R. v. G., 2015 ONSC 3190

COURT FILE NO.: CR-12-2008-00

DATE: 2015-05-28

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Gregory Hendry, for the Crown

– and –

K.G.

Jason Rabinovich, for the Defendant

Defendant

HEARD: April 7-9, 2015

REASONS FOR JUDGMENT

M.J. Donohue, J.:

Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity, including the names of other Crown witnesses, shall not be published in any document or broadcast in any way, pursuant to s. 486.4 of the Criminal Code of Canada.

THE CHARGES

[1] The defendant is charged with one count of invitation to sexual touching of a person under the age of 16 contrary to s. 152 C.C.C., and one count of attempt to obtain sexual services of a person under the age of 18, contrary to s. 212(4) C.C.C.

Issue for Trial

[2] Mr. K.G. had two or three unrecorded telephone conversations with M.M., aged 14, and three additional conversations with M.M., which she recorded. Mr. K.G. testified that there was a further unrecorded call by M.M. to him between the last two recorded calls.

[3] The Defence agrees that the content of the three recorded calls satisfy the actus reus of the two offences.

[4] The Defence argues, however, that Mr. K.G. did not intend to invite touching or to obtain sexual services from M.M. or her friends, such that the mens rea is not satisfied beyond a reasonable doubt.

[5] The defence rests on Mr. K.G.’s evidence that the recorded conversations were only pretending, or role-playing with M.M. as if they were on a chat line, to warn her of the dangers therein.

Background

[6] Mr. K.G. was a best friend of M.M.’s father. At times they worked together. M.M. was 14 years of age and Mr. K.G. was 48 years of age.

[7] M.M. called him, “Uncle R.”. Mr. K.G. testified that M.M. was like a niece to him.

[8] In May 2010, M.M. called Mr. K.G. from her cell phone and asked to speak with her father, who was working with him that day.

[9] Thereafter Mr. K.G. called M.M.’s cell phone four or five times. Three of the calls were recorded by M.M.

THE EVIDENCE HEARD AT TRIAL

First Call by Mr. K.G.

[10] M.M. testified that Mr. K.G. called her cell phone and asked her not to tell her parents. She said he offered to buy her or her friends’ dirty panties for $25 a pair.

[11] Mr. K.G. acknowledged at trial that he called M.M. and offered to purchase young girls’ dirty panties. He testified that he asked if she had friends who were 16 years of age or older who would be willing to sell dirty panties. At trial, he stated that had been requested by someone on the chat line he uses to try to obtain young girls’ dirty panties. He admitted that such are a turn-on for him.

[12] When M.M. told him that she did not have any friends who were 16 years of age, Mr. K.G. said he told her ‘sorry for asking’. He testified that that was the end of the matter as he was only interested in purchasing from 16 year olds.

[13] M.M. was not asked in cross-examination if Mr. K.G. asked to purchase only from 16 year olds.

Further Unrecorded Call

[14] Mr. K.G. testified that M.M. called him with her friend P. on the line. He said M.M. offered to sell P. panties. He said he asked P. age and learned she was only 15. He testified that he again said no, and that he was not interested.

[15] He testified that on this call M.M. told him that she does chat lines on the Internet to meet guys. He said he told her it was not right for her to go on chat lines at her age. He said he told her she was too young.

[16] Mr. K.G. testified that he told her it was very dangerous for her and that it was dangerous for guys as well because she was underage.

[17] Mr. K.G. said that he offered to “chat” with M.M. to show her how guys talk on chat lines so she would know what to expect.

[18] Under cross-examination M.M. was unsure if there was this further call but agreed, as it was five years ago, that a further unrecorded call may have occurred.

[19] M.M. denied that she said she ever used or was interested in chat lines. She said that, at 14, she had “no clue” about chat lines. M.M. testified that she mentioned it later in the recorded call to get him to repeat what he had said on the unrecorded call.

[20] M.M. denied that Mr. K.G. ever suggested that chat lines were dangerous or warned her against them.

[21] M.M. was not asked in cross-examination whether Mr. K.G. advised he would call her and pretend it was a chat line so she would see what the experience would be like.

[22] Mr. K.G. testified that he uses chat lines for sexual conversations and for sexual encounters with adult women.

Three Recorded Conversations

[23] The content of the three recorded conversations is not disputed. Mr. K.G. phoned M.M. and they discussed:

a. buying panties from her and her friends for $25 a pair, a couple per week;

b. paying for extras such as smelling them on her, opening her legs and sucking her, and “coming” on her;

c. the sexuality of 14 and 15 year old girls;

d. his preference for 14 and 15 year old virgins;

e. explanations about the chat line he uses--that you register, get a membership number, and that it is by phone and not over the Internet;

f. women he met on the chat line who began sexual activity at age 14;

g. descriptions of women he met on chat lines, with whom he had sexual encounters;

h. his willingness to pay her friends if they call him when they are broke that summer to go to a hotel for fun and he will “…make them learn everything….tell them how to learn to keep a guy and maybe they want to learn to fuck.”;

i. the need for secrecy, after M.M. inquired if it was against the law, that “fucking young girls…but they don’t tell….don’t tell nobody that, right? That’s something they do privately, right?....You can’t tell nobody. If you getting fucked, uh, you are gotta keep it to yourself, right?” “Nobody wouldn’t tell nobody when come and take you somewhere and take you-, you have to be very careful, Guys talking, you have to be very careful, right?....you can’t get, you, you don’t wanna get pregnant and stuff, you know?”; and

j. reassurances to M.M. that it would soon be okay, “…you could do it. By the time you reach 16 is I think le, uh, illegally, that’s yeah, I think it’s 16 around legal. Because, um, have-to having sex.”

M.M.’s Phone call

[24] Mr. K.G. testified that between the last two recorded phone conversations, M.M. phoned him and they had an unrecorded conversation.

[25] He testified that M.M. offered to sell him panties again. He said he told her no again, that he would not buy from girls under age 16.

THE POSITION OF THE PARTIES

[26] The Crown argued that it is irrelevant how many calls there were and whether M.M called to offer to sell friends’ panties, since the recorded calls and the evidence of the complainant demonstrate the intent underlying these offences. The Crown argues that if there was an intent to role-play, Mr. K.G. or M.M. would have referred to the role-playing in at least one of these calls.

[27] The position of the Defence is that Mr. K.G. only intended role-play on these calls, as if they were on a chat line. He argued that it was intended only as a warning to M.M. He testified that it was pre-arranged with M.M. that that was all it was to be.

ANALYSIS

[28] I am mindful of the analysis set out by the Supreme Court of Canada in R. v. W.D. 1991 93 (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26 at para 11. In assessing the evidence, even if I do not believe the Defence, and even if the defence evidence does not leave me with a reasonable doubt, Mr. K.G. can only be convicted if the rest of the evidence proves the charges beyond a reasonable doubt.

[29] Reviewing all the evidence I found a number of inconsistencies with Mr. K.G.’s evidence that he did not intend these recorded conversations to be real. In sum, I find his evidence is not credible.

[30] His evidence was that he was seeking to buy girls’ dirty underpants. For this reason he contacted M.M. Mr. K.G. testified that on the two early unrecorded conversations that he firmly said he was not prepared to buy panties from M.M. or her friends because he learned they were under 16 years of age. What follows, however, is two recorded conversations of his interest in buying panties as well as paying for extra sexual activity, notwithstanding his knowledge of their age.

[31] He testified that he then had an unrecorded conversation of his refusal to buy panties but it is followed up by a recorded conversation where he said he could do something that weekend, “…. if anybody wanted something or buy anything like that?” In that conversation he offered to give M.M. $100 to “eat your pussy or something so.”

[32] I find that his suggestion that on the recorded conversations he was only making “pretend” conversations and that on the unrecorded conversations he was firmly stating that he would not be involved with girls under age 16 to be entirely inconsistent and not credible.

[33] His evidence that he first called M.M. to purchase panties (a real conversation) is entirely consistent with the recorded conversations that he had with M.M. later where the purchase of panties and “extras” continued to be discussed.

[34] The recorded conversations also have several references where M.M. asked Mr. K.G. to repeat or expand on what he had discussed with her during the unrecorded conversations. If role-playing was intended, it would have been mentioned and recorded in these conversations.

[35] Having rejected Mr. K.G.’s evidence and not being left with a reasonable doubt based on it, I turn to whether the Crown has proved the offences beyond a reasonable doubt. The question is whether I can be satisfied that the conversations were real and that Mr. K.G. intended to mean what he said.

[36] For the following reasons I conclude that the discussions were real and intended:

(a) Mr. K.G. has used chat lines to meet women for sexual encounters;

(b) at the end of the last recorded conversation he offered to make arrangements to meet that weekend;

(c) his discussions were the opposite of discouraging M.M. from using chat lines to meet guys as I find that he was:

(i) emphasizing the heightened sexuality of 14 year old girls;

(ii) he was encouraging privacy, and asking her to not tell anyone about sexual acts, “its her business - everybody does it, they keep it to themselves.”; and

(iii) he described someone he knew whose first sexual encounter was with the girl’s uncle (a role he held with M.M.).

(d) it is not reasonable that Mr. K.G. would call three separate times to give M.M. an example of a role-playing chat line to warn M.M. of the dangers of same;

(e) the conversations related back to their previous discussions which was consistent with M.M.’s description of recording what he had suggested earlier; “like you remember how you told me about like the, the internet, right?” Mr. K.G. then answered, “It’s not on the Internet. It’s only, um, on the, on the, uh, chat line.”

(f) there is nothing in the recorded conversations that would suggest they were pretending;

(g) the content of the conversations could not be taken as instructive or as a warning to young girls. Rather, they were encouraging of the girls to engage in sexual activities and be paid for it; and

(h) the calls are more consistent with M.M. asking Mr. K.G. to repeat what he had offered previously in the unrecorded calls.

[37] The content of the recorded calls and the testimony of M.M. establish beyond a reasonable doubt that Mr. K.G. was intent on sexual touching and payment of sexual services from 14 year old MM and potentially from her 15 year old friend.

CONCLUSION

[38] Accordingly, I find the accused, Mr. K.G., guilty on counts #1 and #2.

M. J. Donohue, J.

Released: May 28, 2015

R. v. G., 2015 ONSC 3190

COURT FILE NO.: CR-12-2008-00

DATE: 2015-05-28

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

K.G.

REASONS FOR JUDGMENT

M. J. Donohue, J.

Released: May 28, 2015