SELECTED CASE LAW
ALBERTA:
In 2017 ABQB 193, Mr. H was charged with sexual assault, touching a person under the age of 16 for a sexual purpose, exposing his genital organs for a sexual purpose to a person under the age of 16, and making sexually explicit material available to a person he believed was under the age of 16 for the purpose of facilitating an offence.
Mr. H showed his 7-year-old daughter pornographic videos involving both children and adults, calling them “love videos”, and taught her that what was occurring in the videos were acts of love and that the people in the video were learning how to love each other. On several occasions he abused her by either exposing his penis, masturbating in front of her, having her masturbate him, using sex toys on her, or fondling her. He told her not to tell anyone about their “love acts” because they may call the police on him.
The trial judge found Mr. H guilty of all of the offences, save making sexually explicit material available to a person he believed was under the age of 16 for the purpose of facilitating an offence, stating that:
I accept the evidence of the complainant and find as a fact that the accused made sexually explicit materials available to her by way of love videos. I am not persuaded, however, that the Crown has proven beyond a reasonable doubt that the accused made these materials available to the complainant “for the purpose of facilitating an offence” under s. 151, 173(2) and/or s. 271 of the Criminal Code . It may well be that by showing the love videos to her the accused was grooming the complainant, or “normalizing” his own behavior, for the purposes of one or more of the offences under ss. 151, 173(2) or 271. However, there is little if any direct evidence to support that conclusion, and whatever inferences arise from the facts in this case fall just short in my view of proving the offence under s. 171.1(b).[1]
The applicant is seeking appeal, arguing that the judge had incorrectly discounted contradictions in the child’s statements, erred in finding there was no challenge or cross examination in regards to core allegations raised against him, erred in declining to assess the credibility of those allegations that had not been challenged or cross examined, erred in failing to recognize or consider inconsistencies in the child’s evidence; and erred in failing to stay the prosecution for unreasonable delay.
He was denied bail pending appeal due to the seriousness of his crime.
Also see: 2017 ABQB 193 (Trial decision); 2016 ABQB 610 (Charter challenge – 11(b)); 2017 ABCA 337 (Bail)
[1] R v H(DA), 2017 ABQB 193, para 125.
Criminal Offence(s): Making Sexual Material Available to a Child, Sexual Assault