R. v. R.T.H.

2026 BCSC 536 R. v. R.T.H.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. R.T.H., 2026 BCSC 536 Date: 20260324 Docket: 37504 Registry: Vancouver Rex v. R.T.H. Restriction on publication: A publication ban has been mandatorily imposed under s. 486.4 of the Criminal Code restricting the publication, broadcasting or transmission in any way of evidence that could identify a complainant or witness. This publication ban applies indefinitely unless otherwise ordered. Corrected Judgment: The text of the judgment was corrected on the front page and at paragraph [174] to anonymize the name of the accused on May 4, 2026. Before: The Honourable Madam Justice Sharma Oral Reasons for Judgment Counsel for the Crown: J. Krupa M. England, Articled Student Counsel for the Accused: M. Shapray M. Shamess Place and Date of Trial/Hearing: Vancouver, B.C. December 1-5, 2025 Place and Date of Judgment: Vancouver, B.C. March 24, 2026 Table of Contents I. FACTS. 4 A. Family Dynamic. 5 B. Communications Sent to K.C. by the Accused. 5 1. Transmission of Sexually Explicit Material 6 a. August 2018 Text with Video Link. 6 b. Text with Photo. 7 2. Communications Inviting Sexual Touching. 8 a. Leg Photos. 8 b. Valentine's Day Gifts. 9 c. Text about Christmas. 10 d. Text Messages November 2019 and January 2020. 11 e. Christmas Gift 11 C. Disclosure. 12 II. LEGAL PRINCIPLES. 15 A. Counts 1 and 2: Invitation of Sexual Touching.

16 1. Mens Rea. 17 2. Actus Reus. 20 B. Count 3: Transmission of Sexually Explicit Material 21 C. Credibility. 23 III. ANALYSIS. 24 A. Count 3: Transmitting Explicit Material 24 1. The Parties' Positions. 25 2. Mistaken Transmission. 25 3. Contextual Considerations. 27 4. Conclusion. 30 B. Invitation to Sexual Touching Generally. 30 1. The Crown's Position. 31 2. The Accused's Position. 32 a. The Communications. 32 b. Context 33 C. Count 2: Invitation to Sexual Touching under s. 152. 37 1. The VD Gifts. 38 2. The Other Communications. 39 3. Conclusion. 40 D. Count 1: Invitation to Sexual Touching under s. 153. 40 IV. CONCLUSIONS. 42 [1] The accused is charged with three Counts: a) Count 1: that between April 17, 2019, and April 27, 2022, as a person in a position of trust or authority over K.C, a young person, he did, for a sexual purpose, invite, counsel or incite K.C. to touch with an object and/or herself, the body of a person, to wit K.C., contrary to s. 153 of the Criminal Code. b) Count 2: that from January 1, 2016, to April 16, 2019, he did, for a sexual purpose, invite, counsel or incite K.C. who was under the age of 16 to touch directly or indirectly with an object and/or herself, the body of a person, to wit K.C, contrary to section 152 of the Criminal Code. c) Count 3: that from April 17, 2017, to April 16, 2019, he did transmit, make available, distribute or sell

sexually explicit material to K.C. who was under the age of 16, for the purpose of facilitating the commission of an offence under, among others, section 152 with respect to K.C., contrary to Section 171.1 (1)(b) of the Criminal Code. [2] The accused was the stepfather of K.C. and was married to K.C.'s mother, K.F. They lived together in a blended household comprised of K.C., her twin brother and the accused's two younger children. [3] The parties agree the main issue in this case is whether a series of communications the accused had with K.C., and inferences drawn from them and the rest of the evidence, satisfy the legal test for the offences charged. [4] The Crown called two witnesses: K.C. and K.F. The defence did not call evidence. I. FACTS [5] K.F. and the accused were married in 2012 and separated on April 9, 2022, when K.C. made certain disclosures to her mother. A. Family Dynamic [6] Both K.F. and K.C. testified that the relationship between the accused and K.F. had become difficult in the years leading up to the impugned communications. [7] K.C. described that when she was younger, her relationship with the accused was normal, but that it changed when she became a teenager. She testified he became more rude, very mean and they had many arguments; basically, they did not get along well. She said that often they had arguments at the dinner table and she would end up

leaving and going to her room. She also agreed that he would make inappropriate remarks, including jokes about sex and nudity. [8] That evidence was consistent with the evidence from K.F. She testified that when K.C. was 15/16 years old, the accused would pick on her all the time. She said he belittled her saying things such as her views and values were "garbage", and continually reminding her of that. She agreed that he would make inappropriate and crude remarks, but did not agree that he did so humorously. She said he belittled people, engaged in name-calling, and often swore. [9] K.F. testified that K.C. was very close to the accused's children who lived with them, especially one of them. She testified when that child was upset, he tended to go to K.C. for comfort. This was consistent with K.C.'s testimony. B. Communications Sent to K.C. by the Accused [10] There are a series of communications that the Crown says, when viewed together, satisfy the elements of the charged offences. The Crown relies on two of those communications as establishing guilt under section 171.1(1)(b). For the messages alleged to constitute offences under ss. 152 and 153, two different counts were necessitated by the fact that K.C. turned 16 on April 17, 2019. [11] K.C. also testified about other photos that she received from the accused, which were not entered into evidence because they were sent via

"SnapChat". A feature of that app is that photos sent on it disappear, unless the recipient takes certain positives steps to capture it, for instance, by taking a screen shot. However, if you take a screen shot, the sender will receive a notification that the recipient has done so. Alternatively, a photo could be embedded within a text exchange in a way that it would appear in the app and not disappear like others. [12] Lastly, someone could capture a photo from the app by using a different phone to take a picture of the displayed photo. K.C. confirmed that some of the messages entered into evidence were done that way after she disclosed the communications to her mother in April 2022. [13] She also admitted that it was possible that she might have deleted some of the photos and/or messages that she testified about, which were not adduced in evidence. [14] I will summarize the communications in chronological order.

1. Transmission of Sexually Explicit Material a. August 2018 Text with Video Link [15] The crown introduced two pages of a text conversation between the accused and K.C. that occurred in August 2018. The first message sent by the accused to K.C. was forwarding a link to a video. The link displayed a colour photograph showing a man and a woman lying on a bed in a suggestive pose. The woman is naked except for her underwear, and the man lying behind her, with his hand on her hip, appears to be naked. [16] The link showed that the title of the video was "Sleeping Stepdaughter Fucked by Stepdad" and that it was generated on "pornhub.com" (the "Video"). It was followed by a message that said, "Here ya go Conrad" accompanied by a winking face emoji. The following are the messages exchanged between them after that: K.C.: What? Accused: Omg wrong person K.C.: I am so confuzzled Accused: I meant to send to a friend Accused: Don't watch it K.C.: OK Accused: Don't tell your mom either lol Accused: Jesus sorry Accused: Please don't tell mom she will be choked K.C.: I won't it's fine Accused: [17] For convenience, my reference to the Video is also intended to include a reference to the preceding messages. [18] Receiving the message with that link caused K.C. to be shocked, "weirded out" and disgusted. She wanted to think the best of the accused; therefore, she assumed that he really did

send the link by mistake. At the same time, she was very uncomfortable to know the accused had found and was sending that content to a friend, given that she was his stepdaughter. She did not find it funny nor interpret receiving it as any kind of joke. [19] K.C. had never met anyone known to the accused as Conrad. K.F. testified that she had heard that the accused had a friend named Conrad, but had never spoken to him and was unsure if she had ever met him. b. Text with Photo [20] K.C. testified that a short time after receiving the video link, she received on her phone a picture from the accused of an erect penis with a message something along the lines that it was something for when she got "home from the barn" (together with the messages described below, "Photo 1"). [21] Because of the reference to the barn, K.C. assumed that text message was meant for her mother who spent a lot of time with horses at the barn. She recalled responding to the accused, and that in his reply he said the message was meant for K.F. not K.C., and he said sorry. She recalled that within that same text exchange, the accused asked her not to tell her mother. [22] These messages and Photo 1 were not entered into evidence because K.C. said she no longer had them on her phone. She was unsure why she did not, but admitted she may have deleted them. However, she did recall Photo 1 was on her phone for

some time, and she recalled that scrolling past it on her phone was "awful". [23] K.C. was again very shocked and disgusted to receive Photo 1 from the accused. At the time, she did wonder whether it was truly a mistaken transmission given how soon it occurred after the first incident of receiving sexually explicit material. This incident felt worse to her because it was the second incident of her receiving from the accused sexually explicit material in a short period. However, at that point she was prepared to give the accused the benefit of the doubt that he did not intend to send it to her.

2. Communications Inviting Sexual Touching [24] In addition to the preceding evidence, the Crown relies on the following which it contends, when viewed all together, meet the elements for Counts 1 and 2. a. Leg Photos [25] K.C. confirmed that she was not great about getting up in the morning for school, and she would sometimes get a lot of messages from the accused about that. She recalled that on February 12, 2019, the accused sent photos and messages about getting out of bed. The messages were entered into evidence, but not the photos. Both were sent via Snapchat and no action was taken to preserve the photos, but the texts remained. She recalled there were 2 or 3 photos sent in this exchange. [26] The first photos depicted a portion of the accused's naked leg at the knee and lower thigh. The next photo (or photos) was showed more of his leg, higher up on his body, and she could see a bit of his underwear (together with the messages below, collectively, the "Leg Photos"). She was clear that the photos progressively showed parts of his body moving towards his waist. The photos were accompanied by the following messages from the accused: Message 1: [K] time to get up Hello [K]! Wake up

HELLOOOO Sleepy head Get up please [K] Are you getting up [K] you up Message 2: If ya don't get up I'm gonna keep sending ya pics lol Message 3: Do ya want more or ya getting up [27] K.C. understood and believed at the time that his messages meant he would send more photos of parts of his naked body, each one higher up than the last one his messages, if she did not get out of bed. She believed he would follow through with that threat because around that time, he had been doing a lot of inappropriate things. This made her very nervous. [28] She also recalled a particular text message sent generally around the same time where the accused told her he had left a pair of K.F.'s old underwear in the laundry hamper in the bathroom for K.C. to use. She did not follow up and look in the hamper. b. Valentine's Day Gifts [29] On February 14, 2019, K.C. testified that the accused gave her some items as a gift. He gave her a chocolate bar, which was placed on top of the pillow on her bed. He also placed under the pillow, sexually provocative underwear, lubricant, and a vibrator (together with the messages below, the "VD Gifts"). [30] The accused sent her the following message: Happy valentines I got you 2 valentine gifts 1 you will love and the other is to make you happier and it can be our secret cause you are grumpy these days. One is on your bed and the other is under your pillow [31]

The next day he sent two messages: Make sure ya don't leave that stuff around k Have you even looked at your stuff yet ? [32] She waited a day or so to look under her pillow. When she saw the items, she asked her brother to get rid of them because she was nervous to deal with them herself. K.C. described the items under the pillow in detail. The underwear was made of red lace and was crotchless. There was a string of "pearls" (which I infer were white beads) attached in the middle of the waist band, which hung down to where the wearer's crotch would be. The bottle of lubricant was about same length as the vibrator, which she said was about 15 cm. [33] She immediately understood the vibrator was a sex toy, meant for her to use on herself. She felt "very, very uncomfortable" receiving them. She did not interpret the gift as being funny. She also confirmed that her relationship with the accused in the house at that time was the same, characterized by lots of arguments and name-calling. [34] In relation to the accused's asking her to keep the Video, Photo 1 and the VD Gifts secret, K.C. was very nervous about the whole situation, and what might happen if she were to tell her mother. In her mind, it was "pretty clear" to her that at that point, the incidents were not accidental. If she told her mother and her mother believed her, she was concerned that it would tear the whole family

apart. She worries about her younger step-brothers. She felt a lot was at stake and that it was a "lose-lose" situation. She also testified about her fear that if her mother did not believe her, the behaviour would continue, and no one would help her. She became emotional giving this testimony. c. Text about Christmas [35] On November 6, 2019, the accused sent K.C. the message that said, "[a]nything special you want for Christmas", with an emoji of a Christmas tree. Attached to that was a screenshot from the Amazon website which showed a female mannequin with what K.C. described as having on "strappy bonded style gear" (together with the message, the "Mannequin Picture"). The picture depicted a naked female torso "wearing" a set of black straps covering very little of the torso. Anyone donning it would have most of her body exposed including full breasts and the pubic area. The Amazon website covered the nipples and crotch area with some type of digital sticker. [36] K.C. testified that the Mannequin Picture was sent to her a couple of times, although only one instance of it being sent to her was introduced into evidence. She stated at that point she was very annoyed, but not surprised by the accused sending her something that she considered inappropriate. d. Text Messages November 2019 and January 2020 [37] On November 19, 2019, the accused sent K.C. a message about her not

getting out of bed on time: Why you not want to go to school [K] You just like being naked in bed or what !!! ??? [38] On January 8, 2020, the accused sent this message: I'm going to come jump on your bed naked if you don't get up 👆🏾 are you gonna get up or am coming back in there [39] K.C. testified that he would comment a lot in Snapchat messages about her sleeping naked. She never talked to him about what she liked to wear to sleep. e. Christmas Gift [40] K.C. recalled that on either Christmas 2019 or 2020, the accused gave her a gift that made her uncomfortable. A photo of that item was put into evidence. It is a short "nightie" made of silky black material with lace along the top and bottom, and thin shoulder straps. [41] The family was opening gifts on Christmas morning. The accused handed K.C. a gift, she opened it, saw what it was and closed the box immediately. She felt uncomfortable, and was really scared that the accused would feel comfortable enough to give that item when other people were around to see it. She described this as him being very bold. [42] K.F. testified that it was a family tradition to buy the children pajamas at Christmas. She described that K.C. preferred to wear what she called "granny nighties", or "mumus", which covered her whole body. She recalled the accused contacted her when he was at a mall, some time prior to Christmas. He was having

trouble getting pajamas for K.C. and asked for help. He told K.F. he would get her a "nightgown", to which K.F. said yes. [43] When K.F. saw the gift and K.C.'s immediate and uncomfortable reaction, she told K.C. that she did not have to wear it. K.F. testified the item was the opposite of what she had expected from her conversation with the accused. She described it as negligee, silky and sexy, and something that she might have worn. The accused immediately told K.C., "mom said it was OK". K.F. does not recall having any further discussion with the accused or K.C. about it. C. Disclosure [44] K.F. testified about the day K.C. disclosed some of the preceding events to her. She and the accused had an argument that escalated to the point of K.F. saying she did not want him living the in the family home anymore. She went into K.C.'s room to tell her, and to apologize that things would be very different in the house. At that point K.C. said words to the effect of that she had wanted him to leave for a long time. After some more coaxing, K.C. told her about some of the preceding incidents. K.C. then showed some of the messages to K.F. She specifically recalled showing K.F. the Leg Photos and the Video. K.F. recalled being told about the VD Gifts, but was not unsure if it was at that point, or later the same day. [45] K.F. had no idea those types of messages had been sent, and was

upset that K.C. had not been able to tell her sooner. K.F. fold K.C. to take shower and then she would take her to a friend's house. [46] The accused left the family home that day. [47] K.C.'s description of the disclosure was consistent with her mother's. She explained how K.F. and the accused had had similar arguments before, and that K.F. would typically come to her room crying saying that she would leave the accused. This had happened many times, and yet they stayed together, so K.C. had come not to believe her mother when she said this. However, on this occasion, when her mother asked K.C. if she would be OK if the accused left the family, K.C. said that she would be "very, very happy". At first, she did not want to tell her mother why, but her mother encouraged her and she then disclosed that the accused sent her images that were inappropriate. [48] Later that day, K.C. had a telephone conversation with the accused which she asked her friend to record. The audio was played at trial, and she testified about the conversation. The conversation was recorded in four separate portions, each separated by a gap of no more than 30 seconds because of the particular app her friend used to record it. [49] The following extracts are among those addressed by the parties: Accused: Well I send you that picture years ago by accident I sent you that video by accident and now I'm getting

kicked out of the house and the cops getting called on me. K.C.: You did more than you did more than just that. You did more than just that and so many things cannot be an accident. Accused: [K] I would never ever thought of that of you. You are my daughter or what I thought you were my daughter. K.C.: I'm not your daughter. Accused: 'Cuz it always seems like I'm fighting against you about everything we ever talk about. K.C.: Wh-what do you expect? When you treat me like shit. You think I'm gonna sit down and let you? Accused: K so you don't want me here obviously. K.C.: Well of course. You think I feel comfortable in my own fucking home I spent years feeling fucking like shit in my own fucking home. Feeling nervous because I felt guilty because I felt Accused: Guilty of what? K.C.: Because I felt like shit was my fault like I wasn't saying anything so I finally say anything I finally say something and now you're acting like it was a fucking accident like fucking accidents don't happen that many fucking times. You don't accident. Accused: [inaudible) That's exactly what it was [K] K.C.: No no no no you don't accidentally put vibrators on your daughter's pillow you don't accidently sent photos of your leg you don't accidentally s-put fucking lingerie you don't accidentally send fucking shit that you send. Those aren't accidents. Accused: No that was a nightie night that your mom

agreed about too. K.C.: Not that. Accused: Because you sleep naked all the time. K.C.: Do not even oh (sigh) you really think you're innocent don't you? Accused: Okay obviously I'm not then but I never ever thought of doing anything to you ever. Do you like do you understand that? Accused: For you to hate men to for you to hate men that fuckin much K.C. Oh yeah you feel so special Accused: No K.C.: Like that was you Accused: No this is just me apologizing to you okay? K.C.: You're only apologizing because you I told someone. You're only apologizing because you got caught. Where was my apology five fucking years ago? Accused: Yeah your mom your mom (inaudible) telling me to apologize K.C.: You're not sorry you're not sorry that it happened you're sorry that you got fucking caught. [50] Defence contends that portions of the conversation contain exculpatory statements that are consistent with its position that none of the communications, nor inferences drawn from them, establish the accused had the necessary intent to meet the elements of any of the counts. The accused also relies on a portion of the conversation to support its argument that Photo 1 was mistakenly sent. The accused points out that he apologized to K.C. more than once. [51] The Crown submits the apologies are limited and given the context of the whole conversation, they should not be seen as genuine. It submits

that a careful reading of the conversation reveals portions that are consistent with its theory. Significantly, it points out that the accused was careful in only admitting and responding to certain communications that K.C. referenced, most notably not the VD Gift. II. LEGAL PRINCIPLES [52] Fundamental to any criminal trial, are two key concepts: the accused is presumed to be innocent and the Cown bears the burden to prove all elements of the offence beyond a reasonable doubt. That burden to establish guilt never shifts. [53] Proof beyond a reasonable doubt does not require proof to an absolute or mathematical certainty, but it is a standard higher than proof on a balance of probabilities. A reasonable doubt is not imaginary, far-fetched or frivolous, and must not be based on sympathy or prejudice against or in favour of anyone involved in the trial. Reasonable doubt is based on reason and common sense and must flow logically from the evidence or the lack of evidence. [54] In this case, all three counts involve crimes of communication. As such, they require proof that the accused intended to communicate, and that communication had a specific, prohibited purpose: R. v. W.W., 2025 ONCA 115 at paras. 23-25, 55; aff'd 2025 SCC 37. [55] A central tenet of the accused's defence is that, while inappropriate and possibly even reprehensible, none of the impugned communications meet the

standard of proof required to convict him. [56] I am mindful that the Crown is not required to prove any communication individually meets all the elements of the offences. Instead, it relies on what it says is the cumulative effect of the evidence that viewed together make out the charge. This is in accordance with the law, as helpfully explained in R v. Paterson, 2017 BCSC 536: [114] Though the Crown must prove each element of an offence beyond a reasonable doubt, that standard of proof does not apply to each piece of evidence in isolation. In R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345 at para. 49, Sopinka J. wrote, "proof beyond a reasonable doubt does not apply to the individual items of evidence or the separate pieces of evidence in the case, but to the total body of evidence upon which the Crown relies to prove guilt"; see also R. v. B. (G.), 1990 CanLII 115 (SCC), [1990] 2 S.C.R. 57 at para.

36. Justice Cromwell restated the aforesaid principle more recently in R. v. H. (J.M.), 2011 SCC 45 (CanLII), [2011] 3 S.C.R. 197 at para. 31, where he wrote, "it is an error of law to subject individual pieces of evidence to the standard of proof beyond a reasonable doubt; the evidence must be looked at as a whole". A. Counts 1 and 2: Invitation of Sexual Touching [57] The Criminal Code sections for Counts 1 and 2 read as follows: 152 Every person who, for a sexual purpose, invites, counsels or incites a person under the age of 16 years to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the person under the age of 16 years, (a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or 153 (1) Every person commits an offence who is in a position of trust or authority towards a young person, who is a person with whom the young person is in a relationship of dependency or who is in a relationship with a young person that is exploitative of the young person, and who (b) for a sexual purpose, invites, counsels or incites a young person to touch, directly or indirectly, with a part of the body or with an object, the body of any person,

including the body of the person who so invites, counsels or incites and the body of the young person. [58] The sections underlying Counts 1 and 2 are very similar, but two things distinguish s. 153 from 152: the age of the targeted person, and the specificity of the relationship between the sender and recipient of the communications. In this case, those two things are not disputed. [59] Count 2 relates to communications that occurred when K.C. was under the age of 16. The communications that fall within that period are the Video, Photo 1, the Leg Photos, and the VD Gifts. [60] It also includes the text message about her mother's old underwear. Although at the preliminary inquiry, K.C. said she was either 15 or 16 when she received that message, at trial she testified that she was 99% sure that she was 15 because she recalled it being close in time to her receiving the Video and Photo 1. I accept her trial testimony and find that message was sent when she was under 16 so it is relevant to Count 2. [61] "Young person" is defined in section 153(2) as someone more than 16 years of age, but under the age of 18. K.C. turned 16 on April 17, 2019, which is the beginning of the period of the communications underlying Count 1. It is not disputed in this case that because the accused was the stepparent of K.C. he held a position of trust or authority: R. v. EJB, 2017 ABCA 176. [62] The communications relating to Count 1 are the Mannequin Picture, text messages about getting out of bed in the morning sent in November 2019 and January 2020, and the Christmas gift.

1. Mens Rea [63] I was not directed to any legal authority that states the mens rea elements of ss. 152 and 153 are different, which makes sense given the similarity in their wording. Thus, the Crown's burden with regard to the accused's mens rea is the same under Counts 1 and 2. [64] In R. v. Legare, 2008 ABCA 138, aff'd 2009 SCC 56, the Court of Appeal commented on the interpretation of s. 152 at para. 32: Referring to s.152 of the Code, this Court held that it should be construed purposively in a manner consistent with the philosophy and rationale underlying Parliament's objectives: R. v. Fong (1994), 1994 ABCA 267 (CanLII), 157 A.R. 73, 92 C.C.C. (3d) 171 (C.A.), leave to appeal to S.C.C. denied (1995), 94 C.C.C. (3d) vii. [65] The Court also articulated the mens rea requirement: [33] The ordinary and grammatical reading of the language of s.152 requires the Crown to prove that an accused, for a sexual purpose, communicated with a child in a manner constituting an invitation, incitement or counselling of conduct wherein the child would touch any person, including either the accused or the child himself or herself. That conduct does not itself have to be imminent. The two individuals do not have to directly touch each other, as the touching may be indirect: Fong. Indeed, there does not need to be any touching at all as the core verbs involve communication. [40] The mens rea

required by s.152 includes the "substantial and unjustified risk" standard described by the Supreme Court in Hamilton. This test of "substantial and unjustified risk" applies logically to crimes of communication and advocacy. There is a different test for crimes requiring proof of specific intent as to consequences. Ordinarily, in cases of specific intent as to consequences, the Crown must prove that the accused intended the consequences or at least intended to do conduct that the accused knew was substantially certain to produce such consequences: R. v. Buzzanga and Durocher (1979), 1979 CanLII 1927 (ON CA), 25 O.R. (2d) 705, 49 C.C.C. (2d) 369 (Ont. C.A.) at pp. 381 to 382 (C.C.C.), [1979] O.J. No. 4345 (QL); R. v. Harding, (2001) 2001 CanLII 21272 (ON CA), 160 C.C.C. (3d) 225, [2001] O.J. No. 4953 (QL), leave denied [2002] S.C.C.A. No. 95 (S.C.C.). Parliament has not signalled that the test in Buzzanga need be proven by the Crown in relation to an offence under s.

152. To the contrary, the approach taken in Hamilton more fits the language of s. 152. [41] The actus reus and mens rea must co-exist, so in that sense the mens rea must be present when the communication occurs. [66] Thus, to establish mens rea under s. 152 or 153, the Crown must prove beyond a reasonable doubt: a) the accused intended K.C. would receive his communications as an invitation, counselling or incitement to touch directly or indirectly a person; or b) the accused knew there was a substantial and unjustified risk that K.C. would receive the communication as an invitation, counselling or incitement to directly or indirectly touch a person; and c) that in either case, the proposed touching was for a sexual purpose. [67] The phrase "sexual purpose" is not defined in the Criminal Code, but courts have found that it includes for the sexual gratification of the accused, or another person, including the complainant, even if the accused derives no gratification for himself: R. v. GB, 2009 BCCA 88 at paras. 24-25. [68] In GB, the Court of Appeal overturned the accused's acquittal, which had been based on the trial judge's conclusion that although the accused knew the touching that was incited (in that case the masturbation of a foster child) was for a sexual purpose, it was not to meet the accused's own sexual needs. The Court of Appeal held the trial judge erred by focussing on the accused's motive for touching, rather than his intention. Because he intended the touching to be for a sexual purpose, the Crown had proven the mens rea (para. 19). [69] Paragraphs 39 to 47 of Legare contain a helpful discussion of the mens rea requirement for s.

152. Among the principles that can be distilled from those paragraphs are the following: a) The court did not agree that in order to establish the mens rea, the Crown had to prove that the accused intended the communication would be taken seriously, which is a requirement in the context of uttering threats. The court disagreed stating that communication that might be a threat could, in another context, be well removed from criminality, whereas "there is nothing ordinary in the situation of an adult communicating with a child in a manner conveying an incitement, invitation or counselling of sexual conduct" (paras. 42-43). b) Furthermore, Parliament only required that the accused had the present intent stipulated in s. 152, not that the accused actually persuaded the child to bring about the incited contact (para. 44). c) Nor is there any indication by Parliament of a time limit on how soon after the communication it must be that the accused anticipated that the contact would happen (para. 45). In part that is because Parliament knew that the process of inviting, counselling or inciting a child may take time and different types of communication. d) A trier of fact may infer that the mens rea is present even if the accused's state of mind happens to be accompanied by a longer view as to when any physical conduct might occur (para. 46). Thus, while the mens rea has to include

something beyond merely "dirty talk", the offence can be made out if a trier of fact can infer from that dirty talk that the accused had the mens rea as required, for example, by finding the accused had the intention to manoeuvre the child psychologically toward sexual touching by normalizing or casualizing the behaviour (para. 47). [70] Although that case was about s. 152, given the similarity of the wording of the two offences, I find the preceding principles also apply to Count 2, even if the court did not explicitly state that.

2. Actus Reus [71] The actus reus of the offences is the communication. The following principles apply to the operative words in the section: a) "invite" is not defined, so it should be given its ordinary meaning. It means to request, suggest or ask, by words, by gestures, or by both, that something be done. Inviting someone to do something does not require active encouragement, but it does require something more than a vague suggestion or insinuation. b) "counsel" is defined in s. 2(3) of the Criminal Code as including procuring, soliciting or inciting. In R. v. Hamilton, 2005 SCC 47 at para. 22, Justice Fish stated: In their relevant senses, the Canadian Oxford Dictionary (2nd ed. 2004) defines "counsel" as "advise" or "recommend (a course of action)"; "procure" as "bring about"; "solicit" as "ask repeatedly or earnestly for or seek or invite", or "make a request or petition to (a person)"; and "incite" as "urge". "Procure" has been held judicially to include "instigate" and "persuade": R. v. Gonzague (1983), 1983 CanLII 3541 (ON CA), 4 C.C.C. (3d) 505 (Ont. C.A.). c) In R. v. Ford, 2000 CanLII 5701 (ONCA), the court noted that the definition of counsel in the Criminal Code includes "incite", and that there is no doubt the words have similar meanings (para. 20), adding that "incite" also means to urge, stir up or stimulate (para. 28). B. Count 3: Transmission of Sexually

Explicit Material [72] The third count is brought under s. 171.1(1)(b): 171.1 (1) Every person commits an offence who transmits, makes available, distributes or sells sexually explicit material to (b) a person who is, or who the accused believes is, under the age of 16 years, for the purpose of facilitating the commission of an offence under section 151 or 152, subsection 160(3) or 173(2) or section 271, 272, 273 or 280 with respect to that person; or [73] This count relates to the Video and Photo 1. [74] With regard to making sexually explicit material available, the Crown must prove beyond a reasonable doubt both that the materials were sexually explicit (as defined in the Criminal Code) and that the accused made them available for the purpose of facilitating one of the listed offences, in this case s. 152: R. v. MK, 2021 ABQB 300 at para. 6. [75] The defence did not dispute that the Video and Photo 1 were sexually explicit materials. [76] In W.W., the court stated that the section is "an inchoate crime that is essentially focussed upon the intention of the accused as he engages in what may be highly reprehensible, but not necessarily criminal, conduct" (para. 36). Thus, the essential element of the offence in s. 171.1(1) is that the sending of the material was "for the purpose of facilitating" one of the listed offenses. [77] The Crown relies on the court's discussion in

that case about the policy concerns underlying the inchoate nature of the offence: [38] This inchoate offence allows the criminal law to intervene to protect children before the harm arising from actual enumerated sexual offences occurs. As Doherty J.A. put it in R. v. Alicandro, 2009 ONCA 133, 95 O.R. (3d) 173, at para. 32, leave to appeal refused, [2009] S.C.C.A. No. 395, at para. 20: By criminalizing conduct that is preparatory to the commission of the designated offences, Parliament has sought to protect the potential child victims of those designated crimes by allowing the criminal law to intervene before the actual harm caused by the commission, or even the attempted commission, of one of the designated offences occurs. [39] This is not to suggest, however, that the inchoate offence captured by s. 171.1(1)(b) is harm-free. To the contrary, children targeted by adult predators are often harmed through a grooming process involving the transmission of sexually explicit material, a grooming process that readies them for the designated offences yet to occur, a grooming process that robs them of their childhood entitlement to sexual innocence. [40] While there is no one definition of grooming, it is largely about gaining a child's trust so as to lower their inhibitions when it comes to sexual interactions: R. v. Bertrand Marchand, 2023 SCC 26, 487 D.L.R. (4th) 201, at paras.

51-52. If hindsight has taught us anything, it is that children often become sexually victimized only after a long period of grooming that renders them more susceptible to later victimization. That susceptibility arises from "reducing their inhibitions; or by prurient discourse that exploits a young person's curiosity, immaturity or precocious sexuality": R. v. Legare, 2009 SCC 56, [2009] 3 S.C.R. 551, at para. 28. [46] One way to help bring about or make easier or more probable an enumerated offence is by grooming a young person or by reducing their inhibitions: Legare, at para.

28. Grooming can be achieved in different ways, including by engaging in sexual discourse with a child. From time-to-time, that sexual discourse may be framed as a "joke", which can serve to normalize the conduct in the child's mind and permit the accused to try and safely test the waters to determine if the child is yet susceptible to the commission of the enumerated offence: McSween, at para.

107. This is anything but a joke. [Emphasis added.] [78] Guidance on the meaning of "for the purpose of facilitating" can be gleaned from cases discussing s. 172.1 of the Criminal Code, the luring provision, which was discussed in Legare. At para. 28 of the Supreme Court of Canada decision of Legare, the court stated that "facilitating" means "helping to bring about" and "making easier or more probable". It further commented on the offence of luring at para. 25: It will immediately be seen that s. 172.1(1)(c) creates an incipient or "inchoate" offence, that is, a preparatory crime that captures otherwise legal conduct meant to culminate in the commission of a completed crime. It criminalizes conduct that precedes the commission of the sexual offences to which it refers, and even an attempt to commit them. Nor, indeed, must the offender meet or intend to meet the victim with a view to committing any of the specified secondary offences. This is in keeping with Parliament's objective to close the cyberspace door before the predator gets in to prey. C. Credibility [79] The approach to assessing credibility is well known and not controversial, being set out in, among others, Bradshaw v. Stenner, 2010 BCSC 1398 at para.

186. It is also important to emphasize that credibility and reliability are different concepts. Credibility has to do with a witness's veracity, and reliability with the accuracy of their evidence. As Justice Brundrett stated in R. v. Hurst, 2019 BCSC 307 at para. 11: "[a]ny witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence." [80] Both parties referred to the importance of recognizing that we no longer presume children's evidence is less reliable than that of adults: R. v. W.(R.), [1992] 2 S.C.R. 122 at 134, 1992 CanLII 56. In that case the court stated that a witness's credibility and reliability should be assessed "by reference to criteria appropriate to [that witness's] mental development, understanding and ability to communicate". Therefore, flaws such as contradictions or inconsistencies in the child's testimony may not be given the same effect as a similar flaw in the testimony of an adult: R. v. D.W.L., 2018 BCSC 2480 at para. 83. [81] Finally, although the accused did not testify at trial, the Crown adduced electronic communication from him and the transcript of the phone call between him and K.C. Therefore, the framework from R. v. W(D) applies to those communications. That means that any exculpatory portions of those statements are substantially admissible in the same way that an accused's in court testimony would be: R. v. Roche-Garcia, 2024 BCCA 298 at para.

130. III. ANALYSIS [82] I found K.C. to be a reliable and highly credible witness. She was clear and firm in describing events, the communications and her feelings about them. She readily conceded when she could not be sure of her recollection or did not know. I also found her recall and testimony were consistent with the text messages entered into evidence, and that she had good recall about their content and how they made her feel before they were introduced into evidence. In addition, her evidence was highly consistent between direct and cross examination. Where they commented on the same things, K.C.'s evidence was consistent with K.F.'s. [83] Based on that, I believe her testimony about the photos and messages from the accused that were not adduced into evidence because she no longer had them, and I accept as true her description of their content, timing and frequency. [84] I also found K.F. to be credible and reliable. Her direct evidence was not diminished during cross-examination, and she did not try to shy away or downplay evidence that might have seemed helpful to the defence, including her conversations about the Christmas pajamas. At times, she did display what could be seen as some animus towards the accused, but I am satisfied that did not detract from her credibility. [85] I find it convenient to analyze the communication is chronological order, starting with

Count 3. A. Count 3: Transmitting Explicit Material [86] The evidence relevant to this count is the Video and Photo 1 and the messages accompanying them. [87] To find the accused guilty on this count, the Crown must prove beyond a reasonable doubt both that the accused intended to send sexually explicit material to K.C. and that the transmission was for the purpose of facilitating an offence under s.152. [88] Two elements of the offence are not disputed: a) K.C. was under the age of 16 when the messages were sent; and, b) the Video and Photo 1 are sexually explicit.

1. The Parties' Positions [89] With regard to the Video and Photo 1, the accused contends they were sent by mistake, which precludes a conviction on Count 3 and eliminates the weight that could be attached to them for Counts 1 and 2. Alternatively, the accused submits even if the Court does not find they were mistakenly sent, it ought to have a reasonable doubt about his intention to send them to K.C., which would also prelude a finding of guilt on Count 3 and eliminate the relevance they could have in the overall consideration of guilt on Counts 1 and 2. [90] While the parties agree that if I were to make a finding that the messages were sent by mistake, I would have to acquit the accused on Count 3, they also agree a finding of mistaken transmission is not essential to an acquittal on Count 3.

2. Mistaken Transmission [91] Defence submits that the messages accompanying the Video and Photo 1 make it clear that they were sent by mistake. They say that assertion is buttressed by the accused's apologies within those messages. To a lesser extent, they also point to his repetition in the recorded telephone conversation that Photo 1 was mistakenly sent. [92] I must be mindful that the text messages are "statements of the accused", and as such, I must apply the WD framework. Therefore, the WD framework applies to the messages accompanying the Video and Photo 1, which are reproduced above at paras. 16, 20 and 21. [93] Defence also contends that K.C.'s testimony that she believed the messages were sent by mistake when she received them supports its position. I do not agree with this proposition. The question is the accused's intention, not how it was received. Her belief is not a material fact. Furthermore, K.C. said that receiving Photo 1 so soon after the Video made her question whether either were sent by mistake. [94] The accused's primary position is that reading the content of the messages themselves is sufficient to establish the Video and Photo 1 were sent by mistake. [95] Crown's position is that focus is both too narrow and too simplistic. The Crown submits that looking critically at the communications, in light of the whole of the evidence, I should reject the

assertion of mistaken transmission. [96] The Crown position is that it is acceptable and, in this case, appropriate to critically examine not only the accused's denial, but the whole text exchange. Furthermore, Crown contends I ought not to assess the messages in isolation from one another, or from other evidence. Crown submits that taking into account all of the evidence removes any reasonable doubt that they were sent by mistake. [97] In my view, accepting defence's position on this point is akin to saying the content of the text message must be true because it was said by the accused. This would mean a text message from an accused is given a type of "automatic credibility" inapplicable to the testimony of any witness, including the accused. In my view, that is not the appropriate approach. It is acceptable to subject the text messages to a more careful consideration in light of the rest of the evidence. [98] I also conclude that approach would be contrary to the purpose of the legislation. That position is supported by the judicial comments about the nature of predatory and/or grooming behaviour reviewed earlier, which are characterized by intentionally manipulative communications. Obviously, that does not mean that a court could never accept an exculpatory assertion by an accused in a text message at face value, but I agree given the context in which these charges are brought and the other evidence, it is appropriate to view the assertion of mistaken transmission carefully, armed with the understanding and knowledge of the possibility the accused was being manipulative and falsely claiming it was accidentally sent.

3. Contextual Considerations [99] Crown's theory is that the evidence in this case amounts to conduct akin to grooming. Its position is that the accused sending sexually explicit material to K.C. was a way of disarming her or normalizing sexualized communication between them. In that light, Crown submits the assertion of mistaken transmission was part of that normalization or casualization of sexual communication, and was not a genuine admission of mistake. The Crown submits the Video and Photo 1 are consistent with initial steps by a predator taken to "test the waters" of how K.C. would react to sexualized communication. [100] Crown acknowledges that sending a sexually explicit video as the "first" communication does not fit into the typical "grooming" paradigm. Grooming typically involves a long process of slowly building trust and familiarity with a target before introducing sexual content, which typically begins with benign and innocent content. However, because the accused in a parental position to K.C., Crown argues that significantly alters the assessment. There was no need to establish contact or identity. Nor was there need for a starting phase of careful and innocent communication. K.C. was already comfortable communicating with the accused electronically, and testified that text communications within her family was common. [101] Crown adds that to the extent the

court concludes there needs to be some indication of a preparatory phase, which was established in this case by the consistent testimony about the accused's frequent use of inappropriate comments in the home, including those of a sexual nature, which fits with behaviour intended to lower K.C.'s defences. [102] I agree with Crown that in the context of a parental relationship where text communications are already common and frequent, the typical grooming model may not apply. In that sense, I agree where a parent targets a child, there may be no "preparatory" stage to the predatory and/or grooming communications. [103] However, I do not find the accused's inappropriate behaviour around the home can be seen as preparatory to grooming or predatory targeting. As noted, the constant theme was that his comments were inappropriate, rude and mean. The evidence was less clear about his use of "sexual humour". More importantly, the accused displayed that behaviour in the home around everyone. This detracts from it being part of a predatory grooming scheme, which is typically characterized by secrecy. [104] When looking at his statements about the Video, they are brief and do not seem to address the gravity of the alleged mistake. Logic and common sense dictates that if a father sent a sexually explicit video intended for his male friend to his teenage daughter that would be alarming to

him, possibly causing him shame, even if it was sent by mistake. [105] The accused's statements about his alleged mistake were cursory. In addition, the accused did not ever say anything to K.C. in person about it, including that it was a "mistake". In addition, his use of "lol" and a winking/kissing face emoji detract from the notion that the accused thought the mistake was serious. I also note he does not tell her delete the video, just not to watch it, although on its own, I do not place a lot of weight on that factor even though I find it relevant. [106] All of these features could be consistent with the Video not being sent by accident, but in a manipulative way to 'test the waters' with K.C. [107] These concerns are magnified significantly when remembering that this was not merely a sexually explicit video the accused claims to have sent accidentally, but one depicting sex between a stepfather and a stepdaughter. In that context, I find his minimization and the cursory nature of his statements take on greater significance. In my view, it is that context that lends at least some plausibility to the notion that his assertion of a mistake masked his true intent. [108] K.C. testified how disturbed she was not only to have received it, but to know that her stepfather had looked for and found on the internet a sexually explicit video depicting sex between a stepfather and

stepdaughter. Her feelings are clearly reasonable and valid. However, they cannot inform my analysis on the accused's intent under Count 3, because his finding and watching such content is not an element of the offence, nor is it criminal. It is the transmission to K.C. that constitutes the offence. [109] The Crown argued that the accused asking K.C. not to tell her mother is consistent with predatory behaviour, in that targets are told to keep the communication a secret. The accused argues in the context of what was acknowledged to be a difficult marital relationship, it is reasonable and believable that the accused would want to avoid prompting an argument with his wife, even if he genuinely sent the Video by accident. [110] I do not find that argument compelling. I find it at least equally believable that he would want to "get ahead" of the concern by choosing to tell his wife. If he truly sent it by mistake, that would surely temper the severity of any argument prompted by that revelation, especially if he was genuinely remorseful for his mistake. However, we know that he never did tell K.F. [111] I am also left to wonder how it could have been mistakenly sent, unlike Photo 1. The accused's position is that Photo 1 was meant for K.F. Both names start with K, so it is more plausible that a text for one was accidently sent to the other. That plausibility is virtually

non-existent for the Video because "Conrad" was spelt with a C. [112] There was no evidence from K.C. or K.F. that the accused had a habit or had previously mistakenly sent text messages to the wrong person. Other than Photo 1, there was no other incident in the evidence of the accused sending a message to K.C. by mistake when it was intended for someone else. [113] Crown also submits even if the Video was sent by mistake (which it does not concede), it is more difficult to accept that Photo 1 was merely a mistake. Its submission is that it is reasonable to conclude having mistakenly sent a disturbing video link to his stepdaughter, the accused would have taken even more care--especially in the short period after the alleged mistake--about sending explicit content to anyone. The Crown submits viewing all of that together ought to remove any doubt about either of them being sent by mistake. [114] However, it is relevant that the nature of the two communications was different. K.F. confirmed that she and the accused did "sext" one another, and in that context, Photo 1 may not have been an unusual communication for the accused to send. Given that both names start with K, the notion it was sent mistakenly is easier to accept.

4. Conclusion [115] Having considered all the evidence and parties' submissions as to whether the Video was sent by mistake, I do not believe the accused's statements that Video and Photo 1 were mistakenly sent. [116] However, at the same time, I cannot say beyond a reasonable doubt that he intended to send them to K.C. In other words, with regard to the issue of whether he deliberately and intended to send the Video and Photo 1 to K.C., I have a reasonable doubt. [117] Because I cannot find beyond a reasonable doubt that the accused intended to send the Video and Photo 1 to K.C., I am unable to conclude that he did so for the purpose of facilitating an invitation to K.C. to sexual touching. B. Invitation to Sexual Touching Generally [118] The two main issues for Counts 1 and 2 are: a) Has Crown proven that the accused intended that K.C. receive the communications as an invitation, incitement or counselling for physical touching, or that he knew of the substantial and justified risk that K.C. would receive them for that purpose and he proceeded with the communication despite that risk? b) Were those communications sent for a sexual purpose? [119] The timing of the communications determines if they are relevant to Count 1 or Count 2. The Video, Photo 1, Leg Photos, VD Gifts and message about K.F.'s underwear occurred when K.C. was under 16 years old and are relevant to Count 2. The rest of the communications discussed in the summary of facts are relevant to Count 1.

1. The Crown's Position [120] The Crown's position is that when viewed all together, it has proven beyond a reasonable doubt all the elements of the offences charged. Its position is that while all the evidence is relevant and important, the character of the evidence is anchored in the VD Gifts. Its position is that when the VD Gifts are viewed independent from the other communications, no other inference can be drawn except that the accused knew and intended that the VD Gifts and accompanying messages were an invitation to K.C.to use the vibrator on herself. [121] The Crown contends that conclusion is strengthened by the rest of the communications. Its position is that an interpretation of the communications sensitive to the context in which they occurred reveal the accused's behaviour had indicia similar to predatory behaviour sufficient to establish beyond a reasonable doubt the sexual purpose of the communications. [122] To the extent the Crown's case rested on the whole of the evidence being viewed together to substantiate guilt on both Counts 1 and 2, I do not agree. The counts are separate, and an essential element is K.C.'s age when she received the communications. For that reason, only the communications sent before the date K.C. turned 16 can be used to support a finding on Count 2, and the rest are relevant only to Count 1. I appreciate that the legal principles to be applied to the evidence remains the same because they do share some essential elements, but the communications must be segregated for the purpose of determining guilt.

2. The Accused's Position a. The Communications [123] The defence's position is that viewed individually, each of the communications have signals of ambiguity such that an overall inference of guilt cannot be drawn. The accused submits given the undisputed evidence about the accused's personality and behaviour in the family home, the court cannot be satisfied that the only inference to be drawn from the communications is that he intended them to be invitation to sexual touching. However, defence fairly acknowledged that its position was weakest with regard to the VD Gifts. It agreed that the VD Gifts could be interpreted as "wildly inappropriate" and reprehensible, but should not be seen as criminal. The accused argued that its position is much stronger when applied to the other communications. [124] In addition, the accused pointed out that K.C. confirmed she exchanged thousands of texts with the accused within the time frame of the charges. Despite that, the Crown adduced only a few pages as constituting the offences. In that light, the accused argues there is no pattern of behaviour that could amount to grooming. The accused argued that the facts in this case differ from most cases discussing similar Criminal Code sections, because of the absence of indicia of normal or typical grooming behaviour. On this point, the accused contends the Crown's reliance on very few and

relatively infrequent communications undermines to a significant degree the ability of the court to infer the communications were intended by the accused to be sent to K.C. for a sexual purpose. [125] I do not agree. The Criminal Code section does not require that there be a pattern or repeated attempts of communication "for a sexual purpose", or a consistency in the frequency of those communications. While it may be that charges under these sections typically involve a sustained, prolonged pattern such as grooming situations, that is not an element of the offence. b. Context [126] The accused's arguments about the context in which the communications took place were the same regarding Counts 1 and 2. I will first discuss those arguments generally. [127] Regardless of a lack of indicia of grooming, the accused contends the Crown's theory that an assessment of the evidence leads only to an inference that the communications were invitations to sexual touching cannot be sustained. By way of summary, the characteristics of the communications the accused says are contrary to the Crown's theory include: a) With regard to the Video and Photo 1, the accused's position is that they were sent by mistake, which precludes a finding that the accused intended to send them to K.C. for any purpose, much less a sexual purpose. As noted above I do not believe the accused's claim that these were

mistakenly sent, but I have a reasonable doubt about it. For that reason, I agree I cannot and do not consider them in the overall consideration of Counts 1 or 2. b) With regard to messages and photos sent to encourage K.C. to get out of bed, including the Leg Photos (relevant to Count 2) the messages sent in November 2019 and January 2020 (relevant to Count 1) the accused contends that they had a common contextual feature. These communications were aimed at motivating K.C. to get out of bed to go to school. The accused emphasized the consistent evidence from K.C. and K.F. that she was difficult to get of bed to go to school in the mornings, perhaps more so than the other three children in the house. As such, these communications were for a valid parenting purpose even if undertaken poorly. c) Although the accused did not necessarily concede all the communications might go so far as to be reprehensible parenting choices, he agreed that is a reasonable description of the VD Gifts. Nevertheless, his submission is that it was a demonstration of, at most, a reprehensible parenting choice. d) With regard the Mannequin Picture, the accused relied on K.F.'s evidence that K.C. had to be pestered to give her parents ideas for Christmas gifts. In that light, the Mannequin Picture should be seen as an attempt to either "shock" a response, or as a joke in bad taste to prompt her to give

ideas. e) Regarding the Christmas gift, the accused emphasized that K.F. confirmed a conversation where the accused asked if he could get K.C. a nightgown because he could not find the "normal" type of pajamas for her. It was also undisputed that the gift was given and opened in full view of the whole family, and upon seeing K.C.'s reaction, the accused immediately said that K.F. told him it was OK. [128] The accused's position is that the common thread tying all these communications together was that they were underscored by typical and normal parenting concerns, but carried out badly. Defence argues that understanding this context precludes a finding a guilt because, at the very least, it raises a reasonable doubt whether the accused intended any communication to be invitation to sexual touching. [129] I do not find that argument significantly weakens the Crown's case. It is likely that criminal invitations to sexual touching in a parent-child relationship could be misrepresented by the offender to be rooted in legitimate parenting concerns. That does not preclude a finding that they were sent for a sexual purpose. That finding depends upon the rest of the evidence viewed collectively. [130] I add that the parenting concerns said to underscore the communications are commonplace. The accused emphasized that K.C. was difficult to get out of bed, implying that explained the

accused's having to resort to his ill-advised or even extreme communication (such as the Leg Photos). That argument is weak. Difficulty getting a teenager out of bed for school is hardly a novel or unusual situation, and more to the point, it was commonplace with regard to K.C. specifically. It does not in my view explain or justify a need to resort to extreme tactics. [131] The accused also argued that K.C. often did not respond to messages as an explanation, in part, for the decision to send the Leg Photos and the Mannequin Picture. Again, K.C. confirmed she sometimes would not respond to messages regardless of what it was about. There is no reason to think the accused was dealing with a novel issue requiring extraordinary or unusual tactics. [132] The accused stressed the consistent evidence of his inappropriate behaviour in the home provides an important context that precludes the court from finding the only inference to be drawn is an invitation to sexual touching. [133] Both K.C. and K.F. described that the accused often swore, used crude language and was mean. K.C. testified he would use nudity and sex in his jokes, while K.F. denied he attempted humour on those topics, but agreed he was crude. Both said he was mean and engaged in name-calling. In addition, as K.C. became a teenager, he belittled her and the values and opinions she had. [134] The defence argues that,

taking into account the preceding, the court cannot rule out as a reasonable inference that the communications were, again, simply typical of his personality and who he was in that household. [135] I do not view the evidence in the same way. The evidence about the accused "joking" about sex and nudity came only from K.C. during cross-examination. She was asked a series of questions, to which she agreed. Those questions included that around the house the accused swore a lot, made sexual jokes, made "nudity jokes", said things for shock value and was generally inappropriate. K.C. agreed with those suggestions, and said she attributed that to his personality, but that she also found the behaviour very inappropriate. K.F.'s evidence was different. She agreed that he was inappropriate, but denied he that he made sexual jokes or that he was humorous. Instead, she said that he would say things that were sexual in nature or about nudity, but she did not find them funny. [136] I am not convinced the evidence establishes his consistent use of humour of joking, whether about sexual topics or nudity. More importantly, there is nothing inherently humorous in the messages themselves when one considers the context of them being sent by a stepfather to his teenaged stepdaughter. Sending photos of his naked leg and threatening to send "more" if she did not get out of bed, is on its face,

disturbing, not funny. Nor is there anything accompanying the Mannequin Picture to suggest it was intended as a joke. The emoji's used in the messages accompanying the VD Gifts were not "laughing" emotions, but winking emoji's with "blowing kisses". That is more indicative of the message being suggestive than funny. [137] I add that even if there was some overlap between his inappropriate behaviour at home and the communications being attempts at humour, which I do not find, that would not preclude them from also being predatory in nature, as discussed in R. v. WW. In any event, I do not find the communications were indicative of his personality in general by being attempts at crude humour, and I do not find the communications were attempts at humour. [138] What was common in K.C. and K.F.'s descriptions of the accused are that he engaged in inappropriate behaviour and swore a lot, and that he was rude and mean. The mean behaviour included name-calling and belittling people. The communications do not come across as mean or rude, but they can be described as "crude" and inappropriate. However, surely that would apply to every sexually charged communication between an adult and a child, so I do not that that necessarily weakens the Crown's case. [139] Furthermore, some messages seem completely at odds with what was described as his behaviour directed at K.C. in front of everyone

(belittling, arguing). There is a message with him calling her "sweetheart" and "beautiful". To this I add the use of winking emoji's and the VD Gifts. [140] Thus, the notion that the communications are nothing more than a reflection of his personality demonstrated in the home is not compelling. [141] Defence also argues the communications do not evince the accused attempting to portray himself in a better light or seeking to spend more time with or become closer to K.C., which are typical in grooming situations. [142] As a starting point, it is arguable the VD Gifts do fit into that profile. Also, the direction to keep communications secret is consistent with typical grooming behaviour as described in the case law. However, I do not find the argument persuasive. As discussed above, Crown does not have to prove as an element of the offence that the communications illustrate grooming or predatory tactics. Even if it was required, what is "typical" predator or grooming behaviour must be modified in the context of a parent child relationship, especially a parent-teenager relationship. For the reasons discussed earlier, there was no need for the accused to take steps to make K.C. comfortable or familiar with communicating with him electronically. [143] The nature of the individual communications themselves makes their grounding in normal parenting concerns dubious, at the very

least. When looking at the communications together and in light of the whole evidence--including K.C.'s and K.F.'s testimony--I do not find that they are characterized only by parenting concerns. [144] I turn now to assess the evidence relevant to each count. C. Count 2: Invitation to Sexual Touching under s. 152 [145] For the reasons already discussed, I conclude I cannot consider the Video and Photo 1 as part of the evidence constituting an offence under s.

152. That is because I have a reasonable doubt whether accused intended to send them to K.C. [146] Accordingly, the evidence relevant to Count 2 is the Leg Photos, the VD Gift, and the text message about K.F.'s old underwear. It is appropriate to view all of that evidence together in order to determine whether the accused is guilty.

1. The VD Gifts [147] Although the Crown case was based on the totality of the evidence, not just the VD Gifts, its position is it alone can support a conviction under s. 152. [148] The accused submits that stance reveals a significant flaw with the Crown's case. The accused submits the VD Gifts are not the type of nefarious or morally blameworthy conduct that Parliament intended to criminalize in passing this legislation. Even if one interprets the communication as being inappropriate, it was an example of poor parenting, but not criminal conduct. [149] The Crown's position is, if viewed independently from any other evidence, the message accompanying the VD Gifts is clear in communicating an invitation to K.C. to engage in sexual touching. [150] I agree. There nothing in the evidence that makes the VD Gifts ambiguous. Nor is there any evidence from which I can infer anything other than the accused knew giving it to K.C. he was specifically and deliberately inviting her to use the items on herself. Even if there was any ambiguity about that (and I do not find there is), the fact that he gave her a vibrator, lubricant, and sexually provocative underwear, together with the content of his message removes any ambiguity. [151] I do not agree with the accused that, viewed alone, this was not the type of conduct Parliament intended to criminalize. [152] The point made clear in the

case law is that the context in which communications take place is relevant to discerning the accused's intent. Crown argued it is plausible that in the context of a discussion of sexual health or sexual education, a parent giving a vibrator to a child might not meet the elements of the offence. [153] I accept that reasonable people may differ on whether that particular conduct would be "morally blameworthy". However, I need not answer that question. The evidence was clear that the household was not one where sexual health or sexual education was discussed. Moreover, there is no mention of an educative or non-sexual purpose in the message sent with the VD Gift. Nor is there any other evidence in this case that tempers in any way the reasonable and natural conclusion that the accused gave the VD Gifts intending that K.C. would use the vibrator for its intended purpose. [154] Thus, in my view, the parties' arguments about whether a parent giving a child a vibrator to support sexual health or sex education could constitute a finding or be a strong indicator of guilt is immaterial. [155] I add that the accused wanted K.C. to keep the gift a secret between the two of them. If this was an exercise of "parenting", why did he want K.C. to keep it a secret from her mother? Furthermore, giving those items to K.C. on Valentine's Day is incongruent with it having any educative purpose, and a clear indication of their sexual purpose. [156] For those reasons, I do not agree that the VD Gifts could be interpreted as falling within the purview of "parenting", ill-advised or otherwise, and I have no doubt about that conclusion.

2. The Other Communications [157] It is important to stress that the actus reus of the offence is the communications themselves, not the accused's motives in sending them. Thus, even had I agreed with the accused's arguments that he was engaging in parenting behaviours, but doing it badly because of his penchant for crude commentary or humour, I must ask whether I have a reasonable doubt about that, and even if not, whether the Crown's case still holds together. [158] If viewed in isolation, I agree that the characterization of the other evidence would present more of a challenge in terms of viewing them as invitations to sexual touching, but I do not find it reasonable to infer they are merely bad attempts at parenting. Nor do I find them consistent with or reflective of the accused's personality in the home. Nothing about the message asking K.C. to use her mother's old underwear relates to parenting. As discussed above, the Leg Photos are not humorous, and are more aptly described as disturbing.

3. Conclusion [159] Overall, viewing this evidence together with VD Gifts, I find the Crown has proven beyond a reasonable doubt that that the accused intended the communications to be invitations to K.C. to engage in sexual touching. I have no doubt about these findings. D. Count 1: Invitation to Sexual Touching under s. 153 [160] Count 1 is concerned with the Mannequin Picture, the text messages sent in November 2019 and January 2020 about getting out of bed, and the Christmas gift. [161] Of all the communications, I find the Christmas gift to have the least evidentiary value to the overall consideration of the evidence on this count. For one thing, while might be an inappropriate, or at least odd, gift for a stepfather to give his teenage stepdaughter, the item itself was not necessarily inherently sexually provocative in the way, for instance, the VD Gifts were. [162] More importantly, the accused's argument that there was a parental purpose to the Christmas gift had some support in the evidence. There was a history of parents giving children pajamas at Christmas. Significantly, unlike any other communication, the accused spoke directly with K.F. about it--thus reinforcing its parental nature. [163] I also find it obvious that the accused would know that everyone in the family would see the gift. While the Crown argued this should be seen as the accused becoming more "bold"

in his predation of K.C., that simply does not fit with the description of what happened. Seeing the reaction to the gift, including K.F. telling K.C. did not have to wear it, he immediately wanted to explain he believed it had been approved by K.F. [164] It is also not clear to me that the typical grooming/predatory behaviour ever escalates to publicizing the pursuit within a family. The "history" of communications sent by the accused to that point gave the accused no reason to believe that the alleged predatory/grooming behaviour had in fact been successful in disarming K.C., which would be the natural precursor to coming out in public. [165] Again, K.C.'s testimony that she interpreted this as the accused's becoming more bold is evidence of how she reacted. K.C.'s reaction is not an element of the offence. Her interpretation is certainly reasonable and plausible in the circumstances, but I have a reasonable doubt whether the accused was being "bold" and this was an escalation of previous communications. [166] Accordingly, I place minimal weight on that item in my overall consideration of evidence for Count 1. [167] The Mannequin Picture has the strongest link to the Crown's theory that the communications had a sexual purpose. I agree with the Crown that the picture logically and clearly refers to bondage which is a particular sexual practice. However, the message

accompanying the Mannequin Photo clearly referred to a Christmas gift, and had no other suggestive or incongruent features. [168] The only possible explanation for the accused sending that picture to K.C. that arose from the evidence, was that K.C. would not respond to her parents about her Christmas wish list. However, I believe K.C.'s testimony that the Mannequin Picture was sent more than one time. That weakens the notion that it was merely sent to trigger her to send a Christmas wish list, or was merely a "joke". [169] There were also several references to K.C. sleeping naked, which she testified she sometimes did. However, she also said she never told the accused that. There was a message adduced in evidence making reference to her "wanting to lie in bed naked". He also sent a message saying he would jump naked on her bed. In the context of these messages being sent to a teenaged stepdaughter, it is difficult to view those are merely humorous. As discussed earlier, I do not find it reasonable to infer that was merely bad parenting. [170] When viewed all together I am not convinced by the accused's arguments that these were merely poor attempts at parenting, designed to prompt K.C. to respond to a request to send Christmas list, and to get out of bed. Certainly, her testimony of the references not introduced into evidence referring to her sleeping naked (upon which I accept

and believe her evidence) were not placed in the context of prompting her to get out of bed. [171] However, with the exception of the Mannequin Picture, the communications somewhat support the defence theory that these messages were an extension of his personality in the home. K.F. and K.C. both referred to him talking about nudity in the home, albeit inappropriately. [172] I am not persuaded the accused's arguments preclude the drawing the inference that the communications were sent as invitations for sexual touching. However, I must still be convinced beyond a reasonable doubt that the evidence is consistent with Crown's case and establishes all elements of the offence charged. In other words, I must be satisfied that the only inference that can be drawn from the evidence for Count 1 is that the accused intended the communications to be invitations to K.C. to sexual touching. [173] While I do not accept the accused's interpretation of the communications, I have a reasonable doubt about that conclusion. The nature of the communications is different than the communications underlying Count 2 in a significant way, and the nexus to possible parenting motives and his crude commentary raises that doubt. IV. CONCLUSIONS [174] R.T.H., please stand to receive the verdict: a) With regard to Count 2, the charge under s. 152 of the Criminal Code, I find as follows: i. Between January 1,

2016 and April 16, 2019, K.C. was under the age of 16. ii. In that time period, you communicated with K.C. for a sexual purpose, and specifically: (1) I find beyond a reasonable doubt that you sent the communications to K.C. during this period for a sexual purpose, in that you invited, counselled and/or incited K.C. to touch herself. (2) I find that on its own, the VD Gifts were given to K.C. for a sexual purpose, in that you invited, counselled and/or incited K.C. to touch herself, explicitly to masturbate. I also find that the rest of the communications relevant to this Count, when viewed together with the VD Gifts had the same purpose. iii. Therefore, I find you guilty on Count 2 an offence under s. 152 of the Criminal Code. b) With regard to Count 1, the charge under s. 153 of the Criminal Code, I find as follows: i. As her stepfather, you were in a position of trust and authority over K.C., and she was in a relationship of dependency with you. ii. K.C. was over the age of 16 but under the age of 18 between April 17, 2019 and April 27, 2002. iii. I have a reasonable doubt that the communications you sent to K.C. in this time period were sent for a sexual purpose. iv. Therefore, I find you not guilty of an offence under s. 153 of the Criminal Code. c) With regard to Count 3, the charged under s. 171.1(1)(b) of the Criminal Code, I find as follows: i. The Video and Photo 1

were sexually explicit. ii. I am not persuaded that you made those communications by mistake. iii. However, I have a reasonable doubt about that conclusion. iv. Accordingly, the Crown has not proven beyond a reasonable doubt that you transmitted sexually explicit material to K.C. for the purpose of committing an offence under s. 152. v. Therefore, I find you not guilty of an offence under s. 171.1(1)(b) of the Criminal Code. "Sharma J."