R. v. Branton

Court: Ontario Court of Justice

Date: June 15, 2017

Oral Judgment: June 7, 2017

Supplementary Written Judgment Released: June 15, 2017

Parties

Between:

Her Majesty the Queen

— and —

Roger Dean Branton

Counsel

Counsel for the Crown: G. Hendry

Counsel for the Defendant: D. Oake

Hearing Dates

June 27–28, 2016; September 27, 2016; March 24, 2017

Judge

Justice M.S. Felix

Table of Contents

I. Introduction

• A. Prosecution's Position
• B. Defence Position

II. Procedural Considerations

III. Issues

IV. Does the Presumption Apply? (s. 172.2(3) of the Criminal Code)

V. The Analysis of "Reasonable Steps" per s. 172.2(4) of the Criminal Code

• A. Burden
• B. Reasonable Steps
  1. The defendant's subjective belief
  2. The Craigslist "casual encounters" minimum age requirements
  3. The defendant did not subjectively believe that a 15 year old child would be interested in him sexually
  4. The description provided by "Krissy"
  5. Guitar-related communications and Jaguar motor vehicles
  6. "Krissy" was bold then meek
  7. "Krissy" was wrong about a school P.A. day
  8. The transmission of graphic, explicit, and provocative messages
  9. Requesting a voicemail
  10. Requesting a photo
  11. Questioning about Jaguar Cars

VI. Reasonable Steps: Conclusion

VII. Additional Factors

1. Efforts made to meet with "Krissy"
2. Communications after December 12, 2014 at 6:53 PM

VIII. Propensity

IX. Disposition: The Legal Framework

• A. Count 1
  1. The Offence
  2. "Reasonable Steps"

I. Introduction

1In November 2014 the defendant posted two separate ads on Craigslist in the "Casual Encounters" section.

2The "Casual Encounters" section of Craigslist is a place on the internet where persons may post electronic ads seeking various types of sexual connections with other persons.

3On November 27, 2014 the two ads attracted the attention of Detective Constable Lockwood of the Durham Regional Police Service. Perhaps ironically, the detective was involved in a training course at police college with numerous other police officers. Part of the training involved engaging in live online investigations of individuals who were apparently targeting underage persons for sexual purposes. As part of this focus the detective was examining the language used in the ad and certain key words indicative to him of an interest in underage children.

4The detective found 4 concerning Craigslist ads when he commenced the training exercise. He adopted the undercover persona of a 15-year old girl named "Krissy" and posted a message to the 4 ads. The first response received declined to interact with "Krissy" because she was under the age of 18. The next two responses were received from the defendant. What started as a training exercise soon progressed to an investigation when the defendant and the detective began to communicate electronically.

5Thereafter the defendant and the detective (as online persona 15-year old "Krissy") engaged in numerous electronic communications between November 27, 2014 and December 15, 2014 documented and organized in two exhibits admitted at trial: (See Exhibits 4 and 6).

6By December 11, 2014 the defendant had provided sufficient detail with which to identify him. He provided details including his personal residential address in order to facilitate a meeting with "Krissy" at his residence. The disclosure of his address crystalized the reasonable and probable grounds held by the detective. The detective stopped responding and made arrangements to arrest the defendant.

A. Prosecution's Position

7The defendant is alleged to have committed three offences. This judgment addresses count 1 on the Information:

8The first count alleges that between 27 November 2014 and December 15, 2014 the defendant communicated by means of telecommunication with a person who he believed was under the age of 18 years for the purpose of facilitating the commission of an offence under s.151 of the Criminal Code of Canada with respect to that person contrary to section 172.2(2) of the Criminal Code.

9The prosecution submits that based on the Craigslist ads, the electronic communications, the evidence at trial, and the defendant's statement, it is abundantly clear that the defendant was desirous of having sexual contact with 15 year old "Krissy" contrary to s. 151 of the Criminal Code. The defendant was put on notice that "Krissy" was underage yet he engaged in sexualized communications, sent provocative photos of his penis, and pursued a meeting with her. At no time did he take any reasonable steps to ascertain "Krissy's" age.

B. Defence Position

10Defence counsel submits that the evidence at trial supports the defendant's position that he never subjectively believed that he was communicating with a real 15 year old child.

11First of all, as a person familiar with the online world, the defendant did not take what was communicated online at face value. He engaged in communications because of the excitement associated with receiving unknown communications in his inbox. The defendant participated in this online world because of boredom. It was an escape from life's routine.

12While the defendant acknowledged that "Krissy" purported to be a 15 year-old child, the defendant had reason to doubt this assertion. The reasons included the fact that "Krissy" apparently responded to more than one ad on Craigslist, as if she was going down the list of postings. It was amusing to the defendant that "Krissy" was apparently contacting several people online. The defendant interpreted this as part of a game.

13Further, from the defendant's perspective it seems unlikely that a person sitting in a school had the privacy to respond to Craigslist ads.

14The defendant took note of the fact that "Krissy" demonstrated knowledge of "adult topics" including peculiar knowledge of expensive guitars and Jaguar motor vehicles. Things no child would know about.

15Furthermore, the defendant noted several inconsistencies in the electronic communications emanating from the supposed 15 year-old girl.

16Finally, the defendant never imagined that a 15 year-old girl would be sexually interested in him given his age and physical appearance.

17In sum, the environment on Casual Encounters was such that the defendant believed he was involved with an adult game or fantasy. Nothing more.

18The defendant never expected to find a child in this environment nor did he seek one out. The defendant did not subjectively believe he was communicating with a real child.

19Finally, as submitted by defence counsel, not only did the Craigslist milieu provided context for the subjective mindset of the defendant, but it provided a foundation for the "reasonable steps" he took that rebut thereby rebutting the presumption.

II. Procedural Considerations

20The trial proceeded byway of blended trial and voluntariness voir dire concerning the admissibility of the defendant's statement to the police.

21Illness on one day and the unavailability of the Court on another day contributed to delay in this matter. As a result the Court sought to expedite proceedings by requiring written submissions and ordered transcripts on an expedited basis.

22On June 7, 2017 the court provided an opportunity for the parties to provide submissions concerning counts 2 and 3. The Court heard brief submissions concerning counts two and three and then provided an opportunity for additional submissions.

23The parties agreed that the issues raised concerning counts 2 and 3 did not impact count 1.

24As a result, I provided judgment concerning count 1. I found the defendant guilty on count 1 and ordered a pre-sentence report.

25At the time I indicated that my draft decision was not suitable for release to the parties but that I would be prepared for release. This decision was also influenced by the fact that submissions were heard in a duty court.

26These are the written reasons explaining the Court's finding concerning count 1. Counts two and three will be addressed after the parties have had the opportunity to complete their submissions.

III. Issues

27Defence counsel and the Crown Attorney appropriately narrowed issues in this case. There was an agreed statement of facts provided thereby sparing the defendant's spouse from having to testify at trial.

28The electronic communications between the defendant and "Krissy" were conceded and filed as exhibits 4 and 6. A voluntariness voir dire challenging the admissibility of the defendant's statement to the police was ultimately abandoned.

29Finally, identification of the defendant as the author of the Craigslist ads and the person communicating with "Krissy" was conceded (I note parenthetically that I disregarded prior discreditable conduct evidence adduced by the Crown Attorney relevant to the issue of identification).

30Based on the evidence at trial and the written submissions of counsel there is a singular issue remaining -- did the defendant take "reasonable steps" to ascertain "Krissy's" age per s.172.2(4) of the Criminal Code.

31This core issue is resolved by analyzing the following related questions:

1. Does the presumption concerning age apply? (s.172.2(3) of the Criminal Code); and,
2. Is there "evidence to the contrary" per s. 172.2(3) of the Criminal Code;
3. Did the defendant take "reasonable steps"? (s. 172.2(4) of the Criminal Code)

IV. Does the Presumption Apply? (s. 172.2(3) of the Criminal Code)

32The defence position was that the circumstances in this case furnished the defendant with a foundation to assert "evidence to the contrary" rebutting the operation of the presumption. It was also submitted that there was some overlap between the foundation in support of "evidence to the contrary" and the "reasonable steps" taken by the defendant.

33I find that the presumption reigns.

34The electronic communications in this case clearly fix the defendant with clear knowledge that "Krissy" was underage.

35The very first communications from "Krissy" to both ads posted by the defendant disclosed her age:

36In addition the defendant acknowledged "Krissy's" age later on in communications from December 5, 2014.

37I find that the prosecution has established that the presumption in s.172.2(3) of the Criminal Code is engaged.

38There is nothing in the evidence at trial supportive of "evidence to the contrary" rebutting the operation of the presumption. The core of the analysis is interwoven into the analysis of asserted "reasonable steps" below.

V. The Analysis of "Reasonable Steps" per s. 172.2(4) of the Criminal Code

39There are two prongs to the defendant's position in this case.

40First, the defendant submits that he never subjectively believed that "Krissy" was an underage child. This, he submits, constitutes "evidence to the contrary" per s.172.2(3) of the Criminal Code and rebuts the operation of the presumption.

41Second, the defendant submits that he has satisfied the evidential burden required to rely on the "reasonable steps" he took per s. 172.2(4) of the Criminal Code.

42Mr. Oakes' written submissions eloquently and efficiently outline these arguments.

43A proper assessment of these two issues requires a focused consideration of the defendant's evidence (both in his statement to the police and at trial) with due regard to the content and context of the electronic communications.

44It is axiomatic that the criminal burden of proof at all times remains with the prosecution. The court must determine whether the prosecution has established the defendant's guilt to the criminal standard.

A. Burden

45If I find that the defendant has satisfied the evidential burden in s.172.2(4) of the Criminal Code then he must be acquitted.

46This approach is premised on acceptance of the defendant's evidence or his evidence having raised a reasonable doubt such that I believe him when he claims not to have believed that "Krissy" was underage and that he took "reasonable steps" to ascertain "Krissy's" age: See s. 172.2(4) of the Criminal Code.

47Even if I do not believe the defendant but the evidence at trial meets the burden in 172.2(4) then the defence is made out. The defendant need not address the ultimate burden of proof. The evidence need only "tend to show but it need not prove [the contested fact]. The exculpatory evidence, in other words, must have probative value, but it need not be so cogent as to persuade the court.": R. v. Levigne, 2010 SCC 25 at para. 17.

48Obviously, if the Crown's case leaves me in a state of doubt on any of the essential elements overall, the defendant should be acquitted.

49While negotiating the parameters of the asserted defence in s.172.2(4) of the Criminal Code, the principles outlined by the Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742 apply. This ensures that the focus remains on the criminal burden of proof placed on the prosecution notwithstanding the evidential burden placed on the defendant and credibility considerations.

B. Reasonable Steps

50Defence counsel eloquently submitted that there are a number of relevant factors that show that the defendant never subjectively believed that he was communicating with an underage girl. He argues that these factors support an assertion of "evidence to the contrary" contemplated by s.172.2(3) and also constitute "reasonable steps" per s. 172.2(4) of the Criminal Code.

51These factors include the following:

1. The defendant testified that he did not subjectively believe that he was communicating with a child;
2. The Craigslist "casual encounters" area has minimum age requirements so the defendant did not expect to meet a child in this area;
3. The defendant testified that he did not subjectively believe that a 15 year old child would be interested in him sexually;
4. There was a variance in the physical descriptions provided by "Krissy";
5. "Krissy" owned an expensive guitar and demonstrate knowledge of this expensive item;
6. "Krissy's" demeanor was bold at first and then meek;
7. "Krissy" was wrong about a school P.D. day;
8. The defendant deliberately sent graphic, explicit, and provocative messages;
9. The defendant requested a voicemail from "Krissy";
10. The defendant requested a picture from "Krissy";
11. The defendant questioned "Krissy" about her apparent knowledge of Jaguar cars;
12. The defendant was not found in possession of child pornography; and,
13. The defendant worked as a janitor in a high school and there had never been any issue concerning his conduct around young females.

52I will summarize my findings before explaining the rationale:

1. I find that the factors identified by the defence from numbers one to seven are not properly characterized as "evidence to the contrary" per s.172.2(3) or "reasonable steps" per s.172.2(4) of the Criminal Code;
2. I find that the factors identified by the defence from numbers eight through to eleven are the only factors that could possibly be characterized as "reasonable steps". However, having analyzed these factors, I find that these were not "reasonable steps" undertaken by the defendant to ascertain the true age of "Krissy"; and,
3. I find that factors identified by the defence in numbers twelve and thirteen are not relevant or probative for reasons that I will explain.

1. The defendant's subjective belief

53The defendant testified that at no time did he explicitly seek contact with an underage child. He testified that he never subjectively believed that he was in fact communicating with an underage child. This was all part of the exciting online fantasy. It was not reality.

54I accept the defendant's position in a limited sense. The words used in his online ads do not explicitly seek access to a children.

55But I do not believe his testimony denying the knowledge and belief that he was communicating with a child for several reasons.

56First, the contents of the ads on their own, objectively speaking, disclosed his wish to have contact with a young, inexperienced, submissive girl. The defendant specifically acknowledged in his statement to the police that the ads skewed towards the young and that no age limit was specified.

57Second, as already explained in this judgment the defendant was fixed with the knowledge that "Krissy" was underage. In my respectful view, there is not one reference in the electronic communications disputing, challenging, or questioning the assertion by the detective that "Krissy" is underage.

58Third, the fabric of the ruse created by the detective disclosed numerous circumstances of "Krissy's" everyday life that were consistent with her being a real child. For example, he knew that "Krissy":

1. Rode the bus to school and did not have a driver's licence;
2. Attended school;
3. Did homework; and,
4. Had parents.

59The defendant never challenged these ancillary features (and many more features I have not cited) of "Krissy's" life. In fact, he acknowledged them. Consider for example his reference to "Krissy's" mother and the Oshawa Centre. The electronic communications are replete with similar explicit acknowledgments by the defendant.

60Fourth, the entirety of the record of electronic communications discloses a persistent fixation by the defendant on oral gratification and sexual contact. An objective review of the densely sexualized communications shows that even when there were digressions into other subjects such as guitars or female musicians the discourse turned quickly right back to graphic sexual discourse or encouragement to meet.

61Fifth, I am satisfied that the context and content of discussions about guitars, music, and girl bands were affirmative tools used by the defendant. These tools were used to groom "Krissy" for a meeting by easing her apparent reticence to engage in sexual matters.

62Sixth, the policy rationale for the section 172.2 offence does not permit the defendant, once put on notice as to age, to simply assert that he was did not believe that "Krissy" was 15 years old: Levigne, para. 31. Separate and apart from my analysis of each of the factors asserted by the defendant – his mere assertion of subjective belief is not sufficient to rebut the presumption or constitute "reasonable steps". Action is required – the elucidation of "reasonable steps" on examination of the evidence.

63Seventh, even at the end of the relationship, when "Krissy" stopped communicating with the defendant, he sent several beseeching "Krissy" to communicate with him. These messages belie his testimony that this was simply a fantasy or game: (See analysis below under heading "Communications after December 12, 2014 at 6:53 PM).

64Eighth, the defendant in his communications specifically referenced the fact that contact with such a young girl was problematic and that people would not understand.

65Ninth, for reasons I will expand upon later in this judgment, the evidence is clear that the defendant not only believed "Krissy" was underage, but he endeavored to meet with her personally:(See the analysis below under heading "Efforts made to meet with "Krissy").

66Finally, during the defendant's statement to the police he expressed some empathy for "Krissy" and told the detective that she was blameless – that she was just being a "curious teen". Further, once he it was made clear to him that "Krissy" was an undercover police officer he expressed some remorse and relief that there were no upset parents involved.

67I find that an objective consideration of the content of the messages in the context of all of the evidence at trial, leads me to the firm conclusion that the real reason the defendant persisted was the attention, excitement, and sexual gratification associated with these communications.

68My firm conclusion is that the defendant accepted the undercover detective's ruse. He believed he was communicating with a child.

2. The Craigslist "casual encounters" minimum age requirements

69The defendant testified that he did not expect to meet a 15 year old child in the "casual encounters" area because of the minimum age requirements and his subjective believe that young girls would not find this area to be "hip" or "cool".

70It might be true that the defendant did not expect to meet a 15-year old child on Craigslist. But I find that he did not rely upon the age restriction on Craigslist for several reasons.

71The first and obvious consideration is once put on notice regarding "Krissy's" age he did not cease communicating with her. I digress for one moment to consider the detective's evidence that one of the persons he connected with online as "Krissy" immediately notified him that given he was under 18 there would be no further communication. The defendant took the polar opposite approach.

72Second, the evidence at trial disclosed that there is but a simple age caution when entering the Craigslist website with no mechanism to confirm the age of the entrant. The evidence was clear that one could simply click to confirm and proceed. One could acknowledge that one was an adult without proving it. I accept that the defendant was aware of the age limitation. But he was also aware that one could simply click on a box to proceed.

73Third, I find that the age restriction on Craigslist was not a "reasonable step" relied upon by the defendant nor was it a feature of Craigslist that gave him comfort that he was not associating with a child. He never referenced the age check in his communications with "Krissy".

74Fourth, I have considered the slender reference to a "Craigslist prankster" and the defendant's position that this represented his suspicion that "Krissy" was not who she claimed to be. But on balance, this reference was at the near end of the communications and fades into the background of the defendant's persistent and immediate focus on graphic sexual communications.

75Fifth, the defendant's position is partly premised on the guidance provided by Dawson J. in R. v. Pengelley, 2010 ONSC 5488 (S.C.) and the submission that the cases are similar.

76The two cases are not at all similar in my respectful view.

77In Pengelley, it was significant that the particular chat room existed for the express purpose of facilitating explicit private fantasy chatting with others about explicit sexual acts, sexual fantasies, and role-playing. The record at trial revealed that the defendant in that case had participated in hundreds of role-playing fantasy chats with others. Notably, he used his real name and real photo because it was important that the defendant know that the other side was using him as an object of fantasy.

78In such circumstances Dawson J. found there was support for the defendant's reliance on electronic environment he was in and the expectation that children would not be found within.

3. The defendant did not subjectively believe that a 15 year old child would be interested in him sexually

79The defendant testified that based on his experience and advanced age he did not believe it was possible for a 15 year old girl to be interested in him. He cited the fact that he was a 57 year old janitor and specifics of his physical appearance.

80In a startling piece of testimony he also testified that no underage girls had previously sought him out as a potential sexual partner. He testified that at school he was invisible to the students.

81It is obviously concerning that the defendant cites a lack of prior underage partners and lack of interest from underage girls as a relevant factor in this trial.

82Suffice it to say, I did not characterize these features of his evidence as a component of his "reasonable step" defence.

4. The description provided by "Krissy"

83The defendant notes that there was some variance in the description "Krissy" provided in answer to the two ads he posted (the defendant says there were three ads but I do not have the content of the third ad within the record at trial).

84This is not important.

85In both descriptions it was clear that "Krissy" was a petite 15 year old girl. The variance in description did not provoke any inquiry by the defendant concerning the true age of "Krissy". He did not bring this to the attention of "Krissy" at any time.

86It is also significant that this variance did not impede his immediate involvement in graphic sexualized communications.

5. Guitar-related communications and Jaguar motor vehicles

87The defendant's submitted belief that a 15 year old would not possess or have knowledge about expensive guitars is not a "reasonable step".

88First of all, the issue of the guitar was initiated by "Krissy" not the defendant.

89Second, the defendant co-mingled his asserted questioning in furtherance of "reasonable steps" with his overarching focus of sexual contact.

90Third, I find that the defendant used the guitar conversation and referenced empowering female musicians in order to build rapport with "Krissy".

91The "questioning" relied on by the defendant on this issue was not focused on determining "Krissy's" age. It was focused on building some level of rapport or comfort so that "Krissy" might feel comfortable meeting the defendant.

92Any guitar-related discussions quickly turned to two objects – sexual gratification and the possibility of a meet.

93The car related asserted nets out to the same analysis. The defendant did not focus on the car discussion for the purpose of ascertaining the true identity or age of "Krissy".

94The defendant at this point was focused on preparations to meet with "Krissy". This discussion was ancillary to an anticipated meeting with "Krissy" and associated to the provision of his real address in order to facilitate that meeting.

6. "Krissy" was bold then meek

95It is unclear to me how this might be perceived as a "reasonable step" or how it might be relevant to the subjective mindset of the defendant.

96I did not accept this assertion.

7. "Krissy" was wrong about a school P.A. day

97On the surface, this asserted factor is worthy of some consideration since checking into P.A. dates and questioning "Krissy" could conceivably be viewed as a "reasonable step" taken by the defendant. However, in this case, I find that the defendant's check was not for the purpose of ascertaining the "Krissy's" true age.

98A review of the context of the communications is not supportive of the assertion:

99These communications occurred towards the end of communication timeframe rather than the commencement. Further, it is apparent that the focus of the inquiry by the defendant was an attempt to pin down what school board district or school "Krissy" attended.

100Having regard to the overall context of the communications the inescapable conclusion is that the defendant was trying to pin down the identity of "Krissy" and that the subject of the P.A. day was directly connected to "Krissy's" school schedule and her availability to meet with the defendant.

101The factors outlined so far do not lend any real support to an assertion that the defendant took "reasonable steps".

102There are four factors asserted by the defendant that are more deserving of careful analysis to determine whether they constitute "reasonable steps" because they are factors involving positive steps on the part of the defendant:

8. The defendant deliberately sent graphic, explicit, and provocative messages;
9. The defendant requested a voicemail from "Krissy";
10. The defendant requested a picture from "Krissy"; and,
11. The defendant questioned "Krissy" about her apparent knowledge of Jaguar cars.

8. The transmission of graphic, explicit, and provocative messages

103The defendant testified that the language, tone, and content of his communications was designed to "smoke out" the true identity and implicitly the age of "Krissy". These steps were a deliberate "shock tactic" to discover the true identity of "Krissy". This is the asserted rational for using graphic sexual language and for sending pictures of his penis.

104The defendant testified that a real 15 year-old girl would have reacted by never emailing such a person exhibiting such conduct again. He argued that no 15-year old girl would have continued communication with someone like that. These steps were a deliberate "shock tactic".

105I flatly rejected this evidence.

106First of all, I find that his testimony in this regard constitutes an awkward but transparent attempt to explain away the content of his communications and his actions. It amounts after-the-fact justification for having transmitted very graphic communications and images to a child.

107Second, even if true, it would not be a reasonable step to send a single picture of your penis let alone numerous pictures of your penis to a child in an effort to determine their true age. The defendant sent a photograph of his penis to "Krissy" on November 27, 2014 at 1:58 PM, November 29, 2014 at 2:44 PM, and December 6, 2014 at 9:25 PM. There is no rationale or sensible explanation for sending multiple photos to assist with ascertaining the true age of "Krissy".

108This area of the defendant's testimony significantly damaged his credibility. There is simply no doubt that the defendant sent photos of his penis to "Krissy" for the purpose of sexual gratification. A review of the timing of these transmissions and the context of the discussions makes this abundantly clear. These communications accompanied the s. 151 Criminal Code sexual interference offence. The defendant was persistently fixated on the subject of oral sexual gratification with "Krissy".

109The transmissions of photos and the content of his salacious communications was clearly not a "reasonable "step" undertaken by the defendant.

9. Requesting a voicemail

110The defendant testified that he requested a voicemail from "Krissy" so that he could confirm or verify her identity. When he did not receive a voicemail it confirmed his suspicion that he was not dealing with a child. He claimed that had he received a voicemail from a child he would have been shocked.

111It is evident from the defendant's testimony in Court that he subjectively believes that he put in a "good effort" by asking for that voicemail.

112I do not believe the defendant's testimony on this point.

113The defendant asked for a voicemail once – on December 5th:

114Once again, context is important. This request was made during the course of a 3-hour long series of sexualized communications.

115Further, it was made during the course of communications leading up to an anticipated meeting with "Krissy" the next day.

116If the defendant sincerely wished to authenticate the person he was speaking with he would have pursued the issue – particularly when there was an imminent meeting.

117In the communications thereafter he is focused on "Krissy's" impression of him as a technological dinosaur and continued communications around making arrangements for a meeting.

118I need not speculate concerning the defendant's true rationale for wanted to receive a voicemail in the context of an ongoing sexually charged communication string but it certainly does not constitute a "reasonable step".

10. Requesting a photo

119The defendant says that his request for a photo was a "reasonable step".

120I do not find this to be a reasonable step for several reasons.

121First of all, the issue of providing a picture was first raised by "Krissy" as she volunteered to send a picture with her face edited out and referenced problems with her ex-boyfriend and photos.

122The defendant followed up on that offer.

123Shortly thereafter he received a photo of a girl with the face edited out.

124The officer's intent was to send a photo that was relatively age neutral. His subjective view was he had sent a photo of a girl who was between 14 and 18 years of age.

125In Pengelly one of Justice Dawson's significant conclusions was that the photograph used by the undercover officer objectively speaking did not display an underage child. I have reviewed the photo transmitted in this case. I am satisfied that it reasonably depicts girl with an "emo" "gothic" fashion style. My personal view is that the girl is a youngish teenager not inconsistent with a 15 year-old girl.

126It is also significant that the defendant accepted this photo as being consistent with 15 year-old "Krissy". He did not question or challenge "Krissy" concerning the photo. He further did not address this issue during his testimony at trial.

127This action was not a "reasonable step".

11. Questioning about Jaguar Cars

128The defendant provided his residential address to "Krissy" and confirmed that he owned a white jaguar that could be seen using Google Streetview. The defendant asserts that his questioning around jaguar cars was a reasonable step. "Krissy's" apparent knowledge of Jaguar cars aroused his suspicion that he was not dealing with a 15 year old girl.

129The entire exchange around the subject of the Jaguar was as follows:

130"Krissy" told the defendant that she watched an automobile show called Top Gear with her brother so she was familiar with cars.

131The defendant merely commented on her familiarity.

132This is not a "reasonable step".

VI. Reasonable Steps: Conclusion

133I have explained why I do not believe the defendant's assertion that he subjectively did not believe he was communicating with a child.

134I have also analyzed several factors asserted by defence counsel as supporting "evidence to the contrary" and constituting "reasonable steps". I have done this so that the defendant may clearly understand my decision and know my conclusion on a number of factors that he believes are important.

135Whether analyzed individually or even synergistically, these asserted factors simply do not support the defence position.

VII. Additional Factors

136There are two additional factors that are probative of the true intentions of the defendant: (1) his repeated attempts to convince "Krissy" to meet; and (2) his communications to "Krissy" after December 12, 2014.

1. Efforts made to meet with "Krissy"

137The tone and content of almost each and every communication from the defendant to "Krissy" involved sexual gratification or the subject of meeting with her.

138Some of the more notable communications including the following:

139Thereafter the defendant provides material particulars sufficient to identify him including his residential address (these are not reproduced so as to not identify the address of the defendant).

140While exhibits 4 and 6 provide the fulsome context of all of these discussions, the particular conversations cited above document the clear efforts by the defendant to meet "Krissy".

141Attempting to meet "Krissy" is not an element of the offences before the Court. A meeting is not a precondition to culpability under s. 172.2 of the Criminal Code. But it is probative concerning the defendant's claim that this was merely a game or fantasy.

142Contrary to the position expressed by the defendant, this was clearly not a fantasy or game. A fantasy or game would not have required the defendant to provide material particulars of his actual address nor arrange for a meeting.

143A meeting with "Krissy" was a predominate theme of the communications culminating with the defendant disclosing his real residential address and a fixed date and time to meet "Krissy".

144There is no doubt that the defendant wished to meet with "Krissy". The evidence at trial demonstrates his concerted effort in that regard.

2. Communications after December 12, 2014 at 6:53 PM

145"Krissy's" last communication to the defendant was on December 12, 2014 at 6:53 PM. The detective possessed reasonable grounds to arrest the defendant and set about making arrangements for this to occur.

146The defendant's response to silence was illuminating:

147The defendant was clearly expecting to meet "Krissy" on Saturday or Sunday. The defendant's emotional response to the failed meeting and the silence was also illustrative of his mindset – he really believed that 15 year old "Krissy" was going to meet with him.

VIII. Propensity

148There is one argument presented by defence counsel that did not assist my analysis.

149Defence counsel submits that it is probative that the defendant was not found in possession of "child pornography". It was submitted that this was supportive of the defendant's credibility.

150On the record in this case I did not think this was important.

151The police did not search or seize any electronic media from the defendant's residence. The police did not search the defendant's e-reader found at school. So I do not know factually (and neither does counsel) whether or not the defendant was in possession of images of child exploitation.

152The texts of the communications were secured from the detective's side of the communications.

153Even if the defendant had been found in possession of images of child exploitation caution would be in order (and submissions heard) before a Court would draw such a conclusion that simple possession of images was probative of his culpability concerning "child luring".

154Defence counsel also submits that it is important that the defendant has worked at a school for many years surrounded by female children without incident. I did not find this assertion to be probative of whether or not the defendant was inclined towards or against committing offences under 172.2 of the Criminal Code.

IX. Disposition: The Legal Framework

155The inchoate crime of "Child Luring" contrary to s. 172.2(1) of the Criminal Code provides the relevant legal framework:

Luring a child

172.2 (1) Every person commits an offence who, by a means of telecommunication, communicates with

(a) a person who is, or who the accused believes is, under the age of 18 years, for the purpose of facilitating the commission of an offence with respect to that person under subsection 153(1), section 155, 163.1, 170, 171 or 279.011 or subsection 279.02(2), 279.03(2), 286.1(2), 286.2(2) or 286.3(2);

(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

(c) a person who is, or who the accused believes is, under the age of 14 years, for the purpose of facilitating the commission of an offence under section 281 with respect to that person.

Punishment

(2) Every person who commits an offence under subsection (1)

(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

(b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.

Presumption re age

(3) Evidence that the person referred to in paragraph (1)(a), (b) or (c) was represented to the accused as being under the age of eighteen years, sixteen years or fourteen years, as the case may be, is, in the absence of evidence to the contrary, proof that the accused believed that the person was under that age.

No defence

(4) It is not a defence to a charge under paragraph (1)(a), (b) or (c) that the accused believed that the person referred to in that paragraph was at least eighteen years of age, sixteen years or fourteen years of age, as the case may be, unless the accused took reasonable steps to ascertain the age of the person.

156The criminal offence described in s.172.2 of the CCC specifically targets individuals who communicate with underage persons for the purpose of facilitating specific enumerated offences. As explained by the Supreme Court of Canada in R v. Legare 2009 SCC 56 at paragraph 3:

3 Our concern, more particularly, is with s. 172.2 of the Criminal Code, R.S.C. 1985, c. C-46, which prohibits the use of computers to communicate with underage persons "for the purpose of facilitating the commission" of a specified (or secondary) offence. And, more particularly still, our concern is with s. 172.2(1) (c)1, which consists of three elements: (1) an intentional communication by computer; (2) with a person whom the accused knows or believes to be under 14 years of age; (3) for the specific purpose of facilitating the commission of a specified secondary offence -- that is, abduction or one of the sexual offences mentioned in s. 172.2(1) (c) with respect to that person. Included among them is "Invitation to sexual touching", a crime under s. 152 of the Code.

157The Supreme Court of Canada went on in Legare at paragraphs 25-27 to explain that s.172.2 of the Criminal Code was designed to capture those who would engage in preparations meant to culminate in the commission of specific crimes:

25 It will immediately be seen that s. 172.2(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.

26 Speaking for the court in R. v. Alicandro, 2009 ONCA 133, 246 C.C.C. (3d) 1, Doherty J.A. observed that the purpose of s. 172.2 is evident from its language. I agree. In Justice Doherty's words (at para. 36):

The language of s. 172.2 leaves no doubt that it was enacted to protect children against the very specific danger posed by certain kinds of communications via computer systems. The Internet is a medium in which adults can engage in anonymous, low visibility and repeated contact with potentially vulnerable children. The Internet can be a fertile breeding ground for the grooming and preparation associated with the sexual exploitation of children by adults. One author has described the danger in these terms:

For those inclined to use computers as a tool for the achievement of criminal ends, the Internet provides a vast, rapid and inexpensive way to commit, attempt to commit, counsel or facilitate the commission of unlawful acts. The Internet's one-[to]-many broadcast capability allows offenders to cast their nets widely. It also allows these nets to be cast anonymously or through misrepresentation as to the communicator's true identity. Too often, these nets ensnare, as they're designed to, the most vulnerable members of our community -- children and youth.

Cyberspace also provides abuse-intent adults with unprecedented opportunities for interacting with children that would almost certainly be blocked in the physical world. The rapid development and convergence of new technologies will only serve to compound the problem. Children are the frontrunners in the use of new technologies and in the exploration of social life within virtual settings.

(Gregory J. Fitch, Q.C."Child Luring" (Paper presented to the National Criminal Law Program: Substantive Criminal Law, Advocacy and the Administration of Justice, Edmonton, Alberta, July 2007), Federation of Law Societies of Canada, 2007, at s. 10.1, pp. 1 & 3)

27 What s. 172.2(1) prohibits is thus apparent both from its remedial purpose and from the express terms adopted by Parliament to achieve that objective.

A. Count 1

1. The Offence

158Policy considerations make it absolutely crucial that the Court carefully assess the intent of the defendant's communications given the remoteness of the preparatory conduct involved in inchoate crimes: Legare, paras. 33-35.

159In this case the constant focus on meeting "Krissy" narrows any "remoteness" concern. The defendant drove towards this object consistently throughout the communications. His intentions were laid bare during a multitude of communications around the mechanics of a meeting with "Krissy". These efforts, significantly in my view, concluded with the defendant providing his residential address and confirming his identity.

160There is no question that the defendant communicated with "Krissy", a person under the age of 18 years, for the specific purpose of facilitating an offence under s.151 of the Criminal Code. His communications were clearly designed to facilitate a s.151 offence: See Legare, paras. 55, 58; R. v. Pengelley, [2009] O.J. No 1682 (QL) (S.C.) at paras. 91 – 96.

161As such, the prosecution has proven beyond a reasonable doubt that he committed an offence contrary to s.172.2(2) of the Criminal Code.

162The evidence as a whole, in context, soundly demonstrates the defendant's criminal blameworthiness: Legare, paras. 38, 42.

163The defendant subjectively believed that he was communicating with a 15 year-old girl named "Krissy".

2. "Reasonable Steps"

164The defence contemplated by s. 172.2(4) of the Criminal Code lacks any meaningful foundation on the record in this trial.

165As explained by the Court in Levigne at paragraphs 31-32:

31 Finally, in virtue of s. 172.2(4), that the accused believed the person with whom he or she communicated was not underage will afford no defence to the charge "unless the accused took reasonable steps to ascertain the age of the person". This provision was enacted by Parliament to foreclose exculpatory claims of ignorance or mistake that are entirely devoid of an objective evidentiary basis.

32 Read together and harmoniously with the overarching purpose of s. 172.2, the combined effect of subss. (3) and (4) should be understood and applied this way:

1. Where it has been represented to the accused that the person with whom he or she is communicating by computer (the "interlocutor") is underage, the accused is presumed to have believed that the interlocutor was in fact underage;

2. This presumption is rebuttable: It will be displaced by evidence to the contrary, which must include evidence that the accused took steps to ascertain the real age of the interlocutor. Objectively considered, the steps taken must be reasonable in the circumstances.

3. The prosecution will fail where the accused took reasonable steps to ascertain the age of his or her interlocutor and believed that the interlocutor was not underage. In this regard, the evidential burden is on the accused but the persuasive burden is on the Crown.

4. Such evidence will at once constitute "evidence to the contrary" under s. 172.2(3) and satisfy the "reasonable steps" requirement of s. 172.2(4).

5. Where the evidential burden of the accused has been discharged, he or she must be acquitted if the trier of fact is left with a reasonable doubt whether the accused in fact believed that his or her interlocutor was not underage.

166For the reasons outlined in this judgment I find:

1. The presumption in s.172.2(3) of the Criminal Code is sustained.
2. The defendant has not satisfied the requisite evidentiary burden as a prerequisite to reliance on the defense in s.172.2(4) of the Criminal Code.
3. The operation of the presumption has not been displaced by "evidence to the contrary".
4. The defendant at all relevant times believed that "Krissy" was in fact a 15 year old girl; and,
5. The defendant did not take any "reasonable steps".

167The "reasonable steps" asserted by the defendant are best answered by Levigne at paragraphs 37–41, and 44:

37 I recognize, of course, that it seems incongruous to convict the appellant on the ground that he failed to take reasonable steps to determine the real age of "Jessy G" when "Jessy G" was in fact an adult pretending to be a child and not a child pretending to be an adult.

38 But s. 172.2, I repeat, makes it an offence to communicate for the purpose prohibited by that section with a person whom the accused believes to be underage. That is in itself conduct deemed undesirable and criminalized by Parliament. It thus seems more incongruous still to acquit an accused who communicated for a prohibited sexual purpose with a person whom he believed to be underage -- the evil aimed at -- on the ground that he would not have made that mistake had he taken the reasonable steps he was required by law to take.

40 What is put against the appellant is that, on the uncontested evidence, the trial judge was bound by s. 172.2(3) and (4) to find that the appellant was guilty as charged. Convictions on both counts were inevitable, says the Crown, because the only issue was whether the appellant believed that he was communicating with an underage interlocutor. It was plainly and repeatedly represented to him that "Jessy G" was only 13 and he took no reasonable steps to ascertain that "Jessy G" was in fact 18, as he claims to have believed. He is precluded from relying on that belief because it was neither reasonable in the circumstances nor available to him as a defence because it was unsupported by the reasonable steps mandated by s. 172.2(4).

41 The "reasonable steps" invoked by the appellant were in fact neither "reasonable" nor "steps to ascertain the age" of the person with whom he was communicating by computer for the avowed purpose of his own sexual gratification. Rather, they were circumstances which in the appellant's submission explain why, as he admitted in cross-examination, he in fact took no steps to ascertain the actual age of "Jessy G.". And this despite the latter's repeated assertion that he was only 13.

44 In short, I agree with Berger J.A. (at para. 17) that Mr. Levigne relies upon indicia of adulthood, ... [that] support neither the reasonableness of [his] belief nor satisfy the requirements of subsection (4) that for such a defence to carry the day [Mr. Levigne] must have taken reasonable steps to ascertain the age of the person with whom he was communicating. The record here is silent in that regard.

[Emphasis is mine]

168The defendant's attempted reliance on "reasonable steps" was really an ex post facto justification for his conduct and the absence of any real or meaningful steps to ascertain the true age of "Krissy".

169The defendant is found guilty of count 1.

Released: June 15, 2017

Signed: Justice M.S. Felix

Footnote

1The Court requested submissions concerning counts 2 and 3 on the Information on June 7, 2017 and an addendum to this judgment will address those two counts.