CITATION: R. v. Lambe, 2015 ONSC 4051

COURT FILE NO.: CRIMJ(P)136/13

DATE: 2015-06-30

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Andrea Lepchuk, for the Crown

– and –

ABDYL LAMBE

Ansar Farooq, for the Defendant

Defendant

HEARD: January 28, May 26, 27, 2015

REASONS FOR JUDGMENT

M.J. Donohue, J.:

THE CHARGES

1The defendant is charged with luring, via the internet, a person whom he believed to be under the age of 16, for the purpose of sexual touching, contrary to s. 172.1(1)(b) C.C.C.

Overview

2A personal ad was placed on Craigslist under the section of “Men Seeking Women”, wherein it stated “your age is not important”.

3An officer with the I.C.E. (“Internet Child Exploitation”) unit answered the ad using the name “Lisa” and was connected with an email user sattarlambe<_123@hotmail.com. The officer described himself as a 14 year old female. A lengthy email exchange ensued.

4Now, the defendant is charged with Internet luring of a person whom he believed to be under the age of 16, for the purpose of sexual touching.

5Seventy-six emails were sent from the Lambe Hotmail account. The writer asked that he be contacted at cell phone number, 647-283-1142. There were a number of phone calls between that cell phone and an undercover officer’s I.C.E. cell phone number, provided by “Lisa”.

6On July 14, 2010, per a pre-arranged meeting, the defendant Mr. Lambe attended at a McDonald’s in Mississauga to meet with the person, “Lisa”, described as 14 years old in the emails. The person he met with was an undercover police officer posing as a 14 year old girl. Mr. Lambe was arrested.

7Mr. Lambe gave a videotaped statement, ruled voluntary and admissible at trial, to police that afternoon. Mr. Lambe appeared to be calm, understanding the questions put to him, and providing spirited replies to the questions. Although some of his replies were not grammatically correct, I found that he understood English.

Issue for Trial

8Did Mr. Lambe write the offending emails to a person whose stated age was 14, or did Mr. Lambe discover these emails on his Hotmail account and attend the McDonald’s innocently looking for an explanation for what these emails were about?

THE EVIDENCE HEARD AT TRIAL

9At trial, Mr. Lambe testified that he discovered the emails on his computer but he did not write them. He testified that he most often used his gmail account and not his Hotmail account. He checked the Hotmail account for work purposes on occasion.

10Mr. Lambe testified that upon finding these emails he wanted to investigate what the emails were about. He decided to go to the meeting that had been arranged. He testified that he did call the young woman’s cell phone once to confirm that he would attend at McDonald’s.

11Mr. Lambe took a cab from his home in Toronto to Mississauga. With him he had a piece of paper on which was a list of five nearby hotels with their addresses and phone numbers. Four of the hotels had prices listed beside the hotel. Mr. Lambe testified that he planned to go to each hotel while he was in Mississauga to see about doing accounting work for each of them. The prices listed were the amount that he would charge them for his services.

12Also with him was a bag containing a box of condoms he had purchased that morning. He said they were for use in relations with his wife to prevent more children. As well, he had an unopened, cellophane-wrapped pink box containing Hugo Boss “Femme” perfume. He testified that this was for use by himself to smell good before going to look for work at the hotels.

13He had a shiny small blue gift bag with him, which he said was simply for his own use. He also had some chocolate bars for himself, in case he got hungry while out on his calls.

14In his wallet he had a little over $400, which he said was for family purchasing that day.

15Mr. Lambe testified that he had no intention of having physical contact with the young person he was arranging to see.

16Regarding Constable Santorro’s evidence that she had a cell phone conversation with a man who said he wanted to buy her a gift, Mr. Lambe denied that it was him on the phone. He also denied that he suggested over the phone that the two of them take a taxi to a hotel after meeting at McDonald’s.

17He reiterated that he was mentally upset when he was arrested and when he gave his statement to police that afternoon. He said he did not know what he was saying that day.

THE POSITION OF THE PARTIES

18The Crown submitted that there were too many coincidences between the emails and aspects of Mr. Lambe at the time he was arrested to accept that he was not the author of the emails. They argue that Mr. Lambe’s explanation of innocently attending the meeting is inconsistent with his statement to police and cannot be logically accepted.

19The Crown relies on the content of the emails to support the offence.

20The position of the Defence is that Mr. Lambe only discovered the emails the day before the meeting and that he attended the McDonald’s only to investigate what they were about.

21The Defence again sought to have the court find that Mr. Lambe did not understand or know what he was saying in the police statement due to his difficulties with the English language. The Defence noted that at trial, the court persuaded Mr. Lambe to accept the assistance of an Urdu interpreter.

ANALYSIS

22I am guided by the analysis set out by the Supreme Court of Canada in R. v. W.D., 1991 CanLII 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. Lambe can only be convicted if the rest of the evidence proves the charges beyond a reasonable doubt.

23Reviewing all the evidence, I found a number of inconsistencies with Mr. Lambe’s evidence that he did not write these emails and attended only to investigate them after discovering them. In sum, I find his evidence is not credible.

Credibility of Mr. Lambe

Emails

24Mr. Lambe’s evidence at trial was that he did not write these emails. This testimony is contradicted by his statements to the police when he admitted that he posted the Craigslist advertisement which directed answers to his email address. He confirmed that he met “Lisa” through the Internet. Although he testified that he did not know what he was saying to police while giving his statement, I found he gave sensible replies.

25For much of the voir dire and trial, Mr. Lambe did not use the interpreter services available. During his cross-examination it became more difficult for the court to understand his answers and so he was persuaded to use the interpreter. I did not find that he had the same difficulties when speaking with the police.

26Mr. Lambe confirmed at trial that his Hotmail email account was the address he used for jobs. He stated it was password protected and that none of his family used it.

27One of the emails to “Lisa” attached a photograph of a man. Mr. Lambe confirmed that it was a photograph of him at age 35.

28The emails repeatedly requested “Lisa” to contact the writer at Mr. Lambe’s personal cell phone number.

Meeting at McDonald’s

29Mr. Lambe’s evidence at trial was that he attended to investigate why the emails were being sent to him.

30This testimony is contradicted by his statement to police. He said he met with her, “just for fun. I thought because, let us go and see how for-how, how can I go and visit, help this girl, uh, help this lady, like that way. So I thought, first meeting, then we’ll decide what to do…”

Hotel List

31Mr. Lambe testified at trial that the list of hotels was to search for accounting work and the prices beside each, being $57, $63, $53, and $62, were what he planned to charge them.

32His statement to police contradicts this testimony, which was that the list was for cheap places for his friends to stay at when they visited.

Coincidences

33The person writing the emails reassured “Lisa” that he would take care she did not get pregnant. “Who say you will get pregnant I will take care of all your responsibility which will not effect any sort of pregnant, so don’t worry I am your best caretaker.”

34Mr. Lambe then showed up that morning with a freshly purchased box of condoms.

35The person writing the emails told “Lisa” that they would take a taxi to a nearby hotel and he would pay her $200 for sex, as agreed.

36Mr. Lambe then showed up that morning by taxi, carrying a list of nearby hotels and over $400 in cash, which would be sufficient for the costs discussed.

37The person writing the emails wrote two days before the meeting saying, “Thanks I bought for your costly perfume as our first gathering it cost more than $280 from Hugo Boss, don’t worry your money I will pay this my first token gift to you to keep you more happy…”.

38Mr. Lambe then appeared that morning with a small gift bag and a brand new pink bottle of ladies Hugo Boss perfume.

Cell Phone

39As noted above, the person writing the emails directed “Lisa” to call Mr. Lambe’s personal cell phone number. Mr. Lambe agreed this was his number. He testified that his cell phone was on his person all the time. He testified that no one else had access to it.

40Constable Santorro, the undercover officer who answered the I.C.E. cell phone number provided to the author of the emails, testified that on the calls it was always the same voice. Although she agreed she was no expert in accents, she believed the voice sounded either South Asian or East Indian.

41It is noted that Mr. Lambe’s first language is Urdu and he is originally from India.

42Phone records demonstrated that there were 12 occasions when Mr. Lambe’s cell phone called “Lisa’s” I.C.E. cell phone number.

Proof of the Crown’s Case

43Having rejected Mr. Lambe’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.

44The content of the emails was explicit. The defence concedes that if I find that Mr. Lambe wrote the emails, that the intention is evident in the emails.

45An example is June 26, 2010, “I am eagerly waiting for this Thursday and I will meet you, you make me crazy to meet you, do meet me and spoil my virginity which keep for you, I am honest sincere, sexy, tight my is big and thick which give good fun to you, do reply soon.”

46The luring offence is established within the emails themselves. I find Mr. Lambe believed he was emailing with a 14 year old; the emails were very sexual in nature as well as promising payment, protection and love. He promised they would lose their virginity to one another.

47In Mr. Lambe’s statement to police he protested that he was just going to meet “Lisa” “for fun” and that nothing had happened.

48The offence of luring via computer under s.172.1(1) was reviewed by the Supreme Court of Canada in R. v. Legare, 2009 SCC 56, [2009] S.C.J. No. 56 at para 25. It was noted that these sections create:

“an incipient or “inchoate” offence, that is, a preparatory crime that captures otherwise legal conduct meant to culminate in the commission of a completed crime. It criminalizes conduct that precedes the commission of the sexual offences to which it refers, and even an attempt to commit them. Nor, indeed, must the offender meet or intend to meet the victim with a view to committing any of the specified secondary offences. This is in keeping with Parliament’s objective to close the cyberspace door before the predator gets in to prey.”

49The court further cited Casey Hill, J. in R. v. Pengelley, [2009] O.J. No. 1682, 85 W.C.B. (2d) 793 (S.C.J.) at para 96:

“…computer communications may serve to sexualize or groom or trick a child toward being receptive to a sexual encounter, to cultivate a relationship of trust, or to undertake a process of relinquishing inhibitions, all with a view to advancing a plan or desire to physical sexual exploitation of a young person.”

50The Supreme Court summarized the three elements of s. 172.1(1)(c) which I am satisfied also apply to s. 172.1(1)(b). They are:

(1) intentional communication by computer - in this case, Mr. Lambe places the Craigslist advertisement with direction to his Hotmail account, writing dozens of emails;

(2) with a person whom the accused believes to be under 16 years of age - here, “Lisa” repeatedly stated she was 14 and provided a photograph to support this; and

(3) for the specific purpose of facilitating the commission of a specified secondary offence, that is, invitation to sexual touching with respect to the underage person - in this case the email evidence bears out in vivid detail what Mr. Lambe was seeking.

51The content of the emails and Mr. Lambe’s attendance at McDonald’s to meet this young woman establish beyond a reasonable doubt that he communicated by the Internet with intent on sexual touching of person believed to be under 16 years of age.

CONCLUSION

52Accordingly, I find the accused, Mr. Lambe, guilty.

M. J. Donohue, J.