CITATION: R. v. Tomasik, 2016 ONSC 3719
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Michael Tomasik
Accused
Philip Zylberberg and Julie Lefebvre, for the Crown
Darren Berlinguette, for the Accused
HEARD: October 6, 2015, December 3, 4, 7, 8 and 10 2015, April 5, 6, 7 and 14, 2016
DECISION1
HENNESSY J.
Order prohibiting disclosure of identities
1The question in this case is: When does a fantasy transform into an intention?
2Over a three week period, Mr. Tomasik had in person discussions and text communications with A2, a sex worker, during which he asked if she would assist him in abducting and sexually assaulting a young girl. A became alarmed and reported this to the police. From these communications, Mr. Tomasik is charged with two counts of counselling a person to commit criminal offenses, two counts of making arrangements to commit offenses on a person under the age of 16, one count of making child pornography and one count of distributing child pornography.
3In addition, Mr. Tomasik faces one further charge of making arrangements to commit the offense of sexual assault. This charge arises from a series of communications Mr. Tomasik had with an undercover police officer who was communicating in an “incest chat room” on a website.
4There are also two charges for breach of recognizance.
5The only issues in this case relate to Mr. Tomasik’s intention when he made these communications.
Facts
6In January and February 2014, Mr. Tomasik contacted A through an escort listing on Craig’s List. Mr. Tomasik and A then had a series of text communications and had two meetings. During these encounters, among other things, they discussed Mr. Tomasik’s interest in “getting a girl” and what he and A would do to and with this girl.
7Unbeknownst to Mr. Tomasik, A had shown the text messages to her employer. A and her employer discussed their own past experiences and agreed that they did not want to see a child experience what they had experienced. They decided that A should keep conversing with Mr. Tomasik in order to show the conversations to the police. A showed most of the text messages to her employer as they came in. The two of them often planned the response together.
8During their first encounter, responding to questions and invitations Mr. Tomasik had made, A told him about a girl she babysat. In reality, A did not babysit a girl but she had in her mind a girl she knew and she described this girl to Mr. Tomasik. Mr. Tomasik had asked for a physical description.
9A responded to Mr. Tomasik that she could possibly do what he asked but inquired about the money. They ultimately agreed on $500. Mr. Tomasik indicated that he wanted a little girl. A was mortified by this. She testified that she knew Mr. Tomasik was serious in his requests.
10A testified that during her meetings with Mr. Tomasik, he told her he had tried “pedo” with his cousins, that he had liked those experiences, and wanted to continue with them.
11In various text messages that followed the price negotiation, Mr. Tomasik described what he wanted to do to the child he hoped A would help him abduct. He asked A if she would help him commit sex acts on the child and if she would do the same things to the child. The text messages described various sex acts in crude and explicit terms.
12After their second encounter, Mr. Tomasik texted A and asked: Do you think we can pedo soon. Another text message came asking for her help to get a girl. A understood this to be the little girl they had previously discussed. The text messages show that Mr. Tomasik began gauging A’s comfort level with the plan to abduct and sexually assault the little girl described by A. He also referred to a possible Amber Alert. From this reference, A was again convinced that Mr. Tomasik was serious about going ahead with the plan. Mr. Tomasik then texted “how far would you go with me?”
13By this time, A was on her way to the police station where she made her report and showed the police her recent text message communications with Mr. Tomasik. A never received $500 from Mr. Tomasik.
14In cross-examination, A recalled that in one of their meetings, Mr. Tomasik had discussed his fantasy of having an incest family and making a baby for incest.
15A also agreed that her practice is that she does not provide services before she is paid for the requested services.
16She also agreed that in the conversations with Mr. Tomasik about the plan to get a girl, that she was playing along and had no intention of actually doing the things that were suggested. A explained that she “played along” to get and keep Mr. Tomasik’s confidence.
17A concluded her evidence by saying that she believed that when Mr. Tomasik told her he was a pedophile, that he was actually a pedophile in real life; that this was not a fantasy. A said that she believed that Mr. Tomasik wanted to make his fantasies a reality.
Excerpts from text messages between Mr. Tomasik and A: January and February 2014
Line #
Sender
Date sent dd/mm/yr
Time sent hh:mm:ss
Message
Line 279
T
22/01/2014
12:40:34 pm
Are u open minded
Line 281
T
22/01/2014
12:54:23 pm
Do u like pedophiles
Line 284
T
22/01/2014
12:56:08 pm
cause im one
Line 328
T
27/01/2014
10:05:15 am
Would u be able to get that girl this week
Line 329
A
27/01/2014
10:20:17 am
What would that be worth to u
Line 330
A
27/01/2014
11:35:57 am
[...] I can possibly do that. What would that be worth to you?
Line 331
T
27/01/2014
11:37:17 am
200 would u do stuff 2
Line 332
A
27/01/2014
11:39:03 am
Thats definetly not enough…
Line 333
T
27/01/2014
11:39:38 am
What would u suggest
Line 334
A
27/01/2014
11:39:54 am
500
Line 335
T
27/01/2014
11:40:34 am
Would u play to for that
Line 336
T
27/01/2014
11:42:01 am
What would u want me to do
Line 337
A
27/01/2014
11:44:32 am
I would help you, like I would do everything you ask
Line 338
T
27/01/2014
11:45:15 am
No matter what it was with her
Line 339
A
27/01/2014
11:45:18 am
But if we do this, I need to know that noone will find out
Line 340
T
27/01/2014
11:46:04 am
Well I wont tell how old again
Line 341
A
27/01/2014
11:49:18 am
I wont promiss that I would do anything I just dont know until im there, 5
Line 342
T
27/01/2014
11:50:11 am
Would u tell on me
Line 343
A
27/01/2014
11:50:55 am
Obviously not. Otherwise we wouldnt be talking
Line 344
T
27/01/2014
11:53:02
Ok want to do this after feb 5th im house sitting and it will be perfect place give u some time to set it up what would u let me do
Line 345
A
27/01/2014
11:55:31 am
Well you cant hurt her. Cant leave any physical proof we did anything… How do we know she wont talk?
Line 346
T
27/01/2014
11:56:57 am
Want to meet this week to talk about it
Line 347
A
27/01/2014
12:00:15 pm
If you want to do the same as last time
Line 349
T
27/01/2014
01:31:59 pm
It would be hot if u pedo with me
Line 350
A
27/01/2014
01:39:30 pm
I am willing, but you would have to direct me…. This will be my first time
Line 351
T
27/01/2014
01:42:44 pm
Ok but u want to do a pedo
Line 352
T
27/01/2014
01:44:00 pm
And we can blind fold her and make it a game
Line 353
T
27/01/2014
01:45:40 pm
Would you help (sexually explicit act described)
Line 354
A
27/01/2014
01:45:44 pm
Well honestly, I am in it for the money. As long as she doesnt say anything. The game thing is a good idea
Line 355
A
27/01/2014
01:47:06 pm
I would do anything as long as she doesnt get hurt. At the end of the day I am responsible for her.
Line 356
T
27/01/2014
01:49:09 pm
Not going to do nething to hurt can just do oral stuff and rub on her do u no a box you could play with
Line 358
T
27/01/2014
01:52:36 pm
What she look like and no and I meant if u knew a boy u could (sexually explicit act described) while i watch
Line 359
A
27/01/2014
01:53:36 pm
I get asked to babysit M, but I dont get a lot of notice. So should I text you the night before I babysit to set up? I wont be able to bring her anywhere. Would you be able to come to her place?
Line 361
T
27/01/2014
01:58:16 pm
I can go where ur babysitting as long as its just us or another girl who is into pedo text me when u know ur going what she look like
Line 365
T
27/01/2014
02:04:52 pm
Ok but not chunky have u seen her naked would it turn u on to see (sexually explicit act described)
Line 366
A
27/01/2014
02:05:45 pm
I dont know, never done it. But 500 bucks turns me on.
Line 367
A
27/01/2014
02:05:49 pm
Lol
Line 368
T
27/01/2014
02:07:13 pm
Lol i want u naked with her take her hand (sexually explicit act described)
Line 369
A
27/01/2014
02:08:28 pm
I dont know about (sexually explicit act described).. touching is as far as I will go
Line 370
T
27/01/2014
02:10:14 pm
(sexually explicit act described) lets pretend she is ur daughter
Line 371
A
27/01/2014
02:11:36 pm
Sorry I have to go back to work. Boss is yelling at me to get off the phone
Line 373
T
27/01/2014
02:12:30 pm
Ok just tell me u want to be a pedophile
Line 374
A
27/01/2014
02:13:33 pm
I dont know, I have never done it. This is too much. You are pushing to hard
Line 375
A
27/01/2014
02:14:37 pm
I am okay with setting up and helping, but I am not ready to say I want to be a pedo
Line 376
A
27/01/2014
02:14:41 pm
Gotta go
Line 377
T
27/01/2014
02:14:51 pm
Ok im backing off erase my messages and text me when u can
Line 378
T
27/01/2014
03:05:53 pm
Can I take photos of her to jerk off 2 later
Line 379
A
27/01/2014
04:15:22 pm
As long as her face isn’t in the pics. Lets talk more tomorrow. Still at work
Line 381
T
27/01/2014
06:20:05 pm
U off tomorrow how often do u babysit her
Line 382
T
27/01/2014
07:09:43 pm
Wanna make 40 after 9 tonite
Line 383
A
27/01/2014
07:51:16 pm
I am working tomorrow. I babysit maybe 2 times a month. Maybe 3 times. I might be able to meet at 9
Line 384
A
27/01/2014
08:40:53 pm
Still want to get together?
Line 385
T
27/01/2014
08:51:10 pm
Yea are u avail
Line 398
T
29/01/2014
09:38:55 am
Do u think we can pedo soon
Line 401
T
30/01/2014
02:58:19 pm
I want a girl help me get one 500
Line 402
A
30/01/2014
02:59:35 pm
Help you get one?
Line 403
T
30/01/2014
03:00:25 pm
Yea walking home or something
Line 404
A
30/01/2014
03:00:46 pm
Now?
Line 405
T
30/01/2014
03:02:36 pm
Yea or tomorrow a little one
Line 406
A
30/01/2014
03:02:57 pm
I want some money up front though
Line 407
A
30/01/2014
03:03:35 pm
I am working tomorrow
Line 408
T
30/01/2014
03:03:43 pm
Ok u ok with grabing one
Line 409
A
30/01/2014
03:04:58 pm
I am sure I can convince a kid to go in the car
Line 410
T
30/01/2014
03:05:16 pm
Pretend ur her mom or babysitter
Line 411
T
30/01/2014
03:06:16 pm
What will we do with it after
Line 412
A
30/01/2014
03:06:53 pm
Not too sure. Where would we go?
Line 414
T
31/01/2014
12:02:39 pm
Something came up and had to go out of town until next week we will get the kid then
Line 415
A
31/01/2014
12:03:30 pm
Okay
Line 416
T
31/01/2014
12:04:06 pm
How old we get?
Line 417
A
31/01/2014
12:06:41 pm
How ever old you want…
Line 419
T
31/01/2014
02:55:08 pm
They mite do an amber alert 4 the kid
Line 420
T
31/01/2014
03:15:04 pm
Would u be cool with that
Line 427
T
03/02/2014
09:34:13 am
How far u go with me
Line 428
T
03/02/2014
10:13:16 am
Hey u there
Line 429
A
03/02/2014
10:38:22 am
Hi Eric. Sorry at work. Will text you on my break
Line 430
T
03/02/2014
10:38:47 am
Okay
Defence evidence
18Mr. Tomasik acknowledged that he met A twice for oral sex. He also acknowledged that, on both occasions, he paid A $40 for her services. Mr. Tomasik explained that when he asked A whether she was open-minded, he was considering asking her if she would role play with him. He testified that during their first encounter he asked her to play daddy/daughter with him and that this scenario was part of their sexual conversation.
19Mr. Tomasik also stated that the scenario went further and they talked about having an incest family. Mr. Tomasik testified that he and A talked about what type of sexual acts they would do with and to their daughter if they had one together.
20Mr. Tomasik testified that A raised the fact that she babysat a girl who she could bring to play the role of their daughter. The conversations progressed to abducting a girl and performing sex acts on this girl. These conversations were happening while Mr. Tomasik was being stimulated. According to Mr. Tomasik, A asked what type of acts he would like to see her perform on the girl.
21In later text messages, when Mr. Tomasik asked “would you be able to get that girl this week?” he testified that he was continuing to role play while he was masturbating and watching porn at home.
22In the second encounter, Mr. Tomasik testified that he and A spoke again about having an incest family and what acts they would each do to their son or daughter if they had a child together. Following the second encounter, Mr. Tomasik tried to arrange a further meeting where he could continue the role play. He explained that he was at home alone, watching pornography and in a state of arousal when he referred to “grabbing a girl and getting a girl into the car”, and “driving around looking for a girl”.
23Mr. Tomasik testified that he was sure he used the words “role play” when he first met with A, and that he mentioned fantasy. He stated that he never believed A was ever going to get a child and that he knew it would not go any further than role playing.
24Mr. Tomasik contended in his defense that he never intended to follow through with any of his invitations, offers, or requests. He stated emphatically that he was simply fantasizing and or engaging in role play when he had these conversations. He denied having any intention to perform the described acts on a real child.
25Mr. Tomasik was arrested shortly after A reported their conversations to the police. He was released on conditions, including the condition that he not possess a device that could connect him to the internet.
26In September 2014, approximately 7 months after his arrest, Mr. Tomasik accessed the website Motherless.com. According to Mr. Tomasik, this is a pornography site for adults. It provides chat rooms for role playing. The chat rooms on this site are named for certain themes or topics of interest. Mr. Tomasik chose the incest chat room where he said he wanted to find people with whom to role play.
27He entered into a direct discussion with Constable Blackader who was working undercover. Constable Blackader identified herself as a submissive mom with a daughter and a stepdaughter. In those conversations, Mr. Tomasik asked about Constable Blackader’s daughter and discussed the idea of meeting the mom and daughter to have sex with them. Mr. Tomasik testified that while he was engaging in these online conversations he was at home alone, aroused and masturbating.
28The various written communications were before the court. The description of the sexual acts Mr. Tomasik described were graphic and repetitive. The evidence was very disturbing; the texts used very specific descriptions of desired sexual acts, body parts and the arousal these acts would trigger for Mr. Tomasik. Some would consider the acts described as child torture.
The offenses and the element of intent
29Mr. Tomasik is charged with counselling the offenses of abduction and sexual assault on a person under the age of 16; making arrangements by telecommunications to abduct and sexually assault minors; making and distributing child pornography and breaching his bail conditions by possessing and using a device that had access to the internet.
30Mr. Tomasik admitted to breaching his bail conditions. He also conceded identity with respect to all of the communications in issue. The only issues that remain are intention and whether the communications fall within the definition of the prohibited acts. The mens rea element of the different offenses differs. The questions are as follows:
Counselling offences: counts 1 and 2
31The counselling charges relate to the communications with A and allege that Mr. Tomasik counselled A to commit the offences of abduction (count 1) and sexual assault (count 2).
32In R. v. Hamilton, 2005 SCC 47, [2005] 2 S.C.R. 432 the Supreme Court of Canada set out the actus reus and the mens rea for counselling the commission of an offence. Fish J. said at para. 29:
…the actus reus for counselling is the deliberate encouragement or active inducement of the commission of a criminal offence. And the mens rea consists in nothing less than an accompanying intent or conscious disregard of the substantial and unjustified risk inherent in the counselling: that is, it must be shown that the accused either intended that the offence counselled be committed or knowingly counselled the commission of the offence while aware of the unjustified risk that the offence counselled was in fact likely to be committed as a result of the accused’s conduct.
33In Hamilton, the Supreme Court resisted the temptation to depart from the relatively demanding standard of mens rea for counselling offences: See Hamilton, at para 30.
34In this case, the Crown did not allege risk, so the focus of the Crown’s burden is on the need to establish beyond a reasonable doubt Mr. Tomasik’s subjective intention that the offences counselled (abduction and sexual assault of a person under the age of 16) be committed.
35In other words, the onus is on the Crown to establish beyond a reasonable doubt that, at the time of the communications, Mr. Tomasik intended that the counselled acts take place; that Mr. Tomasik believed A would actually assist him in abducting a girl child and sexually assault the child, and that what he described was actually what he desired to have A do.
36In R. v. Jeffers, 2012 ONCA 1, 29 O.A.C. 383 at para 26, the Ontario Court of Appeal said that I must approach this analysis from the perspective of the ordinary, reasonable person, looking at the context and circumstances in which the text messages were written and sent. That analysis requires an inquiry into Mr. Tomasik’s state of mind, not only from Mr. Tomasik’s direct evidence but also from the circumstantial evidence that told of his intention. The analysis must also take into account Mr. Tomasik’s explanation of what he intended to convey: see Jeffers, at para 37.
Making arrangements to commit sexual offence against a child: counts 3, 4 and 9
37Mr. Tomasik is charged under s. 172.2(1)(b) in connection with the text messages he exchanged with A and the internet communications he had with Constable Blackader. The section creates an inchoate offense of agreeing or making an arrangement to commit the offences of abduction or sexual assault of a person under the age of 16.
38The focus is on the conduct preceding the offense. In this case, there is no issue that the subject communications were made by means of telecommunications and the discussions involved a listed offence, i.e., s. 271 sexual assault on a child under the age of 16 years. The sole issue is whether the communications amount to agreeing with a person or making an arrangement, which includes an element of intention.
39It is no defense that the person with whom the accused agreed or made the arrangement was a peace officer (s. 172.2(5)), or that the “child” did not exist.
40The Supreme Court of Canada considered this section in R. v. Legare, 2009 SCC 56, [2009] 3 S.C.R. 551 where the court noted at paragraphs 25 and 29 that the sections created an inchoate offence that is a preparatory crime that captures otherwise legal conduct meant to culminate in the commission of a completed crime. The section criminalizes the conduct that precedes the commission of the sexual offence. The focus of the section is on the intention of the accused at the time of the communication.
41In the context of a discussion about s. 172.2(1)(c), the court found that the intention of the accused must be determined subjectively: see Legare, at paras. 29-32. The requirement is no different for s. 172.2(1)(b). The accused must be shown to have engaged in the prohibited communication with the specific intent of arranging or facilitating the commission of a specified secondary offence, in this case, the sexual assault and the abduction of a person under the age of 16.
42To paraphrase from Fish J. in Legare at para. 42, what matters is whether the evidence, as a whole, establishes beyond a reasonable doubt that the accused, by means of telecommunications with another person, agreed or came to an arrangement to commit a sexual assault or to abduct a person under the age of 16.
43The mens rea required is that Mr. Tomasik intended to conclude an arrangement; that Mr. Tomasik came to an agreement with A to abduct and sexually assault a child and an agreement with Constable Blackader to sexually assault a child. The Crown does not have to show that Mr. Tomasik had an intention that the plan be put into effect nor must the Crown prove that A intended to follow through with the plan. The burden on the Crown in “making arrangements” offenses is not as high as for the counselling offenses.
Making and distributing child pornography: counts 5 and 6
44The mens rea required for these offenses that relate to Mr. Tomasik’s communications with A require that the Crown prove beyond a reasonable doubt that Mr. Tomasik meant to type the words on the screen and that he meant to click the “send” button.
45The test for whether the content of the communications meets the statutory definition of child pornography was set out at paragraph 56 in R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45. In Sharpe, the Supreme Court of Canada established that the threshold was whether “the material, viewed objectively, [is] seen as “actively inducing” or encouraging the described offences with children.”
46At paragraphs 2 and 3 in R v. Beattie, 2005 CanLII 10273 (ON CA) leave to appeal dismissed [2005] S.C.C.A. No. 319, the Ontario Court of Appeal relied on Sharpe to find that the Crown is required to prove that the written material, “viewed objectively”, actively induces or encourages sexual activity with children by sending the message that “sex with children can and should be pursued.” And further, that the written material normalizes and encourages sexual activity with children.
47The Crown submits that no similar fact evidence could be helpful in the analysis of counts 5 and 6.
Similar Fact Evidence
48In support of their argument that Mr. Tomasik’s conduct meets the mens rea test for the offences of counselling and arranging to abduct and sexually assault a person under the age of 16, the Crown relied on the evidence admitted pursuant to my decision on a pre-trial motion dealing with similar fact evidence. The admitted evidence came from three sources: B, C, and Constable Howe’s.
49On the issue of similar fact evidence, the defense argued that the mere fact that Mr. Tomasik made similar requests to three sex workers to help him abduct a child and sexually assault that child does not necessarily demonstrate that his intentions were “more settled”. There is no evidence that Mr. Tomasik ever attempted to abduct a child nor did he undertake any steps towards abducting a child.
50The defense also argued that Mr. Tomasik’s guilty plea for distributing child pornography could not be used to support his intent for any of the charges.
51At paragraphs 42 and 53 to 55 of its decision in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, the Supreme Court of Canada established that similar fact evidence is presumptively inadmissible and that the onus is on the prosecution to satisfy the trial judge, on a balance of probabilities, that in the context of the particular case the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception. The inferences sought to be drawn must accord with common sense, intuitive notions of probability and the unlikelihood of coincidence.
52Constable Howe’s evidence was in the form of four internet chats between him and Mr. Tomasik that formed part of the admitted facts on a 2007 plea of guilt to distributing child pornography. The evidence of Constable Howe is very similar to the evidence of Constable Blackader. The communications with Constable Howe, set out Mr. Tomasik’s discussions with women about providing a girl for sex; the woman in the conversation is asked about providing either a daughter or a young child. The Crown submits that this evidence provides important context on the analysis of intent for A and B’s evidence. I find that Constable Howe’s similar fact evidence strengthens the case of the intention to counsel and arrange for the sexual assault of a girl.
53B and C were both sex trade workers who communicated with Mr. Tomasik. B and C both testified that Mr. Tomasik had asked for their assistance to abduct a child for purposes of sexually assaulting the child. B had text message conversations with Mr. Tomasik and met him in person two or three times. C gave viva voce evidence with respect to her communications and meetings with Mr. Tomasik. C did not have any telecommunication evidence.
54I find that B’s evidence of Mr. Tomasik’s suggestions, invitations, and requests are very similar to conversations he had with A in theme, language, target, and purpose. B testified that Mr. Tomasik specifically asked her on their first date if she would help him grab a child from the street. She understood that the purpose of “grabbing” a child was to sexually assault the child. The similar fact evidence also assist me in considering Mr. Tomasik’s intention during his communications with A.
B’s evidence
55B was working as an escort and was 17 years old when she first met Mr. Tomasik. She testified that early in their first meeting Mr. Tomasik told her that he raped his niece. She also recalled that at the first meeting Mr. Tomasik had watched child pornography videos and that on the ride home he asked if she would help him grab a child from the street. B testified that she understood from the context of the conversation that the purpose was to rape that child. She stated that she was scared and did not want to be part of this scheme. B testified that she politely declined. B also testified that, on a later date, Mr. Tomasik offered to pay her if she agreed to engage in sexual acts with his six-year-old niece and his niece’s mother.
56B did not go to the police for almost a year after her last encounter with Mr. Tomasik. She testified that she thought that the police would not do anything. B stated that she does not know A and has never communicated directly or indirectly with A.
57In cross-examination, B admitted that Mr. Tomasik has asked her to dress up so she would appear to be younger and that Mr. Tomasik had asked her to send him a photo of herself holding a sign that would read, “I love my pedo daddy.” She acknowledged that when she went to the police she had a drug problem and that she was on and off the methadone program.
Excerpts from text messages between Mr. Tomasik and B: October and November 2013
Line #
Sender
Date sent dd/mm/yr
Time sent hh:mm:ss
Message
Line 3
B
16/10/2013
01:17:17 pm
Lol well until u find younger but ill buy kid clothes and look younger next time no makeup n wear pink hehe
Line 7
B
16/10/2013
02:20:40 pm
I don’t care if u do younger I wouldn’t participate in one tho if their super young it’s too risky and the risk scares the hell out of me 10 years in the pen scary lol
Line 8
T
16/10/2013
02:20:48 pm
Any idea
Line 9
B
16/10/2013
02:21:06 pm
17 maybe
Line 10
T
16/10/2013
02:26:22 pm
13 14
Line 41
T
11/11/2013
07:03:52 pm
Want to do something tomorrow
Line 45
T
11/11/2013
07:11:10 pm
Can I bring my laptop
Line 46
B
11/11/2013
07:13:47 pm
Please do but we have to go to this 40$ hotel cuz my bf is home
Line 52
T
11/11/2013
07:21:04 pm
If we do that can I bring u know who
Line 53
B
11/11/2013
07:21:41 pm
No I think that is way to risky that scares me to be involved
Line 54
T
11/11/2013
07:22:34 pm
Ok it would be so hot and u just watch
Line 55
B
11/11/2013
07:23:12 pm
Ya but that’s still te years in the pen
Line 56
T
11/11/2013
07:23:46 pm
No one will no
Line 76
T
12/11/2013
03:20:52 pm
Can I take pics of u no face
Line 77
B
12/11/2013
03:21:05 pm
Ya for sure
Line 78
T
12/11/2013
3:22:38 pm
Ur body looking at pedo porn and make signs
C’s Evidence
58I have not included any reference to similar fact witness C in my analysis of the evidence. In many ways, C’s evidence was stronger than A and B’s evidence in that she testified that Mr. Tomasik actually drove her around to look for a child. Ultimately though, I find C’s evidence unnecessary. She did have reliability issues stemming from her significant drug habit and the length of time since the events. Although her evidence met the test for admission under the Handy test, there was no need to rely on C’s similar fact evidence for findings with respect to counts involving A.
59This is not to say that I found C’s evidence to be completely unreliable. Her evidence bears many hallmarks of reliability and credibility, but it does not approach the strength of A and B’s evidence with respect to Mr. Tomasik’s conduct with sex workers.
Michael Tomasik’s Evidence
60The issue of intent requires a full consideration of the evidence of the accused and his contention that the communications with A and Constable Blackader were part of a fantasy in which he engaged for sexual arousal. He stated categorically that he did not intend to abduct or sexually assault a child. He was merely engaging in role playing with willing adults, either sex trade workers or participants in an internet chat room.
61Mr. Tomasik’s credibility on the question of intention versus fantasy is squarely in issue. His exculpatory explanation for his text communications conflicts with the Crown theory and in some parts conflicts with the Crown evidence. I must decide whether to accept the accused’s version of events and his mindset at the time he made the communications or whether it leaves me with a reasonable doubt. To do this I must take into account the evidence of the accused and all of the other evidence, which favors the accused.
62This analysis is not a contest between differing versions of events. The text and internet communications, which form a large part of the basis of the Crown’s case, are admitted. There are very few conflicts in what happened during the live interactions between Mr. Tomasik and either A or B. Mr. Tomasik disputes a great deal of what C said as she described their interactions.
63Where Mr. Tomasik says that he was merely role playing in his communications with A (B The similar fact witness) and Constable Blackader, I do not accept his evidence, nor does it raise a reasonable doubt that he meant to counsel and arrange for the commission of abduction and sexual assaults on a child.
64I come to this conclusion from the internal and external inconsistencies in Mr. Tomasik’s evidence and the rote, repeated denials he made while giving evidence. I note the following examples from Mr. Tomasik’s explanatory evidence with respect to his text messages and conversations with A and similar fact witness B:
Re: A
Mr. Tomasik testified that when he asked A if she liked pedophiles it was to assess how open minded she was for future role playing.
Mr. Tomasik testified that he texted “because I am one”, again to assess how open minded A was and whether she was willing to meet someone who might be more open minded than she was.
Within the first meeting and during the sexual service, Mr. Tomasik testified that he asked A to do a daddy/daughter role play and the conversation progressed to “if we had a daughter”, and what types of sexual acts we would do if we had a daughter together and had an incest style family.
Mr. Tomasik testified that A suggested she could bring the girl she was babysitting to play the role of the daughter.
Mr. Tomasik testified that the conversation slipped into abduction of a girl to pretending the girl was a daughter in an incest style family and that both Mr. Tomasik and A would perform sex acts on their daughter.
Mr. Tomasik testified that A asked if Mr. Tomasik would like to watch her perform various sex acts on the girl.
At line 328 when Mr. Tomasik texted: “would u be able to get that girl this week”, he explained that he was back into role playing and referencing the girl A had mentioned she babysat.
Regarding lines 331-335, Mr. Tomasik explained that he sent these text messages to determine the fee and scope of the abduction and sexual assault when he was in an aroused state and wanted to continue the role playing they had done in the vehicle.
Line 328-390 lead up to the second encounter between Mr. Tomasik and A, during which they discussed the type of sex acts they would do if they had a daughter or a son together.
Line 398, “do u think we can pedo soon” was explained as a request to role play again and talk about what they would do in their incest family.
Mr. Tomasik explained that when he texted lines 401-409 asking for help to get a girl walking home, now or tomorrow he was role playing while he was home alone masturbating.
After Mr. Tomasik was arrested on charges arising from his communications with A, he was released on the condition that he not possess or access the internet. He breached this term by accessing the Motherless.com website through a PlayStation 3 where he had a conversation with Constable Blackader.
Mr. Tomasik testified that the site is primarily an adult website but that he would go to the incest chat room to talk about daddy/daughter incest.
Mr. Tomasik explained that his conversations with Constable Blackader were during a time when he was alone, masturbating and aroused.
Re: B (similar fact witness)
Mr. Tomasik testified that he asked B to role play a 14-15 year old, which B did.
On the second meeting, B came in a schoolgirl skirt and they did a bit of role playing while having intercourse. Mr. Tomasik denies there was any talk of children (younger than 14) during the first two meetings.
Prior to the third visit, Mr. Tomasik testified that he was role playing when he asked B if she wanted Mr. Tomasik’s niece to come with them to participate in the sex acts.
Mr. Tomasik explained that he does not have a niece, that he said these things as part of a role playing, and that he was aroused at the time he sent these text messages.
The third meeting was in a motel room. Mr. Tomasik brought his laptop and watched adult pornography. He denied he watched child pornography. Mr. Tomasik said that he and B were watching videos from the Motherless.com website, which requires users to be over the age of 18 years.
Mr. Tomasik testified that B chose the videos they watched.
Mr. Tomasik testified that the only discussion of children was the reference to his niece.
Mr. Tomasik testified that he ended his contact with B because she charged a high amount of money for her services and he was starting to spend a lot of time with his new partner.
Analysis
65The problem with Mr. Tomasik’s repeated assertion that his interests were with adult women role playing as girls, as in daddy/daughter role playing, is that the assertions are not borne out by the actual words of the text messages.
Counselling and arranging to abduct a child under the age of 16 with A (counts 1, 2, 5 and 6)
Specific girl, place, time, and price
66Lines 328 to 393 of the text messages exchanged between Mr. Tomasik and A demonstrate that, on January 27, 2014, Mr. Tomasik made requests that A help him abduct and sexually assault a child. The requests are very specific; they are about a real girl, a real place, a real date, and for a set price.
Re: the girl
67The conversation starts when Mr. Tomasik sent the following text message to A, “would u be able to get that girl this week”.
Re: the price
68When asked by A how much he would be willing to pay, Mr. Tomasik replies at line 331, “200 would you do stuff 2”. At line 335, when A suggests a much higher price than Mr. Tomasik’s first offer, there is a concrete question, “would u play to for that”. This question is couched in language the parties had used before, i.e. “pay for play” which means, sex for money.
Re: the date and the time
69At line 344, Mr. Tomasik writes, “Ok want to do this after feb 5th im house sitting and will be perfect place give u some time to set it up what would you let me do.” The defence admitted the fact that Mr. Tomasik’s parents were, indeed, going to be away as of February 5th and that the house would otherwise be empty.
70In another conversation, at line 401, Mr. Tomasik shows impatience and writes “I want a girl help me get one 500”. He is referring to the previously agreed price for A’s participation. A asks for clarification and Mr. Tomasik provides a concrete answer in time and approach: Yea walking home or something”, “Yea or tomorrow a little one”.
Re: girl and alternate place
71Further in their conversation, at lines 355 and 359, A says, “I would do anything as long as she doesn’t get hurt. At the end of the day, I am responsible for her […] I get asked to babysit M, but I don’t get a lot of notice. So should I text you the night before I babysit to set up? I wont be able to bring her anywhere. Would you be able to come to her place?” to which Mr. Tomasik replies at line 361 “I can go where ur babysitting as long as its just us or another girl who is into pedo text me when u know ur going what she look like.”
The agreement
72Ultimately, at line 375, A agreed to a limited role in the venture.
73On a plain reading of these text messages, an agreement had been arranged between Mr. Tomasik and A: Mr. Tomasik was going to pay A $500 to help him abduct and sexually assault M either at his parents’ house after February 5th, 2014, or in M’s home on an evening where A was babysitting M.
Role playing explanation
74The gist of Mr. Tomasik’s defense is that the text message conversations were a continuance of the role playing he and A had engaged in during their first meeting. This explanation is not credible. It is inconsistent with his experience with sex workers and the sex workers evidence of how they dealt with customers. First, sex workers are in the business of selling their services and are paid before they deliver the services. Second, role playing is considered a service. The text messages show nothing more than a customer looking to buy services. The question is price and what service.
Re: Agreement to role play
75Mr. Tomasik’s explanation is that A was still role playing when she negotiated pricing. But to a reasonable person, if A is role playing, she is role playing a sex worker who gets money before she provides services. This is supported by A’s response to Mr. Tomasik’s text messages at line 406 when she writes, “I want some money up front though.”
76Mr. Tomasik specifically tried to negotiate the scope of the engagement once the price of $500 was agreed. He asked, at line 335, whether A would “play”. Mr. Tomasik is not asking if A will role play any particular scenario or character. The text does not say, nor do any of the text messages say, “Let’s pretend you are a little girl. Shall we role-play daughter/daddy? Let’s pretend we have a daughter. Talk to me like you are a little girl.” He wants A to participate actively when they get the girl.
77Nothing in the text messages indicate that Mr. Tomasik and A had an agreement that the messages were sent in a role playing context. A was not remunerated for any of the text message conversations she had with Mr. Tomasik; she was not in the midst of providing a service to Mr. Tomasik for free or for a fee.
Conclusion on role playing
78I find that Mr. Tomasik’s communications have nothing to do with role playing with an adult woman. The language is clear on its face. His interest is in obtaining a girl for his sexual gratification. Mr. Tomasik’s communications with A, B, and Constable Blackader show that, ideally, the girl would be part of an incest family and the girl’s mother would be a voluntary participant. Without an actual daughter, he proposes first his niece, then the child A babysits, and finally a girl grabbed off the street. This girl, he proposed, would be sexually assaulted while he fantasized that she was his daughter. That incestual relationship may be something Mr. Tomasik cannot create or facilitate. On that one part of his plan, he will have to be content to fantasize.
Repeated requests and overcoming A’s fears and resistance
79The evidence shows that Mr. Tomasik worked diligently to keep A’s interest in the proposed venture notwithstanding her fear and reluctance once he became insistent and specific. At lines 339, 345, 354, 355, 374, and 375, A expressed reluctance to go forward with this plan and a fear of the risk of being discovered, her concern that the girl not be hurt, or her resistance to Mr. Tomasik’s repeated suggestions. These responses would not lead a reasonable person to believe that A is role playing. It sounds more as if A is reacting to someone trying to talk her into serious criminal conduct that is outside the services she regularly provides. Mr. Tomasik testified that this resistance was part of the role playing although finally he agreed that A did not seem very engaged with his plan at this point.
Other issues arising in Mr. Tomasik’s evidence
80The proposal to B about the niece is somewhat confusing in light of the fact that Mr. Tomasik does not have a niece. However, this does not weaken the impact of B’s evidence.
81Mr. Tomasik’s explanation suggests that being in an aroused state when he communicates somehow turns the communications into role playing. I am left to conclude that the explanation was meant to be that if Mr. Tomasik is in an aroused state, it necessarily follows that he is speaking fantasy language. The problem with this explanation is that it is not grounded in any other evidence. These sex workers are not inexperienced. They have both been in the business a number of years. They both testified that they understood and willingly role played either with Mr. Tomasik or others. They knew what daddy/daughter role playing sounded like. In these communications A, and similarly B, testified that they did not understand there was any role play involved in Mr. Tomasik’s request for assistance in abducting a girl off the street to sexually assault her. Both, A and B were convinced that Mr. Tomasik was serious. They went to the police independently of one another and they did not know one another.
82Mr. Tomasik testified that when he accessed the motherless.com website in breach of his recognizance it was one of the ways he dealt with his pain of not being successful and the stress, but that it was not the way he satisfied his sexual needs. This court does not need to engage in that analysis. I have no doubt there is pain and shame here and I have compassion for the suffering. However, the Criminal Code does not require that the alleged acts be for sexual gratification. The only question here is whether there is intent to counsel and encourage criminal behavior on a child and intent to make an arrangement to commit a criminal offence against a child.
83When Mr. Tomasik was asked whether he was watching child pornography with B or when he was text messaging A, he specifically denied this. He answered a number of times that he was watching adult pornography on Motherless.com, a site where everyone is over 18, that is what is mandated. This makes no sense for a person who says that when aroused, he wants to talk about sex with children or for a person who identifies himself to sex workers as a pedophile. From this answer, I find that Mr. Tomasik is prepared to say anything, no matter how inconsistent with the other facts, to escape criminal liability, where he knows his conduct breaches the Criminal Code. He is not credible on these denials.
84In another series of questions relating to child pornography videos downloaded from a drop box, Mr. Tomasik ultimately conceded that he watched child pornography from other sites but only in the privacy of his own home. He steadfastly maintained that he had not watched child pornography with B. This is in direct conflict with B’s evidence of what occurred on their first meeting.
85Further, when Mr. Tomasik blithely says that the site motherless.com does not allow children on the site, this is in complete contradiction to what he knows from his 2007 plea where he was convicted of conversing with an alleged adolescent (actually an undercover officer). It also conflicts with his admission that he downloaded child pornography videos from a drop box.
Findings
Counselling a person to commit the indictable offences of abduction and sexual assault (counts 1, 2)
86The communications and interactions with B take place over a four to five week period in October and November 2013. The communications with A take place over a three week period in January and February 2014. On their own, the communications with A strongly suggest Mr. Tomasik’s intention to actively encourage, cajole and persuade A to abduct a child and participate in sexually assaulting the child. The role playing explanation is implausible and not credible on the evidence of A, and inconsistent with the actual words in their context.
87The communications with A are clear. They are specific, insistent, repeated and they are grounded in time and place. Mr. Tomasik thought through what needed to be done to turn his desire into a reality. He solicited the participation of a sex worker and articulated the clear steps to be taken to “get him a girl”. He encouraged A, notwithstanding the high risk of discovery. He seemed prepared to face the high risk even though he had a related record and A needed more convincing. Mr. Tomasik moved along the continuum from fantasy and desire to settled intention when he actively solicited and encouraged A to commit the crimes. The communications with A and the effort to draw her into his scheme, demonstrated an act of will distinguishing a flight of fantasy from a settled intention.
88A, with all of her experience in the sex trade, believed that Mr. Tomasik wanted her to go through with the plan. B’s evidence only strengthens an already strong argument that, notwithstanding his evidence, Mr. Tomasik subjectively intended that first B and then A follow through on the proposal to grab a child and participate in the sexual assaults. The approach to both A and B women was strikingly similar.
89After B declined to participate in the proposed plan, Mr. Tomasik approached A and within the first meeting moved directly to a conversation with her setting out the parameters of sex with them together and a child. The only complication for Mr. Tomasik was getting a child. He could not do this on his own and needed the assistance of a woman. He believed a sex trade worker would help him.
90The context and circumstances with A, when looked at by a reasonable and ordinary person, brings one to the inevitable conclusion that Mr. Tomasik subjectively meant to encourage and counsel A, and before her B, to help him “grab” and or sexually assault a child. While B in her words politely declined the request, A went to the police with the request. One is left with the alarming thought that but for the resistance or refusal of A and B that Mr. Tomasik might have been able to succeed with his plan.
Making arrangements with A to abduct and sexually assault a child under the age of 16 (counts 3, 4)
91The making arrangements charges require only that the evidence prove that Mr. Tomasik communicated via telecommunications with a person and made an arrangement to assault and abduct a child under the age of 16. I reject the evidence of Mr. Tomasik when he says he was only role playing. I am convinced beyond a reasonable doubt that he intended to conclude arrangements with A. As A said, Mr. Tomasik pushed hard to get her to agree. They ultimately came to an arrangement on his proposal. A told Mr. Tomasik that she would abduct and assault a young girl, within certain limits, for the price of $500.
Making arrangements with Constable Blackader to sexually assault a child under the age of 16 (count 9)
92Within the chat room communication with Constable Blackader, Constable Blackader told Mr. Tomasik that she had a 10-year-old daughter and was interested in teaching her daughter to enjoy sex. Mr. Tomasik responded immediately with direct questions about Constable Blackader’s willingness to watch him penetrate her daughter and asked, “what do you want to arrange?” He then said, “Maybe we can chat for a while then end up meeting. What would you like to do if things work out?”
93I do not find the evidence compelling on the question of whether Mr. Tomasik intended to conclude an arrangement with Constable Blackader. He certainly started the chats by talking graphically about what he would like to do sexually with Constable Blackader’s daughter, however the chats ended before Mr. Tomasik made any specific proposal about meeting up. The final comments suggest that Mr. Tomasik and Constable Blackader chat before meeting. I am not convinced that the evidence shows the specific intent to conclude an arrangement to commit sexual assault.
94I am not assisted by Constable Howe’s similar fact evidence given in 2007. Although the contacts have a high degree of similarity at the beginning of the communications, with Constable Blackader the plans were much more advanced, i.e. Mr. Tomasik and Constable Howe had discussions that are more specific on an arrangement. Although concluding an arrangement is an inchoate offence, focused on the preparatory conduct, I find that the evidence in this case was still too preliminary to meet the definition of the offence.
Making and transmitting child pornography (counts 5, 6)
95The evidence establishes beyond a reasonable doubt that the communications actively encouraged sexual offences against children. There is no defense of artistic merit. Viewed objectively, these words, phrases, questions, and descriptions strongly encouraged A to engage in sexual activity with children. There is no doubt that the words bear the interpretation that in an objective sense Mr. Tomasik was communicating that sex with children can and should be pursued and encouraged. There is no need to resort to any similar fact evidence in assessing the evidence on these counts.
Failure to comply with conditions of his recognizance: counts 7, 8
96Mr. Tomasik conceded the allegations of breach of his recognizance.
Summary of findings
97There shall be findings of guilt on:
a. Counts 1, 2 counselling a person to commit the indictable offences of abduction and sexual assault
b. Counts 3, 4 making arrangements to commit a sexual assault on a person who was under the age of 16 and to abduct a person under the age of 16.
c. Counts 5, 6 making and distributing child pornography
98Counts 7, 8 pertaining to the breach of recognizance were conceded.
99There will be an acquittal on count 9, making arrangements to commit a sexual assault on a person who was under the age of 16 vis-à-vis Constable Blackader.
The Honourable Madam Justice Patricia C. Hennessy
Released: June 10, 2016
CITATION: R. v. Tomasik, 2016 ONSC 3719
COURT FILE NO.: 667/14
DATE: 2016-06-10
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Michael Tomasik
ORAL DECISION
Hennessy J.
Released: June 10, 2016
1This is an edited version of a decision delivered orally in open court on June 7, 2016.
2Three women gave evidence with respect to their communications and dealings with Mr. Tomasik. All of their dealings with him were done in the context of their work in the sex trade. The women deserve to have their privacy protected and I made an order pursuant to s. 486.4(1)(a)(i) of the Criminal Code prohibiting the disclosure of their identity or of any other information which would identify them. I refer to them throughout this decision as A, B and C.
Footnotes
- [1] This is an edited version of a decision delivered orally in open court on June 7, 2016.
- [2] Three women gave evidence with respect to their communications and dealings with Mr. Tomasik. All of their dealings with him were done in the context of their work in the sex trade. The women deserve to have their privacy protected and I made an order pursuant to s. 486.4(1)(a)(i) of the Criminal Code prohibiting the disclosure of their identity or of any other information which would identify them. I refer to them throughout this decision as A, B and C.