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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

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

(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 complainant of the right to make an application for the order; and

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

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

Court Information

Court File No.: DRYDEN – 130381

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Mika Himes

Before: Justice P.T. Bishop

Heard on: November 29, 2013 and December 6, 2013

Reasons for Judgment released: January 20, 2014

Counsel:

• Tara Schuck for the Crown
• Robert Sinding for the accused Mika Himes

BISHOP J.:

[1] Charges

Mika Himes stands charged that between the 26th day of May, 2012 and the 1st day of March, 2013 did lure a child for a sexual purpose contrary to S.172.1(1)(c) CC and further that between the 1st day of January, 2013 and the 1st day of March, 2013 did lure a child under the age of fourteen for a sexual purpose contrary to S.172.1(1)(c) CC.

Background

[2] This matter was originally set for trial on October 11, 2013 which did not proceed because of a family emergency for the presiding Justice. The matter was adjourned to October 15, 2013 at which point the trial was scheduled for November 29, 2013.

[3] On November 29, 2013, the Crown, with the consent of the accused, amended the information to include the municipality where the alleged offence took place as well as the names of each complainant.

Evidence of M.M.

[4] M.M. is now fourteen years of age with her birthday being […], 1999. She lives in Dryden with her mother and is currently in Grade 9.

[5] During the relevant time period, she attended the Dryden Youth Centre. At that time it was open for youth between the ages of twelve and nineteen on Thursday and Friday from 6:00 p.m. to 10:00 p.m. and on Saturday from twelve noon to 8:00 p.m.

[6] She and her friends would often go there to use computers and sometimes meet individuals.

[7] She knows the accused and received Facebook and text messages from him.

[8] The Facebook messages were quite specific and sexual in nature. She became quite uncomfortable and concerned about these messages which climaxed when he sent a picture of, in her words, "his downstairs area" which she later described as his penis.

[9] She never did date the accused and told him her age when he started saying those type of things to her. She showed the digital picture of his penis to D.R. before she showed it to the supervisor, Steve Patey. Mr. Patey called the police. Eventually the picture was deleted.

[10] One Facebook message indicated he wanted to bring her to the bush which she interpreted as meaning to have sex and she did not want to have sex with him.

[11] These messages happened between the 28th day of May, 2012 and the 25th day of February, 2013. She stated that she felt grossed-out by these messages, particularly when he messaged "Ou want to see my big dick and touch u?".

[12] She approached him in person and asked him to stop messaging at the Youth Centre and also on the day that the supervisor called the police. She stated that from time to time they were in the same room at the Youth Centre as she could see him typing.

[13] In cross-examination, she told him to stop and interpreted the words "go to the bush" to have sex because it was a private area.

[14] The accused had another Facebook account but he blocked her on that account. The police officer attended and she showed the text and Facebook messages to him and he printed them from her laptop.

[15] She described herself and the accused's sister as acquaintances and were friends for a bit.

[16] She knew the accused's sister had access to his Facebook account. She became concerned when he communicated that he was checking her out and thought that he might act out some of the messages contained on Facebook. She did not feel comfortable when he said he was checking her out.

[17] She did not share his messages with anyone else except the police and described the accused as socially awkward and was trying to get attention.

Evidence of D.R.

[18] D.R. was in Grade 8 and thirteen years old and has been a friend of M.M. for six years.

[19] She knows the accused through his sister who was "kind of a friend" but she never really talked to him.

[20] She also received Facebook and text messages from the accused, even though she did not give him her cell number and does not know how he got it.

[21] She described the first Facebook message as, "he was talking dirty" he wanted her to come and meet him. The texts were received in both the evening and the morning.

[22] When he stated that he wanted to have sex with her, she responded "that's just crude". She knew he was nineteen and told him that she was twelve turning thirteen. She also told him what he was doing was gross.

[23] Her cell phone was lost and the messages sent to him could not be retrieved.

[24] M.M. showed her the picture at the high school as she usually sat beside M.M. at the Youth Centre. She stated "we called the cops" and then clarified. M.M. went to the supervisor, who then informed the police.

[25] In cross-examination, she confirmed that the messages that she received were from Mika Himes because that is what the text showed.

Evidence of A.S.

[26] A.S. has been friends with M.M. for a couple of years. She used to go to the Youth Centre and confirmed that M.M. showed her the messages and a digital picture of an individual posing with his penis.

Evidence of Steve Patey

[27] Mr. Patey has lived in Dryden since 1998 and he was the supervisor at the Dryden Youth Centre and would co-ordinate and supervised the attendees at that Centre.

[28] In the beginning, the age limit for youth attending the Centre was twelve to eighteen years but since this happened is has been changed to twelve to seventeen years.

[29] The accused attended the Youth Centre for several years, as did the other young people.

[30] He viewed the picture sent by the accused as M.M., D.R. and A.S. had all seen it.

[31] He described it as a visual photo of the genital area from the waist down and was sent to M.M. He also viewed the messages sent from Mika Himes and scrolled down through them. Mr. Patey told the girls that it was inappropriate and should be deleted. He also reported it to the police and confronted Mika Himes the same day.

The three young girls approached Mika Himes in the hall to politely confront him, and said, "please stop texting and not send any more sexual messages". It was not a back-and-forth conversation. He appeared calm. He did not deny sending the picture.

Evidence of M.H.

[32] The accused is her brother and M.M. was one of her friends. She has finished Grade 12 and knows all the previous witnesses.

[33] She would use his laptop to access Facebook.

[34] She had access to his Facebook account but did not access his messages. He told her his password.

[35] He was beside her when she used his Facebook.

[36] She signed in and gave it back to him. He would play Xbox and work on his Ipod.

[37] She stated that she did not read or send any messages on his account.

[38] M.M. told her that he sent messages and showed them to her.

[39] He sent a picture of his dick and she saw it as it was sent when they were at the Youth Centre.

[40] The accused admitted that he sent that picture to M.M.

[41] This admission was made a couple of weeks after he sent it but before the police talked to him. This confirmation was made in person.

Further Motion to Amend

[42] The trial continued on December 6, 2013 and before it re-commenced, the Crown brought a Motion to amend the information to change the subsection number from S.172.1(1)(c) to S.172.1(1)(b). After argument, for reasons stated, the Court allowed the amendment and the Crown called it's last witness, Detective Cst. Paul Howarth. The Court reviewed S.601.1(4) of the Criminal Code which states as follows:

"The court shall, in considering whether or not an amendment should be made to the indictment or a count in it, consider:

a) That matters disclosed by the evidence taken on the preliminary inquiry;

b) The evidence taken on the trial, if any;

c) The circumstances of the case;

d) Whether the accused has been misled or prejudiced in his defence by any variance, error or omission mentioned in subsection (2) or (3); and

e) Whether, having regard to the merits of the case, the proposed amendment can be made without injustice being done."

[43] The Court reviewed R v Brownson 2013 ONSC 777 and distinguished the case at hand from the case and adopted that the dissent reasons by Justice Epstein, specifically as follows:

1. Amending the information in this case would not constitute an extraordinary step contemplated in Tremblay and Irwin.

2. The proposed amendment changes nothing other than the subsection of the charged section, namely S.172.1(1)(c) to S.172.1(1)(b).

3. The accused bears onus to establish some form of prejudice and could not articulate any different questions that would be asked as the elements of S.172.1(1)(c) and S.172.1(1)(b) are exactly the same.

4. The accused asked the court to speculate about a different approach on how the case was handled but without insufficient evidence to establish any prejudice.

5. Allowing the Crown's request to amend the information in a manner that does not change the substance of the offence and where the amendment cause the appellant no prejudice would better serve the interest of justice in allowing the appellant to avoid consequences of unlawful contact as stipulated in R v Fernandes, 2013 ONCA 436.

Evidence of Detective Constable Paul Howarth

[44] Detective Cst. Paul Howarth proceeded to obtain a search warrant for the accused's residence and a warrant was issued for his arrest.

[45] On March 28th, 2013, Detective Cst. Howarth approached the accused on Colonization Avenue and directed him into the Moose Hall parking lot, arrested him and read him his rights to counsel and cautioned him from the force issued cards. The accused stated "I don't know if I need a lawyer" but he became very upset. Detective Howarth was in plain clothes and stated that the accused understood and the accused was not under the influence of any drugs or alcohol.

[46] At 3:53 p.m., Detective Cst. Howarth arranged for another officer to pick-up the accused. Detective Cst. Howarth prepared documentation to obtain a search warrant for the accused's home and upon return, on his own initiative, he called Duty Counsel for the accused.

[47] The accused spoke to Duty Counsel for seven minutes, at which point the accused was returned to his cell and Detective Cst. Howarth went to check on him because he was crying, at which point the accused said he wanted to talk to him (Detective Cst. Howarth).

[48] The un-contradicted evidence was that the accused made this request of his own free will and the officer then continued on with his duties to execute the search warrant for the accused's home.

[49] At approximately 8:20 p.m., the accused came into the interview room and Detective Cst. Howarth informally used "a soft caution", advising him of his rights to counsel again, but did not re-read from the force issued cards. The accused confirmed that he understood his rights and caution and he was advised that he was being videotaped and that anything that he said could be used against him. The officer stated that this interview was a voluntary attendance by the accused at the accused's request.

Voir Dire

[50] The Court reviewed the videotaped statement in custody in its' entirety.

[51] At first the accused was crying and he was given a box of Kleenex. Detective Cst. Howarth gave him the soft caution, reminding him about his rights to counsel and he understood his rights and wanted to proceed. There was no confusion or hesitation in the accused's conduct.

[52] The officer then talked about the allegations and the accused confirmed that he knew the girls were thirteen years of age and he confirmed that he was talking about their body but didn't think of the consequences. He stated that he did not touch any of the girls and also confirmed that if one of them said "yes" to his invitations, he would not take them up on it.

[53] There was questioning concerning another individual, A.S., and whether he allegedly touched her inappropriately when she was sleeping and he denied that, but admitted that he sent the picture of his penis on his E-book to M.M. from school.

[54] When Detective Cst. Howarth interviewed the accused on March 6, 2013, after the accused had been ejected from the Youth Centre group, he initially said that he did not send the photo and then he said that he got the photo off the internet, but in this interview he admitted that he in fact was the one who sent the photo and it was his penis.

[55] The officer and the accused talked about his family situation and he stated that he never got along with his step-dad and the officer was worried about the safety of the accused and told him that he should ask for protective custody when he goes to the Kenora District Jail. There was no threat or promise in that regard. The officer testified that he had taken the accused's liberty away and felt he had the duty to advise him for his own safety to make that request. There was also a conversation about his mother not wanting him back home and that he had seen a counselor once for ADHD when he was younger and was on some medication. The officer reminded him that these were very serious charges and it would be a long haul for him and that he needed help. The accused admitted that he needed some help. There was no release plan and the officer explained the procedure of bail court. The accused also talked about going to school and becoming a heavy equipment mechanic.

[56] Near the end of the interview, the accused thanked the officer for talking to him and it made him feel better.

Cross-Examination – Voir Dire

[57] In cross-examination, the officer reiterated why he told him to ask for protective custody because of the nature of the charges and that word spreads quickly in a custodial setting. He also confirmed that the accused made the request to talk to him. The officer confirmed to the accused that he had seen the picture of the penis that was sent to M.M.

[58] The accused had been in custody for three hours before the interview took place and he was crying. It was his first time in jail.

[59] The Court rejected the submissions that the soft caution may have confused the accused as the Court had an opportunity to view him. He was cogent, although upset, he was clear and he gave these statements without any duress or inducement. The fact that the officer told him that his mother did not want him back was explained in the context of setting up a bail hearing and that he would have to get someone else to act as his surety and take him in for his release. There was no atmosphere of oppression whatsoever.

[60] The fact that this was the accused's first time in custody, is reflected by the advice given by Detective Cst. Howarth as he was sensitive to the accused's plight and acted in a fatherly way. The accused regained his composure as the interview proceeded.

[61] The Court concluded that the officer's conduct showed a concerned officer who wanted to protect the accused and obliged the accused when he stated he wanted to make a statement.

[62] The formal rights to counsel were given as well as the caution immediately and the accused did not know whether he wanted to speak to a lawyer. The accused was transported back to the cells into the detachment by another uniformed officer. The accused did not make a request for a lawyer and the Detective Cst. Howarth took it on his own initiative. He was read his rights to counsel immediately and when asked if he wanted to contact a lawyer his response was "I am not sure".

[63] The Defence did not call any evidence on the voir dire but made submissions that there may have been some threat, promise or inducement made which was completely denied by the officer and supported by the videotaped statement. The request was made by the accused. The accused did not testify, nor was any other evidence called at the voir dire and the officer who transported the accused to the lock-up did not testify, nor did the Crown or Defence call him, but that officer's notes were provided to the accused's counsel. The Crown did not call the guard or any other individual at the lock-up. The fact that the accused thanked the officer for talking to him confirms in the Court's mind that this was a completely voluntary statement and there was no other evidence to the contrary.

[64] I have reviewed R v Cook (1997) and conclude that there are no required witnesses and no rule governing witnesses who must be called by the Crown. The real issue was voluntariness, proven beyond a reasonable doubt, not which witnesses were or were not called by the Crown. And further, in R v Menezes (2001) there is no absolute rule that every person in authority irrespective of the degree of contact with the accused need to be called on a confessional voir dire. Each case turns on its' own facts. A flexible rule designed to examine the role of any police officer with real, investigative or custodial contact generally promotes meaningful scrutiny of relevant governmental conduct.

[65] Having reviewed the videotaped statement, the Court found, without any reservation, that the statements were voluntary and therefore admissible.

Submissions

[66] The accused through his counsel argued that he had been prejudiced by the amendment made to the information during the middle of the trial, when both complainants had already give evidence. The Court offered an adjournment to recall those witnesses but the accused said that the prejudice had already been done as the witnesses have given their evidence and once they gave their evidence, they sat in the body of the court and any recalling would contaminate their evidence.

[67] The Court rejected that argument because the evidence would have been exactly the same on a S.172.1(1)(b) as it is on S.172.1(1)(c). The Crown explained her failure to amend the subsection from (c) to (b) at the beginning of the trial due to her inexperience. It must be remembered that the charges under S.172.1(1)(b) and (c) are inchoate offences to prevent the commission of an offence. The Crown requested the second amendment immediately before the re-commencement of the trial on December 6, 2013 after reviewing the evidence from November 29, 2013.

[68] When asked by the Court, defence counsel could not produce any other questions that would have been asked. Identity was not an issue, there were admissions from at least four individuals (without the confession by the accused) that they had seen the picture of the accused's penis and he had admitted to his sister and did not deny it to the witnesses at the Youth Centre that it was his penis and he in fact sent it. The accused submitted that this was an unusual case as the accused and the young complainants knew each other and there has been no other case like it; usually it is someone who is trolling the internet and a much older man who does not know the complainants. In this situation the Court finds it is an aggravating factor that the accused knew the girls and knew how young, inexperienced and vulnerable they were as he was setting up this line of communication for a sexual purpose.

[69] M.M. gave evidence that at the Halloween dance, the accused said that he was "checking her out" and made a reference to her "rack" (referring to her breasts) which made her feel very uncomfortable. This was confirmed in the email conversation, but it was also said in person by the accused to the complainant.

[70] Counsel for the accused submitted that his client was being cool, that he wanted to be liked and he was just joking around and the communication was never to be taken seriously. Further he submitted that there was no need for him to use the internet as he knew the complainants. This argument was rejected as using the internet emboldens individuals as stated in R v Legare 2009 SCC 56, and states in paragraph 28:

Section 172.1(1) makes it a crime to communicate by computer with under aged children or adolescents for the purpose of facilitating the commission of an offence mentioned in its' constituent paragraphs. In this context, facilitating includes helping to bring about and making it easier or more probable - - for example by luring or grooming young persons to commit or participate in prohibited conduct; by reducing their inhibitions; or by prurient discourse that exploits a young person's curiosity, immaturity or precocious sexuality.

[71] The accused elected not to give evidence on the voir dire or call any other evidence in his own defence. That is his right and the Court makes no adverse finding with respect to his right to remain silent.

Decision

[72] Having heard all of the evidence, I am finding that the Crown has proven beyond a reasonable doubt both counts pursuant to S.172.1(1)(b) of the Criminal Code in that the accused by means of a computer system, communicated with M.M. and D.R. who he knew were under the age of sixteen, for the purpose of facilitating an offence under S.152 of the Criminal Code.

[73] The evidence is clear that his communication was an invitation to sexual touching.

[74] The Crown submitted that it was not necessary for the Crown to particularize the section number under S.172.1(1)(b) as the evidence clearly disclosed what the conduct was.

[75] Dealing firstly with the text (Facebook messages), which were filed as Exhibit One sent by the accused under the name of Mika James Albert Himes. The first string of messages which have to be read in their entirety produce a sexual connotation to invite sexual touching as follows:

Mika James Albert Himes: "why …me if you are going to just get me in trouble again – hey – LOL – what why add me as a friend – can I chill too?"

M.M.: "suree"

Mika James Albert Himes: "just me and you LOL J.K."

M.M.: "LOL"

Mika James Albert Himes: "what will we do? Go to the bush ☺ - where are you right now?"

M.M.: "home"

Mika James Albert Himes: "kk can I come over?"

M.M: "nah – im eating haha"

Mika James Albert Himes: "Are we friends? Are you Talking to Dana?"

M.M.: "we r not friends, and yea"

Mika James Albert Himes: "Oh about me?"

M.M.: "no"

Mika James Albert Himes: "You sure?"

M.M.: "yea"

That was the first message inviting to get together.

The second string of messages is as follows:

Mika James Albert Himes: "Oh kk then..let's go to the bush"

M.M.: "why?"

Mika James Albert Himes: "Would u go? Cuz I want to do something"

M.M.: "like waht?"

Mika James Albert Himes: "Something fun"

M.M.: "tell me what it is"

Mika James Albert Himes: "whatever you want to do"

M.M.: "welllll - what do you want to do?"

Mika James Albert Himes: "Uo want to see my big dick and touch u?"

M.M.: "WTF"

The next series is as follows:

Mika James Albert Himes: "is that m. or Ashley?"

M.M.: "the name says M.M."

Mika James Albert Himes: "Nice rack"…"cuz nm"…"oh kk but I don't know if I should say it"

M.M.: "just say"

Mika James Albert Himes: "You should have sex soon"

M.M.: "y"

Mika James Albert Himes: "It feels so good"…"ok sorry"… "Fuck me"…"I'll come over"

M.M.: "no"

Mika James Albert Himes: "why"

M.M.: "cuz"

The next series is as follow:

M.M.: "ok"

Mika James Albert Himes: "lol But your cute"

M.M.: "ha ha thanks"

Mika James Albert Himes: "Do you suck or lick? ☺….Im a good licker…..lol im just being funny…I would love to do something to you ☺…but im scared to tell you….so ill keep it to myself…So whats up?...Have you been eatin out?...I would do that to you"

M.M.: "oh"

Mika James Albert Himes: "lol hahahahahahahahah joking….Why?..were you happy or something?...M.?...I want to eat you ☺…lol im still joking…But so Anyways How was your day?...Did you skip school today?...lol oh…are you made at me?...You won't talk to me now? ☺"

M.M.: "no"

The final series is as follows:

Mika Janes Albert Himes: "olau will danas said you text her saying im mad at you and shit"

M.M.: "ya"

Mika James Albert Himes: "what is going on??"

M.M.: "idek"

Mika James Albert Himes: "lol kk…will the shit I have said to you im sorry…and the way you look is not in a bad way…tbh im checking you out lol"

M.M.: "haha oh good why"

Mika James Albert Himes: "Cuz your cute ☺"

[76] I reviewed the R v Legare 2009 SCC 56. A review of Section 172.1(1)(b) and (c) of the Criminal Code is as follows:

Justice Fish states that this section 172.1(1)(c) creates an incipient or "inchoate" offence that is, a preparatory crime that captures otherwise legal conduct meant to culminate in the commission of a completed crime. It criminalizes conduct that precedes the commission of the sexual offence to which it refers, and even an attempt to commit them. Nor, indeed, must the offender meet or intend to meet the victim with a view to committing any specified secondary offences. This is in keeping with Parliament's objective to close the cyberspace door before the predator gets in to prey.

The Supreme Court reviewed the decision R v Alicandro [2009] O.N.C.A. 13 324 CCC 3(d), 1 Doherty J.A. observed that the purpose of S.172.1 is evident from its language.

And at paragraph 28, S.172.1 makes it a crime to communicate by computer with under aged children or adolescents for the purpose of "facilitating" the commission of the offence as mentioned in its' constituent paragraphs. In this context, "facilitating" includes helping to bring about and making easier or more probable -- for example by "luring" or "grooming" young persons to commit or participate in the prohibited conduct; by reducing their inhibitions; or by prurient discourse that exploits a young person's curiosity, immaturity, or precocious sexuality.

And at paragraph 31, accordingly, 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 under aged victim for the purpose of facilitating the commission of a specified secondary offence with respect to that victim.

At paragraph 32, the italicized words in the preceding paragraph draw textually from S.172.1(1)(c) make clear that the intention of the accused must be determined subjectively; in other words the accused must be shown to have "engaged in the prohibited communication with the specific intent of facilitating the commission of one of the designated offences with respect to the under aged person who is the intended recipient of communication.

To sum up, at paragraph 36, I reiterate S.172.1(1)(c) comprises three elements as does S.172.1(1)(b):

1. An intentional communication by computer;

2. With the person whom the accused knows or believes to be under the age of fourteen;

3. For the specific purpose of facilitating the commission of a specified secondary offence ---that is, abduction or one of the sexual offences mentioned in S.172.1(1)(b) in this case, with respect to the under aged person.

[77] All three elements must of course be proven by the Crown beyond a reasonable doubt.

[78] What matters, is whether the evidence as a whole establishes beyond a reasonable doubt that the accused communicated by computer with an under aged victim for the purpose of facilitating the commission of a specified secondary offence with respect to that victim.

[79] In this case, the accused communicated with both complainants knowing they were under the age of fourteen for the purpose of facilitating the commission of a specific secondary offence, particularly S.152; invitation to sexual touching, as disclosed by the evidence.

[80] This is proven beyond a reasonable doubt as the text messages, in conjunction with the photo, prove the element of wanting to commit the offence. I reject that the accused was just joking around as the text messages escalated in nature and became much more sexually specific and when viewed by the complainants and other witnesses, the offence has been committed.

[81] It is not necessary with respect to the complainant D.R. to have copies of the text messages as they were deleted. Her un-contradicted evidence is that he communicated with her in a similar manner. Her evidence was not compromised in cross-examination.

[82] The text messages coupled with the photo fit the definition of facilitating; that is to bring about or making easier or more probable, for example by luring or grooming young persons to commit or participate in the prohibited conduct. I take note that the accused lied to the police officer about the photo and eventually confessed in the voir dire. His creditability has been seriously compromised and the fact that he told the police officer he wouldn't take any of these children up on the invitations is not credible.

[83] With respect to the mens rea the standard is subjective. In order to determine what was in the accused's mind, the court must draw reasonable inferences from the words and the circumstances, including how the words were perceived by those hearing them. In this case, M.M. was of the view that the accused wanted to have sex when asking whether she wanted to go to the bush; and further when he Facebooks "Ou want to see my big dick and touch u?", coupled with sending a digital photo of his penis and further commenting about her breasts and finally with the message "have you been eaten out….I would do that to you." The only reasonable conclusion that the Court can make is that there was an intentional communication by the computer, with a person who he knew to be under the age of fourteen, and he was specifically attempting to facilitate the commission of a secondary offence.

[84] A conviction will enter with respect to both counts.

Released: January 20, 2014

Signed: "Justice P.T. Bishop"