Court File and Parties

Ontario Court of Justice

Date: 2018-12-11

Court File No.: Central East Region: Oshawa Courthouse 17-36678-00

Between:

Her Majesty the Queen

— and —

Brian Parks

Before: Justice Peter C. West

Evidence Heard on: August 1 and 9, 2018

Oral Submissions Heard on: December 11, 2018

Reasons for Judgment Released on: December 11, 2018

Counsel

Ms. K. Pollock — counsel for the Crown

Mr. P. Stiles — counsel for the accused Brian Parks

Judgment

WEST J.:

Introduction

[1] Brian Parks is charged between August 31, 2017 and September 20, 2017, by means of a telecommunication, make arrangements with a person to commit a sexual assault with respect to another person who was or was believed to be under the age of 16 years, contrary to s. 172.2(1)(b) of the Criminal Code of Canada. He is further charged between the same dates, by means of a telecommunication, make arrangements with a person to commit an offence under s. 163.1 of the Criminal Code with respect to another person who was or was believed to be under the age of 18 years, contrary to s. 172.2(1)(a) of the Criminal Code of Canada.

[2] The Crown called one witness, D.C. Jeff Lockwood and filed an Agreed Statement of Facts respecting D.C. Laloo's evidence, which was filed as Exhibit 6. Mr. Parks testified in his defence. At the conclusion of the evidence the matter was adjourned to today's date to hear oral submissions if necessary. Written submissions were prepared by counsel and filed in advance of December 11, 2018, and I want to express my gratitude to counsel for their very detailed and helpful factums.

[3] The Crown filed a number of exhibits, including: Exhibit 1, the advertisement posted by Mr. Parks on Craigslist; Exhibit 2, an email exchange between Cara McNally (later Sara), actually written by D.C. Lockwood and Brian Parks; Exhibit 3, text message exchanges between Cara McNally (later Sara), actually written by D.C. Lockwood and Brian Parks; Exhibit 4, Brian Parks' videotaped statement to the police, voluntariness was conceded by the defence; and Exhibit 5, all texts between Cara McNally (later Sara), actually written by D.C. Lockwood and Brian Parks set out with applicable dates. No issue was taken with the authenticity of the electronic evidence, including the email and text message exchanges.

[4] Counsel reasonably agreed and narrowed the contested issue in this trial to Mr. Parks' intent or mens rea. The question to be determined was whether the Crown proved beyond a reasonable doubt that Mr. Parks engaged in the prohibited telecommunications with the specific intention of agreeing or making an arrangement with Sara for the sexual assault of Sara's daughter.

[5] Mr. Parks' position was the talk concerning Sara's daughter was fantasy and roleplaying. He never intended to arrange a sexual encounter with Sara's daughter and when he attended the meeting it was to meet with Sara to determine if they would get involved sexually. He testified he did not believe the daughter was real.

[6] It was the Crown's position I should reject Mr. Parks' evidence completely as it was internally inconsistent and at odds with the contents of the emails and text messages when read as a whole. Mr. Parks' evidence was less than truthful and forthright, it was incredible, defied logic and was completely contrary and inconsistent with the content of the messages between "Sara" and himself.

[7] In her written submissions Crown counsel, Ms. Pollack, conceded there was not sufficient evidence to establish beyond a reasonable doubt that there was an agreement to commit a child pornography offence under s. 163.1 and requested this charge be dismissed. I agree with Ms. Pollack that there was not sufficient evidence establishing the second count in the information beyond a reasonable doubt and that charge is dismissed.

The Applicable Legal Principles

[8] The parties agree, for the most part, as to the legal principles I must apply in this case.

[9] In a charge under s. 172.2(1)(b) the Crown must prove beyond a reasonable doubt three things:

• Mr. Parks intentionally used a form of telecommunication;
• with a person (in this case "Sara," whose messages were written by D.C. Jeff Lockwood); and
• to agree or make an arrangement to commit one of the specified offences (in this case, sexual assault) with respect to another person who Mr. Parks believed to be under 16 years of age (in this case Sara's 11 year old daughter).

[10] There is no issue in this case that Brian Parks intentionally communicated by email and text with D.C. Lockwood, who he believed to be Sara. Further, there is no issue he knew Sara's daughter was 11 years old from the emails and texts.

[11] The sole issue is whether Brian Parks specifically intended to agree or make an arrangement with another person, Sara, to sexually assault her 11 year old daughter.

[12] Section 172.2(5)(a) specifically provides that it is not a defence that the person with whom the accused agreed or made the arrangement was a peace officer or that the child did not exist.

[13] In R. v. Legare, 2009 SCC 56, [2009] 3 S.C.R. 551, at para. 25, Fish J., for the court, dealing with the mens rea required pursuant to s. 272.1 (child luring) held:

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. [emphasis added]

[14] In my view, the Supreme Court's analysis of the mens rea of the offence of child luring is equally applicable in the context of s. 172.2(1)(b). This reasoning has been adopted by numerous courts dealing with this section, (see R. v. Alicandro, 2009 ONCA 133, [2009] O.J. No. 571 (Ont. C.A., per Doherty J.A.); R. v. Wheeler, [2016] O.J. No. 6740 (SCJ, Hocklin J.); R. v. Tomasik, 2016 ONSC 3719, [2016] O.J. No. 3132 (SCJ, Hennessy J.); R. v. Cooper, [2016] O.J. No. 5294 (SCJ, Miller J.); R. v. Rodwell, [2016] O.J. No. 6842 (OCJ, Deluzio J.); and R. v. Duplessis, unreported, February 5, 2018, OCJ, Javed J.).

[15] The mental element in s. 272.2(1)(b) to "agree" or "make arrangement" with another person is correctly set out by Hocklin J. in R. v. Wheeler, supra, at para. 43:

It is the intention to obtain the cooperation or consent of someone to the commission of one of the designated offences, which is the mens rea of the offence. Cooperation or consent is the product of "agree" or an "agreement" in the section on a plain meaning of the words against the background of purpose of the section, I interpret to mean any internet exchange, where the objective is to get another's cooperation or consent to the commission of a designated offence.

[16] In my view the cases are clear, the Crown is not required to prove a definite plan for the commission of the offence of sexual assault, or that the communicating parties confirmed that this sexual contact with the child would actually come about (see R. v. Wheeler, supra, at paras. 40-50; and R. v. Alicandro, supra, at paras. 19-38).

[17] In the defence written submissions Mr. Stiles submitted:

The position that the Crown need only establish that the accused intended to form an agreement and not that he intended to carry it out is accurate. However, it must be shown beyond a reasonable doubt that there was a clear agreement to carry out one of the secondary offences – in this case, sexual assault against a person under the age of 16. This requires both clear evidence of a prospective, concrete act or acts of sexual assault against a child in conjunction with the accused's belief that he was facilitating a clear sexual assault of someone at a time when that person was under the age of 16.

In my view this is not a correct statement of the law as expressed in R. v. Alicandro (Ontario Court of Appeal) and R. v. Legare (SCC) as stated above. As Doherty J.A. stated in Alicandro, at para. 31, the accused must be shown to have "engage[d] in the prohibited communication with the specific intent of facilitating the commission of one of the designated offences" with respect to the underage person who was the intended recipient of communication. [emphasis added] There is no requirement that there be a prospective concrete act or acts of sexual assault against a child. The question is whether from the telecommunications between the offender and another person there is a specific intention on the part of the offender to agree or make an arrangement with another person for the commission of the designated offence, in this case sexual assault of a person under 16 years of age.

[18] Section 172.2(1)(b) is an "inchoate" or preparatory offence that precedes the commission of the sexual offence it refers to and even includes an attempt to commit them. In R. v. Legare, the Supreme Court dealt with s. 172.1(1)(c) and held the intention of the accused must be determined subjectively. In my view this subjective requirement applies similarly to offences under s. 172.2(1)(b). The timing of the intention is therefore at the time of the communication and not some time later.

[19] A determination of whether Brian Parks intended to agree or make an arrangement with "Sara" to engage in sexual activities (sexually assault) with her 11 year old daughter will involve an assessment of the credibility and reliability of Brian Parks' testimony, together with an assessment of the telecommunications he was a party to.

[20] As in any criminal case, Mr. Parks is presumed innocent until proven guilty. I have reminded myself that I need not firmly believe or disbelieve any witness and that I can accept all, some or none of a witness' testimony. I have also reminded myself that the Crown must prove the essential elements of the offence beyond a reasonable doubt, as this term has been defined and explained by the Supreme Court of Canada in R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.), R. v. Lifchus (1997), 118 C.C.C. (3d) 1 (S.C.C.) and R. v. Starr (2000), 2000 SCC 40, 147 C.C.C. (3d) 449 (S.C.C.). Proof of a probability of guilt does not amount to proof of guilt beyond a reasonable doubt. Proof of guilt to a near certainty is required in criminal proceedings.

[21] I recognize that the rule of reasonable doubt applies to the issue of credibility. Accordingly, I must acquit the defendant if I accept his evidence or if it raises a reasonable doubt after considering it in the context of the evidence as a whole. If I reject his evidence, or it does not leave me with a reasonable doubt, I must go on to ask whether the evidence that I do accept convinces me of the guilt of the defendant beyond a reasonable doubt.

[22] Mr. Parks testified during his trial and refuted and denied the assertions of the Crown. There was no onus on him to testify and he does not have to prove his innocence. The onus remains on the Crown to prove Brian Parks' guilt beyond a reasonable doubt throughout this trial. A reasonable doubt is a doubt based on reason and common sense, one that arises logically from the whole of the evidence or absence of evidence. Consequently, if after considering the totality of the evidence, I am sure Mr. Parks intended to agree or make an arrangement with "Sara" to sexual assault her daughter 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 Mr. Parks intended to agree or make an arrangement with "Sara" to sexually assault her 11 year old daughter, then I must acquit Mr. Parks.

Analysis

[23] Brian Parks was 56 at the time he posted an advertisement, marked as Exhibit 1, on Craigslist on August 16, 2017, which read:

Beast – m4w (Peterborough)

Looking for a lady into k9 fun…or taboo sex…I am ddf…safe…attached…good looking…attached anD kinky age: 49 must reply in here…will not reply to personal emails…pics are a bonus…and will reply with my pic. If all goes well…we can exchange numbers

[24] On August 28, 2017, Detective Constable Jeff Lockwood, a member of the Internet Child Exploitation (ICE) unit of the DRPS was reviewing advertisements on Craigslist for words including "taboo." D.C. Lockwood testified taboo typically means something that would deviate from the social norm. "Ddf" means drug and disease free. K9 referred to a sex act involving an animal, such as a dog.

[25] D.C. Lockwood sent a reply to the advertisement, under the name "Cara McNally," with email address caramcnally2002@gmail.com. In his message he said:

I'm looking for some serious taboo stuff, the last guy I hooked up with thought I was into role play and bullshit fantasy, but I'm looking for some real dark taboo shit.

[26] Exhibit 2 are the emails exchanged between D.C. Lockwood and the alpha-numeric Craigslist email address used by Brian Parks. Mr. Parks requested a photo and D.C. Lockwood sent a photo of a woman standing in a bathroom doorway, looking at a cell phone. Mr. Parks sent her a selfie photo of himself, in his car, wearing sunglasses. In an early email by Brian Parks he indicated he was into "daddy daughter is fun" and "incest is hot, watch a lot of incest on motherless website." In response to D.C. Lockwood's email on August 30, 2017, "what are ur limits?" Mr. Parks responded (Email #6 of 60):

Well I am very open minded hun…and depends on what limits you mean…are you talking about things like younger girls or daughter stuff…or dogs…etc.

Why don't you tell me what you would like to do…even if it's not what I'm into…I don't judge people for there desires and fantasies…to each his own I say. And it still will interest me at the very least. If it helps…one girl I saw…wanted her 10 tr old to watch us fuck…think she wanted me to fuck them both.

[27] At some point D.C. Lockwood told Mr. Parks to call him "Sara." (Email #14 of 60) Sara asked Mr. Parks what he did when this previous partner wanted to have sex with her kid watching (Email #7 of 60). Mr. Parks described how the woman called her kid into the room when they were fucking. He then asked Sara to tell him about herself, asking if she was "single…married…kids…etc…what area do you live in" (Email #8 of 60). Sara responded she was single with an 11 year old girl, working at Tim Hortons in Oshawa where she lived (Email #9 of 60).

[28] Brian Parks then asked if Sara had ever done or thought about doing anything with her daughter (Email #10 of 60). He also asked if she wanted to exchange cell numbers. Mr. Parks sent another email, which indicated "it's nice to talk to a real person." These emails were sent within two days from the initial email by D.C. Lockwood responding to Mr. Parks' advertisement. The topic of conversation was already being steered by Mr. Parks towards his discussing sexual encounters with Sara's 11 year old daughter.

[29] Sara responded she had thought about bringing her daughter into it but had never done it, although she thought about it a lot (Email #12 of 60). She provided her cell number. Mr. Parks started texting her using his cell phone the following day, August 31, 2017. He told her he lived in Bowmanville and his name was Brian. He was not married but living with someone. He later told her he was 56 but looked 45 (Email #13, 17, 18, and 22 of 60).

[30] Mr. Parks also told Sara in an email, "I'm open to ideas and would love to turn your fantasies 8nto reality" (Email #22 of 60). Mr. Parks then began to make suggestions as to sexual activity involving Sara's 11 year old daughter and himself with Sara watching or actually involved in a threesome. Mr. Parks suggested various scenarios involving Sara's daughter. On the second day of their communications by email, August 30, 2017, Mr. Parks made this suggestion concerning Sara's daughter:

Had this thought of you and your daughter in a 69 position with you on the bottom…your licking my balls and guiding my hard cock into her little pussy…I fuck her and pull out to cum all over your face…and make her lick it all up…mmm…makes me hard just thinking about it…TTLY (Email #32 of 60).

[31] He repeatedly requested a picture of Sara's daughter. Early in the emails Mr. Parks suggested Sara refer to her daughter in the emails and texts as her "roommate," to keep their messages "safe." He sent nude pictures of his genitals and suggested Sara show these to her daughter. He also sent a video of himself masturbating.

[32] Mr. Stiles submitted I should accept Mr. Parks' evidence that all of his emails and texts with Sara only involved role playing and fantasy. At no time did Mr. Parks intend to be involved in any sexual activity with Sara's 11 year old daughter because he did not believe the daughter existed. This was just sexual conversation between Mr. Parks and Sara and there was no intent on Mr. Parks' part to get Sara to agree or make an agreement to be involved in sexual activity with an 11 year old daughter he did not believe existed. I do not accept the evidence of Mr. Parks and I reject this submission for the following reasons. Further, Mr. Parks' evidence does not leave me with any doubt as to what his intention was in the emails and texts he sent Sara for the following reasons.

Credibility Assessment

1) Evasiveness Regarding the Craigslist Advertisement

Mr. Parks was extremely evasive and less than forthright when he described the original advertisement he posted on Craigslist. He testified in chief he posted the ad for "entertainment" and "curiosity" purposes, which is completely inconsistent with the content of the ad. In the ad he was looking for someone with specific sexual interests and proclivities for sexual encounters involving "K9 fun" and "taboo sex." I agree with the Crown submission his testimony on his advertisement was an attempt by him to distance himself from his own words and conduct and is nonsensical.

2) Illogical Explanation for Continued Communication

Mr. Parks testified he really was only interested in Sara and wanted to meet with her and continue their conversations, despite the fact he was completely uninterested in sex with a child and received no sexual gratification from those discussions. First, this defies logic that he would continue to discuss a topic with someone he had never met who, according to Mr. Parks, was only interested in discussing sexual activity involving her daughter when this topic held no interest at all for him. Second, Mr. Parks' position defies logic because in most, if not all instances, it was Mr. Parks who introduced the idea of sexual encounters with a child, specifically Sara's daughter. He was the one who came up with scenarios and suggestions of sexual activity with Sara's daughter. Third, I disagree with the defence submission that Sara first brought up sex with her daughter. It was Mr. Parks who asked first if Sara was single, married or had kids (Email #8 of 60). Mr. Parks initiated incest, "daddy daughter fun" conversations. He first brought up a woman he was seeing who wanted her daughter to walk in on them engaged in sexual intercourse. Mr. Parks was the first one to bring up whether Sara had ever thought or done anything sexual involving her daughter (Email #10 of 60). These were very early emails, all originating from Mr. Parks. I find Mr. Parks' evidence that Sara started the conversation involving sex with her daughter as being false and untrue. The content of the messages demonstrate very clearly the falsity of Mr. Parks' position.

3) False Claim That Sara Initiated Discussion of Child Sexual Abuse

Mr. Parks asserted in his evidence that Sara initiated the conversation about having sex with her daughter when she advised she was single with an 11 year old daughter. It was his position, "why would she mentioned (sic) that? If she is talking about incest that seems to go hand-in-hand in my mind." It was his evidence there was no other reason for Sara to mention she had a child. However, Sara's email was responding directly to Mr. Parks' question as to whether she was single, married, kids. As I indicated above, in my view the telecommunications are very clear that it was Mr. Parks who first introduced the idea of sexual conduct involving a child under the age of 16 years. He brought up his previous experience with a woman who had her daughter watch the two of them engaged in sexual intercourse and it was Mr. Parks who then brought up whether Sara had done or thought about involving her daughter in sexual activities. Mr. Parks' evidence was untrue and completely false having regard to the telecommunications.

4) Clear Intent to Arrange Sexual Contact with Child

It was clear from the emails and texts that Mr. Parks wanted to meet with Sara because he believed she was going to allow him to have sex with her 11 year old daughter. He suggested they needed to be "subtle" and they had to "move slowly." When Sara indicated in her text on August 31, 2017 at 12:27 pm, that her daughter had some issues, Mr. Parks immediately responded this could "work in our favour." He later indicated to Sara in a text, "you know her better than I do…maybe start Slow with something…and then move on to more stuff?" (Part of August 31, 2017, 2:45 pm text, Exhibit 3). I agree with the Crown submission that Mr. Parks' claim that his messages were all fantasy for Sara's benefit is utter nonsense. These and other emails clearly indicate Mr. Parks' intention to get Sara to agree or make an agreement for him to engage in sexual encounters involving her daughter or alone or with Sara and her daughter.

5) Code Word for Daughter Reflects Consciousness of Guilt

Mr. Parks was also the one who initiated the need to refer to Sara's daughter as her "roommate." His explanation for why this was so important to him, namely, because sex with children was a distasteful topic to him, does not accord with common sense. He corrected Sara whenever she referred to her daughter in texts or emails. His reason for requesting this makes more sense, "to be safe in our messages." I find this request was to keep their telecommunications private and it reflects a recognition on his part that his request to involve Sara's 11 year old daughter in sexual encounters was illegal.

6) Repeated Requests for Daughter's Pictures

Mr. Parks repeatedly asked Sara to send him pictures of her daughter. If he believed Sara's daughter was not real, why ask for pictures of her. He maintained in his cross-examination he only asked for pictures of both Sara and her daughter. This was completely false, while he did ask for pictures of both he asked on numerous occasions for a picture of Sara's daughter only. He also suggested he wanted the daughter's picture to masturbate with, which again is inconsistent with someone who finds sex with children a distasteful topic. I do not accept Mr. Parks' evidence on this issue.

7) Sexual Scenarios Initiated by Accused

Mr. Parks repeatedly made up sexual scenarios involving Sara's daughter and himself or the three of them, which again is inconsistent with his evidence Sara was the one who brought up the scenarios. Further, he indicated in the emails and texts he was aroused sexually by those sexual scenarios and felt compelled to masturbate. Again, these telecommunications initiated by Mr. Parks are completely inconsistent with his testimony, which I find on this issue were untruthful and an attempt to distance himself from his clearly stated intentions to obtain Sara's agreement to involve her daughter in sexual encounters with him.

8) Minimization of Conduct

Mr. Parks throughout his testimony attempted to minimize his involvement and conduct. This can be seen in his statement to the police when he indicated he could not recall if he had sent any videos of himself to Sara. During his evidence he testified he remembered sending the nude pictures of himself and the video of himself masturbating. His explanation for why he told the police in his statement he did not recall was not believable and an example of his attempt at minimizing his conduct.

9) Overall Assessment of Credibility

I do not accept Mr. Parks' denials of his intent to get Sara to agree to allow him to have sexual involvement with Sara's 11 year old daughter. When one examines the entirety of the emails and text messages, Mr. Parks' intention is very clear. His intent was to obtain Sara's agreement to engage in sexual activities with her 11 year old daughter. I find that this is the only logical view of the texts and emails when considered in their entirety.

Evidence of Specific Intent

[33] There are a number of features in the texts and emails from which I find the Crown has proven beyond a reasonable doubt Mr. Parks' intention to get Sara's agreement for him to engage in sexual activities with Sara's daughter.

a) Provision of Accurate Personal Information

Mr. Parks provided Sara with accurate and true details about himself. This was to gain her trust and also demonstrates his belief that Sara is real and what she had discussed with him concerning her daughter was real. He provided:

• His name was Brian;
• He lived in Bowmanville;
• He was 56 years old;
• He drove a Hyundai Sonata;
• He worked as a foreman with a printing company;
• His hours of work;
• His tattoos;
• The fact he was not married but living with a partner for 4 years;
• He sent real photos of himself, including his face and genitals; and
• He provided his real Facebook profile information.

b) Repeated Requests for Daughter's Photographs

He made 15 requests for pictures of Sara's daughter, only 4 were of both Sara and her daughter, contrary to his evidence. He was eager to see a picture and often referred to waiting and looking at Sara's emails and texts for a picture and then his being disappointed when one was not forthcoming. He provided two reasons for wanting the picture of Sara's daughter:

• He wanted to know who he was talking about; and
• He wanted to "jerk off" to the picture.

His repeated requests for the daughter's pictures demonstrate his belief that Sara's daughter is real. When no picture was forthcoming he said he would have "to meet her in person I guess." This in my view also demonstrated his belief the daughter was real and not part of any fantasy.

c) Use of Code Word "Roommate"

As I already indicated he told Sara to refer to her daughter as her roommate and when she did not Mr. Parks always corrected her. He said this was to ensure they were "safe" in their conversations. There would be no reason to create a code word for daughter if he had no intention of getting Sara to agree he could engage in sexual activities with the daughter. The only reason for a code word was because of Mr. Parks' concern about their conversations becoming known or detected and his knowledge the requests he was making to involve Sara's daughter in sexual encounters were illegal.

d) Detailed Sexual Scenarios Involving Child

It was Mr. Parks who repeatedly sent emails and text messages detailing the sexual activity he wanted to engage in with Sara's daughter. Many of his suggestions were about future sexual activity. In my view these discussions are indicative and verify Mr. Parks' intention to arrange future sexual encounters with Sara's daughter. I agree with the Crown's submission that the suggestion of his pretending to be a doctor would be wholly unnecessary if he were simply having fantasy sex talk with Sara.

• he described being in Sara's home, sitting on her couch and performing sexual acts on the child;
• he detailed a plan to approach the child by introducing himself as a doctor who was performing an examination, which he said might allow him to do more with the child;
• he asked specifically about using a sex toy on the child;
• he said he would love to "get to the place where I can finger her also" referring to Sara's daughter;
• he asked Sara early in the communications if she would like to "see me actually fuck your roommate;"
• he described Sara and her daughter being in the 69 position, with Sara on the bottom licking Mr. Parks balls and guiding his hard cock into her little pussy, he fucks her and pulls out to come on Sara's face and get her daughter to lick it off;
• he described numerous scenarios involving all three of them engaging in sexual activities; and
• he described Sara watching her daughter suck Mr. Parks' penis.

e) Contingency Planning Based on Child's Reaction

Mr. Parks said in many of the communications that the degree or nature of the sexual acts he would perform on the child would depend on how she reacted, which is not consistent if his conversation was fantasy and role playing.

f) Transmission of Explicit Images

Mr. Parks sent four photos of his penis and a video of him masturbating. He told Sara he was going to "feed" both of them, referring to Sara and her daughter. In my view he sent all of these images with the knowledge and belief and in the following context:

• he believed Sara was a real person with a real 11 year old daughter;
• he knew Sara said she did not want "bullshit fantasy" or role play;
• he had already described numerous sexual acts he would perform with Sara's daughter, including the doctor scenario;
• he knew Sara appeared to be taking him seriously by her responses and intended to follow through on their agreement.

Mr. Parks also told Sara to show her daughter photos of his partially erect penis to gauge her reaction. In my view this was not fantasy but an actual step toward future sexual contact with the child.

g) Discussion of Potential Change of Mind

Mr. Parks actually discussed with Sara that she might change her mind when the time came to engage in the sexual encounter with her daughter.

(Texts pp. 62-63, Exhibit 3)

Parks: What sex act do you think about when involving me and your roommate…or the 3 of us?????

Sara: I don't know about one…I try to picture lots of things and see how I feel bout them…how about u?

Parks: Lost thoughts…lol…some can be done for real,others not…but love the thought of fingering her as I jerk off…cumming on her face…watching my cock slide into a tight pussy…many things…but thoughts and doing for real are different…guess we will know at the time…im not holding you to anything hun…you might think you like it…or even really like to think about it…but come time to do it…might change your mind…but always your call hun

Would also love you to find a bi teen girl for a 3 some…would be hot too

(Texts pp. 77-78 Exhibit 3)

Parks: So true…wonder how far we will go…ir if it will make you feel weird at the time.

Sara: Weird how?

Parks: I don't know…when it comes time to try something with her…you might feel odd about it…you never know…altho some stuff will be simple…others not

Sara: Lol I'll be fine no worries hon

Parks: Lol…im sure you will…see how she reacts I guess…but you know her better than me…so time will tell

Sara: I'm excited bout meeting!!!

Parks: Me too…looking forward to seeing you

I agree with the Crown's submission in paragraph 36 viii, concerning these texts.

• "Mr. Parks distinguished between talking about things and doing them for real. He then immediately proceeded to discuss how Sara might feel "when the time comes" and "at the time" of sexual contact. He was specifically referring to a time when he would actually be in the room with Sara and the child;"
• "He acknowledged that he and Sara had an agreement to engage in sexual acts with the child. He recognized he had obtained her consent to have sex with her daughter;"
• "He told her that she could revoke her agreement if she felt uncomfortable once they actually started having sex with the child."

h) Planning to Meet in Person

Mr. Parks had been discussing meeting Sara from the beginning of their communications. He talked about a time and a place to meet, about what would happen at the first meeting and about where and when the next meeting might take place. In my view there is a reasonable inference that Mr. Parks, from the very beginning intended to move from online communication to an actually meeting with the express intention to ultimately meet with Sara's daughter for sexual activities.

i) Attendance at Arranged Meeting

Mr. Parks actually showed up for the meeting with Sara. In my view he was meeting with the woman who had agreed with him to jointly engage in sexual activity with her daughter.

[34] When the emails and texts are viewed in their entirety as one conversation, it is abundantly clear Mr. Parks was not engaged in role play or fantasy. His evidence that he believed both he and Sara were engaged in role play is patently inconceivable and unbelievable. For the reasons indicated above I reject his evidence that he did not intend to make an agreement with Sara to engage in sexual conduct with Sara's 11 year old daughter. Further, it does not cause me to have a reasonable doubt on the issue of whether Mr. Parks intended to agree with Sara about engaging in sexual conduct with her daughter. Mr. Parks' evidence was incredible, it was evasive, it was untruthful, it was internally inconsistent and it defied logic.

[35] I am satisfied beyond a reasonable doubt Mr. Parks agreed or made an agreement with Sara to sexually assault Sara's 11 year old daughter. In my view on the totality of the texts and emails there is an abundance of evidence supporting this finding, in fact, it is the only reasonable inference available.

[36] Mr. Parks will be found guilty of the charge pursuant to s. 172.2(1)(b) of the Criminal Code of Canada.

Released: December 11, 2018

Signed: Justice Peter C. West