CITATION: R. v. Harris, 2016 ONSC 6283
CHATHAM COURT FILE NO.: 2897/16
DELIVERED ORALLY: November 7, 2016 DATE: 20161107
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Michael Wayne Harris
James Boonstra, for the Crown
Paul Watson, for the Accused
HEARD: September 12, 13, 14 & 15, 2016
POMERANCE J.
1Michael Wayne Harris is charged with luring a child, contrary to s. 172.1 of the Criminal Code[1], and making sexually explicit material available to a child, contrary to s. 171.1 of the Criminal Code.
2In November 2014, the accused posted advertisements on Craigslist. In one, he was looking for “a young girl” to “suck my cock”. In the other, he was looking for “a young slut that has a thing for old guys”. An undercover officer responded to the ads, posing as a fictitious 14 year old girl named “Katie”. There followed a string of communications between the accused and “Katie”, in which the accused explicitly proposed sexual activity. The communications culminated in an arranged meeting that was to take place behind the library in Chatham. The accused was arrested when he attended at the designated meeting place.
3The Crown relies on the communications to argue that the elements of the offences have been made out. It is undisputed that the accused sent sexually explicit messages, over the computer, to a person claiming to be a 14 year old girl. These communications are, on their face, designed to facilitate sexual contact between the accused and Katie, a young person.
4The accused denies the commission of the offence. He testified at trial and offered an exculpatory account. He claimed that he never believed Katie to be a 14 year old girl. He says that he was convinced, from the outset, that Katie was a middle aged man posing as a 14 year old girl. The accused further testified that he never intended to engage in sexual activity with Katie, as he believed Katie to be a middle aged man.
5I have carefully considered the accused’s testimony, and have applied the well-known paradigm from R. v. W.(D.)[2]. I have considered whether the accused’s testimony should be accepted, or alternatively, whether it raises a reasonable doubt. I have considered whether, even if the accused has not raised a reasonable doubt, the evidence, considered as a whole, proves the essential elements of the crime beyond a reasonable doubt.
6I find that the accused’s testimony is neither worthy of belief, nor capable of raising a reasonable doubt. It appears to me that the accused set out to reconstruct history in an effort to escape criminal liability. His account was contrived and implausible. His explanations defy credulity. His testimony cannot be reconciled with what he did and said at the time of the offence.
7I find that the evidence led by the Crown proves the essential elements of the offences beyond a reasonable doubt.
8I will explain these conclusions in the reasons that follow.
THE EVIDENCE
The Advertisements
9The accused posted two advertisements on Craigslist which were entered into evidence at the trial. The first was titled “Any Young girls???-m4w (Chatham)”. It read as follows:
“I’m in my 50’s and very interested in meeting a young girl for fun. We don’t have to fuck, but I want you to at least suck my cock. If this is something that would interest you, mail me back. I’ve talked to some girls that weren’t serious, so I’m hoping there is a girl or 2 that’s curious about being with an older man, and looking for an experience.
Don’t wait and mail me now!!!”
10The second advertisement was titled “Daddy’s Dirty Slut – m4w – 55 (Chatham)”. It read as follows:
“I’m looking for a young slut. I have a wide variety of interests, but really need a young slut that has a thing for old guys. Don’t be shy.
Once you go grey,
You’re there to stay!!!
Mail me”
The Communications
11Officer Oriet was attending a police training seminar dealing with internet luring. One of his assignments was to go on line and respond to an advertisement, pretending to be an under aged person. The officer saw the advertisements posted by the accused. He responded, assuming the persona of a 14 year old girl named Katie. For ease of reference, I will refer to the officer as Katie when discussing the internet communications.
12On November 27, 2014, Katie responded to both advertisements with the following message:
“I herd ppl talkin about this site. Im kindanew but I am curious … saw ur ad. I have not done this b4 so dont know what to do or say. Im 14 yrs old…brw hair…5ft 3. Dont really jnow what else to say lol…guess we can chat if u want (happy face).”
13On November 28, 2014 the accused sent messages back. Between 6:48 p.m. and 10:58 p.m., he sent four separate messages asking what the person was curious about, saying, “I’m assuming you’d like to see what its like to get fucked by an old guy??”, and asking whether the person was still interested.
14On November 29, 2014, Katie responded, saying that she was out of town at a gymnastics meet. She said that she was using the hotel computer and that she had to get back to the room, but that “we can talk some more this week when I get bak”. The accused closed with a message saying, “I keep thinking about you… and it makes my cock hard…just sayin…Hope you’re having fun and do well at your meet.”
15Thereafter, communications continued between the accused and Katie, with the accused explicitly discussing and/or proposing sexual activity.
16On November 30, 2014, the accused contacted Katie to say that, “I hope you did good in the competition Katie”, and, “I’m thinking all kinds of naughty things about you…lol.”
17On December 1, 2014, the accused wrote to Katie, “my cocks hard right now…” along with other sexually explicit statements. Katie asked the accused whether they could switch to Yahoo Messenger for communication, as her mother would be suspicious if she saw Katie using Craigslist.
18On December 2, 2014, there was further discussion about Yahoo Messenger. On December 5, 2014, Katie initiated contact by sending a message at 10:17 a.m. asking, “what happened to you Mike?” On December 8, 2014, the accused responded by saying that he “was gone away for a while…back now….”
19There followed a pause in the communications. On December 20, 2014, the accused sent a message to Katie saying, “Was busy for a bit…how’s it going???” He got no response. On January 18, 2015, he tried once again to resume contact sending a message that said, “was just wondering if you’re still around?” It was not until February 6, 2015, that the undercover officer responded. Katie sent a message that day saying, “Hey mike its been a while. How are things going?”
20The accused did not respond to the message of February 6, 2015 until February 23, 2015. On that day, the accused sent five separate messages to Katie, between 11:23 a.m. and 9:23 p.m., asking her to join in a communication. On February 25, 2015, Katie responded, saying that she was going to the gym.
21Between February 25 and February 27, 2015, the accused sent five messages to Katie on Yahoo Messenger, trying to elicit a response, asking such things as, “How’s it going?”; “You there, Katie?”; “Hello????”
22The officer, posing as Katie, responded on February 27, 2015 at 6:41 p.m. There followed a rather lengthy exchange, in which the accused discussed prior sexual activities with women and couples. The communications concluded at 7:45 p.m.
23February 27, 2015 was a Friday. Between that day, and the following Monday, March 2, 2015, the accused sent 13 messages to Katie, imploring her to make contact. These messages were as follows:
“chevroletmike01: Still gone away??? ...lol
chevroletmike01: Well...I’m heading off to bed...sweet dreams ;)
chevroletmike01: I’m up already today...lol
chevroletmike01: I’ll be in and out today for a bit...have to run to the store and do errands...lol
chevroletmike01: Back now...lol
chevroletmike01: Time for some breakfast burrito’s...bbl chevroletmike01: you must be busy today....
chevroletmike01: You must have been kept busy today....
chevroletmike01: You hiding/busy today too?...lol
chevroletmike01: I’m bored.....lol
chevroletmike01: Time to eat....
chevroletmike01: Still hiding out???....lol
chevroletmike01: I guess you’re not around again today...lol
chevroletmike01: Have a good day out there in the cold...
24Katie responded on March 2, 2015 at 8:30 a.m. During that exchange, the accused spoke about Katie being a bad girl, and told her that he would teach her things that her mother would not teach her, like “how to swallow”.
25On March 5, 2015, Katie stated that she had problems with her internet connection. The officer used this as an explanation for why he had not responded. The accused said that he used the same service provider and was not having any problems. He also told Katie that he would “soap her up” in the shower and would “use his tongue to dry [her] off.”
26March 7 and 8, 2015 marked another weekend. During this period, the accused sent seven separate messages to Katie, seeking to resume communications.
27On March 9, 2015, Katie got back to Mike at 7:30 a.m., telling him that she had created a “Tumblr” account. During the ensuing exchange, the accused referred to “how much I want to have you suck my cock…” He said that he would “teach you how to be a good little cocksucker”, and “let you have my loads of cum”. Toward the end of the communication, he told her that he would think of her “and stroke my cock”. He closed by telling her that he “wanted to cum all over your face”.
28Later that day, the accused tried to re-initiate contact, sending four separate messages on Yahoo Messenger.
29Communication resumed on March 10, 2015. Early on in the conversation, the accused spoke about having an erection while thinking about Katie. During the conversation, he asked Katie whether she ever went to the library. She said that she went to the library all the time. The accused spoke in explicit terms about Katie performing fellatio upon him. In addition, the accused initiated the idea of meeting Katie in person, either at the library or at his home.
30The two agreed to meet during the following communication, which commenced later that morning at 10:45 a.m.:
kluintogym: hey how are you....
chevroletmike01: good
kluintogym: im on lunch....
chevroletmike01: ah...having a good lunch?
kluintogym: yeah im think bout taking the bus
chevroletmike01: here now???
kluintogym: thinkinng about it I can be at the library for for roud 12.
chevroletmike01: how long do you have before you have to be back??
kluintogym: im going to miss nxt class at lest. Boring class
chevroletmike01: on’t you get in trouble for missing class???
chevroletmike01: won’t
kluintogym: its only one detention...no biggie
chevroletmike01: won’t your parents find out???
kluintogym: not unless u tell them...u wont will u ???
chevroletmike01: I won’t tell anyone....
kluintogym: kewl. i meet u at back of library.....ill be wearing black coat and grey and pink shoes.
chevroletmike01: or you can just come to my place....
kluintogym: lol.... let meet outide first pleaseee. Can u bring me a sandwich to eat Im starving
chevroletmike01: Sure..I think there’s balogna in the fridge...or PB&J....
kluintogym: erther on thanks...see u there byeeeee
chevroletmike01: So at 12 behind the Library?
Kluintogym: kewl...gottago
The Meeting at the Library
31Once the accused discussed a meeting with Katie, officers attended at the accused’s residence to observe and follow him if he left his home. By this time, the police had identified the accused’s address by searching the IP address used in the communications.
32In the communications, Katie said that she would be wearing a black coat and grey and pink shoes. A young looking female officer was recruited to play the role of Katie. She wore a black coat and grey and pink shoes. She sat on a stoop outside the back door of the library. At 11:45 a.m., the accused walked along the lane at the back of the library toward the female officer. As he approached, he was arrested.
33Upon arrest, officers searched his bag. Among the items discovered were a peanut butter and jelly sandwich, a juice box, and a marijuana cigarette.
Katie’s Persona
34The officer testified that he set out to make Katie seem a genuine 14 year old girl. He made frequent reference to school, to gymnastic meets, to Katie’s mother, and other details that would reflect the environment and lifestyle of a young teenage female. In crafting Katie’s style of communication, the officer relied on his own extensive experience with teenagers. Before joining the police force, he was a youth worker and, in that capacity, ran three different group homes for troubled teenagers between the ages of 12 and 16. Over the course of that career, he had been responsible for over 1,000 young persons. For the last 16 years, the officer and his wife have served as foster parents for troubled teenagers and have cared for about 40 to 50 children in their home. Many of these young persons were teenage girls around the age of 14 years.
35The officer was not tendered as an expert and I did not treat his evidence as such. However, it is relevant to consider that he based Katie’s persona on his experience in dealing with teenagers. He did not rely on random or arbitrary notions of what a teenager might say or do.
On Line and Not Responding
36There were various times that the officer did not respond promptly to the accused. This might have been because the officer was at home and his computer was at the office, though he did, from time to time, take his computer home with him. In other instances, the officer forgot to change his status on Yahoo Messenger to “unavailable” or “off-line”. Therefore, it might have appeared that he was on line when he was not. This happened during at least one weekend of the Yahoo Messenger communications.
Testing the Hypothesis of Interest in Sexual Activity
37As communications unfolded between the accused and Katie, Officer Oriet perceived that the accused was interested in engaging in sexual activity with a young person. He decided to test this hypothesis. He sent a new message to the accused, this time posing as a stepfather who was offering his 14 year old step-daughter for sexual activity. The following exchange took place on December 4 and 13, 2014:
“jim smith <sljim 1212@gmail.com
December 4, 2014 @ 9:14 am
To: 6rz2m-47456977
Hey Mister: I am a step dad of a 14 yr old girl since she was nine yrs old. I been training her since then. Im sure it would take to much convincing to get her to suck your cock. She does what I tell her with no questions asked. Of course there is a fee associated.
Let me know!!
craigslist 4745697737 <6rz2m-4745697737@pers.craigslist.org
December 4, 2014 @ 09:50
To: a649be8c5dc43f
Well...I’m just looking for fun...not to pay...lol...although I don’t mind smoking a few joints with you...but not looking to pay....
Craigslist 4745697737 <6rz2m-4745697737@pers.craigslist.org>
December 13, 2014 @ 1159
To: a649be8c5dc43f.
Are you sure she wouldn’t suck me just for fun???....lol”
38The officer testified that the exchanges with Jim Smith confirmed his suspicions that the accused was interested in sexual activity with a 14 year old girl. The accused was not willing to pay, but he expressed clear interest in sexual activity. He did not ignore the message and he did not report it as inappropriate.
The Evidence of the Accused
39At trial, the accused admitted that he posted the advertisements on Craigslist and that he communicated with Katie on the computer. However he denied believing that Katie was under 16 years of age. He insisted that, from the outset, he believed Katie to be a middle aged man posing as a 14 year old girl. Further, he denied that he was communicating for the purpose of facilitating a sexual assault. He testified that he had no interest in sexual activity with a middle aged man and he was sure that this was Katie’s real identity.
40The accused testified that he knew Katie to be a middle aged man from the very outset, at the time he received the first response to his ads. He further testified that this belief was confirmed during later communications. He relied on the following observations:
a) The response to the advertisement contained proper sentence structure and proper use of elipses – an unusual feature for communication from a 14 year old girl – yet also contained spelling errors. The accused testified that the spelling errors could only appear if the typist deliberately overrode the spellcheck function. This made him suspicious;
b) The date of birth listed for Katie on her profile was 2002, which would make her 12 years old, rather than 14. The accused knew from this that the person posing as Katie was lying about her age;
c) He also believed that Katie was lying about where she lived as she was too far from school to walk. Similarly he received messages from Katie when she would normally have been in school.
d) There was no Facebook account linked to the profile and the profile had been created the day that the responses to the advertisement were sent;
e) He knew that most people who respond to Craigslist pretend to be someone they are not and that most people who respond are middle aged men;
f) He knew that persons could only communicate on the causal encounters section of Craigslist if they certified that they were 18 years or older;
g) His communications with Katie were of little consequence to him. He did not really pay much attention to them. This comprised less than one percent of his internet activity at the time, which consisted of eight to ten hours a day on the computer.
41The accused testified that while he was at the library near the time that he was scheduled to meet Katie, he was not there to meet with anyone. He did not believe that anyone would show up, and if someone did, he knew that the person would be a middle aged man. He had a library book to return and decided to do it that day. He testified that the sandwich in his bag was for him. When Katie mentioned that she was hungry, he realized that he had not eaten that day and decided that he would make himself a sandwich. It was his plan to return the book to the library and then walk to a nearby park where he would eat his lunch and watch some nearby construction.
ANALYSIS
The Offence of Luring
42Luring is defined in s. 172.1 of the Code as follows:
172.1 (1) Every person commits an offence who, by a means of telecommunication, communicates with
(a) a person who is, or who the accused believes is, under the age of 18 years, for the purpose of facilitating the commission of an offence with respect to that person under subsection 153(1), section 155, 163.1, 170, 171 or 279.011 or subsection 279.02(2), 279.03(2), 286.1(2), 286.2(2) or 286.3(2);
(b) a person who is, or who the accused believes is, under the age of 16 years, for the purpose of facilitating the commission of an offence under section 151 or 152, subsection 160(3) or 173(2) or section 271, 272, 273 or 280 with respect to that person; or
(c) a person who is, or who the accused believes is, under the age of 14 years, for the purpose of facilitating the commission of an offence under section 281 with respect to that person.
(2) Every person who commits an offence under subsection (1)
(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or
(b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months and to a minimum punishment of imprisonment for a term of 90 days.
(3) Evidence that the person referred to in paragraph (1)(a), (b) or (c) was represented to the accused as being under the age of eighteen years, sixteen years or fourteen years, as the case may be, is, in the absence of evidence to the contrary, proof that the accused believed that the person was under that age.
(4) It is not a defence to a charge under paragraph (1)(a), (b) or (c) that the accused believed that the person referred to in that paragraph was at least eighteen years of age, sixteen years or fourteen years of age, as the case may be, unless the accused took reasonable steps to ascertain the age of the person.
43The offence is comprised of three elements: (1) an intentional communication by computer; (2) with a person whom the accused knows or believes to be under 16 years of age; and, (3) for the specific purpose of facilitating the commission of a specified secondary offence, including sexual assault of a young person.
44In this case, the accused admits to intentional communications by computer with Katie. The questions to be determined are:
a) Did the accused believe that he was communicating with a person under the age of 16 years?; and
b) Did the accused intend to facilitate the commission of a sexual assault with a young person?
45The evidence offered by the accused on these issues is exculpatory. If I believe the accused, I must acquit. Even if I do not believe the accused, if his evidence raises a reasonable doubt about an essential element of the offence, I must acquit. Even if the accused does not raise a reasonable doubt, I can only convict if I am satisfied of his guilt beyond a reasonable doubt.
Did the accused believe that he was communicating with a person under the age of 16 years?
46Because the officer represented himself to be under the age of 16, the presumption in subsection (3) of ss. 171.1 and 172.1 applies. Absent evidence to the contrary, the fact that the officer said he was under 16 is proof that the accused believed Katie to be under the age of 16.
47The accused testified that he did not believe that Katie was a 14 year old girl. The question is whether the accused’s testimony qualifies as evidence to the contrary. Does it raise a reasonable doubt about whether he believed he was communicating with a young person?
48I find that it does not. I do not accept his testimony and it does not raise a reasonable doubt. While the presumption in subsection (3) applies, I would reach the same conclusion even if there were no presumption. The inescapable inference to draw from the text of the communications is that the accused believed that he was communicating with a person under the age of 16.
49I will address the accused’s testimony below.
1) The Advertisements
50The advertisements posted by the accused were, on their face, aimed at young girls. In one advertisement, he was specifically looking for “young girls” and in the other, “daddy’s dirty slut”. The accused testified that “young girl” was meant to refer to a person younger than the accused. He was in his 50’s and therefore was looking for someone in her 20’s or 30’s. That explanation rings hollow. It does not accord with common sense. The word “girl” usually implies someone who is a child, rather than an adult. The qualifier “young” reinforces this impression. If the accused had intended to narrow his search to women in their 20s or 30s he could have specified that age range. He did not do so. I find that this is because he was indeed looking to communicate with “young girls” as that term is commonly understood.
51In the second advertisement, the accused was looking for “Daddy’s dirty slut”. In his testimony, the accused referred to a class of sexual interactions that he called “DDLG”, an acronym for devoted daddy little girl. He testified that this is of interest to adult women who express themselves as little girls. He testified that this is not so much role play as an expression of one component of the adult woman’s personality. I find that this is another basis on which the accused tried, after the fact, to distance himself from incriminating inferences. There is nothing in the advertisement to indicate that the accused was looking to contact an adult, or to indicate that he was directing his advertisement to adults in the DDLG community. The plain language of the advertisement said that the accused was looking for a “young slut”.
52I also note that, by referring to “young girls” and “young sluts”, the accused had to at least contemplate that his advertisements could elicit responses from young persons.
2) The Responses
53The accused claimed that he could tell from the initial responses that Katie was not a 14 year old girl. He claimed that he knew, from the outset, that Katie was a middle aged man, pretending to be a 14 year old girl. He said that this was because the initial response contained proper sentence structure and proper use of ellipsis (the use of three dots in text), yet contained several spelling errors.
54The accused testified that it would be unusual for a 14 year old girl to know how to use ellipses, as one doesn’t learn about this in school until much later. But there is nothing particularly mysterious about the use of ellipsis. It is a common and rather simple device used in various forms of written material. The average reader would be well familiar with it. Similarly, many 14 year olds are capable of writing proper sentences.
55The accused testified that the spelling errors were significant, as the person typing would have had to override the spellcheck function. The accused testified that spellcheck would automatically correct the spelling of words, and the person typing would have to go in and re-spell the words incorrectly. I found this testimony to be puzzling. It did not accord with my own experience of spellcheck in computer programs, including the e-mail program used by Katie. It is my experience that spellcheck will underline misspelled words in red, to signal that there is an error. It will not, however, autocorrect the text.
56Significantly, the officer testified that he did not have to override spellcheck in order to misspell words. He testified that he just typed the words as he did. I accept the officer’s evidence, as it is consistent with my own experience.
57It is conceivable that certain settings on a computer might generate an auto-correct function. It is conceivable that the accused’s computer was set to operate in that fashion. However, I do not find that to be so. The accused held himself out as an authority on computers, claiming to know a great deal about them. On that basis, he might presumably have known about different settings. Perhaps more importantly, I find, in the context of the evidence as a whole, that the accused concocted his evidence in order to distance himself from incriminating inferences. The explanation about misspelled words strikes me as one of many after the fact reconstructions.
58I also note that many of the so called spelling errors were not errors, per se, but rather short forms, similar to those that you might find in text communications. The use of “B4” instead of before, or “ur” instead of the words you are. It is not unusual to see these abbreviations in text messages. One can assume that the officer was trying to replicate that typing style in the original e-mails.
59The accused also testified that he knew that the sender was not a 14 year old girl, because she referred to herself as being “5 ft 3”. The accused testified that, in his experience, young people refer exclusively to metric measurements. He testified that a 14 year old girl would refer to her height in centimeters rather than feet and inches, just as a young person would refer to his or her weight in kilograms. This was not the officer’s experience with young persons. Nor is it mine. This is not to say that young people never use metric measurements. It is only to say that the use of feet and inches is not so peculiar as to make it unlikely that a 14 year old is speaking.
3) The Date of Birth
60The accused testified that he placed his cursor over Katie’s e-mail address and was able to see her profile. The profile listed her date of birth as being in 2002. This was an error on the part of the officer, as a birth date in 2002 would make Katie 12 years old rather than 14. In addition, Katie told the accused that she was playing for the first year in a league consisting of 13 to 15 year olds. This too suggested to the accused that she was not 14.
61The difficulty is that these contradictions, if anything, suggest that Katie is younger than 14, not older. Even if there was reason to think that Katie was being less than forthright about her age, there was no basis for believing that she was a middle aged man. The more likely scenario was that she was younger than 14 and pretending to be older than she was. The issue is not whether the accused believed that Katie was precisely 14 years old. The issue is whether he believed her to be under 16 years of age. The mistaken birth date does not assist the accused in this regard.
4) Everyone pretends on the internet
62According to the accused, his experience with Craigslist told him that many people pretend to be people they are not. He testified that most people that respond on Craigslist are middle aged men and, on that basis, he believed that Katie was also a middle aged man. However, the accused acknowledged that, on at least two occasions, he met people through Craigslist – a woman and a couple - who were what they said they were. The accused testified that the woman in question lied about everything in the relationship. But she did not lie about being an adult woman. Finally, the accused acknowledged that he had never received a message from someone claiming to be underage. Therefore, he had no experience base with which to assess that type of situation.
63I do not accept that the accused believed that Katie was a middle aged man. This is not a plausible assertion.
5) Katie was of no consequence
64During cross-examination, the accused insisted repeatedly that the communications with Katie were of little or no consequence to him; that they comprised less than one percent of his overall internet communications; that he spent 8 to 10 hours a day on the computer. Time and time again, he spoke of how inconsequential his communications with Katie were. This is, to my mind, a classic example of “he who doth protest too much”. The casual attitude described by the accused in his testimony is contradicted by the communications themselves. On several occasions, the accused sent multiple messages to Katie, imploring her to respond. His almost frantic efforts to keep the lines of communication open suggest that contact with Katie was very important to him, and that he would not readily let it go. For example, over the course of one weekend, the accused sent 13 messages trying to get Katie to respond. This is not the conduct of someone that is uninterested.
65The accused claimed not to have any interest in sexual activity with Katie because he knew Katie to be a middle aged man. Yet, he continued to engage in explicit sexual communications with Katie. When asked about this, the accused said that he did not want to disrupt the middle aged man’s fantasy. But it was not Katie who was expressing the so called fantasy. The sexual content was, in every instance, initiated by the accused who was quick to guide the communications in that direction.
66I find that the communications with Katie were of considerable importance to the accused. This is because he perceived a possibility of sexual activity with a 14 year old girl.
6) The message from Jim Smith
67The communications with “Jim Smith” tend to confirm that the accused was interested in sexual activity with a young person. This was a compelling item of evidence. The message clearly stated that the sender would offer his 14 year old step-daughter for sexual services if a fee was paid. The accused did not wish to pay, but he did wish to engage in sexual activity. He testified that his response was not genuine and that he knew the message to be a fake. But, like his other explanations, this seems a convenient and unlikely scenario. If he believed the message to be false, why would he bother to respond at all? He responded, not once, but twice. Having received no answer to his first message, he sent a second one expressing interest in having the 14 year old girl perform fellatio upon him. There is nothing in the messages to suggest that the accused was anything but serious. The reference to “LOL” does not detract from the plain meaning of the messages.
7) The site is restricted to persons over the age of 18
68The accused testified that he believed Katie to be older because a person can only enter the website on Craigslist if he or she certifies being 18 years of age or older. This is an implausible belief. The fact is that anyone can enter the website by simply claiming that he or she is over 18 years of age. The veracity of that assertion is not tested. The accused had to contemplate that an underage person might lie about his or her age in order to access the site. He testified about his own experience, in which a 12 year old was playing an internet game restricted to those 14 years and older.
8) The accused did not hide his identity
69The accused did not try to hide his identity. He sent photographs to Katie, and he used his real name in his e-mail address. Regarding the photographs, if he intended to meet with Katie in person, then he knew that she would eventually see what he looked like. The use of the accused’s real name is a relevant factor but not, in this case, sufficiently compelling to overcome the weight of the other evidence. Hiding one’s identity may be consistent with a consciousness of wrongdoing. It does not necessarily follow that disclosure of one’s identity is consistent with innocence. It may seem strange that the accused identified himself to Katie, but it is also strange that he would identify himself by name to a middle aged man pretending to be a 14 year old girl. In short, I do not attach much weight to this factor in the context of the case as a whole.
9) Other factors
70Other explanations are similarly unconvincing. For example:
a) The fact that Katie had a Tumblr account with nothing in it is not surprising, as she said that she had just set it up.
b) The accused testified that, by accessing the profile, he learned that the e-mail account was created the day the responses to the advertisements were sent. One can imagine that, if a young person is trying to enter a site designed for adults, she might create a new e-mail account to obscure her identity. This would also explain the absence of a Facebook account associated with the e-mail.
c) The accused testified that Katie’s claim that Cogeco was not working was suspicious. He testified that he used Cogeco and had no problems. He also claimed, rather improbably, that he checked to see if there were any service interruptions anywhere and discovered that there were none. The basis for suspicion evaporates when one considers Katie’s assertion that the problem was likely due to a failure to pay a bill.
d) The accused testified that he knew that Katie was lying about school for various reasons. He sometimes heard from her during school hours. He insisted that he knew that every single school started at 8:20 a.m. He insisted that he knew that a computer class, which Katie claimed to be in, was not offered at any school in the area. He insisted that he knew that someone living at Katie’s address would never walk to school; she would be bussed. The accused claimed to be an authority on any number of topics. Yet none of these explanations make Katie a middle aged man. Katie never said that she did not take the bus. Even if he thought Katie was lying about being in school, it did not follow that she was over the age of 14.
e) The accused testified that he never saw reports on gymnastic meets in the local media, suggesting to him that there clearly was no gymnastic meet. First, in at least one instance, there was a gymnastic meet on the weekend in question as the officer’s daughter was participating in it. The absence of media coverage does not change that. Giving the accused the benefit of the doubt, even if he believed that Katie was lying about the meet, it is an unwarranted leap of logic to conclude from that that she was a middle aged man. Finally, the fact that he checked for gymnastic meets tends to contradict his evidence that he knew, from the outset, that Katie was a fake. If he knew from the first message that Katie was a middle aged man, why would he need to check on things she said? He would know by then that they were not true.
10) The content of the communications
71The communications themselves belie the accused’s assertion that he believed Katie to be over 16 years old – that he knew her to be an adult male. There was nothing said by the accused to challenge Katie’s assertions. He appeared to accept what she had to say, usually using it as a segue for discussion of sexual activity. His testimony posits an alternate narrative, said to have taken place in his mind. But it is difficult, if not impossible, to reconcile this narrative with the objective, undisputed evidence of what he communicated to Katie.
11) The meeting at the library
72Finally, the accused’s attendance at the designated meeting place, close to the designated time with a sandwich such as that requested by Katie, is powerful confirmatory evidence. He testified that his attendance at the library had nothing to do with Katie. He had to return a library book and just happened to choose that time to do it. He had a sandwich for his own consumption, not for Katie. He testified that he never believed that Katie would turn up and that, if she did, she would turn out to be an adult male.
73It strains credulity to suggest that, having agreed to meet Katie at the back of the library at noon with a sandwich, the accused, with no interest in meeting Katie, decided to go to the library to return a book, with a sandwich for himself, at around the very time the meeting was to take place. This was not a coincidence. It was a deliberate attempt to meet Katie, at the time and place that was agreed upon. I find that, not only was the accused there to meet Katie, but that he believed he was to meet a young girl under the age of 16. If the accused really believed that his correspondent was a middle aged man, in whom he had no sexual interest, it is unlikely that he would have gone to the trouble of arranging and attending at an in person meeting.
12) Conclusion on the accused’s belief
74For all of the above reasons, I find that the accused believed Katie to be under the age of 16 years. This inference is inescapable on the whole of the evidence, even absent operation of the statutory presumption. Nothing in the accused’s testimony, or any other evidence, raises a reasonable doubt on that issue. It has been proven by the crown on the criminal standard of proof.
Did the accused intend to facilitate an offence?
75The prospect of a meeting is not the sine qua non of the offence contemplated by s. 172.1 of the Code. Even when no meeting is arranged, an accused can “facilitate” a sexual offence with a young person. This element is satisfied by conduct that helps to bring about a sexual offence, or makes it easier or more probable that a sexual offence will occur. The gravamen of the offence is the sexual exploitation of young persons in cyberspace. As Fish J. explained in R. v. Legare, 2009 SCC 56, at paras. 28-29:
28Section 172.1(1) makes it a crime to communicate by computer with underage children or adolescents for the purpose of facilitating the commission of the offences mentioned in its constituent paragraphs. In this context, "facilitating" includes helping to bring about and making easier or more probable -- for example, by "luring" or "grooming" young persons to commit or participate in the prohibited conduct; by reducing their inhibitions; or by prurient discourse that exploits a young person's curiosity, immaturity or precocious sexuality.
29I hasten to add that sexually explicit language is not an essential element of the offences created by s. 172.1. Its focus is on the intention of the accused at the time of the communication by computer. Sexually explicit comments may suffice to establish the criminal purpose of the accused. But those who use their computers to lure children for sexual purposes often groom them online by first gaining their trust through conversations about their home life, their personal interests or other innocuous topics.
76The intention of the accused must be determined subjectively.
77The subjective intent is made out in this case. The accused initiated sexually explicit discussions, and spoke in graphic terms about Katie performing sexual acts with him. The logical inference is that the accused was grooming Katie for possible sexual activity by reducing her inhibitions, and exploiting her sexual curiosity. While sexually explicit language is not an essential element of the offence, it is a cogent factor in this case, confirming that it was the accused’s intention to facilitate sexual activity.
78This inference is powerfully confirmed by the accused arranging a meeting with Katie, in order to facilitate sexual contact, and his attendance at the time and place of the meeting. As noted above, I do not accept that the accused’s attendance at the library was coincidental.
79In this case, the meeting, together with the content of the communications, leaves no reasonable doubt that the accused was intending to facilitate a sexual offence.
Reasonable Steps
80Section 171.2(4) provides that a belief by the accused that he is communicating with someone over the age of 16 years is only a defence if the accused took reasonable steps to ascertain the age of the person. In this case, I have already rejected the suggestion that the accused believed Katie to be over the age of 16. Therefore I need not determine whether he took reasonable steps to ascertain Katie’s age. It bears noting, however, that the accused took no meaningful or reasonable steps to determine Katie’s age. He claimed that he took steps by checking school schedules, and media reports for gymnastic meets, and other such matters. However, those efforts, (if they took place), were not designed to uncover Katie’s age. Even if they exposed Katie to be untruthful about certain things, they did not make it any more likely that she was over the age of 16.
81The fact is that the accused, on his own testimony, really took no steps at all to determine Katie’s age. He claimed that he knew from the outset that she was a middle aged man. This was based, not on any objectively reasonable steps, but his own dubious assumptions about how a 14 year old might communicate. The whole point of the reasonable steps requirement is that an accused is not entitled to rely on subjective assumptions. He or she must make reasonable inquiries.
82I do not accept that the accused did believe Katie to be over the age of 16. But even if I am wrong, and he did believe her to be a middle aged man, his belief cannot exculpate him in the circumstances of this case.
Section 171.1 of the Criminal Code
83My findings as they relate to s. 172.1 of the Criminal Code compel a finding of guilt on s. 171.1 of the Criminal Code as well. That is, I find that the accused believed that he was communicating with a young person, under the age of 16 years. To the extent that the accused believed otherwise, he did not take reasonable steps to ascertain Katie’s age and therefore his belief cannot exculpate.
84The defence argued that the Crown had not proved transmission of “sexually explicit material”. That term is defined in s. 171.1(5) as follows:
(5) In subsection (1), sexually explicit material means material that is not child pornography, as defined in subsection 163.1(1), and that is
(a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,
(i) that shows a person who is engaged in or is depicted as engaged in explicit sexual activity, or
(ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a person’s genital organs or anal region or, if the person is female, her breasts;
(b) written material whose dominant characteristic is the description, for asexual purpose, of explicit sexual activity with a person; or
(c) an audio recording whose dominant characteristic is the description, presentation or representation, for a sexual purpose, of explicit sexual activity with a person.
85There would seem to be no doubt that the communications sent by the accused to Katie consisted of “written material whose dominant characteristic is the description, for a sexual purpose, of explicit sexual activity with a person”. The defence argued that, because the messages were sent over a computer, they were not “written”. I disagree. There is no reason to construe the word “written” as being restricted to tangible hard copy documents. To do so would lead to absurd results, particularly given the intention of Parliament to protect children from sexual predators in the world of cyberspace. Electronic communications are “written” on a computer screen before being “transmitted” to the recipient. The provision expressly contemplates transmission of written material of a sexually explicit nature. The plain language of the section, considered against the backdrop of Parliament’s intent, clearly covers the conduct of the accused in this case.
CONCLUSION
86For the above reasons, I am satisfied that the crown has proved the essential elements of both offences beyond a reasonable doubt. I find Michael Harris guilty on counts 1 and 2 of the indictment.
“signed original and made an Exhibit by Pomerance J.”
Renee M. Pomerance
Justice
Released Orally: November 7, 2016
CITATION: R. v. Harris, 2016 ONSC 6283
CHATHAM COURT FILE NO.: 2897/16
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Michael Harris
REASONS FOR JUDGMENT
Renee M. Pomerance
Justice
Released Orally: November 7, 2016
21991 CanLII 93 (SCC), [1991] 1 S.C.R. 742