Court Information
Ontario Court of Justice
Date: December 7, 2018
Court File No.: Barrie 17-5370/17-8023/16-1175/17-5868
Between:
Her Majesty the Queen
— and —
Kyle Andrew Crawley
Before: Justice C.M. Harpur
Heard on: March 27, 28, May 8, 11, September 5 and October 26, 2018
Reasons for Judgment released on: December 7, 2018
Counsel
Gregory Barker — counsel for the Crown
Adam Goodman — counsel for the accused Kyle Crawley
HARPUR J.:
I. Introduction
[1] On June 7, 2018, following three days of voir dire testimony, I released my ruling with respect to Mr. Crawley's Charter application to exclude from the evidence at trial the contents found by the police in the course of searching a Huawei Y530-U51 cellular phone (the "Huawei Smartphone") seized from Mr. Crawley. I dismissed the application.
[2] Mr. Crawley's application was, and the trial is, with respect to two informations: 16-1175 sworn March 1, 2016 and 17-8023 sworn December 5, 2017. Information 16-1175 contains four counts, two alleging breaches of a probation order made by Justice C.R. Harris on July 11, 2013 prohibiting both accessing the internet and possessing any device capable of accessing the internet, and two alleging breaches of an order of prohibition made by Justice Harris on the same date prohibiting both "any contact, including communicating by any means, with a person who is under the age of 16 years, unless…under the supervision of a person whom the court considers appropriate" and "using the internet or other digital network, unless…in accordance with conditions set by the court". Information 17-8023 alleges multiple charges of breaches of Justice Harris' July 11, 2013 prohibition and probation orders on dates other than those alleged in information 16-1175, together with four counts of luring under s. 172.1(1)(b) of the Criminal Code. There are two counts of luring for the purpose of facilitating the commission of the offence of sexual assault and two of luring for the purpose of facilitating the commission of the offence of invitation to sexual touching.
[3] All of the counts in the two informations are based on the contents of the Huawei Smartphone.
[4] Mr. Crawley was arraigned on September 5, 2018. By agreement, the voir dire evidence was applied to the trial.
[5] On September 5, 2018 Mr. Crawley entered not guilty pleas to the four charges in information 16-1175 and, initially, to the thirty-seven counts in information 17-8023 on which was he was arraigned.
[6] Mr. Barker for the Crown began the trial evidence on September 5, 2018 with an agreed statement of fact. It was made Exhibit 1. Following Mr. Barker's reading of that statement of fact, Mr. Goodman for Mr. Crawley invited the court to make findings of guilt on all of the arraignment counts in information 17-8023 except for the counts relating to the luring allegations, that is counts 38, 39, 45 and 46. I did so.
[7] In addition to the agreed statement of fact and the voir dire evidence called on earlier dates, at trial the Crown relied upon the evidence of Detective Constable Kip Wohlert called September 5, 2018 and the evidence of Mr. Mike Drury called October 26, 2018.
[8] Following the examination in chief of Mr. Drury on October 26, 2018, Mr. Goodman invited me to make findings of guilt with respect to the four counts set out in information 16-1175 and I did so.
[9] The agreed statement of fact, D.C. Wohlert's and Mr. Drury's evidence at trial and the Crown's evidence in the course of the voir dire certainly establish beyond reasonable doubt Mr. Crawley's repeated breaches of both the probation order and the prohibition order of Justice Harris.
II. Issue
[10] Accordingly, what remains for determination in this case is whether the Crown has established that Mr. Crawley engaged in telecommunication luring of persons under the age of sixteen years for the purpose of facilitating the commission of an offence of sexual assault and of invitation to sexual touching – counts 38, 39, 45 and 46 of information 17-8023.
III. The Evidence
[11] Mr. Barker relies in particular on tabs 16 and 18 of Appendix B to Exhibit 1 at trial, the statement of agreed fact. These tabs contain a series of Facebook messages exchanged between Mr. Crawley and two fifteen year old female children, S.K. and J.M. It is common ground that Mr. Crawley was aware throughout his communications with J.M. that she was fifteen years of age and that he had been advised by S.K. early in their communications that she was fifteen.
[12] There are both explicit references to sexual matters and sexual innuendo in Mr. Crawley's communications to these children. There are also suggestions by Mr. Crawley that they meet with him. To S.K., Mr. Crawley's communications include the following: "come over to my house and party"; "might murder that pussy though"; "you just love getting fucked"; "are you a screamer?"; "every had a threesum"[sic]; "has a guy even made you squirt yet"; "my hands won't wonder [sic] if yours don't"; "you should take a bus up here for the weekend"; "I'll tease you so bad now when we chill you'll beg for it"; "guess we can't get together now…I was really looking forward to it"; "maybe I'll just drive down sometime and surprise you"; "can we still cuddle…why not? Hell I'll even give you a massage"; Mr. Crawley asks for and receives from S.K. her telephone number as her last communication to him.
[13] To J.M., Mr. Crawley's communications include the following: "Oh so your [sic] virgin still?" and, to J.M.'s response "yeah well I'm only 15", Mr. Crawley says "lots of people aren't at 15 I lost mine when I was 13". Mr. Crawley asks J.M. how long she intends to remain a virgin, whether she is afraid of sex, that he is "thinking maybe you can handle me" once he discovers that she plays rugby, inquires whether she likes cuddling, advises her that he loves cuddling, advises that he has wandering hands, inquires whether if the two of them were cuddling she would stop his hands, and suggests that "we should chill sometime". When J.M. expresses reluctance to meet with Mr. Crawley because she has a boyfriend, Mr. Crawley suggests that she set him up with one of her friends and inquires whether her friends are "hot" and have had sex. Mr. Crawley advises J.M. that he resides in the Blue Mountains and is told by her that she works at a ski club a short distance away. He subsequently inquires whether J.M. would "get with someone in there [sic] 30s if they treated you good?" He advises that he "needs a great cuddle buddy". Again, when J.M. advises Mr. Crawley that she cannot be his "cuddle buddy" because she has a boyfriend, Mr. Crawley suggests she set him up with a friend, obtains the name of one J.M.'s friends and suggests that, when the friend was fourteen, she "got with" a thirty-six year old man known to Mr. Crawley who has told Mr. Crawley that the friend "is pretty wild".
[14] Mr. Barker submits that, on their face, these communications by Mr. Crawley make it abundantly clear that he was communicating for the purpose of facilitating a sexual assault and an invitation to sexual touching.
[15] Mr. Crawley testified at trial with respect to the communications in which he engaged with S.K. and J.M. and the other persons referred to in Exhibit 1, Appendix B. Essentially, his testimony was that he had no intention of ever having sexual physical contact with any of these persons or of inviting them to engage in sexual touching. He said that his social and sexual life was largely limited to the internet and that his contacts with these persons, including S.K. and J.M., were intended solely to establish friendships with them and to provide auto-erotic gratification through fantasies about them created by Mr. Crawley as he communicated.
IV. Analysis
[16] Mr. Goodman submits that the Crown's case fails on the luring charges since, given Mr. Crawley's evidence, there exists reasonable doubt as to whether Mr. Crawley's communications with S.K. and J.M. were for the purpose of facilitating either sexual assault or an invitation to sexual touching, as opposed to his professed purposes of facilitating friendship and self-gratification. With respect to S.K., the defence position is also that, since there was a gap of one week between S.K.'s advice to Mr. Crawley that she was fifteen and any arguably offensive communication by him to her, the Crown has not proven Mr. Crawley's belief that she was under sixteen years of age at the material time.
[17] It is important to note at the outset that, on the authority of R. v. Legare, 2009 SCC 56, the Crown is not under an obligation to prove a defendant's intention, at the time of the communication, to carry out the specified secondary offence in order to obtain a conviction under s. 172.1(1)(b) C.C. In Legare, the decision of Fish, J. for a unanimous court provided as follows at para. 25:
[25] It will immediately be seen that s. 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 offences 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 of the specified secondary offences. This is in keeping with Parliament's objective to close the cyberspace door before the predator gets in to prey.
and as follows at paras. 28 and 29 of the judgment:
[28] Section 172.1(1) makes it a crime to communicate by computer with underage children or adolescents for the purpose of facilitating the commission of the offences 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.
[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.
[18] Legare makes clear that the offence under s. 172.1(1)(b) C.C. is complete when, in addition to computer communication with a person who is or whom the accused believes to be under the age of sixteen years, the communication is proven to be for the purpose of facilitating one of the specified secondary offence, which include the offences of sexual assault and invitation to sexual touching. The emphasis is not on the specified secondary offence but on the act of facilitation, a term which, the Supreme Court of Canada points out, encompasses the concept of "making easier or more probable".
[19] Moreover, in Legare, the erroneous interpretation of the s. 172.1(1)(c) phrase "for the purpose of facilitating the commission of an offence" applied by the trial judge is described as follows:
[19] And with respect to the mens rea, the trial judge accepted defence counsel's submission that the phrase "for the purpose of facilitating the commission of an offence" requires an intention to lure for the specific purpose contemplated by s. 172.1(1)(c). The judge recognized that the Crown was not required to prove that the accused intended to carry out the specified secondary offence. He concluded, however, that the accused must be shown to have intended to lure a child for that purpose. Mr. Legare did not arrange a meeting with the complainant; nor did he intend to do so. His intention to "talk dirty" was insufficient. In the trial judge's words (at para. 22):
The Crown need not prove the accused actually intended to carry out the enumerated secondary offence, but the Crown does need to prove the accused intended to lure the child for that purpose
The Supreme Court explicitly rejected this interpretation as unduly narrow. Thus, as I understand the judgment in Legare, s. 172.1(1)(b) C.C. requires only proof of a present intention to bring about a set of circumstances in which a specified secondary offence becomes easier or more probable. As Mr. Barker submitted, the Crown need not prove that the defendant "has the final act in mind".
[20] I am satisfied beyond reasonable doubt that the intentional prurient discourse between Mr. Crawley and S.K. and J.M. would facilitate a reduction in their inhibitions and an exploitation of their curiosity, immaturity or precocious sexuality, effects which would in turn render easier a sexual assault or an invitation to sexual touching by Mr. Crawley. Thus, even if the Crown failed to prove that, when communicating, Mr. Crawley had any intention ultimately to engage in sexual contact with, or to invite sexual touching by, S.K. or J.M., he is guilty of the luring offences; even if his intention went no further than "building his fantasy" of auto-eroticism, as he put it, his communication with these children was also intended to create, and did create, circumstances in which the risk of the specified secondary offences of sexual assault and invitation to sexual touching increased.
[21] Mr. Crawley says that his intention was auto-eroticism, to the exclusion of any other intention. Even if it were the Crown's obligation to prove an intention to lure for the specific purposes of sexual assault and invitation to sexual touching, contrary to my reading of Legare, I regard the offence as established. I cannot accept Mr. Crawley's evidence about his limited intention and I am not left in doubt about it by that or any other part of the record, particularly in the face of the language of his communications. Nothing in the language used by Mr. Crawley excludes the prospect of physical contact between him and S.K. and J.M. or suggests that the sexual encounters he is proposing are imaginary. Indeed, those communications encourage S.K. and J.M. to engage in, or at least to consider, sexual contact with Mr. Crawley. His communications are aimed at the creation of circumstances in which such contact can occur. This is the very space beyond the "cyberspace door" from which the legislation seeks to exclude the cyberspace predator.
[22] Mr. Crawley was aware that J.M. was fifteen years of age. He was told by S.K. in an early communication that she was fifteen years of age and there is no evidence on the record that Mr. Crawley took all reasonable steps to ascertain her age subsequently, in accordance with s. 172.1(4) C.C. The Crown has proven Mr. Crawley's understanding that he was dealing with children under sixteen.
[23] Apart from the sexual suggestions in Mr. Crawley's communications, his professed, limited intention is undercut as well by several pieces of evidence:
(i) he testified that he did not contemplate physical contact with the children because he had "learned his lesson" from his previous convictions in July, 2013 for luring and sexual interference. Mr. Barker points out the dubiousness of this evidence, given the fact that Mr. Crawley became bound at that time by terms of probation and prohibition orders which he routinely and repeatedly breached in the following years;
(ii) Mr. Crawley went so far as to say that he "never would have" acted on his fantasy involving S.K. and J.M. Yet the record is clear that Mr. Crawley did commit the offence of sexual interference with a child in 2013 following the luring of that child. This evidence would be inadmissible, of course, if it were advanced by the Crown to support a predisposition for sexual contact with children by Mr. Crawley but it can be used to question the reliability of his evidence that he "never" would act on a suggested sexual encounter with a child; and
(iii) while of limited weight, Mr. Crawley does have a criminal record which includes offences of dishonesty in March, 2009 and July, 2013.
[24] Because of these factors, were it necessary, I would reject Mr. Crawley's evidence that his intention in communicating with S.K. and J.M. was solely for the purposes of friendship and of creating a sexual fantasy for himself, to the exclusion of an intention to lure the children for the purpose of a sexual assault and an invitation to sexual touching. The other evidence before the court is entirely to the contrary.
V. Conclusion
[25] Accordingly, I find that the Crown has proven the three elements of this inchoate offence: 1) an intentional communication by computer; 2) with S.K. and J.M., persons whom Mr. Crawley knew or believed to be under the age of sixteen years; 3) for the specific purpose of facilitating the commission of secondary offences specified in s. 172.1(1)(b). I find Mr. Crawley guilty of the four luring offences. R. v. Kienapple, [1975] 1 S.C.R. 729 appears to me to have application and I invite counsels' submissions as to the counts on which there should be convictions.
Released: December 7, 2018
Signed: Justice C.M. Harpur