His Majesty The King v. Mark Stordy, 2022 ONCJ 539
DATE: November 22, 2022 ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
MARK STORDY
Before: Justice Berg November 22, 2022
Judgement
Counsel: F. Dulude, for the Crown M. Day, J. Coulter, for the accused
1It is alleged that Mark Stordy committed two offences both said to have occurred between November 18, 2018 and January 15, 2019 at the City of Ottawa. Count 1 alleges that he did agree or make an arrangement to commit an offence of sexual assault with respect to a person he believed to be under the age of 16 years by agreeing to engage in a sexual act with a person he believed was an 11-year-old female. The charging section for this offence is s. 172.2(1)(b) Criminal Code. Count 2 is the same charge, however, it is alleged that the person in question was someone whom he believed to be a 7-year-old female. The Crown has elected to proceed by way of indictment.
2The relevant portions of s. 172.2(1)(b) read as follows:
172.2 (1) Every person commits an offence who, by a means of telecommunication, agrees with a person, or makes an arrangement with a person, to commit an offence
(b) under section 151 or 152, subsection 160(3) or 173(2) or section 271, 272, 273 or 280 with respect to another person who is, or who the accused believes is, under the age of 16 years;
(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 18, 16 or 14 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.
(5) It is not a defence to a charge under paragraph (1)(a), (b) or (c)
(a) that the person with whom the accused agreed or made an arrangement was a peace officer or a person acting under the direction of a peace officer; or
(b) that, if the person with whom the accused agreed or made an arrangement was a peace officer or a person acting under the direction of a peace officer, the person referred to in paragraph (1)(a), (b) or (c) did not exist.
The Evidence
3Police forces throughout the world patrol the internet seeking to identify persons who wish to engage in sexual relationships with children. Many countries have legislation criminalizing the behaviours that are prohibited by s. 172.2 and s. 172.1 of Criminal Code of Canada. Thus, it came to pass that Megan Kline, a special agent of the FBI who was working out of their office in Kansas City, Missouri came to be in a public chatroom on the KIK internet platform on November 18, 2018. For obvious reasons, she did not identify herself as an FBI agent. Rather, she adopted the username of crystal_charm and utilized the screen name of mama2girls. The chatroom in question, named “Daddy and Little”, had come up during the course of an earlier FBI investigation. She had been covering it frequently since then. It was her evidence that her task was to identify people who were looking to travel to meet up with a child for a sexual purpose or to possibly identify a child in danger. The persona that she was portraying was a 30 year-old mother with two daughters aged 11 and 7 years.
4One of the functions on the KIK platform allowed participants in that chatroom to send private text messages to another participant. On November 18, Ms. Kline received a message by this means from someone using the username “Hiscleverusername”. The defence has admitted that the person hiding behind that username at all material times was the accused before me, Mr. Stordy. Over the next several weeks, Mr. Stordy communicated with Mama2girls by text and on one occasion through a telephone conversation. The Crown’s case relies almost entirely on these communications.
5Mr. Stordy’s opening gambit on the morning of November 18, 2018 was “Hi cutie” and then, three minutes later “How old are you and your girls?”. That evening, he sent a message stating “Baby I’m a sexy Daddy”. The next morning, he sent another message” “I want to play with you and your girls” accompanied by an emoji. I pause to note that I will not be making any further reference to any of the emojis in the messages sent by either Mr. Stordy or Ms. Kline. The words can speak for themselves. Returning to the narrative, the exhibit contains three other messages from Mr. Stordy dating to December 6. From these messages, it becomes clear that Agent Kline had been answering Mr. Stordy, however, those messages were not preserved. The first message that we see from the agent dates to December 6 at 13:59 hrs. and states “i am 30. they r 11 and 7. the younger is not experienced yet.” Mr. Stordy’s subsequent messages express a clear interest in things sexual including sexual activity with at least the older daughter. For example, Messages 14 and 15 from December 6 at 14:18 hrs. have Mr. Stordy asking “What level is your oldest at?” and the FBI agent responding with “oral”. A few minutes later (Messages 20 and 21), Mr. Stordy states “Mmmmm and I want to lick her and you together. OMG I’d be in heaven tasting both my babies. Just don’t moan too loud or your youngest will wonder LoL”. A couple of minutes later, he states “Ugh just the thought of cuddling with you naked and having your girls with us makes me so excited” (Message 23).
6I have no intention of reviewing here the entire corpus of communications. Suffice it to say that it is clear that the ongoing discussion is about Mr. Stordy engaging in sexual activity with the fictitious mother and one or both of her children. He explains in graphic terms on multiple days which acts he would like to perform with them. Mr. Stordy does not take a position otherwise at this trial as to the sexual nature of the communications. As we shall discuss later on, it was his evidence that he was doing a private investigation on his own to identify a parent engaged in putting their own child in danger of being sexually abused. He testified that it had been his intention, once he had identified such a parent, to notify the police. Given my comments to counsel during the submissions stage of this trial, it will hardly come as a surprise that I will be rejecting Mr. Stordy’s explanation; I do not believe it nor does it leave me with a reasonable doubt. Given that the sexual nature of the telecommunications has not been challenged and given that I will be rejecting Mr. Stordy’s defence, I will concentrate here on reviewing what I perceive to be the one live factual issue left for me to decide: has the Crown proven that the accused agreed with Agent Kline or made an arrangement with her to travel to meet the mother and the two girls. This will require me to refer to certain specific messages.
7The first discussion about such travel commences at 14:46 hrs. on December 6, 2018. Agent Kline asks Mr. Stordy (Message 38) “what do u do that allows u to travel to states a lot?” Ms. Kline testified that this question appears to be predicated on a message from the accused that is now missing. He responded to her query with (Message 39) “I own a communications firm. So I’m in the US for contracts.” A few minutes later, she asks (Message 52) “do u seriously think u would ever come down to kansas city?” He answered in message 53 a minute later, “I’m in St Louis often” followed by “Well I’ve been there 4 times”. Then at 14:55 hrs. (Message 57) he responds to a query from Ms. Kline as to how he travels to Kansas City with “Fly there and don’t normally have a car while there but can rent one to come see you see you girl”. In Message 66 at 15:05 hrs., he states “I hope to get a chance to go to MO soon!!”. There then followed over the next few minutes this exchange (Messages 67-79):
Agent Kline: seriously. when do u think the next time will be? Mr. Stordy: Won’t be before February for sure Mr. Stordy: Unless I get called by them to present for them Mr. Stordy: And if I do I’ll stay a week and have you meet me Agent Kline: that would be awesoem. do u mind if I ask: u married? Mr. Stordy: I’m not married. I have two young boys so would need to have someone watch them that long Agent Kline: gotcha. their mom around? Mr. Stordy: Yeah we are good friends. Mr. Stordy: She can help if I go see you. But would you meet me somewhere? Agent Kline: that’s really cool Agent Kline: i can meet u for sure. u can stay with us too Agent Kline: i would want to meet u alone without them first though Mr. Stordy: Of course, I want some time with just you to be honest
I note that for this decision, I have maintained the idiosyncratic spelling and grammar of the originals. The conversation then returned to the sexual theme. At one point (Message 95 at 15:32 hrs.), the agent provided Mr. Stordy with her telephone number saying (Message 96) “that’s me if u want to use it daddy”.
8There was some intermittent messaging over the next few days. Then, on December 10 at 09:55 hrs., Agent Kline responded to a greeting sent earlier that morning by Mr. Stordy who then sent a series of messages that would appear to be in the nature of a masturbatory fantasy (see Messages 112-127). Agent Kline plays along. At 10:07 hrs., she sends Message 130: “daddy, I dont want to wait until february to be with u!” We then see this exchange (Messages 131-141):
Mr. Stordy: Really?? Could you and the girls have me visit sooner? Mr. Stordy: I’d love to visit before Xmas to be honest Agent Kline: r u serious? for real? u can stay with us anytime!!! Mr. Stordy: I could for real? Like for a week? Mr. Stordy: I want to 69 with you and her sooooo badly. Its all I jerk off to now Mr. Stordy: Does mommy have a hot ass too? And does it need a tongue wiggling deep inside it? Agent Kline: you should definitely come experience for yourself!! Agent Kline: in all seriousness, i am not working at all the week before christmas or the entire Christmas week. Agent Kline: plus the girls would be home from school Mr. Stordy: You sure Addy would be into me? I want you both. It’s my biggest kink. Mr. Stordy: What does she enjoy most? I could likely meet the week before Xmas. Maybe for 3-4 days?
The conversation then continues for a few minutes on the more general topic of sex. At 10:28 hrs., Agent Kline attempts to get Mr. Stordy to commit to travel (Message 159-160):
Agent Kline: woudl u drive here or fly? Mr. Stordy: Fly. It’s way faster
However, Mr. Stordy is not to be sidetracked and returns to the topic of specific sex acts within seconds. This goes on for several minutes.
9However, Agent Kline is nothing if not persistent. She tries again to get Mr. Stordy to commit to travel. At 10:46 hrs., she writes (Message 187) “seriously. i dont want this to be a fantasy. it is very important to me”. Messages 188-192 follow:
Mr. Stordy: Same for me. It’s my ultimate desire. And I’m so blessed to have found you. Agent Kline: cause if u r really serious, then i need to start working both of them now. talking about u, showing pictures, etc Agent Kline: what is your name daddy? Mr. Stordy: I am 1000000% serious. I mean it. Mr. Stordy: My name is Ryan
At 11:11 hrs., Ms. Kline gets Mr. Stordy to discuss travel arrangements in a more concrete fashion (Messages 207-210):
Agent Kline: u should be making your travek arrangements Mr. Stordy: You really mean it? Because I will then
There is a pause of perhaps two minutes, then
Mr. Stordy: It’s $370 return! That’s cheap. But that’s after Xmas [sad-faced emoji] Agent Kline: of course i mean it!
10The conversation continues with the topic turning to the ‘fact’ that one of the girls’ bathing suit has worn out. This is a perfect segue for Agent Kline to raise the issue of Mr. Stordy purchasing a gift for the child, a swim suit (Messages 231-235):
Agent Kline: maybe that would be a great xmas gift Mr. Stordy: Yes. A lil tiny cute one daddy can touch her through. Agent Kline: u should pick it out. She woudl love that. Mr. Stordy: Mmmm really? What does she like for color? Agent Kline: heading to lunch with my boss. go make your travel plans and let me know what u come up with. i can call u later if you give me your number.
Mr. Stordy does provide his telephone number and asks Agent Kline for her name; ‘Kristy Stevens’, she responds. The sessions ends at 12:19 hrs. At 14:11 hrs., Agent Kline reaches out to the accused, ostensibly after her lunch meeting, and the conversation recommences. She talks about the possibility of Mr. Stordy visiting during Christmas. Then the conversation seems to stop for the day at 20:38 hrs.
11While there is intermittent communication over the next couple of days, the next messages relevant to the present discussion are 297 and 298 dating to December 13. Agent Kline asks “im guessing that is why it will be hard for you to get here anytime soon.” Mr. Stordy responds with “Not really. Their mom can watch them while I come see you and Addy!”. He then returns to the main subject at hand: sex. Ms. Kline soon brings the conversation back to the topic of travel at 12:01 hrs. (Messages 316-320):
Agent Kline: well i guess we will see how serious you really are Mr. Stordy: I’m so serious. Like I ache to have you both as my baby girls. Mr. Stordy: If you haven’t a preference of exactly when apart from Xmas then I’ll book this weekend and let you know. How long would you permit me there? Agent Kline: oh daddy! that would be awesome! i really dont care how long you r here! seriously.
This conversation continues and Mr. Stordy ends up sending a picture of himself to Agent Kline (Message 329 at 12:21 hrs.). Just after this, we see the following exchange (Messages 330-345):
Agent Kline: i like it. I can’t wait til u book that ticket so I can allow myself to get excited!! Mr. Stordy: Mmmm can I now?? Mr. Stordy: I’ll book it now if you’re super serious!! Mr. Stordy: I’ll admit I’m super nervous but more excited Agent Kline: thats the best Agent Kline: and yes, im dead serious. Mr. Stordy: Before I book could we have a phone chat? Mr. Stordy: It would set my mind at ease as there are so many fakes out there and I be been cat fished Agent Kline: oh course! im going to grab food in a bit and can break away from everyone. u busy in about 15 min? or later? Mr. Stordy: Not at all! That works, just message me when you want daddy to call Mr. Stordy: It’s been 40
Agent Kline then called Mr. Stordy a few minutes later.
12The telephone conversation includes general discussion of Mr. Stordy meeting the fictitious girls. For example,
Agent Kline: (Laughs) So it’s just, I don’t know. Um, but that’s kind of where I’m at with that. I just don’t, uh, and I know … like it sucks, because you are so far away. So, there’s this part I’m like, “Okay, he’s smoking hot, but is he for real? And how much access …? Like, would he really be able to come down?” because I, I do want you to be able to come down, you know, and, um, be a part of our life. Even if it’s just like, you know, every other month or whenever work (inaudible) has, (inaudible) go, you know, longer than that in-between times. Once we get that initial like (laughs) over with, then I think it would be nice. Mr. Stordy: Right. Agent Kline: I don’t know, what are your thoughts? Mr. Stordy: Yeah, I agree. Agent Kline: (inaudible). Mr. Stordy: I think it would be good. It would be fun. Agent Kline: Would you be able to make …? I mean, is that really possible? Like that’s, that’s what (inaudible) to. Mr. Stordy: Well, at this, like right now as it is, yes, but I have, I have been applying at a bunch of jobs and they might change my lifestyle a bit, like in terms of being able to travel, which will suck, like I mean for jobs. Agent Kline: Mm-hm. Mr. Stordy: But I’d still be able to do it, like on a personal level for, like on my own on the weekend or something. But … Agent Kline: Yeah. Oh, perfect! So … Mr. Stordy: Yeah. Agent Kline: … just go get a job in the United States, right? (Laughs). Mr. Stordy: (Laughs) Yeah, right. (Laughs).
And a bit later during the call,
Agent Kline: So, well, just let me know … Mr. Stordy: (Laughs). Agent Kline: Seriously, I want to … Mr. Stordy: Yeah, I will. Agent Kline: … look at the tickets. I want to know, like, if I need to block out some time, (inaudible) I will, I’m, I am very flexible, huh. So. Mr. Stordy: Well, I’ll put that to the test. Agent Kline: Uh … Mr. Stordy: Oh, you mean, uh, time-wise?
Mr. Stordy then a bit later in the call states
Mr. Stordy: Well, I can’t, I can’t (inaudible) why I have been looking at d… at deals, so and I, I’m just waiting for my buddy. He works, well, he works for a company that gets deals through an agency for flights, and I don’t really want to do this through a work thing, so … Agent Kline: Uh, (inaudible). Mr. Stordy: … I’ve been talking to him … Agent Kline: (inaudible). Mr. Stordy: so maybe he can get me a deal. So. Agent Kline: Oh. (inaudible). Mr. Stordy: I will definitely let you know and I’ll text you and tell you.
13There are then further text conversations over the following days. Relevant to the issue before me is part of one on December 16 and 17 (Messages 374-380):
Mr. Stordy: I can’t wait to see her. And you. Agent Kline: ohhh really? is there a time frame on that yet? Mr. Stordy: I’m starting a new job Jan 7 th do definitely before that. Agent Kline: shut up! that is rigth around the corner!!!! Agent Kline: congrats on the new job by the way!!! Mr. Stordy: it’s very soon. But I need my lil baby girls. Mr. Stordy: I can’t get too excited but I’m shopping and planning the trip
14On December 18 at 07:00 hrs., Agent Kline asked “so why are you still waiting to book your trip?”. The defendant responded a minute later with “Work. Family.” Later that day, there was the following exchange (Messages 400-404):
Agent Kline: so r u not working at all until jan 7? Mr. Stordy: Nope. Well not really. What I need to do I can do with my phone. LoL Agent Kline: nice!!! Agent Kline: are plane tickets outrageous? Mr. Stordy: Not at all. Under $500 return
15That evening there were further messages (416-422) relevant to the issue of travel.
Mr. Stordy: I want to be with you. Agent Kline: … well thats up to you …isnt it daddy? Agent Kline: sweet dreams baby. turning off phone cause its dying. i hope you surprise me tomorrow with some definite travel dates Mr. Stordy: Okay baby girl. Sleep well! And I’m hoping I surprise you too!
16Communication recommenced in the early afternoon. During that exchange, Ms. Kline stated “daddy …. You know im waiting” and Messages 434-461 continue that discussion:
Mr. Stordy: I know baby. I have it worked out. Agent Kline: ?????? Mr. Stordy: Yep. Have time line figured if you can have me just after Xmas. On the 27th? Agent Kline: yes! are u for real? for how long? Agent Kline: thats in like 8 days!!!!! Mr. Stordy: I can stay for at least 5. It’s an open ended return as long as I book 48 hrs in advance Mr. Stordy: But it’s entirely up to you baby. Agent Kline: what? that is a thing????? Agent Kline: thats awesome! clearly your friend has a hook up!! Agent Kline: hahah. Agent Kline: we would love to have you all 5 days! Agent Kline: so are you booked??? for sure??? Mr. Stordy: No I have to email Steve and tell him to go ahead. So it’s good? Mr. Stordy: Okay. You’re sure right? Agent Kline: my heart is pounding im so excited Agent Kline: are u sure????? Mr. Stordy: Yes!!! I can’t wait to see you! And yes I’m sure. Agent Kline: omg!!!!! i cant wait to tell the girls!!!! Mr. Stordy: Do you think they’ll be excited? Agent Kline: um definitely! we will have so much fun! Agent Kline: no school, no work, no worries!!! Mr. Stordy: Mmmmm I hope so!! Agent Kline: what should we buy you for Christmas???? Mr. Stordy: You and Addy in thongs? Mr. Stordy:LoL Agent Kline: haha. how about that’s what u get us!!!
She then provides Mr. Stordy with Addy’s size in children’s clothing. A bit later (Messages 476-478) at 14:56 hrs.,
Agent Kline: you better send me a screenshot of your actual flight when u get it! it would be so hard to tell the girls it’s not true Mr. Stordy: Yes don’t say anything until I have it please. Mr. Stordy: I’m anxiously waiting for him to send it but he’s not replying now!
At 19:00 hrs., Ms. Kline reaches out again to the accused who answers (Message 480) “I still haven’t heard back but he said it was all good. Ugh.”
17Their discussion continues the next day (December 20 – Messages 487-498).
Mr. Stordy: Do you think I could see pics of you and Addy together sometime before I come? Mr. Stordy: I understand if you don’t want to. Agent Kline: i would but ive been played before. i still don’t really believe that you are truly coming yet. but when I believe it, i will consider sending. it is really risky though! huge trust Mr. Stordy: I think I have more to be trusting of than you. Traveling to another country to do this. Mr. Stordy: That’s why I’ve been reluctant to share trip details too much. I have trust issues. Mr. Stordy: You may not have any kids at all. And I may be a fool. Mr. Stordy: I’m not here to collect pics. I’m here to meet someone who can help with this. That’s all. Agent Kline: i get that but obviously i am real and there would be no reason the girls arent. once I know you have trip details, ill give you something to make you happy Mr. Stordy: It’s non refundable. Mr. Stordy: It’s a lot for me to lose out on with trusting someone I’ve spoken to once. Yes you’re real...but that’s all I know. And I have had someone [cat] cat fish me before so badly. Agent Kline: we’ll get there. Mr. Stordy: Okay but then maybe I’ll postpone for now.
18The following communications turns into a spat between Mr. Stordy and the personage played by the FBI agent. At one point (Messages 508-510), he writes “Think it’s funny wasting my time and making me book a fucking trip?!” followed by “Sure you made it all up too” and then “Thanks a lot. Appreciate it. Wow. Glad I didn’t believe you and fly there.” Agent Kline asks why he is so angry and he responds (Message 515) “Yes I’m angry. When I’m planning on seeing you and you act so flighty. It doesn’t instil confidence.” The conversation continues and at Message 518, Mr. Stordy explains “I asked for one of you with Addy. Not your girls. So I know you’re legit. It’s fine. If we have this sort of trust barrier, it’s [not] likely not a good idea to meet yet. We have some work to do before that happens.”
19The next day, December 21, Mr. Stordy reaches out several times to Ms. Kline but is met with radio silence. He persists on the 22 nd and she responds. By December 23, Mr. Stordy is back talking dirty, to use an old fashioned term, to her. There is some desultory conversation over the next few days. On December 26, Agent Kline mentions that he should have purchased the ticket to come to see her. Mr. Stordy does not reply to this. A couple of hours later, she sends Message 572: “so let me ask you this, be honest with me: where do u see this going? you are starting a new job so i don’t see there being any flexibility in your schedule anytime soon” and then Messages 573-580:
Mr. Stordy: My new job will still be traveling Mr. Stordy: But if you feel it’s not gonna happen and want to move on then I get it. Agent Kline: yeah, im just not super into sexting just for shits and giggles. its different if i have already experienced the person i am texting but its lame when u don’t really know how the other person truly is. Mr. Stordy: I didn’t think it was for shits and giggles. But that’s fine. Mr. Stordy: Don’t want to be lame. Good luck with your shit then. Bye. Agent Kline: bye babe. if u ever have to come to the midwest hit me up. if the stars align, then maybe... Mr. Stordy: Nah. I’m good. You seem too flighty for me. Mr. Stordy: And I said before I’m not making any plans until I know it’s all legit.
And a bit later (Messages 583 and 584):
Mr. Stordy: You’re the talker. You think I anyone in their right mind will get on a plane here I meet some random stranger to fuck her and her invisible daughter? Mr. Stordy: I wanted to get to know you, you call it lame. Lame is expecting me to spend my limited free time on a whim and belief you’re real.
20On New Year’s Eve, Mr. Stordy reached out to Agent Kline (Messages 589 and 590) “Why do I miss you?” and “You’re all gone.” She responds briefly on January 2. The conversation starts up again on January 3 but quickly breaks down in recriminations. Silence for a few days and then on January 4, Mr. Stordy sends Message 610: “You know you want me”. However, nothing more is achieved over the next couple of days except an argument.
21Part B of Exhibit 1 is another series of textual communications between Agent Kline and the accused dating from January 10 to 15, 2019. For some reason, they also are numbered commencing from 1 as are those found in Part A of the same exhibit. Message 1 finds us in the middle of the on-going argument about Mr. Stordy wanting to see pictures of the person whom Agent Kline is pretending to be and her older daughter. Mr. Stordy threatens to go to the police if she does not provide him with said photographs. He states at Message 46 (January 10 at 17:09 hrs.) “I know you are the sick fuck. And you’re IP and MAC address will be reported to KC police. Good luck.”
22At 17:013 hrs., Agent Kline, for a reason that is not at all clear to me, refers to him by his real name “bye mark” even though he has not used that once during their communications (Message 50). He responds (Message 52) “And my name isn’t Mark” at 17:22 hrs. There is then a string of messages (53-60) where Mr. Stordy remonstrates with the agent. The significance of her having used his real name seems to have escaped Mr. Stordy, however, as the next day, he starts once again trying to have her talk to him and seemingly threatens that if she does not, he will send the “entire conversation” etc., to the authorities. This goes on for the entire day and into the 12th (Messages 62- 75). Finally, at 14:41 hrs. on the 12 th , the agent responds: Messages 79-82).
Agent Kline: you just spent the day telling how awful of a person i was. how is you coming to see me even still on the radar? if you seriously even want to talk on a real level, why don’t you start with an apology? Mr. Stordy: You realize I had booked. And only wanted confirmation. Agent Kline: and i only wanted confirmation you were actually coming before sending.
23There are more recriminations and then at 18:44 hrs. (Message 104) Mr. Stordy writes “Good luck with the cops” and some related sentiments including Messages 119-122:
Mr. Stordy: Have you any idea how fucked you’re going to be? Child molestation is a serious crime. Mr. Stordy: Tick tock. Best do what I ask Mr. Stordy: Listen to Daddy. Or be in huge trouble. Mr. Stordy: KC Police already knew.
Despite the fact that Ms. Kline does not respond to this, Mr. Stordy continues sending messages on January 13, 14, and 15. These messages appear to reflect yet again, Mr. Stordy’s masturbatory fantasy. His last message (133) is on the 15 th at 13:19 hrs. Mr. Stordy was arrested at his home on January 29.
24Agent Kline’s viva voce evidence was largely a commentary on the text messages and other communications between her and Mr. Stordy. Some of her testimony, however, had a wider relevance. In particular, when she was asked in chief to explain her thoughts earlier on during the correspondence with the accused, she stated “So, keep in mind, in terms – you will - you will find in these chatrooms like Daddy and little is that, again, there, there is the element of, of roleplay, and a lot of my job is to figure out are we roleplay... – I, I will engage in the roleplay.” The agent was clearer a bit later during her testimony when she told the Court “Again, the technique that is utilized to put out there of overcoming obstacles, of, you know, weeding out if this is fantasy play or not and again bring it back to reality, make sure we’re on the same pages, are we gonna sit here and just text back and forth or is this for real?”
25Sergeant Doug Rees of the OPP Child Sexual Exploitation Unit also testified at this trial. He recounted how he was contacted by Ms. Kline and what he did leading ultimately to the execution of a search warrant on the home of Mr. Stordy and his arrest on the present charges.
26I turn now to the evidence of Mr. Stordy himself as he testified in his defence. He has been in a common-law relationship for roughly 30 years. They have two boys, 10 and 13 years of age. He is and was responsible for their day-to-day care, being a stay-at home-father, with his wife being the sole breadwinner. Mr. Stordy testified that his bank account was shared with his wife. He was not employed and did not have any prospects of work at the material time. Any reference to employment in the communications, he testified, was fictitious. He does not know a travel agent named ‘Steve”; he made up the existence of the travel agent so as to be able to continue the conversation with Ms. Kline. Likewise, he provided the agent with his own picture so as to be able to continue. He never had any intention of travelling to meet Ms. Kline and her girls.
27He was involved with an on-line community interested in discussing sexual fetishes. A significant portion of his evidence in chief dealt with events that he says occurred within that community. I do not need to decide whether I accept that part of his evidence or not to come to a conclusion on whether I believe the defence evidence or am left with a reasonable doubt by it.
28Mr. Stordy testified that the reason he was in communication with the woman who turned out to be an FBI agent was two-fold.
I hadn’t really — going in, my initial thought, I hadn’t really — I didn’t have an agenda. I more — my first thought was I want to find out, first and foremost, if it was someone that was causing our groups to be continually reported and disbanded. That’s — that’s the one. So secondary to that, as you had mentioned, if I had found out that this was a real individual and that was their real intentions, of — of doing harm to children of their own, I would report it to someone close to me that has ties to — to the police. I have, as I mentioned earlier, about four different avenues for that, if not five, including my own spouse, who works for, at the very least, Canada Border Services. More probably what I would have been doing directly is contacting my mom, because she has past ties to RCMP, she’s still friends with many members of them. She would probably — or we would both then bring it to my uncle, who is mentioned — as I mentioned, a former RCMP member as well.
Important to the theory of the defence is Mr. Stordy’s evidence about his familial connections to law enforcement. He further explained that his wife has worked for Canada Border Services since 2005. His mother, now retired, worked for the RCMP and for CSIS. Two uncles are retired RCMP members. A cousin, now deceased, held the rank of acting superintendent with the RCMP.
29He was asked in chief why he did not contact the police about the woman and her two daughters when he first started his correspondence with her. His initial response was “That’s a good question. I definitely asked that of myself …”. He then continued by saying
I asked myself that, and I would have to say at this point, I was conditioned to believe that if — if you didn’t provide a live picture to me, as I mentioned earlier, you’re not a real person to me on – on this platform. I didn’t think I would have enough information of someone just saying this is what I do on the internet. They’re not a real person to me at this point, so I honestly didn’t think the police would — I had a history, as well, of interaction with the police in my own life, having made complaints to them. One comes to mind where I had some teenagers next to me. I live at an end unit townhouse, and there’s a dumpster that’s not too far from our — our house, and I had made a complaint to police, and they said, well, do you have any evidence of this happening, because the kids had already moved away, that they were urinating on the dumpster. And it happened repeatedly and it annoyed me and my wife quite a bit. So I made a complaint — complaint to the police, and they — the first thing they asked was do you have any evidence of this, do you have pictures, did you take pictures of it, which I didn’t think would be something you could do of people urinating. But nonetheless, I had no — no evidence of this occurrence, and much like this, I have no evidence at this point, other than someone saying what they’re interested in, so I didn’t feel comfortable going to the police, that anything would amount to it at this — at this juncture, at this early on in the conversation.
Of course, this ignores the fact that he would have had some evidence, to wit: the textual communications themselves as well as any further correspondence that the police could have witnessed if they had been called in to investigate by Mr. Stordy.
30Why did he not record the telephone conversation that he had with Agent Kline? Remember, Mr. Stordy’s interactions with the agent were part of his plan to gather evidence and yet when asked whether he had recorded the call, he provided this convoluted answer:
I unfortunately didn’t. At the beginning of the conversation, there is a — I had the audio recording up to do so, I had it ready. I got sidetracked because she didn’t do it immediately, there was a lull in the conversation. I found out through her testimony the reason for that.
Q. Okay.
A. But during that time, I also got sidetracked, and I didn’t have any prior knowledge of how the app worked, I hadn’t tested it out, so when I did try to use it to capture it, there’s an audible noise on the recording, to which we are both aware of, and we were both — we both noticed it. And I’m not sure who questions it first, me or her, but we — you know, we’re — it was — it scared me enough to close the app and not attempt, because I wasn’t sure. You know, I’ve watched a lot of movies, unfortunately, and I — and courtroom shows as well, and I’ve seen like where certain apps being used, they would leave an audible trace to the other participant. And I wasn’t sure if that was happening, so I — I abandoned that idea in lieu of — you know, so that the conversation could occur, if — I was hoping that I didn’t scare her off with a beeping or any other tone that might be audible.
Mr. Stordy provided no further details as to this app ( e.g., its name).
31Mr. Stordy himself testified that what he says he was trying to achieve by his actions was an “insane venture”. The lack of logic to the story he was telling the court was clear even to him.
32Mr. Stordy displayed an unfortunate tendency to try to avoid answering questions directly when he did not like where the answers would take him. For example, during cross-examination, Mr. Dulude asked him “So do you agree, Mr. Stordy, that Kik was a sexual outlet for you?” I will here provide the exchange that followed.
A. I — to a certain extent, obviously, I participated in a — in a room and administered — I was an administrator of a room that was sexual in nature, yes.
Q. But not only that, right? It’s not only about being an administrator of a room of a sexual nature. We — we’ve reviewed as part of this trial, by my count, 751 messages between yourself and the person that would come to be known as Agent Kline, right?
A. Right.
Q. And that conversation, by my count, would have spanned a timeline between November the 18th to January the 29th, which would have been 72 days, right?
A. Okay.
Q. Do you agree?
A. That that’s the timeframe?
Q. And over the span of that timeframe, you have a conversation with this person, over which there are sexually graphic acts that are discussed, do you agree?
A. I agree.
Q. And so when I suggested to you that it was a sexual outlet for you, Mr. Stordy, I’m going to suggest to you now that that conversation is a prime example of you using Kik as a sexual outlet. Do you agree?
A. I do not.
Q. So you’re disagreeing with me, Mr. Stordy, in terms of you using Kik as a sexual outlet? Do you agree that you’re disagreeing?
A. No, I’m sorry, I misunderstood. If that was your — you had referenced this conversation in particular. You said I was using this conversation, not the application. So I — I need to determine which — which you mean. If you’re saying overall, I used this app as — for the sole purpose of speaking sexually to individuals, then I guess I’m disagreeing. I spoke probably mostly — I — my conversations day-to-day were bad jokes and cooking, what I had cooked during the day. And those were in the sexual groups, Mr. Dulude. So conversation, because I was in a — in a sexual group, I would say, you know, if I had to put a number to it, 70 percent of the time, the conversation is not sexual. It’s day-to-day activity with individuals.
Q. Mr. Stordy, were you or were you not administrator of a group called Ottawa Sexual?
A. I don’t — I can’t attest to the actual name, unfortunately. I know I testified yesterday that the word had a sexual connotation, it was Ottawa, meaning the location, so that we would — and something sexual, correct.
Q. Okay. So you agree that you were the administrator on Kik of a group...
A. Mmhmm.
Q. ... in which...
A. I do.
Q. ... there was a group, a local group, an Ottawa group, correct?
A. Correct.
Q. And there was a sexual connotation to that group?
A. I do agree to that.
Q. And the purpose of that group was to chat with people in a sexual way?
A. At times, yes. It wasn’t the predominant — like I mentioned, it’s not the predominant subject matter. It’s more to get — initially, what our intent was, we had observed that in groups early on that weren’t of a sexual nature, for instance, Ottawa Senators even, individuals would engage in sexual conversation.
Q. This group, Mr. Stordy, was not about the Ottawa Senators, correct?
A. Correct.
Q. It was not about cooking, correct?
A. It was not — oh, I don’t know what you — what you mean by it was not about. Could I get clarification of that, please. “About” meaning?
Q. You testified yesterday, Mr. Stordy, about you being an administrator of a group...
A. Mmhmm.
Q. ... which I understood was called Ottawa Sexual or something along those lines.
A. Okay.
Q. Do you remember that?
A. I agree with this.
Q. Okay. And do you agree that the purpose of that group was to chat with people about sex?
A. Initially, yes, I agree that that’s the — the stance I took in forming the group that I thought would attract what would inevitably would occur in groups, in the — in my experience, correct.
Mr. Stordy inflicted significant damage to his own credibility by his answers here and in other similar exchanges. He would deny the obvious, attempt to obfuscate the truth, and otherwise not answer questions directly during cross-examination.
33Mr. Stordy denied that his intention during the communications was that of role playing. He testified that “I’m not role playing because I have no interest in role playing with — about children, and I have no interest in discussing sexual acts and following them through about children, in any way, shape or form.” His graphic comments to the agent were all part of his plan.
34The end goal of the plan became, he told the Court, a notification to the police of the existence of this abusive mother. Yet he agreed with Mr. Dulude’s suggestion that he never did notify the authorities. The Crown then explored why he had not so acted.
A. That’s true, I did not report it. I didn’t feel comfortable doing it, because I wasn't going to divulge to my family that I’m using an app that I’m — I’m pretty much ashamed of using, that I’d have to go to, you know, someone in my family and explain what I was doing and make them believe it as well. I found it embarrassing that I was in this situation from — you know. That’s why my — you know, I didn’t — I had a disdain for social media, and suddenly I’m on social media. Like it was a lot to...
Q. What was...
A. ... to go to someone within my family and explain. I wasn’t suggesting that they wouldn’t believe me, but it was — it would have been difficult. That was, nonetheless, still — it would have been my intention.
Q. But what was embarrassing in that situation? You’ve described to us, you know, wanting to — to out this person.
A. Mmhmm.
Q. Right?
A. Yes.
Q. And so I’ll suggest that based on that evidence, there’s nothing embarrassing.
A. Well, that’s a matter of perspective, I think.
Q. Okay. Well, explain to us what you perceive as being embarrassing when you found — you said it was embarrassing that you were in this situation?
A. Yeah, it was. Basically, like I said, just being associated with the app was embarrassing. It was something I hid because I was such a proponent for not liking social media. It was also not a good use of my time, so I would have to explain, you know, what am I — what are you — it — there’s just a lot to explain, just in the basic, general bringing up the subject of why I’m on an app like that. There’s a lot to go — to explain and make people understand in my social circle.
Then why would he have engaged in this supposed investigation in the first place? His evidence makes no sense.
35A bit later on in the cross-examination, Mr. Dulude continued to explore the issue of Mr. Stordy’s embarrassment.
Q. Because there’s nothing embarrassing with telling police, you know, I’ve caught this creep, right?
A. There would be some questions, Mr. Dulude, from my perspective, I think. Just like I had questions about how — when I threatened an individual, and their — their retort is, well, don’t worry, I’ve already worked that out, I talked to someone. That — that made me a little bit suspicious, like what was said. Plus, this individual knew my name, what was said. Perhaps they spun it. So by all means, I mean, I agree with you, I absolutely agree with you. If I had a time that felt good in my gut, in my intuition, to do so, I probably would have marched myself down the — like down the hill from my house, where Ottawa Police were. I probably would have got to that point. But when, you know, someone tells you, when you’re berating them, and you’re threatening them with police, that they know your name and that don’t worry about it, like it — it’s concerning.
Q. Mr. Stordy, you’re not suggesting that you were concerned with Crystal Charms, right, that — that she was threatening you in any — in any way?
A. By all means, I am. I am absolutely telling you that.
Yet, as we have seen, Mr. Stordy continued his communications with the agent after she called him by name. He clearly was not concerned. In fact, soon after that, he threatened her with the police if she did not do what he wanted.
36Mr. Dulude had Mr. Stordy agree that contrary to what he testified to in court, he did not mention certain important elements to Detective Rees when he provided a statement after his arrest ( e.g., he did not tell the detective that he had learned of a woman trying to peddle her children on-line). He agreed that he never notified any police agency either through official or unofficial channels, be it in Canada or the United States.
Analysis
37I do not believe Mr. Stordy nor does his evidence leave me in a state of reasonable doubt. First of all, I have already remarked on the fact that the manner in which Mr. Stordy testified was such that I find he has no credibility in the eyes of this Court. Secondly, if indeed it had been his intention to notify the police, he had the opportunity to contact directly any number of police agencies. He could also have spoken to one of the family members whom he enumerated. Yet he never did so even when it seems that Ms. Kline called him out. His stated explanation for not so doing was, quite frankly, self-serving and ridiculous in the context of his own narrative. Moreover, If he is truly trying to investigate, why is he not saying an unqualified ‘Yes’ when FBI Agent Kline asks him about coming to see her? His answer during the telephone conversation was, as we have already seen
Well, at this, like right now as it is, yes, but I have, I have been applying at a bunch of jobs and they might change my lifestyle a bit, like in terms of being able to travel, which will suck, like I mean for jobs.
38Of course, this is not the end of my analysis. As instructed by the Supreme Court of Canada in R. v. W.D., [1991] 1 S.C.R. 742
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
My rejection of Mr. Stordy’s evidence and my finding that I am not left in a reasonable doubt by it dispose of the first two elements of the test. I turn now to the third.
39On the face of the evidence before me, it is clear that Mr. Stordy told Agent Kline that he was going to travel to the United States to meet her and the girls for a sexual purpose; I have reviewed that evidence earlier in this decision. There is no evidence independent of those communications with the FBI agent to show that Mr. Stordy actually did anything in furtherance of that stated intention. At its highest, I can infer that Mr. Stordy went on-line on December 10 while texting Ms. Kline and queried the price of a return ticket to Kansas City (Message 209). With respect to any other indication of travel plans, however, there is nothing to suggest that what Mr. Stordy told Ms. Kline had in fact happened. For example, with reference to Messages 434-450, there is nothing to suggest that ‘Steve’, the supposed travel agent friend, even exists let alone that Mr. Stordy actually contacted him to make travel arrangements. I am certainly not going to rely here on Mr. Stordy’s evidence to prove that ‘Steve’ exists or, for that matter, does not. Mr. Stordy has no credibility whatsoever, be it with reference to exculpatory or inculpatory evidence.
40The Crown has not called any evidence to show that anything that Mr. Stordy said or texted to the FBI agent about his employment, previous travel, or then current travel plans should be believed. It is to be remembered that Agent Kline was alive to the issue that her correspondent might actually just be roleplaying: “weeding out if this is fantasy play or not”. She was alert to the fact that Mr. Stordy might not be seeking to actually meet the mother and daughters but, rather, could be deriving some sexual satisfaction in merely communicating the possibility of such an endeavour and engaging in a detailed but theoretical discussion of what could occur should they actually meet.
41The caselaw reflects examples of evidence that has been found by the courts to reflect the presence of an intent to actually agree or enter into an arrangement to commit an enumerated offence. For example, R. v. Parks, 2019 ONCJ 947, R. v. Olynick, 2019 SKPC 16, R. v. Cooper, 2016 ONSC 6384, R. v. Vander Leeuw, 2019 ABQB 627 (showing up at an scheduled meeting and the discussions and actions leading to that meeting), R. v. Duplessis, 2018 ONCJ 910 (found to be in possession of items indicative of an intent to follow through with the agreement or arrangement). This is not to suggest that in every case, some evidence beyond the communications themselves is required to prove the requisite mens rea. In R. v. Freeman, 2018 ONCJ 742, for example, the accused did not show up for the arranged meeting. Rahman J. found, however, that despite the no-show, certain communications including the fact that he wanted to ensure that the ‘child’ would be home from school and that he requested the mother’s home address in a nearby community were sufficient in that case to establish the specific intent required by s. 172.2. An offer to book a hotel room was found to be sufficient in R. v. Butera, 2021 ONCJ 155 (see, too, R. v. Rodwell, [2016] O.J. No. 6842 (OCJ). See, as well, the discussion in R. v. Wilson, 2019 ONSC 3893 in the context of an attack on a search warrant).
42In the present case there is no evidence of any steps taken by Mr. Stordy beyond the communications. The communications themselves do not prove the specific intent to agree or make an arrangement beyond a reasonable doubt. Therefore, I find that while the Crown has proven that Mr. Stordy communicated with FBI Agent Kline and did discuss the possibility of travel to commit an enumerated offence or offences, the Crown has not proven beyond a reasonable doubt that Mr. Stordy had the intent to enter into an agreement or make an arrangement with the investigator to actually travel.
Conclusion
43I have rejected Mr. Stordy’s explanation as to why he was communicating with Agent Kline. There was no air of reality to his evidence; he was not credible. I have also found that the Crown has not proven beyond a reasonable doubt that Mr. Stordy had the intention required by s. 172.2. Given this lack of proven intent, I infer that Mr. Stordy was communicating with Agent Kline in order to engage in what I will here euphemistically refer to as fantasy roleplaying.
44It is to be kept in mind that there is an important distinction to be made between s. 172.1 and s. 172.2. Section 172.1 (1) reads “[e]very person commits an offence who, by a means of telecommunication, communicates with [a child for the specific purpose of committing an enumerated offence]” . The Ontario Court of Appeal in R. v. Alicandro, 2009 ONCA 133 at paragraph 36 has observed that
[t]he language of s. 172.1 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.
45This line of reasoning was continued by the Supreme Court of Canada in R. v. Legare, 2009 SCC 56. After adopting explicitly the above passage from Alicandro, Fish J., for the unanimous court stated at paragraphs 31 and 32,
[a]ccordingly, the content of the communication is not necessarily determinative: What matters is whether the evidence as a whole establishes beyond a reasonable doubt that the accused communicated by computer with an underage victim for the purpose of facilitating the commission of a specified secondary offence in respect of that victim.
The italicized words in the preceding paragraph, drawn textually from s. 172.1(1)(c), make clear that the intention of the accused must be determined subjectively . I agree in this regard with the Attorney General of Ontario. As Doherty J.A. stated in Alicandro , at para. 31 , the accused must be shown to have “engage[d] in the prohibited communication with the specific intent of facilitating the commission of one of the designated offences” with respect to the underage person who was the intended recipient of communication.
And therein lies the distinction between s. 172.1 and s. 172.2. The former deals with direct communication between an accused and a person who is or is purported to be an underaged person. That is not the case where an offence contrary to s. 172.2 is alleged; the communication is not directly with the child.
46Section 172.2, like s. 172.1, in effect creates an inchoate offence. Fish J. quoted with favour at paragraph 33 a passage from British law professor Andrew Ashworth’s book Principles of Criminal Law (6th ed. 2009): “… inchoate crimes are an extension of the criminal sanction, and the more remote an offence becomes from the actual infliction of harm, the higher the degree of fault necessary to justify criminalization.” As Justice Schreck of the Ontario Superior Court stated in R. v. Wilson, 2019 ONSC 3893 at paragraph 21 “ [t]he section is intended to prevent harm before it occurs. It does not criminalize those who merely think about or even communicate about a wish to engage in sexual activities with children. Only those who cross the line from discussion into actually communicating with another person for the purpose of planning to commit the offence are caught by the section.”
47In the present case, I have found that the Crown has not proven that Mr. Stordy was engaged in anything beyond fantasy roleplaying with a person who turned out to be a FBI agent. The charges against Mr. Stordy are therefore dismissed.
Released: November 22, 2022 Signed: Justice Berg