ONTARIO COURT OF JUSTICE

CITATION: R. v. C.Y., 2022 ONCJ 617

DATE: 2022 03 06

COURT FILE No.: Brampton 3111 998 20 4741

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

C.Y.

Before Justice G.P. Renwick

Heard on 20-21 July 2021, 28 February, and 01 March 2022

Reasons for Judgment released on 06 March 2022

J. Goulin and R. Prihar..................................................................... counsel for the Crown

J. Berkes and C. Candea........................................................... counsel for the Defendant

RENWICK J.:

INTRODUCTION

[1] The Defendant had a trial before me on the following four counts: committing an indecent act (s. 173(2)), invitation to sexual touching (s. 152), attempting to make child pornography (s. 163.1(2)), and unlawfully distributing sexually explicit material (s. 171.1(1)b)). The prosecution called five police witnesses and the Defendant did not lead any evidence on the trial.

[2] Briefly stated, the allegations involve an undercover police officer posing as a 14 year-old boy on social media applications (“Apps”). Within a short period of time, the undercover officer received communications from someone who purported to be an adult male, who became known as “Chris.” The communications spanned a two-month period and took place over two different social media Apps and phone to phone text messaging (“texts” or “texting”). The communications included sexually explicit discussions, videos, and photographs, and included attempts at luring for sexual activity.

[3] The Defendant conceded that the four alleged offences were proven on the evidence adduced during the trial. The sole issue for my determination is whether it is proven beyond a reasonable doubt that Chris is the Defendant. In other words, is it proven to the criminal standard that the Defendant was the person who communicated with the undercover officer and sent sexually explicit photographs and videos to lure someone who represented themself online as a 14 year-old boy.

GOVERNING LEGAL PRINCIPLES

[4] The onus during a criminal trial begins and ends with the prosecution to prove the guilt of a defendant beyond a reasonable doubt. Everyone charged with a criminal offence is presumed innocent and that presumption remains throughout the whole of the trial unless and until the court is satisfied that the charge has been proven beyond a reasonable doubt. The prosecution’s burden of proof never shifts during the trial. In this case, if at the end of my consideration of the evidence and submissions I am not satisfied that the prosecution has proven any element of an offence charged beyond a reasonable doubt, and more specifically, if I have a reasonable doubt that the Defendant was the person communicating with the undercover officer, he will be acquitted of these charges.

[5] A reasonable doubt is not an imaginary or frivolous doubt. It must be based upon reason and common sense and it logically derives from the evidence or the lack of evidence adduced during the trial. While likely or even probable guilt is not enough to meet the criminal standard, proof to an absolute certainty is inapplicable and unrealistic. The Supreme Court of Canada has cautioned that there is no mathematical precision to proof beyond a reasonable doubt but it lies much closer to absolute certainty than to proof on a balance of probabilities.[^1] If after considering all of the admissible evidence I am sure that the Defendant committed an alleged offence I must convict him, since this demonstrates that I am satisfied of his guilt beyond a reasonable doubt. Likewise, if I am not sure, then I have a reasonable doubt and an acquittal must follow.

[6] In this case, the evidence of identity, is circumstantial. In order to be satisfied that the identity of the person known as Chris has been proven to be the Defendant beyond a reasonable doubt, I must be satisfied that it is the only reasonable inference available on the evidence.[^2] In assessing the case, I must consider the evidence cumulatively and as a whole. Given that each circumstantial piece of evidence may be insufficient on its own to support the required inference, I must consider all of the individual pieces of evidence together to determine whether the prosecution has met its burden.

[7] In the next part, I will outline some of the evidence and provide an assessment of the evidence, with references to specific portions of the testimony. Although I will not refer to much of what any witness said, I listened to each witness carefully, I have taken detailed notes, I have reviewed the exhibits, I have had access to the digital record of the proceedings, and I have assessed all testimony for intrinsic and extrinsic consistency, plausibility, balance, possible interest, and the witness’ ability to recall and communicate.

[8] Suffice it to note that I have used ample and many opportunities during the trial and subsequent to the completion of the submissions to review my notes and to listen to parts of the digital recording of the trial. I have thoroughly reviewed the evidence in this case, and I will only discuss parts of the evidence where it serves to underscore my findings. Lastly, I came to no conclusions about any of the evidence received until all of the closing submissions were made and my review of the evidence was complete.

THE EVIDENCE AND FINDINGS

[9] For the most part, the evidence adduced by the prosecution was essentially uncontested in this trial. At issue, is what the evidence proves. As indicated, the Defendant agrees that the communications with and images sent to the undercover officer could establish all of the requisite elements of each offence.

[10] I have no hesitance in accepting the truth and accuracy of the testimony of officers Cathy Harloff, Scott Williamson, Brad Imber, Andrew Ullock, and Anita Sikora. Each testified in a balanced, almost neutral manner, credibly and reliably.

[11] Officer Harloff created a profile on an App known as “GRINDR.” Her profile name was “Shy Guy Ruy 14y.”[^3] She testified that GRINDR is a location-based App that allows people to meet others in their area. Among other types of relationships, this App facilitates users meeting for sexual encounters.

[12] Officer Harloff deliberately created a profile that was somewhat generic. She posed as a 14 year-old boy and left her height, weight, ethnicity, and body type fields blank, while using a photograph of a dog as a profile picture. She selected “Chat,” “Date,” “Friends,” and “Relationship” as options for the types of interactions she was seeking. Officer Harloff also left the “Accept NSFW Pics” (pictures that are Not Safe For Work) option blank. The officer testified that this might indicate to others that she was not necessarily against accepting images that could be explicit and likely inappropriate if displayed on a work device at one’s employment or similar environment.

[13] Officer Harloff explained that “catfishing” is the practice of disguising one’s true appearance or identity online. People catfish in online settings to appear a different age, or to attract people. This may involve using a dated (more youthful or flattering) photograph of oneself, or completely disguising one’s identity. Investigators do this to attract pedophiles.

[14] The Defendant made several concessions during the trial. He conceded that the phone number Chris used, 647-XXX-1812[^4] (“1812” or “the 1812 number”), is a cell phone number that was at all material times registered to the Defendant at his residence. This was a fair concession. Officer Harloff testified that the police had been granted a production order and had learned that the telephone number used by Chris was registered to the Defendant.

[15] The Defendant also conceded the continuity of the content of the messages exchanged between Chris and Officer Harloff, including the photographs and videos. Lastly, while the Defendant conceded the sequence of the communications and the sender of each message, he specifically did not agree to the dates/times of the communications.

[16] In the end, I am satisfied that Officer Harloff accurately captured her communications with Chris. I am equally satisfied with her evidence that the cellular device she used to capture her communications accurately captured the dates and times of the communications. To be fair, there was no challenge to this evidence.

[17] The Defendant also conceded the continuity of photographs taken during the execution of the search warrant at the Defendant’s residence and the continuity of items of clothing seized from the Defendant’s residence that was believed to have been depicted in some of the photographs and videos sent by Chris to Officer Harloff.

[18] I also heard testimony and received communications from Officer Harloff about another social media platform, “SIGNAL.” SIGNAL is an App that Chris suggested that they use to communicate. This App has a feature which allows users to set a timer, after which the messages received from another user disappear and cannot be saved by the recipient. Officer Harloff took screen captures of her messages with Chris, during the conversations on SIGNAL, in order to prevent the total loss of this evidence.

[19] Officer Harloff testified that in the moments just prior to the execution of the search warrant at the Defendant’s residence, she sent Chris two messages on SIGNAL, in case Chris had deleted all of the prior communications with her.

[20] This officer also testified about having seen the Defendant in his residence during the execution of the search warrant, with another male resident (“the other resident”). The officer testified that before giving the Defendant a mask to wear, given that the execution of the warrant took place during the global coronavirus-19 pandemic, she observed that the Defendant had a distinctive mole or birthmark on his face on the left cheek.

[21] The prosecutor raised the issue of the Defendant’s mole and the fact that he was wearing a mask in court. During the trial, the Defendant voluntarily agreed to temporarily remove his mask in court, to permit the court to see his unmasked face. I saw the Defendant’s face for 3 seconds, from the distance of counsel table to the dais, and noted that he had a 2-3 cm gray mole on the centre of his left cheek. The Defendant’s face was clean-shaven, he wore eye-glasses, and I did not see any of his teeth.

ANALYSIS

[22] It was clear throughout the evidence in this case that none of the police witnesses was proffered as an expert in the use or functionality of the Apps or text messaging that comprised the communications in this matter. Officer Harloff could only provide evidence respecting her use of the Apps employed and her understanding of the functionality of the social media platforms she used to communicate with Chris.

[23] There was no evidence respecting the metadata or underlying digital information that may be embedded in any of the photographs or videos introduced in this case. This is unfortunate, because metadata may include information respecting the date and time that an image is created, where in the world the image is created, and identifying information about the device upon which it was created.

[24] The prosecutor made several submissions regarding the circumstantial case and how it could only lead to the conclusion that the Defendant was involved in the chats with the undercover officer. Among the arguments were the following:

i. The timeline and content of the communications establish that it is only one person communicating with Officer Harloff;

ii. The other resident that was found to be staying/living at the Defendant’s home on the date of the search warrant was not in Canada when the communications began;

iii. Pieces of the clothing worn in the photographs and videos are worn by the Defendant and seized from his residence;

iv. The suspect using the Defendant’s cell phone (1812) gave a verification photograph to officer Harloff (he touched his nose with his fourth finger at pp. 48-51 of the chats[^5]);

v. Using SIGNAL or GRINDR associated to the Defendant’s phone number would require access to the Defendant’s cell phone (to receive a verification code);

vi. The user of 1812 requested video chats with the officer on 11 occasions. The Defendant’s photographs had been sent to Shy Guy on multiple occasions. If the person requesting video chats were someone else, this would become immediately discoverable and would likely undermine the developing relationship;

vii. Before the search warrant was executed, Officer Harloff sent two messages to 1812 on the SIGNAL platform. When the Defendant’s cell phone was seized by police moments later, it showed that two new messages were available on the SIGNAL App on the Defendant’s phone;

viii. Neither the Defence theory of a revenge ploy to frame the Defendant nor the use of 1812 by an alternate suspect accorded with other circumstances; and

ix. The description of the other resident living with the Defendant was inconsistent with the male depicted in the photographs and videos sent to the police officer.

[25] In the end, for the reasons articulated below, I am not satisfied that all of the circumstantial proof adduced leads inexorably to one conclusion respecting the identity of the user of 1812 known as Chris.

[26] Many of the circumstances related to the undercover officer’s use of a disguised persona could apply to the user of 1812. The officer had a collection of “verification pose” photographs. This could have been true for the suspect. In fact, it was the suspect who requested a photograph of the third or fourth finger touching the nose. There was a considerable gap in time between the first discussion of a verification photo and when one was actually sent. If the suspect were someone other than the Defendant, the suspect would want to control the verification pose by requesting a photograph that was already possessed or one that could be obtained. Without metadata, there is no way to know when the photographs taken for the verification pose were generated. There is no evidence that the ‘selfie’ photographs were possessed exclusively by the Defendant or created solely for the communications with Shy Guy.

[27] Officer Harloff admitted that there are Apps to mimic other cell phone numbers, but there was no evidence to establish that the texts could only have come from the Defendant’s cell phone. Also, even if the Defendant’s cell phone had been used for the text messages with the officer, there is no direct evidence respecting who used it during these communications. It must be remembered that when the police seized the Defendant’s phone, it was in an unlocked state. There is no evidence that the Defendant’s phone automatically locks at any point. This makes it difficult to establish that others with access to the Defendant’s home (such as a house guest) would not have also had access to his cellular telephone. In the absence of cellular telephone records, or the actual text messages found on the Defendant’s phone, the evidence that 1812 was used to communicate with Officer Harloff proves very little.

[28] The prosecutor’s submission that GRINDR or SIGNAL would send a verification code to the cell phone associated to the account is accepted. This was the evidence of Officer Harloff. However, most Apps can be used on multiple devices by using the cell number or email address associated to the App and a passcode. There is no evidence that the Defendant had sophisticated passcodes or did not give his login information to others. If the other resident (or someone else) had been privy to the Defendant’s GRINDR and SIGNAL login credentials, he could have easily used these Apps at any time, on any device, from anywhere in the world.

[29] Unfortunately, the police never looked at the other resident’s SIGNAL and GRINDR messages or even if the other resident had these accounts on his devices. Exhibit 5 is the statement of the other resident. He admits having used these Apps. It is not surprising that he would disavow any communications with a 14 year old when asked by the police, especially if he were the perpetrator. This does not establish that the other resident was not the user of 1812 or the person with whom the officer had exchanged messages on these platforms.

[30] Officer Harloff suggested many practical reasons why she did not accept Chris’ repeated invitations for video chats: she did not want to set a precedent; she may be at home when they communicated; she may not have an appropriate background; she may say something to inadvertently reveal her cover; and she had been using someone else’s photograph for her likeness. She did not mention, but I imagine, that her voice would also have undermined her online persona. While these practical concerns were real, the lack of voice calls or video messaging substantially limits the probative value of the circumstantial evidence. These alternate sources of direct evidence were readily available to the police but for tactical or pragmatic reasons this evidence was never pursued.

The Defendant’s Likeness

[31] A good deal of emphasis was placed by the prosecutor on the use of the Defendant’s likeness in the videos and photographs sent by Chris. There were several selfie photographs of the Defendant, nine photographs of a penis and 18 videos of a male masturbating in the chat messages. The parties did not suggest that these explicit images depicted different males.

[32] On the basis of the evidence, the different backgrounds of the images, the clothing worn in the images, the Defendant’s likeness in the selfies found in the chats, and the Defendant’s appearance in court, I find that all of the explicit images depict the Defendant. All of the image evidence supports this finding.

[33] Superficially, the images are consistent with the Defendant’s appearance and inconsistent with the description given of the more diminutive, other resident. The Defendant is a white male of average build. The body depicted in the images at pages 248 and 375 appear to be a white male of average build.

[34] Also, the video at p. 269 of the chats, at the six second mark, shows a portion of the masturbating male’s face. Glasses are worn. The Defendant always wore eyeglasses in court and he was wearing glasses in the selfies found in the chats. The masturbating male, who’s face is only partially visible has hair that is similar in length, style, and colour to the images of the Defendant on pages 49-51. At the two second mark of the video from pages 273, 275, and 276, the masturbating male has a mole on his left cheek. It is remarkably similar to the mole I observed on the same area of the Defendant’s face. The backgrounds for the masturbation videos appear to be areas depicted in the search warrant photographs inside the Defendant’s residence and bathroom.

[35] Again, without metadata for the videos and photographs, it is impossible to know whether these images were created at some other point in time before the messages exchanged with Shy Guy. This is important because if these explicit images were created during the communications with the police, it would be powerful evidence linking the Defendant to the commission of these offences. If the images were created at some earlier time, the evidence is less probative of who was actually sending them to Shy Guy.

[36] The police seized the Defendant’s cell phone in an unlocked state, but they could not extract its contents. There is no way to know whether the GRINDR or SIGNAL Apps that appear on the Defendant’s phone were used to communicate with Officer Harloff. The fact that the Defendant’s phone showed two unread messages on his SIGNAL App without evidence from whom and when the messages were sent, was unhelpful. As already indicated, the police did not even look for GRINDR or SIGNAL on the other resident’s devices, despite his statement that he had used these Apps in the past.

[37] In the other resident’s statement he admitted that the Defendant had logged him onto the Defendant’s Lenovo laptop for “music.” It is unknown whether the GRINDR or SIGNAL Apps also appear on or could be accessed from the Lenovo laptop to which the other resident had occasional access.

[38] Also noteworthy, of all of the devices seized from the Defendant’s residence, there was no evidence respecting pornography, child pornography, or the presence or absence of the GRINDR or SIGNAL Apps on these devices.

[39] In the end, I have a reasonable doubt about the identity of the person known as Chris in the chats with Officer Harloff. The reasonable doubt that plagues me in this case resides in the following areas:

i. There is a lack of technical or metadata evidence to establish that the videos or photographs of the Defendant are unaltered;

ii. There is a lack of technical or metadata evidence to establish when the videos or photographs of the Defendant were created;

iii. There is a lack of technical or metadata evidence to establish which device was used to communicate with the undercover officer;

iv. There is a lack of contemporaneous evidence to establish that the Defendant is the only person who could have communicated with the undercover officer;

v. Both the Defendant and the other resident were living in the Defendant’s residence during most of the period when the communications with the undercover officer took place;

vi. There is an absence of evidence that the Defendant is the only person who possesses explicit images of himself;

vii. There is an absence of evidence that the Defendant has not shared his login credentials for GRINDR and SIGNAL with others;

viii. There is an absence of evidence that the Defendant’s cell phone has not been cloned or the 1812 phone number could only be used from the Defendant’s phone; and

ix. There is an absence of evidence that the Defendant and the other resident were the only persons present in the Defendant’s residence during the entire timeframe of the communications with the undercover officer.

[40] This was a cogent circumstantial case but not an overwhelming one. I am satisfied on a balance of probabilities that the Defendant began an online relationship with Shy Guy, who he believed was 14 years old, at which point the Defendant sent sexually explicit material and tried to lure Shy Guy to a meeting for a sexual encounter. Indeed, the Defendant’s live-in boyfriend, the other resident, was also a youthful, Asian male.

[41] However, there are too many gaps in the evidence to satisfy me beyond a reasonable doubt that the other resident, or someone else, did not disguise their identity, use the Defendant’s cell phone number and his login credentials to engage in this highly illegal and morally reprehensible behaviour to avoid criminal liability.

CONCLUSION

[42] This was not a close case on the issue of identity. There are too many unknowns to be satisfied to the requisite degree that the Defendant was the person who communicated in the chats with the undercover officer. Given the existence of at least one other resident living at the Defendant’s home, I have a reasonable doubt respecting the identity of Chris. It is not reasonable to conclude that the Defendant was the only person who could have committed these offences.

[43] The presumption of innocence prevails to exculpate this Defendant. The charges remain unproven.

[44] The Defendant, C.Y., is acquitted of all charges.

Released: 06 March 2022

Justice G. Paul Renwick

[^1]: R. v. Starr, 2000 SCC 40, [2000] S.C.J. No. 40 at para. 242.

[^2]: R. v. Villaroman, 2016 SCC 33, [2016] S.C.J. No. 33 at paras. 17, 18, 22, 26, 27, 29, 30, 31, 32, 34, 35, 36, 41, 42, 55, and 56.

[^3]: To avoid monotony, I may refer to Officer Harloff as “Shy Guy,” “the undercover officer,” or “the recipient” of the illicit communications.

[^4]: I have purposely left three digits blank in these reasons to protect the Defendant’s privacy.

[^5]: The chat messages became exhibit 1 on the trial.