a number of nude photos of her. He showed her these photos and she was fine with them.

He indicated that she undressed right in front of him. At the end of the interview they set a time for a photoshoot. That photoshoot eventually took place on October 7. [ 54 ] There was a series of communications prior to the photoshoot. He advised her to bring props or toys. She indicated she had a whole box of them. He advised her to wear loose clothing that would not leave any clothing lines that would appear in the photos. [ 55 ] On October 7, she arrived at about 1:00 p.m. and went directly to the studio. He said there was some small talk and he showed her to the dressing room.

He then looked for model photos. He stated that he turned around and she was undressed. She had her outfit on. There were some photos, and then she got into the second outfit, lingerie. She undressed right in front of him. They went to the chaise lounge or couch. Later they moved to the bed. He asked her about props and she got out vibrators. She said the batteries were not working. He then said to her: “Let me see what I can find for you.” At that time he found his wife’s personal toy. She grabbed it and went onto the bed. There were other toys on the bed that she played with.

He had her get on her knees facing the wall and place her hand behind her back. He took a number of photos. Later there was another costume change, and she took her top off. He asked if she wanted to do some depth of field pictures. He explained that everything else is out of focus. He explained he had his hand on her wrist so that he could focus. He accidentally touched her breast and apologized. He took more pictures, and then she said she was not feeling good. She wanted to rebook. He said he was fine with that; they rebooked and she left. [ 56 ] He was shown Exhibit D-1 the pictures of his studio.

These photos were taken just a week before the trial. He indicated where the various pieces of furniture were, and stated these pictures showed his studio, as it existed in October, 2020. [ 57 ] He indicated that he never used a tripod for any of the photos. He would hold the camera in his right hand, and utilize his left hand to adjust the lens. He had two cameras, one weighed about five to six pounds, and that the other slightly less. It was possible to use one hand, the right hand, to take pictures but that was not very practical or feasible.

He had to use his left hand to focus. [ 58 ] He stated that the photoshoot took about an hour. He said he would instruct her on how to pose. He showed her other photos on his computer, so that she could pose that way. He stated there was no contact during any of the poses or photos. [ 59 ] He then again attempted to review the types of photos taken. He stated that after being on the chaise lounge he asked what toys she brought. She got out the toys and went to the bed. She laid there with the toys on the bed. She started using the vibrator. She got out her toys, and said the batteries were not working.

He said: “Let me see what I can find for you.” He indicated he could only find his personal toy. He could not recall if she asked for batteries. He wanted the shoot to continue. He then said she had a box with clothes and toys. It had three vibrators and a flex toy. She said the batteries were not working. She held the vibrator and played with it on her vagina. She started with hovering it at her vagina. He did not instruct her how to use it. He saw no tampons; he saw no blood; he was not involved in any touching of the vibrators.

When she was on the bed with the vibrators, he was around the bed. [ 60 ] He again described the depth of field photos. Her hand was on his wrist. He was close to her. She was topless. He was trying to focus and was moving back and forth. She may have moved, and there may have been an accidental touching. He indicated he was sweating as the place was quite warm for the photoshoot. He keeps it quite warm so that the model would be comfortable during the photoshoot. [ 61 ] She said she was not feeling good and asked to reschedule. She changed on the spot. There was some small talk and she left.

He stated her behaviour was the same as the first time. There was never any indication that anything was wrong. [ 62 ] He was shown the screenshots of the texts. His attention was directed to page 48, the last page, where he indicated he would

delete the photos. He advised he deleted some but not all of the photos. After the shoot, he indicated he would delete some of the photos that cannot be used, because they are out of focus or have bad lighting, etc. [ 63 ] He clearly stated that in this last text, he told the complainant that he would delete the photos because he thought he might get a reaction and a response from her. He indicated he had no actual intention to delete the photos. Rather, he used the photos for his portfolio. He stated no photos were deleted or altered after his arrest and him becoming advised of these proceedings.

No one ever contacted him to get a copy of the pictures. Later however, some of his property was seized. [ 64 ] Under cross-examination, the accused advised he is 52 years of age and was 50 at the time of the incident. He is right handed. He has a grade 12 education and has been doing photography for 25 years. He has been doing photo services for seven years, which includes family and individual portraits, etc. Some individuals pay for these services. [ 65 ] He also advised that he owns a landscaping company and is an entrepreneur. He is an independent contractor.

He regularly enters contracts for landscaping and for photography. He advised he has never had a problem with a contract or a customer. [ 66 ] He advised he does various types of photography and has quite a few clients. He does many weddings and family photos. Weddings are bought as a package. He also advised that he has not sold any photos to third parties, though he has looked into that. Specifically he has looked into where he could send the images to. He advised he had an agreement with the complainant to try to sell images to make some money.

He was asked to whom he would sell the photos, and he had no answer. He advised he had never sold boudoir photos before. He indicated that he only said to the complainant that he would look into that. This meant he would submit photos to companies, and if the photos sold they would pay. He did not know of any purchaser for these photos. [ 67 ] He agreed with counsel that a model is not a customer. He advised that he has worked for 30 or 40 models and they get compensated by the pictures not by any money. [ 68 ] In September of 2020, he was seeking out models, and posted his ad on the Internet.

He did not recall just what the ad said. He stated he never told the complainant that she would be paid. This was a “time for print” agreement. That meant both parties would get copies of the photos. He stated the complainant came for her initial interview on September 16. Some nude photos were taken of her at that time. He stated that these photos were taken because she wanted to prove that she could do the nude photos. This was her suggestion, and she wanted to show she was comfortable with them. [ 69 ] She completed the questionnaire and the contract was signed.

Crown counsel asked why her representation that she would do nude photos was not sufficient. Counsel rhetorically asked: “So she wanted to get naked?” The accused indicated he could not recall what was said. [ 70 ] The accused advised that the agreement was that if the photos sold, there would be a 50/50 split of the sale proceeds. He had no explanation as to why this was not contained in the written contract. [ 71 ] Counsel pointed out that the agreement said: “For good and valuable consideration…”. He asked a number of times and a number of different ways, what benefits flowed to the complainant.

The only answer provided by the accused to these questions was that she would get a copy of the photos. He conceded that not even this was mentioned in the written agreement. [ 72 ] He was asked about the various categories of the photography that were part of the questionnaire. He conceded that these were loose categories and there may be considerable overlap. Many of the categories involved partial or complete nudity. [ 73 ] The accused conceded that he knew the complainant was a novice model. He knew that she would require more guidance and direction than would an experienced model.

He advised he would show her the pictures of other models on the computer, and then guide her as to how to pose. He stated he would never use his hands to guide or touch the model. He agreed with counsel that when one is taking adult photos, it is important to have the consent of the model. In this case, he could recall no discussion with the complainant regarding her consent. He did not know why that was. He also did not request that a third person be present for the photoshoot. He said he never considered this with the complainant.

[ 74 ] He agreed with counsel that very early on she asked what the pay would be. He asked her to come for the interview. Counsel inquired why an interview would be required if there was no pay. I do not believe there was an answer to that question. At the interview, she again asked about the pay. Counsel suggested that he let the complainant believe that she might get paid. The accused denied that. [ 75 ] Counsel asked about the series of texts between the parties, and in particular about the text of October 27, displayed at page 48 on Exhibit P-3.

In that text, the accused clearly stated that he would be deleting all of the photos. He admitted that he did not delete the photos. Counsel suggested that this was an outright lie. At first, the accused would not agree or admit that it was a lie. Counsel repeatedly confronted and pressed the issue until finally, the accused did admit it was a lie. [ 76 ] He was asked about his affidavit filed in support of the

section 278 application. At paragraph 14, he indicated that he kept all of the pictures, and turned them all over to his lawyer. He testified that he had earlier deleted some photos, as part of the editing process, and that all of the retained photos were turned over to his lawyer. [ 77 ] He was asked about the cameras and equipment that he brought to court. He advised he could not say whether these were the exact cameras or lenses that were used for the photoshoot. He was questioned about taking photos with one hand.

He agreed that he was using one hand to hold the camera and taking pictures at the time the complainant grabbed his wrist. [ 78 ] He agreed with counsel that he asked the complainant to bring toys or props. The vibrator or dildo could be a toy or a prop. He did not ask the complainant to use the vibrator. He stated she had no batteries in her toys and he then stated “I’ll see what I can find.” He then got his wife’s vibrator and gave it to the complainant so she could remove the batteries and transfer them to hers. He was asked why batteries were needed, if the vibrator was only to be a prop.

He said he did not know why he gave her the batteries. There was no further questioning of this. [ 79 ] Lastly, he was asked about Exhibit D-1, and the photo of his studio. He agreed that this picture was taken just one week before trial, but insisted that his studio remained unchanged between the time of the photoshoot and when the picture was taken. THE ARGUMENTS OF COUNSEL [ 80 ] Both counsel agreed that this was a W. (D .) [1] case, and the issue was whether the Crown has proved the charge beyond a reasonable doubt. Counsel referred to R v Van Deventer , 2021 SKCA 163 , 407 CCC (3d) 291 [ Van Deventer ].

In that case, particularly at paragraph 24, the Court makes it clear that the trial judge cannot simply look at the evidence of the complainant and the accused, and choose whom to believe. The Court makes it clear that the trial judge must consider the totality of the evidence, and compare and contrast the evidence of the complainant and the accused with each other and with the totality of the evidence. Having done that and on a reasoned basis, the trial judge must then proceed to determine the facts and whether the charge has been proved.

With that, I turn to consider the anomalies or inconsistencies in the evidence of the complainant and the accused. THE COMPLAINANT’S EVIDENCE [ 81 ] The complainant’s evidence certainly raises some questions in my mind. I have difficulty understanding why a young woman would pursue this venture and submit to the control of the accused, the way she did. I have difficulty understanding why she would do this for the extra income and money, with no terms or guarantees for any payment. I also have some difficulty in understanding her lack of detection of any red flags or warning signals.

For example, regarding the October 7, 2020 photoshoot, she said she had a really bad feeling all day about the photoshoot. It seems to me this was a red flag or indicator. Why did she not act on the bad feeling? [ 82 ] Her actions were certainly naïve and unwise. However, this fact alone does not lead me to question her veracity. Fairly routinely, we will see a naïve or unsuspecting individual taken advantage of. She did make a significant misstatement by indicating she had a photographic memory. She explained this by saying that she has a very clear recollection of most of the events. Further, that she

did not intend to say that she remembered everything perfectly. On the whole, I believe she attempted to answer all questions fully and fairly. In addition, there is a fairly logical flow to her evidence and it fits well within the overall narrative of the events of October, 2020. I will return to this point shortly. THE ACCUSED’S EVIDENCE [ 83 ] There are a number of significant anomalies or inconsistencies in the accused’s evidence. I begin by discussing the agreement. The accused began by testifying about the agreement that he reached with the complainant, and putting that agreement in evidence.

He advised he was experienced in contracts from his work as a landscaper and that he regularly entered contracts. However, this contract is sorely lacking in a number of respects. Firstly, I would have thought that the price and payment aspects would be a very important part of every contract. This contract says nothing about what the model is to be paid or the method of payment. This contract says absolutely nothing about what the complainant gets out of the agreement for modelling. The words “Time for Print” do not appear in the contract.

There was discussion about a 50/50 split of any proceeds from the sale of photos, but none of this is contained in the agreement.

To the contrary, the written agreement specifically provides that the artist, being the accused, retains all rights in all photos and images and then provides: “The model acknowledges and agrees that the artist is not liable for any further consideration or accounting, and further claims for any reason.” The agreement further provides that it contains the entire agreement between the parties. [ 84 ] In other words, in the unlikely event of the sale of any of the photos, which is a matter that I will return to shortly, on the basis of this contract, the accused has an argument that he owed the complainant nothing, as he was the sole owner of the pictures.

In cross- examination, Crown counsel asked the accused in a number of different ways what the complainant got out of the agreement or what the consideration was. The accused was not able to answer these questions. It is not surprising that he was unable to point out what the complainant got out of the contract because it is clear from the contract, she did not get anything. [ 85 ] While I have no experience in preparing or dealing with any kind of modelling or entertainment contract, I would have thought the contract would have detailed what each party was doing and consented to.

For example, a simple statement to the effect that the model consents to pictures being taken of her in the nude. Or, a statement to the effect that there might be some accidental or incidental touching but there would be no intentional touching of any kind. In cross-examination, the accused agreed the issue of consent and discussion of consent was very important, but this forms no part of the agreement. [ 86 ] This is very clearly a one sided agreement. It seems to me that this agreement was drafted and executed solely for the purpose of benefiting the accused, and for no other reason.

Given the broad based statements regarding the vesting of rights in the accused and the general releases executed by the complainant, it is reasonable to conclude this agreement was not executed for any commercial reason related to modelling and photographs, but executed for the sole purpose of providing some protection against criminal and civil liability to the accused. It is reasonable to conclude these various points are not dealt with so the accused can interpret and fill in these blanks as he wishes. [ 87 ] Secondly, I look at the issue of payment to the complainant for the photographs.

On this point, defence counsel argued that the accused was consistent and credible. Further, that the accused consistently maintained that this was simply a time for print arrangement. I disagree. In my view, the accused was deceptive on the issue of payment. [ 88 ] The complainant testified she had asked about what she would be paid and did not get an answer. Later, there was a text about this. The accused testified that there was a discussion about the issue of payment, but he could not recollect the exact nature of the conversation.

It is clear that when the issue of payment was again raised, the accused suggested that there would be a 50/50 split of any proceeds obtained from the sale of any photos. However, in cross-examination, the accused admitted that he has never entered into a single arrangement to sell a model’s photographs to any publisher or other person. Further, he did not even know whom he might contact to make inquiries about such a sale. In my view, the accused was deceptive on the issue of payment. When asked about what she would be paid, he never did provide a response indicating that she would be paid nothing.

Rather, he led her to believe that at some point in the future, there would be some money. There was never any real or significant prospect of any money for her. [ 89 ] Thirdly, the accused’s evidence is internally inconsistent, and often contradictory particularly when it comes to discussing the complainant and her role in this incident. For example, he often spoke of the complainant having no experience in modelling. As a result, he spoke of all of the advice and direction that he had to provide for these photoshoots.

He advised he told her what to do, how to pose, advised on the outfits she should wear, and advised her to wear loose clothes that would not leave clothing lines on her body. He advised her when to change outfits, to smile, etc. However, whenever it comes to discussion of the complainant taking off her clothes, or using a sex toy, or anything of that nature, suddenly she becomes very bold and is in fact the instigator. For example, in discussing the use of the dildo at the photoshoot, the accused testified that he was directing the complainant how to pose and he was snapping pictures.

Suddenly, the complainant grabbed this dildo and inserted it in herself.

[ 90 ] Fourthly, I turn to the issue of the accused’s evidence about the use of the dildo at the photoshoot. The evidence was that the accused suggested the complainant bring some sex toys to be used as props in the photoshoot. The complainant did bring some sex toys, but testified she had no batteries for them or working batteries, as a result of which they were not operational. At first, the accused could not recall the exact conversation regarding the batteries. He then did recall the complainant indicated she had no working batteries.

He testified that he then said to her words to the effect of, wait just a minute, I’ll see what I can find or I’ll see how I can help. According to his evidence, he then located in his desk in his studio his wife’s personal sex toy or dildo. He opened it, removed the batteries and gave them to the complainant who inserted the batteries in her dildo and used it for the photoshoot. He denied he ever touched her dildo or inserted it in her during the photoshoot. [ 91 ] All of this evidence from the accused is simply incredible and unbelievable.

At first, he did not recall the discussion of the batteries or why he got them out. More importantly however, all of the evidence was that the sex toys were only to be used as props in the photos. If they were only to be used as props, why were any batteries required. Most importantly, all of the evidence was that this photo studio was in a formerly detached garage on the alley, well behind the house. There was no bedroom in this studio. The bedroom was in the house. Why was a sex toy belonging to the accused’s spouse in the studio at the time of this photoshoot?

The accused would have me believe that this was entirely coincidental. I do not think so. I would conclude that the accused had this sex toy in this studio so that it was available if needed during the photoshoot, and he decided it was needed for his personal gratification. [ 92 ] Fifthly, I turn to the final text from the accused to the complainant sent on October 27. That text reads as follows: “It has been two weeks and I haven’t heard back from you so I will delete all photos and move on, thanks”. It must be noted that this text is an obvious lie.

He clearly stated that he would delete all of the photos, when in fact, as part of the editing process, he may have deleted a few bad pictures, but nothing else. When Crown counsel confronted him about this lie, at first the accused said he would not describe it as a lie, and refused to admit it was a lie. Counsel had to press him on this a number of times. Finally, he was forced to admit the obvious, that it was a lie. [ 93 ] When asked about why he sent this text, the accused stated that the complainant had not responded to his texts. He said that he was attempting to provoke a reaction from her.

I do not see how, on an objective analysis, his words support or meet this goal. If she was self-conscious and avoiding him to attempt to break off the relationship and prevent publication of the photos, how or why would this text provoke a reaction. Why would she suddenly react to the deletion of the photos. Simply stated, his stated goal of provoking a reaction is inconsistent with the wording used. [ 94 ] In my view, the words used in this text are capable of supporting this

interpretation: It has been two weeks and I haven’t heard back from you. So let’s both go our separate ways and forget this entire incident occurred. To that end, I will delete all of the photos and move on. In my view, the accused was not attempting to provoke a reaction, but attempting to forestall any action on the part of the complainant. She was clearly not happy with what had happened, as shown by her refusal to respond to his texts. So, he was hoping that if he told her that he deleted the photos, she might decide to simply forget about the whole incident, and not take any further action.

ANALYSIS AND CONCLUSION [ 95 ] While I have some difficulty understanding some of the complainant’s actions, I do not believe she has been untruthful. She overstated matters by saying she had a photographic memory. But she fairly quickly backed away from that, and admitted there are a number of matters that she did not remember. [ 96 ] In my view, the inconsistencies in the accused’s evidence are far more significant. The accused’s evidence throughout is simply incredible and unbelievable. There was no commercial reason or basis for entering this agreement.

He set up this entire matter as a modelling position to imply that there would be payment or some commercial gain, in order to lure an unsuspecting person into his studio for nude photos. He prepared and had executed an agreement that provided absolutely nothing for the complainant and provided only for his benefit. As the photoshoot took place, he decided he could take liberties with the complainant’s body for his own personal gratification. All of that was done without consent. [ 97 ] I return to briefly look at the Van Deventer decision, supra and look at the evidence of the parties in relation to the total

narrative. [ 98 ] When one plugs the complainant’s evidence into the overall narrative one can see a fairly logical flow to her evidence. She applied for a modelling position for extra income and to try something different. She attended the initial interview. He offered to take pictures of her and showed them to her. On that first day, things largely unfolded as she might have expected. There was no sexual touching. Photos were taken and shown to her.

She was relatively pleased with those photos, and arrangements were made for the follow up photoshoot. [ 99 ] Since nothing untoward happened at the initial interview, there is no hint of any distress or animosity between the parties between the initial interview and the formal photoshoot. To the contrary, the two parties are relatively animated in their discussion of preparations for the photoshoot. At the photoshoot, from the complainant’s perspective, things went dramatically wrong. There was now sexual touching without consent. She was very upset by that. She broke off and terminated the photoshoot early.

Because she was so upset, she immediately called the police. [ 100 ] According to the accused, the initial interview and the photoshoot were virtually identical in that both went very well. No one was upset. No one indicated any problem with anything. Why then did the complainant suddenly break off the photoshoot and leave? Why did she immediately go to the police? Why did she then concoct this entire story of a sexual assault?

Why did the accused send a text suggesting they both forget everything and he would delete the photos? [ 101 ] Simply stated, the accused’s story does not logically flow and does not fit within the overall narrative. [ 102 ] For all of the above mentioned reasons, it is my conclusion that the complainant’s evidence is credible and believable. The accused’s evidence is incredible and unbelievable. I conclude that at the photoshoot on October 7, 2020, the accused touched the complainant’s breasts and inserted a dildo into her vagina. He took these actions without any consent from her.

I find the accused guilty of sexual assault and will proceed to hear sentencing submissions. Dated at the City of Regina, the Province of Saskatchewan this 17th day of July 2023. __________________________ D. Kovatch, J