2019 QCCQ 7884, 2019 QCCQ 7884

R. c. Parlea 2019 QCCQ 7884 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF BEAUHARNOIS CITY OF SALABERRY-DE-VALLEYFIELD Criminal and Penal Division No: 760-01-089638-180 760-01-087773-179 760-01-089177-189 760-01-089178-187 DATE : October 29th, 2019 ______________________________________________________________________ BY THE HONOURABLE JOEY DUBOIS, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecution v.

SEBASTIAN PARLEA Accused ______________________________________________________________________ JUDGMENT A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . ______________________________________________________________________ CONTEXT [ 1 ] Mr.

Parlea is charged with the following infractions: [ 2 ] 760-01-087773-179: One count of production of child pornography (163.1(2) C.cr .), one count of rendering sexually explicit material available to X, a child under the age of 16, and one count of sexual interference on X. [ 3 ] 760-01-089177-189: One count of possession of child pornography. [ 4 ] 760-01-089638-180: Counts of sexual interference and sexual assault on Y, a child under the age of 16, and counts of sexual interference and sexual assault on Z, also a child under the age of 16. [ 5 ] 760-01-089178-187: One count of breach of recognizance, for having breached the condition to keep the peace and to have a good behavior. [ 6 ] The Court must analyse the different versions and determine if the accused’s guilt was demonstrated beyond a reasonable doubt.

FACTS [ 7 ] The accused, who has an education as a special care counsellor was working, at the time of the alleged incidents, for a community organization called Zephyr. Zephyr offers a respite service to parents who have children with mental disabilities. Parents can benefit from this service by calling Zephyr. They are then put in contact with one of the employees. The cost of the service is split

between the parents and Zephyr. That is how all the families involved in this file met Mr. Parlea. [ 8 ] For the purpose of clarity, the crown’s evidence shall be summarized for each of the accusations. The evidence presented by the accused and his witnesses will be summarized and analysed after the crown’s case. The order in which the evidence is presented and discussed in this judgement has no particular meaning. The Court knows full well the accused has no burden to support.

It is up to the prosecution to demonstrate guilt beyond a reasonable doubt. [ 9 ] The Court does not have to address in detail each and every one of the pieces of evidence presented. Neither does it have to systematically position itself in regard to each argument proposed [1] . [ 10 ] The accusations in file 760-01-087773-179 are in relation to a child whose initials are X. The events are alleged to have taken place between March 1 st 2016 and November 9 th 2017, in Town A. Testimony of X [ 11 ] X is nine years old when he gives a videotaped statement to police. He is ten when he testifies at trial.

He has a mild mental disability. He has a twin brother, A, who was also looked after by the accused. [ 12 ] He testifies about events that took place in his home, outside his home and at the accused’s cottage. The accused was his babysitter. [ 13 ] At home, the accused would touch his penis. This was ongoing during the months when the accused would babysit him. In fact, X states the accused would not stop touching his penis. He doesn’t know why he would do that. He recalls being touched on the penis in the bath, on the couch, while they are watching television, and when he is naked in the living room.

The accused touches his penis with his hands. In the video deposited in evidence, X describes, using gestures, how the accused rubs his penis [2] and how he touched his penis [3] . This gesture resembles a masturbation movement. [ 14 ] At the cottage, where he spent a weekend, the accused touched his penis while he was washing him in the shower. He describes again a rubbing motion. The accused was outside the shower and would enter his hand in the shower to touch him. [ 15 ] The accused also took pictures of him. X states the accused took pictures of him completely naked with his cell phone on multiple occasions.

On other occasions, he was dressed, but the accused would have him take his pants down and would take pictures of his penis. He would point his penis with the telephone. This happened, he says, everywhere in the house, in the living room, on the patio, at the park. He remembers the accused showing him the pictures he took of him naked in the living room. He doesn’t know why the accused would take naked pictures of him. [ 16 ] The accused would also show him pictures of naked people. He states the accused showed him, using his cell phone, pictures of “penises, vaginas and buttocks in his bedroom.

There were also pictures of naked people. Some naked people had tattoos. They were people from another country. He doesn’t know why the accused was showing him that. [ 17 ] It all ended on November 9 th 2017 after an incident the Court will refer to as the Peanut butter incident. [ 18 ] X tells the Court that on Nov 9 th , after supper, he was taking his bath. Once he finished bathing, the accused asked him to go to his mother’s bedroom. X complied. X was naked at the time. He lay down on his back on the bed. The accused told him he was going to get something. He came back with a jar of peanut butter.

The accused then sat next to him on the bed, put some peanut butter on his finger and spread it on X’s penis. It was the accused’s idea to put peanut butter on his penis. [The family dog], licked his penis. The accused was looking at the dog licking. X states he and the accused were both laughing. They laughed because it was funny that the accused put peanut butter on his penis. [ 19 ] While this was happening, X states his brother, A, opened the door and saw them. He also laughed. [ 20 ] After the event, the accused said he had to keep it a secret, that he shouldn’t tell his mother.

X told his mother the next day, even though he was not supposed to. [ 21 ] In cross-examination, X denies having given chocolate to the dog before the peanut butter event. He states he never in his life gave chocolate to his dog. He was not feeding the dog anything before this started. He categorically denies having put the peanut butter on his penis himself, and states he never before gave peanut butter to his dog either.

He denies also having accidently put peanut butter on his pyjama bottoms, because he was not wearing pyjamas. [ 22 ] On the subject of pictures, he does not know why the accused was taking pictures of him. He never had conversations with the accused about facial expressions, or his body language not matching his facial expressions. [ 23 ] He has no knowledge of the accused taking pictures of him urinating. The accused never told him that to urinate outside was not right. At the park, he says he pulled down his pants for fun. The accused was not mad. He never had a talk about that with the accused.

He does recall the accused told him not to do that at the park because everyone could see him. [ 24 ] He recalls asking the accused why the penis of his friend B was different from his. Testimony of A [ 25 ] He is 11 years old when he testifies and is X’s twin brother. He was babysat by the accused for a year and a half, with his brother. During that time, he saw the accused wash his brother’s penis in the bath. He remembers having gone to the accused cottage.

Both he and his brother took showers. The accused did not wash him on that occasion. [ 26 ] He also saw the accused take pictures of X with his cell phone while X was naked. This happened many times. He admits that he himself took some pictures sometimes with the accused’s cell phone. He doesn’t know which ones. [ 27 ] On a few occasions, he went in his brother’s room to see what the accused and his brother were doing, and saw that the accused was showing pictures of penises and vaginas to X on his cell phone. He also saw the pictures. The accused was laughing.

There were pictures of penises, and all the private parts. The accused was getting the pictures from internet with his cell phone. He does not know why the accused was showing them those pictures. He showed pictures like that on many occasions, like four times. [ 28 ] Then he testifies as to what he saw during the peanut butter event. He recalls his brother being in their mother’s bedroom. A states that while he was watching television in the living room, he saw the accused go in the cupboard to get the jar of peanut butter before going back to the bedroom.

He recalls the accused was holding the jar to his chest, as if he was trying to hide it from him. Then, he could hear laughter coming from the room. Both the accused and his brother were laughing. He decided to go see what was happening. When he got to the room the door was ajar. He looked inside the room and saw [the family dog] licking his brother’s penis. He was at the door, the accused and X were on the bed with the dog. [ 29 ] X was lying on his back, undressed, on the bed. The accused was sitting next to him.

The accused was holding the peanut butter jar. [The family dog] was licking X’s penis. [ 30 ] He saw the accused, the peanut butter jar, X with the peanut butter on his penis, and the dog licking the penis. The dog was between X’s legs. He states he saw the accused put the peanut butter on his brother’s penis. He doesn’t think the accused saw him. He didn’t have a conversation with the accused while he was standing at the door watching. [ 31 ] After the event, the accused told them not to talk about the peanut butter incident, that it was a secret. That he could lose his job if they told their mother.

The accused told them that they mustn’t speak about it because their mother was going to fire him. [ 32 ] During the cross-examination, he recalls having seen the accused in the school parking lot after the peanut butter incident. He told the accused he had told his mother about it. [ 33 ] He states he never saw his brother X give chocolate to the dog. [ 34 ] He confirms X often walks around naked in the house, but denies that his brother would put down his pants in public when he shouldn’t. [ 35 ] He denies having asked the accused why his friend B had a different looking penis. Testimony of M.

G. (X and A’s mother) [ 36 ] The accused started going to her house to babysit her children after being referred to by Zephyr. She confirms X has a mild intellectual deficiency. [ 37 ] When she got home, on November 9 th , the last time he came over, she noticed he seemed in a hurry to leave. Usually, they talk about how the evening went, but that time, he left without giving her that information. It seemed unusual. [ 38 ] She noticed her bed was not made and the bed and the pillow area were sticky. [ 39 ] The next morning, she found X to be abnormally anxious.

While she was preparing her son’s lunches, X said « it was really bizarre what Sebastian did last night ». He then described how the accused had brought him in the bedroom, had gotten a jar of peanut butter, had put some on his penis and brought the [family dog] to have him lick the peanut butter. X added that A was there, to which A replied ‘No…don’t tell lies, it is not true”. X got upset, and yelled “You know that it is true, I don’t tell lies!” [ 40 ] She then decided to talk to A He was also anxious, stressed. He asked if she would scold him.

After being reassured, A told her that the accused asked him to watch a movie, while he would play a game with X. A told her it was taking a long time, so he got up and went to the bedroom to see what was happening. He saw X naked on the bed with the accused next to him. There was peanut butter on his penis and the dog was there. [ 41 ] Alerted by these allegations, she called the school’s psychologist and told her about it, and also called Zephyr to inform them of the children’s allegations. She was worried for other families.

Afterwards, she called the police. [ 42 ] She gave the peanut butter jar to the officers. It had finger traces in it. They never use their finger to take peanut butter. Finger traces are not hers. She states her boys never feed the dog peanut butter. [ 43 ] She further states her kids are always dressed in the house and do not walk around naked. She denies X ever had any difficulties in relation to sexual behavior prior to this event. She also states X does not take off his clothes in inappropriate situations. [ 44 ] She recalls an event in August when her father came to her house to drop off a lawnmower.

The accused was watching her kids on that day. As she got home, she saw her father unloading the lawnmower. He was mad because he saw X was naked in the presence of the accused. [ 45 ] She confirms her children wash themselves. The accused was not told to wash them, only to supervise to make sure they wash themselves correctly. [ 46 ] She denies ever having had a discussion with the accused about circumcision and states she never allowed the accused to have a

conversation with the kids about circumcision. [ 47 ] She states the accused’s job was just to babysit. He was not hired to do more, not hired as a special educator. The accused never asked her to intervene with her children or settle problems of any kind. [ 48 ] She was never shown pictures of any of her kids naked by the accused. Testimony of G. G. (X and A’s grandfather) [ 49 ] He testifies that on August 16th 2017, he went to his daughter’s house to deliver a lawnmower. He arrived without notifying of his presence in advance. He went to the front door and opened it.

He saw X completely naked in front of the accused. The accused was sitting on the couch and X was standing up, naked, facing him. The accused looked surprised when he came in the door. Mr. G. found this to be abnormal and told his daughter what he saw when she got home. [ 50 ] He further states he never saw X walking around naked in the house, except when he is changing to put on his bathing suit or to take it off.

Evidence of production and possession of child pornography. [ 51 ] The other evidence in relation to these accusations stems for the seizure, on December 5 th of the accused cell phone, and its subsequent analysis. The crown also adduced evidence of the analysis of the accused’s iPad and laptop, seized on March 27 th 2018. [ 52 ] Were found, in those devices, different pictures of X, A and other children. Police also found pictures of nudism.

a) Cell phone [ 53 ] 73 photos of interest were found in the cell phone [4] . They are miniatures (thumbnails) of pre-existing and now deleted pictures. The thumbnails are accessible. With different manipulations, the accused could look at them, open them and delete them. [ 54 ] OneDrive, a cloud based storage space where pictures can be accessed and kept, was installed on the cell phone. Some thumbnails in the cell phone are miniatures of pictures that are stored in OneDrive. Clicking on the miniature gives access to the real picture. [ 55 ] The web history on the cell phone was also put in evidence.

It contains research done, as far as the officers testimony is concerned, on December 5 th 2017, date of the arrest of the accused [5] .

b) Laptop [ 56 ] The laptop analysis revealed searches done on May 2 nd and November 26 th 2017 using the Firefox browser. [ 57 ] On Nov 26th, the search starts with “where am I.” VPN is used to change the location of the user. Some search terms are typed in the top bar, others are typed in the search bar. The person behind the searches typed in these words, among others: PTHC torrent, boy nude, boy PTHC nude, little boy naked penis. Multiple entries were made to a website named IMGSRC.ru. PTHC is known to police to mean “Pre-teen hard core” while the IMGSRC.ru site is known to host child pornography.

No evidence of what was effectively visited is available. Only the search terms are in evidence. [ 58 ] Both the May 2 nd and November 26th searches were made in private mode so as not to appear in the search history. Police nevertheless found the searches.

c) IPad [ 59 ] Pictures of nudism [6] are found in the iPad. They were saved on April 12 th 2017 and stored in the Photovault app. That app has a search engine that automatically searches in private mode. Searches were done with that browser. The search terms were, among others; little naked boy, nudism boy, nude little boy, little boy erect penis, nudist boy erect penis, my 3 year old has started to play with his penis, what to do when your 2 year old has an erection. [ 60 ] Searches were also done in private mode with the iPad on Nov. 26 th .

IMGSRC.ru was searched for. [ 61 ] Again, there is no evidence as to what the person actually accessed with these search terms. [ 62 ] OneDrive is also installed on the iPad. In OneDrive, there are 4 photographs of children urinating [7] . These pictures are visible on the iPad but are not saved on the iPad. There is also one picture of X naked next to the accused available for viewing in the OneDrive storage. [ 63 ] OneDrive is also synchronized on the laptop.

The preceding pictures can be accessed, as well as other pictures of nudism. [8] Evidence in relation to the sexual abuse and sexual interference on Y and Z. [ 64 ] The accusations in relation to Y and Z, in file 760-01-089638-180, can be summarized as follows. [ 65 ] Y and Z were children the accused babysat on occasion. The accused was referred to this family also through Zephyr. Testimony of Y

[ 66 ] Y is 11 when he testifies. He is 10 when the events are alleged to have happened. He testifies the accused babysat him and his brother when his mother was away. [ 67 ] In the video presented in evidence, he states the accused came in the bathroom when he was taking his bath. The accused took his penis and lifted it up. When the accused took his penis, Y was standing in the bath tub. He did not like what the accused was doing. Y states he had to, with his own hand, control the accused hand in order to make him stop. He didn’t just touch the accused’s hand, he insists he had to control it.

He mimics the gesture the accused was doing using a pencil. Y takes the pencil, and makes up and down movements on the pencil, simulating a masturbation. He did not like being touched by the accused, and says he cried when the accused was touching him. [ 68 ] He confirms he takes his bath alone. He doesn’t need any help to wash himself. The accused would nevertheless often come in when he was taking a bath. In examination in chief, he states the touching was not washing. The touching happened only once. [ 69 ] He also states he was kissed once on the mouth by the accused, after going to bed.

It surprised him. [ 70 ] He did not disclose these events to his mother right away. It took multiple visits to police and to Child services before he decided to talk. One evening, his mother received a phone call from the police informing her that the accused was arrested. She cried. That is when he disclosed the information. [ 71 ] In cross-examination, he states the accused touched him for one second with one finger. When asked with which finger the accused touched him, he replies “his hand”.

He also states to a highly suggestive question, that maybe the accused was washing him, but maintains he did not like it and that he had to control the accused hand for it to stop. Testimony of Z [ 72 ] Z is 7 years old when he testifies. He is Y’s brother. He states he was touched by the accused while he was taking a bath even though, he says, he does not need help to wash himself. He prefers being alone while bathing, without the presence of an adult. [ 73 ] On that occasion, the accused came in the bathroom.

Z says he was washing himself correctly when the accused suggested there was something wrong with his penis. The accused, while in the bathroom, started telling Z something was hurting his penis. Z doesn’t know why the accused was suggesting that, because there was nothing wrong with his penis and it was not hurting. But the accused insisted there was something wrong with his penis. So the accused took Z’s penis, made 2-3 spiral movements with it, 2 times, and then stopped. Nobody said anything at that point.

Z left the bathroom, put on his pyjamas and went to bed. [ 74 ] He describes the motion the accused did with a pencil on the video. [ 75 ] The accused gave him more than 2 baths. This happened once. He told his mother about the event. Testimony of C. G. (Y and Z’S mother) [ 76 ] She tells the Court Y has autism and Z has attention deficit disorder. [ 77 ] She uses the services of Zephyr. That is how she was put in contact with the accused. His job was to take care of the children while she was away.

He also helped Z with his school work. [ 78 ] In November, she was told by Mme Corbeil from Zephyr that the accused would not be available to work for a while. She then received a call from Child services and was told about sexual interference allegations. She never confronted her kids about that. [ 79 ] Her children met a child services worker but didn’t say anything. [ 80 ] A couple months later, near Christmas, her children confided in a family friend. Y told that family friend that the accused had touched his penis.

That is why she went to the police station to file a statement. [ 81 ] Y only verbalised the event to her after she read a newspaper

article about the accused. She read the

article and cried. Her children were there. Y also read the article. After looking at the article, he said “don’t worry, he did not hurt me. I was controlling his hand when he was touching my penis.” She scheduled another appointment with an investigator. [ 82 ] That evening, she told Z, her other son, that Y was not going to school the following day. That she was going to the police station with him. Z then said that something had happened to him too. He was also taken to the police station. [ 83 ] She stated the accused did not need to help Y or Z with their baths. He only had to supervise.

But she can’t recall if she gave him instructions or not. Testimony of Isabelle Corbeil [ 84 ] She is the director at Zephyr. The people hired are only to take care of daily chores. They are not supposed to do specialized education. [ 85 ] She was contacted by M. G. who told her that the accused had put peanut butter on her child’s private parts and that the dog had licked it. She sought counsel with police and decided to suspend the accused. When she called the accused to let him know, she told him the story she had heard about the dog. DEFENSE [ 86 ] The accused chose to present a defense.

He presented, as a first witness, his wife, Mme Natalie Major.

Testimony of Nathalie Major [ 87 ] She has been married to the accused for 16 years. They have 2 daughters, C and D. [ 88 ] She testifies as to the internet searches that were done, as well as to the fact that nudism pictures were found in the devices at their home. In 2015, she helped the accused with a school project by searching for nudism pictures to add to a school project. [ 89 ] Then, in May 2017 she searched again for such pictures because she and the accused had an interest in going to a nudist campsite. They have an accountant friend, a friend of her fathers, who did their taxes for five years.

He was for years camping on a nudist site and kept inviting them to go. During tax season, he talked to them again about camping. Having an interest, she looked up sites, pulled up pictures, and talked with her daughters about it. They had questions so she did follow up research in order to show them additional pictures to answer their questions. She looked up and downloaded photos of nudism to show her daughters how, for example, to play miniport naked, or do other activities.

She also looked up the pictures to be able to seize the mentality of nudists in recent years. [ 90 ] She tells the Court herself and her daughter are responsible for the internet searches of April 12th 2017. She remembers that day because she had gone to the police station with C to file a complaint in relation with her daughter having sent naked pictures of herself to a boy. That same day, C used the iPad under supervision to look up things for an art project. She was looking for little boy’s penises in order to draw a naked cupid, and needed examples to draw it realistically.

She told her daughter to look up nudism sites but does not know exactly what search terms her daughter used. [ 91 ] She recalls the searches were done while she was making supper. [ 92 ] Then she took the iPad from C and searched herself for something about Viagra and little boy’s erections because the accused told her about a child he was babysitting who took Viagra for a heart problem and had erections. She was curious and wanted to know, as did the accused, more about that subject.

She looked for 5-10 minutes then gave the iPad back to her daughter, who continued her research. [ 93 ] She states the accused was not home when she and C did those searches. She deposits the accused’s timesheets for Zephyr [9] to demonstrate he was working on April 12 th from 16h30 to 20h30. [ 94 ] She then goes on to testify as to the November 26 th searches. She recalls that day also because they had just moved and it was their daughter’s birthday the following weekend. They were moving boxes and cleaning up in order to have the house presentable for the weekend party.

They started at 8-9 am, stopped for lunch and resumed the clean-up in the afternoon. [ 95 ] She states the accused stopped helping the family and went on the computer at around 2-3 pm. The laptop is in the living room. Anyone who uses it is visible. They had a virus and he was trying to fix it. She thinks the virus is responsible for the searches. To her knowledge, the iPad did not have a virus. [ 96 ] She knows nothing of the incidents with the children the accused was babysitting.

The accused did tell her he was working with the children, doing interventions, but never said anything specific. [ 97 ] She also states she knows M. G., mother of X and A M. G. told her she had a problem with her kids running around naked. [ 98 ] During cross-examination, she admits she was present during the presentation of the evidence of the crown, both at the preliminary enquiry and at the trial. [ 99 ] She admits to having confronted her daughter with the web history from the iPad and showed the April 12 th search history to her and the search terms used.

She had this conversation with her after the presentation of the evidence, while the trial was ongoing. C denied having searched with those terms at first. It is only after she kept questioning her that C admitted to doing those searches. [ 100 ] She admits to having discussed her testimony with the accused before rendering it. [ 101 ] She states the accused had 2 or 3 projects in school where he integrated nudism pictures. He completed his degree in 2015 and so no more searches for nudism related to school were done after that. [ 102 ] Imgsrc.ru is a site she knows of. It popped up when there was the virus.

She went to see what the site was about with the accused. She asked the accused if he had an account there, but states she doesn’t remember his answer. To her knowledge nobody uses that site. [ 103 ] The day the accused was suspended by Zephyr, she had a conversation with him. She does not recall if he told her then that the allegations were sexual in nature but she admits to having invited him to lie to other clients about the reason why he could not see them anymore, because the allegations could ruin his reputation, his career.

Testimony of the accused, Sebastian Parlea [ 104 ] He took and completed a special care worker education program. After finishing school, he was working 4 jobs, including at Zephyr. They assign him families. [ 105 ] He met M. G., mother of X and A in 2015 through Zephyr. He worked 5 hours a week for her, taking care of her kids. They both had behavioral problems. He felt they needed adjustment. X was violent. He was implicated in major fights, yelling, biting, screaming, and was making holes in the walls. He also had a bad habit of pulling his pants down in public.

Therefore, the accused asked his mother’s permission to intervene. She agreed. All the parents of kids he takes care of know that he does work to correct certain types of behavior that the parents are aware of. [ 106 ] Everything was open with X and A’S mother, M. G. She was aware of everything that was happening. If something bad would

happen, he would discuss it with her. He states he was very open with his clients. [ 107 ] He states he discussed the problem of X putting his pants down with her. She was aware of the bad habit and had scolded X for it. She told him the problem was present not only at home but also in school. [ 108 ] One of his intervention techniques is taking pictures to show to the child the problem. This technique of taking pictures is taught in school. Although he discusses the children’s problems with the parents, he does not talk to the parents about his techniques like taking pictures.

Because he deletes the pictures anyway, he does not see any reason to tell the parents that he took them. [ 109 ] He would assist the children with their baths. X would wash partially just the front of his chest and the knees in the bath. He wouldn’t wash anything else. So, he took it upon himself to wash him properly. He would take a sponge, put soap, use the sponge everywhere on X’s body and then sit him down and rinse him. He would clean the entire body, including the penis area.

He would always clean using a sponge, so X was touched on the penis with only the sponge. [ 110 ] During the summer, the children’s mother needed a break. She asked him to bring the children to the cottage for a weekend. He agreed. He recalls X took a shower at the cottage, but he did not wash him that time. He does not know if A took a shower. Nothing inappropriate happened at the cottage. [ 111 ] He recalls the time the grandfather of the children came to the house in August. The grandfather came home at the same time as the children’s mother. They were unloading things from the grandfather’s truck.

He went to offer help. They did not need any. So he went inside. He was fully aware they were there. After unloading the truck, the grandfather came in with groceries, at the same time as X was coming out of the bathroom. The grandfather saw X was naked and told him to get dressed. X was naked in the stairs, not in front of him, as stated by the grandfather. The accused states he was sitting in the living room on the couch with A when all this happened. [ 112 ] Asked if he showed pictures of private parts to the children, he recalls he did show them pictures of penises.

Both boys had questions about circumcision after having seen a friend’s penis and noticing its difference. He tried to explain circumcision but the explanations were not enough. He decided the best way to explain to the both of them was to show them pictures of different penises. So he asked their mother and she agreed. Then, he showed the kids different circumcised and non-circumcised penises. He showed X pictures while X was in his bed. He understood the difference after that. A heard laughter and came to see, but left right after. [ 113 ] He stopped working for M.

G. after what was referred to as the Peanut butter event. [ 114 ] That evening, after supper, X took his desert in his mother’s bedroom. The accused went to the mother’s bedroom to check on him. He saw X give the dog chocolate. The dog was standing in front of him, he was pulling out his hand with the chocolate, giving it to the dog. The dog took a bite of the chocolate. [ 115 ] At that point, he told X that he cannot give chocolate to the dog because it is poison and the dog could die.

He explained to him that chocolate cannot be given under any circumstances to dogs and suggested X give him peanut butter instead because peanut butter is better for the dog. [ 116 ] So the accused went to the kitchen to get the jar of peanut butter, brought it to the room and gave it to him. X dipped his finger in the jar and gave some to the dog. X was laughing. At that point, A entered the room. The accused states he saw the dog licking the peanut butter on X’s finger. Then he took the jar back, existed the room and put the jar in the cupboard. The kids then exited the bedroom and came together in the kitchen.

X told him that he had peanut butter on his penis and that his mother was going to yell at him, that he was going to get scolded. The accused looked at X and noticed he had peanut butter not on his penis but on his pyjamas at the height of his penis. He told X that the peanut butter was not on his penis, but on his pyjamas. X still insisted that his mother was going to be very upset. So, the accused told X to change his pyjamas and if his mother is upset and scolds him, to let her know it was his fault because he was the one who gave him the peanut butter.

At that point, X went to change his pyjamas and then went to bed. [ 117 ] He agrees he left the home quickly when the mother got home, because, he says, he was upset that she was late. [ 118 ] During the following days, he was contacted by Mme Corbeil from Zephyr who told him he was suspended. He asked why and he was told X had told is mother he had put peanut butter on his penis. He contacted his wife, and together they decided to tell every parent that asked that he was not working because his wife and his daughter were sick. [ 119 ] A few days after, he met A in the school parking lot.

A told him X was lying. [ 120 ] When he was arrested on December 5 th 2017, police found pictures in his cell phone and later on, in different devices he owns. Some of the pictures are nudism pictures he needed for school projects or to show his daughters. In other pictures, children he was babysitting are naked, undressed. He states he is not the author of most of the pictures. The children took those pictures without him knowing about it. [ 121 ] Those he admits to taking he took for research and for educational purposes. He states he needed to correct X and other children’s behavior.

He admits taking the pictures that were referred to at trial as the “peeing in the park” or “soccer pictures”. [10] He also took the pictures that were referred to as the “facial expression pictures” [11] . He further admits having taken the pictures referred to as the “peeing in the puddle” pictures [12] , where we see 2 children he was babysitting, taking turns peeing outside. Finally, he admits taking the pictures referred to in this trial as the “photobomb” pictures [13] . [ 122 ] The Soccer pictures are pictures of X at the park, with his pants down. His penis is clearly visible.

He took those pictures with his cell phone. He understands it is difficult to explain why he took those pictures. He states he was using his cell phone as a visual aid. X had a bad habit of pulling down his pants and showing his buttocks. He would empty his bowels or urinate anywhere. He would not look around to see if there was a restroom before doing his deed. So on that occasion, the accused took the picture to show X the surroundings. He wanted him to see there was a porta potty he could have used next to him. That series of pictures was taken only for educational purposes.

[ 123 ] The facial expression pictures were taken to show X his face did not match his attitude. Although X looks happy in those pictures he was in fact angry at that time. His expression it did not match his mood. X had clenched fists. So the accused explains he wanted to take pictures of X’s fists. He states he took pictures 53-54-55-57 but denies having taken pictures 50-51-52-56. Which all seem to be taken at the same time.

The pictures he denies having taken are close ups of X’S private parts or pictures where we can see he does not have clenched fists. [ 124 ] The “peeing in the puddle” pictures he took when he babysat E and F, other clients from Zephyr. He took those pictures of the children urinating on his 3 rd visit to that house. He states the children were testing his limits because he was a new babysitter. One of the children started to pee outside. He said to the child “you can’t do that” to which the child replied “what are you going to do?” He then told the child he was going to tell his mother.

The child replied “mommy is not going to believe you”. The accused perceived it as a threat from the child that he could not do anything to stop him. So he took the picture, let the child know he had pictures, and made a deal with him. “Don’t do it again and I won’t show your mother”… Then, the other child did it too so he took more pictures. He took these pictures so that the children would not take control over him, he says, because if they take control they will always have control.

They become your boss, he says. [ 125 ] As for the “photobomb” pictures, he explains that X jumped naked in the picture as he was taking a selfie of himself on the couch. He told X he did not want his penis in the picture. He then took a second selfie and X jumped even higher or pulled himself up to get in the second picture again. He states X’s “goal priority was to put his penis in the picture”. He assumed that was the goal because X pushed himself in the second selfie to put his penis in the picture. He actually threw himself in the picture. This event happened at around 7pm, just before bedtime.

X was naked because he slept naked that time. [ 126 ] All other pictures would have been taken by the children themselves, without his knowing about it. Yet he states he never saw one of the boys taking a picture with his cellphone. [ 127 ] As for the allegations of abuse on Z and Y, he states he only washed them. That happened on 2 occasions. He washed them together the first time, while their mother was in the house. The second time he was alone with them. He washed them separately to avoid them making a mess and putting water everywhere. [ 128 ] Z washed himself.

He only helped Z by washing his hair and his back. He never touched Z’s penis. After that, he washed Y completely using a face cloth full of soap. His bare hand never touched him or his genitals. The circle move described by Z was his hand moving in circles over his body as he was being washed. [ 129 ] As for the pictures found on his devices, as well as the internet searches done, he explains it in this way. He uses the Onedrive application. When connected to Wi-Fi, pictures are synchronized and go directly there.

He was not aware the Onedrive application was synchronized on his cell phone and that the pictures were automatically uploading. He never activated the synchronization. The phone synchronized itself to Onedrive. [ 130 ] He looked up and kept nudist photos for school projects and research. His wife also looked up nudism pictures. They kept nudism photos in a folder in the Onedrive app for school purposes. He also looked up nudism photos because he was interested in starting nudism with his family. [ 131 ] At home, anybody can use the iPad. Only his phone is his own to use. He never did “naked little boy” searches.

He told his wife he didn’t do those searches so she asked at home and he was told C, his daughter did them. [ 132 ] He also had a virus on his laptop, he thinks the virus may have accesses the imgsrc.ru website or that the virus made some computer searches. He knows nothing about the imgsrc.ru website. He never accesses it. [ 133 ] He admits to using his computer for 40 minutes in the morning on November 26th, but denies having done the searches found by police. He was playing blackjack and other games while his family was moving boxes.

He states he went again on his computer in the afternoon for 2 or 3 hours to try to fix the virus. [ 134 ] He admits to having done the May 2 nd searches for nudism. But did not use Photovault. He never used the Photovault app. [ 135 ] As for the search history done on his cell phone, he states those searches were done throughout time, from when the allegations were made to the date of his arrest. They were not all made on the same day. And none were made the day he was asked to come to the station. He was looking for a lawyer, was reviewing laws. That is why he looked up different terms.

He also had the impression the allegations by X and A were a revenge by the children’s mother for the dog dying even though he had no information the dog had died. That is why he searched the web to find out how much chocolate could kill a dog, and if dogs could eat peanut butter. Testimony of C [ 136 ] She testifies to being the one who did the internet searches in April 2017 on the iPad. She was doing a school project and had to duplicate a painting by Michelangelo.

Michelangelo had covered up the cupid’s private parts in the Sistine chapel paintings, but her teacher wanted her to replicate the original painting, and to paint the penis where there was once a penis. So she went online to find pictures of real penises, to be able to draw the penises as realistically as possible. She remembers typing words like “naked little boys, little boy penis”. [ 137 ] She also had a biology project where she had to reproduce the male reproductive system. She had to look up the male reproductive system. She did it at home because school computers wouldn’t allow that type of search.

She looked up “boy penis”. [ 138 ] She did the searches on her dad’s iPad. At first, she states she searched on google, but found out later that it was on Photovault. She didn’t know she was using Photovault and found out after when she exited it. She later states when she continues her testimony at a later date that she went in Photovault knowingly, and even had to enter a password to be able to enter it before doing the searches.

[ 139 ] She denies ever having saved pictures in the Photovault app. [ 140 ] She admits to having talked about the searches with her mother. She denies having looked at the specific terms. She only looked at the top page of the document put in evidence but didn’t look at the information it contained. She admits to having talked about her testimony with her mother before taking the stand. ANALYSIS [ 141 ] The Court must determine if the Crown demonstrated the guilt of Mr. Parlea.

Since this trial involves credibility issues, the court must analyse the different statements given under oath and proceed in the following way: 1. Does the Court believe the accused? If so, he must be acquitted. 2. Even if the testimony of the accused is not believed, does his testimony or the defense presented raise a reasonable doubt? 3. If the accused is not believed and the defense does not raise a reasonable doubt, has the crown proven beyond a reasonable doubt the guilt of the accused? [ 142 ] The accused is presumed innocent.

It is the crown’s burden to demonstrate beyond a reasonable doubt that the infractions were committed by the accused. The burden never shifts to the accused. [ 143 ] A criminal trial is not a credibility contest [14] . If, after having heard all the evidence, the Court does not know who to believe, it must refrain from choosing between the different versions.

And in such a case, the accused must be given the benefit of the doubt. [ 144 ] The accused’s testimony, like every other witnesses testimony, has to be evaluated in light of all the evidence. [ 145 ] Turning now to the accused’s credibility, the Court notices the accused is contradicted by almost all the witnesses heard, including the witnesses he himself brought forth. [ 146 ] Needless to say, his testimony is contrary to those of the 4 children heard about the abuse. But furthermore, he is contradicted in many details he brings forth to explain different situations.

For example, when he states having shown pictures of penises to X and A to explain circumcision, he is contradicted by both children who say he showed not only penises, but vaginas as well, naked people, and all sorts of body parts. He is further contradicted by A about the reason why he was showing these pictures. If indeed it was to show circumcised and un-circumcised penises, why wouldn’t he also give that lesson to A? If he is to be believed, A also had the same questioning.

He is contradicted as well by the mother of these children, when he asserts he told her about circumcision and obtained her permission to show them pictures. She denies such a conversation ever took place. [ 147 ] Then there is the peanut butter event. He is contradicted by X about having given the dog chocolate before the incident. X completely denies it. He is further contradicted by X and his mother about the family having given peanut butter to the dog before this event. They deny it ever happened. He is contradicted by X and A about the fact that X was wearing pyjamas. Both children state X was naked.

He is further contradicted by X on the fact that he put peanut butter on his pyjamas bottoms. He was not wearing pyjama bottoms. Both X and A contradict the accused when he states he just gave the jar to X to let him feed the dog himself. They both state he was holding the jar and applied the peanut butter to X’s private parts. [ 148 ] Then, the accused is contradicted about the fact that X would walk around naked all the time, that he would put down his pants in public or have inappropriate sexual behavior.

He is contradicted in this by the testimonies of X, A, the children’s mother, and the children’s grandfather. The four of them contradict the reason why he would have had to intervene with X by taking pictures. [ 149 ] He is further contradicted by M. G., the children’s mother, as to the fact that he would have talked to her about these problems, and asked permission to intervene or settle problems of any kind. [ 150 ] His version of events as they unfolded the day the grandfather came to the house is contradicted by the grandfather and by the mother.

They both describe how the grandfather came home first, and was later joined by the mother. [ 151 ] He is contradicted by all children and their mothers about the fact that any of them needed assistance to bathe. They all say none of them needed such help. He is contradicted again by all children when he states he washed their private parts using a wash cloth or a sponge. All of them state he touched their private parts directly with his hands or his fingers. [ 152 ] He is contradicted by officer Brassard about when the cell phone searches would have been made.

He states they were made after the allegations but not on the day of the arrest. The officer demonstrated to the satisfaction of the Court that the research was done on the day of the arrest. He is further contradicted by officer Brassard about the OneDrive application being automatically synchronized on his new cell phone. It has to be done manually by the user. [ 153 ] He is contradicted by X on the fact that the pictures of him were taken for educational purposes. X denies ever having had a conversation with the accused about “facial expressions” or of having been told not to “pee in the park”.

He is contradicted by X about the frequency and the places were the touching took part. He is also contradicted by X about the places and the occasions when the accused would take pictures of him naked. On this subject, he is also contradicted by A, who saw him take naked pictures of X many times. [ 154 ] Then there are contradictions with his wife, Mme Major. He said he never accessed the IMGSRC.ru website, didn’t know anything about it.

She clearly stated she visited the site with the accused and even asked him if he had an account. [ 155 ] These multiple contradictions raise red flags as to the truthfulness of the accused version.

[ 156 ] Now, analysing the reasons he gives for having taken the pictures he admits to having taken, the court again finds his version more than unlikely. For example, for the “soccer” or “peeing in the park pictures”, as they were called during the trial, the accused states he took those to be able to show X, with the picture, that there was a porta potty next to him as he was urinating. He wanted to show him his surroundings. [ 157 ] If this was the case, one picture would have been enough. But he took 4 different pictures of X with his pants down.

One can clearly see they were taken from different angles or different zooms. And by looking at A, who is also present in the pictures, we see he moved from one place to another while these pictures were being taken. So multiple pictures were taken over a certain period of time. The Court also notices that never, during this sequence, is X urinating. This contradicts again the accused who stated that is what X was doing at that time.

When adding up the fact that everyone denies X had a problem of the sort described by the accused (urinating or defecating in public areas), the fact that X himself states he just took down his pants for fun, and the fact that X denies having had a conversation about it being wrong to pee in the park, the accused explanation becomes unlikely, improbable. [ 158 ] The explanations given by the accused to explain the “photobomb” pictures are also unreal. We can see X naked beside the accused, who is sitting on the couch, taking selfies. As mentioned above, he states X “photobombed” those pictures.

He states X jumped in the first picture, and after being told by the accused not to do it, he jumped even higher in the second picture. Confronted by the fact that he is not seen “jumping” the accused changes his version to X pulling himself up to put his penis in the picture. The accused states it was X’s goal to put his penis in the picture. This is not credible. First of all, in both pictures, we see a smiling X leaning casually on the couch, next to the accused, which is also smiling. In the second picture [15] he is even leaning on the couch with his back.

If he had been jumping, throwing himself in the picture or pulling himself up to be in the picture, he would not have had that position. Also, asked to comment why X was naked in these pictures, the accused states that it was because it was bedtime (7 pm) and X was going to bed naked. Confronted by the fact that he has a corn cob in his hands, the accused tells the court that after supper, X carried the cob in his hand until bed time. Confronted again to the fact that that picture was taken at 9 pm, he maintains that X kept the corn in his hands for hours after supper.

The court does not believe the accused. [ 159 ] Another picture was shown to the accused in relation to this event, which he denies having taken. It is a picture of X standing up completely naked in front of the couch. [16] He has in his hand the same corn cob we can see in the photobomb pictures. He is holding in his elbow the same shirt that can be seen in the photobomb pictures. The picture was taken from the exact spot where the accused was sitting when he took the photobomb pictures. The only logical conclusion is that the accused took that picture.

Confronted to those facts, he says he was mad after the second photobomb picture and gave his cellphone to A, thus hinting at the fact that A is the one who took that picture. His explanations lack credibility and are not believed. [ 160 ] For the “facial expression” pictures, again the accused explanations seem surprising. The Court can associate pictures 52 to 57 in this series. The accused admits to taking all of them except numbers 52 and 56 (which are copies of the same picture). He states he wanted to take a picture of X’s clenched fists. The fact that he was naked was just a happenstance.

We can see X is smiling in all the pictures. In pictures 53 and 54, X has one hand behind his back. The other arm is extended in full view. The picture cuts short of taking X’s hand. If the accused goal was to take X’s clenched fists, it would have been very easy for him to photograph X’s right hand. But he did not. Instead, he took a full body picture of him naked. And he took multiple photographs. All of the pictures, including 52, are taken from the exact same spot. X’s hair is wet and he has the same specific hair lock on his forehead. The Court concludes the accused took picture 52.

The only reason the Court can identify to explain why the accused would deny having taken picture 52 is because in that picture we can clearly see X does not have clenched fists. So the accused denies having taken it because it does not fit with his explanation. We can add to that the fact that X denies ever having had a conversation with the accused about facial expressions. The accused is not believed either in his explanation for having taken (or not taken) these pictures. [ 161 ] As for the “peeing in the puddle pictures” of E and F, the explanations of the accused again lack credibility.

For starters, many pictures are taken from different angles. Six pictures are taken in total and we can see a child urinating in 4 of those. We can see from the positioning of the child with the blue or black shorts in pictures 2 and 4 of

annexe B that there was a length of time between the pictures. It was not a rapid succession of pictures in the way one would see if the camera button was held down for a few seconds. If the accused is believed, his authority over the children was being threatened by one of the children at that time. If that had been the case, would the children not have been looking at the accused who was scolding them? And the accused states that by taking the pictures and threatening them to show the pictures to their mother, his plan worked and he regained authority over these very young children.

If it worked with the first child, then how come the second began urinating? His explanations for taking these pictures are also not believed. [ 162 ] All other pictures of X or A naked by themselves he denies having taken. For example, he completely denies having taken picture 64. It is a close-up picture of X’s penis. He states it was either taken by X himself as a selfie, or by his brother A No one else was in the house. In cross-examination, he is confronted by the fact that it couldn’t be a selfie, because we see the position of both of X’s arms.

He is then shown that A also could not have taken this picture, because he can be seen in the picture, a ways behind X. The accused cannot give an explanation. The Court finds his denial of having taken this picture to be a lie. [ 163 ] Another example of a picture that was necessarily taken by the accused, even though he denies it, is picture 40 of P-13

annexe B. The photographer’s position is up high. X could not have taken it as a selfie because we can see both his arms. The accused then states it must have been A, standing on the counter. Examination of the area where this picture was taken excludes that possibility. The picture was taken in the hallway, too far from the counter for A to have taken it. There is also nothing in that area that A could have been standing on.

The court therefore concludes as a matter of fact that the accused took that picture, and therefore lied about not taking it. [ 164 ] Because the accused is contradicted by multiple witnesses on a variety of subjects, because his explanations for having taken the pictures he admits having taken are not credible, and because the court finds the accused lied about not having taken certain pictures, his testimony is set aside. [ 165 ] The other witnesses produced by the accused, his wife and his daughter, testified on peripheral subjects that do not cover the actual infractions.

They mostly testified on the different internet searches done with either the iPad or the laptop and explained those searches were done by them and not the accused. An analysis will be done of their credibility, but in the end, this evidence does not help in determining if the accused committed the infractions or not. Since the actual sites accessed are not in evidence, there can be no legal

determination that the sites accessed were of juvenile pornography or contained illegal material. [ 166 ] Mme Major was present during the whole of the trial. An exception to the exclusion of witnesses was granted in her case because she wanted to be present during the trial of her husband, and because the Court was told she was to testify on subjects not directly discussed by the witnesses for the crown.

She was therefore present when both officers Brassard and Caya testified about the internet searches. [ 167 ] She had gone through all the evidence before the trial, and had also been present during the preliminary enquiry. [ 168 ] She admits that during the trial, she tried to find answers to the internet searches that were done in April and May. She discussed it with the accused and then, with her daughter. She testifies that she showed the search history to her daughter and confronted her on the fact that she had done those searches.

Her daughter denied, and it is only after she kept insisting that her daughter would have admitted to her that she had done those searches. [ 169 ] Her involvement in the file and her involvement in the confession about the searches by C are somewhat pre-occupying.

This in itself does not however annihilate her credibility. [ 170 ] What does affect her credibility is the way she adjusts her testimony as questions are put to her. [ 171 ] For example, when she talks about the reasons why she would have searched for nudism pictures on the internet in May 2017, she states it was following a conversation with their accountant, who invited her to join them. She tells the court he is a friend of their father’s and that they had been doing business with him a long time.

When she is asked what this gentleman’s name is, she can’t recall, because she hasn’t done business with him for 3 years. Which puts the last conversation in 2016. [ 172 ] Reminded that the searches were done in May 2017, she adjusts her story and tells the Court she called him again in 2017 to ask for a reference for another accountant, and he spoke of the nudist camp again. [ 173 ] Concerning the April 12 th internet searches, she tell a very detailed and elaborate story of that exact day.

She remembers that day specifically because that is the day she brought her daughter to the police station to press charges on another individual. After coming home, searches were done by her daughter for an art and biology project, and by herself following questions by the accused about frequent erections a little boy taking prescription Viagra was experiencing. She also recalls her daughter, out of curiosity, told her she had searched for erect penises out of curiosity, and looked up little boy’s penises because she was shy to look for men’s penises.

She remembers clearly that those searches were done during supper time. She even states the searches were done after her other daughter came home from school. She deposits the accused time sheet to demonstrate that during the hours the searches were done, the accused was working. When she is confronted to the fact that 4 hours had to be subtracted to the search times (UTC-4) she keeps the same story line, but was now making lunch or early supper, and her second daughter was not home.

She recants on her husband being at work, and now states she doesn’t know where he was. [ 174 ] The allegation that her daughter looked for erect boy’s penises out of curiosity is denied by C herself. These contradictions, omissions and adjustments affect her credibility. [ 175 ] The Court also disbelieves her when she states, on another subject, that X’s mother would have told her that she had a problem with her kids running around naked. Again that is contrary to the whole of the evidence.

She stated this in re-examination, and it seemed to be a last minute attempt to corroborate her husband, whose testimony which she had previously discussed with him, was to come. [ 176 ] As for C, the accused daughter, she only testifies about the April 12 th internet searches. The whole story of her having to reproduce a Michelangelo painting seems very unlikely. That the teacher would have told her to paint penises on the cupids although the penises in the original Michelangelo painting are covered is suspicious at best.

The fact that she never completed that project and moved on to another, thus never handing it in is also very convenient, because it cannot be verified. [ 177 ] Add to that the fact that she researched on that same day penises for a biology project, and it becomes too much of a coincidence. She first states that the biology project was in asked for in November, while she was in another grade and later corrected herself to say it was in the same grade but was late because it was due in December and she still had not handed it in in April, moment when the searches were done. This does not make sense.

Even when you consider she has anxiety and Attention deficit disorder. [ 178 ] She contradicts herself as to the search engine used. She stated on the first day of her testimony that she had no idea she did them on the Photovault internet browser, but came back on her next day of testimony saying she knew very well she was using Photovault, because she went in the app and even had to enter a password to enter it, before doing the searches.

She knew the password, but can’t tell the court what it was when she is testifying. [ 179 ] She also denies she looked over the document concerning the internet searches and the terms used, contradicting her own mother, who told the court that the document had been shown to her, and used to confront her on the searches. [ 180 ] Her credibility is also questionable. [ 181 ] The accused is not believed, and the defense as a whole, when considering the evidence, does not raise a reasonable doubt.

Has the prosecution fulfilled its burden of demonstrating the accused’s guilt beyond a reasonable doubt in regards to sexual interference on X? [ 182 ] Even though the accused is not believed, and the defense he presented does not raise a reasonable doubt, before declaring an accused guilty of having committed the crimes he is accused of, the Court must be satisfied the evidence reveals his guilt beyond a reasonable doubt.

[ 183 ] The evidence of the sexual abuse on X stems from the testimony of X himself. X is a child with a mild mental disability. Prior case law states that testimony by children cannot be evaluated in the same way as adult testimony. [17] Thus, contradictions or lack of details may not have the same effect as a similar flaw in the testimony of an adult. This does not mean that the evidence standard is different when children are concerned.

Their credibility has to be assessed carefully, but the differences in the way a child can recount an event, or details, is something the judge must keep in mind. [ 184 ] Study of prior case law also reveals judges should be aware of disabilities the witnesses may have that could affect their capacity to testify, remember details, or answer specific questions. The age, as well as the mental development, need to be carefully assessed. [18] The fact that a witness has a mental disability does not render in itself his or her testimony less reliable.

Testimony from such a witness needs to be assessed using “common sense” [19] . [ 185 ] X described where and how he was touched by the accused. He gave a very detailed account of the peanut butter event, and explained in a very clear way how the accused put peanut butter on his penis and how he had the dog lick it. He can describe his feelings at the time, how he thought it was funny what the accused was doing. He denies clearly any implications he had put the peanut butter on his pyjamas or of having given chocolate to the dog prior to the accused putting peanut butter on his genitals.

He understood the questions and did not automatically adopt the inferences that were brought to him in the form of suggestive questions from the accused’s lawyer. He was also able to tell the Court the accused touched him in the bath, and on the couch. He testified to the accused showing him pictures of penises and vaginas on his cell phone, and of the accused taking pictures of him everywhere in the house. [ 186 ] X did not make up events. Every event he testified on happened. The accused admits all of them except for the touching in other areas than the bathroom.

The accused just tries to give a different explanation for the events. The Court rejects the accused testimony. [ 187 ] X is also corroborated on many aspects of his testimony. His brother, also very credible, testified in a strikingly similar way as to the peanut butter event. [ 188 ] Pictures found on the accused’s cell phone also corroborate X Most are naked pictures of X In some of them, X is naked on the couch, at the exact place where he states the accused took pictures of him and touched his penis. [ 189 ] X contradicted himself on certain minor details.

For example, he denied having used the accused cellphone to take pictures, but then admits it when he is shown a picture of himself taking a selfie in front of the mirror with the accused beside him. He tell the Court he simply forgot. Then, there are other differences that do not carry much weight. For example, if he was wearing jeans or not during the peanut butter event. That his pants were down or that he simply wasn’t wearing any is a detail the court can understand the child does not remember. The fact is that his penis was out, and the dog was licking it. He was very credible.

When analysing his testimony and comparing it to the whole of the evidence, the Court finds his version to be truthful. [ 190 ] There is no valid reason, other than sexual, why the accused would touch X’s penis, or have the dog lick it after putting peanut butter on it. Even in the bathroom, during bath time, the accused had not reason to touch X’s penis. The washing in itself might have raised a reasonable doubt, but when analysing it in light of the fact that the touching happened not only in this context but all over the house, the Court concludes the touching in the bath was also sexual.

It was done with the hand, and not with a washcloth. The gesture depicted by X especially the second time, at 12:08 hour in the video can easily be associated to a masturbation motion. [ 191 ] Therefore, the Crown demonstrated beyond a reasonable doubt the commission of the sexual interference and on X.

Has the prosecution fulfilled its burden of demonstrating the accused guilt beyond a reasonable doubt in regards to the count of having made sexually explicit material available to X? [ 192 ] The essential elements the crown must demonstrate beyond a reasonable doubt is that the accused showed X sexually explicit material in order to facilitate the commission of one of the underlying infractions. Sexual interference is such an infraction. [ 193 ] There is no dispute the accused showed X and A pictures of different penises. He admits to doing so.

Both children testify that the accused showed them not only pictures of penises, but also of vaginas and other body parts. X states he was also shown pictures of “defecation and buttocks”. On another occasion, the accused was looking at pictures of penises and showed him pictures of naked people in another country. [ 194 ] The accused states he wanted to show the children the difference between circumcised and un-circumcised penises. He had permission from the children’s mother to have this type of talk and to show them these pictures.

X does talk about the fact that a conversation of this nature took place with the accused at some point. A denies ever having had that type of conversation with the accused. He saw the pictures, but only because he entered the room while the accused was showing the pictures to X He states this happened like 4 times. The children’s mother also denies having had a conversation about circumcision with the accused or having given him permission to show penises to her children. [ 195 ] The accused version is not believed. In order to believe him, the Court would have to disbelieve both children and their mother.

All are found to be credible witnesses, while the accused lacks credibility, for reasons demonstrated above. Therefore, the court concludes the accused did not only show penises, but a variety of sexual organs, and he did not do so in an educational way, as he states. [ 196 ] The photo evidence reveals the children developed a habit of being naked in the accused presence. They actually only acted in that way while the accused was alone with them. The accused sexually abused X in the house, and took naked pictures of him. At least one event of sexual interference happened after showing him these pictures.

We can conclude the peanut butter event happened the last time he was there, so the showing of the pictures had to have happened before. In the decision P.B. c. R. [20] , our Court of Appeal states that if the exhibiting by the accused of sexually explicit material happens before events of sexual interference, it is logical to conclude the accused showed the material in order to facilitate that infraction. [ 197 ] I can find no other reason for showing penises, vaginas, and naked people to children he is babysitting, other than to further his intention to normalize nakedness, and facilitate sexual interference.

[ 198 ] Because the prosecution had proven every element of this infraction beyond a reasonable doubt, the accused is found guilty. [ 199 ] Has the prosecution fulfilled its burden of demonstrating the accused guilt beyond a reasonable doubt in regards to production and possession of child pornography? [ 200 ] The alleged infractions relating to the production of child pornography were also contested by the accused. The crown has demonstrated that the pictures were not taken in an educational way. This defense raised by the accused to explain certain pictures was rejected.

The Court does not believe the accused when he states that the other pictures were taken and then erased by the children themselves. If that was the case, given the number of pictures, the accused would necessarily have seen them, and he denies ever having seen them take pictures. And to believe these 9 year old children erased the pictures after taking them makes no sense.

The court finds the accused took the pictures he denies having taken, and if some of the pictures were taken by the children themselves, it was necessarily with the accused knowledge and consent. [ 201 ] The accused then argues these pictures may be disturbing but do not fit the definition of child pornography, because the dominant characteristic is not of sexual organs, and because the crown failed to demonstrate they were taken with sexual purpose. [ 202 ] The pictures are in most cases of young children either naked, or with their pants down, displaying their penises.

There is no question in the Court’s mind that the goal was to take pictures of the children’s penises. Some pictures like #39, 40, 50, 51 and 64 are clearly focussed on the penis. Because there is no valid reason for the accused to have taken naked pictures of X, A or of E and F naked, and because the Court found X was being abused by the accused, then it becomes apparent the intent in taking these pictures was sexual.

There was no other intent than that of photographing the children’s penises for sexual gratification. [ 203 ] Although the intent of the author of the pictures is relevant, it is not enough to convict.

Objectively, the pictures must also be reasonably perceived as intended to cause sexual stimulation to some viewers. [21] [ 204 ] The relevant legislation states that child pornography pictures are pictures of a child that is engaged in or is depicted as engaged in explicit sexual activity [22] or the dominant characteristic of the picture is of a sexual organ of a person under the age of eighteen, for a sexual purpose. [23] [ 205 ] Case law has outlined different factors that have to be considered in order to determine what constitutes a dominant characteristic [24] .

The court must look at the context in which the images were taken, along with the images themselves. Such factors include the number of images of the genitals and the characteristics of the images. [ 206 ] The test is objective.

The question is whether a reasonable viewer, looking at the depiction objectively and in context, would see its dominant characteristic as the depiction of the child’s sexual organ [25] . [ 207 ] To consider only if the picture’s focus is on the genitals, or how much of the picture is taken up by the genitals would be a mistake. [26] [ 208 ] Analysing the pictures as a whole, a collection, it is apparent the dominant characteristic is the representation, for a sexual purpose, of the genitals. The author wanted to take pictures of the penises.

Some pictures focus is on the genitals, such as the ones mentioned above. When comparing the pictures, one can only come to the conclusion the accused was aiming to get the genitals in the pictures even when the actual focus of the pictures is not the penis. The focus becomes the penis, even though the genitals do not take up all of the picture.

An objective observer would also come to this conclusion. [ 209 ] The Court finds a total of 40 pictures to be child pornography [27] . [ 210 ] There are other pictures for which the crown has failed to demonstrate were taken with sexual intent, depict a sexual activity, or have as a dominant characteristic, a sexual organ for a sexual purpose. The court cannot come to the conclusion, beyond a reasonable doubt, that in the pictures of Y eating corn [28] , or of kids eating ice cream [29] the children are simulating oral sex. Therefore, these pictures do not constitute child pornography.

The other pictures in which no sex organ is visible, also fail to fit the definition of child pornography [30] . [ 211 ] The nudism pictures [31] are more difficult to categorize. Viewed in the entirety of the collection, they resemble the pictures the accused took of the children in this file. They very well may have been downloaded for sexual gratification. But the accused testimony, along with that of his wife’s, although not entirely believed, raise a doubt in the court’s mind as to these pictures being child pornography, or having been downloaded as such.

These pictures were downloaded for school projects the accused handed in or were downloaded out of a general interest for nudism. An objective observer would see the pictures for what they are, that is nudist camp photos, in which are present naked adults along with children. [ 212 ] Having come to the conclusion the accused produced some child pornography, it is therefore evident he also possessed it. The continued possession is something the accused denies.

He states all pictures were deleted by him or by the children without him even seeing them, and he had no knowledge he still possessed them in his computer when the second warrant was executed in March 2018. The court rejected his testimony that he had no knowledge of the pictures. He did delete the original pictures on his phone before his arrest in December 2017. But the thumbnails were still accessible. They could be opened and viewed. And in March 2018, the pictures seen in P-13

annexe 2C are available for viewing on the IPad because they are stored in the OneDrive cloud based application and can easily be accessed. Because in March he still has access to these 5 pictures which were found to be child pornography, he therefore had continued possession of these pictures. That there were so few among thousands of legal pictures is not a defense to possession. The Court finds the accused was knowledgeable in computers. He had installed OneDrive, and knew his phone was uploading pictures to the cloud.

He was aware pictures were being stored in there and took no action to get rid of them. [ 213 ] The other pictures he has access to in March 2018 are nudism pictures (found not to be child pornography). [ 214 ] Therefore, he was in possession of all the pictures found to be child pornography at some point between the moments they were

taken until the moment of his arrest. After that, and until March 2018, he was in the continued possession of 5 pictures of child pornography. The possession of child pornography between December 2017 and March 2018 also constitutes the basis for the accusation of having breached a condition of his recognizance. By committing this offence, he breached the condition to keep the peace and be of good behavior.

Has the prosecution fulfilled its burden of demonstrating the accused guilt beyond a reasonable doubt in regards to sexual interference and sexual assault on Y? [ 215 ] The prosecution alleges Y was touched by the accused in a sexual way on one occasion. Y testified to being touched by the accused on the penis. When this happened, he was alone with the accused in the bathroom. The accused grabbed his penis with his hand while he was in the bath. Y states the accused touched him with his bare hand. He even had to control the accused hand in order to make him stop.

He didn’t like what the accused was doing and cried. He describes, using a pencil, what the accused did while he was grabbing his penis. We can clearly see Y make a masturbation motion on the pencil. [32] [ 216 ] Evidence from Y and his mother demonstrated Y was old enough to wash himself. He did not need any help. Therefore there was no reason for the accused to touch him. [ 217 ] The fact that Y states in cross-examination that he was touched with one finger, for one second, does not affect his credibility.

Y has autism, and he clearly corrected himself when he later stated the accused touched him with his hand. The gesture he mimics the accused doing and the fact that he had to control the accused hand to get him to stop demonstrates it took more than one second. Again, analysing this child’s testimony using common sense, we can understand details such as a length of time is a concept that can be hard for him to grasp. [ 218 ] The accused admits to touching Y’s penis, but states it was in order to wash him using a facecloth. He bathed him twice, and twice washed his body and genitals.

The spiral motion he alleges to have done on Y was with the washcloth and on the entire body. The accused testimony as a whole was rejected by the Court and found not to be credible. [ 219 ] Because of the description Y makes about the gesture done by the accused, and the description he makes of having had to control the accused hand to make him stop, the Court believes Y when he states he was touched on the penis by the accused using his bare hand and not with a facecloth. The innocent explanation of washing the accused invokes is not believed. It does not raise a reasonable doubt.

Therefore, the Court comes to the conclusion the prosecution demonstrated beyond a

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