Court File and Parties
Ontario Court of Justice
Date: 2018-10-25
Court File No.: Brampton 18-2980
Between:
Her Majesty the Queen
— and —
John Freeman
Before: Justice M.M. Rahman
Heard on: September 17 and 18, 2018
Reasons for Judgment released on: October 25, 2018
Counsel:
- Tina Kim, counsel for the Crown
- Alan Richter, counsel for the accused John Freeman
Judgment
RAHMAN, J.:
1. Overview
[1] The accused, John Freeman, is charged with two counts of making written child pornography and two counts of making arrangements with another person to commit sexual offences against a four-year-old girl.
[2] On April 21, 2017, Mr. Freeman was in an Internet Relay Chatroom called "0!!!!!!!!!PEDOMOMS." He was using the username "CoolGuy." He initiated a text conversation with someone with the username "curiouzmum" who later told Mr. Freeman her name was Karen. Within seven minutes of starting the conversation, Mr. Freeman told Karen that he was in the chatroom because he was looking for a mother who was interested in helping him, and watching him, have sex with one of her children. Karen said she had two daughters who were four and ten. After finding out that she lived just west of Toronto, Mr. Freeman said that if they got to know each other better, they might be able to meet. In less than an hour of his initial text, Mr. Freeman suggested they communicate through Yahoo Messenger.
[3] Between April 21 and May 9, 2017, Mr. Freeman exchanged dozens of messages with Karen. Mr. Freeman described, in graphic detail, sexual acts he wanted to perform on Karen's four-year-old daughter. He would seek updates from Karen about what steps she had taken to groom her daughter for sexual activity. Mr. Freeman discussed meeting Karen on the afternoon of May 10 at her place in Brampton.
[4] Mr. Freeman stopped communicating with Karen on May 9. He did not attend their scheduled meeting. Instead, on the afternoon of May 10, he and his wife had their monthly meeting with a Children's Aid Society (CAS) worker at their home. That meeting was originally supposed to take place on May 11. Mr. Freeman's wife had re-scheduled the meeting on the morning of May 8. She told her husband about the new time the same day.
[5] The person using the name "curiouzmum"/Karen was not a mother interested in having her daughter abused by a stranger. She was an undercover Peel Regional Police Officer, Cst. Caroline Losier. Peel Police waited for Mr. Freeman to arrive at the scheduled time and place in Brampton. Police also executed a search warrant on Mr. Freeman's home at 2:34 pm on May 10, while he and his wife were meeting with the CAS worker. Mr. Freeman was arrested.
[6] There is no issue that Mr. Freeman engaged in sexually explicit chats with Cst. Losier. Nor is there any issue that those chats constitute written child pornography because they advocate and counsel sexual offences against a child. The only issue in this trial is whether Mr. Freeman intended to make an arrangement with another person to commit a sexual offence against a child.
[7] Mr. Freeman argued that the Crown's evidence falls short of proving the requisite intent. Mr. Freeman acknowledged that he discussed meeting with Karen, and set a time and place for that meeting. However, he argued that other aspects of his communication undermine the inference that he really intended to make the arrangement. Most telling, said Mr. Freeman, is that he continued to talk about meeting Karen even after he knew he had a meeting with a CAS worker the very afternoon they were to meet.
[8] These reasons explain why I find that the Crown has proven the requisite intent in this case beyond a reasonable doubt.
2. Summary of the Facts
[9] Much of the Crown's case went in through an agreed statement of facts. Although the Crown and defence both called some viva voce evidence, the facts are not really in dispute.
2.1. Initial Contact Between Mr. Freeman and "Karen"
[10] Mr. Freeman "met" Karen on April 21, 2017 in an IRC chatroom called "0!!!!!!!!!PEDOMOMS." After saying hello, Mr. Freeman asked Karen what she was curious about. She told him that she was interested in incest and seeing a man have sex with a teen. Karen then asked Mr. Freeman what brought him to the chatroom. He said he was "looking for a mom with girl/boys that woulkd like to watch/help me fuck them." Karen then told Mr. Freeman that she was 35 with two daughters aged four and ten and that she lived near Toronto. After learning that they both lived near Toronto, Mr. Freeman said, "if we get to know each other better maybe we could meet."
[11] After a bit more discussion about their interests and their respective ages and physical appearances, Mr. Freeman asked, "so you want a guy to come over and abuse the girls?" Karen replied, "not exactly like that but kinda I mean not forced." Mr. Freeman asked, "so you want the guy to date the girls?" Karen replied, "like a teacher, show them." Mr. Freeman replied, "mmm yes, i could do that." Karen then asked Mr. Freeman, "like in real life or fantasy?" Mr. Freeman responded, "real life, is this just fantasy for you?" Karen responded that she wanted real and that she did not like roleplay or fantasy. Mr. Freeman then asked Karen if she could chat on Yahoo and he provided his username for her to message him on that service.
2.2. Yahoo Messenger Chats
[12] The remainder of the communication between Mr. Freeman and Karen took place using the Yahoo Messenger platform.
[13] After falsely telling Karen that he was divorced, Mr. Freeman asked her if she would help him penetrate her four-year-old. When she said she would, Mr. Freeman graphically explained how he would "teach" the child. Mr. Freeman and Karen then engaged in more sexually explicit conversation about what excited Karen and about what they would do together with the child. Interspersed in the sexual conversation was an exchange of personal details. Mr. Freeman said that he was retired and that he had two grown children.
[14] Less than an hour into the Yahoo chat, Karen asked Mr. Freeman, "So u said u live in Toronto?" Karen told him that she lived in Brampton and Mr. Freeman answered that he lived in Whitby. Mr. Freeman then broached the subject of meeting again and asked, "if we met would you want to masterbate infront of me?" Karen asked if Mr. Freeman meant while he was touching her daughter, whose name she then revealed as Maddie. Mr. Freeman replied, "no while we were talking about touching her." Karen eventually said, "If ur looking for a mom to masturbate for u I'm sorry but that's not me." Mr. Freeman replied, "that's ok, I sure you will be when I'm with maddie." When Karen expressed her agreement, Mr. Freeman asked, "do you think i should take my cock out the first time i meet her?"
[15] After about a five-hour break in their communication, Mr. Freeman returned and asked Karen if she now looked at her daughters differently. He also provided advice to Karen on how to groom Maddie and get her accustomed to sexual activity. Mr. Freeman then asked Karen "how soon from now" that she wanted him to penetrate her daughter. When Karen responded that she would need time to prepare the child, Mr. Freeman asked, "what time line are you thinking about?" Karen responded about two to three weeks. The two continued to graphically discuss various sexual acts, including what Karen said she allowed her daughter to do during a bath.
[16] The next day, Karen asked Mr. Freeman if he would send a picture of himself to her. He agreed on the condition that she do the same. The two exchanged pictures of themselves. Mr. Freeman sent a picture of himself with his face blocked out.
[17] The discussion continued the following day with Mr. Freeman seeking updates and details about what Karen had done with her daughter. Mr. Freeman said that he could hardly wait to perform a sex act on Maddie. Karen responded, "Man I hope ur for real." Mr. Freeman said, "oh I am, I hope you are." Mr. Freeman then asked Karen if she would perform oral sex on him herself before he had contact with her daughter. Karen asked if Mr. Freeman was just trying to get her by talking about her daughter. Mr. Freeman responded, "no, I want her, but if she is going to be a fuck toy, we should be in a relationship if it goes that far."
[18] Mr. Freeman and Karen continued a graphic discussion of what sexual acts he would perform on Maddie. Karen then asked Mr. Freeman what time of day he would want to meet. Mr. Freeman suggested "afternoons." He then asked Karen, "how soon are you wanting to meet?" Karen responded, "Not for a few weeks..how bout you?" Mr. Freeman said that was fine with him and then asked about the child's readiness by then.
[19] Mr. Freeman and Karen continued sexually explicit conversation over the next two days. On April 25, Karen broached the subject of meeting. She asked Mr. Freeman, "So what do u envision would happen if we meet up?" Mr. Freeman responded, "I don't really know, get to know each other I suppose, what do you want to happen if we meet?" She then asked Mr. Freeman where he wanted to meet and asked about her place. He responded that her place was fine. The two then continued sexually graphic discussions, including what they would do if they met and what Karen would be doing with her daughter.
[20] The chat between the two was on hiatus for a couple of days because Karen told Mr. Freeman that she was in Cuba. Once she said she returned, the two resumed their regular sexual discussions.
2.3. The First Discussion of a Meeting Time
[21] On May 3, while Karen was describing what she had been doing to her daughter, Mr. Freeman described what he wanted to see Karen do to Maddie when they met. Karen asked Mr. Freeman when he wanted to meet. Mr. Freeman responded that it was up to Karen and her daughter. Karen suggested the following Wednesday (May 10) in the early afternoon, because she said she would be working from home. Mr. Freeman then asked, "is she not in school then?" Karen explained that her daughter was only in pre-school for half days. Mr. Freeman responded, "that would be great." Karen then suggested that Mr. Freeman could come at 2:00 pm. Mr. Freeman again responded, "that would be great." Both expressed that they were looking forward to the meeting. They then carried on with a sexually explicit discussion in which Mr. Freeman explained the things that he wanted to do with Maddie. Later in the conversation, Karen asked, "So your still good to meet at my house in Brampton?" Mr. Freeman said, "yes I am" and then in the same sentence asked if Karen had used a sex toy with her daughter. Later in the conversation that evening, Karen confirmed with Mr. Freeman that he would bring pills, and also suggested that he bring a stuffed toy for Maddie. Mr. Freeman replied, "I can bring her a nice toy."
[22] The next day, Karen asked Mr. Freeman what he pictured happening at their meeting. Mr. Freeman replied in graphic language. The two continued sexually explicit conversation over the next couple of days.
[23] On May 8, two days before they were to meet, Karen brought up the upcoming meeting. At 11:57 am, she said, "I'm psyched for wed." Mr. Freeman responded a minute later saying, "great, what was done last night?" After answering his question, and asking how far away Whitby is from Brampton, the following exchange occurred:
Karen: Oh not bad. Lemme know if u need my cell number for when ur on the way.
Freeman: need a address
Karen: Yes lol 210 Steeles ave west I'll meet u in lot and bring u upstairs
Freeman: ok sounds great
Karen: Actually it's better if I meet u in lobby since I can't leave Maddie alone it's easier in lobby. What kind car u have?
Freeman: ok that sound good, I have a black malibue
[24] In fact, Mr. Freeman did not drive a black Malibu. He was describing his wife's car. Mr. Freeman actually drove a black pickup truck.
[25] After asking each other if they were nervous, Karen told Mr. Freeman where visitor's parking for her building was located, and that he might have to pay a couple of dollars. Mr. Freeman's reply was "oh that's cool."
[26] On May 9, the day before the scheduled meeting, Karen asked Mr. Freeman what he was bringing with him tomorrow. Mr. Freeman replied that he would bring candy, sleeping pills, and condoms. He then asked how long it would be before he could take his penis out. Karen later asked Mr. Freeman what he planned to wear the next day. Mr. Freeman did not respond. Karen sent three messages to Mr. Freeman on May 10. Her last message at 1:31 pm asked if he was on his way. Mr. Freeman did not reply to any of her messages that day.
2.4. Melissa Amey's Evidence
[27] Mr. Freeman's spouse, Melissa Amey, was the only defence witness. Ms Amey testified that she and Mr. Freeman lived with their two grandchildren. Because they cared for their grandchildren, they had monthly appointments with a CAS kinship worker. Those meetings typically took place at their home. Both Mr. Freeman and Ms Amey were usually present for the meeting along with their grandchildren.
[28] Ms Amey testified that at their April 10 CAS appointment, they had set their next appointment for Thursday, May 11 at 3:30 pm. On the weekend of May 6 and 7, Mr. Freeman and Ms Amey had gone to their cottage with their grandchildren to open their cottage for the season. While there, a problem occurred with the cottage's water supply. Because they had friends coming to their cottage for the Victoria Day weekend, getting the water issue fixed was a priority. They decided to go back to the cottage the following weekend to fix the problem.
[29] Because Ms Amey was not working during the week of May 8, she and Mr. Freeman decided to go back to the cottage later in the week. Ms Amey called their CAS worker at 9:30 am on Monday, May 8. She re-scheduled the appointment to Wednesday, May 10 at 2:00 pm. Ms Amey believed that she told her husband of the re-scheduled appointment shortly after she finished her call at about 10:00 am. Her plan was that she and Mr. Freeman would go to their cottage on Thursday afternoon (May 11).
3. The Mens Rea of Making an Arrangement under s. 172.2(1)
[30] Subsection 172.2(1) makes it an offence to make an arrangement with another person to commit certain designated offences. The offence has been described as a "preparatory crime." It proscribes otherwise legal conduct that is meant to culminate in the commission of a crime. Like other inchoate offences, the purpose of the provision is to prevent the commission of the designated offences by criminalizing conduct that might pave the way for it. As Doherty J.A. commented in R. v. Alicandro on the similar provision (s. 172.1) prohibiting child luring:
The offences created by s. 172.1, like the inchoate crimes of conspiracy, attempt and counselling, are prophylactic in that they seek to prevent the commission of the designated crimes by criminalizing conduct that occurs on the way toward the commission of the designated crimes. Also like the inchoate offences, justification for criminalizing the conduct described in s. 172.1 is found in the required mens rea. It is the intention to facilitate the commission of one or more of the designated offences that makes the accused's otherwise lawful conduct, sufficiently harmful and potentially dangerous to warrant the imposition of criminal sanction.
[31] An accused must have the intention to make an arrangement to sexually assault a child. The accused's intention must be determined subjectively. The accused's purpose in making the arrangement must be to commit one of the designated offences. The Crown need only show that he intended to make the plan and that the plan involved one of the offences designated in the provision. Provided the accused's mens rea coincides with the making of the arrangement, the offence is made out. It does not matter whether the offence is ever actually committed, attempted, or even factually possible. The Crown is not required to prove that the accused intended to follow through with his plan.
4. Parties' Positions
[32] As mentioned above, the only issue in this case is whether the Crown has proven that Mr. Freeman intended to make an arrangement. The parties interpret the evidence quite differently.
4.1. Defence Position
[33] Mr. Freeman's lawyer, Mr. Richter, argued that there is insufficient evidence that his client had the intention to make an arrangement to sexually assault a child. Mr. Richter said that there are other reasonable inferences available on the evidence and those other reasonable inferences suggest that Mr. Freeman lacked the requisite intent. Mr. Richter said that there is an equally strong inference that what Mr. Freeman was engaged in here was fantasy. This was all talk.
[34] Mr. Richter argued that much of the discussion about meeting was initiated by the officer. He pointed to a number of occasions where the officer mentioned meeting, and his client simply gave a very brief answer and then moved on with more sexually explicit talk. Mr. Richter argued that this showed his client was not really serious about meeting, but seemed to be more serious about engaging in the graphic discussions about what Karen was doing to her daughter and what his client wanted to do.
[35] Mr. Richter also said that, unlike other making arrangement and luring cases, there was no evidence extrinsic to the chat conversations themselves that would evidence an intention on Mr. Freeman's part to make an arrangement. In support of his submission he referred to the following passage from R. v. Legare, where Fish J. stated that the content of the communication is not necessarily determinative:
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 underage victim for the purpose of facilitating the commission of a specified secondary offence in respect of that victim.
[36] In the same vein, Mr. Richter noted that this case is unlike cases like R. v. Cooper, where the accused was caught on the way to the meeting with a teddy bear for the child and beer for the mother, along with condoms and lubricant. Mr. Richter cautioned that in the absence of such extrinsic evidence, the court should be extremely cautious about drawing the inference of intent.
[37] Mr. Richter also noted that Mr. Freeman was dishonest about a number of things in his communications. He represented himself as being a decade younger than he really was and lied about the city he lived in. Mr. Freeman also falsely said he was divorced and that his mother lived with him. He also said that he drove a black Malibu. Mr. Richter argued that these lies undermine the inference that Mr. Freeman was serious in his conversations and they support the inference that he was merely engaging in fantasy.
[38] Finally, Mr. Richter noted that the fact that Mr. Freeman continued to discuss meeting with Karen, even after the CAS meeting had been re-scheduled, makes it clear he never had any intention of meeting or making an arrangement to commit the offence. According to Ms Amey, she told Mr. Freeman around 10:00 a.m. on May 8 that their CAS appointment was at 2:00 pm on May 10. Despite knowing of this appointment, Mr. Freeman continued to talk as if he would be at the meeting. Mr. Richter said that this makes it apparent that Mr. Freeman never had any intention to make an arrangement.
4.2. Crown's Position
[39] Crown counsel, Ms Kim, argued that the arrangement was concluded as of May 3. She argued that, after May 3, all Mr. Freeman and Karen were doing was finalizing details. She said that all of the conversations leading up to May 3 make it clear that Mr. Freeman had the requisite intent. Ms Kim argued that Mr. Freeman clearly had the requisite intent at the time the arrangement was made. While she acknowledged that the later conversations, including those on and after May 8 are relevant, she said at most they show that Mr. Freeman changed his mind. The mere fact that circumstances changed on May 8 does not mean that Mr. Freeman did not have the requisite intent on May 3.
[40] In support of her argument, Ms Kim highlighted the fact that Mr. Freeman was the first to bring up the prospect of meeting within several minutes of initiating contact with the undercover officer. Moreover, Mr. Freeman discussed how to prepare the child for meeting him and frequently discussed what would happen when he finally met her.
[41] Ms Kim also argued that it is of no moment that Mr. Freeman lied about certain things during the chat conversations. Lying about one's age to make oneself younger is common. Ms Kim also observed that the things he lied about actually helped him foster the relationship with Karen. Saying he was divorced would make it easier to have a relationship with this new woman he met online. Also, saying he lived with his elderly mother would provide him with an excuse about why he could not leave his house at a moment's notice, despite being a retired divorced man. Ms Kim said that Mr. Freeman did tell Karen the truth about his appearance and other things that would be apparent if they were to meet in person. As for the lie about the kind of car he had, Ms Kim observed that his truck had child seats in it while his wife's Malibu did not. According to Ms Amey the seats are not that easy to remove. It would make sense that he would rather show up in a car that did not have child seats.
5. Analysis
[42] I am satisfied beyond a reasonable doubt that Mr. Freeman intended to make an arrangement to commit an offence under ss. 151 and 271 of the Criminal Code, when he agreed with Karen to meet her at her apartment on the afternoon of May 10. The following facts convince me that Mr. Freeman's intention was to meet Karen to commit a sexual offence against her daughter:
(1) Mr. Freeman was the first to bring up the topic of meeting Karen and he did so within minutes of "meeting" her in the chatroom. This suggests that he entered the chatroom with the intention of meeting a mother who was a pedophile (given the name of the chatroom).
(2) Mr. Freeman confirmed with Karen early on in their communication what exactly she was looking for, and whether she was looking for someone who could abuse or "date" her daughters. When Karen replied that she was looking for a kind of teacher for them, he said he could fulfill that role.
(3) Mr. Freeman told Karen it was not fantasy and that it was real. He confirmed with her that she also meant it to be real and not fantasy. This is not only an admission by Mr. Freeman that he did not consider their conversations to be fantasy, but that he wanted to make sure that Karen herself was not simply engaging in fantasy.
(4) Mr. Freeman asked Karen how soon she wanted to meet. He also asked what timeline she was considering for meeting.
(5) Mr. Freeman frequently said what he planned to do when he finally met Karen and her daughter.
(6) Mr. Freeman said that he was interested in having a romantic relationship with Karen.
(7) Mr. Freeman asked Karen whether she had told her daughter about him. He also instructed Karen how she should prepare her daughter to be sexually assaulted by him. This shows that his purpose was to get the child ready so she would be more cooperative when she finally met him.
(8) Mr. Freeman was the first to suggest when they would meet. He suggested the afternoon when asked what time of day he would want to meet. According to Ms Amey, their grandchildren napped in the afternoon. That would have been the most opportune time for him to leave the house. Had this been fantasy, Mr. Freeman could as easily have said he was willing to meet anytime.
(9) When Karen told Mr. Freeman that she wanted to meet during the early afternoon, Mr. Freeman was curious why Maddie would not be in school then. This shows that Mr. Freeman wanted to be sure that the offence would be possible and that he would have access to Maddie. If Mr. Freeman was engaging in fantasy, there would have been no reason for him to satisfy himself that Maddie would not be in school.
(10) Mr. Freeman asked for Karen's address. Although Mr. Freeman asked for the address after he knew that the CAS appointment would conflict with their meeting time, there would have been no other reason for him to ask for the address unless he wanted to go some time in the future whether on May 10 or some other date. This is especially so since he only asked for an address when Karen was offering him her cell phone number.
[43] I am satisfied that the arrangement itself was complete on May 3 and that Mr. Freeman had the intention on that date to arrange with Karen to commit the designated sexual offences.
[44] I am not troubled by the lack of evidence extrinsic to the conversations in this case. To be sure, while the existence of such evidence would strengthen the inference of intent, its absence does not undermine the inference when there is otherwise sufficient evidence. I am satisfied that the content of the communications here demonstrates intent. The plain meaning of Mr. Freeman's own words were that he wanted to meet a woman with a child and that he wanted to commit sexual offences against the child. In his own words he wanted something real, and he did not want fantasy.
[45] Mr. Richter's reliance on the Supreme Court's comments in Legare, excerpted above, is misplaced. The court in Legare did not say that the offence cannot be made out only by looking at the content of the communication. Rather, Fish J. said that the communication need not be explicitly sexual and that it need not explicitly describe the commission of offences. This is apparent when one considers the entire context in which Fish J. said that the content of the communication is not determinative. The paragraphs preceding the one Mr. Richter relied on make that clear:
[29] I hasten to add that sexually explicit language is not an essential element of the offences created by s. 172.1. Its focus is on the intention of the accused at the time of the communication by computer. Sexually explicit comments may suffice to establish the criminal purpose of the accused. But those who use their computers to lure children for sexual purposes often groom them online by first gaining their trust through conversations about their home life, their personal interests or other innocuous topics.
[30] As Hill J. explained in R. v. Pengelley, at para. 96:
. . . computer communications may serve to sexualize or groom or trick a child toward being receptive to a sexual encounter, to cultivate a relationship of trust, or to undertake a process of relinquishing inhibitions, all with a view to advancing a plan or desire to physical sexual exploitation of a young person.
[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 underage victim for the purpose of facilitating the commission of a specified secondary offence in respect of that victim.
[46] I am also not concerned by the fact that Mr. Freeman lied about certain things in his conversations with Karen. It is not unusual that someone would lie about their age or marital status when communicating anonymously online and for a sexual purpose. As Ms Kim observed, he did not lie about things that would be obvious upon meeting in person. And two of the things he lied about (being divorced and having an elderly mother) would have been useful in effecting his purpose of fostering a relationship or explaining why he was not available at certain times. As for the lie about the black Malibu, while I am mindful that Ms Amey said that Mr. Freeman did not drive the car (mainly because he could not smoke in it), I am not concerned that it undermines the inference that Mr. Freeman was serious when he made the arrangement. Again, as Ms Kim observed, it is likely Mr. Freeman was considering bringing a car that did not have car seats.
[47] Finally, I am also not concerned by Mr. Richter's argument about his client's continued discussion about the meeting even after he knew that the CAS appointment had been re-scheduled. Mr. Richter said it shows his client was not serious all along. As mentioned above, I draw a very different inference from that evidence. There was no reason for Mr. Freeman to ask for an address when he was being offered a cell phone number, unless he planned to go to that address at some point or otherwise continue his relationship with Karen. In my view, it shows that he was serious about meeting.
6. Conclusion
[48] The Crown has proven beyond a reasonable doubt that Mr. Freeman intended to make an arrangement with another person to commit sexual assault and sexual interference.
[49] The written communications that occurred between April 21 and May 10 2017, and those that occurred between September 20 and November 23, 2016, constitute written child pornography. I did not understand Mr. Freeman to contest his guilt on those charges. Those communications counsel and advocate sexual activity with children. They clearly fall within the definition of child pornography. Mr. Freeman admits authoring them.
[50] I find Mr. Freeman guilty of all charges in the information.
Released: October 25, 2018
Justice M.M. Rahman