ONTARIO COURT OF JUSTICE
DATE: 2025-01-08
COURT FILE No.: Peterborough 21-0254
BETWEEN:
HIS MAJESTY THE KING
— AND —
ALAN TODD
Before Justice S.W. Konyer
Heard on August 21, 28, and November 7, 19, 2024
Reasons for Judgment released on January 8, 2025
Kevin Doyle — counsel for the Crown
Terrance Luscombe — counsel for the accused Alan Todd
Reasons for Judgment
KONYER J.:
[1] Alan Todd was tried before me on charges that he communicated with an undercover officer and made an agreement to commit the offences of sexual assault and sexual interference with respect to a person he believed to be under the age of 16, contrary to s.172.2(1)(b) of the Criminal Code. This section makes it an offence for anyone to reach an agreement by way of telecommunication with another person to commit a designated secondary offence, including sexual touching and sexual assault, with respect to a person they believe to be under the age of 16 years. As the Ontario Court of Appeal noted in R. v. Stordy, 2024 O.J. No. 1740, this section “criminalizes defined conduct that does not involve direct contact with children; instead, it targets telecommunications between adults that result in agreements or arrangements to commit sexual offences against children”: para. 24. While the Crown does not have to prove that Mr. Todd intended to carry out either of the underlying offences, in order for him to be held liable it must prove that the agreement or arrangement was genuine.
[2] In this case there is no dispute that Mr. Todd engaged in telecommunication with an undercover officer posing as the mother of a 12-year-old female. There is no dispute that they discussed meeting for the purpose of Mr. Todd engaging in sexual acts with the fictitious child. There is no dispute that Mr. Todd provided the undercover officer with his home address and that he was present inside his apartment when police showed up for the meeting and arrested him. The only issue in dispute is whether the Crown has proven beyond reasonable doubt that the agreement between Mr. Todd and the undercover officer was genuine.
[3] These offences are alleged to have occurred between June 16 and 22, 2021. Mr. Todd made admissions at trial, including that he was the author of a series of electronic communications with the undercover officer. These were filed as exhibits. The undercover officer herself did not testify, but I did hear testimony from one of the police officers who arrested Mr. Todd inside his Toronto apartment on June 22, 2021. Mr. Todd testified in his own defence and said that he was engaged in fantasy role-playing throughout these conversations, and that he never believed the child actually existed.
[4] Mr. Todd is presumed innocent of these offences and can only be found guilty if the Crown proves beyond reasonable doubt that he entered into a genuine agreement with the undercover officer. Proof beyond reasonable doubt does not require proof to an absolute certainty, but it does require much more than proof of probable or likely guilt. On a spectrum, proof beyond reasonable doubt lies much closer to absolute certainty than probable guilt. At the end of the day, I must consider all the evidence and ask whether I am sure that Mr. Todd entered into a genuine agreement with the undercover officer to commit the underlying sexual offences. Unless I am sure that the agreement was genuine, he must be found not guilty.
[5] Mr. Todd testified that he was engaged in fantasy role-playing only, meaning that any agreement to sexually touch the undercover officer’s daughter was not genuine. Clearly, if I believe his testimony, I must find him not guilty. Even if I do not believe his testimony, if it leaves me with a reasonable doubt when considered in light of all of the evidence, I must find him not guilty. Further, even if Mr. Todd’s testimony does not leave me with a reasonable doubt, I must go on to consider whether the Crown has proven his guilt beyond reasonable doubt based on the evidence which I do accept. If I reach that stage, the evidence that the agreement was genuine is circumstantial and consists primarily of the messages themselves. I would then need to decide whether the only reasonable inference available from that evidence is that Mr. Todd genuinely intended to make an agreement with the undercover officer to commit sexual offences against her child. I will begin my analysis by summarizing the evidence.
Summary of the evidence
[6] The communication between Mr. Todd and D.C. Perks of the Peterborough Police Service acting in an undercover capacity began on June 16, 2021, on the website Chatiw. The only evidence I have about this site comes from Mr. Todd. He described Chatiw as a general interest adult chat site where users gather in online chatrooms and are able to communicate with other users about topics of mutual interest. He said that he had been using the site for several months prior to encountering the officer. He suffers from significant lifelong health issues including COPD and uses a ventilator to help him breathe. At the time, he had been locked down due to Covid-19 restrictions and was lonely. He had been completely isolated in his apartment for some time because he was at high risk from Covid, had not seen any of his friends in person in some time, and he spent much of his time online to alleviate his loneliness.
[7] Mr. Todd said he found the Chatiw site after typing in the phrase “adult chat rooms” on his computer’s search engine. To create a profile on the site, a person has to attest that they are 18 years of age or older. Profiles display a username chosen by the user, as well as the user’s stated gender, age, and location (city and province). This information is publicly displayed to other users. Mr. Todd said that he used the site intermittently, and that he changed his username frequently. As I understood his evidence, he selected persons that he wanted to chat with based on their usernames and clues that the names gave him about the subjects these persons were interested in. Before chatting with the undercover officer, he had communicated with other users whose names suggested an interest in sado-masochism and homosexuality because these were topics of interest to him. He denied that Chatiw was used primarily for sexual topics, though he did not provide examples of any other subjects that he discussed with other users.
[8] On June 16, 2021, his profile on Chatiw had the username “wantfungirls”. The written communications between Mr. Todd and D.C. Perks on this site were filed as Exhibit 1 at trial.
[9] Mr. Todd was contacted first by D.C. Perks, who sent a message “Hey”. I do not know her username. He replied and they exchanged locations – his being Toronto, hers being Peterborough. This prompted him to reply, “dam and I do not have a car” to which she replied, “oh I do”. He responded “nice” at which point the officer asked, “what r u into”? He replied, “want to come to Toronto for a while” and “I am very open what are you into”? The officer replied, “can I bring my 12 yo daughter”? Mr. Todd responded “sure if you want to” and then said, “she can sleep on the couch”. The officer then said, “I’m looking for someone for us both” to which he replied, “I like the sound of that” and “I have never been with that young sounds like fun”. The officer responded, “ok you sure because she’s ready to learn”? Mr. Todd then said, “sounds like fun” and they went on to discuss when they could meet. He said that he lived alone, was retired, and asked, “how long would you like to stay maby a couple of weeks”?
[10] The officer asked, “what would we do for 2 weeks”? and he replied, “learn a lot”, “enjoy each other” and “go for walks”. The officer responded, “yes u could teach my daughter a lot” to which he replied, “yes and you can watch”. The officer told him that this is what she wanted, as long as Mr. Todd did not hurt her daughter to which he replied “of course I am gentle”, “it will hurt a bit first time”, “I take my time never rush”, “maybe a couple of days”, “I want her to enjoy it and want more do not want to scare her off from it” and “also I never use condoms as well”.
[11] As the discussion progressed, Mr. Todd said that he was ultimately “looking for a family” and that “sex is not the most important thing”. He urged the officer to make arrangements to visit and provided the address of his apartment building. He agreed that he gave the officer truthful information about his employment status (that he was retired), living arrangements (that he lived alone) and that he provided his actual address. He also asked for the daughter’s name and was told it was “Payton”. The officer then asked explicitly “okay can we agree that you will teach Payton about sex”? to which he replied “yes we can”, “I have never been with a younger girl but I am willing to and sounds like a lot of fun” and “so will be a first time for her as well as me”. He inquired whether the officer had talked to “Payton” about this proposal and on receiving a positive response he wrote “good”, “and I will make sure she will enjoy it a lot”. The officer asked how he would do so without hurting her and he replied “I will be gentle may take a few days for me to open her” which he would do using his fingers and tongue. He said that he wanted “Payton” to enjoy the experience “with lots of orgasms” and for her to “learn how to give oral as well”. He explained “that is why I suggested a couple of weeks”. He asked the officer if “Payton” was with her during the conversation and if the officer was telling “Payton” about him. The officer replied in the affirmative, said that “Payton” was excited about the proposition and asked Mr. Todd for a photo. He declined, saying “she will see me when you arrive” but provided a truthful age of 65 and provided his height and weight, stating that he was “nothing special” and “just a normal person”. He did not ask the officer for any photos of either herself or “Payton”.
[12] When the officer asked for directions to his address and if there was a unit number, he provided directions and said that he would come down to meet them in the lobby when they arrived. The officer then asked, “how can we keep in contact to let you know we are coming” and asked him if he was on the site regularly to which he replied “no”. She then asked him for an email address, and he replied by asking “why did you pick me for this”? She said that she had also chatted to other users and had “one other guy that wants to teach her too”. He replied, “I like it though totally unexpected and a nice surprise”.
[13] At this point the officer asked him again “are you sure you’re okay with teaching a 12 yo about sex I don’t want trouble at all”. Mr. Todd responded “yes I am” but then wrote “I need to ask you if you are affiliated with any law enforcement at all”? After she assured him that she was not he provided his email address. The Chatiw conversation ended shortly after this, but not before Mr. Todd made further inquiries about when they could come and visit him.
[14] The conversation continued next on email. The email communications were filed as Exhibit 2 at trial.
[15] Mr. Todd continued to press the officer to bring “Payton” for a visit, suggesting that it would be ideal if they could stay over for several days. In response to a query from the officer about how he would start and if she could watch, he wrote “would start by kissing her and go from there and of course I would want you to watch, and I really want her to enjoy it so she will want to come back for more”. When asked by the officer what they should bring for the visit he replied, “bring what you think you will need for a couple of days maybe you and payton can both bring a very sexy outfit if you have”. He also expressed an interest in having a family, making the arrangement permanent and wrote “I would love to have you both as wives in a polyamourous relationship”. When asked for assurances from the officer that he would not hurt “Payton” he wrote “I do not believe in hurting people so rest assured that I will not hurt her and yes she will be my girlfriend and become great in sex and she will only want me to have sex with her”.
[16] When asked if he could drive to Peterborough to visit them instead, Mr. Todd replied “I do not have a driver’s licence as I did not think I would be able to afford a car, so I let it lapse”. When asked about getting a ride from a friend he replied, “do not want any of them to know” and mentioned two friends – one who lived in Niagara and another who just had a baby. In his testimony, Mr. Todd agreed that these details about his licence and his friends were all truthful. When the officer asked him for a phone number, he replied “just send me a message on here” but later relented and provided his phone number when the officer told him that it was easier for her to text when driving.
[17] The conversations between Mr. Todd and the undercover officer then moved to text messages between their phones and continued from June 17 to 22, 2021 when he was arrested. These communications were filed as Exhibit 3 at trial.
[18] One of the first things the officer told him via text is how excited “Payton” was to meet him, and she asked Mr. Todd if he was also excited. He replied in the affirmative and wrote “I never expected you to offer me your daughter. Totally unexpected but a very nice surprise.” When told by the undercover officer that she had learned about sex through being molested by her own father, Mr. Todd replied that it “will be my honour” to do the same for “Payton”.
[19] At the officer’s request, Mr. Todd provided her with his apartment number, another detail which he agreed was truthful. He told her that he would leave the apartment door unlocked and that she should send “Payton” in alone when they arrive. He repeated his desire to marry “Payton” and to have a family, at one point writing “sex is secondary but payton wants to learn and it will be my position to teach her". When asked “have you ever wanted to before” he responded, “never thought about it but when you asked me I just said yes without thinking about it” and “now I am very happy you asked”. When told “well you can say no you know” he responded “I do think about Payton and do not want to say no. I want this to be real.” Throughout the texts he repeated his desire to have a family, at one point writing “I think that is why I said yes to your offer so fast”.
[20] Later in the messages he told the officer about an experience he had the day before with a sudden nosebleed that required him to go to the hospital to have a balloon inserted inside his nose to stop the bleeding. He said this happened due to blood thinners that he was taking. He explained that he was in the process of cleaning up the blood in his apartment. He agreed in his testimony that the nosebleed did happen at the time, and that these were all truthful details. He also told the officer that he had suffered from COPD since the age of 8 or 9, and that he’d had a heart attack two years ago, further details that he confirmed in his testimony were truthful.
[21] The officer returned to the topic of sex with “Payton” asking him what he will teach her first, to which Mr. Todd replied, “just go with the flow, cuddles and chat”, “cuddles, kisses to start first night and maybe more” and “never rush it”. He assured the officer that she can be present but was told that “Payton” may not want this. He replied, “that will be up to her” and “she is old enough to make those decisions”.
[22] Later he mentioned that he was eating food given to him by a neighbour that were leftovers from a work picnic. He also said that he sometimes cooks extra food and gives it to this neighbour. Again, he confirmed that these were truthful details. When the officer expressed a concern that the neighbour might see them, he reassured her that he had a ready explanation: “you are an old friend that I have not seen, and you came to visit and brought your daughter”. He also told the officer that “she stays to herself most time”.
[23] Near the end of the text conversation as they were in the process of finalizing a plan to meet, the officer expressed that she and “Payton” were nervous and asked, “you sure you want to do this?” He replied, “yes I am sure”, “this is all new to me” and “yes I am very good with it”. He again returned to the topic of family and wrote “we will be a family” and “a different family but no one will know that”. They then finalized plans for the officer and “Payton” to come to his apartment the following morning. In the morning, he texted “good morning my door is unlocked”.
[24] The only police witness I heard from at trial was D.C. Eastwood, who was a member of a team that attended Mr. Todd’s apartment shortly before 7:00 a.m. on June 22. He said that D.C. Perks, the undercover officer who had been posing as “Payton’s” mother, had obtained a search warrant for the apartment. She was present and texted Mr. Todd that she was at his apartment door. On receiving confirmation by text from Mr. Todd that he was home, the officers then announced their presence and entered the apartment. The door was unlocked. Mr. Todd was seen standing in his underwear in the living room area. D.C. Eastwood said that he initially appeared to be excited from the look on his face, but that this quickly turned to a look of shock as police entered. He was arrested without incident.
[25] In his testimony, Mr. Todd insisted that he was at all times engaged in role-playing with D.C. Perks. He never truly believed that she was who she said she was, or that she had a 12-year-old daughter who was interested in having sex with him. He only ever wanted to chat but thought that if he said so it would ruin the fantasy and put an end to the conversation. He was engaged in role-playing throughout and simply provided answers that he believed the other party wanted to hear. This is why he answered “I am very open” when the officer asked him at the very start of their conversation what he was into. He thought that if he answered truthfully – that he was only looking for someone to chat with – the conversation would end. He was never actually interested in having sex with a 12-year-old child, and in fact as the conversation continued, he began to become uncomfortable and looked for ways to end the conversation himself.
[26] Even though he continued the conversation solely as a fantasy exercise in role-playing, he provided many accurate details about himself including his name, age, building address and apartment number, email address and phone number. He shared truthful details about his health issues, the status of his driver’s licence, his friends, and his relationship with a neighbour. He agreed that providing these details was unnecessary for the fantasy role-playing exercise he was engaged in but explained that it was easier and more realistic to mix in some truthful details along with the fantasy.
[27] He let the officer take the lead in the conversation, and simply he provided her with answers that he thought she wanted to hear. It was the officer who first disclosed that she had a daughter, and that she was interested in finding a man to teach her daughter about sex. He responded in the affirmative not because he truly was interested, but because he wanted to keep the conversation going.
[28] At the same time he said that he did not believe the other party had a 12-year-old daughter. Thus the conversation was simply harmless fantasy. He agreed that on a literal read of the conversations on Chatiw, email and text message he repeatedly expressed an interest in engaging in sexual activity with the other party’s 12-year-old daughter. He explained that he did so to keep the conversation going in order to stave off loneliness. He appreciated that there was a risk that the child actually did exist. He explained that in the unlikely event the other party was serious and did show up at his apartment with a 12-year-old child he would have been unable to follow through with his stated intentions because he suffered from erectile dysfunction. He explained that his inability to “teach” the child about sex would have been readily apparent, and that the mother and child would have promptly left. He agreed that he could have avoided any risk of this happening by simply providing a fictitious address.
[29] He said that when he asked the officer if she had any law enforcement affiliation, he did so out of a concern over the direction the conversation had taken. If she had responded affirmatively, he would have told her that he was simply role-playing and ended the chat. As far as he was concerned, this was all fantasy. It was not realistic for him to be able to host a mother and daughter in his apartment for days and weeks at a time as discussed in the chats, nor was he seriously interested in making a family with them or moving into their home in Peterborough. He did not leave his apartment door unlocked specifically for them in the event they showed up – he explained that he typically left his door unlocked due to his medical conditions and a concern that paramedics might need to reach him if he suffered a breathing episode that prevented him from answering the door. He was genuinely shocked when police arrived at his apartment.
[30] In cross-examination, Mr. Todd agreed that he appreciated there was a risk that “Payton” was real. He also agreed that the numerous truthful details he provided did nothing to advance the fantasy, that fictitious details would have served the same purpose, and that by supplying his true location he did make it possible for the person he had been chatting with to would show up at his apartment with a child. Mr. Todd said that the idea of having sex with a child was reprehensible to him, but he never did or said anything to convey his true feelings on the subject to the other party. Again, this is because he feared that doing so would ruin the fantasy and thus bring the chat to an end.
[31] He also said that as the conversation continued he became uncomfortable and looked for ways to extricate himself from it. This is why, for example, he did not take a bus to Peterborough to meet with “Payton” and her mother. He said that by this point in the conversation he was being “passive aggressive” with the other party in an effort to deter them. For example he disclosed the nosebleed incident in the hopes that the other party would be deterred from coming to an apartment where he had “bled all over”. This, of course, again in the unlikely event that the child actually existed and the conversation was not simply fantasy on the part of the other party. He denied that he reassured them that his neighbour kept to herself in an effort to entice them to come to his apartment. He also agreed that he provided the other party with his actual phone number and apartment number despite being “uncomfortable” with the direction of the conversation by that time.
[32] Finally, he agreed that he had been provided with many opportunities to simply end the conversation. The officer repeatedly asked him if he was serious about having sex with her daughter, and at one point told him that he could say no. He also could have declined to provide his email or phone number. His assertion that he continued this particular conversation due to loneliness was also challenged, for he agreed that Chatiw was not exclusively a site used for sex. He had other interests and could have sought out someone else on Chatiw or elsewhere online. He agreed that continuing this particular conversation was not the only option available to him to combat loneliness. This completes my review of the evidence and I now turn to a review of the applicable law.
The applicable law
[33] The Crown does not have to prove that Mr. Todd intended to commit the offence of sexual assault or sexual interference, nor does the Crown need to prove that he intended to follow through with any agreement once reached. “Under s.172.2, non-criminal talk on the Internet about sex with a child becomes an offence when an agreement to do it is made”: R. v. Wheeler, 2022 ONCA 824, at para. 81. What the Crown must prove is an intent to agree. Further, “because the mens rea for the agreement is an intent to agree, a trier of fact may find it useful to ask whether the evidence demonstrates that the accused intended the other party to take him seriously. That could assist the court in assessing the accused’s intention to make an agreement”: Wheeler, at para. 82.
[34] It is not enough for the Crown to simply prove that Mr. Todd intentionally uttered words of agreement. “An interpretation of s. 172.2 that merely requires proof that the accused person intentionally (i.e., meant to) uttered the words of an "agreement", irrespective of their sincerity, pegs the fault requirement well short of what is typically required for criminal liability in Canadian criminal law. It risks unfair and undesirable outcomes. With the simple utterance of a word or phrase (i.e., "yes", "okay", "I agree", "sounds great"), individuals may be caught under s. 172.2 of the Criminal Code and face serious criminal sanctions:” Stordy, para. 46. What is required is proof of a genuine intention to agree.
[35] The act of agreeing is itself a mental process, the coming together of two minds. “If a meeting of the minds is required, then the accused must be genuine in making the agreement; without it, there can be no agreement, merely words”: Stordy, at para. 53. Since in this case the other party to the alleged agreement is a police officer, what needs to be considered is “whether there was a feigned expression of genuine intention on the part of the police officer, beyond negotiation or mere discussion – one that the accused person genuinely agreed with”: Stordy, at para. 59. “When the accused is communicating with a police officer (or someone acting under the direction of a police officer), it must still be proved that the accused was genuine in purporting to agree with that person”: Stordy, at para. 60.
[36] Further, “[r]ole-playing is not necessarily inconsistent with the existence of an agreement. Some role-players will never go beyond discussion or negotiation. For these role-players, ongoing discussions are the end goal. Other role-players may arrive at the required consensus as part of their role-playing. Those role-players have entered into an agreement”: Stordy, at para. 56.
[37] Finally, “while evidence of an actual intention to carry out the agreement and commit the offences is not necessary to prove the agreement, evidence of that state of mind would certainly have probative value on the existence of the required consensus necessary to establish the agreement”: Stordy, at para. 57. I now turn to an application of the law to the facts of this case.
Application of the law to the facts
[38] The question I need to consider is whether the Crown has proven, beyond reasonable doubt, that Mr. Todd reached a genuine agreement with D.C. Perks to engage in sexual acts with a child. Mr. Todd is under no obligation to prove that he was merely engaged in role-playing. The onus remains firmly on the Crown to prove that the agreement with the undercover officer was genuine.
[39] In my view it would be dangerous to draw any inference from D.C. Eastwood’s description of Mr. Todd’s demeanour when police entered his apartment on June 22, and I decline to do so. I also bear in mind that it was D.C. Perks who first approached Mr. Todd online, and it was the officer who first raised the subject of sexual acts involving a child. It was the officer who repeatedly raised the subject with Mr. Todd and pressed him for details on how he would “teach” the fictitious child. I agree with the defence that much of the conversation involved Mr. Todd following the officer’s lead.
[40] I also agree with the defence that much of the conversation between Mr. Todd and D.C. Perks has an unrealistic quality. Almost immediately upon meeting a stranger on the internet, he invites them to stay at his apartment for an extended period. Within days of meeting online and without even having seen a photograph, he proposes marriage, entering into a polyamorous relationship, having children with the officer, becoming a family with them both, and moving to Peterborough to live with them on a permanent basis. Especially given the severe limitations imposed on Mr. Todd due to his chronic health issues, all of this is completely unrealistic and is consistent with role-playing.
[41] Role-playing, however, is not necessarily inconsistent with reaching a genuine agreement. One can do both. It is noteworthy, in my view, that Mr. Todd disclosed so many factual details about himself, particularly his address. While he may not have been online looking to find a child for sexual purposes, the evidence in my view clearly establishes that when he was given this opportunity, he took it. There are telling exchanges that occurred during the course of the text messages, captured in Exhibit 3, messages 575 to 553:
AT: I was really hoping for tonight
UC: But this happened quickly didn’t expect it so fast but we will come I promise you unless you change your mind
AT: Ok sweet dreams
AT: Yes it was quick and very unexpected
UC: Are you happy and okay with it all
AT: And I was very surprised when you asked me to teach Payton was not expecting that at all
AT: I will be happy when Payton is sitting on my lap and cuddle with me
UC: Me too is that how you want to start
UC: Are you happy I asked you to teach her
AT: Yes I am very happy
UC: Have you wanted to ever before
UC: OK gd night Al payton says nt nt
AT: Never thought about it but when you asked me I just said yes without thinking about it
AT: Good night Payton
UC: Have you thought about it now?
AT: If I took the time to think I would have maybe said no
AT: But now I am very happy you asked
UC: Well you can say no you know
AT: I do think about Payton and do not want to say no
AT: I want this to be real
[42] Earlier in the text chain he wrote “I never expected you to offer me your daughter. Totally unexpected but a very nice surprise”. When the officer told him that she had learned about sex from her stepfather, Mr. Todd responded “it will be my honour to teach her” [Ex. 3, messages 750-746]. At another point when discussing his desire to marry them both the officer asked “aw what about sex?” to which he replied “Sex is secondary but Payton wants to learn and it will be my position to teach her” [Ex. 3, message 605].
[43] I do believe some of Mr. Todd’s testimony. I believe him that he thought it was unlikely that the person he was communicating with actually had a child that she was offering for sexual arrangements. He probably did feel that he was being put on. But I do not believe him that the entire conversation was fantasy role-playing on his part. His testimony on this point was internally inconsistent and illogical in important ways. For example, he claimed that he became uncomfortable and wanted to end the conversation, agreed that he was given many opportunities to do so, but continued the conversation out of loneliness. Yet he could have sought out conversation with anyone else on the Chatiw site rather than continue a conversation which he claimed repulsed him. In a similar vein, his explanation for providing truthful details about his identity and location makes no sense if he was repulsed by the prospect of sex with a child and appreciated that there was a risk the other party to the conversation was genuine. It was readily apparent to me that Mr. Todd was grasping at straws in a futile effort to explain away his own damning words. His explanations were patently ridiculous, and I disbelieve his testimony that he was engaged in nothing more than fantasy role-playing.
[44] His own words undermine this claim. He was repeatedly asked if he was serious about his stated desire to teach “Payton” about sex, and he repeatedly affirmed that he was serious. He backed this up by providing truthful details about his name, address, email, phone number and personal circumstances. He arranged a meeting and confirmed with the recipient that his apartment door was unlocked when told they had arrived. On the whole of the evidence, it is an irresistible inference that Mr. Todd was genuine in his offer to teach “Payton” about sex. He may have had some doubts that the other party was serious, and he may have had some doubts that the child in question actually existed, but it is readily apparent that he was genuine in his stated intention should the other party have followed through.
[45] Upon being extended an invitation by the undercover officer to engage in a sexual relationship with a child, Mr. Todd agreed. He did so despite his surprise at being extended the offer. He did so despite harbouring some doubt in his mind that the offer was genuine. He hedged his bets, however, by taking concrete steps to allow the arrangement to come to fruition. He provided his address and was at home with the door unlocked at the agreed upon meeting time. Nothing in any of the conversations suggests that he was anything other than serious about following through with “Payton” and her mother had they actually shown up. In my view he clearly intended the recipient of his messages to take him seriously when they made an agreement for him to engage in sexual acts with “Payton”. While engaging in sexual acts with a child may not have been his idea to begin with, I am satisfied beyond reasonable doubt that when offered this opportunity, Mr. Todd genuinely agreed. He intended the recipient of his communications to take his words seriously. I am satisfied, based on Mr. Todd’s own words, that he intended to enter into a genuine agreement with the officer to commit the designated offences of sexual touching and sexual assault.
[46] He is therefore found guilty on both counts, subject to the rule precluding multiple convictions for the same delict.
Released: January 8, 2025
Signed: Justice S.W. Konyer