R v. J.K.G., 2023 NSSC 420

SUPREME COURT OF Nova Scotia Citation: R v. J.K.G. , 2023 NSSC 420 Date: 20231204 Docket: 518057 Registry: Bridgewater Between: His Majesty the King v. J.K.G. Restriction on Publication: Pursuant to s. 486.4 of the Criminal Code Judge: The Honourable Justice Diane Rowe Heard: November 14, 15, 16 and 17, 2023, in Bridgewater, Nova Scotia Oral Decision: December 4, 2023 Counsel: Alicia Kennedy, for the Crown Michael Power, for the Accused

Section 486.4 Order restricting publication — sexual offences 486.4

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of o (

a) any of the following offences: ▪ (

i) an offence under

section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or ▪ (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or o (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). Mandatory order on application

(2) In proceedings in respect of the offences referred to in paragraph (1)(

a) or (b), the presiding judge or justice shall o (

a) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order; o (

b) on application made by the victim, the prosecutor or any such witness, make the order; and o (

c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.

Victim under 18 — other offences

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. Mandatory order on application

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall o (

a) as soon as feasible, inform the victim of their right to make an application for the order; o (

b) on application of the victim or the prosecutor, make the order; and o (

c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it. Child pornography

(3) In proceedings in respect of an offence under

section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. Inquiry by court

(3.1) If the prosecutor makes an application for an order under paragraph (2)(

b) or (2.2)(b), the presiding judge or justice shall o (

a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order; o (

b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and o (

c) in any event, advise the prosecutor of their duty under subsection (3.2). Duty to inform

(3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have o (

a) informed the witnesses and the victim who are the subject of the order of its existence; o (

b) determined whether they wish to be the subject of the order; and o (

c) informed them of their right to apply to revoke or vary the order. Limitation

(4) An order made under this

section does not apply in either of the following circumstances: o (

a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or o (

b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person. Limitation — victim or witness

(5) An order made under this

section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness. By the Court, orally: [ 1 ] I have made reference in Court to the s. 486.4 publication ban and, as I have on other occasions, wish to underscore the seriousness of this ban and that there are penalties associated with its breach. [ 2 ] I am rendering this decision orally.

Should it be released in written form, I reserve the right to edit it for grammar, structure and

organization, as well as to provide complete citations and references, without changing the reasoning or the result. Further, if it isreleased in written form, there will be anonymization of the complainant’s name and information that could identify the victim orwitness. Decision [3] J.K.G. is a father. He would attend sporting events to watch his daughter, A.G. play hockey. [4] A.G. had a close friend, M.B.. M.B. would go to her friend’s home to “hang out” and would see her friend’s family there. She knewJ.K.G. as just “A.G.’s dad”.

M.B. would also attend A.G.’s sports events, including her hockey games, to cheer her on. [5] On March 4, 2022, J.K.G. and M.B. were both in attendance at a hockey game in Lunenburg to watch A.G. play. M.B. was then 16years old, with J.K.G. about 50 years old. [6] J.K.G., it is alleged, spoke with M.B. in a sexually explicit manner at that hockey game. While he did this, he was also showing herpictures on his cell phone of herself that she had posted on social media, and he then proceeded to touch her for a sexual purpose,without her consent.

The Crown also alleges that, after this incident, J.K.G. followed M.B. at the venue, criminally harassing her. [7] J.K.G. is under indictment and charged with the following four counts. The Crown alleges that he: attempted to possess childpornography contrary to s. 163.2(4) of the Criminal Code (Code); communicated for the purposes of obtaining the sexual services of aperson under the age of 18 years contrary to s. 286.1(2) of the Code; committed a sexual assault contrary to s. 271 of the Code; and,engaged in criminal harassment in breach of s. 264(2) of the Code.

Foundational Principles [8] Before the Court engages in canvassing each count in the indictment, reviewing the evidence and findings of fact with an analysisand application of the law, it will be helpful to review the principles that underpin all criminal proceedings. [9] Most recently, Jamieson, J. noted that in matters involving children, in R v. B.J.L. 2023 NSSC 123 at para 11: [11] It is important to highlight the presumption of innocence, especially in the context of alleged sexual assaults against children.As the Ontario Court of Appeal said in R. v. J. (F.E.), (1990), (ON CA), 53 C.C.C. (3d) 64 (Ont.

C.A.), courts mustbe vigilant to ensure the principle of the presumption of innocence is not eroded by a zeal to punish child sexual predators. Guardingagainst the injustice of the conviction of an innocent person requires strict compliance with the principle that an accused is presumed tobe innocent until proven guilty beyond a reasonable doubt (See also R. v. W.(R.), (SCC), [1992] 2 S.C.R. 122, at para.26). [10] The Court finds that the concern cited in R v.

B.J.L., supra, in regard to the presumption of innocence in the context of allegedsexual exploitation and sexual assault, is inclusive of matters involving youth who, while they may have nominally reached the age ofconsent for sex in Canada, are still defined as children under the age of 18 in the offence provisions of the Code concerning childpornography, and communication for the purposes of obtaining sexual services of a person under the age of 18.

Parliament recognizes theimbalance of power between an adult and youth in terms of their relative maturity, such that an adult may be able to leverage thisimbalance in order to sexually exploit a youth. [11] To begin, again, an accused is presumed innocent, unless proven guilty beyond a reasonable doubt. This means that the Crownmust prove each of the essential elements of an offence, to a standard that establishes them beyond that reasonable doubt standard. Thisstandard establishes that it is proof that must be closer to an absolute certainty, rather than to a balance of probabilities (R v.

Starr, 2000SCC 40 para 242). The burden of proof is with the Crown at all times. [12] To be clear, in R v. Lifchus, (SCC), 1997 3 SCR 320, at paragraph 36, the Court provided a definition ofreasonable doubt: 36 Perhaps a brief

summary of what the definition should and should not contain may be helpful. It should be explained that: • the standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials,the presumption of innocence; • the burden of proof rests on the prosecution throughout the trial and never shifts to the accused; • a reasonable doubt is not a doubt based upon sympathy or prejudice; • rather, it is based upon reason and common sense;

• it is logically connected to the evidence or absence of evidence; • it does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and • more is required than proof that the accused is probably guilty — a jury which concludes only that the accused is probably guiltymust acquit. [13] J.K.G. chose to testify in his own defence. As this Court noted, on the record during submissions by counsel, it is not theaccused’s burden to prove his innocence. [14] As set out in R v.

Huybers, 2021 NSPC 33 at paragraph 11, I am guided by the Supreme Court of Canada’s direction in R v.W.D., (SCC), [1994] 3 SCR 521, in which it is stated: 1. If I believe the accused’s evidence, then the accused is entitled to be acquitted. 2. Even if I do not believe the accused’s evidence, if it still serves to raise a reasonable doubt, then he or she is entitled to be acquitted. 3.

Even where I do not believe the accused’s evidence and his or her evidence does not raise a doubt, I must still consider on all theevidence I do accept, whether the Crown has proved the elements of the offences beyond a reasonable doubt. [15] The Court is required to test all of the evidence admitted, in the course of trial, and place appropriate weight to it. Thecredibility and reliability of the complainant’s evidence is to be tested in light of all the other evidence. [16] There is a difference between credibility and reliability.

The fact that a witness may be found credible does not answer thequestion of whether the evidence given is reliable. A credible witness can provide unreliable evidence. [17] When a Court assesses a witness’ credibility it does so to make a finding on the truthfulness of a witness. There are numerouselements that a Court keeps in mind when undertaking a credibility assessment (as enumerated in Forgeron, J., in Baker v.

Aboud, 2017NSSC 42 at para 13), which includes, but is not limited to: whether there were inconsistencies in the witness’ evidence; whether thewitness had an interest in the outcome or personally connected to either party; whether the witness had a motive to deceive; whether thewitness had an ability to observe the factual matters about which they testified; whether the evidence was provided in a candid andstraightforward manner, or was the witness evasive, strategic, hesitant or biased; and whether the witness is capable of making anadmission against interest or is self-serving.

Credibility assessment is not a science, but one grounded in human experience. [18] Reliability involves the accuracy of the witness’s testimony which includes the ability of the witness to observe and recall theevidence. [19] In R v. D.D.S., 2006 NSCA 34 , the Court wrote that: 77 … Experience tells us that one of the best tools to determine credibility and reliability is the painstaking, careful and repeatedtesting of the evidence to see how it stacks up.

How does the witness’s account stand in harmony with the other evidence pertaining toit, while applying the appropriate standard of proof in a civil or a criminal case? [20] It must be emphasized that in a criminal trial, as the accused’s liberty interest is at stake, the Court does not simply choose toprefer the complainant’s or the accused’s version of events, but engages in a careful assessment of all of the evidence, in context.Therefore, it must scrutinize and carefully consider any circumstances that could affect the reliability of the evidence, as well. [21] Finally, the Court notes that it is entitled to accept all, none, or some of a witness’s evidence, and may attach different weightto different parts of the evidence (Novak Estate, Re, 2008 NSSC 283).

Evidence [22] In this matter, the Crown tendered the evidence of the complainant, M.B., and her mother, J.R. The Crown also offered Cst.Liam MacLellan, who was the lead investigator on the matter, who took M.B.’s video statement concerning the incident. [23] Mr. Kevin MacDougall, a Senior Digital Forensic Expert with the RCMP, was offered by the Crown, and qualified by theCourt as an expert witness to assist in regard to evidence concerning the contents of J.K.G.’s cell phone.

This cell phone was analyzed atthe RCMP H Division Digital Forensic Services, using its investigative software programs. [24] J.K.G., in his defence, offered his own evidence, and that of his common law partner, Ms. J.W. M.B. [25] M.B.’s evidence was that on March 4, 2022, she was 16 years old. This fact was accepted by the Court. J.K.G.’s subsequentevidence was that he knew that M.B. was under the age of 18 at the time of the alleged incident, as she was then about the same age ashis daughter, A.G.

He had recalled meeting M.B. when she was about 12 years old, and acknowledged that he had known her for aboutfour years. [26] M.B.’s evidence was that she went to her friend’s hockey game at the Lunenburg Arena. This was not unusual. M.B. was alsoinvolved in sports, specifically volleyball. Her plan that evening was that, after the hockey game, the two young girls would go to amutual friend’s gathering in Tantallon.

[27] M.B. stated that she went to the “warm room” or the “heat room”, which is a place at the arena to warm up, at the top of a flight of stairs overlooking the rink.

She recalled that J.K.G. entered the room, where she was then alone, and began talking to her in a “weird way.” [28] She remembers him starting by asking if he could sit in the room with her and saying “You’re not going to touch me, are you?” [29] J.K.G. began telling M.B. about how unhappy he was with his common law partner, and that he was suicidal, and he told her that they were not having a good sex life. [30] M.B.’s evidence was that J.K.G. asked her if she made any money or had a part time job. Her response was that she was focused on school and sports.

She recalled then that he asked her how she got any spending money, with her stating in reply that she would ask her parents. [31] After a pause, she remembers, he then came close to her ear and said, “I’ve always found you really hot.” She was shocked and a little scared. Then, J.K.G. repeated the comment about him finding her “really hot.” [32] J.K.G. then asked M.B. to show him her phone, to “see if she was hiding anything.” [33] He then continued speaking to M.B., talking about men who would pay girls to show them their breasts and asking if she would ever do that.

He then asked her how much she would take to do that, so she said “$1000.” He responded with that is “a lot.” [34] J.K.G., M.B. recalled, then asked whether she heard of a “sugar daddy,” and she said yes. His response then was to say “I know a few guys” who are regular sugar daddies, and asked her if she would ever do that. She replied, “no.” [35] M.B. then picked up her phone to look at it, and J.K.G. asked if she had any nude pictures of herself on the phone that she could show him. She said no. J.K.G. then asked if he could “add her” to his social medica account, so that then she could send him some.

Her response was that she did not do that, and she was not interested. [36] M.B. was very uncomfortable. She did not know what to say in response to this adult, the father of her good friend. Her evidence was that she was scared of him. [37] Then, J.K.G. told her that he had to unfollow M.B. on Instagram because he would jerk off to her photos that were posted there. He then opened his own phone and accessed her Instagram account. While he had her account page open on his phone, he then showed M.B. a photo of herself in her bathing suit at a local beach, pointing it out as the one that he would masturbate to.

Her memory is that he kept speaking to her while showing these photos of her from her account on his phone, such as “…the things I would do to you.” M.B. testified that she became very scared, as she did not know what J.K.G. might do to her, as she was alone with him, and he was being sexually inappropriate. [38] M.B., while scared, was able to tell him she was not interested.

J.K.G. asked if she knew any “friends” who were her age that would be interested. [39] J.K.G. continued, by telling her that when M.B. went on a road trip with him and A.G. for a sports game, that he wanted to touch her while she slept in the back seat. M.B. recalled that there was a silence, for a time, as she did not know what to say. [40] The hockey game ended. M.B. went to leave the room.

Her description of the heating room was consistent with the other witness, J.K.G., that there is a door, a set of steps, and then a long hallway before another set of steps to the rink. [41] M.B. recalls that J.K.G. put his arm around her as they walked through the hallway, starting at her upper arm and sliding down. He asked if he could touch her buttocks, and his arm moved lower. She told him “no.” He responded with, “you should let loose” or “live your life” encouraging her to give consent.

Again, she said “no.” She says that he then slid his arm further down her side, and told her again he was going to touch her buttocks, and for a third time, she said “no, you are not.” She remembers that he slid further down her side, and lower back, then toward her buttocks and she made a slight jump to avoid him touching her any further and then went into a women’s bathroom. [42] After a while, as she left the bathroom, she saw that he was waiting inside the arena. She felt that he was waiting for her to come out. M.B. avoided J.K.G. and headed to a car to leave.

She then saw that J.K.G. was behind her, following her out to the car, with what she felt was a very mean and mad look. M.B. entered the car, and locked the door. She then phoned her mother, J.R.. [43] M.B. confirmed that the photographs of herself located on J.K.G.’s phone, in its cache storage as found in the investigator’s reports were photos that she had uploaded to Instagram and VSCO, both photo sharing social media internet platforms.

The photos M.B. had uploaded were of her on various beaches, both fully clothed and in swimwear, or of her hanging out on a deck or walking outdoors, or of her with a volleyball teammate, at a game. They were pictures of her alone, or with friends, including J.K.G.’s daughter. Some were taken while she was in her personal bathroom, her bedroom, or a relative’s home. [44] M.B. was unsure if her social media accounts were public accounts, and she could not recall if there were privacy settings.

She was very firm that she did not send any photos of herself to J.K.G. [45] On cross examination, it was put to her that J.K.G. had actually been speaking to her in a cautionary manner, to warn her about the dangers of posting personal photos as others might use it for improper purposes. Her response to that suggestion was a firm no, and that “he was definitely asking me for nude photos.” She was also firm in her recollection on cross that J.K.G. had said, “I jerk off to your photos.” [46] The Court found that M.B. was a reliable witness, as she was consistent and detailed concerning the incident.

Further, she was very credible, with forthright answers on direct and during her cross examination as she was challenged on the incident and her

recollection of the experience. [47] J.K.G. submits that the Court should make a negative finding concerning M.B.’s credibility as she was non-reactive during the conversation and attempted to “brush it off” while it was happening. This, however, seems like a measured response by a much younger, and smaller, person attempting to get themselves out of a harmful situation. Constable Liam MacLellan [48] Constable Liam MacLellan was the investigating officer. He took M.B.’s statement on March 6, 2022. This video statement was admitted pursuant to a s. 715.1 application.

A portion of the statement was irrelevant to this proceeding and redacted, and although a part of the statement was difficult to hear, the complainant’s interview with Cst. MacLellan was quite audible. [49] Cst. MacLellan is an experienced RCMP officer, with 15 years of service. He gave evidence while in uniform, and it was noted on the record that this had no bearing or influence while I was considering his evidence. [50] Cst. MacLellan was first contacted by J.R., M.B.’s mother, on March 5, 2022. This was consistent with M.B.’s evidence, as her mother told Cst.

MacLellan that her daughter was in Tantallon and unavailable until the day after the incident. [51] Cst. MacLellan spoke with M.B. on March 6, 2022. However, his evidence was the J.K.G. attempted to contact him on March 5, 2022, but he did not return J.K.G.’s call as he was not prepared to speak with him until he had taken M.B.’s statement. [52] On March 7, J.K.G. attempted to contact Cst. MacLellan at 9:30 a.m.. Cst. MacLellan did contact J.K.G. in the evening, at 9:00 p.m. to inform J.K.G. that they were to meet at 2:00 p.m. at the Cookville RCMP detachment. When J.K.G. attended, Cst.

MacLellan seized J.K.G.’s phone. J.K.G. was cautioned, and after he spoke with counsel, he did provide his password to the device to the RCMP. [53] On March 8, 2022, Cst. MacLellan contacted J.R. and obtained her witness statement. Cst. MacLellan was provided with a recorded conversation between J.R. and J.K.G. that she had audio recorded on her own phone. [54] Then, he contacted RCMP Digital Forensic Services in Dartmouth, where the phone was analyzed, with the data extracted later sent to his attention for his review to evaluate whether it contained potentially relevant information on the phone. As Cst.

MacLellan testified, this involved him “sifting through” thousands of photos or information on the phone. The chronological stamp in the records contained in each report that he generated place the record (photo or message) in time and make it readily identifiable. J.R. [55] J.R.’s evidence was that she knew her daughter M.B.’s friend, and her family, but that she did not know J.K.G. She recalled that she met him once, in a driveway. [56] She recalled also that she had a phone call in the evening of March 4, 2022, from her daughter, M.B..

As J.R. spoke with her, she could hear that her daughter was hyperventilating and crying. She stated it felt like a very long time had passed while she tried to calm her daughter. J.R. knew her daughter was going to continue on with her overnight visit to Tantallon with her friends, but felt very helpless and unsure of what she would do in response to her daughter’s phone call.

J.R. remembered that M.B. was unsure of what to do next, but that together they considered calling the police. [57] J.R. admitted that she considered going to confront J.K.G. directly that evening, but instead went to the Cookville RCMP but there were no officers on site. [58] J.R. then called 911. She did recall that M.B. did indicate she wanted to go to the police. [59] On March 5, 2022, J.R. had contact with J.K.G. over Facebook Messenger.

She engaged in this contact as she wanted to “let him know that I know.” She admitted that she was angry during those message with him. [60] The digital records evidence established that, R.H., M.B.’s stepfather, had messaged J.K.G. on March 5, 2022 at 12:55 p.m., writing, “…regarding your disgusting behaviour regarding your quiet talk in the warming room with (M.B.). You should not say inappropriate things to a young woman about how you masturbate to a 16 year old girl. Also saying how you almost touched her tits while she slept in your car…she is traumatized by your actions.

We will be taking her to fill out a police report this afternoon. You appear like a nice citizen being a fireman and what not…” [61] The digital records then establish that J.K.G. had then attempted to call R.H. directly over Messenger without success at least four times. In one message that was sent on March 5, 2022 at 1:18 p.m., J.K.G. writes that “…I will help and corporate [sic] to resolve this matter.” [62] J.R. was then contacted by J.K.G., as he was not succeeding in contact with R.H. they exchanged messages, with J.R. expressing her anger at J.K.G.

In another message on the same day, at 2:04 p.m., J.K.G. writes that “I understand. I have already gone to the police. I was hoping to talk to you guys.” [63] At 2:06 p.m. the same day, J.K.G. writes to J.R., “Again I am sorry if I made her feel that way. I truly am. I just wanted to talk to you and [R.H.] as well.” [64] J.R. was unsure of whether she initiated a call or whether J.K.G. initiated a call, but one did occur that day. J.R.’s evidence is that about 10 minutes into the call, she realized that J.K.G. was making admissions and so she spontaneously recorded their conversation.

This digital audio file was admitted into Court upon a voir dire , and played on the record. A transcript was provided for reference only. The Court notes that the sound quality was very good. J.R. is not a person in a position of authority in relation to J.K.G., and she was not a part of the official investigation of the matter, and the audio contains admissions against interest made by the accused.

[65] During the audio, J.R. states that her daughter is throwing up and “is destroyed.” J.R. admitted that she was pretty heated in the first portion of the call with J.K.G. [66] The audio contains J.K.G. making admissions to J.R. concerning the incident. He says at one point: “…And I don’t know what to say. I…obviously there’s nothing I can say to…to…to make up for that, I get that. That’s why I’m cooperating. That’s why I went to the police because I want to own up. It’s not who I am. I wish I could tell you why I said that. I truly wish I could tell you why. And I don’t. Be…especially where they’re not true.

Like, that’s…” [67] At another point, J.K.G. says, “…you don’t have to believe me, and I’m not making excuses when I said I’m on THC and all that stuff, because I’m telling you, I…I’ve owned up to everything. I’m just trying to give you the background of everything that I was dealing with, and…not saying that’s why. I should have restrained myself, I don’t know.” [68] At other points, J.K.G. speaks of “not denying anything that you’re calling me and all this stuff…” Further along, he states “I’ll be going to the police station today. I’m just waiting for them to call me.

Because...I’m owning up to this, because one, I don’t want to…I don’t want to think I’m a pedophile. I just made a mistake, and it was a bad mistake. But that’s not who I am…” [69] The Court found J.R. to be very restrained in the course of her evidence. Even during the audio file of her call with J.K.G., although she was angry and expressive, she was also compassionate to J.K.G. at times, and she had to make efforts to put an end to her call with him so she could return to her shift at work.

J.K.G. was emotional, and the Court finds, attempted to manipulate J.R. by appealing to her sense of compassion, as he alluded to severe personal dysfunction and the impact of the incident on his own interests. J.R. though stated at one point that “she prayed to God” that he would get help and that the matter would be left in the hands of the law. She was credible, though not as reliable in her evidence as her daughter, M.B.. [70] J.R. said in her direct examination that their hope then was that J.K.G. would face charges and “go get help”, rather than have the matter go to trial. Mr.

Kevin MacDougall, Digital Forensic Expert [71] Mr. MacDougall was a qualified as an expert in the area of analysis of electronic devices, cellphones, and in the

interpretation and collection of data. Mr. MacDougall has been trained in and has been working as a digital forensic analyst since 2015. He has been qualified in this area in other matters at both the Provincial and Supreme Courts of Nova Scotia. [72] Mr. MacDougall was the forensic analyst charged with running the data found on J.K.G.’s phone through two software analytic programs, Cellebright and Magnet Axiom.

Both are used to ensure a level of completeness in data analysis, as one program may filter out images that the other may capture. [73] Upon reviewing the search warrant issued in regard to J.K.G.’s phone, Mr. MacDougall ran the two programs on the data stored in the phone, including its cache. This analysis generated data records in predetermined categories, such as photos, images, Facebook messages, and locations, and other items that are within the set time ranges. Mr.

McDougall does not manipulate the dataset. [74] The data integrity was canvassed with the Court, as well as the meaning of the record notes which would indicate the “date and time” of creation, or whether the data had been “modified”, which might also correspond to when the image was viewed on the phone. [75] Mr.

MacDougall noted too that the images were found as “cached” data on J.K.G.’s phone as they had been accessed from Instagram and from VSCO, which M.B. testified she maintains accounts on. [76] He informed the Court about how to read the data details contained in the records in the dataset provided to the Court in the exhibits of cached photos and messages. Of particular interest to the Court was the concept of “carving” which appeared as a note.

It appears that the relevant photos were “carved” or deleted, which can be a background function of the internet software program running and curating images like Instagram. However, the Facebook messages with J.R. and her spouse and J.K.G. were intentionally deleted by carving from the phone, prior to it being given to Cst. MacLellan. [77] Further, the conversation between J.K.G. and his common law partner, J.W. on March 4, 2022, were also deleted by way of carving, but recovered on the phone’s data.

This exchange referenced his daughter's hockey game and his intention to attend it. [78] The next set of records of interest identified by Mr. MacDougall was a series of messages to an unidentified user from J.K.G.’s phone. In those messages, the user of the phone, J.K.G., writes that “I was at my daughters hockey game and at the third period I sat with one of her friends and said some inappropriate sexual things and she’s only 16. I’m spirally our [sic] of control and I don’t know how to stop and what to do.

I call the Iaff rehab centre…” This series of messages was also “carved”, by intentional deletion. [79] On cross examination, it was apparent that the repetition of images that had been appearing in the data records of photos of M.B. can be attributed to repeated accessing of the images as two files in a phone cannot both have the same file name. These cached items also referenced different resolutions occurring. This was indicative of multiple access occurrences, as the image size from a thumbnail to a larger screen will change the data profile.

J.K.G. [80] J.K.G.’s evidence was that he met M.B. when she was about 12 years old. He indicated that he is estranged from his daughter, A.G., and relied on M.B. to keep him informed about her. J.K.G. also stated that on a few occasions, both A.G. and M.B. accompanied him on a road trip to Halifax/Dartmouth for games there. [81] He confirmed attending the Lunenburg Arena on March 4, 2022 to watch A.G. play hockey. J.K.G.’s intention was that he wanted to watch A.G. in the first period, tell her she had done a “good job” and leave.

In his evidence, he then said that at the second or third period intermission that he saw A.G. and said “good job” and then saw the warm room and the people there.

[82] J.K.G. went into the warm room or heat room to say hello to M.B.. He denies ever saying “you’re not going to touch me” to M.B.. [83] His evidence was that he then told M.B. that he missed A.G., and reached out to M.B. on Instagram for advice. He then took his phone out to show her but also told her he had to stop following her on Instagram because he could not have “that” (her photos) on his phone.

He stated he said “guys are probably jerking off to your pictures…” J.K.G. also then told her, “can’t blame them, if I were a teenager I probably would too…” [84] J.K.G. then told her that when they were travelling in the truck and she was asleep that her left breast could have been exposed. [85] J.K.G. denied ever speaking about money, nude photos, or sugar daddies with M.B.. He recalls that there were two other girls in the warming room, until the last three or four minutes of the game.

On cross examination, he says he was alone with M.B.. [86] J.K.G. recalls that after his discussion with M.B., that they left the warm room, and that he placed his arm over her head to help keep the door open for them both as they walked out. He also says that he asked her if A.G.’s friend was a friend or boyfriend and that she should make sure that he had money in case they split up. [87] J.K.G. next remembers that he put his right hand around M.B. on her shoulder and then placed his head on her shoulder. He stated this twice.

His evidence on cross, though, was that he never touched M.B.. [88] M.B. then went to the washroom and he went to his truck directly, through the crowd of other attendees. [89] He then changed this on direct, and said that he did see her outside of the washroom and said “make good lifestyle choices” to her. On cross examination, this again changed, and he stated that he did not see her again. [90] He denies ever giving M.B. “a look” in anger. [91] J.K.G. changed the narrative again, and said that he went to the bathroom and then to his truck.

There were many people out in the parking lot and it was dark. [92] The next day, he says that he received a Facebook message from M.B.’s stepfather, and tried to contact him. He remembers that it was J.R. who contacted him via Messenger. The audio recording is, in his view, about half of the call although he does note he said “inappropriate words.” [93] J.K.G. stated that it was after he spoke with J.R. he went to the Bridgewater Police and was told that they were not the group that he should contact. His evidence is that they gave him Cst. MacLellan’s card.

However, this is in direct contravention of the messaging records and contents, in which J.K.G.’s account wrote to J.R. that he had already gone to the police, before he had ever spoken to J.R.. [94] J.K.G. also testified that he gave his password to Cst.

MacLellan as he “had nothing to hide.” This seems odd, as the data demonstrates that phone messages with admissions were deleted prior to giving his phone to the police, with the password. [95] On direct, J.K.G. admitted that he opened Instagram on his phone on March 4, 2022 and searched for M.B.’s page and brought up her page on his phone, but the multiple records that indicate he did so were just him scrolling.

His purpose in doing this was to demonstrate to M.B. he did not want to see her pictures, that were inappropriate to him, on his phone. [96] His explanation for records of photos on Instagram viewed on January 4, 2022 and May 19, 2021 are that he does not know how they are on his phone.

On cross examination, J.K.G. was taken through images of M.B. that were accessed via J.K.G.’s phone on February 2, 2022, May 19, 2021, November 2021, and January 4, 12, and January 30, of 2022, all well in advance of the March 4, 2022 incident. [97] J.K.G. did acknowledge the Facebook messages with R.H.. [98] Further, he also acknowledged sending and received messages from A, the Chief of the Critical Incident Stress Management Team, as he was seeking help from them to attend International Association of Fire Fighters rehab program. [99] On cross examination, J.K.G. reaffirmed his direct evidence that he involved M.B. in adult conversations about advice on parenting.

He further reaffirmed that he told M.B. that “…if I were a teen I would jerk off” to her pictures as well as telling her that her left breast was exposed. [100] J.K.G., on cross, stated that he did not feel he did anything wrong during this conversation, and that M.B. was told she had to be careful how she dressed in her pictures on Instagram. [101] Further, when his admissions in the course of his call with J.R. were put to him, he agreed that at no point did he deny the serious allegations that R.H. and J.R. made about his behaviour to their daughter.

He thought it was inappropriate, not criminal, despite making statements about going to the police, which he had not done. [102] On cross examination, J.K.G. denied that he had friction with J.W. concerning his attendance at the hockey game. He also characterized the audio call as him letting J.R. “vent”, although it was apparent on listening to it that he was speaking more and was far more agitated, and seeking J.R.’s reassurances. [103] J.K.G.’s evidence concerning his contact with J.W. to inform her about the allegations was also confusing.

He acknowledges that he messaged her and was trying to “do the right thing.” [104] The Court found J.K.G.’s evidence to be both self serving, and illogical, and therefore not credible. He was not consistent in his

responses on the incident, contradicted his own evidence while giving it, and is an unreliable witness. J.W. [105] J.W.’s evidence was focused on the relationship between J.K.G. and his daughter A.G.. The Crown asked J.W. whether she believed that the strength of the relationship between the two girls was such that M.B. would make a complaint in support of her friend’s ongoing anger with her father. The response was, in sum, yes. [106] In regard to the allegation made by M.B., J.W. stated that she believed J.K.G. had said inappropriate things to M.B..

She recalled that he was distraught on the phone when he called to tell her he said “inappropriate things.” She believed that he had “hugged” M.B. [107] J.W.’s evidence was to bolster J.K.G.’s evidence. The Court found that she was neither reliable or credible, as it is apparent that J.W. is strongly motivated to say anything in defence of J.K.G..

She admitted engaging in searches on M.B.’s social media accounts on four different platforms, seeking something salacious in support of J.K.G.’s defence. [108] J.W. has children from a prior relationship, who were the subject of an investigation by Department of Community Services when the charges were filed against J.K.G..

Analysis of Each Count [109] As I have already remarked, each of the elements of an offence must be proven by the Crown, beyond a reasonable doubt. [110] The Court will then canvass the elements of each of the four offences in the indictment, in turn, and then apply its findings of fact in regard to each element with reference to the evidence heard, and an accompanying legal analysis.

By doing so, the intention of the Court is to organize its findings and analysis in order to lessen repetition within the decision, and to focus its findings on the evidence heard of the course of the four day trial to those facts which are most relevant to its decision on the charges. Count 1: Attempt to possess child pornography contrary to s. 163.1(4) of the Criminal Code [111] In regard to the actus reus for this count, the Crown must prove that the accused was in possession of materials that meet one of the four

definitions of child pornography set out in s. 163.1(1) of the Code . In this matter, the Crown focused on the definition related to “photos or videos” in s. 163.1(1) (a). [112] This

section requires that the Crown must prove one of two things: that the photo (which includes digital images) shows a person under the age of 18 who is engaged in explicit sexual activity, or the photo depicts the “sexual organ” or anal region of a person under the age of 18 for a sexual purpose. [113] The accompanying mens rea is established when the Crown proves that the accused knew that the person in the photo is under the age of 18 and has knowledge of the sexual activity or sexual organ captured in the image.

The accused must intend to possess these materials, with possession defined in s. 4(3) of the Code . [114] The Crown’s position is that J.K.G. knew M.B. was under the age of 18, when he accessed her social media accounts. J.K.G. admitted that he was aware she was not yet 18 at the time of the incident, as established during his direct examination. This element is proven. [115] It is noted that “sexual organ” has been interpreted judicially to include bare breasts, as per R v.

VPS, 2001 BCSC 619 at para 85 . [116] Case law in Nova Scotia indicates that in at least one matter, a Court found that a photo of a female youth’s breasts, clothed in a bra, was found to meet a definition within the sexualized context of online exchanges as the accused sought nude photos of the youth’s breasts, as found in R v. “Y” 2015 NSPC 14 at para 15 , a decision of (as she then was) Judge Ann Derrick. [117] The Crown submits that J.K.G. had a sexually explicit conversation with M.B.. M.B.’s evidence was that he said:

a) She was “really hot”, twice.

b) He knew a guy who pays girls to show him their breasts, and asked if would she do that.

c) He asked how much she would want to be paid to show her breasts.

d) He asked if she knew what a “sugar daddy” was, and whether she would ever do that.

e) He asked if she had nude photographs of herself on her phone, and to send them to him if she did.

f) He told her he had to unfollow her on social media because he would “jerk off” to the photos.

g) He told her if she was not wearing a jacket, he would look at her breasts.

h) He was unhappy in his sex life with his wife. [118] M.B.’s evidence was supported by the evidence of the Facebook messages sent by J.K.G. to J.R., in which he admitted and apologized for his behaviour, but did not deny the allegations. Further, there are the messages sent to J.K.G.’s firefighter union representative, in which he made an admission adverse in interest to his representative by stating that he said “inappropriate sexual things” to a 16 year old girl. [119] The Court found that the digital forensic materials were reliable, as the methodology used by the forensic digital analyst and then

the investigator showing a sharp divide between extraction of data from the device and then its later analysis for the purposes of the investigating officer. There was no serious suggestion that the data was corrupted or inherently incorrect or coming from any other source than J.K.G.’s own cell phone, which had in its memory data “cache” demonstrating repeated access to M.B.’s social media photos. The dates and the images that were accessed on March 4, 2022 corroborate M.B.’s evidence that he showed her photos of herself on a beach, in swimwear.

They also indicate that J.K.G. had repeatedly accessed both Instagram and VSCO, seeking out images of M.B. at least a year prior to the incident. [120] J.K.G.’s submissions on the first count was that there were no nude photos of M.B. found on J.K.G.’s phone. However, this aspect of the evidence concerning the offence is that J.K.G. requested that M.B., a person under the age of 18, create and send him nudes.

J.K.G. fully denies the conversation having taken place and maintains that M.B. misunderstood his “parental” approach to warn her of the dangers of her online social media postings. [121] J.K.G. demonstrated a profound lack of self awareness, at times, and as I noted before, I do not accept his evidence concerning his version of the contents of his discussion with M.B.. [122] J.W.’s evidence in support of J.K.G.’s narrative was a full throated defence of J.K.G.’s version of the discussion.

As noted before, it was apparent to the Court that J.W. would say anything in support of him and his interests, even to the detriment of his relationship with his daughter, A.G..

She was neither reliable or objective in her evidence. [123] The first two branches of the WD, supra test indicate that I must undertake an analysis of the totality of the evidence that I do accept, to determine whether there is proof of the elements of the offences beyond a reasonable doubt. [124] The first two branches of the WD, supra test are not met, which indicate I must undertake an analysis of the third branch. [125] Taken the evidence in its totality, the Court finds that the Crown has proven beyond a reasonable doubt that the subject of the photos was a person under the age of 18, which J.K.G. knew. [126] Further, the Court is satisfied beyond a reasonable doubt that J.K.G. had knowledge that he viewed the contents of the online images of M.B, as sexual containing images of M.B.’s “sexual organs”, specifically her breasts, although covered by a bikini swimsuit.

This is based on the viva voce evidence of M.B. and the evidence concerning J.K.G.’s attempts to apologize to her mother, and seek help for his “inappropriate sexual comments” made to her about her online photos.

J.K.G. created the sexualized context surrounding these photos when his statements to M.B. about the content of her online photos was explicitly linked to his own sexual gratification in masturbating to them, with his accompanying request that she send him nude pictures. [127] The Court finds that there is proof beyond a reasonable doubt that J.K.G. is guilty of breaching s. 163.1(4) of the Criminal Code , which is the first count on the indictment.

Count 2: Communicated for the purposes of obtaining the sexual services of a person under the age of 18 years contrary to s. 286.1(2) of the Criminal Code [128] As noted in the analysis of the prior count, the Court is satisfied that J.K.G. knew M.B. was under the age of 18. [129] The Crown submits that the offence in s. 286.1(2) is that there are two modes of liability, specifically: the preparatory offence of communicating for the purpose of obtaining sexual services of a person under the age of 18 and; the actual obtaining of those sexual services. [130] As was noted by Justice Maniella in R v.

Alcorn , 2021 MBCA 101 at para 44 : [44] There is naturally an imbalance of power between adults and children. Children are sexually vulnerable and easily manipulated and, thus, ripe for exploitation. Modern laws regarding sexual offences against children, such as

section 286.1(2) of the Code , are “child- centred” ( Friesen at para 53) and designed to protect children from sexual relations with adults by reason of their “lack of maturity, judgment, and experience” ( ibid ). [131] M.B.’s evidence is that J.K.G. had asked her if she had any nude photos on her phone that she could send him. [132] Then he spoke about knowing a guy who pays girls to show him their breasts, and asked if would she do that.

J.K.G. asked her how much she would want to be paid to show her breasts, and she recalled him commenting that her response of her $1000 “price”, which the Court determines was a “throw away” comment in an attempt to get J.K.G. to stop talking about this, was too high.

This exchange is essentially that of a negotiation, undertaken in the hope that she might make a corresponding indication that she would accept such a situation, for money. [133] J.K.G. then asked M.B. if she knew what a “sugar daddy” was, which she interpreted, correctly, to him as a man who pays a younger woman money for her sexual attention, and he asked whether she would ever do that or would be interested in that. [134] M.B.’s evidence was that he was asking in an indirect manner, referring to “some men”.

The Court infers that the reference to “some men” and hypothetical situations was to explore M.B.’s willingness, and speaks to “grooming” behaviours seeking to normalize payment for sexualised services from a minor. [135] J.K.G.’s evidence is that he never said any of these things, in viva voce evidence, however, the record of evidence of admissions made to J.R. and his union contact contradict and undermine this assertion. His submission was that, to the extent there was any discussion of this, which he denies, that actually all of the conversation was intended to be a warning to M.B. about other males.

He was misinterpreted. He was oblivious. He did not think what he said was criminal. Just inappropriate. And there was also no “collection” of

nudes found on his phone of M.B. [136] The Court must again apply the third branch of WD, supra to the totality of the evidence that has been admitted. [137] The evidence, in its totality, in consideration establishes J.K.G. did communicate with M.B. about obtaining “sexual services”,specifically nude photos, with an associated exchange for money. The Court also finds that his communications about “sugar daddies”was made in regard to exploring whether M.B. would be receptive to such an arrangement for his sexual gratification.

He had alreadyspoken to M.B. about how he “found her really hot”, showed her photos of herself that he found so attractive that he “jerked off to them”,and then asked her for nude pictures to be sent to him from her phone, if she had any. [138] The next step, when requesting how much she might be willing to receive as payment if she were selling such images, andwhether she would be interested in such an arrangement as a “sugar daddy” is a credible escalation of the conversation, with any positiveresponse leading to establishing such an arrangement with him. [139] J.K.G.’s panicked response to M.B.’s parents and attempts to contact police in advance of charges being laid all containadmissions of regret for saying “inappropriate sexual things” to a 16 year old girl.

J.K.G.’s defence now is that his comments weremisunderstood and he was simply warning her about the content of her public images.

However, embedded within this defence, is arecognition that he, personally, found her photographs online to be sexually exciting. [140] M.B.’s evidence was compelling, and disturbing, as she stated that he showed her the images of her he found particularlyappealing and asked for more, with money included in the context of the discussion. [141] As the Court examined the images, they all simply appeared to be of a young woman doing the normal things that many youngwomen who live on the South Shore of Nova Scotia typically enjoy.

She went to the beach with friends, played on a sports team, andposted selfies online while doing social things with her friends. This is normal for youth, as their social lives are inextricably intertwinedwith digital social media, online. That M.B. can be observed on the “digital beach” does not create an invitation for unwanted sexualattention from all persons, no more than her being on an actual beach is an invitation or some form of acquiescence for unwanted sexualattention. [142] It was J.K.G.’s

interpretation of her posted images that made them “sexual” as his desire for her made them appear that way tohim, specifically. [143] The Court finds that there is proof beyond a reasonable doubt that J.K.G. is guilty of the offence in the second count, with all ofthe elements proven as set out above. Count 3: Sexual assault contrary to s. 271 of the Criminal Code [144] In R v. Chase SCC at para 11, McIntyre, J. wrote: 11 Applying these principles and the authorities cited, I would make the following observations. Sexual assault is an assault withinany one of the

definitions of that concept in s. 244(1) of the Criminal Code which is committed in circumstances of a sexual nature, suchthat the sexual integrity of the victim is violated. The test to be applied in determining whether the impugned conduct has the requisitesexual nature is an objective one: "Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visibleto a reasonable observer" (Taylor, supra, per Laycraft C.J.A., at p. 269).

The part of the body touched, the nature of the contact, thesituation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct,including threats which may or may not be accompanied by force, will be relevant (see S. J. Usprich, "A New Crime in Old Battles:Definitional Problems with Sexual Assault" (1987), 29 Crim. L.Q. 200, at p. 204.) The intent or purpose of the person committing theact, to the extent that this may appear from the evidence, may also be a factor in considering whether the conduct is sexual.

If the motiveof the accused is sexual gratification, to the extent that this may appear from the evidence, it may be a factor in determining whether theconduct is sexual. It must be emphasized, however, that the existence of such a motive is simply one of many factors to be considered,the importance of which will vary depending on the circumstances. [145] In order to convict an accused of sexual assault, the Crown must prove, beyond a reasonable doubt, that the accused intentionallyengaged in non-consensual touching of a sexual nature. [146] Major, J. in R v.

Ewanchuk, (SCC), [1991] 1 SCR 330 at para 24 noted: 24 The crime of sexual assault is only indirectly defined in the Criminal Code, R.S.C. 1985, c. C-46. The offence is comprised of anassault within any one of the

definitions in s. 265(1) of the Code, which is committed in circumstances of a sexual nature, such that thesexual integrity of the victim is violated: see R. v. S. (P.L.), (SCC), [1991] 1 S.C.R. 909 (S.C.C.).

Section 265 providesthat: 265.

(1) A person commits an assault when • without the consent of another person, he applies force intentionally to that other person, directly or indirectly; • (

b) he attempts or threatens, by

an act or a gesture, to apply force to another person, if he has, or causes that other person to believeon reasonable grounds that he has, present ability to effect his purpose; or • (

c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

(2) This

section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causingbodily harm and aggravated sexual assault. [147] Further, in defining the essential elements of the offence of sexual assault in R v. Ewanchcuk, supra, at para 23: 23 A conviction for sexual assault requires proof beyond reasonable doubt of two basic elements, that the accused committedthe actus reus and that he had the necessary mens rea. The actus reus of assault is unwanted sexual touching.

The mens rea is theintention to touch, knowing of, or being reckless of or wilfully blind to, a lack of consent, either by words or actions, from the personbeing touched. [148] And then at para 25: 25 The actus reus of sexual assault is established by the proof of three elements: (

i) touching, (ii) the sexual nature of the contact,and (iii) the absence of consent. The first two of these elements are objective. It is sufficient for the Crown to prove that the accused’sactions were voluntary. The sexual nature of the assault is determined objectively; the Crown need not prove that the accused hadany mens rea with respect to the sexual nature of his or her behaviour: see R. v. Litchfield, (SCC), [1993] 4 S.C.R. 333,and R. v. Chase, (SCC), [1987] 2 S.C.R. 293. [149] In reviewing the evidence, I must consider three factors: [150] First, whether there was an intentional application of force by the accused to the complainant:

a) The application of force may be direct by the accused using a part of his body, such as his hand or his penis. It may also be indirectif the accused uses an object or instrument. This element refers to the state of mind of the accused when he applies the force.

b) Sexual assault is a crime of general intent. Therefore, the Crown does not have to prove a specific intent with respect to the sexualnature of the assault. The Crown may establish the accused knew what he was doing or that he was wilfully blind or reckless as to whathe was doing.

c) Intentionally means on purpose and not by accident. An accidental touching is not an intentional application of force. To determineif the accused’s actions were intentional, the Court must consider all of the circumstances surrounding the application of force,particularly taking into account the nature of the contact and the words/gestures that may have accompanied the contact. [151] Then second, whether the touching was of a sexual nature. Courts have found that:

a) An assault is sexual in nature when the sexual integrity of the victim is violated. The Court is required to apply an objective test asto whether a sexual context to the assault is visible to the reasonable observer.

b) To determine if the assault is of a sexual nature, the Court looks for the presence or absence of sexual gratification while consideringthe surrounding circumstances: i. The part of the body touched; ii. The nature of the contact; iii. The situation in which the contact occurred; iv. The words/gestures accompanying the contact; v. The purpose of the application of force/touching. (See Chase, supra and Ewanchuk, supra) [152] And thirdly, there must be an absence of consent to the touching.

M.B.’s evidence was clear that she had not consented to J.K.G.touching her body, and specifically to touching her buttocks as they left the warming room. [153] Consent must be freely given, absent of threatened or actual violence to the complainant or any other person. Every act must beconsented to, with consent to one act not equating to consent for all manner of sexual acts.

No consent is obtained when the accusedinduces the complainant to engage in the activity by abusing a position of trust, power, or authority. [154] The Crown’s theory is that the actus reus was committed when J.K.G. attempted to touch M.B.’s buttocks. The fact that he wasunsuccessful in his attempt to touch her buttocks does not negate that M.B. did not give consent to being touched by J.K.G. J.K.G.’s ownevidence is that he did touch M.B., placing his arm around her.

This occurred in a context where highly sexualized comments were justmade by J.K.G., who was an adult in a position of trust, and her close friend’s father who she had known since childhood. [155] M.B. jumped away before J.K.G. had gotten to her buttocks, and her evidence was that she said “no” three times before thisattempt. [156] J.K.G.’s version of touching M.B. differed mainly in that he stated he did place his arm around her but did not try to touch herbuttocks, but bizarrely, placed his head on her shoulder while he walked with his arm around her. J.K.G. stated this on direct, and oncross.

J.K.G. is substantially larger than M.B.. This, if the Court accepts that the touching occurred in this manner, is by itself an oddly

intimate gesture. Placed in the context of the sexualized discussion that had just taken pace between the two, it was also weirdlyoppressive conduct which J.K.G. says he engaged in with this very young girl. [157] The mens rea of the offence is established when the Crown proves that there is an intention to touch the complainant, beingreckless of, or wilfully blind to the absence of consent to the person being touched.

The Crown does not need to prove that the accusedcommitted the offence for his own sexual gratification. [158] The Court is, again, placed in the position of having to consider the totality of the evidence in regard to this count, again inkeeping with the third branch of the WD, supra test. [159] M.B.’s evidence was reliable and credible in regard to her telling J.K.G. three times, in response to his request to touch herbuttocks, that he not do so.

His attempt to do so is in keeping with the Court’s understanding that J.K.G. perceived M.B. as “open” to hisinterest, and was keenly pursuing her, despite wilful blindness to his position of trust in relation to her, his age in relation to her own, andher own statement to him repeatedly to not touch her in a sexual manner. [160] M.B.’s evidence was that J.K.G. slid his hand down her side and made continuous contact with her body in order to touch herbuttocks.

Her jump to avoid his hand proceeding further down her lower back does not negate that she was touched, without her consent,in a sexual manner by a person who was wilfully blind to her repeated statements of “no.” [161] The Court finds that there is proof beyond a reasonable doubt that J.K.G. has committed the offence of sexual assault in the thirdcount and is guilty. Count 4: Criminal Harassment contrary to s. 264(2) of the Criminal Code [162] In relation to this count, the Crown relies upon two cases, R v. O’Conner 2008 ONCA 206, (distinguished as to sentence by theNSCA in R v. Cromwell 2008 NSCA 60) and R v.

Kordrostami (ONCA). [163] The Ontario Court of Appeal in R v. Kordrostami, supra, described the elements of the offences as follows (at para 8): [8] As set out in Kosikar, supra, Lamontagne, supra, and Sillip, supra, the elements of the offence are as follows: (1) it must be established that the accused has engaged in the conduct set out in s. 264(2)(a), (b), (c), or (

d) of the Criminal Code; (2) it must be established that the complainant was harassed; (3) it must be established that the accused who engaged in such conduct knew that the complainant was harassed or was reckless orwilfully blind as to whether the complainant was harassed; (4) it must be established that the conduct caused the complainant to fear for her safety or the safety of anyone known to her; and (5) it must be established that the complainant's fear was, in all the circumstances, reasonable. [164] R v.

O’Conner (ONCA) indicates that the harassment can be a single incident if, in the circumstances, the complainant isharassed to a state of “ongoing torment, a single incident in the right context can surely cause this feeling” (para 3, O’Conner, supra). [165] The Crown submits that the facts in Kordrostami, supra, are similar in some respect to that in this matter. In Kordrostami, supra,the complainant was a 14 year old girl who was approached by a 39 year old man who engaged in sexually explicit comments directed ather.

He had asked whether she had ever modelled topless, was sexually active, or engaged in a threesome. The complainant did not knowthis person, but he obtained her name and telephone number. He then engaged in multiple calls to her, hanging up. [166] Her evidence was that she was “scared, frightened, I didn’t know what was going to happen. I thought he was stalking me”(Kordrostami, supra, at para 3).

This case indicates that the trial judge had properly considered the entire context of the matter in whichthe complainant was contacted, or followed, by the accused thereby causing reasonable fear for her safety due to the accused’sbehaviour. [167] The evidence of M.B. was that J.K.G.’s comments immediately created a sense of unease and fear, as they were alone in the“warming room.” This sense of apprehension, that started at the outset of the very sexualized conversation with a much larger, older manwas not lessened as it continued, but was heightened. [168] As she stated, she was “scared he was going to take me.” It was clear to the Court that she was reasonably frightened that J.K.G.might escalate his verbalized sexual interest into unwanted physical sexual attention.

This fear was reasonable, as he proceeded to touchher after this sexually explicit communication, without her consent, as they left the warming room and then asked her for consent totouch her buttocks. [169] Further, her credible evidence was that she “hid” to avoid J.K.G. in the women’s washroom.

After a time, she observed J.K.G.following her as she walked toward her friend, A.G.’s car. [170] In M.B.’s evidence on cross examination, she stated that she knew J.K.G.’s vehicle was parked in the opposite direction as sheobserved him turning completely around on the approach of people closer to A.G.’s car. [171] Her ongoing reaction to this incident was a panic attack, exacerbated by J.K.G. following her to the car, where she locked thedoor. She then cried and vomited.

J.R.’s evidence concerning her observations of M.B. supported this, on direct evidence, and in theFacebook messages sent to J.K.G. in which she states that M.B. is having a “nervous breakdown”, and he “destroyed her.” M.B. wasalarmed, and made a complaint to the police within days of this incident.

[172] J.K.G. is a physically large men, a firefighter. There is reference in the evidence before the Court in his messages to his unionrepresentative that he was then taking steroids. [173] M.B. is a much smaller, young woman. She had a reasonable fear that J.K.G. could readily keep on transgressing boundaries withher, as he had just established that he was able to transgress significant boundaries concerning her mental, physical, and sexual integrityin relation to his desire for her. [174] M.B.’s evidence is that she observed he had a “mean and angry look” on his face as she made her way to the car.

This was acredible piece of evidence, as J.K.G. had been rejected by her. She was scared of him. [175] In response to this count, J.K.G. again states that he did not follow M.B., and that she was mistaken. His evidence though, inrelation to leaving the warming room and then the arena, shifted and was neither reliable or credible. His evidence was that he did notspeak to her, and then it shifted to him approaching her as she left the washroom and saying “make good life choices…” to her as well. [176] Again, the Court must consider the third branch of the WD, supra test.

On the evidence which the Court does accept, it appearsthat M.B. was followed by J.K.G. in a harassing manner, who was exhibiting obvious anger at her rejection of him, and he was wilfullyblind to the impact of his actions on her by doing so. This occurred in the context of his just having attempted to obtain intimate imagesand sexual services from her for his sexual gratification, and then touching her without her consent. [177] The Court finds that there is proof beyond a reasonable doubt that J.K.G. is guilty of the offence in the fourth count, with allelements proven as set out above.

Conclusion [178] In conclusion, the Court wishes to recap certain procedural steps that occurred in the course of the trial. [179] At the beginning of the trial, J.K.G. made a request for the exclusion of the public and of specific persons, particularly his familymembers, as it was alleged that there had been a breach of the s. 486.4 publication ban by them. A closed in-camera session wasimmediately held, with evidence being heard, but the disposition was there was insufficient evidence before the Court to support such anorder. [180] In addition, a s. 276 application was heard and decided in advance of trial.

The disposition of that application was its dismissal, asthere was a lack of specificity in the materials filed sufficient to meet the first stage. Then, during trial, s. 276 application materials wereagain requested to be admitted, but was the same subject matter of the prior application pursuant to s. 276 addressed at the earlier voirdire. The Court also considered R v.

J.J. 2022 SCC 28 , and determined that the mid-trial application did not meet the thresholdfor the Court to revisit the disposition of the earlier s. 276 application. [181] Relatedly, the Court notes that, during his cross examination, J.K.G. admitted to accessing M.B.’s Instagram account prior to trialbut after entering into conditions that he have no contact, directly or indirectly, with her.

It is apparent to the Court that he does notunderstand that “no contact” includes not accessing any of M.B.’s social media accounts. [182] The Court finds J.K.G. guilty on all counts in the indictment, for the reasons set out within this decision. [183] That concludes the decision in this matter. Diane Rowe, J.