R. v. Cooper, 2016 ONSC 6384
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
SCOTT COOPER
M. Mackenzie, for the Crown
K. Edward, for the Defendant
HEARD: September 19-26, 2016
MILLER J.
1Scott Cooper is charged with Agreeing/Arranging to Sexually Assault a Child contrary to s. 172.2 of the Criminal Code and with Breach of Probation by failing to keep the peace and be of good behaviour, both alleged to have been committed between January 14 and February 12, 2014.
2Detective Todd Martin, working for the Internet Child Exploitation unit at Halton Regional Police Service, posted an advertisement on Craigslist at 9:30 a.m. January 14, 2014. The advertisement indicated: “meet daughter?-w4m –36(burl) looking for someone that interested in meeting my daughter? very…..very young. serious replies only.” Within half an hour Detective Martin had received 57 replies to the ad.
3One of the replies, received at 9:45 a.m., was from an individual later identified as Scott Cooper. The reply was: “Just read that. And I have to ask the question. Is that for real, or another of the many scam ads that are on this site? I did take today off and am just putting off chores. Let’s discuss.”
4Thereafter, on that day and on successive days, Detective Martin, in an anonymous capacity, engaged in e-mail correspondence with Mr. Cooper. Although Detective Martin had intended to portray himself as the father of the child in question, it became apparent that Mr. Cooper believed the person he was corresponding with was the mother of the child. The correspondence continued with a request by Mr. Cooper to meet the mother of the child. Detective Martin made arrangements for a female undercover officer to portray the mother of the child in telephone conversations and an in person meeting if it came to that.
5On January 21, 2014 Mr. Cooper provided his cellphone number to facilitate the in person meeting. From the number provided, police were able to ascertain that Scott Cooper at an address in Hamilton was the cellphone subscriber. At this point the investigation began to include surveillance on Mr. Cooper’s residence. On February 6, 2014 Detective Tara Knight engaged in a telephone conversation with Mr. Cooper, portraying herself as the mother of the child.
6Detective Knight had telephone conversations, in this capacity, with Mr. Cooper on February 6 and February 7, 2014. On February 7, 2014 Detective Knight met with Scott Cooper in person at a diner. Her meeting was observed by other members of the investigative team. Subsequently, Detective Martin continued correspondence with Mr. Cooper by text, also continuing to pose as the mother of the child. Detective Knight again spoke with Mr. Cooper on the telephone February 11, 2014.
7Detective Knight’s conversations with Mr. Cooper by telephone and in person were not recorded, but she made notes of the conversations immediately following them and referred to those notes in her testimony. A copy of those notes, wherein verbatim conversation is demarked by quotation marks, was made an exhibit on the trial.
8Detective Martin continued correspondence with Mr. Cooper by text on February 11 and February 12, 2014. A copy of all e-mail and text correspondence between Mr. Cooper and the officers was made an exhibit on the trial.
9The e-mail, text and in person conversations between Mr. Cooper and the officers were graphic discussions of how it was that Mr. Cooper would be meeting the child – specified in the conversations to be four years of age – and what would be done sexually to the child on meeting. With some very few exceptions, Mr. Cooper accepts as accurate all of the e-mail, text and in person conversation as preserved or noted by the officers.
10As arranged in the e-mail, text and in person conversations, Mr. Cooper again attended at the diner on February 12, 2014 in order to meet the “mother” and “child” before attending at a nearby motel for the sexual encounter. Mr. Cooper was arrested as he pulled up in his vehicle.
11Police surveilling Mr. Cooper on February 12, 2014 before his arrest observed Mr. Cooper attend a Walmart store, leaving with a Walmart plastic bag. He then attended the Cityview Motel – the agreed upon location for the sexual encounter with the child – and rented a room, advising the clerk he would return at 3:30. He subsequently attended a Beer Store where he purchased Coors Light. He was seen to then return to his house in Hamilton, leaving again at approximately 3:15 p.m. and arriving at the diner, where he was arrested at approximately 3:30 p.m.
12Mr. Coopers’ vehicle was searched incident to his arrest. Police located a teddy bear, an HTC phone and a Cityview Motel room key, for the room Mr. Cooper had rented, on the front seat. In the glovebox police found personal lubricant in a ziplock bag, and in the centre console three condoms. In the trunk were a 12 pack of Coors Light beer, and a bottle of personal lubricant together with 8 condoms in a plastic bag.
13The HTC phone was found to be the one Mr. Cooper had been using to text and call the undercover officers. A search of that device and of Mr. Cooper’s residence, pursuant to search warrants, revealed no child pornography in any form.
Scott Cooper’s Testimony
14Scott Cooper testified that on January 14, 2014 he was perusing the “casual encounters” section on Craigslist, as he often did for entertainment purposes, when he saw the advertisement posted by Detective Martin. He testified that he could not believe the ad was real, so he replied to the ad then flagged it for removal from the site.
15Mr. Cooper testified that he posed as a man interested in sex with a child, first, to ascertain if the offer made in the ad was real, and second, when he came to believe that it was, to set up a situation in which he could contact police, with proof of the intended offence, so that the child could be rescued from the parent who was offering her up for sex. Mr. Cooper testified that he had been sexually abused as a child and so was motivated to rescue this child from a similar fate.
16Mr. Cooper testified that he had come up with a plan to get the mother and child into a motel room with the “props” he had brought at the mother’s request. He then planned to leave the room for a cigarette and contact police while outside. He then planned to return to the room to photograph or video the mother, child and “props”. He testified that he had even returned to his house to obtain more condoms because he thought that would look better in the pictures.
17Mr. Cooper testified that he played along with the conversations he had with the undercover officers in order to obtain more information and feigned excitement when he thought it necessary to keep the other party interested.
18Mr. Cooper testified that he was prepared to “walk away” at many times during his interaction with the ‘mom’ if the other party did not follow through. He testified that he began to believe that the situation was real once he spoke with the ‘mom’ on the telephone and even more so after he met her. Nonetheless he was prepared to walk away.
Analysis
19In support of the testimony of Mr. Cooper, his counsel points to a number of parts of his communications with the undercover officers which, she submits are consistent with his testimony that he had no criminal intent. These are:
Mr. Cooper asked for a non-identifying picture of the child, and specified “no nude pic”
Mr. Cooper indicated he wanted to meet the “mom”
Mr. Cooper offered to meet at his home
Mr. Cooper offered up real personal and identifying information about himself including that he had been adopted and that he had a criminal record for extortion
Mr. Cooper repeatedly asked the undercover officers if they were police
Mr. Cooper repeatedly asked for details of the prior abuse of the child
Mr. Cooper repeatedly asked what the “mom” wanted done in the sexual encounter
Mr. Cooper did not seem to be anxious or upset about delays in getting to meet the “mom” or in arranging the sexual encounter with the child
Mr. Cooper said to the undercover officer that what she was offering was “every pedophile’s dream”
Detective Knight made observations of Mr. Cooper apparently speaking to himself and Mr. Cooper testified that he couldn’t help but make utterances of disgust in the course of their conversations
Mr. Cooper thanked the “mom” for telling him the child had not been penetrated
Mr. Cooper said to Detective Knight several times “you’re freaking me out”
Mr. Cooper asked the “mom” “are you really ok with this?”
On one occasion Mr. Cooper referred to doing “whichever and whatever” with the child and did not mention specific details
20Counsel for Mr. Cooper submits that a close examination of the conversations he had with the undercover officers show that Mr. Cooper was mirroring what the officers were doing – trying to keep the individual on the other end engaged, trying to find out information and faking excitement at appropriate times just as the officers did.
21In addition, when police searched Mr. Cooper’s vehicle and residence, they found no evidence of any child pornography or indeed anything that would indicate he had a sexual interest in children.
22Counsel for Mr. Cooper also points to extrinsic evidence consistent with Mr. Cooper’s innocent intent: the ad posted by Detective Martin was in fact flagged for removal. The officer was unable to say who had flagged it or when it had been flagged. In addition counsel points out that Mr. Cooper’s plan included all the “props” that were found in his car and had been requested by the ‘mom’.
23Counsel for the Crown submits that Mr. Cooper was truly engaged with intent to follow through with the sexual contact with the child. She points to the fact that right at the beginning of his communications with the undercover officers Mr. Cooper sent a photograph of his erect penis together with his personal statistics, including the size of his penis and that he was circumcised. Subsequently, he repeatedly asked if the child had seen the photograph he sent and what her reaction had been. He even offered to send another photograph.
24Mr. Cooper was graphic in his questions as to what he would be permitted to do, sexually, with the child. He repeatedly asked if he could ejaculate in the child’s mouth or on her body and whether she would be ok with that. He repeatedly asked if the child enjoys fellatio.
25Counsel for the Crown submits that if Mr. Cooper flagged the ad for removal he did so to reduce the chance of competition from others interested in a sexual encounter with the child. Counsel for the Crown submits that Mr. Cooper was not credible when in his testimony his “stock answer” to any question regarding the content of the conversations was that he was just trying to keep the conversation going.
26Counsel for the Crown points out that Mr. Cooper was persistent in trying to reengage the undercover officers when they were slow to respond to his e-mails and texts and that it was Mr. Cooper who repeatedly initiated talk of sexual details. Counsel for the Crown submits that when Mr. Cooper asked for details of the “mom’s” sexual abuse as a child he did so because such details excited him.
27Counsel for the Crown points out that Mr. Cooper repeatedly indicated that if it went well with the child it could be “ongoing”, and made references to his house being big inferring that he could have an ongoing relationship with the mother and child.
28Counsel for the Crown points out that Mr. Cooper was protective of himself, for example cautioning that the child’s age should not be mentioned online. Counsel for the Crown submits that the only reason Mr. Cooper specified that the photograph of the child be ‘not a nude pic’ was his concern that he might be found with child pornography.
29Counsel for the Crown points out that if Mr. Cooper’s goal was to gather information or evidence to turn over to police he missed many opportunities to do so. He deleted the e-mail correspondence, made no effort to retain the text correspondence and did not record in any fashion any of the in person conversations. Mr. Cooper testified that he thought of recording the face to face meeting with the “mom” but his cellphone was unable to do so without a data card.
30Counsel for the Crown submits that the steps taken by Mr. Cooper before his arrest – buying a teddy bear for the child and beer for the ‘mom’, bringing extra condoms and lubricant and renting a motel room - were not necessary for his stated purpose and are more consistent with a genuine intent to follow through with the sexual encounter with the child.
31Counsel for the Crown points out that Detective Knight in her interactions with Mr. Cooper observed only excitement on his part and not the disgust that he testified that he not only was feeling but could not hide.
32Counsel for the Crown further submits that whether or not Mr. Cooper intended to follow through with a sexual assault of a child is irrelevant to a finding of guilt on the charge of agreeing/arranging to sexually assault a child. In this she relies on the Supreme Court of Canada decision in R. v. Legare 2009 SCC 56, [2009] S.C.J. No. 56 which held that s. 172.1(1)( c ) of the Criminal Code (child luring) is a preparatory offence with no requirement that the offender need meet or intend to meet the victim with a view to committing any of the specified secondary offences.
33The Crown submits that as held by the Ontario Court of Justice in R. v. Rodwell (unreported, September 22, 2016) and the Ontario Superior Court of Justice in R. v. Tomasik 2016 ONSC 3719, [2016] O.J. No. 3132, the principle in Legare applies equally to s. 172.2 offences.
34Section 172.1 (1) of the Criminal Code provides that:
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.
35As noted in Legare at paragraph 31, “what matters is whether the evidence as a whole establishes beyond a reasonable doubt that the accused communicated by computer … for the purpose of facilitating the commission of a specified secondary offence in respect of that victim.”
36In Legare at paragraph 36 the Court held that:
…s. 172.1(1)(c) comprises three elements: (1) an intentional communication by computer; (2) with a person whom the accused knows or believes to be under 14 years of age; (3) for the specific purpose of facilitating the commission of a specified secondary offence -- that is, abduction or one of the sexual offences mentioned in s. 172.1(1)(c) -- with respect to the underage person.
37Section 172.2 (1) of the Criminal Code provides that:
Every person commits an offence who, by a means of telecommunication, agrees with a person, or makes an arrangement with a person, to commit an offence
(a) 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) with respect to another person who is, or who the accused believes is, under the age of 18 years;
(b) under section 151 or 152, subsection 160(3) or 173(2) or section 271, 272, 273 or 280 with respect to another person who is, or who the accused believes is, under the age of 16 years; or
(c) under section 281 with respect to another person who is, or who the accused believes is, under the age of 14 years.
38By implication, the elements necessary to a finding of guilt on a s. 172.2 offence would be: 1) an intentional use of telecommunication; 2) with a person; 3) to agree or make an arrangement to commit one of the specified offences with respect to another person who the accused believed to be underage.
39Here there was clearly intentional use of telecommunication (computer, tablet and cellphone), with a person (the undercover officers), to make an arrangement to commit a sexual assault with respect to another person the accused believed to be under the age of 16 years. Applying the principle in Legare, the offence is the intentional making of the agreement or arrangement, and it is irrelevant whether Mr. Cooper intended to actually sexually assault the child.
40On this basis I would find Mr. Cooper guilty of the offence on Count # 1. I am satisfied that all the essential elements have been proven beyond a reasonable doubt. Applying the principles in R. v. W. (D.) 1991 CanLII 93 (SCC), [1991] S.C.J. No. 26, there is nothing in the evidence of Mr. Cooper which raises a reasonable doubt in respect of any of the essential elements of the offence.
41In this case I would go further. I do not believe Mr. Cooper’s testimony that it was not his intention to engage sexually with a child nor does Mr. Cooper’s testimony leave me with a reasonable doubt in that regard. The evidence as a whole satisfies me beyond a reasonable doubt not only that Mr. Cooper intentionally made an arrangement by way of telecommunication to sexually assault a child, but that at the time he made the arrangement he also intended to commit that offence against the child.
42In coming to that conclusion I have considered all of the elements of the communications, both by way of telecommunication and in person with the undercover officer that counsel for Mr. Cooper has submitted are corroborative of his innocent intent. I have considered as well, as Mr. Cooper himself indicated in cross-examination, that he is not a detective and therefore could not be faulted for missing opportunities to pursue his stated goal of trying to obtain more information in order to “rescue” the child. I have also considered that Mr. Cooper, both in his communications with the undercover officers, and in his testimony before me, presented as relatively unsophisticated.
43I find, in considering the evidence as a whole, that the preparatory steps taken by Mr. Cooper just before his arrest – the purchasing of a toy for the child, the provision of lubricant and condoms and the renting of the motel room – are not consistent with Mr. Cooper’s testimony that this was an elaborate plan to “rescue” the child. Mr. Cooper testified that his earlier offers to have the sexual encounter occur at his home was an attempt to save the unnecessary cost of a motel. Actually renting a motel room was entirely unnecessary to Mr. Cooper’s plan as described by him.
44The details in respect of the proposed sexual encounter with the child in the communications were not only graphic but were raised time and again by Mr. Cooper. It is almost inconceivable that someone who claims to have been repulsed by the idea of sex with a child could come up with such graphic detail. As well, it was Mr. Cooper who repeatedly asked whether the child had seen the photo of his erect penis and whether she enjoyed it.
45Further, and most telling in my view, it was Mr. Cooper’s testimony that at many points during his interactions with the undercover officers he was prepared to “let it go” if the “mom” did not follow through with providing the child for sex.
46First, as demonstrated by the e-mail and text communications, Mr. Cooper was not prepared to “let it go”. He repeatedly tried to reengage with the undercover officers whenever there was delay in their responding to him, and continued the communications over several weeks.
47Second, it is not consistent with Mr. Cooper’s purported desire to “rescue” this child that he would be prepared to simply let it go and leave the child to her fate, even after Mr. Cooper himself testified that it was he was convinced it was “really real”.
48Mr. Cooper’s story simply does not hang together.
49I am satisfied beyond a reasonable doubt not only that Scott Cooper intentionally used telecommunications to arrange with a person to sexually assault a child under 16 years of age, but that his true intention was to follow through with the commission of the secondary offence.
50Scott Cooper is found guilty on Count # 1.
51I am further satisfied beyond a reasonable doubt on the evidence before me that Scott Cooper was bound by a probation order at the relevant time with the statutory term to keep the peace and be of good behaviour, and that the behaviour underlying the finding of guilt on Count # 1 amounts to a breach of that term. He will be found guilty on Count # 2.
MILLER J.
Released: October 14, 2016
R. v. Cooper, 2016 ONSC 6384
COURT FILE NO.: 77/15
DATE: 20161014
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
SCOTT COOPER
REASONS FOR JUDGMENT
MILLER J.
Released: October 14, 2016
