O N T A R I O C O U R T O F J U S T I C E
CITATION: R. v. Braithwaite, 2021 ONCJ 421
DATE: 2021-04-29
COURT FILE NO.: Central East – Oshawa – 2811 998 19 25229
DATE: 2021-04-29
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
JOSEPH BRAITHWAITE
Before Justice P.N. Bourque
Reasons for Judgment
Heard April 12-13, 2021
Judgment Released April 29, 2021
M. Newhouse.............................................................................. for the Crown
B. Scott ................................................................................. for the Defendant
BOURQUE J.:
Overview
[1] The defendant is charged with the following offences all from May 31, 2018:
(i) Communicate with person who was believed to be under 18 for purpose of facilitating offence under s.286.1(2) or s.153(1) s.172.1 (2) of the Criminal Code.
(ii) Communicate with person posing as 16 year old to commit an offence under s.286.1(2) with person under 18 years contrary to s.172.2 and 153(1) of the Criminal Code (dismissed at request of the crown).
(iii) Every person commits an offence who is in a position of trust or authority towards a young person, who is a person with whom the young person in relationship that is exploitative of that young person for sexual purpose invite young person who identified as person 16 years old to touch a part of her body with his body contrary to s.153 (1.1)
(iv) communicate with person un 18 years to obtain sexual services of person contrary to s.286.1 (2) of the Criminal Code.
[2] This case involves the utilization of a, now well known, police deception. The defendant responded to an online advertisement where the police posed as a person (19 years of age) who was offering sexual services. The person engaged with the police through text messages and a meeting at a hotel was arranged.
[3] During the course of these text messages (set out below), the police person indicated that they were under 17 years old. The defendant attended the motel room with the agreed coffee, the agreed amount in cash, and the defendant, after some conversation, was arrested. All the charges noted above flow from that general scenario.
[4] The Crown’s case consisted of an agreed statement of facts with 3 documents attached.
Agreed Statement of Facts – Exhibit 1 “A”
(i) On May 31, 2018, Mr. Braithwaite saw the advertisement, Exhibit 1 “B”, on the website ‘leolist.ca’. In response to the attached advertisement, still on May 31, 2018, Mr. Braithwaite entered into text message communications with a person who, unbeknownst to him, turned out to be an undercover officer.
(ii) The messages exchanged between Mr. Braithwaite and the undercover officer was marked as Exhibit 1 “C”. The dates and times indicated on the messages in are accurate.
(iii) On May 31, 2018, at around 4:47 p.m., Mr. Braithwaite arrived at Room 211 of the Residence Inn, in Whitby (near Brock St. and the 401). The undercover officer opened the door for Mr. Braithwaite. Mr. Braithwaite was holding an iced cappuccino. The undercover officer was an adult and looked like one. The undercover officer explained to Mr. Braithwaite that she worked with the escort.
(iv) She then asked Mr. Braithwaite whether the escort had told him she was sixteen. Mr. Braithwaite responded in the affirmative. The undercover officer commented that “you guys agreed to something a little bit different; I want to make sure she is OK; she is young and a bit nervous; she has been roughed up before”.
(v) The undercover officer then asked if the escort had agreed to “greek” [a term which signifies “anal sex”]. Mr. Braithwaite responded in the affirmative. The undercover officer explained that she didn’t control the escort’s phone and therefore didn’t know what the escort had agreed to. The undercover officer confirmed that the price was $160, to which Mr. Braithwaite agreed. The undercover officer asked whether it was for an hour or a half-hour, and Mr. Braithwaite responded, “whatever”. The undercover officer told him that he could decide.
(vi) She then asked to see the money, specifying that she wouldn’t be taking it. Mr. Braithwaite took $160 cash out of his wallet. The undercover officer placed it on a nearby surface. She asked if Mr. Braithwaite was ready to see the escort now and Mr. Braithwaite responded in the affirmative. She told him she would go down to get the escort.
(vii) Mr. Braithwaite had sat on a couch in the room at one point during the encounter with the undercover officer. As the undercover officer was leaving the room, she saw Mr. Braithwaite get up off the couch and take his money back.
(viii) Mr. Braithwaite was wearing his wedding ring during his encounter with the undercover officer. At approximately 5:04 p.m., after the undercover officer left the room, other officers came into the room to arrest Mr. Braithwaite for the offences of sexual exploitation, child luring, making arrangements, and communication for the exchange of sexual services with a person under 18.
(ix) Upon being informed of the offences with which he was being charged, at 5:05 p.m., Mr. Braithwaite asked the arresting officer: “Isn’t sixteen the age of consent?”. The voluntariness of this question is conceded.
[5] Seized from Mr. Braithwaite’s person upon arrest was his cellular phone, along with $160 cash. The cash was taken from the pocket of his shorts. Mr. Braithwaite’s phone was forensically searched pursuant to a search warrant. The results have been made available to the Crown and defence counsel in the form of a “Cellebrite” report.
[6] Mr. Braithwaite has reported to his doctor (Dr. Arthur Pinto) that he is unable to achieve an erection, and that he suffers from severe erectile dysfunction. This problem was first reported by Mr. Braithwaite to Dr. Pinto on November 30, 2017. There have not been any tests conducted to confirm this self-reported medical condition. The aforementioned information was obtained directly from Dr. Pinto, Exhibit 1 “D”, in the form of a letter.
[7] The text messages are set out in full below:
Description
Time
Text
Defendant
3:15
Afternoon Jenny, can you tell me your list of menu options, restrictions and pricing….thanks
Police
3:37
Im open minded. Extas cip of 100 hh 180 h
Defendant
3:43
Greek, msog, submissive?
Police
3:52
Hh or hr???
Defendant
3:53
Depends
Police
3:54
Hmmmm.Submissive I can be.no violence
Defendant
3:57
No, smacknyou ass a little, pull your hair some, maybe some mild chiking of you’re up for it…
Police
4:00
Money can buy u lots babe
Defendant
4:02
I get that….how much are we talking about?
Police
4:12
250
Police
4:13
im young u can teach me 2b submissive
Defendant
4:13:
to do everything I have listed including Greek and cumming in your ass… I’ll teach you how it should be done with respect…
Police
4:15
Mmmm…
Defendant
4:16
Was that mmmmm good or mmmm I don’t think so…
Police
4:16
I have 2b straight w u babe….im under 18 so I have lots 2 learn fr u
Police
4:16
No a good mmm..Like yummy
Defendant
4:16
How old are you really?
Police
4:17
Im almost 17 hun
Defendant
4:18
so old enough to consent
Police
4:19
Sorry babe….but I am here of u want to play
Defendant
4:21
As long as you are not 14, I’m good….I would be good then too, but that could have legal implications
Police
4:26
Ok..babe…wat time u thinkin
Defendant
4:26:
Still stuck on the price
Police
4:27
Ok…wat were u thinkin…I negotiable….will u be good to me
Defendant
4:28
I’ll be good to you and teach you how to be bad…
Police
4:29
Mmmmmm
Defendant
4:30
Will you be good to me though?
Police
4:30
Of course…ill be ur submissive
Defendant
4:35
How about 160
Defendant
4:35
Got time now?
Police
4:36
160 but can u bring me an ice capp
Defendant
4:36
Timmy’s
Police
4:36
Yes pls
Police
4:36
Defendant
4:36
Ok, just a straight forward ice cap?
Police
4:37
Yes babe…my fav
Defendant
4:37
Where an I metting you
Police
4:37
Im at brock n 401
Police
4:38
Whitby
Defendant
4:38
Ok which hotel?
Police
4:38
Residence
Defendant
4:37
Ok
Police
4:38
Whitby
Defendant
4:38
Ok which hotel
Police
4:45
Ok
Police
4:45
Defendant
4:53
Here
Police
4:56
211 Babe
[8] The Crown closed its case after filing these exhibits.
The Defence
Joseph Braithwaite
[9] The defendant testified in his own defence. As part of his testimony, the defendant filed a copy of a book that he had authored called; “ Not Your Average Cup of Joe”.
[10] It appeared to be an autobiographical account of parts of his life and contained many of his statements as to how to approach life and indeed reach some levels of success in life. He made reference many times in his book about how he had reached an extremely low point in his life, but was then able to “pick himself up” through various techniques and was able, by his account, to make something of himself.
[11] He also filed a Curriculum Vitae which he had previously prepared along with some e-mail messages with others largely concerning his book. He referred to these materials in his testimony.
[12] The thrust of his evidence in-chief was that he had no sexual purpose for this communication with a sex trade worker. It was his evidence that he was doing this for the purpose of interviewing a person whom he described as: “a person of lower self esteem”. It was his assertion that the focus of his book and his further research is about people who cannot succeed in life because of this lowered self esteem.
[13] As part of his testimony, he made reference to the fact that he had previously complained to his doctor about erectile dysfunction (a letter was filed with the agreed statement of facts confirming this). He stated that he would not have engaged in sexual activity in any event. He stated that he discussed money with the purported sex trade worker and then picked the money up off the table in order to only get the person comfortable.
[14] In the agreed statement of fact, and in his evidence in-chief, he never referred to taking any note taking materials with him when he attended the sex trade worker for research. He was cross examined extensively.
[15] The Crown attorney asked him questions about his research and methods of research and about specifically what research he did in preparation for his interviews with sex trade workers. (He did not mention in examination in chief any other interviews with sex trade workers but in response to a specific question from the Crown he mentioned 4 other interviews in 2017 and 2018). He did not research about what is legal in buying sex or communicating in the purchase of sex. (He stated that his wife was a police officer and had some experience in sex crime units and for some reason he never queried her about any of these legalities). In fact he never queried her about any of this research and did not tell her what he was doing. When he made this appointment and went off to see this sex trade worker, he told his wife a lie about what he was doing.
[16] He was asked about his note taking in preparation and doing this sort of research and he told that he did not do that and compared it to doing research when he is buying a consumer product. In other words, notwithstanding his protestation that all these meetings with sex trade workers was only for research on the issues of “self esteem”, he never made any notes (either writing or orally) and had only the haziest notion of what may have been said in any of these meetings.
[17] He told the Crown that he would not ask any leading questions about these research inquiries, yet his entire communication with this officer was full of suggestions about various sex acts and about the remuneration. With regard to the question of renumeration, while he stated over and over again that he had no intention of actually paying this person for sex, he took the time to haggle with her over the price. He had no real explanation as to why he did this.
[18] When elements of the texts messages did not seem to assist his assertion that he was only doing this for “research” he would often fall back on his assertion that the person may have had a pimp and for some reason he had to placate the pimp. Surely haggling over the price of the offered services would not be pleasing to any possible pimp. In addition, if he was truly thinking of whether there would be a pimp, which could lead to unpleasantness, his failure to take any precautions for his own safety on that day was noted.
[19] With regard to issues of age, he agreed that he did not look up the law as to the legal age for sex. He did agree that he knew that buying sex was illegal but to him that was not a problem as he had no intention of “buying” sex. He only wanted to interview this person. In the text messages, there was some discussion about age and specifically he wanted to make sure she was not 14. He said that this was because he had some information that he could not legally interview someone who was 14 or less. He could not give any information as to where he got this idea. He could not say what would happen if he breached this so called prohibition. What he did do was deny that it had any thing to do with legal reasons and having sex.
[20] Filed as an exhibit was some 300 pages of text messages from the defendant’s phone. All of the messages, save the ones from May 31, 2018, had been deleted by the defendant. There were several messages from May 31, 2018 with at least three other possible sex trade contacts. The defendant’s opening and some other words were very similar to the messages sent which are evidence of these offences.
[21] As a further matter, the other contacts (which he did not proceed with) had quoted fees which were somewhat higher than the fees agreed upon in the subject matter.
[22] In addition, in the week preceding these events, there are a series of text messages with two other women (friends of the defendant as he described them). Those messages talk about very intimate sexual matters between them. The defendant describes that he will be performing various types of sexual intercourse with these women and they respond positively in kind. There is also some discussion about the infliction of some pain on one of the women. The defendant stated that these were just flirtatious discussions and he never had sex with these women. He reiterated that he was incapable of having an erection at any time in 2018.
Analysis
The Law
Offence under [S.172.1](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec172.1_smooth) of the Criminal Code – Child Luring
[23] Section 172.1 has been amended by the Supreme Court in R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3, by striking out subsection (3) thereof and puts the onus on the Crown to prove beyond a reasonable doubt that the defendant believes that the person with whom he is communicating is under the age of 18 years.
[24] The onus is therefore on the Crown to prove not only the actus reus of the offence but also the mens rea of the offence, that the defendant believes that the person is under the age of 18 years. In our case, the defendant did not deny that he believed that the person was under the age of 18 years.
[25] The defendant denied that he was seeking to obtain sexual services (s.172.1(2) and s. 286.1(2)), from this person and therefore did not have the mens rea to commit either of these offences. As per s.286.1(2), the defendant states that any communication he had with this person was not for a sexual purpose, and thus cannot be convicted of this offence either.
[26] At all times the burden is upon the Crown to prove the essential elements of these offences beyond a reasonable doubt. As set out in R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320:
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) jury which concludes only that the accused is probably guilty must acquit.
[27] As the defendant testified, and his version of his intention could provide him a defence to these charges, I must also instruct myself with regard to the doctrine in R. v. W.D. which states:
First, if you believe the evidence of the accused, obviously you must acquit.
Secondly, if you do not believe the testimony of the accused but you are left in a reasonable doubt by it, you must acquit.
Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, in the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
[28] I find that I do not accept the evidence of the defendant with regard to this issue. Specifically, I find that he did not undertake this activity for the purpose of some legitimate research. His evidence in this regard did not ring true for the following reasons:
(a) There would have been several other avenues for him to have obtained this information, (scientific journals etc.) without having to pose as a customer to obtain an audience with an escort
(b) He did not take any efforts to discover whether his approach would be a breach of the law. As pointed out in cross-examination, he could have got this information from his wife (a police officer). If he was sincere in getting information about this issue, his wife (as a police officer who had some involvement with sex trade workers) would have been a good source of primary information. Indeed, if this was legitimate research why did he even lie to hide it from his wife.
(c) His reasons for seeking this “interview”, that is for some sort of “hook or line” for his book, does not ring true. Low self esteem is not tied to any particular calling or trade, and certainly not just the sex trade. He never did explain why this was the only possible source for locating a person with low self esteem.
(d) His lack of any real professional approach to this “interview” gives me pause. He was not prepared to make any notes (he had note made any notes of the previous interviews he said that he had done), and followed no protocols for an interview. He had even deleted from his phone any reference to the other sex trade workers that he said he had “interviewed”. Why do that if you are legitimately doing some sort of real research. The answer is that there is not a reason.
(e) His assertion that the age “14” was only relevant to whether someone could be interviewed also did not ring true. The age of 14 has great significance in the criminal law. He professed to be totally unaware of this. He could point to no publication or regulation which related the age of 14 to the ability to consent to be “interviewed”. In addition, when told by the police as to why he was being arrested. He stated that he believed that 16 was the age of “consent”. He was clearly not being arrested for a breach of any “age of consent to interview” rules.
[29] For all the above reasons, I do not find the defendant to be a credible witness on the issue of the asserted lack of sexual purpose. I also find that it does not leave me with a credible doubt. While I do not dispute that a person may wish to interview a sex trade worker for some type of legitimate research, I specifically find that in this case and for this defendant, that was not his intention.
[30] With regard to whether the Crown has proven a “sexual intent”, I find that I am not left in any doubt. With any other purpose removed, what other purpose can there be for seeking out a web page of a sex worker, engaging in online conversation with a sex worker about the type of service to be provided, the price for such services and the meeting place and time, except for the purpose of engaging in some type of sexual purpose.
[31] With regard to the defendant’s statement that he reported to his doctor (and confirmed by a letter) that he was suffering from erectile disfunction issues, this is not in any way determinative of whether the defendant could or could not (with some medication or other treatment) engage in penetrative sexual relations at the time of this meeting. It is also not determinative of whether other sexual activities were possible. Sexual activities constitute a wide variety of activities, some of which (sexual touching for example) are in the Criminal Code.
[32] Based upon all of the evidence that I accept, I find that it is proven beyond a reasonable doubt that the defendant attended the meeting with a sexual purpose. The defendant not disputing any other aspects of the charge, I find him guilty of the offence under section 172.1(2).
Count 3 – s.53
[33] Unlike s.172.1(2), count 3 involves an offence which involves a finding that the defendant is either “in a position of trust or authority towards a young person” or “in a relationship of dependency” or is in a relationship with a young person “which is exploitative of the young person”. In my opinion, the facts of this case do not establish any relationship between the defendant and any young person, let alone one with a dependency, trust or authority, or exploitive.
[34] In any event, I do not think that a police officer who poses on the internet as a young person, can be a “young person’ for this section. In s.171.1(2), it is the belief in the mind of the defendant about the age of person that is proven for the offence to be made out. Section 153 contains no similar language. I believe that for the offence under section 153 to be made, there must be an actual “young person”.
[35] I note that in submissions on raising this, the Crown invited me to dismiss this charge and I do so.
Count 4 – s. 286.1(2)
[36] With regard to this count, as I have rejected the defence that the communication was not done for sexual purpose, I must therefore find the defendant guilty of this count as well.
Conclusion
[37] The defendant will be found guilty of Count 1 and Count 4. All the other counts are dismissed.
Released: April 29, 2021
Signed: “Justice P.N. Bourque”
P.S. I have reviewed the case of R. v. McSween, 2020 ONCA 343, where the court of appeal seemed to suggest that the offence of Child Luring under section 172.1 does not require and “sexual purpose”, at least with regard to the child pornography prohibitions under sec 163.1. It did not deal with facilitating an offence under sec 286.1. The wording is quite different under each of these two sections. In any event, as I have rejected the defendant’s assertion that the communication was not for a sexual purpose, I need not rely on this decision.