Court File and Parties
Ontario Court of Justice
Date: 2017-06-13
Court File No.: Newmarket 16-02198
Between:
Her Majesty the Queen
— and —
Erhard Haniffa
Judgment
Heard: June 5, 6, 7, 8, 2017
Delivered: June 13, 2017
Counsel:
Ms. Kellie Hutchison — counsel for the Crown
Mr. Boris Bytensky — counsel for the defendant
KENKEL J.:
Introduction
[1] Mr. Haniffa answered an online ad and arranged via text messages to purchase sexual services from a person represented as a 15 year old girl. When he went to the hotel room to complete the transaction he was arrested by police. Mr. Haniffa is charged with:
Count 1 – Communicating via telecommunication with a person he believed to be under the age of 18 for the purpose of facilitating an offence under s.286.1(2) (Obtaining sexual services for consideration from a person under 18 years) contrary to s.172.1(2)
Count 2 – Communicating via telecommunication with a person who he believed was under 16 for the purpose of facilitating an offence under s.152 (Invitation to sexual touching) contrary to s.172.1(2)
Count 3 – Communicating for the purpose of obtaining the sexual services of a person under the age of 18 years contrary to s.286.1(2)
[2] The central issue at trial is whether the Crown has proved beyond a reasonable doubt that the accused believed he was communicating with a person under the ages of 16 and 18 as alleged.
The Evidence
[3] Det. Sgt. Truong was assigned to Project Raphael – an online undercover operation conducted by the York Regional Police in cooperation with other police forces that was intended to identify and arrest individuals seeking to purchase sexual services from children aged 13 to 16 years old. In this investigation he set up an ad on Backpage, a website where prostitution is advertised. The ad was targeted at locations in and around Toronto including York Region. The ad used the following header to attract customers, "YOUNG, Shy FRESH and NEW - … Be gentle 18". The ad text contained further similar phrases referring to youth, "super new to this", "I have a friend working she's young like me". DS Truong explained that the site prevented ads being placed with any stated age less than 18. He placed the ad with the minimum age permitted on the site and those identifiers as he thought they would be of interest to those seeking child prostitutes. The investigation was not directed at others seeking paid sexual services from adults.
[4] On March 18th, 2016 Mr. Haniffa texted "Jamie" (DS Truong's 15 year old female persona as referred to in the ad) and asked, "Any chance you are working right now? Or soon? :)" The officer did not respond to that text until almost 1am. On March 22nd Mr. Haniffa again contacted Jamie and she replied that she was working in Richmond Hill that night "after school" and that school was done at 3:30. The conversation continued:
Haniffa: Gfe right u ok with kissing and receiving oral?
Jamie: yes hun
Jamie: r u ok if im not quite 18 yet?
Haniffa: Is this like a cop thing or something?
[5] Mr. Haniffa then asked if he could call Jamie but was told no. He asked her how old she was but after she didn't respond for 19 minutes he said, "U enjoy receiving oral?" After no response for forty four minutes he said, "Let me know where at 5pm to be." Shortly afterwards Jamie sent a message and their text conversation continued:
Jamie: i'm 15 to be hones but I look older hun
Haniffa: Mm
Haniffa: Ok so where will u be working?
Jamie: Why the mm babe
Haniffa: As in mm ok
Haniffa: Sorry in a meeting
Haniffa: So out of curiosity do u like receiving oral? And kissing
Haniffa: Those are huge for me
Haniffa: And where in Richmond hi are u working
Haniffa: I need to know quick cause I have to see u and do groceries and then get home
Jamie: yes i love it
Jamie: but you have to pay hun
Haniffa: yes I know
Haniffa: how much for the half? … and where?
[6] Jamie stated the price as $80 for a half hour and stated the location. Mr. Haniffa asked, "And how do I know this is not some setup?" The officer replied, "omg hun im not how long have we been texting … and besides I am the one who shud be worried." Mr. Haniffa continued the text discussion:
Haniffa: Heading over to that area txt me when ready
Haniffa: How wet do you get?
Jamie: How wet do you like it
Haniffa: Dripping … Why?
Haniffa: And squirting if possible
Jamie: I'm 15 hun … dont u have to be older to squirt … well i haven't been able to …
Haniffa: But do u get soaking wet? …
Haniffa: Let me know where … ASAP ….
[7] From that point onward Mr. Haniffa communicated via text that he was on the way over to see Jamie to purchase sex as they'd arranged. There's discussion of times to meet and Jamie confirmed that Mr. Haniffa had agreed to pay $80 for a half hour of sexual services. Mr. Haniffa was wary and said in several texts, "Not getting a good feeling about this", "No r u (a cop)", "Don't even know if I am talking to the person I am seeing (in the ad)". Jamie provided the room number and despite some concern that the person he was talking to might be a police officer and that, "this could become a complete disaster" Mr. Haniffa decided to go into the hotel and up to Jamie's room. He knocked on the door of that room and was arrested with his cellphone in his hand and money on his person to complete the transaction.
[8] Mr. Haniffa is a Chief Information Officer for a corporation. He's intelligent, well-educated and well-spoken. Although he had difficulty with some of his answers and explanations he was polite and generally responsive to questions asked by both counsel.
[9] Mr. Haniffa testified that in the year and a half prior to his arrest he'd used the Backpage website to purchase sex approximately 20 times. He's an experienced user familiar with the website and the text terms used in communications related to prostitution. He acknowledged that he knows that communicating for that purpose even with adults is a criminal offence. Mr. Haniffa testified that he did not pay much attention to the banner text in this ad or the photos, he was focused only on the location as it was on his route home. On March 22, 2016 he started his text messages from work. When Jamie responded that she was done school at 3:30 p.m. he thought she was referring to college classes, it did not occur to him that she might mean high school. He ignored the stated age of 18 in the online ad as in his experience the women often are older than stated in the ads.
[10] When Jamie told him she was under 18 he said that, "got his back up" as the age reference was not something he'd seen before. He said he asked her if she was a police officer because he "wanted to know what was going on". After Jamie responded "No silly .." he said he knew at that point he was definitely not talking to a female. The use of the word silly he thought was only used by adults speaking to children. He asked her how old she was but received no response. He then asked if she enjoyed "oral". He said he asked that to see who was on the other side of the conversation. A subsequent response using the word "hun" confirmed in his mind that he was dealing with an adult. At 6:15 Jamie told him she was 15 years old in response to his earlier question. His text back "Mm" was meant to be sarcastic indicating disbelief. When Jamie asked what did Mm mean he responded "As in mm ok". He said that did not indicate he was ok with her being 15 it meant that he was expressing disbelief. At that point he testified that he was certain he was either speaking to a male police officer or a pimp trying to set him up for extortion. He didn't believe he was speaking to a female.
[11] To the officer or pimp he sent a message asking if they liked oral sex and kissing. He added, "They are huge for me". Mr. Haniffa explained that he sent those texts to figure out who he was talking to. He then went further and asked about price and where they could meet. Again, he said he was trying to figure out what was going on, but he also said he knew it was a setup and that's why he asked Jamie a question using that word. After he left work and drove East on the 407 he said he considered a further possibility that it might be a female prostitute trying to set him up for extortion as well although he thought that was unlikely in comparison with the police or a pimp. Mr. Haniffa explained that the sexually graphic conversation he engaged in afterwards was, "just general banter". He wanted to keep the conversation going to keep the police officer or extortion person interested in him.
[12] Mr. Haniffa said he didn't really pay attention to the further text mentioning that Jamie was 15 as he was driving at the time. He was still certain that this was a police operation or a pimp trying to extort him. He was stressed but he asked Jamie where they could meet "ASAP". By that point Mr. Haniffa was certain he was in trouble. He felt he was likely heading into a trap set by a pimp or the police. He asked for the address because he was planning on "seeing what was going on". He didn't know whether it was a pimp or police and he didn't know what was going on. He felt they were trying to drag him in deeper.
[13] At one point he texted Jamie to say he was too nervous to go ahead and that it could turn out to be a complete disaster for him. He testified that he was ready to walk away but Jamie made, "a last ditch effort" to convince him to come up stairs. A minute later he told her he was in the hotel, downstairs in the lobby.
[14] Mr. Haniffa went into the hotel, up the elevator and to the room to meet Jamie. He explained that at this point he knew he was in trouble. He was now pretty sure he was talking to the police. There were a million things racing through his head. Since he'd used his work phone for these discussions he felt that going to the room was the best choice of action. When he knocked on the door he felt it was a 90% chance he was dealing with a police officer.
[15] Mr. Haniffa testified that the stress he was under that evening affected his thinking at the time and his present memory of those events. He also referred to the passage of time as detracting from his ability to remember the events in question. As an example of his mental state at the time he explained that when he paused just before proceeding to the hotel, "My mind was pretty much disoriented I can't really remember much from that time." He could not recall what if anything was said that he says made him decide to continue on to the hotel.
The Law
[16] For the s.172.1 offences alleged in counts 1 and 2, section 172.1(3) provides that evidence that the person was represented to the accused as being under the age of 18 year or 16 years is, in the absence of evidence to the contrary, proof that the accused believed the person was under that age. The presumption of age was recently explained in R v Ghotra, 2016 ONSC 1324 at paras 113 to 125. It only applies where there is no evidence tending to show that the accused believed the other person was older than the specified age.
[17] Section 172.1(4) states that it is not a defence to a s.172.1 charge that the accused believed the person was at least 18 or 16 years of age unless the accused took reasonable steps to ascertain the age of that person. Sections 172.1(3) and 172.1(4) are to be read together and applied in the manner set out in R v Lavigne, 2010 SCC 25. Reasonable steps can include information from any source, whether elicited by active steps or otherwise – R v Ghotra at para 105.
[18] The s.286.1(2) offence alleged in count 3 prohibits communicating with anyone for the purpose of obtaining for consideration the sexual services of a person under 18. Unlike the s.172.1 offences there is no statutory presumption regarding belief in age. There is a reasonable steps restriction. Section 150.1(5) of the Criminal Code provides that it is not a defence to a charge under s.286.1(2) that the accused believed the complainant was 18 years of age or more at the time of the alleged offence unless the accused took all reasonable steps to ascertain the age of the complainant. The defence submits s.150.1(5) refers to a "complainant" so although that section applies to the s.286.1(2) offence, it should only be applied where the Crown proves the accused actually obtained sexual services from an underage person. The defence submits that s.150.1 should not be applied to the inchoate offence.
Analysis
[19] I've considered the evidence as a whole and make the findings of fact that follow in that context. The parties agree that the Crown has proved the accused communicated with DS Truong via SMS text messages (telecommunication) as alleged. The admitted purpose of those conversations, at least at the outset, was to obtain sexual services for monetary consideration. The credible evidence at trial proves that purpose continued throughout the conversation.
[20] I approach Mr. Haniffa's evidence with concern about the reliability of his memory given his testimony regarding his state of mind at the time, the passage of time and the effect of both on his ability now to remember the events.
[21] Mr. Haniffa found the reference to Jamie being under age unusual. His first response indicated his concern – "Is this a cop thing or something". He was concerned about his potential jeopardy. In that regard he asked if he could call and then asked again how old she was. After 19 minutes he moved on and asked her if she enjoyed receiving oral sex and later asked where they could meet. Mr. Haniffa's evidence that he suspected the police might be involved when age was mentioned is credible given his response and the text record. His testimony that he knew at that point he was "definitely not talking to a female" by the use of the phrase, "no silly" is neither logical nor credible.
[22] Mr. Haniffa's evidence that he brought up oral sex just to, "see who is on the other side of the conversation" doesn't make sense and is inconsistent with the text record. If he was concerned with Jamie's age he could have discontinued the conversation which would have been the logical and safe course of action in relation to his central concern – his fear of legal consequences for himself. He could have focused the discussion on age if that was important to him but instead he was content to abandon the topic and move on to discuss sexual activity and arranging a meeting with a minor.
[23] Mr. Haniffa testified that he could tell there was a "zero percent chance" that he was dealing with a young person because of Jamie's use of the word "hun". He explained that in his experience "hun" is a word used only by adults with children. Although Mr. Haniffa was born and raised outside of Canada, he speaks English without an accent, he's highly educated and I accept that he understands the nuances of the language. His analysis of the use of this word in context though is not reasonable. Even if that was his inference, he could not reasonably place much weight on it, particularly where he received direct evidence via text as to Jamie's age.
[24] Jamie told him, "im 15 to be hones but I look older hun." Mr. Haniffa replied at 1620, "Mm" and then a second text sent at 1620, "Ok so where will u be working?" When asked, "why the mm babe?" he replied, "As in mm ok." Mr. Haniffa testified that his response to the text stating Jamie's age as 15 indicated disbelief. He said, "it means yeah right." Mr. Haniffa's evidence on this point is contradicted by his own text messages. He did not say, "yeah right" or express disbelief. He never said he believed her to be an adult. On the contrary he told Jamie he was "ok" with her stated age. His subsequent texts were consistent only with his being ok with her age of 15 as he asked no further questions and moved directly to questions about her sexual preferences.
[25] Mr. Haniffa explained that by this point he knew that he was communicating with a police officer or a pimp seeking to extort him. Instead of discontinuing the conversation though he said he asked about oral sex and kissing and meeting Jamie, to figure out who he was talking to. This explanation repeated throughout his evidence that he was certain he was talking with persons who could pose very serious trouble for him but he decided to provide them with graphic evidence against his own interest because he was curious which bad alternative he was dealing with is nonsensical. His questions about oral sex, kissing and meeting Jamie could not help and did not help him determine who he was talking to. The fact that he continued to arrange a price for the sexual services he was interested in is another circumstance that is inexplicable on his evidence but completely consistent with the whole of the text messages showing his interest in purchasing sex from Jamie.
[26] The graphic sexual messages from Mr. Haniffa that followed cannot reasonably be described as "general banter". His evidence that he was not paying attention to the responses is untrue given the timing and sequence of texts. Mr. Haniffa knew that if he was speaking to a police officer or a person seeking to extort him, responding with graphic messages would significantly add to his troubles. There was no reason for him to send such messages to satisfy some ongoing curiosity nor was there a reason for him to want to keep the other person interested in the conversation if he truly believed that only trouble was on the other end of the line. His candid and graphic texts are consistent only with his plan to purchase sexual services from Jamie.
[27] I agree with the defence that there's evidence that Mr. Haniffa was wary throughout. His evidence on that one point is credible to a limited extent. He's intelligent and he was plainly aware that there was a possibility that the police were involved. The fact that he continued the conversation and made detailed arrangements to purchase sex from a 15 year old shows plainly that he concluded there was a high probability Jamie was the person she represented herself to be. He would have disengaged had he truly thought it likely at any time that he was texting the police or a person seeking to extort him. That's particularly true given that he was using a work phone. He never would have driven to the hotel and gone to that room if he'd known he was going to be arrested. His evidence that he knew he was walking into a trap just because, "I was planning to see what was going on, I didn't really know what was going on" doesn't make any sense. His testimony that he said yes and agreed to meet Jamie because, "I wasn't sure what else to say it was just an answer" is not credible.
[28] He made several claims that the person on the other end of the texts was trying to "drag him in deeper" but it's plain that it was Mr. Haniffa himself who insisted on running head-first into trouble. He said the reason he went to the room was that Jamie made, "a last ditch effort to convince me". When he indicated he was having second thoughts and may not be coming Jamie said, "It's ok if u don't wana see me hun i understand but i need to book other clients." Contrary to Mr. Haniffa's evidence, DS Truong did not pressure Mr. Haniffa but instead he gave him a way out. It was Mr. Haniffa who nevertheless without prompting decided to go ahead and complete the transaction he'd arranged.
[29] The credibility of the Crown's evidence was not challenged and the key components are independently confirmed by the reliable text record. That credible evidence shows that Mr. Haniffa communicated with Jamie to purchase sexual services, that he communicated via texts for that purpose, that he invited and counselled that person to engage in sexual touching as part of the sexual services he was purchasing, and that he believed that Jamie was 15 years old.
[30] Mr. Haniffa's evidence was illogical to the point of being nonsensical on the central points. It was internally contradictory. His testimony is contradicted by credible external evidence including the text messages he sent and his actions on the day in question. Mr. Haniffa was not a reliable witness nor was his evidence credible. I must reject his testimony on the central points as untrue.
[31] In all of his text messages Mr. Haniffa never once expressed any concern for Jamie or said he wanted to ensure she was over 18 years old. On the contrary, the only concern Mr. Haniffa ever expressed in relation to Jamie's age was for himself and his potential jeopardy. He discussed every other aspect of their sexual services arrangement in great detail but he did not pursue the issue of her age. Mr. Haniffa did not ascertain Jamie's age because, in his own words he was, "ok" with her being 15.
[32] There is no credible evidence that reasonably could leave a doubt on any of the three counts. The whole of the evidence is consistent with only one conclusion – that Mr. Haniffa made a detailed agreement to purchase sex from a person he believed was 15 years old and acted upon that agreement until his plan was thwarted by his arrest. The Crown has proved that beyond a reasonable doubt on the facts even without reference to the statutory provisions referred to above.
Conclusion
[33] I find that the Crown has proved beyond a reasonable doubt that the accused arranged and attempted to purchase sexual services from a person he believed to be a 15 year old girl. The credible evidence at trial proves all three counts alleged to that standard. There is no credible evidence which reasonably could leave a doubt on any of the counts alleged. There will be a finding of guilt on each count.
[34] I invite both parties to make submissions with respect to the application of the rule prohibiting multiple convictions for the same delict.
Delivered: 13 June, 2017
Hon. Joseph F. Kenkel
