Ontario Court of Justice

Date: October 3, 2019

Court File No.: Central East - Newmarket 4911-998-17-02510

Between:

Her Majesty the Queen

— AND —

Viktor Pogoryelov

Before: Justice P.N. Bourque

Counsel:

• K. Hutchison, for the Crown
• M. Simrod, for the Defendant

Reasons for Judgment

Released on October 3, 2019

Overview

[1] The defendant is charged with three child luring offences. All offences were part of a police operation which set up a website to pose as an escort and when people (like the defendant) respond with a request for sexual services, the conversation led by the police turns to the fact that what is being offered is an escort who is held out to be under 18.

[2] The essential issue in this case, at least at the end of the trial, was whether the Crown had proven beyond a reasonable doubt that the defendant was the person who exchanged certain text messages with a police officer.

[3] The police in this case did not obtain a search warrant of the defendant's phone. While admitting that the search of his phone was therefore a breach of the defendant's s. 8 Charter rights, the Crown initially took the position that they wanted me to admit the evidence on the basis that the balancing test in Grant would favour admission of the evidence. Much evidence was called by the Crown on this issue but the Crown abandoned the application and agreed that any evidence seized from the defendant's cell phone would not be tendered in evidence.

[4] In addition, there was evidence led on a voir dire which would allow the Crown to use some utterances by the defendant at the time of arrest to be used in his cross-examination. For tactical reasons (the defendant chose not to testify) the defendant dropped his objection to this evidence but it was not in fact used in the case. I therefore will omit reciting any evidence which impacts solely on these two issues.

Crown Case

Michael Cook

[5] …is a York Regional Police Detective. He gave evidence as to the general nature of the sex trade in York Region. Specifically, at the time of these offences, there existed a web page called backpage.com which as part of its function, was a place that escorts could advertise, and customers of the services could find information and contact (usually by text message) the escort. Meetings were usually arranged in hotel rooms. In the circumstances of this case, an advertisement was prepared by the York Regional Police.

[6] It contained purported information about the escort. The ad said in two places that the escort was 18 years of age, but it also used some suggestive language like "tight brand new girl in Markham" and "a girl who is sexy and YOUNG", and "I also have a YOUNG FRIEND". The ad also contained three pictures of what is a young woman (her face was not shown) and whose age while not capable of determination with precision, was clearly capable of being much older than 18 years.

[7] The officer testified that in reality, the pictures are of a policewoman who is over 30 years of age. The officer admitted that with regard to this ad, and indeed with a lot of the communications with escorts, the statements made are not always truthful.

[8] The ad has a telephone number which goes to the officer's phone in a special application which allows the officer to use his phone without revealing the true phone number. It also allows the officer to send portions of text messages in an email.

[9] The officer indicated that he had the following text message exchange:

2017-03-27 15:32 EDT - +16477005712 : Good day.
2017-03-27 15:35 EDT - You : Hey
2017-03-27 15:35 EDT - +16477005712 : How are you my love ?
2017-03-27 15:35 EDT - You : Great
2017-03-27 15:37 EDT - +16477005712 : You do anal and bbbj with cim my love ?
2017-03-27 15:42 EDT - You : Protected anal is 20 extra and no Cumming in my mouth but you can on my chest.
2017-03-27 15:43 EDT - +16477005712 : Yes my love. How much for an hour ?
2017-03-27 15:44 EDT - You : 140 for the hr but so you know and don't freak out I'm not 18. I'm younger and some guys freak out when they get here cause I'm small.
2017-03-27 15:51 EDT - +16477005712 : Its ok, as long you are quiet about that. Can we do bare anal my love ?
2017-03-27 15:54 EDT - You : Obviously I'll be quiet I don't want:-) problems. I'm 14 yrs old but I'll be 15 this year. Promise you won't say anything and I'll do bare anal sex but you have to pull out to cum OK.
2017-03-27 15:54 EDT - +16477005712 : My love ?
2017-03-27 15:55 EDT - +16477005712 : Yes. Where are you ?
2017-03-27 15:56 EDT - You : Leslie and 7. Text when you are there and I'll tell you where I am.
2017-03-27 15:56 EDT - +16477005712 : Lets do 2 hours for 200 ? With 3 shots.
2017-03-27 15:58 EDT - You : It's not a problem I'm 14 though right? I don't need a headach
2017-03-27 16:00 EDT - +16477005712 : Its ok as soon you ok with that.
2017-03-27 16:00 EDT - +16477005712 : Are you still virgin ?
2017-03-27 16:02 EDT - You : I had a bf before so no. I'm cool with this.
2017-03-27 16:03 EDT - You : OK 200 for 2 hours and you can cum 3 times but not in my as ok
2017-03-27 16:05 EDT - +16477005712 : Ok. Do you has lube for anal sex ?
2017-03-27 16:06 EDT - You : I have regular lube is that OK.
2017-03-27 16:08 EDT - +16477005712 : Yes.
2017-03-27 16:10 EDT - +16477005712 : I come around 5
2017-03-27 16:10 EDT - You : OK. Com to leslie and 7 and text me. I'll tell you where to go.
2017-03-27 16:23 EDT - +16477005712 : You ok with liking and fingering ?
2017-03-27 16:24 EDT - You : Gentle only
2017-03-27 16:25 EDT - +16477005712 : Indeed.
2017-03-27 16:30 EDT - +16477005712 : I am here. At tims plaza.
2017-03-27 16:33 EDT - You : Come to stay bridge suites on south park road text me when in lot and I'll give you room number
2017-03-27 16:36 EDT - +16477005712 : Ok, iam here.
2017-03-27 16:37 EDT - You : Room 440 come up

[10] The officer indicated that he notified another officer that the person with whom he was texting would be going to the assigned hotel room. This officer had no dealings with the defendant.

Taurean Allen

[11] …is an officer with the York Regional Police and he was assigned to arrest the person who came into the door of the hotel room. At 16:54, a knock came to the door. The officer stated that the defendant was "dragged" into the room (he then used the word "pulled") where the defendant was arrested. The officer stated that as is common in these matters, the defendant was in shock. The officer told him the reasons for his arrest and searched him. He found four 50-dollar bills in his pocket and a gas receipt.

Warren Owen

[12] ...was the York Regional Police officer who was tasked to be outside the hotel to make observations. He was in plain clothes. He saw a man in a black coat walk past him and go into the hotel. He was called shortly afterwards by Officer Kinsman that a man arrested said he had a green Lexus. The officer had seen it parked nearby but did not see anyone get out of it. He went up to the vehicle and noted that the door was open. He sealed the car and later that evening, after a warrant was obtained, he searched the car. He found in the car a wallet, a cell phone and a key to the car. He dialed a number he had been given and the phone rang. He looked in the wallet and found $650 in cash and a drivers licence in the name of the defendant. He noted the car was parked on a side street near the hotel and not in the hotel parking lot. He could not identify the defendant.

Has the Crown proven beyond a reasonable doubt the identity of the defendant as the person who engaged in the text message discussion with the police officer?

[13] The Crown has the burden of proving beyond a reasonable doubt all of the essential elements of the case, which includes the identity of the person who exchanged text messages with the officer.

[14] The burden of proof beyond a reasonable doubt as stated in R. v. Lifchus is worth reviewing:

• The burden of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence;

• Reasonable doubt is not a doubt based upon sympathy or prejudice;

• Rather, it is based upon reason and common sense;

• It is logically connected to the evidence or absence of evidence;

• It does not involve proof to an absolute certainty, it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and

• More is required than proof that the accused is probably guilty – a judge or jury which concludes only that the accused is probably guilty must acquit.

[15] There is no direct evidence that defendant was the person who engaged in the text message exchange with the police officer.

[16] The Crown points to several pieces of circumstantial evidence which points to the defendant including:

(i) The defendant appeared at the door of the hotel room at the time which had been agreed upon by the person texting the police officer;

(ii) The defendant appeared at the door with the following items on his person namely: cash in the amount of $200 (which was the agreed amount in the text messages). He found no identification and no wallet but only a gas receipt; and,

(iii) A car was parked nearby which had inside it a phone. An officer rang the number (which was the number identified with the received text messages) and the phone rang. The defendant's photo licence was found in the car.

[17] With regard to the car and anything found inside it, it suffers from one great disability in that the Crown never proved ownership of the car and notwithstanding the evidence of the officer nearby, he was not seen in or getting into or out of that car. While this may be some evidence that the defendant may have occupied the car at some time, it still is a long way from identifying him as being the owner of or the person in possession of the phone that was exchanging text messages with the officer.

[18] The defendant states that while these pieces of evidence are some evidence that it was the defendant who entered into this text message discussion, it is not consistent only with that inference. This defendant could have knocked at this hotel door for many other reasons not connected to the person who was sending the text messages. That a guest of a hotel may be in the halls without all of his identification (and indeed his car keys) is well within the realm of experience as is the fact that this person may be at this door at around the time indicated by the text message.

[19] As stated in R. v. Villaroman, in restating some aspects of the burden of proof of identity where it consists solely of circumstantial evidence:

[37] When assessing circumstantial evidence, the trier of fact should consider "other plausible theor[ies]" and "other reasonable possibilities" which are inconsistent with guilt: R. v. Comba, [1938] O.R. 200 (C.A.), at pp. 205 and 211, per Middleton J.A., aff'd , [1938] S.C.R. 396; R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11, at para. 20; R. v. Mitchell, [2008] QCA 394 (AustLII), at para. 35. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to "negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused": R. v. Bagshaw, [1972] S.C.R. 2, at p. 8. "Other plausible theories" or "other reasonable possibilities" must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.

[38] Of course, the line between a "plausible theory" and "speculation" is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.

[20] In looking at the totality of the circumstantial evidence, I find that there are reasonable inferences from experience (and not speculation) that could point away from the defendant being the person who engaged in the text conversation with the police officer.

[21] It would therefore follow that I am not convinced beyond a reasonable doubt that the defendant was the person who was involved with the exchange of text messages and thus he cannot be convicted of any of these offences.

[22] In reaching this conclusion, it becomes somewhat irrelevant to discuss whether the Crown has proven any other aspects of this case. Not being satisfied that the defendant was the other participant in the text message exchange, there is no route to admit the substance of the messages purported to be from this defendant. It cannot be an admission against his interest if I am not convinced he was the author of the statements.

[23] This finding would end the matter with an acquittal on all counts. I will go further and assess whether the Crown would otherwise establish the offence if I made a different finding on identification.

Has the Crown proven knowledge of age or is willful blind to the fact?

[24] The charge of child luring has three essential elements, (1) an intentional communication by means of telecommunication, (2) with a person who the accused believes is under the requisite age, (3) for the purpose of facilitating the commission of a designated offence with respect to that person.

[25] R. v. Morrison has changed the landscape with regard to the proof of, and the available defences to the charges of "Child Luring" under s. 172.1(2) and s. 286.1 of the Criminal Code.

[26] Of most importance is the fact that s. 172.1(3) has been struck down. That section provided the Crown with a deeming provision that was found by the court to violate the presumption of innocence under s. 11(d) of the Charter. It must be said that this change has converted many of these cases from a virtual "slam dunk" for the prosecution, to a more detailed exploration of all of the information available to the defendant.

[27] The defence has called no evidence in this case. I believe that while I cannot therefore consider whether the defendant has an "affirmative" belief of the status of the age of the (proposed) other person, I still must still decide whether the Crown has presented "proof beyond a reasonable doubt that the accused believed the other person was underage. Nothing less will suffice".

[28] In assessing whether that proof is sufficient:

The Crown can prove beyond a reasonable doubt that the accused (1) either believed the other person was underage or (2) was wilfully blind as to whether the other person was underage. The second alternative is legally equivalent to the first.

[29] In assessing "wilful blindness" the court quoted with approval that "a court can properly find wilful blindness only where it can almost be said that the defendant actually knew", and "Indeed, it is equivalent to knowledge".

[30] The Crown points to the several text messages where the issue of age is now raised by the police officer. More importantly, she asks me to consider the responses as being an indication that there was actual belief on the part of text messenger. I agree that he made some response to the statements of the officer where he urges that "you are quiet about that" and "its ok as soon you ok with that" and "are you still virgin".

[31] The question is whether I would be convinced beyond a reasonable doubt especially taking into account all of the other information that he had, especially the advertisement which explicitly stated that the person was over 18 and pictures which could lead anyone to believe that the person he was communicating with was indeed over 18. In doing so I am mindful that if the person was merely reckless or was merely negligent that would not be proof beyond a reasonable doubt.

[32] As I review the decision in Morrison, the Crown not only had the conversation between the police and the person, which stated her purported age, the language was consistent with a person of that represented age. I am not so sure that is the case in this text exchange. There was also an offer to "pick her up from school", some admission by the defendant to the police revealing his belief and his lack of belief in the statement on the advertisement that she was 18.

[33] It is difficult without anything more than the advertisement and the text message, where the information on age is at best conflicting, to determine beyond a reasonable doubt that the person believed that the person was under 18 or whether there was wilful blindness. I could not say I would be so satisfied.

Conclusion

[34] Not being satisfied that the Crown has proven the identity of the defendant as the sender of the text messages to the police, and also not being satisfied that the evidence of the text messages and the advertising was sufficient to prove beyond a reasonable doubt that the text messenger believed he was communicating with a person under the age of 18 years or was wilfully blind to the fact, I find the defendant not guilty on all counts.

Released: October 3, 2019

Signed: "Justice P.N. Bourque"