Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Swetu Chheda
Judgment
Evidence heard: April 30, May 1, 2018
Judgment Delivered: May 11, 2018
Counsel:
- Ms. K. Hutchison — counsel for the Crown
- Mr. W. Doodnauth — counsel for the defendant
KENKEL J.:
Introduction
1York Regional Police posted online ads intended to identify and intercept persons seeking to purchase sexual services from children under the age of 16. In this case an undercover officer engaged in text conversations with a person who agreed to purchase sex from two 14 year old girls. The text messages discussed their age and the fact that they were in high school. After the person agreed to pay $150 per half hour for the two of them, he was told to go to a specific hotel. He was asked to bring them hot chocolate from Tim Hortons. The person agreed and later sent texts confirming that he bought the hot chocolate and confirming his arrival at the hotel. He was told to go to a specific room. Minutes later Mr. Chheda was arrested after he knocked on the door of that room while holding two hot chocolates from Tim Horton's.
2Mr. Chheda is charged with two counts of child luring contrary to section 172.1(2), one count of communication for the purpose of obtaining sexual services from a person under 18 years s.286.1(2), and two counts of arranging a sexual offence with a child via telecommunication s.172.2(2). Both counsel agree the sole remaining issue for decision is identification. Has the Crown proved beyond a reasonable doubt that Mr. Chheda was the person who engaged in the text conversation with the officer in a case where the police did not recover the phone that sent those messages?
3The Crown submits that phone records including cellphone tower records, the content of the texts, the timing of the messages and the timing and circumstances of the accused's arrest all prove that the accused was the person who engaged in the text discussion with the officer. The defence submits that the circumstantial evidence including tower records show that at one point that day the accused's phone was in a different location than the suspect phone so the accused could not have been the person who made the text arrangements with the officer.
The Phones and the Text Messages
4Project Raphael was an undercover investigation targeting persons soliciting the purchase of sexual services from juveniles online. The evidence at trial showed that prostitution in this region is negotiated almost entirely through online websites. In this case an ad was placed on Backpage.ca advertising sexual services from a girl described as, "Tight, brand NEW girl …18 … Sexy and YOUNG." The ad used the minimum age permissible on that website. The ad included a photo of a female wearing a t-shirt with a local high school logo spelled out across the front. A second ad was later posted with the same photo and information, but the words were put in a different order to give it new priority on the website.
5Detective Constable (DC) Cook described the response to the ads as "almost overwhelming". His team set up in room 111 of a particular hotel in Markham and DC Cook engaged in text conversations with those who responded. On March 29, 2017 a person sending messages from a mobile number hereinafter referred to as the "suspect phone" engaged in the following text conversation with the officer:
| Time | Message |
|---|---|
| 1607 | Hey Michelle please remove the picture with you school name from the ad |
| 1611 | Can I see you for 1 hr |
| 1750 | DC COOK – Why do u want that picture removed. It's my shirt |
| 1751 | People my find out where you are from. Just a suggestions. It's your picture. Can I see you for 1 hr |
| 1802 | Can I see u for 1 hr |
| 1824 | DC COOK – I'm in high school. And some guys like young girls so that's why. I get more guys that way |
| 1824 | Ok |
| 1825 | So can i see u |
| (Discussion about "duos" involving two girls) | |
| 1835 | DC COOK – She is busy so I need to know. No pressure. She is young like me too. And hot |
| 1836 | k duo |
| (details including $150 per half hour discussed for "duo") | |
| 1909 | DC COOK – You cool we are young? We are small and look Young too and some guys freak because we look too young |
| 1909 | No worries |
| 1911 | DC COOK – Ok. We both 14 but turning 15 this year. We look a bit older I think. |
| 1912 | K |
6In the text conversation that followed the suspect continued making arrangements to meet the two girls. He was first given the general area of the hotel which the officer explained was typical in such transactions. DC Cook asked the person to bring hot chocolate from "Timmies". At 2033 the person sent a text message that he had hot chocolate and he asked for the specific hotel location. He was given the hotel address and he agreed to send a further message when he was in the hotel parking lot. At 2042 the person sent a text to DC Cook saying "here". At 2043 the officer sent back a text with the room number 111 and the message "see you soon". At 2046 PC Owen was outside in the parking lot of that hotel. He saw a male matching the accused's general description walking into the hotel with two cups from Tim Hortons in a tray. Two minutes later at 2048 the accused Mr. Chheda knocked on the door to room 111 and was arrested. He was holding two hot chocolate drinks from Tim Hortons in a tray.
7A search incident to arrest located various items including $300 in cash in an outer coat pocket along with some change and keys for Toyota and Volvo vehicles. A search in the parking lot located a Toyota Camry with a license plate linked to the accused. That car was sealed at the scene and later searched pursuant to a warrant. DC Salmon found a black cellphone in the left side compartment of the driver's side door. He stopped searching after finding that cellphone and did not think to look for a second phone inside the car or the trunk. The phone he found was later examined by a Computer Forensic Examiner Mr. Chiu and found not to be the suspect phone used in the text message conversation with the officer. Mr. Lorne Ellison of Rogers Corporate Security Services testified that the suspect phone was a "pay as you go" phone with a third-party ZTAR mobile account funded by prepaid cards and active on the Rogers network. No credit information is required for such phones and Rogers does not have information identifying the user. The ZTAR mobile phone was never seized by police.
Identification
8Records from the phone seized from Mr. Chheda's vehicle and his driver's license show that he resides in the Stoney Creek area. The fact that Mr. Chheda travelled to that particular hotel in Markham, to that specific room at the exact time arranged by the person in the text conversation, arriving minutes after that person said they were there, bearing the hot chocolate requested in that conversation, two drinks consistent with the two girls discussed and in possession of $300 which would pay either for the hour initially sought for two or the half hour plus tip as later discussed at the rates agreed upon, all provide a strong circumstantial case showing that the accused was the person sending the text messages at issue to the officer.
9In addition, the Crown called two witnesses to review the cellphone records from the phone seized from the accused's car (the seized phone) and the phone that communicated with the officer which was never recovered (the suspect phone). Mr. Lorne Ellison works with Rogers Corporate Security Services. He testified that the suspect phone was from a third-party provider ZTAR Mobile but was active on the Rogers network at the relevant time. The phone is identified by the phone number and by an IMEI (International Mobile Equipment Identity) number which accompanies every transmission and is unique to the handset. He explained that cell tower information can show the general location of a handset at the time of communication. Mobile phones connect with the nearest tower on their network based on line of sight contact. The tower field of contact is divided like a pie into sectors or thirds, each on a different frequency. The range of each sector varies from .5km in a dense urban location to 25-30km in some rural locations depending upon topography. The presence of large buildings or proximity to large bodies of water can interfere with tower selection. Knowing the cellphone tower and sector used gives an approximate location of a cellphone subject to the limits explained by Mr. Ellison.
10Mr. Gord Kent, Security Specialist at Freedom Mobile provided information about the seized phone. It was registered to Jigna Chheda at the same address in Stoney Creek shown on the accused's driver's license. His evidence with respect to phone identification and cell tower use on his network was similar to that of the Rogers representative Mr. Ellison. The Freedom Mobile network is also designed so that phones seek the closest tower with the best signal. Tower selection will vary based on topography, large buildings and proximity to large bodies of water. Tower traffic may also push a call to the next adjacent tower when the network is exceptionally busy.
11The detailed evidence with respect to the records of both phones shows three things. First, with one possible exception both phones travelled to the same locations at the same times on March 29, 2017.
The seized Chheda phone was near 395 Jones Road in Stoney Creek around noon on that day. The suspect phone was also in the same area at that time.
The suspect phone sent the first text to the officer at 1607. Those text messages were sent via a tower in Niagara Falls, then the conversation continued via a tower in Niagara-on-the-Lake to 1611. The seized Chedda phone used a tower in Niagara-on-the-Lake at 1617.
The suspect continued discussion with the officer while moving back to Stoney Creek. Around 1800 that phone was in the same area it had been at noon. The seized Chheda phone was also back in that same location at that same time (1806).
As the suspect agreed to price and terms with the officer from 1825 to 1917 the suspect phone travelled from Stoney Creek to Hamilton, Burlington, Oakville, Etobicoke, Toronto then north to Vaughan at Highway 7 and the 400 Highway. There was little activity on the seized phone during the same period but that phone also moved from Stoney Creek to the same area of Vaughan at 7 and the 400 by 1937. That location is significant as it was mentioned in the online ad marked as Exhibit #3 which described a general location for the girls as Highway 7 and Jane in Vaughan. Jane and 7 is close by the 400 and 7 intersection.
At 2003 the suspect asked the officer which hotel was booked and the officer responded "7 and Woodbine". By 2039 both phones were located in that area.
At 2039 the officer gave the suspect the name and address of the hotel in Markham. The suspect acknowledged that message at 2041 and sent a message that he'd arrived at the hotel two minutes later.
12Beyond the remarkable similarity in location and direction of travel for both phones on the day in question, a second point emerges from the phone records – there is direct connection between the seized Chheda phone and the suspect phone. While there was no contact between the two phones on the day Mr. Chheda was arrested, on September 7, 2016 the suspect phone sent the seized Chheda phone two text messages.
13The defence is based largely upon a third point shown in the records. At 1906 the seized Chheda phone connected with a tower in Stoney Creek. At 1851 the suspect phone connected with a tower in Oakville and at 1908 it connected with a tower in Etobicoke. By 1937 both phones were in the Highway 7 and 400 area. The Chheda seized phone's use of the Stoney Creek tower at 1906 was the only time when the two phones appear to be in different locations, but the distance between the towers accessed at that time is significant.
14The defence submits that the seized phone in Mr. Chheda's vehicle was on the other side of Hamilton when the suspect phone was in the Etobicoke area. Despite all of the other similarities in location before and after that instance, the phones were at two different spots at that time so must have been used by two different people. The defence doesn't have to explain the other circumstances or even why the accused ultimately went to the hotel room door. If he was in Stoney Creek while the suspect negotiated with the officer from Etobicoke, the text conversation on which the prosecution is based cannot reasonably be attributed to him.
15The evidence shows the two phones used different networks with different towers so some variation in location results from that fact. As both phone company representatives explained, the line of sight to the nearest tower for each company will vary with the terrain and other factors so the location of towers used may vary on that basis. Both witnesses testified that proximity to a large body of water may also affect tower selection.
16Once the suspect was negotiating with the officer, few messages were sent from the seized phone. That makes tracking its location and direction of travel somewhat more difficult than the busier suspect phone. The seized phone sent a message at 1806 from the Jones Road area in Stoney Creek and another at 1836. There was no further connection by that phone until 1906 when it re-connected with the same tower it last used. By 1937 it connected with a cell tower at Highway 7 and 400 in Vaughan. As the defence points out, the suspect phone appears to be in a different place than the seized phone at 1908. However, if that's the case and Mr. Chheda was in Stoney Creek at that time, it's not plain how he could have travelled to the highway intersection in Vaughan in at most 31 minutes when it took the suspect phone closer to an hour to cover the same distance (1825 – 1917 with regular messages to a series of different towers in a consistent direction showing fact of travel throughout).
17Considering the evidence as a whole, I find the Crown has proved the tower selection by the Chheda seized phone at 1906 is an anomaly likely explained by the fact of proximity to Lake Ontario along the QEW highway. Both phones were otherwise in similar locations that day. The times and direction of travel of both phones that day is highly distinctive and inconsistent with the general travel of persons commuting to work or attending an event. Both phones ended up at a particular location in Markham far from the accused's home but proximate to the hotel where the suspect arranged to meet the girls. The suspect was asked to purchase hot chocolate from Tim Hortons and he sent a text message confirming that he made that purchase. The suspect confirmed his arrival at the hotel and was given a room number. Minutes later Mr. Chheda knocked on the door of that room. He had with him the two hot chocolates for the girls as agreed and cash money sufficient to complete the transaction he had arranged.
18The evidence as a whole reasonably points to only one conclusion – Mr. Chheda was the "suspect" person who arranged to purchase sex from two young girls. To make those arrangements he didn't use the phone registered with his family name and address but instead used a second pre-paid phone which did not provide that identifying information. The two phones belonged to Mr. Chheda and that's why they had been in direct contact on an earlier date. The suspect phone was never located because police stopped their vehicle search once they found the first phone. Even considering the one anomalous transmission cited by the defence, that circumstance was explained and otherwise could not reasonably leave a reasonable doubt on the whole of the evidence. I can find no evidence or circumstance that reasonably could leave a doubt. I find the Crown has proved that the accused was in possession of the "suspect phone" and that he sent and received the text messages set out in Exhibit 6 which form the basis of the offences.
Conclusion
19On the two s.172.1(2) child luring offences alleged in counts 1 and 2, the statutory presumption regarding belief in age has been struck down – R v Morrison 2017 ONCA 582 leave granted December 14, 2017 [2017] SCCA No 290. In this case the Crown must prove that the accused communicated with a person under the age of 16 years for the purpose of facilitating an offence under s.286.1(2) (child prostitution) with respect to that person. The accused is required to take reasonable steps to ascertain the age of the person – s.172.1(4). The s.286.1(2) child prostitution offence referred to in count 3 also contains a reasonable steps restriction in s.150.1(5). With respect to counts 4 and 5 there is a reasonable steps requirement in s.172.2.
20The evidence shows Mr. Chheda sought to purchase sex from a person with the youngest possible age permitted on the website he used. He was told the person he was making arrangements with and her friend were 14 years of age and he didn't question that statement. He plainly believed that he was speaking to a young girl of high school age as he counselled her not to post a photo with her high school logo on the t-shirt to protect her privacy. He agreed to wait until another person booked a room for the girls, another indication that they were underage as they could not book their own room. The evidence shows Mr. Chheda believed the girls were 14 and took no further steps in that regard because he was unconcerned with their age.
21Considering all of the evidence, I find that the Crown has proved all five counts alleged beyond a reasonable doubt.
Delivered: May 11, 2018.
Justice Joseph F. Kenkel