ONTARIO

SUPERIOR COURT OF JUSTICE

CITATION: R v. Little, 2015 ONSC 3991

COURT FILE NO.: 593/14

DATE: 20150624

B E T W E E N:

THE ATTORNEY GENERAL OF CANADA on behalf of THE UNITED KINGDOM

ELAINE KRIVEL, Q.C., for the Applicant/Requesting State

Applicant/Requesting State

• and -

JOHN LITTLE A.K.A. JOHN THOMPSON

SUSAN ADAMS, for the Respondent/Person Sought

Respondent/Person Sought

HEARD: April 1, 2015

REASONS FOR JUDGMENT

DURNO J.

[1] The United Kingdom (“UK”) seeks the extradition of John Little. a.k.a. John Thompson, on charges under the Sexual Offences Act, 2003, of arranging or facilitating the commission of a child sex offence and meeting a child following sexual grooming. The corresponding offences in the Criminal Code of Canada are internet child luring and invitation to sexual touching.

[2] It is alleged that in 2010 the then 22 year old Respondent lured a 13 year old girl who lived in the UK by inviting her online to sexually touch herself for his sexual gratification. It is alleged the contact continued and sexual conduct occurred after the young woman’s mother told the Respondent that she was only 13 years old and sent him a copy of her passport.

[3] Using a webcam the young girl exposed herself naked to the Respondent and a chat showed him instructing the young girl to touch herself. Photographs were also seized showing her exposing her breasts, wearing push up style bras and touching her vaginal area. In December, 2010, the Respondent spent a night in a hotel room in London with the young girl. When she was asked if they had intercourse, she smiled and told a social worker, “As good as sex.”

[4] The Respondent argues that there is insufficient evidence upon which to order his committal for extradition contending there are serious problems with the dates of the events alleged and establishing that any sexual element was after he knew the young girl was under 16 years of age.

[5] For the following reasons, the application is granted and the Respondent is ordered extradited to the UK.

The Law

[6] In the United States of America v. McAmmond (2005), 2005 20 (ON CA), 192 C.C.C. (3d) 149 at para. 8 the Court of Appeal for Ontario outlined the extradition process as follows;

At its core, extradition is a political process in which primary responsibility rests with the executive branch of government. Extradition is a means by which nations honour their international obligations and the principles of comity through a framework of treaties and domestic legislation. In Canada, the process is two-staged. The first stage involves judicial input in the form of a screening mechanism whereby a judge decides whether the requesting state has put forward sufficient evidence to warrant a committal for surrender. If that is so, the Minister determines in the second stage whether the individual whose extradition is sought should be surrendered for that purpose.

[7] Because the jurisdiction of the extradition judge is derived entirely from the Extradition Act and the relevant treaty and sole purpose of an extradition hearing is to ensure that the evidence establishes a prima facie case that the extradition crime has been committed, the extradition judge’s role has been described as a “modest one.” United States of America v. Dynar 1997 359 (SCC), [1997] 2 S.C.R. 462 at para. 120. The hearing is intended to be an expedited process, designed to keep expenses to a minimum and ensure prompt compliance with Canada’s international obligations. Extradition proceedings are not trials. Rather, they are intended to be expeditious procedures to determine whether a trial should be held. Dynar, at para. 122.

[8] A person can only be extradited after a judicial determination that the requesting state has established a prima facie case that the person committed the crime(s) alleged and should stand trial for it. United States of America v. Michaelov 2010 ONCA 819 at para. 41. A judge must order extradition where there is evidence admissible under the Extradition Act of conduct that, had it occurred in Canada, would justify committal for trial in Canada on the offence set out in the Authority to Proceed and the judge is satisfied the responding individual is the person sought for extradition. Extradition Act, s. 29(1).

[9] Section 32 of the Extradition Act provides that evidence that would otherwise be admissible under Canadian law shall be admitted as evidence at the hearing. In addition, the contents of the documents contained in the Record of the Case certified under s. 33(3), the contents of documents submitted in conformity with the terms of an extradition agreement and any evidence adduced by the person sought for extradition are admissible. Accordingly, the content of any document properly certified in the Record of the Case are admissible even if they would not be admissible under Canadian law. As such, the Record of the Case can include hearsay. Threshold reliability of the contents of the Record of the Case is presumed, based on its certification. Michaelov, at para. 48. On the hearsay issue, see also, United States of America v. Ferras, at para. 28, 67 and 68; R. v. Michaelov, 2010 ONCA 819; [2010] O.J. No. 819; United States of America v. Yang, (2001), 2001 20937 (ON CA), 157 C.C.C. (3d) 225 (Ont.C.A.)

[10] It is not enough that evidence merely exists on each element of the offence. Rather, it must be demonstrably able to be used by a reasonable and properly instructed jury to convict. Evidence that is incapable of demonstrating thaFt sufficiency cannot justify committal. The Supreme Court of Canada held in Ferras, at para. 46:

The evidence need not convince an extradition judge that a person sought is guilty of the alleged crimes. That assessment remains for the trial court in the foreign state. However, it must establish a case that could go to trial in Canada. This may require the extradition judge to engage in limited weighing of the evidence to determine, not ultimate guilt, but sufficiency of evidence for committal to trial.

[11] The Court summarized the extradition judge’s limited weighing of the evidence as follows at para. 54:

Challenging the justification for committal may involve making arguments on whether the evidence could be believed by a reasonable jury. Where … such arguments are raised, an extradition judge may engage in a limited weighing of evidence to determine whether there is a plausible case. The ultimate assessment of reliability is still left for the trial where guilt and innocence are at issue. However, the extradition judge looks at the whole of the evidence presented at the extradition hearing and determines whether it discloses a case on which a jury could convict. If the evidence is so defective or appears so unreliable that the judge concludes it would be dangerous or unsafe to convict, then the case should not go to a jury and is therefore not sufficient to meet the test for committal.

[12] Where the evidence relied upon is circumstantial in relation to some or all of the elements of the offence, the Supreme Court of Canada judgment in R. v. Arcuri 2001 SCC 54, [2001] 2 S.C.R. 828 at para. 23 dealing with committals on preliminary inquiries provides as follows:

The judge's task is somewhat more complicated where the Crown has not presented direct evidence as to every element of the offence. The question then becomes whether the remaining elements of the offence -- that is, those elements as to which the Crown has not advanced direct evidence -- may reasonably be inferred from the circumstantial evidence. Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established -- that is, an inferential gap beyond the question of whether the evidence should be believed: [references omitted] The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt.

[13] With regards to inferences to be drawn from evidence, in R. v. Dwyer 2013 ONCA 368, [2013] O.J. No. 2554 at para. 4 the Court of Appeal has held:

Reasonable inferences are not necessarily likely or probable inferences. The inference that is most favourable to the Crown must be drawn at the preliminary inquiry stage. Difficult inferences to draw may still nonetheless be reasonable.

[14] As is the case with preliminary inquiries, an extradition hearing is not the proper forum to weigh competing inferences from the evidence or to select from among them. R. v. Campbell (1999), 1999 2372 (ON CA), 140 C.C.C. (3d) 164 at p. 165; United States v. Anderson (2007), 2007 ONCA 84, 85 O.R. (3d) 380 C.A.) at para. 28. For example, it is improper for a judge to conclude that “no reasonable jury, properly instructed, could arrive at a conclusion that one predominates over the other.” R. v. Quinn [2008] ONCA 642; [2008] O.J. No. 3621

[15] Neither does the extradition judge decide whether a witness is credible or reliable. The Extradition Act creates admissibility provisions, the aim of which is to establish threshold reliability of the evidence tendered in support of the committal. Michaelov, at para. 44. However, the consideration of the sufficiency of the evidence does not include the ultimate reliability of the certified evidence. Ferris, at para. 53.

[16] Nor is the judge to evaluate the relative strength of the requesting state’s case. There is no power to refuse extradition in cases where it appears to the judge that the case is weak or unlikely to succeed at trial. Anderson, at para. 28.

[17] If a judge were to conclude the evidence was so manifestly unreliable that it would be unsafe to rest a verdict on it, no extradition order should be made. Ferras, at para. 40. Where evidence is “so defective” or “so unreliable” it can be disregarded in making the committal decision. Either of those conclusions can be reached because of problems that undermine the credibility or source of the evidence or a combination of both factors. Michaelov, at para. 47. It is only where those reliability concerns justify complete rejection of the evidence that they become germane to the s. 29 (1)(a) inquiry.

[18] To conclude the evidence is manifestly unreliable requires a body of evidence that directly undermines the reliability of the evidence in the Record of the Case presented by the requesting state. United States of America v. Mach [2006] O.J. No. 3204 (S.C.J.) at para. 19. If the Record of the Case on its face justifies committal for surrender, the respondent can successfully challenge that evidence only by showing that some part or parts of the Record of the Case that are essential to committal should be completely rejected as unreliable. It is insufficient to show that there is good cause to doubt the reliability of some parts of the Record of the Case of that the evidence might well eventually be rejected at trial. United States v. Aneja (2004), ONCA 423, at para. 44.

[19] The judge is required to assess whether the admissible evidence shows the justness or rightness of committing a person for extradition. Michaelov, at para. 45

The Canadian Offences

[20] Internet luring in relation to persons under the age of 16 is defined in the Criminal Code as:

172.1 (1) Every person commits an offence who, by a means of telecommunication, communicates with

(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

(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 … sixteen 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 …, sixteen years … of age, … unless the accused took reasonable steps to ascertain the age of the person.

[21] The Supreme Court of Canada summarized the element of the offence in R. v. Legare 2009 SCC 56, [2009] 3 S.C.R. 551 at para. 36:

i) an intentional communication by computer

ii) with a person whom the accused knows or believes to be under 16 years of age; and

iii) for the specific purpose of facilitating the commission of a specified secondary offence with respect to the underage person.

[22] Invitation to sexual touching is defined in the Criminal Code as follows:

152. Every person who, for a sexual purpose, invites, counsels or incites a person under the age of 16 years to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the person under the age of 16 years [is guilty of an offence],

[23] The elements of the offence under s. 152 are outlined in Watt’s Manual of Criminal Jury Instructions, Second Edition, Final 152, (Toronto; Thomson, Carswell, 2015) as follows:

1. the complainant was under the age of 16,

2. that the accused invited, counselled or incited[^1] him or her to touch either the accused, the complainant or another person’s body, and

3. that touching that the accused invited, counselled or incited was for a sexual purpose.

Record of the Case and Supplemental Record of the Case

[24] A Crown Prosecutor specializing in child abuse offences has authorized the following charges against John Little: arranging or facilitating the commission of a child sex offence, contrary to s. 14 of the Sexual Offences Act, 2003, and meeting a child following sexual grooming pursuant to s. 15 of the Sexual Offences Act, 2003. The police investigation has been ongoing since February of 2011.

[25] The Minister of Justice of Canada issued an Authority to Proceed pursuant to s. 15 of the Extradition Act authorizing the Attorney General of Canada to seek an order for the committal for extradition of John Little.

[26] The Record of the Case, dated August 6, 2014, is certified by a Specialist Extradition Prosecutor within the Extradition Unit of the United Kingdom Crown Prosecution Service, stating that the evidence is available for trial and is sufficient under the laws of the UK to justify prosecution.

[27] In reviewing the Record of the Case, Supplementary Record of the Case and admissions, I will refer to the person the UK alleges is the Respondent as ‘John.’ GD is the young woman and TD, her mother.

[28] GD was 13 in 2009 when the prosecution alleges she started an online relationship with 22 year old John. The relationship included sexually explicit chats, the use of a webcam during which GD exposed and touched herself, and culminated in their spending a night together in a hotel room in London, England on December 16, 2010.

[29] GD has made no statement to police and does not support the prosecution. She continues to regard John as her romantic partner and believes they will marry and have a family together. GD does not understand why she cannot have a sexual relationship with him, nor does she understand what the issue is with the age difference. She told police she will never talk to them about what happened in the hotel and she does not want John to get into trouble because she loves him.

[30] GD’s mother, TD, has given police copies of emails and letters that were exchanged between GD and John. An examination of GD’s computer by police revealed a large number of sexually explicit communications.

[31] On March 20, 2012, TD advised police that in 2009 or early 2010, her daughter told her that she was having a platonic relationship with a 16 year old named John Little from Canada. GD said she had posed online as “Annabel,” a 17 year old woman living alone in a bedsit. She told Natalie Ianonos, her Education and Welfare Officer, that she liked to play games and speak to people in chat rooms.

[32] On March 31, 2010, TD emailed John at his johnthompson58@hotmail.com email address telling him GD was only 13 years old, that she was up all hours on her computer and that her home and school life were suffering. While the date is unspecified, according to the Statement of the Case, she “later” emailed John a photocopy of GD’s passport to prove that she was really 13 years old.

[33] John responded to TD on April 7, 2010, from the same email address, saying:

If this really is Annabel’s (or at least that’s how I know her) mom, I need you to know I’m devastated. I don’t know how to feel or what to say … she completely denies it’s her and says someone is setting her up, etc. I don’t’ know what to do.

[34] Contact continued between John and GD.

[35] In April, 2010, GD and her parents went on a family vacation to Calgary, Alberta, where GD’s father worked. GD asked her parents if she could meet with John and introduced him to her mother via webcam. TD agreed, provided she was present to supervise and emailed John on April 20, 2010 to ask that his mother contact her to confirm that she knew her son was visiting her 14 year old daughter. TD spoke with John by phone and told him she would be present “every second” of the visit. He cancelled the visit on the day. GD was extremely upset, tried to run away and told her mother they could not talk about the things they wanted to with her present.

[36] In May, 2010, TD walked into GD’s room late one night and found her naked in front of the computer with the webcam on. GD’s Education and Welfare officer says that GD admitted to her that she had exposed herself to John and that her mother had walked in when she was doing so.

[37] On November 28, 2010, TD emailed John saying that she was worried because GD was looking up local hotels on the computer and asked, “Please tell me you know nothing about this” He replied the same day that he had no intention of seeing GD, they were not internet dating, and were no longer overly close. He had no idea about “this” and said that GD was a really nice girl but she needed to get her school stuff going. When they spoke that was all they talked about.

[38] On December 16, 2010, GD called her parents to say that she had met a friend, Amy, in Harrow and was given permission to spend the night at Amy’s house. She came home the next day, returned to Harrow and called again to ask her parents if she could stay the night of the 17th at Amy’s. TD contacted Amy’s mother and learned that GD had not been with Amy. Police were contacted and GD was reported missing.

[39] Eventually TD persuaded GD to meet her and brought her home. GD said she had been with a group of girls. Her mother asked her if she needed a pregnancy test and she said that she did. However, she later told police that this was because she was concerned she could have become pregnant from using a toilet.

[40] On December 18, 2010, TD emailed John asking if he knew the friend GD had spent the night with and thanked him for doing the right thing by ending his relationship with GD. He responded that he wished he could look into it for her but he did not want anything to do with her anymore, it was hard to deal with and he hoped GD was alright.

[41] When police contacted Air Canada they learned John Little, born February 6, 1987, booked an e-ticket from Toronto to London Heathrow to arrive on December 14, 2010. The same person booked a flight from London to Chicago on December 21, 2010. Booking records showed the passenger was John Little who held a Canadian passport. He paid for the ticket using a Visa in the name of John Little. His home address was 64 Horne Drive, Brampton, Ontario, Canada and his email address was johnthompson58@hotmail.com. John Little’s passport application shows his home address as 64 Horne Drive, Brampton, where he lived with his mother.

[42] GD later admitted to Social Services that she met John and stayed with him in a hotel room in London for one night during the time John was in the UK. An email by John to GD’s email account confirmed their meeting in London.

[43] On January 26, 2011, GD told Ms. Iasonos that she had fallen out with someone and needed to be able to get in touch with that person but would provide no more details.

[44] On February 2, 2011, GD told Ms. Iasonos about her friend John who was 19 years old and lived in Canada. He was a friend from whom she was seeking advice about the older person with whom she had the falling out with in January, 2011. GD then admitted that she had spent the night of December 16th in a hotel room with that person. He had booked a flight to London for three days but her mother had found out and threatened to call the police so she returned home. GD thought this is why they had fallen out and he ended their relationship. When reminded that she was only 14 years old, GD admitted the person was in his twenties, told Ms. Iasonos that she did not know or understand the full story, and that there would be consequences if she told her what was going on.

[45] On February 9, 2011, GD told Ms. Iasonos that she had been calling John when her mother went to bed in the evening, admitted that John was the person with whom she had been having a relationship and who had come to visit her in London. He was in his early twenties, lived in Canada and they had met in a chat room called Chat Avenue. GD described how her mother found her exposing herself on the laptop webcam and that is was to John. Her mother then contacted John to say that she was only 13 years old. However, they continued to meet. She found a hotel in Harrow where they could stay as they were arguing a lot and she was trying to make things good. She went shopping with her mother in Harrow and then went to meet John. When asked by Ms. Iasonos if they had had sex, GD smiled and said, “As good as sex.”

The Emails

[46] TD has provided police with a number of emails that were sent between GD at gd******@hotmail.co.uk and John at johnthompson59@hotmail.com. On February 24, 2011, John told GD she was ruining his life, they were not meant to talk for more than one year, until she was of age, he loved her and probably would always but it was not good for either of them. He hoped she was safe and well until they talked again. John said that it was probably best if they stopped and, “I don’t want in any more trouble.”

[47] Later that day, GD emailed John saying the police and social workers had come to her door, the police would be investigating him and she could not talk to him anymore. She knew her computers would be checked and material was likely to be recovered. She told him that “nothing happened” when they were together and she had told everyone that.

[48] John responded in a lengthy email entailed “Please read” which according to the Record of the Case was “clearly designed to be read by someone other than GD,” He said that she was his girlfriend during 2010, when he discovered her true age, he was shocked for a while but they continued to get closer. He admitted meeting her in December, going to a hotel room where they talked about their feelings and “nothing of a sexual level ever happened.” GD started to “freak out” when she found out he was going to California to see an ex-girlfriend and she started telling people online that she would get him put in jail.

The Computers Seized from GD’s home.

[49] Two computer towers, a Blackberry and a Leopard print laptop were seized from GD’s home. An examination of the two computer towers revealed two Windows Live Messenger chat conversations and a further fragment relating to the John Thompson email address. The internet history data showed visits to the Chat Avenue profile page of “John!” and the Microsoft Live profile page of “John Little.”

[50] The Leopard print laptop revealed chat logs containing conversations between GD and John in 2010. GD appeared to have used the alias “Annabel” for the conversations of a sexually explicit content.[^2] Pictures of a woman holding a piece of paper with “I <3 AnnA” written on it and of a male with “I <3 AnnA” written on his hand were found in the recycling bin. A picture of what appeared to be GD exposing herself was found in a temporary internet file. There were also several photographs of GD exposing her breasts, showing her stomach with “John” written across her mid-drift, touching her vaginal area, and a large quantity of GD wearing push-up style bras. There was no evidence any of the pictures were ever sent. There were also video messages GD recorded for John wishing him a happy birthday and asking him not to talk to other girls.

Chat logs

[51] Chats produced from a review of the disc retrieved from the Leopard print laptop show under the “25th November 2010” heading in the Record of the Case, a chat fragment was recovered “which from its context appears to relate to a conversation” on that date when GD was 14 years old. At 23:18 hours, GD received an invitation from John to start viewing webcam, he tells her that her mother has recently sent him an email and is worried about her. He says he feels bad and that he is “fucking up” her life and he should “just get away” from her. He says he is not going to tell GD’s mother anything and they talk about changing his email address. When she tells him that she needs him to be okay, he says he can’t ignore what happened to make her feel better and that she betrayed his trust. He says, “I should have known you would, you’re 14.”

[52] When the webcam is started John says, “cute undies haha.” They talk of GD having a large mole and John says that he barely noticed it as it was too close to her boobs. John says, “No need to cover too much” and “If this works out I’ll be sleeping next to you in two and a half weeks, crazy, huh?” He asks her if she normally sleeps with a bra and to “cover less” as it helps. He tells her that “black bears love pretty girls’ boobs,” GD is the prettiest girl in all the land and “I love you really, and it hurts because you hurt me. Don’t again.” He says that he is “so fucking horny,” asks her to “touch it a few more times, it looks so good,” and “you have a nice fucking body, I’d give anything to get right in between those legs right now.” GD asks him how to position something and tries out different poses for his approval. He says “I’m hard” and asks to see her without the pajamas. She then engages in sexually explicit role playing as an “innocent 4 year old” and calls him “daddy.” GD asks him to come to the UK and he replies, “I would in a second, I love you.”

[53] Under the “26th November 2010” heading in the Record of the Case, GD contacts John “the next day” telling him “you’re amazing, and really hot.” She says that hopefully there’s a surprise for him soon, “if I can I ‘wanna to it.” As they continue chatting he says, “Oh GD there is a 900% chance I’m seeing you in person.” He talks of booking a hotel, getting ready to see her and it would happen in two weeks.

[54] Under the “1st December 2010” heading, there is conversation in which GD says she is reading up on the pill and found it was safer to take it a week before sex. John says he is talking about the morning after pill. They talk about that being Plan A and he shows her a link to Plan B, a brand of hormonal emergency contraception. He says Plan A didn’t work, a condom and jokes about the condom breaking. When GD asks about Plan C, John says that is an abortion and asked whether she could have one without her parents knowing. GD said that could only occur after she was 16. It was illegal when she was 15.

Evidence of Ongoing Communications

[55] A letter was seized which “appears to have been written” on Monday 20th June 2011 from GD to John saying her email was broken and they could only talk through Chat Avenue or Facebook. She said the police found photographs and chat logs on her computer and were “taking it seriously.” She speaks of the possibility of him going to jail in Canada or England. She told the police she had pursued him and did not feel abused in any way. However, she told John the law was against them. There is no evidence this letter was ever sent.

[56] On July 29, 2011 an officer had a letter from John that was found in GD’s bedroom that included the following message, “I love you so much. You mean everything to me. I know I may say foolish things, hurtful things but more than anything, this is what I want. You’re the perfect girl and you have my heart, you forever will. When things get tough read this and know there is some boy somewhere you (sic) loves you.” It was signed “Forever and always, John.”

[57] On November 7, 2011, TD gave police a red envelope with a card inside from John to GD addressed to “to the love of my life.” There is no indication what date the envelope was sent.

[58] On January 18, 2012 police were told that GD had arranged for John to send her a parcel using a schoolmate’s mailing address. The student was located and said that she had agreed to let GD use her address. The parcel was opened and contained items of clothing and a Seneca College photo ID card in the name of John William Little.

Identity and Location

[59] The Person Sought is a Canadian national, John W. Little, also known as Thompson whose birthdate is February 6, 1987. His home address is 64 Horne Drive, Brampton, Ontario, LV6 2V3 where he lives with his mother.

[60] Police obtained a passport photograph of John Little that is an exhibit to the Record of the Case.

Admissions

[61] It is admitted that the Respondent lived at 64 Home Drive, Brampton and that the John Thompson Hotmail address is his email address.

The Positions of the Parties

[62] Ms. Krivel submits the requesting state has provided ample evidence upon which extradition could be ordered on both counts. The evidence is manifestly reliable.

[63] The Respondent submits the evidence provided is “manifestly unreliable such that no jury properly instructed could convict.” She notes the absence of dates in relation to many of the incidents referenced in the Report of the Case. Since John only knew that GD was 13 when he received the copy of her passport, the evidence must establish the offending conduct occurred after that date. While there is evidence TD told John that GD was 13 years old on March 31, 2010, it was at some unspecified date and time “later” that she sent a copy of the passport. From that date on, Annabel was never used. GD used her own name.

[64] Ms. Adams concedes the Respondent had contact with GD and that they met in a hotel room. However, he was the one who was tricked and lured into the relationship. GD admitted that she created an online persona, 17 year old Annabel. While it is conceded there were sexually explicit conversations, the evidence does not establish that it was after the Respondent knew GD was 13. The Respondent contends the person he was in love with was 17 year old Annabel, not 13 or 14 year old GD. That John took no steps to conceal his name on the internet is inconsistent with his knowing GD was under 16 years of age when the sexually explicit comments were made.

[65] In addition, GD is not cooperating with the police. Ms. Adams submitted that GD will not be a witness. She also has reliability issues having admitted to creating a fictitious internet persona and admitting that she enjoyed “playing games” on the internet. She has lied to her mother and Ms. Iasonos. As regards GD’s comment when asked if she had intercourse with the person she met at the hotel, “as good as,” Ms. Adams queries what that means. Similarly, her initial comment that she needed a pregnancy test was later qualified to remove any concerns that intercourse occurred – she was concerned she had become pregnant from a toilet seat. It cannot be inferred that sexual intercourse occurred.

[66] The Respondent submits that the crux of this application is the chat alleged to have occurred on November 25, 2010. The Record of the Case describes that chat as appearing to relate to a conversation on that date. None of the other chats or email references include the “appears to” qualification.

[67] Ms. Adams submits that there is no evidence the Respondent was watching the webcam when TD found GD exposing herself and no date when that occurred.

Analysis

[68] Before addressing whether there is sufficient evidence on each element of the offences and identity, I will examine some of the issues raised by the Respondent. First, as regards the suggestion that the absence of dates for some of the incidents and confusion over others, results in a finding there is insufficient evidence upon which to order committal for extradition, I agree that there are problems with the manner in which some of dates are dealt with in the Record of the Case. For example, I note the curious language that a very important chat “appears” to relate to November 25, 2010 and the absence of dates on the letters.

[69] This is not a trial in which the prosecution has to establish beyond a reasonable doubt the dates nor am I to determine whether I have a reasonable doubt on all of the evidence. I am required to examine the record and determine whether the U.K. has met its onus. In doing so, I can examine reasonable inferences that can be drawn from the evidence including the absence of dates in fulfilling the modest task I am assigned.

[70] Second, it is submitted that GD will not be a witness because she has not cooperated with the police and that there are reliability issues with regards to her. First, since I infer GD is a compellable witness, even ignoring that hearsay is admissible on the extradition hearing, it would be wrong to proceed on the basis that GD will not be a witness. She could be called and there is nothing from which it can be inferred that she will not repeat what she told her mother and Ms. Iasonos.

[71] Second, since hearsay is admissible on an extradition hearing, what she is alleged to have told her mother, Ms. Iasonos and the police is admissible on this hearing. As there is at least one reference in the Record of the Case to comments she has made to police, that she would never say what happened in the hotel, I infer that she has spoken to them but has refused to provide a formal statement.

[72] As regards her reliability concerns and while not directly raised in arguments, her credibility in light of John’s allegation that when he said he was going to visit a former girlfriend in California that GD started telling people online that she was going to get him put in jail as well as her lies to her mother and social worker, those are issues for the trier of fact, not the extradition judge on this record. While sitting on an extradition hearing, I would have the jurisdiction to ignore evidence I found was manifestly unreliable and of such a dubious nature that it could not support a finding of guilt, what GD has told others does not fall within those descriptions. There is not a body of evidence that directly undermines the reliability of her evidence in the Record of the Case.

[73] Third, in relation to drawing inferences, while the Respondent argued that the importance of the chat that appeared to be related to November 25, 2010, was removed because it was equally consistent with that communication relating to GD and her family’s April, 2010, trip to Calgary before he knew she was under 16 years of age and not to his trip to London, weighing competing inferences is not the task of an extradition judge. It is not for me to determine on which date the chat occurred or whether a jury could ever conclude on which date it occurred. I cannot weigh competing inferences if there is an evidentiary basis for more than one inference. There is.

[74] Turning next to the element of the offences, for ease of reference, the elements of internet luring are:

i. an intentional communication by computer

ii. with a person whom the accused knows or believes to be under 16 years of age; and

iii. for the specific purpose of facilitating the commission of a specified secondary offence with respect to the underage person.

Is there sufficient evidence to order extradition of an intentional communication by computer?

[75] I find there is sufficient evidence on this element of the internet luring for the following reasons. First, the evidence of the emails and chats located on GD’s computer between GD’s email address, gd******@hotmail.co.uk and johnthompson59@hotmail.com.

[76] Second, there is evidence John used the “John Thompson” email to buy his ticket to London and it is admitted that he went to London and spent the night in a hotel room with GD.

[77] Third, GD’s statements to TD and Ms. Iasonos that she had communicated with John Little from Canada on the internet.

Is there sufficient evidence to order extradition that the internet communication was with a person the Respondent knew was under the age of 16?

[78] Notwithstanding the Respondent’s arguments regarding the absence of evidence from which a jury could conclude he knew GD was under 16 at the time of the commission of the offences, I am persuaded that the Record of the Case and Supplementary Record of the Case contain sufficient evidence upon which a properly instructed jury could reasonably reach that conclusion. It is not that I find that a jury would reach that conclusion nor do I find I would reach that conclusion. Rather, applying the applicable test, I find there is sufficient evidence on this element. I reach that conclusion for the following reasons.

[79] The key dates to be examined are:

i. the date upon a jury could reasonably conclude John knew GD was under 16 years of age,

ii. the date upon a jury could reasonably conclude the chat that “appears” to relate to a conversation on November 25, 2010, occurred,

iii. the dates GD exposed herself on the webcam, and

iv. December 16, 2010, when the Respondent spent the night in a London hotel with GD.

[80] With regards to the date, the Respondent was told GD was 13, and not 17 years old, on March 31, 2010. TD sent an email to the John Thompson “Hotmail” address saying that GD was only 13 years old. That is some evidence upon which a jury could conclude that John knew GD was 13 years of age on March 31, 2010 regardless of the date the copy of the passport was sent. That John later said that GD denied she was 13 and that someone was setting her up, would be evidence the trier of fact would have to consider. However, they would not be required to accept that evidence or find that it left them in a state of reasonable doubt.

[81] In addition, before the trip to Calgary, GD introduced TD to John using the webcam. While I agree with Ms. Adams that there is no direct evidence that it was John or the Respondent on the webcam, it is some evidence from which a jury could infer that John had seen GD’s mother and knew she was aware of him. Further, on April 20, 2010, before GD’s family’s Calgary trip, TD emailed John asking that his mother contact her to make sure she knew he was meeting her 14 year old daughter. By April 20, 2010, John had twice been told by TD that GD was under 16 years of age and had met TD. He then cancelled the meeting.

[82] Even accepting that he had not received the passport by April, 2010, it would be open to a jury to consider why he would cancel the meeting and inferentially conclude John’s mother never made the call to TD because by that date he knew GD was only 14 years old. If he was concerned that GD was being set up, the call could have been made.

[83] With respect to the date the copy of the passport was sent, I agree with Ms. Adams that the last paragraph on page 2 of the Record of the Case is far from clear. It first references an email in which TD said GD was 13 and then that she “later emailed him a copy of GD’s passport” (emphasis added) although no date is specified. The paragraph then refers to John’s reply on April 7, 2010 questioning if the person was really Anabelle’s mother, that Annabelle completely denied it was her and she was being set up.

[84] That paragraph could be read that the copy of the passport was sent “later” on March 31, 2010 or on a later date. It could be argued that once the copy of the passport was received, John could not have sent the April 7, 2010 response because by then he would have no doubt at all about the age of the person with whom he was communicating. However, that is not the only inference that could be drawn. It would be open to conclude that John had the passport copy by April 7 but Anabel was still maintaining she was 17 years old. Whether the date the copy of the passport was sent to John affords a complete defence will be for the jury to determine.

[85] As regards the date of the chat that “appears to relate to” November 25, 2010, I agree with the Respondent that the references to seeing GD could relate to GD’s family’s visit to Calgary in April, 2010. However, it would be open to conclude the chat fragment relates to a November 25, 2010 conversation, a conversation that takes place after John had twice been told that GD was 13 or 14 years of age and after he had a copy of her passport. During the fragmented chat John acknowledges the GD is 14 years old. Accordingly, the only way that admission does not adversely impact the Respondent is if that communication is after December 16, 2010, or if nothing of a sexual nature happened in the hotel room.

[86] I reached those conclusions ignoring the “appears to relate to” as there is no clear basis provided upon which I can assess how that conclusion was reached, other that the fact there was a December meeting in London. Rather, I reached that conclusion examining the content of the chat fragment in the context of the other evidence.

[87] There is evidence that GD and John had two opportunities to meet in person, once in Calgary when GD’s family was with her and once in London when they would not be with her. When GD asked John to come to the UK he said that he would “in a second” and that he loved her. The Record of the Case continues with a November 26, 2010 heading that does not contain the “appears to relate to” qualification but states, “GD then contacts John the next day …” She says there’s a surprise for him soon and “hopefully if I can, I wanna do it.” They continuing chatting and John tells GD: “Oh, GD there is a 900% chance I’m seeing you in person,” he talks about booking a hotel, getting ready to see her and that “this will happen in two weeks.” As he refers to the other party to the chat as GD, this communication is after John knows GD’s name is not Anabel. Under the December 1, 2010 heading, without any “appears to relate to” qualifier, they discuss birth control.

[88] To be sure, there are puzzling aspects to the fragmented chat. For example, it includes that TD had recently sent John an email and was worried about GD. There are at least five times when TD contacts John: March 31, 2010 by email to tell him GD was only 13; the unspecified date the copy of the passport was sent; in April, 2010, to have John’s mother call her; November 28, 2010 when TD said she was worried because GD was looking up local hotels and wanted his assurance that he knew nothing about it; and on December 18, 2010 seeking his assistance in determining with whom GD had spent the night of December 18, 2010. If the chat fragment was on November 25, 2010, the “recent” email reference cannot relate to the last two contacts as they post-date November 25, 2010.

[89] In addition, in the fragmented chat John said, “If this works out I’ll be sleeping next to you in two and a half weeks, crazy, huh?” While it might be possible the “sleeping with you” comment related to the Calgary trip, a jury could conclude that reference supports the inference they would only have been sleeping together when GD’s mother was unaware of their meeting. That was in December 16, 2010, in London, after he knew GD’s true age.

[90] The fragmented chat also includes a reference to GD hurting John. This could support an inference that referenced GD lying about her age to John and betraying his trust. That would support an inference the chat was after he knew her real age although that could have been before November. Where there are competing inferences to be drawn from the evidence it is for the trier of facts to determine what, if any inference is to be drawn, not an extradition hearing judge.

[91] The Calgary meeting was to occur after April 20, 2010, because TD emailed John on April 20, 2010, asking that his mother contact her to ensure she knew her son was visiting with her 14 year old daughter and that TD was going to be present every second of the visit. While it might be possible to draw an inference the chat fragment related to the Calgary trip, it would also be open to a trier of fact to conclude that it related to the December London meeting, well after John knew GD was 14 years of age.

[92] While the Respondent argued that there was no evidence whether the webcam was on when TD came into her room and found her exposing herself, GD told Ms. Iasonos that her mother came in and found her exposing herself to John on the webcam. That was in May, 2010. It would be open to the jury to conclude that incident was after John knew GD was 14 years old.

[93] There is also evidence upon which a jury could reasonably conclude that there was sexual contact in the hotel room on December 16, 2010.

[94] On this record it would be open to a jury to conclude John knew GD was 14 in May, 2010 when TD found her exposing herself on the webcam, during the fragmented chat that appear to relate to November 25, 2010 and when he spent the night with GD on December 17, 2010. On the basis of any of those dates, the order for extradition could be supported on this element.

Is there sufficient evidence to order extradition that the internet communication was for the specific purpose of facilitating the offence of invitation to sexual touching?

[95] As the Supreme Court of Canada held in Legare, internet luring is an “inchoate” offence, a preparatory crime that captures otherwise legal conduct meant to culminate in the commission of a complete crime. The offence criminalizes conduct that precedes the commission of the sexual offence as well as even an attempt to complete it. at para. 25. Accordingly, for internet luring it is not essential to establish that sexual touching occurred.

[96] Here, there is evidence from which a jury could reasonably conclude the conduct occurred and that John communicated with GD for the purpose of facilitating the offence. First, in relation to the fragmented chat that appeared to relate to November 25, 2010, John invited GD to start viewing the webcam with the ensuing conversation including John telling her that there was no need to cover too much, to “cover less,” that she was wearing “cute undies,” “I’m so fucking horny,” “touch it a few more times, it looks so good,” and “you have a nice fucking body, I’d give anything to get right between those legs now.” Those excerpts provide ample evidence that the communications were for the purpose of facilitating the commission of invitation to sexual touching.

[97] There is also evidence that GD exposed herself for John on the internet which would also be for a sexual purpose.

[98] As regards the December 16, 2010, night in the hotel, whether there was intercourse is not an essential element. That GD told Ms. Iasonos that what they did in the hotel room was “as good as” sex, told her mother she needed a pregnancy test, and the December 1, 2010, chat about birth control could lead a jury to reasonably conclude that at least some sexual touching occurred in the hotel room. A jury would have to consider as well that GD told police after the comment to her mother that her concern was about getting pregnant from using a toilet, what “as good as” meant from a 14 year old as well as John’s and GD’s subsequent chats after the police involvement in which they both disavow anything sexual happened in the hotel room. Whether the jury drew the inference that sexual conduct occurred would be for the trier of fact to determine. There was evidence upon which that conclusion could be drawn.

[99] Turning next to the invitation to sexual touching count, to repeat the elements of the offence are:

i. GD was under the age of 16,

ii. that John invited, counselled or incited her to touch either the accused, the complainant or another person’s body, and

iii. the touching that the accused invited, counselled or incited was for a sexual purpose.

Is there sufficient evidence to order extradition that GD was under the age of 16?

[100] That GD was 13 when the communications started and turned 14 on April 13, 2010, is established in the Record of the Case and is not disputed. That there was evidence John knew she was 13 or 14 at the time of the offences has already been canvassed in the previous section and need not be repeated here.

Is there sufficient evidence upon which to order extradition that John invited, counselled or incited her to touch herself?

[101] As noted above, there is evidence upon which a properly instructed jury could reasonably conclude that John invited, counselled or incited GD to touch her body during the fragmented chat. By instructing her what to do on that chat, a jury could conclude he was telling her to her touch her body.

[102] There is also evidence from which it could be inferred that GD exposing herself nude to GD was at his invitation. While it is not determinative that he asked to see her in another chat without her pajamas could be considered.

[103] Finally, there would be evidence noted earlier from which it could be concluded that sexual conduct occurred in the hotel room that involved GD touching herself or John and that John incited, invited or counselled GD to do so.

Is there sufficient evidence upon which to order extradition that John invited, counselled or incited was for a sexual purpose?

[104] As indicated above, there is ample evidence from which a trier of fact could reasonably conclude that the touching was for a sexual purpose for John. For example, in the fragmented chat he instructed her to show more, cover less, touch it again, and he said that he was so horny and hard.

[105] The final area is whether there is evidence of identity.

Is there sufficient evidence upon which to order extradition that the John Little before the Court is “John,” the person sought?

[106] The UK is required to establish on a balance of probabilities that the person arrested in Canada is the John Little sought by the U.K. Republic of the Phillipines v. Pacificador (1993), 1993 3381 (ON CA), 14 O.R. (3d) 321 (C.A.) at para. 8.

[107] Section 37 of the Extradition Act provides:

The following are evidence that the person before the court is the person referred to in the order of arrest, the document that records the conviction or any other document that is presented in support of the request:

(a) the fact that the name of the person before the court is similar to the name that is in the documents submitted by the extradition partner; and

(b) the fact that the physical characteristics of the person before the court are similar to those evidenced in a photograph, fingerprint or other description of that person.

[108] I find that the following evidence provides sufficient evidence the person before the court is the person sought for committal for extradition:

i. GD told her mother and Ms. Iasonos that she was in an internet relationship with John Little who lived in Canada;

ii. GD said they had met on Chat Avenue and the examination of GD’s computer showed her accessing Chat Avenue and the Microsoft Live profile page of John Little;

iii. The person before the court had the same name, date of birth and address as John;

iv. The person before the court spent the night in the hotel in London with GD as counsel concedes;

v. John Little’s passport photograph and the Seneca College photo identification appear to be the same person;

vi. the communications between GD and John were using the same email address as the person before the court used to book his ticket to London; and

vii. the London airline ticket was purchased by a person with the same address as the John Little before the Court and with a Visa in the name of John Little at the same address.

[109] On this record, there is sufficient evidence the person before the court is John.

Additional Issues

[110] First, the Respondent raised the delay in seeking his extradition noting the offence is alleged to have occurred in 2010 and the Record of the Case is dated in August, 2014. Ms. Adams conceded that this argument is best saved for her review by the Minister if the Respondent’s committal for extradition is ordered. I agree. Whether it is more appropriately addressed to the Minister or to the courts in the UK if the Respondent is extradited will be for the Respondent to determine. It is not an issue that can be addressed on this record.

[111] Second, while the Respondent initially sought additional disclosure after the Record of the Case was filed, after Ms. Krivel filed her Supplemental Extradition Record that issue was not pursued.

Conclusion

[112] I am satisfied that the evidence is sufficient to order John Little’s committal for extradition.

DURNO, J.

Released: June 24, 2015

CITATION: R v. Little, 2015 ONSC 3991

COURT FILE NO.: 593/14

DATE: 20150624

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

THE ATTORNEY GENERAL OF CANADA on behalf of THE UNITED KINGDOM

Applicant/Requesting State

• and –

JOHN LITTLE A.K.A. JOHN THOMPSON

Respondent/Person Sought

REASONS FOR JUDGMENT

Durno J.

Released: June 24, 2015

[^1]: To “incite” means to encourage or urge someone by words or gestures or both, to do something. Watt’s Manual of Jury Instructions, at p. 675.

[^2]: While the Record of the Case includes this statement in relation to what was found on the print laptop, it also includes references to the fragmented chat in which John refers to the other party to the chat as GD in a conversation that can only be described as sexually explicit.