Ontario Court of Justice

Date: 2019-11-18 Location: Newmarket

Between:

Her Majesty the Queen

— AND —

David Chow

Judgment

Evidence and Submissions Heard: 18 November, 2019.

Delivered: 18 November, 2019.

Counsel:

• Mr. Michael Ventola — counsel for the Crown
• Mr. Patrick Ducharme — counsel for the defendant

KENKEL J.:

Introduction

[1] Mr. Chow is charged with three offences arising out of Project Raphael, the investigation of underage prostitution in York Region. In response to an online advertisement for sexual services, Mr. Chow sent text messages to an undercover officer posing as a 15 year old girl, "Jamie." He was arrested when he arrived at the hotel room to complete the transaction. Both counsel agree that on all three counts one issue remains – whether the Crown has proved beyond a reasonable doubt that the accused believed he was communicating with a person under the age of 16 or was wilfully blind in that regard.

Evidence and Submissions

[2] The Crown's case rests upon the evidence of the backpage.com advertisement marked as Exhibit #1 and the text exchange between the officer and the accused marked as Exhibit #2. The defence did not call evidence.

[3] The Crown submits that while the ad complies with the website requirement stating Jamie's age as 18, there are several descriptors such as "YOUNG, shy FRESH and NEW" that reasonably suggest the person is very young. The Crown submits the text messages show the accused was not concerned with Jamie's age and believed she was underage:

2009 yes but are u ok if im not 18 yet hun? some guys are down and some arent

2010 Maybe …. How much?

2011 im 15 hun im in newmarket

2011 Where? ….

2012 Are you a cop?

2013 Missed Call (from accused)

2016 im 15 hun i dont want a disease

2017 Where are you?

2020 Yes or No?? Not saying I will or not till I see you …

[4] The portion of the conversation set out above contains the references to age and the responses relied upon by both parties.

[5] The defence submits that the ad posted was for a transaction involving an 18 year old. The photographs posted with the ad are of a person in her 20's and are not consistent with a person under 18. The accused agreed to purchase a sexual service for money, but the evidence does not prove that the accused believed the person was under 16 or had agreed to complete the transaction with such a person.

The Accused's Belief

[6] In the context of a police sting where there is no underage person involved in the communication, the Crown must prove beyond a reasonable doubt that the accused believed the other person was underage. Recklessness will not suffice as it is a state of mind that does not entail any concrete belief about the other person's age – R v Morrison 2019 SCC 15 at para 83.

[7] Deception and misrepresentation are commonplace on the Internet – Morrison at para 58. The text messages above take place in that context, in response to an ad offering sexual services by a person 18 years of age with photographs consistent with that age or older.

[8] There have been cases in this region arising out of the same project where there was a more detailed discussion of age showing that the accused believed the representation and acted upon it. No particular discussion is required and each case turns on its own facts. In this case I find the Crown has failed to prove the accused formed the necessary belief on all of the evidence including the passages referred to above where the accused indicated that any transaction was contingent upon his seeing the other party. It is a reasonable inference in that context that the accused wanted to see Jamie to determine age as the other aspects of the transaction had been agreed to. If he believed her to be 15 and continued to discuss arrangements he would not have added the condition as he would be content to proceed with the transaction regardless. The repeated caveat reasonably suggests an ongoing concern over the statements about age inconsistent with a settled belief in that regard.

Conclusion

[9] The facts show that Mr. Chow was reckless in continuing a discussion about purchasing sex where it was possible that the other person might be underage. However, considering all of the evidence I find the Crown has failed to prove that he believed that representation beyond a reasonable doubt. The charges are dismissed.

Delivered: November 18, 2019.

Justice Joseph F. Kenkel