R. v. Froese, 2015 ONSC 1075
COURT FILE NO.: CR-13-3001
DELIVERED ORALLY: Thursday, February 19, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Frank Froese
Accused
Shelley McGuire, for the Crown
Andrew J. Bradie, for the Accused
HEARD: October 27, 28, 29, 30, 31, and December 15, 2014
pomerance J.:
[1] Frank Froese is charged with luring a child, contrary to s.171.2(2) of the Criminal Code[1]. In September, 2012, he posted an ad on Craigslist that read: “married man - craving hard boy cock”. The accused said that he was looking for a “young boy – the younger the better”. An undercover officer responded to the ad, posing as a fictitious 15 year old boy named Alex Delong. There followed a number of communications between the accused and the undercover officer, many of which were sexually explicit. There were discussions about “hooking up”, though no meeting ever occurred.
[2] The Crown argues that the offence is proved by the communications. They establish that the accused sent sexually explicit messages, over the computer, to a person presenting as a 15 year old boy. The communications support the inference that the accused’s purpose was to facilitate the commission of a sexual assault on a young person.
[3] The accused denies the commission of the offence. He testified at trial and offered an exculpatory account. He claimed that he never believed Alex Delong to be 15 years of age, but rather believed him to be an adult posing as a teenager. The accused further testified that he never intended to meet Alex in person and, therefore, did not intend to facilitate a sexual offence.
[4] I have carefully considered the accused’s testimony, and have applied the well-known paradigm from R. v. W.(D.)[2]. I have considered whether the accused’s testimony should be accepted, or alternatively, whether it raises a reasonable doubt. I have considered whether, even if the accused has not raised a reasonable doubt, the crown has discharged its onus to prove the essential elements of the crime beyond a reasonable doubt.
[5] I find that the accused’s testimony is neither worthy of belief, nor capable of raising a reasonable doubt. The accused reconstructed history in his evidence in order to escape criminal liability. His account was contrived and implausible. It cannot be reconciled with what he did and said at the time of the offence.
[6] I find that the evidence led by the Crown proves the essential elements of luring beyond a reasonable doubt.
[7] I will explain these conclusions in the reasons that follow.
EVIDENCE
The Initial Posting
[8] On September 12, 2012, at 7:47 a.m., the accused posted the following advertisement on Craigslist:
married man – craving hard boy cock – m4m – 34 (Leamington)
34, married man for young boy – younger the better ;)
6’ tall, slim, hairy body, 7.5’uncut cock – EXTREMELY discreet
If you’re young and horny and want to blow your load in my mouth, send me a message – include a pic of your face please and I’ll send you one of mine.
[9] The ad was posted in the Classifieds section, under the heading “Casual Encounters”. Attached to the ad was a photograph of the accused with his lower abdominal area exposed and his underwear partially pulled down. His face was not shown. The accused used a false name – Liam Carter – in his e-mail address which was “boylover15@live.ca”. A concerned citizen saw the posting and called the police.
The First Response by the Undercover Officer
[10] Constable Shawn Diotte, an officer with the Internet Child Exploitation Unit, responded to the post on September 14, 2012, posing as a 15 year old male named Alex Delong. As part of his cover, the officer created a fictitious gmail account, Facebook account, and Skype account, all in the name of Alex Delong, and all of which stated Alex to be 15 years of age.
[11] The officer’s first message read as follows:
Hey.
15 yr., 6ft. 175 lbs, 6”cut.
Let me know.
[12] The officer attached a photograph of himself, taken when he was either 15 or 16 years of age.
Email Communications on September 14, 2012
[13] Shortly after receiving the first message from the officer, the accused responded:
Wow, 15, eh? Definitely younger than I expected to hear from…
Are you in Leamington? My pic is attached, and what are you looking to get into?
[14] The accused attached a photograph of his face to this message.
[15] The following exchange ensued:
Alex: Ya 15., is that OK??? Nice pic. No I live in Windsor. Not completely sure. Only had couple experiences with a friend around my own age. Shit got weird and he don’t talk to me anymore. What u into?
Accused: I love giving head ;)
Not really into fucking with guys though. Mainly just handjob or blowjob kinda stuff. But sometimes it can be fun to make out. I don’t know…Really depends on the guy I’m with. But I’ve never down (sic) anything with anyone so young. Open minded though, you’re VERY cute!
[16] The accused and Alex spoke about “hanging out”. The accused said that he would not be available until Monday of the following week, because he was organizing a music festival. The accused asked Alex for his Skype name, and before signing off, asked Alex about his sexual preference:
Accused: I’m wondering…Are you gay? Or bi? Or straight and curious?
Alex: I don’t know…I have dated gurlz but…I don’t know… I kinda liked my past experiences with my friend. Still really figuring things out.
How bout you?
What you up to this weekend? I’m just hanging out at home.
Accused: I’m pretty busy this weekend…Managing a music festival.
As for me…I’m “straight” lol, but enjoy a few things with guys. If that makes sense lol.
[17] The last message on Friday Sept. 14, 2012 was exchanged at 3:33 p.m. There were no messages over the weekend.
Re-initiation of Contact by the Accused
[18] On Monday, September 17, 2012, at 1:01 p.m., the accused re-initiated contact, sending a message to Alex Delong saying “What’s up Alex?”. He received no response, as Constable Diotte was not available.
[19] The next day, on Tuesday, September 18, 2012, the accused once again contacted Alex, sending a message at 8:48 a.m. that said: “guess you’re not interested anymore”.
[20] Constable Diotte did respond to this message. Posing as Alex, he apologized for being out of touch, explaining that he couldn’t get “on line” on Monday because “my mom was home sick”. The accused invited Alex to skype that afternoon.
The Skype Call
[21] For purposes of the Skype call, Constable Diotte used the fictitious account that he had already set up in the name of Alex Delong. He recruited a fellow officer with a very young sounding voice to speak during the call. The audio skype communications were played at trial.
[22] The officer posing as Alex pretended that the camera on his computer was broken and that he could not appear on video. The accused wanted to see Alex, but the officer persisted in his claim that he could not get the camera working. The two communicated orally, and by typing text messages.
[23] The accused asked Alex if he had a Facebook account. He was directed to Alex’s fictitious Facebook page. The page depicted a profile photograph taken of Constable Diotte when he was 12 years of age and listed the date of birth for a 15 year old. The page contained some postings and photographs of persons who were Facebook “friends”.
[24] Among the messages exchanged by the accused and Alex during the Skype call were the following:
Accused: So when’s your birthday
Alex: my birthday is July 25, 1997.
Accused: wow so you’re just barely 15.
Accused: keep trying to get your cam working though…because you’re so young and I’m so much older, I wanna see you on cam before we meet.
Alex: I will try…
I know the age is a problem with you…and that’s why u wanna see me…it’s cool.
At least u heard me
Accused: I’ve just never done anything with anyone so young…so, yea.
Accused: so are you into older guys?
Alex: I think so…nvr been with one?? But I’m curious
Accused: I think most older guys probably fantasize about being with someone really young at some point.
Accused: lol so you said you’ve dated girls…done any stuff with them?
Alex: lol…ya dated a girl…
Did some normal stuff like kissin and makin out…no sex!
Accused: and what did you do with your friend then? The guy that you mentioned?
Alex: oh that one…we did some kissin and makin out…we did the bj thing once… that’s when it got wired
U been with a guy b4?
Accused: yea a few times
Alex: cool
Accused: did you blow him? Or did he blow you? Or both
Alex: well…it was both
Accused: cool.
Did you make each other cum?
Alex: ya and ya
Accused: did you taste his cum?
Alex: not really.
Accused: so tell me what you’re hoping will happen with us.
Alex: idk…I liked ur postin so I replied
How bout u??
Accused: well. What I’ve been looking for is a boy who wants to sit back and have his cock worked until he cums…no strings attached ;)
Alex: really???
Accused: is that bad?
Alex: no
Accused: to be honest…I don’t even expect anything in return.
Accused: my only issue right now is that I don’t really know if you’re real…and the young age makes me nerous, so I need proof that you’re real and not some older guy, or whatever
Alex: well I dnt know what do to prove…I mean u hurd me.
Right???
Accused: yea, I heard you…but that doesn’t really prove much. Many guys sound young.
Alex: watevs!!! They do no not
Accused: lol bottome line is…I actually really like you!
You seem like a cool guy
And I want you to be the boy I’m looking for
Alex: ok
Accused: but I hope you understand the issue I have with age and all…it is very illegal, lol, and I have no proof that you’re not a cop or something
Alex: really??? U think I’m a cop??? Common!!!
Accused: one cannot be too careful about this! Lol
Alex: lol
Accused: but like I said…I like you ☺
Alex: I like you too…
Accused: so for now…since I can’t see you yet…I want to get to know you☺
Accused: so if we were to hook up…do you know of a place we could go?
Alex: if we did…ummmm……
Wat kinda place u takin about …???
Accused: I’ve always had a fantasy of going to a boy’s house and giving him a bj after school, in his room, before his parents get home ;)
But that’s RISKY! Lol
Alex: lol ur not kiddin
Accused: I was thinking about a parking lot or a park or something private somewhere?
Cause we can always do it in my car, lol
Alex: true!
Well…just thinkin… well there is that place I did it with my friend b4
Its real quiet there
Accused: where is it?
Alex: not to far from the mall…it’s a forest thing
Accused: oh cool
That could be hot ;)
Alex ;)
Accused: me on my knees…you pumping your hard young cock in and out of my mouth…
[25] The accused and Alex then discussed whether they might meet at the mall on Wednesday. The accused said “I’ll let you know for sure tomorrow by noon”. The accused said: “it’s just maybe at this point”,. He said that he was not promising, that it would depend on what happened with work the next day.
The Day of the Arrest
[26] The following day, September 19, 2012, Alex initiated contact with the accused with an email sent at 11:07 a.m. The accused told Alex that it was not looking good for a meeting; that he would not be able to make it to Windsor. Alex responded by saying: “ok…I understand…maybe another day”, to which the accused responded: “Definitely. Maybe one day after school or something?”
[27] It was on that same day that officers attended at the accused’s house where they arrested him and executed a search warrant, seizing the accused’s computer and IPhone.
The other Craigslist Postings
[28] It was later discovered by police that, while the accused was communicating with Alex, he posted two additional ads on Craigslist. The first, posted on September 17, 2012, at 5:29 p.m., read as follows:
I need a boy – m4m – 34 (Leamington)
Horny as hell…Need a boy who wants to be drained. Nothing expected in return. Just be hard and ready to blow your load in my mouth. Send a face pic. I’ll reply with mine.
[29] The second post, which was placed on Craigslist on September 18, 2012 at 2:54 p.m., read as follows:
After school bj – m4m – 34 (mobile)
34, married, DISCREET- discreet looking for a boy who wants a bj after school
Send a face pic with your reply or you’ll most likely be ignored.
The Evidence of the Accused
[30] At trial, the accused admitted that he posted the ads on Craigslist, and that he communicated with Alex Delong via telecommunication devices. However he denied believing that Delong was under 16, and further, denied that he was communicating for the purpose of facilitating a sexual assault.
[31] The accused testified that, when he was young, he was sexually abused by his older brother, who was subsequently killed in a car accident. The accused testified that, for some years after high school, he repressed the memories of abuse, and that they only came to light around the time that he was charged with luring. He testified that around three months before his arrest, the memories started surfacing again. After his arrest, he spoke with a chaplain at the jail, who helped him to understand that he had been sexually abused.
[32] The accused testified that, shortly after high school, he developed a strong addiction to pornography, during which time he viewed it up to one or two hours a day. He viewed explicit homosexual and heterosexual pornography, but testified that he never viewed child pornography. He was able to stop viewing it from time to time, only to have the addiction resurface. When he was 30 years of age, he was watching “an extreme account of pornography, at times three or four hours a day”. He insisted that he never looked at pornography involving children.
[33] The accused testified that, over time, he developed a desire to chat with other people. He began responding to posts on Craigslist in which people were looking for sex, and eventually started posting his own ads. When asked about the ad that began his communications with Alex, the accused said that he “was looking for an outlet to be able to express some of what was going on I think in my own mind”.
[34] The accused testified that, from the outset of the communications with Alex, he believed that Alex was an adult male, over the age of 18 years, who was posing as a teenager. The accused cited various reasons for his belief, including the following:
a) The person depicted in the initial photograph sent by Alex did not look like a 15 year old;
b) The communications did not contain language that you would expect from a young person. The use of multiple exclamation/question marks; misspelled words, and other short forms did not ring true;
c) Alex told him that he had been kicked out of school for texting in class and that it was stupid of him to do so. The accused testified that a) a real teenager would know better than to text in class; and b) a real teenager would not say it was stupid of him to get kicked out of class;
d) The accused testified that the Facebook page was not that of a typical teenager. Among other things, the person in the profile photograph looked younger than 15, and a real teenager would not post an out of date photo. In addition, Alex only had seven Facebook friends;
e) The accused testified that, if Alex really was 15, he would have been able to get the webcam on his computer working during the Skype call;
f) The accused testified that the voice heard over the Skype call sounded like an adult who was trying to sound young.
[35] The accused testified that he often communicated with young people in his church youth group and that he therefore knew how teenagers typically communicated. He testified that the communications from Alex did not appear to be from a 15 year old boy.
ANALYSIS
The Offence
[36] Luring is defined in s.172.1 of the Code as follows:
172.1 (1) Every person commits an offence who, by a means of telecommunication, communicates with
(a) a person who is, or who the accused believes is, under the age of 18 years, for the purpose of facilitating the commission of an offence with respect to that person under subsection 153(1), section 155, 163.1, 170, 171 or 279.011 or subsection 279.02(2), 279.03(2), 286.1(2), 286.2(2) or 286.3(2);
(b) a person who is, or who the accused believes is, under the age of 16 years, for the purpose of facilitating the commission of an offence under section 151 or 152, subsection 160(3) or 173(2) or section 271, 272, 273 or 280 with respect to that person; or
(c) a person who is, or who the accused believes is, under the age of 14 years, for the purpose of facilitating the commission of an offence under section 281 with respect to that person.
(2) Every person who commits an offence under subsection (1)
(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or
(b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months and to a minimum punishment of imprisonment for a term of 90 days.
(3) Evidence that the person referred to in paragraph (1)(a), (b) or (c) was represented to the accused as being under the age of eighteen years, sixteen years or fourteen years, as the case may be, is, in the absence of evidence to the contrary, proof that the accused believed that the person was under that age.
(4) It is not a defence to a charge under paragraph (1)(a), (b) or (c) that the accused believed that the person referred to in that paragraph was at least eighteen years of age, sixteen years or fourteen years of age, as the case may be, unless the accused took reasonable steps to ascertain the age of the person.
[37] The offence is comprised of three elements: 1) an intentional communication by computer; (2) with a person whom the accused knows or believes to be under 16 years of age; (3) for the specific purpose of facilitating the commission of a specified secondary offence, including sexual assault of a young person.
[38] In this case, the accused admits to intentional communications by computer with Alex Delong. The questions to be determined are:
a) Did the accused believe that he was communicating with a person under the age of 16 years?; and
b) Did the accused intend to facilitate the commission of a sexual assault with a young person?
[39] The evidence offered by the accused on these issues is exculpatory. If I believe the accused, I must acquit. Even if I do not believe the accused, if his evidence raises a reasonable doubt about an essential element of the offence, I must acquit. Even if the accused does not raise a reasonable doubt, I can only convict if I am satisfied of his guilt beyond a reasonable doubt.
Did the accused believe that he was communicating with a person under the age of 16 years?
[40] I find that, despite the accused’s testimony to the contrary, he believed Alex to be under the age of 16 years. I rely on the following factors:
i) The accused was expressly looking for a “boy”;
ii) The accused’s claim that he believed Alex to be an adult is not credible; and
iii) The accused’s testimony is contradicted by his words and actions at the time of the offence.
[41] I will deal with each of these in turn.
i) The accused was expressly looking for a “boy”.
[42] The accused posted his ad on Craigslist because he wanted to engage in sexually explicit communication with a young person. He was looking for “hard boy cock”, the “younger the better”.
[43] In his testimony, Mr. Froese insisted that he was not really looking for a child, but rather, an adult male who looks young. He testified that, within pornographic subculture, the word “boy” can mean an adult male who is slim and smooth and looks youthful. During cross-examination, he acknowledged that, in pornographic circles, a young looking adult male might also be referred to as a “twerk” or a “boi”. Mr. Froese did not use these specialized terms. He used the word “boy”, a word understood in common parlance to mean a young person. By using this word, by posting his ad on the “casual encounters” site (which is open to persons of all ages), and by adding the words, “the younger the better”, Mr. Froese had to reasonably expect that his ad might elicit a response from a person under the age of 16 years.
[44] The accused testified that, when he referred to a boy being “the younger the better”, he really meant “the younger the better within the legal limit”. He testified that he was looking for someone as young as possible, so long as he was over the age of 18. This strains credulity. There was nothing in the ad to convey that the accused was looking for a person over the age of 18. The use of the word “boy”, together with the phrase “the younger the better”, conveyed a desire to communicate with a young person, rather than a young looking adult.
[45] This inference is reinforced by the other ads posted by the accused on Craigslist. In one, he sought “a boy who wants a bj [blow job] after school”. The reference to sexual activity “after school” confirms that the accused was seeking a person of school age. In his testimony, the accused claimed that he was looking for someone “who would’ve been 19 or 20 years old attending college or university”. But that is not what the ad said, and it is not a plausible interpretation of the language that was used.
[46] During re-examination, the accused introduced evidence of certain websites he had accessed in the past. The evidence consisted of pages from the websites, depicting young looking males in sexually explicit poses. Because the websites regularly changed content, the photographs filed in court were not the same as those previously viewed by the accused. However, the photos were introduced as a representative sample of what the websites contained.
[47] This evidence was introduced for two purposes: 1) to show that, in the world on on-line pornography, the word “boy” can refer to an adult male who appears young; and 2) to demonstrate that the accused is not sexually aroused by children. Of course, the accused need not prove anything at the trial; he need only raise a reasonable doubt as to guilt. With that caveat stated, I find that the website pages do not assist the accused.
[48] The males depicted in the photographs seem to range in age, but some appear extremely young and child-like. The accused referred to disclaimers on the websites, which represent that only persons over the age of 18 are depicted. I attach no evidentiary weight to the disclaimers. They have the quality of hearsay if introduced for their truth. There is no assurance of reliability, given the incentive for websites to appear legal, even if they are not. I have no evidence to tell me how young these “boys” are, but I can comment on how young they appear. Some appear to be very young – mere children – presented in sexual poses and activities.
[49] The accused insisted that he was not sexually attracted to children. He was quick to deny sexual arousal in his testimony. He claimed not to be sexually aroused during his communications with Alex. I find this difficult to accept. It is presumably the prospect of sexual arousal that leads someone to access on-line pornography. Sexual interest is also presumably the basis for an addiction to pornography. The accused did not offer any other reason for why he would spend hours at a time looking at this type of material on the internet. The only logical inference is that he viewed pornography, and engaged in sexually explicit chats, because he found them to be sexually provocative.
[50] The accused testified that his interest in pornography depended on the real age of the person depicted. He said that he was only interested in pornography if the males in the photographs were over 18 years of age. Yet, if someone is sexually aroused by images of people who look like children, that person is likely to be sexually aroused by images of people who are children. The visual depiction is the same. Moreover, the mischief is the same. This is reflected in s.163.1(a)(i) of the Criminal Code, which defines “child pornography” as material “that shows a person who is or is depicted as being, under the age of 18 years as engaged in explicit sexual activity. I will not comment on the legality of the material filed with the court. It was sealed in order to reflect its sensitivity. My point is simply that the accused’s testimony appeared to be less an offer of the truth than an attempt to distance himself from criminality.
[51] I find, as a fact, that the purpose of the accused’s ad was to solicit communications with a young person - a “boy” as that term is conventionally understood.
ii) The accused’s claim that he believed Alex to be an adult is not credible.
[52] The accused claimed that he believed Alex to be an adult male posing as a teenager, citing various factors that caused him to be suspicious about Alex’s age.
[53] The accused’s belief must be assessed from a subjective perspective. The question is what was subjectively believed by the accused. While the inquiry is subjective, the reasonableness of the accused’s belief bears on the assessment of whether it was subjectively held. Moreover a belief that the person is over the age of 16 will only exculpate if accompanied by reasonable steps to ascertain age.
[54] The accused claimed that he was suspicious as soon as he received the initial message and photograph from Alex. He testified that he knew something was wrong, because the photograph sent by Alex depicted a person who was clearly over the age of 15. This does not correspond to the evidence. The photograph was taken of Constable Diotte when he was either 15 or 16 years old. He presents plausibly as a teenager. Whether the officer was 15 or 16 at the time the picture was taken, he does not look so old as to trigger suspicion about his age.
[55] Significantly the accused did not challenge Alex about his age. After receiving the photograph, he responded by saying: “15, eh? I’ve never done anything with anyone so young.” He also sent Alex a picture of his face, exposing his identity. These responses belie his assertion of immediate suspicion.
[56] Also I reject the accused’s assertion that he did not think Alex communicated like a teenager. The accused pointed to various stylistic tendencies, such as short forms, misspelled words, and multiple exclamation or question marks. The accused claimed that teenagers did not use those forms of expression. He based this opinion on his communications with young persons in his church youth group.
[57] Constable Diotte testified that, when communicating with the accused, he deliberately tried to make his communications “look young, but not too young”. He relied, among other things, on his advanced police training in the investigation of on-line luring cases.
[58] I did not hear any evidence about how teenagers typically communicate. Nor did I hear evidence about how the officer was trained. I do not assume that he wrote like a teenager just because that was his intention. I do, however, apply my common sense and experience in assessing this issue. To my mind, the communications sent by Alex looked like they could well be from a young person. They do not bear the hallmarks of adult communication.
[59] The accused testified that people in the youth group communicated differently than Alex, but he did not introduce any of their communications into evidence. Even if the members of the church youth group did communicate differently, it would be unreasonable for the accused to presume that there is one universal communication style adopted by young persons. Persons have individual communication styles, and those may vary with context. Members of a church youth group might well speak differently to their pastor than would a 15 year old responding to a sexual ad. The style of communication was not so unlike what one might expect of a teenager that it would plausibly lead the accused to think that Alex was an adult.
[60] The accused testified that he believed Alex was not a teenager because a teenager would have been able to get the webcam on his computer working. This suggestion fails to account for the possibility that the webcam was genuinely broken. While the voice heard over the Skype was that of an adult, it did sound like that of a young person. There was nothing about the voice that would so obviously arouse suspicion about age.
[61] Finally, the accused accessed Alex’s Facebook and Skype accounts, which both contained profiles with a date of birth for a 15 year old. To support his belief, the accused would have had to accept that Alex was so intent on his deception, and so committed to “baiting” him, that he would manufacture false Facebook and Skype accounts. This would seem an unlikely prospect for someone just “playing a game” on the internet.
iii) The accused’s testimony is contradicted by his words and actions at the time of the offence.
[62] The accused’s testimony about what he believed at the time of the offence is belied by his words and actions at the time of the offence.
[63] The accused testified that he continued his communications with Alex because he was “basically seeing where the conversation would go”. He testified that he wanted to expose this person for pretending to be someone younger than he was. He said that he kept speaking with him to “bait him and find out how old he is”. He claimed: “I felt like he was an older guy likely trying to be a a teenager. I was trying to figure out what was his game and kind of playing along with his game in a way.” He testified that he wanted to call Alex “out as a fake”.
[64] But this is not what the accused did during the communications. He did not try to call Alex out as a fake. He did ask to see Alex on the webcam, saying on one occasion that he wanted to “make sure that he wasn’t an older guy”. On another occasion, he spoke about illegality and the need to be careful that Alex “wasn’t a cop or something”. But these passing references were never followed up. The accused did not probe Alex about his age, or the possibility that he might be an adult. If anything, the accused seemed to accept that Alex was 15 years old. For example, the accused spoke about performing fellatio on Alex after school before his parents got home, and how risky that would be.
[65] Other conduct belies the accused’s assertion that he thought he was being baited or tricked. He sent Alex a photograph of his face, and identified his first name. The accused was the one who, on each occasion, initiated sexually explicit language. He was the one doing the “baiting”, not Alex.
[66] One of the striking facts is that the accused was the one that re-initiated contact after a weekend of silence. Between Friday and Monday there were no messages exchanged. The accused tried to initiate contact on Monday but was unsuccessful. Not to be deterred, he tried again on Tuesday, this time prompting a response. If he really believed that Alex was trying to trick or deceive him, why would he so anxiously try to reconnect with Alex? Why not let the connection lapse, as it had for three days? Why not attempt communication with someone else on Craigslist? It is not plausible that the accused would work so hard to keep the line of communication open with Alex if he genuinely believed that he was being deceived or manipulated. The more rational inference is that the accused maintained communication because he was intrigued by the prospect of sexual communication with a 15 year old.
[67] It is true that the accused was anxious to see Alex on the Skype camera. However, this does not detract from the analysis. I find that the accused wanted to see Alex, not to confirm that he was an adult, but rather, to confirm that he was a young person, as was the accused’s belief.
[68] For all of these reasons, I find that the accused believed Alex to be under the age of 16 years at the time of the communications over the computer.
Did the accused intend to facilitate the commission of a sexual offence?
[69] The accused testified that he never actually intended to meet with Alex. The communications disclose that the accused canvassed the possibility of meeting with Alex on various occasions. At the same time, the accused was tentative, indicating that a meeting may or may not occur.
[70] The prospect of a meeting is not the sine qua non of the offence contemplated by s.172.1 of the Code. The question is not whether the accused was going to meet with Alex; the question is whether he intended to “facilitate” a sexual offence with a young person. This element is satisfied by conduct that helps to bring about a sexual offence, or makes it easier or more probable that a sexual offence will occur. The gravamen of the offence is the sexual exploitation of young persons in cyberspace. As Fish J. explained in R. v. Legare 2009 SCC 56, at paras. 28-29:
28 Section 172.1(1) makes it a crime to communicate by computer with underage children or adolescents for the purpose of facilitating the commission of the offences mentioned in its constituent paragraphs. In this context, "facilitating" includes helping to bring about and making easier or more probable -- for example, by "luring" or "grooming" young persons to commit or participate in the prohibited conduct; by reducing their inhibitions; or by prurient discourse that exploits a young person's curiosity, immaturity or precocious sexuality.
29 I hasten to add that sexually explicit language is not an essential element of the offences created by s. 172.1. Its focus is on the intention of the accused at the time of the communication by computer. Sexually explicit comments may suffice to establish the criminal purpose of the accused. But those who use their computers to lure children for sexual purposes often groom them online by first gaining their trust through conversations about their home life, their personal interests or other innocuous topics.
[71] The intention of the accused must be determined subjectively.
[72] The subjective intent is made out in this case. The accused did speak with Alex about places in which sexual activity might occur, including private places. At the very least, the accused entertained the possibility of a meeting. Even if no meeting was to take place, the accused facilitated an offence. Luring is an inchoate crime. The rational inference in this case is that the accused was grooming Alex for possible sexual activity by reducing his inhibitions, and exploiting his sexual curiosity. He expressly canvassed Alex’s sexual experience, his sexual interests, and his willingness to engage in sexual expression. While sexually explicit language is not an essential element of the offence, it is a cogent factor in this case, confirming that it was the accused’s intention to facilitate sexual activity.
[73] The defence argued that the accused did not wish to facilitate a sexual offence with Alex, because he posted two new ads on Craigslist while communicating with Alex. The accused was trying to maximize his options. This does not negate the evidence demonstrating sexual intentions toward Alex.
Reasonable Steps
[74] Section 171.2(4) provides that a belief by the accused that he is communicating with someone over the age of 16 years is only a defence if the accused took reasonable steps to ascertain the age of the person. In this case, I have already rejected the suggestion that the accused believed Alex to be over the age of 16 (or 18, as he testified). Therefore I need not determine whether he took reasonable steps to ascertain Alex’s age. In any event, the only “step” taken by the accused in this regard was the request that Alex show himself on Skype. This did not occur, owing to Alex’s claim that he could not get the webcam to work. There were no other circumstances suggesting that Alex was over the age of 16, and no other steps taken by the accused to determine just how old Alex was. If, contrary to my finding, the accused did believe Alex to be over the age of 16, this defence would have to fail, given the accused’s failure to take reasonable steps to determine Alex’s age.
CONCLUSION
[75] I am satisfied that, at the time of the communications, the accused intended to facilitate a sexual offence with Alex, whom he believed to be under the age of 16 years. The elements of the luring offence have been proved beyond a reasonable doubt.
Renee M. Pomerance
Madam Justice
Released Orally: Thursday, February 19, 2015
CITATION: R. v. Froese, 2015 ONSC 1075
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Frank Froese
Accused
REASONS FOR JUDGMENT
Pomerance J.
Delivered Orally: February 19, 2015
[2]1991 93 (SCC), [1991] 1 S.C.R. 742