R. v. Collinge, 2025 ONCJ 99

Warning

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Ontario Court of Justice

DATE: 2025-02-24
COURT FILE No.: Brampton (Central West) 23-31106771

BETWEEN:

HIS MAJESTY THE KING

— AND —

SHAWN COLLINGE

Before Justice A. Neil Singh
Heard on September 23-25, 2024 & January 22, 2025
Reasons for Judgment released on February 24, 2025

Gregory Hendry — counsel for the Crown
Alan Sobcuff — counsel for the accused Shawn Collinge

Contents

• INTRODUCTION .. 3
• FACTUAL BACKGROUND .. 3
• DISCUSSION .. 6
  • Issue #1 – The relevant inquiry is who Mr. Collinge believed he was communicating with, not who he was actually communicating with .. 6
  • Analysis and Discussion .. 7
  • Issue #2 – Mr. Collinge had the required state of mind regarding H.O.’s age when he communicated to her .. 8
  • Analysis & Discussion .. 9
• CONCLUSION .. 11

INTRODUCTION

1Shawn Collinge is charged with three child luring offences. It is alleged that between April 1, 2023, and April 4, 2023, he:

1. Communicated with H.O., a person under the age of 16 for the purpose of facilitating the offence of sexual interference contrary to s.172.1(1)(b) of the Criminal Code;
2. Communicated with H.O., a person under the age of 16 for the purpose of facilitating the offence of invitation to sexual touching contrary to s.172.1(1)(b) of the Criminal Code; and
3. Communicated with H.O., a person under the age of 18 for the purpose of facilitating the offence obtaining sexual services for consideration contrary to s.172.1(1)(a) of the Criminal Code.

2Much of the case against him was conceded when Mr. Collinge testified in his own defence. There are two principal issues that I need to determine in coming to a verdict in this case. They are (1) does it matter that Mr. Collinge may have been unknowingly communicating with Mr. S.L. when the information specified that the prohibited communication was with H.O.?; and (2) Did Mr. Collinge have the required state of mind for a finding of guilt when he testified that he believed H.O. was 18-20 years old, and not 14?

3These reasons explain that my answer to Issue #1 is no. My answer to Issue #2 is yes. I find Mr. Collinge guilty of the three offences before the Court. These are my reasons.

FACTUAL BACKGROUND

4Much of the factual background in this matter is uncontested. Mr. Collinge acknowledged most of it in his testimony.

5On April 1, 2023, Mr. Collinge contacted H.O. on Facebook Messenger. His username was “Shawn Collinge.” His profile picture was of him.

6H.O. is a real person. She was 14 years old at the time.

7H.O. replied to Mr. Collinge asking if she knew him. From there, over the next few days the chat devolved into an explicit conversation with Mr. Collinge propositioning H.O. sexually. The Facebook Messenger chat was entered as an exhibit on the trial. I will review and summarize some important aspects of the chat.

8Mr. Collinge and H.O. discuss their ages.

• In the chat, H.O. tells Mr. Collinge that she is 14 in three separate messages. Mr. Collinge tells H.O. he is 36.
• Mr. Collinge tells H.O. he is ok with her being 14.
• During the portion of the recorded phone call / video chat, H.O. asks Mr. Collinge if he’s ok with the fact that she is 14. Mr. Collinge responds that he is if she is.

9Mr. Collinge and H.O. also have discussions that are relevant to H.O.’s age.

• Early in the conversation, Mr. Collinge tells H.O. that she is very cute – an indication that he has seen what she looks like.
• At one point when Mr. Collinge asks H.O. if she’s busy, H.O. responds by saying that she’s busy with her family and that “my mommy is going shopping with me.”
• When Mr. Collinge initially asks if H.O. wants to meet “this Saturday” she tells him she wants to meet and her “parents won’t be home this weekend.”
• H.O. asks Mr. Collinge if he’d like her to bring a friend to their meeting. When H.O. asks how old her friend should be, and suggests 12-17 years old, Mr. Collinge responds 18-17. When H.O. asks why, his response was because H.O. was “young enough.”
• During their discussions about meeting up, H.O. tells Mr. Collinge that her parents are home almost every day, and it would be hard to meet unless Mr. Collinge picks her up or they meet at a park.
• Mr. Collinge asks H.O. if she wants him to come in her bedroom when her parents are not home.
• Mr. Collinge after the recorded phone/video chat tells H.O. “I know you don’t want your dad knowing about us right babe, because we are a secret relationship.”

10The conversations, including the texts and the recorded call/video chat include sexually explicit content.

• Mr. Collinge first suggests giving H.O. a foot massage. He tells her he wants her feet in his lap.
• He then says he wants a footjob.
• Mr. Collinge asks H.O. if she made her boyfriend cum with her feet.
• Mr. Collinge asks H.O., “will you do a footjob on me and make me cum”?
• Mr. Collinge tells H.O. “I want to go inside you”
• Mr. Collinge asks H.O., “wanna squeeze my cock with your red toes to stiffen it up”?
• Mr. Collinge says to H.O. “I hope your toes and heels are extremely red and super sweaty”
• Mr. Collinge then says, “I love when a girl makes me cum with her sexy feet.”
• He says to H.O. “if my hard cock goes inside you I want you to push it further inside with your feet.”
• And later, “I hope you like guys with a serious foot fetish”
• Then, “How long does it take for you to make your boyfriend cum with your hot and sexy red toes and red heels during a footjob”
• Followed by, “I bet you love that hard cock after jerking it off with your feet.”
• The last message captured from Mr. Collinge to H.O. reads, “Babe how long can you jerk off my cock without stopping to make my body shake and eyes roll.”
• In the recorded call, Mr. Collinge mentions doing “vaginal” with H.O. He confirmed it takes her 20 minutes to make the guy cum and that she keeps going after. He also asked her if anything sticky goes on her feet when she makes a guy cum with her feet.

11Regarding the obtaining of sexual services for consideration, the following communications are captured.

• H.O. offers Mr. Collinge “pussy pics” in exchange for $30.
• When Mr. Collinge tells H.O. that he wants to “go inside” of her, she responds by telling him to “send me some money come see me tonight.”
• H.O. then asks for $40. Mr. Collinge says he wants to meet her first and “bang” H.O. “soo hard.” H.O. tells Mr. Collinge that he must “pay” her to “see her.” In response, Mr. Collinge asks if “that includes the works and footjob.” Mr. Collinge confirmed in cross-examination that the “works” possibly means sexual intercourse.
• H.O. tells Mr. Collinge that she’s 14 and needs money. She said $40 plus $60 for her body if he wanted to “fuck” her. H.O. then tells Mr. Collinge, “pay me or nothing.” Mr. Collinge’s response: “I agree.”

12Mr. Collinge made efforts to meet up with H.O. The following texts were captured in the Facebook chat:

• Mr. Collinge asks H.O. if she wants to meet up. At first, it is just a coffee shop. Then there are discussions about meeting at a park. Mr. Collinge asks, “which park should we meet at on Saturday?”
• Throughout their discussions on this topic, they discuss meeting on Saturday. H.O. suggests that either Mr. Collinge picks her up or they meet at a park. Mr. Collinge asks about what park is near where she lives, and H.O. and Mr. Collinge discuss the location of a park near where she lives.

13Mr. Collinge testified that he sent the messages that were captured by H.O. and provided in evidence. He also confirmed that it was him who participated in the recorded phone call with H.O.

14Mr. Collinge confirmed several important pieces of information in his testimony. They include:

1. That he communicated to H.O. that he wanted to penetrate her vaginally with his penis.
2. That he wanted to go into her bedroom and have sex with her.
3. That he let H.O. know that she could make his erection harder by squeezing it with her feet.
4. That he invited her to squeeze his cock with her feet.
5. That he was trying to get H.O. to make him cum with her feet.
6. That much of the texts communicated his intention to have sexual relations with H.O.
7. That he was willing to pay H.O. for her sexual services, and that was his intention at the time he sent the messages.
8. That at the time he sent the messages, he wanted to do these things with H.O., but then changed his mind.
9. In fact, everything he said to H.O. represented his intentions at the time he sent the messages or said what he said.

DISCUSSION

Issue #1 – The relevant inquiry is who Mr. Collinge believed he was communicating with, not who he was actually communicating with

15Counsel for Mr. Collinge argued that the information is particularized to allege that he committed the three offences by communicating with H.O. The defence argues that this is problematic because the evidence established that Mr. Collinge may have been communicating instead with Mr. S.L., H.O.’s friend at the time.

16In her examination in chief, H.O. stated that she sent some of the messages and Mr. S.L. sent some. This was clarified in her cross-examination. H.O. stated that she was the driving force behind the messages. She was not being directed by Mr. S.L. She clarified that there were a couple times that he told her what to say when she didn’t know what to say, but that it was “my free will.” H.O. confirmed that a couple messages were sent by Mr. S.L. when she went to the bathroom. Ultimately, she conceded that the messages could have been a 50/50 split between her and Mr. S.L. Indeed, she went so far as conceded that upwards of 90% of the messages could have been sent by Mr. S.L.

Analysis and Discussion

17The elements of the offence of child luring are (1) an intentional communication by computer; (2) with a person who is or who the accused believes is underage; and (3) for the specific purpose of facilitating the commission of an enumerated secondary offence with respect to that person [1].

18The purpose of the child luring provisions of the Criminal Code is to “shut the door on predatory adults, who generally for a sexual purpose, troll the internet for vulnerable children and adolescents.” [2]

19Regarding the recipient of the communication, the Ontario Court of Appeal, in R v. Alicandro, has provided guidance regarding the importance of age. The Court stated that the age of the person to whom (emphasis added) the communication is made, or the accused’s belief as to the age of that person, is also a part of the conduct prohibited by the offence. If the person to whom (emphasis added) the communication is made is under 14 years of age, his or her age is a condition or circumstance that must be proven by the Crown to complete the actus reus. [3]

20The use of the phrase “to whom” the communication is made is important. It makes clear that the analysis on the second element of the offence is focused on who the accused believes they are (and intends on) speaking to, regardless of who the ultimate recipient is.

21Indeed, the law has clearly demonstrated that when an accused person communicates with an undercover officer, where they believe the undercover officer to be a person under the age of 16, they are not absolved of criminal liability.

22It would be absurd that an accused could escape criminal liability where they have committed the act in question, with the required frame of mind, solely because the recipient of the message might be someone other than their intended one, a factor completely outside of the accused’s control. This defies common sense and cannot be the law.

23The Supreme Court of Canada unanimously found that the offence can be made out by a single message [4]. This means that for the offence, to be made out, it does not require a response from the recipient. Therefore, the actual recipient of the message is immaterial to the analysis of criminal liability. For example, if Mr. Collinge sent a single message to H.O. (who was under 16) that made out the offences, and it were received by her parent or guardian without a response, he could not escape criminal liability because H.O. did not personally receive the message. If all other elements of the offence were established by the Crown to their burden of proof, he would be guilty.

24I find that it does not matter whether it was H.O or Mr. S.L. who sent the messages to Mr. Collinge. To assess criminal liability, what matters are Mr. Collinge’s actions and intentions. In other words, who did Mr. Collinge believe he was communicating with, and intending on communicating with?

25I find as a fact, however, that H.O. was the driving force behind the messages. She stated clearly that she sent the messages through her own free will, and that it was only a couple messages that were sent by Mr. S.L., and a couple others where he helped her with what to say. While H.O. conceded in cross-examination that Mr. S.L. could have sent upwards of 90% of the messages, I find that the entire evidentiary record establishes that she sent most of the messages.

• H.O. stated initially that she sent the vast majority of the messages. She also stated that when she received help in crafting messages, she ultimately decided to send them with her own free will.
• That Mr. S.L. sent some messages when she was in the bathroom does not detract from this.
• In addition, it is clear from the recorded call and the sexually explicit content in them that H.O. was aware of and involved in the earlier discussion about sex, footjobs, and paying for sexual services.

26It is clearly H.O. and Mr. Collinge who are communicating in the recorded call.

27The evidence overwhelmingly establishes that Mr. Collinge believed he was communicating with H.O. who was 14 years old at the time. I find that Mr. Collinge specifically intended to communicate with H.O. when he sent the messages. I also find that H.O. was 14 years old at the time. I reject the defence argument.

Issue #2 – Mr. Collinge had the required state of mind regarding H.O.’s age when he communicated to her

28Mr. Sobcuff, on behalf of the defence, argues that Mr. Collinge honestly believed that H.O. was over the age of 18. Mr. Sobcuff asserts that, in the circumstances before me, the Court should find that Mr. Collinge took reasonable steps to ascertain H.O.’s age. Mr. Collinge should therefore be acquitted upon the Court’s finding that he took those reasonable steps.

29The Crown urges the Court to reject Mr. Collinge’s evidence in this regard. Mr. Hendry argues that the evidentiary record establishes that Mr. Collinge believed H.O. to be 14 years old. Alternatively, the Crown argues that Mr. Collinge failed to take reasonable steps to determine H.O.’s age. Further, in this case, where the alleged victim is an actual person under the age of 16 years old, the Crown submits that the Court can find Mr. Collinge guilty based on his recklessness as to H.O.’s age. [5]

Analysis & Discussion

30Mr. Collinge testified that he believed H.O. to be somewhere in the range of 18 to 20 years old. Mr. Collinge testified it was his belief that to be registered on Facebook, a user had to be at least 18 years old. He obtained this belief from doing research on Facebook and trying to read their guidelines. It is on this basis that Mr. Collinge believed that H.O. to be above 18 years old.

31I do not accept this evidence. I find that Mr. Collinge lied to the Court. I come to this conclusion for several reasons.

1. When asked by his counsel why he thought people had to be over the age of 18, Mr. Collinge testified that he had several experiences in the past where people lied about their ages.
2. Mr. Collinge testified that he knew people would make fake accounts. Mr. Collinge knew when he was communicating with H.O. that people on the internet engage in catfishing [6], where they pretend to be someone entirely different.
3. Mr. Collinge testified that he had been tricked many times before by people online.

32With this knowledge and experience, there is no logical reason to believe that Mr. Collinge would accept that people on Facebook are 18 years or older. He knows this, as a fact, not to be the case. He has had several experiences on Facebook where people were pretending to be something other than they were. He knows that people on the internet lie about their identities, and their age.

33Mr. Collinge’s evidence about reporting H.O.’s profile also makes no sense. He testified that he tried to report the profile, but never received any feedback. Mr. Collinge stated that he tried to tell Facebook that H.O. was trying to scam him for money. He also tried to tell them that he believed she was 19 or 20, but she was saying she was 14 years old and putting down a year of birth of 2006 (making her 16 years old).

34I find that Mr. Collinge lied about this. I come to this conclusion due to a glaring internal inconsistency in his evidence. While H.O. testified that she may have registered 2006 as her year of birth with Facebook (making her 16 years old), Mr. Collinge’s evidence on this point is telling. At numerous points throughout his testimony, Mr. Collinge stated that he never saw a date of birth on H.O.’s profile. It would therefore be impossible for Mr. Collinge to notify Facebook about her fake year of birth were this the case.

35Interestingly, Mr. Collinge’s testimony that he tried to notify Facebook about the year of birth, completely undermines his purported belief that users need to be 18 years and above to be on Facebook. If Facebook prohibits people under the age of 18 from participating on their platform, why would H.O. be permitted to put 2006 as her year of birth? H.O. would have at least had to have had a year of birth in 2004 or earlier to comply with the guidelines Mr. Collinge believed were in place.

36Finally, when asked by his counsel about who he communicated with on Facebook back in 2023, Mr. Collinge stated that he’d mainly (emphasis added) try to communicate with people 18 years old and above, but not underage. He stated this was because underage is against the law and not the right thing to do.

37The fact that Mr. Collinge stated that he’d mainly try to communicate with people 18 years or older, his evidence on this point makes it clear that he knew there were people under 18 years old on the platform. It is also evident from this evidence, that he had previously communicated with people under the age of 18 on Facebook. This completely undermines his evidence that he believed you needed to be at least 18 to be on Facebook.

38Mr. Collinge knew there were underage people on Facebook. He knew people lied about their identity and their age. He had been tricked several times in the past. He knew to be cautious about these things. There is no sensible or defensible reason to accept his evidence. I reject it and find, as a fact, that he lied to the Court.

39Having rejected his evidence on this point, I find that Mr. Collinge knew and believed H.O. to be 14 years old.

40If I am wrong in my conclusion that Mr. Collinge knew and believed H.O. to be under 16 or 18 (as the relevant counts allege), I find that Mr. Collinge did not only fail to take reasonable steps to ascertain H.O.’s age, but he took absolutely no steps. The following are reasons why I (i) find Mr. Collinge knew / believed H.O. to be under 18/16, and (ii) why I find that he took no reasonable steps in the alternative.

1. Based on my reasoning above, I find that it was completely unreasonable to think that H.O. was 18. She never stated she was 18. Mr. Collinge never observed anything that told him she was 18.
2. H.O. stated on numerous occasions, both over text and on the recorded call that she was 14 years old. Mr. Collinge, indicated on numerous occasions, he was OK with the fact that she was 14 years old.
3. The specific content in the messages between the Mr. Collinge and H.O. make it clear that she is underage, or at the very least, Mr. Collinge believed H.O. to be a child. For example,
   • H.O. telling Mr. Collinge that her parents won’t be home this weekend when he tries to set up a meeting with her “this Saturday.” H.O. makes several references to her “parents” in the texts.
   • Mr. Collinge told H.O. she was “young enough” when he asked why she wanted him to bring a 17- or 18-year-old to their meet up and not someone younger.
   • Mr. Collinge asks H.O. if she wants him to come in her bedroom when her parents are not home.
   • Mr. Collinge after the recorded phone/video chat texted H.O. “I know you don’t want your dad knowing about us right babe, because we are a secret relationship.”

41These factors, in addition to H.O. repeatedly stating she was 14, make it very clear that H.O. was underage, or at the very least, that Mr. Collinge should have been concerned about that were he truly not interested in engaging in sexual conduct with a minor. In fact, the messages demonstrate that Mr. Collinge knew and believed H.O. to be the age she professed, 14. In the face of this evidence, to do nothing, and simply assume everyone on Facebook is over 18 is completely unreasonable.

42Any reliance that Mr. Collinge’s placed on his purported belief that H.O. was 18 was objectively unreasonable in the circumstances. As he stated in cross-examination, he simply assumed she was. The evidentiary record makes clear that Mr. Collinge did not take any steps to ascertain H.O.’s age in the face of clear and compelling evidence that H.O. was 14 years old.

CONCLUSION

43The Crown has proven their case. There is no reasonable doubt. While Mr. Collinge was neither a reliable nor credible witness, I accept his admissions to the Court regarding his conduct. I do so because they come in the face of significant, compelling confirmatory evidence.

44Specifically, I find that:

1. Mr. Collinge communicated with H.O.
2. H.O. was 14 years old at the time.
3. Mr. Collinge knew and believed H.O. was 14 years old based on her telling him.
4. Mr. Collinge directed communications to H.O. through Facebook Messenger.
5. Mr. Collinge spoke directly to H.O. on the recorded audio/video call.
6. All the communications were telecommunications within the meaning of s.172.1 of the Criminal Code.
7. Mr. Collinge wanted to have vaginal intercourse with H.O. As he testified, that was his intention at the time he sent the messages and otherwise communicated with her.
8. Mr. Collinge wanted to invite H.O. to touch his penis with her foot. As he testified, that was his intention at the time he sent the messages and otherwise communicated with her.
9. Mr. Collinge wanted and agreed to pay H.O. to obtain her sexual services. I rely on the texts where Mr. Collinge asks what his payment would include (“the works and footjob”). I also rely on the fact that when H.O. tells him she needs $40 plus $60 for her body if he wants to fuck her, and that she’ll do a “hook up” with him for $100, and then she says, “pay me or nothing” Mr. Collinge responds, “I agree.” As he testified, these were his intentions at the time he sent the messages and otherwise communicated with H.O.
10. Mr. Collinge’s specific purpose in communicating with H.O. was to facilitate the commission of a number of secondary offences.
    • With respect to Count #1, Mr. Collinge communicated with H.O. with the specific purpose of facilitating the commission of the offence of sexual interference. He did so in communicating with H.O. for the specific purpose of trying to facilitate sexual intercourse and a footjob with her.
    • With respect to Count #2, Mr. Collinge communicated with H.O. with the specific purpose of facilitating the commission of the offence of invitation to sexual touching. He did so in communicating with H.O. for the specific purpose of inviting her to touch his penis with her feet.
    • With respect to Count #3, Mr. Collinge communicated with H.O. with the specific purpose of facilitating the commission of the offence of obtaining sexual services of a person under 18 for consideration. He did so by engaging in communications and agreeing to pay H.O. for her sexual services.

45Mr. Collinge will be found guilty as charged on all three counts before the Court. My thanks to counsel.

Released: February 24, 2025
Signed: Justice A. Neil Singh

Footnotes

1R v. Levigne, 2010 SCC 25 at para 23; R v. Morrison, 2020 ONCA 343 at para 43.

2R v. Levigne, supra at para 2.

3R v. Alicandro, 2009 ONCA 133 at para 30.

4R v. Morrison, 2020 ONCA 343 at paras 146 and 182 (On this issue, Moldaver J. spoke for the majority. Karakatsanis J. concurred. Abella J. dissented in part, but unrelated to this aspect of the analysis).

5See R v. Fox, 2022 ONCA 674 at paras 19-37.

6“Catfishing” is defined by Merriam-Webster Dictionary as “to deceive (someone) by creating a false personal profile online.” https://www.merriam-webster.com/dictionary/catfish