Ontario Court of Justice

Date: 2019-04-18 Court File No.: Newmarket 17-02512

Between:

Her Majesty the Queen

— and —

Hari Bhaskar

Judgment

Evidence and submissions heard: April 2, 3, 2019

Delivered: April 18, 2019

Counsel:

• Mr. Thompson Hamilton, counsel for the Crown
• Mr. Joseph Neuberger, counsel for the defendant

KENKEL J.:

Introduction

1Mr. Bhaskar went to a hotel room in Markham to complete a transaction arranged online. When the door opened he was arrested by a York Regional Police officer. The officer was working with the Internet Child Exploitation Unit as part of "Project Raphael" which targeted online child prostitution in the place it was occurring at the time – the Backpage.com website. Mr. Bhaskar was charged with six offences contrary to sections 172.1, 172.2 and 286.1 of the Criminal Code.

2The sole issue in this trial is knowledge – has the Crown proved beyond a reasonable doubt that the accused believed or was wilfully blind to the fact that the person he was dealing with was under 16 years of age – R v Morrison 2019 SCC 15. Proof of mere recklessness is not sufficient.

3The defence submits that the accused's testimony along with the phone records show the accused was likely confused that evening given multiple conversations and technical problems with his phone. His evidence that he tried to avoid the conversation where the officer mentioned a young girl and thought he was making arrangements pursuant to a different ad is credible. The Crown has not proved the accused had the necessary intent on any of the counts. The Crown submits that the accused's evidence must be rejected and on the whole of the evidence the court should find guilt on each count as alleged.

Analysis

4Mr. Bhaskar testified that on March 27, 2017 he was looking for a prostitute on the Backpage website. He understood that the minimum age to advertise on that site was 18. He responded to the officer's ad, but he also phoned and texted other numbers from other ads on the same website. He continued the text conversation with the officer but was driving at the time. At one point he thought the officer's texts had come from another ad number that also began with 289, the number he'd just phoned. While driving he experienced several problems with his phone and text messages. He deleted messages that referred to young persons as he was interested only in adults. He carried on several communications at the same time. Eventually he made arrangements with the officer, but he didn't relate that conversation to the earlier one where he deleted references to persons being underage. He thought he was conversing with a similar number with no such references. The phone problems caused messages to appear truncated and distorted at times. When he sent the response "K" to the officer he wasn't agreeing to an earlier statement about age, but was sending a prompt, as in okay, what next? At the hotel he asked one of the prostitutes to come down and meet him as he was afraid of getting robbed or arrested.

5In a careful cross-examination, Mr. Hamilton showed there were significant problems with Mr. Bhaskar's evidence. While the first three digits of two of the phone numbers were the same, the remaining numbers were different so that is not a strong reason to mix up the two conversations. The evidence shows that each text conversation would have occurred in a different window. The accused's text conversation with the officer is responsive. In his initial statement to the police he denied receiving a conversation that referred to a person being underage, but at trial he admitted he received such a message and deleted it. The accused's memory appeared selective, as he recalled specific details about each time his phone software failed but he could not recall general details such as where he went when he was driving around the area. He couldn't explain why he was driving aimlessly when it would have been easier for him to stop and complete his text arrangements. The lack of an explanation for the driving is important as it goes to one of the central reasons why the accused says he was confused. The Crown submits that the accused Googled the officer's number and asked about a "sting" not because he was a wary purchaser new to the sex trade, but because he had made arrangements to purchase sex from two girls he believed to be 14.

6Considering the evidence at trial as a whole, I agree with the Crown that the accused's account did not survive cross-examination. Mr. Bhaskar's evidence was illogical and incredible on numerous points. I find I cannot accept his testimony as true in the context of all of the evidence.

7Some elements of Mr. Bhaskar's evidence do find support though in the phone records. The fact that Mr. Bhaskar responded to a number of ads and communicated with several parties at the same time is confirmed. The accused's testimony that he had problems with his phone to the point where some messages were garbled or truncated appears consistent with some limited portions of the text records. The accused's testimony that he uses "k" in texts not to indicate agreement, which is the current common meaning, but to prompt as to the next step finds some support in his "k" message he sent on arrival to the hotel which appears to have that meaning. The conversation with the officer about age isn't direct. The accused responds with a vague"k" then there's a gap in time during which he's carrying on other communications.

8The accused's exchange with the officer lasted almost an hour and 20 minutes. Over that time he was responding to several ads and it appears he did have difficulties with his phone. While I agree with the Crown that the text conversation with the officer is responsive and does not itself show confusion, the fact of multiple conversations along with deletions of messages that referred to age and difficulties with the phone all may reasonably have led to an inability to directly track the flow of each conversation. Considering all of the evidence, I agree with the Crown that the accused's testimony cannot be accepted as generally credible and does not itself leave a reasonable doubt. However, on the whole of the evidence I find the accused's explanation that he confused conversations is reasonably possible and therefore a doubt remains.

Conclusion

9The Crown has not proved the charges alleged beyond a reasonable doubt. The charges are dismissed.

10I wish to thank both Mr. Neuberger and Mr. Hamilton for a very focused trial and very helpful submissions.

Delivered: April 18, 2019.