R. v. C.L., 2017 ONSC 3583

ONTARIO

SUPERIOR COURT OF JUSTICE

CITATION: R. v. C.L., 2017 ONSC 3583

COURT FILE NO.: CR-16-1807

DATE: 20170612

B E T W E E N:

HER MAJESTY THE QUEEN

V. Aujla, for the Crown

• and -

C.L.

M. Doyle for the Applicant, solely under s. 486.3

HEARD: May 23-26, 29-31, 2017

REASONS FOR JUDGMENT

RESTRICTION ON PUBLICATION

Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity, including the names of other Crown witnesses, shall not be published in any document or broadcast or transmitted in any way.

Baltman J.

Introduction

1The accused, C.L., met J.E. through the cadets program. C.L., who is openly gay, was a senior officer and a person in authority with respect to J.E.

2One evening in June 2008 C.L. initiated a live online conversation with J.E. through the Microsoft network instant messaging service (“MSN”) while J.E. was in his grandmother’s residence. J.E. was then 14 years old. During the conversation, C.L. activated his web camera and J.E. observed C.L. with a stack of bills that C.L. identified as $21,000. C.L. asked J.E. how much money it would cost to see J.E.’s penis, and requested that J.E. spend a night in a hotel with him alone. J.E. refused and the conversation ended shortly thereafter.

3C.L. was arrested in May 2010 after E.B., a friend of J.E.’s and a fellow cadet member, complained to a senior officer about C.L. The matter was referred to Peel police and C.L. was charged with invitation to sexual touching and luring a child (under 16) through a computer, contrary to ss. 152 and 172 of the Criminal Code.

4C.L. admits he participated in this conversation. However, he denies knowing that J.E. was under the age of 16 at the time, and also maintains that the conversation was intended as a joke, rather than for any sexual purpose.

5C.L. was self-represented at trial except for the assistance of counsel pursuant to an order made under s. 486.3 of the Code. Mr. Doyle, who was appointed under that provision, cross-examined the complainant and E.B. He also made submissions regarding the authenticity and admissibility of the printout of the MSN chat. The defence called no evidence at trial.

The Legal Framework

6Although there are two offences before the court, the first count on the indictment (under s. 152) is largely subsumed within the second count, under s. 172.1(b). The latter provision prohibits the use of computers to communicate with an underage person whom the accused believes to be underage for the purpose of facilitating the commission, with respect to that person, of a specified sexual offence.

7Section 172.1(1)(b) of the Code contains three essential elements: (1) an intentional communication by computer; (2) with “a person who is, or who the accused believes is”, under the age of 16 years; (3) for the specific purpose of facilitating the commission of an enumerated secondary offence with respect to that person: R. v. Levigne, 2010 SCC 25, at para. 23. In this case, the secondary offence is “invitation to sexual touching” under s. 152 of the Code, which prohibits inviting a person under the age of 16 to touch any person’s body for a sexual purpose.

8As noted, C.L. has conceded he initiated the computer chat with J.E. Therefore the first essential element is satisfied. Consequently, for the Crown to succeed on both charges in this case, it must establish the remaining two elements beyond a reasonable doubt, namely:

1. J.E. was, or the accused believed him to be, under 16 years old;

2. The communication was for a sexual purpose.

9The legal requirements for each of those essential elements call for some elaboration.

1. Age of Complainant

10In Levigne, Fish J.A. of the Supreme Court stated that s. 172.1 is aimed at communications with a person “who is or who the accused believes is” under 16: paras. 23, 29, 36. That would easily capture this case, as there is no dispute that J.E. was only 14 years old at the time.

11However, in R. v. Legare, 2009 SCC 56, decided very shortly before Levigne and also authored by Fish J.A., the Court stated the provision targets communications with a person “whom the accused knows or believes to be” under 16: paras. 3, 36. This wording is on its facer broader than the language used in s. 172.1(1) of the Code, which prohibits communications “with a person who is, or who the accused believes is” underage.

12That said, the more expansive definition set out in Legare was likely triggered by the accused’s position in that case that the complainant had portrayed herself online as 17 years old, which in turn brought into play subsections (3) and (4) of s. 172.1. Subsection (3) sets up a rebuttable presumption that the accused believed the person was under the relevant age if there is evidence that the person was represented to the accused as being under that age. Under subsection (4), it is no defence that the accused believed that the person was over the relevant age unless the accused took reasonable steps to ascertain the age of the person.

13As the accused in this case is also relying upon his alleged belief that the complainant was over 16, I shall assess that issue further below when I examine the evidence at trial.

2. Communication for a sexual purpose

14Legare emphasizes that the focus of s. 172.1 is on the intention of the accused at the time of the communication by computer: paras. 29-32. Sexually explicit comments may suffice to establish criminal intent but more seemingly innocent topics may be evidence of manipulation toward the end goal of sexual exploitation.

15Importantly, the intention of the accused must be determined subjectively: he must have the specific intent of facilitating the designated offence with the person receiving the communication. In this case, with the designated offence being “invitation to sexual touching,” the Crown must demonstrate that the accused specifically intended to facilitate or bring about J.E. touching himself in a sexual manner.

Admissibility of Computer Printout

16Early in the trial the Crown sought to proffer in evidence the electronic printout of the MSN chat between C.L. and J.E. At this point C.L. had not yet admitted that he was one of the two participants in the conversation. He challenged both the authenticity and admissibility of the printout. After hearing evidence and submissions I ruled the printout admissible, with reasons to follow. These are my reasons for that ruling.

17J.E. testified that the printout consisted of virtually the entire conversation he had with C.L., “word for word.” As the conversation was ending, he felt uneasy about what had transpired and concerned about whether C.L. would try to pursue the matter again. Therefore he copied and pasted the entire conversation into a separate e-mail, which he sent to himself and then saved in a folder where he kept other important documents.

18To this day J.E. still has the document in his personal e-mail folder. When the police contacted him in 2010 regarding C.L. he provided them with a copy. The printout contains the entire conversation except for a very small portion at the end. J.E.’s unchallenged evidence at trial was that in order to capture the conversation he had to copy the exchange before the conversation ended, otherwise it would not save on his Hotmail account. That is why the tail end of it does not show up on the printout.

19J.E. testified that he never reviewed the text from the time he saved it in June 2008 until the police contacted him in April 2010. His evidence however, which I accept, was that he scrolled and highlighted the document from top to bottom before he copied and pasted it into the e-mail to himself. Nothing was omitted or altered, other than the last few lines which took place while he was e-mailing the conversation to himself. That is why he is confident it is “word for word” accurate. Moreover, its contents accord entirely with his memory of the conversation. He concedes the time stamp on the printout is inaccurate but that is because the computer was not set to the right time.

20Defence counsel challenged the admissibility of the document, alleging it failed to comply with both the authenticity and “best evidence” requirements of ss. 31.1, 31.2 and 31.3 of the Canada Evidence Act. I have rejected both those submissions.

21Dealing first with the authenticity of the printout, the authorities are clear that the authenticity requirement in the CEA does not modify the common law but merely codifies it: David M. Paciocco (as he then was), “Proof and Progress: Coping with the Law of Evidence in a Technological Age” (2013), 11 C.J.L.T. 181; and R. v. Hirsch, 2017 SKCA 14, at para. 18. The common law imposes a relatively low standard for authentication; all that is needed is “some evidence” to support the conclusion that the thing is what the party presenting it claims it to be. As Paciocco states, for the purposes of admissibility authentication is “nothing more than a threshold test requiring that there be some basis for leaving the evidence to the fact-finder for ultimate evaluation”: Paciocco, at pp.196-7.

22In this case J.E.’s uncontradicted evidence is that he copied, saved and e-mailed to himself virtually the entire conversation and then provided the police with a hard copy, i.e. a printout, of that e-mail. He recognized and identified the hard copy placed before him on the witness stand as a genuine copy of that e-mail. The printout is therefore “what it purports to be,” i.e. a complete record of the conversation, minus the last few lines. I am therefore satisfied it has been authenticated.

23Turning to the “best evidence” rules, that too is not rocket science. According to Paciocco, the primary role the “best evidence” provisions of the CEA play is merely as an “adjunct to authenticity”; they assure the court that the document submitted is the same as the one that was input into the computer: Paciocco, at p. 200. The CEA sets out four ways in which this can be done, all of which essentially provide some assurance of continuity between the data that was input and the information on the electronic document being offered in court.

24All four methods under the CEA require some proof of the integrity or reliability of the document storage system. I agree with the Crown that in this case the evidence is admissible under two of those methods. The first is under s. 31.2(1)(a), by proving the “integrity of the electronic document system” in which the document was stored. Direct or circumstantial evidence that demonstrates, on the balance of probabilities, that the electronic record in question is an accurate reproduction of the document stored on the computer is sufficient.

25In this case, the computer that the complainant used during the chat with C.L. cannot be located. When the accused was arrested his computer was seized but police did not locate any trace of the impugned exchange on it. However, J.E. testified that the printout placed before him in court was an accurate copy of the version he saved and stored in his Hotmail e-mail account; moreover, he retains that same e-mail account to this day and this e-mail has remained there throughout. That is the version that was printed out for the police. I am therefore satisfied as to the integrity of the electronic document system.

26Alternatively, the Crown may rely upon the “functioning system presumption” to establish the integrity of the electronic documents system, pursuant to s. 31.3(a). This presumption is triggered by admissible information “capable of proving” that the electronic documents system was operating properly at all material times. According to Paciocco, it “should not take considerable evidence” to prove this; if, as here, a witness testifies that he received an e-mail on a device that functions as a computer, that is circumstantial evidence that the computer system was operating properly: Paciocco, at pp. 204-207.

27The case law contains other examples where the presumption was relied upon. In R. v. K.M., 2016 NWTSC 36, at paras. 36-60, Charbonneau J. found that because the person using the computer testified that it was working properly at the relevant time, and there was no evidence to contradict him, the Crown could rely on the presumption of integrity. The weight to be attached to it is a separate matter. See also R. v. Burton, 2017 NSSC 3, at paras. 30-32; R. v. M.J.A.H., 2016 ONSC 249, at paras. 45-48; R. v. Colosie, 2015 ONSC 1708, at paras. 12-27; and R. v. Ghotra, [2015] O.J. No. 7253 (Q.L.), at paras. 148-9.

28For those reasons the computer printout was admitted into evidence. To the extent it is incomplete or inaccurate, that affects only the weight to be given it.

Evidence and Findings

1. Age of Complainant

29As noted above, J.E. was merely 14 when the impugned communication took place. However, C.L. argues that he believed J.E. was at least 16 years old at the time.

30In my view, that defence must fail for two reasons. First, during the conversation J.E. explicitly stated he was only 14 years old. In response to C.L.’s statement that he regularly makes sexual jokes with everyone he knows, including “cops at work,” J.E. stated: “but im 14 im not cop at yur work”: p. 18. Significantly, C.L. did not question that in any way. This creates a presumption under subsection (3) of s. 172.1 that C.L. believed J.E. was merely 14.

31Second, there is no evidence C.L. took reasonable steps to otherwise ascertain J.E.’s age, as required under subsection (4) of s. 172.1. The mere fact J.E. was then dating E.B., who C.L. knew was two years older, is not sufficient to rebut the presumption, especially since E.B. herself testified she was clearly aware of the age difference.

32Moreover, C.L. was a senior officer who routinely supervised young cadets ranging from 12 to 18 years of age. By the time this conversation occurred, J.E. had been under C.L.’s supervision for approximately two years. It is highly implausible that by this point C.L. did not know his true age or at least that he was well below 16.

33For those reasons I have no doubt C.L. knew J.E. was under 16 at the time of the impugned communication.

2. Communication for a sexual purpose

34As noted above, the issue here is whether the communications by C.L. were for the specific purpose of facilitating an invitation to sexual touching. The focus must be on C.L.’s words and conduct, not on that of J.E., and must demonstrate beyond a reasonable doubt a subjective intention by C.L. to facilitate or encourage sexual touching by J.E.

35The conversation in issue lasted for approximately 30 minutes, and comprises 19 pages of text. During the conversation C.L. activated his web camera, permitting J.E. to observe him. The exchange is sexual throughout, and largely consists of C.L. trying to persuade J.E. to expose his penis and spend the night with him in a hotel. There are numerous references to an incident a few weeks earlier, when C.L. arranged for J.E. and two other female cadets (E.B. and R.A.) to join him for drinks in his hotel room. C.L. was staying in the hotel overnight in preparation for the annual parade the following day. After consuming alcohol all four individuals shared sexual jokes and J.E. lifted up his shirt to reveal his stomach and upper pubic hair.

36The defence asserts that any sexual comments made by C.L. during the live chat were in jest; the entire conversation was intended as a joke. In my view, the opposite is true: the conversation was a sincere and persistent attempt by C.L. to persuade J.E. to expose his penis online, if not spend a night alone with C.L. for a sexual purpose. I rely on the following exchanges in particular:

• C.L. is the first person to propose exposing a penis, and does so on the very first page, when he suggests that J.E. must be curious to know “how big are u compared to me lol.”

• On pp. 3-4, when J.E. attempts to brush the suggestion off as a joke (“that’s why they made rulers”), C.L. persists, stating he is “curious” and then reminds J.E. that “u already showed….the top of yer cock” at the hotel and “u said u woulda showed me the whole thing.”

• C.L. then suggests “we’ll figure a way for u to spend the night”; when J.E. ignores that, C.L. then states (at p. 6) “so what if I offer u a lil money to see u hard??”, and reveals a large quantity of cash.

• When J.E., who grew up in modest means, shows interest in earning cash (“all of that?”), C.L., rather than setting J.E. straight by telling him it’s all a joke, instead begins a negotiation: “and what are u willin to show lol…if this is for pay…then u may end up cumin for the first time…with u jackin yerself.” This clearly shows C.L. is offering J.E. money if he’ll masturbate in front of him.

• When J.E. responds that “the only way ill show my cock is if there is money,” and also stipulates he wants to bring a friend along, C.L. pursues the negotiation seriously, by countering: “does that include u showin it soft?”

• Shortly after, when J.E. announces he wants to end the conversation, C.L. persists: “so why not the sleep over, just curious”; when J.E. again insists he wants a friend to accompany him, C.L.’s response (p. 17) is highly incriminating: “I am at rick of loosing my commission, goin to jail etc etc...all you would have to do is say to yer friend say he hit on me and I would be FUCKED [sic]” The only plausible reason C.L. would fear such repercussions is because he knows his behaviour is improper.

37C.L. argues that the regular use of acronyms by both participants that denote humour, e.g. “lol” (laugh out loud) and “lmao” (laugh my ass off), indicate that J.E. understood the conversation was not meant to be taken seriously. In my view, when those scattered references are seen in the larger context of the entire conversation, they have little impact on the clear and persistent intent of C.L.’s remarks, namely to persuade J.E. to masturbate in front of him.

38C.L. also points to his comments on p. 18, where he states “i joke like that with literally everyone i know including str8 [straight] cops at work…and hell half of them show it off its no huge deal.” He suggests this proves that he was just “kidding around.” I find it proves the opposite, as he is suggesting to J.E. – whom he knows is only 14 years old – that because men from his workplace show off their penis so can J.E. By his response, J.E. understood that too: “but im 14 im not cop at yur work.”

39C.L. further relies upon the evidence from both J.E. and E.B., who agreed that within the cadet world C.L. was known as a jokester and “potty mouth.” This, he says, demonstrates that he never intended for J.E. to take his suggestions seriously. However, it’s one thing for C.L. to make off-colour jokes while cadets are around; it’s another thing entirely for him, during a private conversation, to repeatedly propose and pursue a private session with a 14-year-old with the goal of having the youth expose his penis and/or spend the night with him.

40C.L. also maintains that J.E. admitted in his initial video statement to the police that he knew that C.L. wasn’t serious, because J.E. described himself as “just messing with” C.L. when they were discussing exchanging sex for money. I accept, however, J.E.’s explanation at trial to the effect that he downplayed his role to the police because he was embarrassed by his willingness to expose himself for cash. Significantly, at no point since the event has J.E. suggested he thought C.L. was joking; on the contrary, it was precisely because he was concerned about C.L.’s intentions that he then copied and saved the conversation.

41Finally, C.L. argues that because the last portion of the conversation was not saved, the court cannot accurately assess his true intentions. I reject that submission for two reasons: first, there is nothing to contradict J.E.’s evidence that only a very small portion is missing; second, as I’ve documented above, the 19 page printout in evidence contains pressing and persistent attempts throughout by C.L. to engage J.E. in sexual behaviour, making it highly unlikely that anything said at the very end was much different.

Disposition

42For the foregoing reasons, I find that C.L., via a computer chat, invited J.E. to touch himself for a sexual purpose, while knowing J.E. was under 16 years of age. C.L. is therefore guilty under both s. 152 and s. 172.1(1)(b) of the Criminal Code.

Baltman J.