Court Information
Ontario Court of Justice
Date: February 5, 2018
Central East Region
Parties
Between:
Her Majesty the Queen
— and —
Michael Duplessis
Judicial Officer and Counsel
Before: Justice F. Javed
Heard on: January 17, 18, 2018
Reasons for Judgment released on: February 5, 2018
Counsel:
- M. Newell — counsel for the Crown
- D. Guido — counsel for the defendant
A. Introduction
[1] Michael Duplessis is charged with the offence of making an arrangement with a person to commit an offence under s.151 of the Criminal Code with respect to another person who was or believed to be under 16 years of age contrary to s.172.2(2) of the Criminal Code.
[2] Mr. Duplessis is a 60 year old man. He is lonely. He posted an advertisement on the Casual Encounters page on Craigslist, which is an online classifieds portal. A person named Sara Kristoff responded to the advertisement, but Mr. Duplessis didn't know that Sara was in fact Detective Constable (DC) Jeff Lockwood of the Durham Regional Police Service (DRPS). The allegation is that Mr. Duplessis arranged to have a sexual encounter with Sara's 3 year old daughter Deanna.
[3] The Crown proceeded by summary conviction and called DC Lockwood. Mr. Duplessis testified in his defence.
[4] The trial record includes an agreed statement of facts (ASF), which is Exhibit 1. It contains three tabs including (i) a copy of the advertisement, (ii) a full account of the communication between the parties and (iii) a transcript of Mr. Duplessis's videotaped statement to the police. No issue was taken with the authenticity of the electronic evidence, including the online exchange and text messages.
[5] Mr. Duplessis spoke to the police shortly after his arrest. He was in possession of several items which the Crown points to as evidence of his intention to follow through with his arrangement. Ms. Guido on his behalf conceded that the statement was voluntary and did not require a formal voir dire. It was entered as Exhibit 2.
[6] Counsel reasonably narrowed the contested issue in this case to Mr. Duplessis's intent or mens rea. In other words, the question for the court is whether the Crown has proven beyond a reasonable doubt that Mr. Duplessis engaged in the prohibited communication with the specific intention of arranging or facilitating the commission of sexual interference with Deanna under s.151 of the Criminal Code.
[7] Mr. Duplessis's position is that at all times, he was engaged in role play and fantasy. He never formed an intention to arrange a sexual encounter with Sara's daughter Deanna. His intention was fixed only on Sara.
[8] Mr. Duplessis was cross-examined by Mr. Newell. The Crown's position is that the court should flatly reject Mr. Duplessis's evidence as it was dishonest, lacks common sense and is inconsistent with his videotaped statement. The evidence should not leave the court with any doubt about his guilt.
[9] These reasons explain why I agree with the Crown's position. I have rejected Mr. Duplessis's evidence. On the whole of the evidence, I am not left in doubt about his guilt.
B. The Applicable Principles
[10] There is no disagreement about the legal principles that must guide my analysis.
[11] In summary, the Crown must prove the following elements of the offence beyond a reasonable doubt:
(i) Mr. Duplessis intentionally used a form of telecommunication;
(ii) with a person (in this Sara Kristoff);
(iii) to agree or make an arrangement to commit one of the specified offences (sexual interference) with respect to another person who the accused believed to be underage (in this case Sara's daughter, Deanna).
[12] There is no issue that Mr. Duplessis used a computer as a telecommunication with DC Lockwood who he believed was Sara Kristoff. There's also no issue that he knew Deanna was underage.
[13] The sole issue is whether Mr. Duplessis specifically intended to agree or intended to make an arrangement to commit the offence of sexual interference against Deanna.
[14] In R. v. Rodwell, 2016 OJ No. 6842, Justice Deluzio explained the mens rea requirement for the offence relying on the Supreme Court in R. v. Legare, 2009 SCC 56. At paragraph 45 she reminded that the offence is an inchoate or preparatory offence. This means that it does not have to be completed. She wrote: "[S]ection 172.2(1) of the Criminal Code criminalizes the intentional communication by computer with a person the accused knows or believes to be under 14 years of age for the purpose of facilitating the commission of a sexual offence against the child. The Supreme Court in Legare found that the intention of the accused must be determined subjectively.
[15] As cases have firmly established, the Crown does not have to prove that Mr. Duplessis intended to put the plan into effect or that he intended to follow through with the plan to sexually assault Deanna. The offence is complete with proof that Mr. Duplessis intended to make an agreement or arrangement to commit the offence: Legare, at para. 25, R. v. Cooper, 2016 O.J. No. 5294 (Ont. Sup. Ct.) at para. 39. The focus of the offence is on the intention of Mr. Duplessis at the time of the communication, not some time later.
[16] Moreover, in R. v. Tomasik, 2016 ONSC 3719, Justice Hennessy noted (at paras. 92-94), preparatory steps that fall short of proving an intention to conclude an arrangement or agreement may not be sufficient to make out the offence.
[17] The determination of the issue in this case turns on an assessment of credibility and reliability. A theme in Mr. Duplessis's evidence was that he couldn't prove his innocence because of the words he chose in his communications with Sara and some assertions he made to the police. The short answer to this is he doesn't have to prove his innocence. Nor did the parties suggest otherwise. Indeed, Mr. Newell reminded him of this. Mr. Duplessis started the trial with the presumption of innocence where the Crown carries the burden of proving his guilt beyond a reasonable doubt: R. v. Lifchus at para. 27. There was no onus on him to testify or to explain his innocence. The heavy burden remains with the Crown. I must scrutinize the evidence based on the test in W.D. v. the Queen at para. 11.
[18] Mr. Duplessis did chose to testify, thus I must apply the WD doctrine to his evidence as a whole. I am reminded that the W.D. principles are not only confined to cases where an accused testifies. In R. v. B.D., 2001 O.J. No. 198 (CA), the court made it clear that they have a broader sweep and apply to evidence adduced by the Crown that is favorable to the accused on vital issues.
[19] Finally, as the Supreme Court has reminded, a reasonable doubt is a doubt based on reason and common sense and one that logically arises from the evidence or absence of evidence. While likely or probable guilt is not enough, it is nearly impossible to prove something to an absolute certainty. If after considering all of the evidence, I am sure that Mr. Duplessis intended to make an agreement or an arrangement to sexually interfere with Deanna then I will be satisfied of proof beyond a reasonable doubt. If after considering all of the evidence or the absence of evidence, I am not sure that he committed the offence, then I will not be satisfied of proof beyond a reasonable doubt: Lifchus, supra, at paras. 36-40; R. v. S.(J.H.), 2008 SCC 30.
C. Analysis
[20] I will now consider the evidence to determine my findings of fact.
[21] Mr. Duplessis was 60 years old at the time he posted the advertisement. He is separated and has a son and two step-children. He has a variety of health issues and is currently on disability.
[22] Mr. Duplessis posted the following advertisement in the Casual Encounters section of Craigslist in December 2016. It was updated on January 1 2017. It read:
60 year old male seeking younger lover – m4w (Oshawa). Am 60 with a preference for younger women but as long as you're attractive and can host, age does not matter. The possibility of a relationship is good. Must host. Looking for fun or serious relationship. Send pictures with your reply. Partial to Asian and Ebony but all welcome. This is a serious request and I am not looking for games. Full-time relationship welcome. Love a lady who enjoys having her body explored but also has brains. No drugs. No verification requests. Also looking at exploring having a child. Single mom with children welcome. Spend New Years together?
[23] Prior to the above advertisement, he had posted another advertisement. The parties did not tender that advertisement. He stated that he had used Casual Encounters for 4 years and was hoping to meet a companion and possibly a relationship as he felt lonely.
[24] On January 3 2017 Sara Kristoff responded to the advertisement. Sara was in fact DC Lockwood.
[25] DC Lockwood is a member of the Internet Child Exploitation (ICE) unit of the DRPS. He held this position for 3 years while being a police officer for 15 years. His job is to prevent the sexual exploitation of children. As a lay witness, he has experience in responding to advertisements that have enough red flags that might suggest a sexual interest in children. In Mr. Duplessis's case, he was drawn to the use of "younger women" and "age does not matter" in the advertisement. That said, there was nothing illegal about the advertisement but it was "peculiar" as it was in the Casual Encounters section, not the long term section of the website.
[26] Sara responded that she had a 3 year old and asked: "Are you into some darker desires?" This was done because Mr. Duplessis had referenced "single mother with children" and he wanted an explanation as to what he meant.
[27] Mr. Duplessis responded that he loves children and would love to have another too "if you're willing". He told Sara that he has children of his own.
[28] Sara responded that she was looking for something more "taboo" which triggered a response "What do you have in mind?"
[29] DC Lockwood testified that he introduced the topic of incest as it is openly discussed on the internet. His purpose in doing so was two-fold: (i) he wanted to develop the persona of a sexual offender and (ii) he was hoping to generate a discussion to see if it would excite or disgust Mr. Duplessis. In cross-examination he agreed that he brought up incest but explained that it would not be illegal for a person to talk about it. Moreover, it also wouldn't be illegal to fantasize about incest and in this case, he didn't put any words in the mouth of Mr. Duplessis. He simply asked a question and waited for his response. He explained that he was not telling Mr. Duplessis what to say or offering him any inducements. I accept this evidence.
[30] Ms. Guido submitted that the court should accept Mr. Duplessis's evidence that at all times, he was role playing and involved in fantasy. He never intended to sexually interfere with Deanna because he didn't believe she existed. The argument follows that one's intent is subject to interpretation and Mr. Duplessis explained his intention. This should be enough to raise a doubt. With respect, I reject this position for the following reasons:
(1) There is nothing in Mr. Duplessis's advertisement that directly speaks to role playing and/or fantasy. There's also nothing in advertisement that would lead one to reasonably infer as much. Mr. Duplessis's evidence on this point is contradicted by the advertisement.
(2) Mr. Duplessis injected the idea of role playing into the discussion after Sara said she was into taboo things such as "incest stuff". He didn't desist in the conversation but instead probed by asking: "I understand what but with whom? You roleplaying as a little girl? Am good with that. Having sex in front of your child? Okay too". This was met with a very specific response by Sara: "no I don't do roleplay … tried it and it seemed silly .. but I don't like talking bout this on email I cant afford to pay for mins on my phone .. u able to text or kik or something?" Sara's answer was clear: she tried role play and didn't like it. There was nothing equivocal about it which would result in a finding that Mr. Duplessis was confused or misled. In my view, there is simply no basis for Mr. Duplessis to conclude that Sara wanted to role play about incestuous behavior. This never changed throughout their communication. When the entire communication is viewed as a whole, there's simply no reasonable basis to support his testimony that Sara was role playing or he thought she was.
(3) In addition, Mr. Duplessis's evidence that he too was role playing is not supported by evidence. When he was told that Sara was not into role play, he was openly asked how far he was prepared to go with the "taboo stuff" referencing the incestuous behavior they discussed initially. He responded: "All the way". In chief, he explained that he thought she was talking about sex with Sara but this is inconsistent with his communication at the time when he said: "Okay as long as she is willing and joins us in bed". This connotes participation of a third party, being, Deanna. I agree with the Crown's submission that his evidence that he was role playing was contrived in an effort to deflect blame and explain his use of graphic communication. The offence requires the court to look at his intent at the time he was making the arrangement, not later.
(4) Mr. Duplessis testified that the role play he envisioned was a "daddy/daughter" scenario. I completely reject this evidence. For starters, there's nothing in the entirety of the exchange which even hints at this. For example, there's no reference to him as the "daddy" and "Deanna" as the daughter. All of his communication referenced committing graphic sexual acts with both Sara and Deanna. Mr. Duplessis testified that he thought the daddy/daughter role play was "understood" between the parties. The problem with this is that there's nothing in the communication which bears this out. As noted above, Sara had clearly told him that she wasn't into role play. He explained further that he didn't think a mother would actually subject her daughter to this type of behavior so it must have been fiction – but again, this is contradicted by the communication with Sara. He never challenged her on this and took steps to further the plan to have a sexual encounter with Deanna. When given a chance to desist, he did not and volunteered details of what he would do with her. The words chosen by Mr. Duplessis were specific, clear and reasonably lead to an inference that he believed Deanna was real – not a fantasy or playing a role. A day after Sara told him she was not into role playing, the parties had the following exchange about Deanna which is sufficient to make out the offence:
Mike: Are you able to host on the weekend. We start slow with her and see how it goes. If she is willing and curious like you she will make the moves
Sara: I can host jus not this wknd…maybe next wknd or during the week…I don't work…do u?
Mike: Am retired due to an arm injury. Why not this weekend?
Sara: I already have plans to get wasted with my old gf wh is down seeing her parents…u free may be during the week
Mike: What plans have you next Tue & Wed
Sara: Nothin….home with my kida all day on wed
Mike: Sounds good. Make it an all nighter? And next day?
Sara: I dunno if she'd be able to stay up all night but we can try
Mike: We can play ourselves while she sleeps
Sara: K….cool….wut do u think you will wanna do wit her? Obviously nothing in her pussy…thatll be obvious
Mike: Start by showing her how to suck
Mike: One thing at a time
Sara: Good idea Iii
Mike: You're a good cock sucker and able to show her?
Sara: Ya I probly could…u gonna cum on her or me?
Mike: Both
Sara: Wicked awesome!
Mike: Let her taste it too. Then she can watch me eat you and let her
Sara: Totally….it'll be fun
Mike: Maybe her too if she likes it
Sara: I dont see it bein a prob
Mike: What time next Tue is good for you?
Sara: I thought we were doin Wednesday tho
Mike: tue or Wed or both
Sara: Wed works better for me like wed into thurs
Mike: Sounds good
Mike: Does she see you naked all the time?
Sara: In the morning when I get dressed or out of the shower yes
Mike: So you would have no problem with us staying naked?
Sara: No it'll b fine if we are
Sara: Amd she's a kid so she's fine bein naked
Mike: Good. That way if she gets curious she can touch
Mike: You into fucking in front of her and being spanked?
Sara: Ya we can do thst…but r u more into me or her? I don't want her to be an excuse to just fuck me
Mike: both
Sara: K….are we reely on the same page bout all this? Luke ur nt just into this to try nimpress me?
Mike: If we become a family we will do more
Mike: No
Sara: Ok good t hear….awesome…so wuts ur name? I think in told u I'm sara
Mike: I'm Mike Sara. Nice name. What is hers?
Sara: Deanna is my daughter
Mike: Nice name.
Mike: As a family she will learn to trust me and as she gets older she will want to do more
Sara: Oh fer sure
Mike: Like that idea?
Sara: Ya I do
Mike: Look forward to meeting
Mike: And playing with both of you
Sara: Me too….I gotta go get some stuff done round my place…ill txt u in a bit
Mike: Okay Baby
(5) I find that Mr. Duplessis's reference to "playing with both of you" was not about role playing but rather engaging in explicit sexual acts. He was talking about real events. As further proof that he believed Deanna was real was his innocuous and non-sexual comment the following day: "Look forward to both of you".
(6) I find that Mr. Duplessis formed an intention to sexually assault Deanna, which never subsided. On January 10 2017, he was firm in his intention when he said: "Won't penetrate her until she is ready and I will use one. Rather she start with foreplay". These comments are not consistent with somebody who didn't believe a child existed and it was just fantasy. The question which prompted the comment was open ended. It didn't beg for an answer. Mr. Duplessis decided on his own what he wanted to do with her. Nobody put words in his mouth. His intention to have sexual relations with Deanna crystalized the day of the proposed meeting, which was January 11 2017. Mr. Duplessis stated that he would give great orgasms to Sara and then said: "Deanna can watch and touch if she wants to". This is a continuation of the earlier arrangement and clear evidence of his sexual intent vis a vis Deanna.
(7) I reject Mr. Duplessis's evidence that he didn't believe that Deanna existed. His reason was that he had not seen a picture of Deanna even though Sara had sent two of herself. This is contradicted by the conversation in which they had specific discussions about real events, such as where Sara lived, Sara's likes and dislikes and Deanna's illness as she had a cold. These non-sexual details do not advance a "daddy/daughter" role play or fantasy. Moreover, on the day of the proposed meeting, he told Sara to "bundle Deanna up" which has nothing to do with role playing, a fantasy or even a sexual encounter. The only reasonable inference is that he discussed non-sexual things involving Deanna because he believed Deanna was real. The picture explanation was an after the fact reflection.
(8) Mr. Duplessis's evidence that Deanna was not real is also contradicted by his actions prior to his arrest. This is more circumstantial evidence of his state of mind that he believed Deanna was real and he wanted to follow through with a sexual encounter with her. The parties made plans to bring specific items to Sara's residence. Some of these things had nothing to do with the sexual encounter, such as cigarettes, a cell phone and alcohol. When Mr. Duplessis was arrested and searched incident to arrest, he had these items on his person as well as some that objectively, one might expect to be used in a sexual encounter. These included: a sexual device, referred by the parties as a "cock-ring" and Viagra pills as he has an erectile dysfunction. The discovery of these items leads to an inference that that he believed Sara was real and he was intending on being involved in sexual activity.
(9) In addition, the police discovered another item, which I find is fatal to his position that he didn't believe Deanna was real. The police found a "Beautiful Bride" toy doll, which was packaged in a box – the inference being it was unused. Mr. Duplessis explained that he bought this doll on his way to Sara's but it was for somebody else – not Deanna. I reject this outright. I find that he bought the doll for Deanna because the parties specifically discussed getting a doll for her. It could not be for somebody else because he thought he was meeting her. This is further evidence that he genuinely believed she was a real person.
(10) In cross-examination, Mr. Duplessis's insistence of role play and fantasy unraveled. He explained that in the past, he had been involved in role playing and liked "extra fun". The difficulty with this is that he did not say he had been involved in a "daddy/daughter" role play in the past. I find that he simply created a role play scenario in his mind after he was arrested as a means to explain his behavior. It was pure deflection.
(11) Finally, Mr. Duplessis's evidence is also inconsistent with his statements to DC Lockwood. Mr. Duplessis admitted making the prior statement and further admitted it was the truth. Among other things, Mr. Duplessis admitted (i) purchasing a doll for Deanna as he was meeting her, (ii) having explicit conversations about sexual activity with Deanna. At trial, he didn't resile from his statement but explained he was in shock. This is problematic for three reasons:
a. First, it's inconsistent with his admission at trial that the statement was voluntary which presumes he had an operating mind;
b. Second, it's inconsistent with his demeanor during the interview. While I can't make much of his emotional disposition, it's clear that he was given his rights to counsel and understood them, he was calm throughout – even when confronted with incriminating material and acknowledged that he was treated well by the police. On the issue of the doll, DC Lockwood asked an open ended question which generated the following exchange, which is inconsistent with his trial evidence that he bought the doll for somebody else:
LOCKWOOD: So, how did it progress to a point where a child became involved?
DUPLESSIS: She mentioned the child. All I said, I was interested in meeting her, glad to meet her child, buy – buy her child a toy because I figured the toy – the child was going to be in the home.
He confirmed:
LOCKWOOD: the child would be in the apartment somewhere.
DUPLESSIS: Right.
c. Third, the "shock" explanation doesn't square with the interview because initially he didn't know DC Lockwood had the full account of the communications between the parties and denied talking about sexual activity with Deanna. However, when confronted with them later on, he said "I – I didn't realize. I'd forgotten everything that was said. And uh, trust me, I didn't intend to do any of that. I told you, I'm not that type of person". In other words, his explanation was not that he was shocked but rather he simply forgot what he said. I do not accept his explanation of being shocked.
[31] When viewed as a whole, Mr. Duplessis's evidence that he was role playing and believed Sara was doing the same is patently incredible. His evidence that he didn't intend on following through with his arrangement to be involved in a sexual encounter with Sara and Deanna is similarly patently incredible. Mr. Duplessis's evidence was internally inconsistent, defied common sense and was an after the fact reflection.
[32] Applying the WD doctrine, when I consider the evidence as a whole after rejecting his evidence, it does not leave me with any doubt about his guilt. Mr. Duplessis was embarrassed that he had been arrested. He created the role play/fantasy position as an excuse to justify his actions. It may be that he wouldn't have actually committed the sexual acts on Deanna but that's not what criminalized his conduct. The offence is complete when the Crown proves that he intended to make an arrangement to commit a sexual assault against Deanna. This is not a case like Tomasik because he was more than prepared to commit the act. On this record, there is ample evidence of his intent. Indeed, it is the only reasonable inference.
D. Conclusion
[33] Mr. Duplessis will be found guilty.
Released: February 5, 2018
Mr. Justice F. Javed