CITATION: R. v. Garry Phillip Allen, 2017 ONSC 3798
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
GARRY PHILLIP ALLEN
The Accused
K. Hull, for the Crown
J. Sickinger, for the Accused
HEARD: February 9, March 13, 15 & 16, 2017 followed by Submissions
In Writing
REASONS FOR JUDGMENT
DiTOMASO J.
INTRODUCTION
1Garry Phillip Allen has been charged with four counts under s. 172.1(1) (b) of the Criminal Code of Canada (child luring). The designated offences that Mr. Allen is alleged to have facilitated are: Making child pornography, invitation to sexual touching, sexual interference and sexual assault.
2Mr. Allen has also been charged with one count of making sexually explicit images available to a child, pursuant to s. 171.1(1) (b) of the Criminal Code.
OVERVIEW
3On April 16, 2014, O.P.P. D. C. Wohlert was assigned to the Internet Child Exploitation Unit, as part of his duties conducted a “sting” operation where he posed as a child on websites that, in his experience, were used by child predators. He browsed the sexual encounters area of Craigslist, Barrie, looking for advertisements that could be related to child exploitation. He noted an advertisement requesting “a young woman” and “prefer under 110 pounds”. He sent a private message to the person who posted this advertisement, posing as “Jenny”, a 14 year old girl from Innisfil. D. C. Wohlert sent a “selfie” picture to “Garry” as “Jenny”.
4Over approximately two months, “Garry’s” messages included sending “Jenny” links to two pornography websites, RedTube and Badjojo; asking whether “Jenny” had her period yet; requesting nude photographs though, ultimately, he instead asked for a picture in yoga pants; commenting on her “sexy” body; asking whether “Jenny” masturbated and offering to direct her on how to do so; stating that he would like to have his tongue all over “Jenny’s” body and make her “feel like a woman”; and after talking about a meet-up, stating “if we meet on Wednesday and im not to gross for you can i touch your little butt [sic].”
5“Garry” sent a photo of himself in a Maple Leafs hoodie to “Jenny.” Like the photos sent by the D. C. Wohlert, “Garry’s” photo did not show his face.
6Ultimately, “Garry” arranged to meet with “Jenny” on June 11, 2014, at a park in Innisfil. Prior to the meeting, “Garry” cancelled, saying that he had to cover for a colleague at work.
7By this point, D. C. Wohlert had obtained details about the I.P. address used by “Garry.” The customer details associated with that particular I.P. address showed Garry Phillip Allen of 101 Compton Crescent in Innisfil.
8Later that evening, after receiving judicial authorization, D. C. Wohlert and several O.P.P. and South Simcoe Police officers went to 101 Compton Crescent. There, they found Mr. Allen in the home. His wife and infant granddaughter were also present. Mr. Allen was arrested and transported to the South Simcoe police station, where he provided a statement to the D. C. Wohlert.
9Officers searched 101 Compton Crescent, and discovered a desktop computer with a user profile called “Garry.” Forensic examination retrieved photographs that were sent between “Jenny” and “Garry”, chats between them, and repeated use of the email address that “Garry” had provided to “Jenny.” Police also located a Maple Leafs hoodie which appeared to match the one worn by “Garry” in a photo.
THE CHARGES
10Garry Phillip Allen has been charged with four counts under s. 172.1(1) (b) of the Criminal Code of Canada (child luring) as follows:
Between the 16th day of April, in the year 2014, and the 11th day of June, in the year 2014, at the Town of Bradford, he did, using a telecommunications system, communicate with a person believed to be under the age of 18 years for the purpose of facilitating the commission of an offence of sexual assault.
Between the 16th day of April, in the year 2014, and the 11th day of June, in the year 2014, at the Town of Bradford, in the said region, he did using a telecommunications system, communicate with a person believed to be under the age of 16 years for the purpose of facilitating the commission of an offence of invitation to sexual touching.
Between the 16th day of April, in the year 2014, and the 11th day of June, in the year 2014, at the Town of Bradford, in the said region, he did using a telecommunications system, communicate with a person believed to be under the age of 18 years for the purpose of facilitating the commission of an offence of making child pornography.
Between the 16th day of April, in the year 2014, and the 11th day of June, in the year 2014, at the Town of Bradford, in the said region, he did using a telecommunications system, communicate with a person believed to be under the age of 16 years for the purpose of facilitating the commission of the offence of sexual interference.
11Mr. Allen has also been charged with one count of making explicit images available to a child, pursuant to s. 171.1(1)(b) as follows:
Between the 16th day of April, in the year 2014, and the 11th day of June, in the year 2014, at the Town of Bradford, in the said region, he did using a telecommunications system, communicate with a person believed to be under the age of 16 years for the purpose of making available sexual explicit material.
12Mr. Allen plead not guilty to all charges and testified that when he was chatting with “Jenny”, he did not believe he was communicating with someone who was under the age of 16 years. He thought “Jenny” was an adult. Further, with regards to his sexualized conversation with “Jenny”, he testified that he was role-playing on the Internet in order to ingratiate himself with his co-workers and had no intention of having sexual relations with anyone under the age of 16. It is submitted by the defence that the Crown has not proven these charges beyond a reasonable doubt.
13The Crown submits that Mr. Allen’s evidence ought to be rejected. The Crown submits that the evidence of Mr. Allen to the effect that he did not believe that “Jenny” was under the age of 18 is not to be believed and does not raise a reasonable doubt. Further, the Crown relies upon the rebuttable statutory presumptions found at ss. 171.1(3), (4) and 172.1(3), (4). The Crown submits that all of the charges against Mr. Allen have been proved beyond a reasonable doubt.
THE LAW
14Mr. Allen is presumed to be innocent, unless and until the Crown proves his guilt beyond a reasonable doubt. The presumption means that he started the trial as an innocent person and the presumption remains with him until the Crown has met that burden of proof. Mr. Allen does not have to prove anything in relation to the elements of the offences. The burden of proof remains on the Crown.
15The burden on the Crown is a heavy one, proof beyond a reasonable doubt – a very important part of our criminal justice system. A reasonable doubt is not a far-fetched or frivolous doubt, nor is it a doubt based on sympathy or prejudice. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence or lack of evidence. It is not sufficient for the Crown to prove that Mr. Allen is probably or likely guilty. Were those to be the findings, he would be acquitted, as neither equate to proof beyond a reasonable doubt. What is required is that I am sure of his guilt. Otherwise, he must be found not guilty.
The Legislation
Making sexually explicit material available to child
171.1(1) Every person commits an offence who transmits, makes
available, distributes or sells sexually explicit material to
(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.
Punishment (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 not more than two years and to a minimum punishment of imprisonment for a term of 90 days; or
(b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than six months and to a minimum punishment of imprisonment for a term of 30 days.
Presumption (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 18, 16 or 14 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.
No defence (4) It is not a defence to charge under paragraph (1)(a), (b) or (c) that the accused believed that the person referred to in that paragraph was at least 18, 16 or 14 years of age, as the case may be, unless the accused took reasonable steps to ascertain the age of the person.
Definition of sexually explicit material (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
a sexual 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.
2012, c.1, s.21; 2014, c. 25, s.8
Luring a Child
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 under subsection 153(1), section 155, 163.1, 170 or 171 or subsection 212(1), (2), (2.1) or (4) with respect to that person;
(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;
(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.
Punishment (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 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.
Presumption re age (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.
No defence (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.
2002, c. 13, s. 8; 2007, c. 20, s. 1; 2008, c. 6, s. 14; 2012, c. 1, s. 22.
Internet Luring
16The three elements of Internet luring are:
(i) An intentional communication by computer;
(ii) With a person whom the accused knows or believes to be under age (or who is under age); and,
(iii) For the specific purpose of facilitating the commission of a specified secondary offence with respect to the underage person: R. v. Legare, 2009 SCC 56, [2009] 3 S.C.R. 551, at para. 36.
17In the case at bar the designated offences that Mr. Allen is alleged to have facilitated are making child pornography; invitation to sexual touching; sexual interference, and sexual assault.
18The focus of internet luring is on the intention of the accused at the time of the communication by computer: Legare at para. 29.
19The Crown must establish beyond a reasonable doubt the accused engaged in the prohibited communication with the specific intention of facilitating the commission of the designated offence with the underage person: Legare, at para. 32.
20“Facilitating” includes helping to bring about and making easier or more probable; for example, by luring or grooming the young person to commit or participate in the prohibited conduct by reducing their inhibitions, or by prurient discourse that exploits the young person’s curiosity, immaturity or precocious sexuality: Legare, at para. 28.
21In Legare and in R. v. Levigne, 2010 SCC 25, [2010] 2 S.C.R. 3, the court held that s. 172.1 creates an incipient or “inchoate” offence, that is, a preparatory crime that captures otherwise legal conduct meant to culminate in the commission of a completed crime. It criminalizes conduct that precedes the commission of the sexual offences to which it refers, and even in an attempt to commit them. Nor, indeed, must the offender meet or intend to meet the victim with a view to committing any of the specified secondary offences. This is in keeping with Parliament’s objective to close the cyberspace door before the predator gets in to prey: Legare, at para. 25, Levigne, at para. 27.
22In addition, in respect to s. 172.1(4) the “reasonable steps” requirement imposed by that subsection was meant by Parliament to foreclose successful claims of mistaken belief, absent any objective evidentiary basis: Levigne, at para. 35.
23The Court held that s. 172.1 criminalizes otherwise lawful conduct when its specific purpose is to facilitate the commission of a specified secondary offence with respect to an underage person: Legare, at para. 28.
Section 172.1(3) and (4)
24Sections 172.1(3)(4) create a rebuttable presumption that the person represented to the accused as being underage is underage or was believed by the accused to be underage.
25Section 172.1(4) provides the accused with the defence that he believed the person was not underage, as long as the accused took “reasonable steps” to ascertain the person’s age.
26Fish J., writing for the unanimous Supreme Court in Levigne, defined the evidentiary burden required to rebut the presumption in s. 172.1(3).
27In that case the appellant communicated by computer for a sexual purpose with an undercover police officer posing as a 13 year old boy. The sole issue at the trial was whether the appellant reasonably believed he was communicating with a person over the age of 18.
28Justice Fish found sections 172.1(3) and (4) have a combined effect. The “evidence to the contrary” required in ss. (3) includes evidence the accused took reasonable steps to ascertain the age of the other person, as required in ss. (4) – thereby shutting down mistaken belief as a defence, absent an objective evidentiary basis.
29Justice Fish stated that in a statutory provision of this sort, evidence to the contrary does not impose a persuasive burden of proof on the accused but rather must be evidence with probative value on the issue of whether the accused took reasonable steps to ascertain the age of the person with whom he was communicating. The presumption facilitates the prosecution of child luring offences while leaving intact the burden on the Crown to prove guilt beyond a reasonable doubt. “This presumption is rebuttable, it will be displaced by the evidence to the contrary, which must include evidence that the accused took steps to ascertain the real age of the interlocutor. Objectively considered, the steps taken must be reasonable in the circumstances.”
30The persuasive burden remains with the Crown.
Making Sexually Explicit Material Available to a Child
31Section 171.1(1) of the Criminal Code, sets out the criminal offence of making sexually explicit material available to children by transmitting, making available, distributing or selling such material for the purpose of facilitating the various sexual offences against children. It incorporates in great detail the case law and legislative amendments previously referred to regarding the law on child luring, including the rebuttable presumption and reasonable steps to ascertain age requirements.
THE EVIDENCE
The Police Witnesses
32A number of police officers testified by way of blended voir dires and at trial. Counsel agreed that their evidence on the voir dires was admissible for the purposes of trial with the exception of the evidence of any interaction between Sergeant Thomas and Mr. Allen while they were in the kitchen and on the deck of the Allen home. Counsel also agreed that all exhibits on the voir dires with the exception of voir dire Exhibit 9 were admissible as exhibits for the purposes of the trial.
33The Crown called evidence from the following police officers:
(a) P. C. Veronica Sloan ( Ontario Provincial Police)
(b) Sergeant Leah Thomas (South Simcoe Police Service)
(c) D. C. Holly Murray (South Simcoe Police Service)
(d) P. C. Nicole Kostiuk (South Simcoe Police Service)
(e) D. C. Cameron Shields (South Simcoe Police Service)
(f) P. C. Christopher Batemen (Ontario Provincial Police)
(g) S. P. C. Daniel Bingham (Ontario Provincial Police)
(h) D. C. Brian McDermott (Ontario Provincial Police)
(i) D. C. Kip Wohlert (Ontario Provincial Police)
(j) Inessa Pesenko (Agreed Statement of Facts)(Ontario Provincial Police)
34A number of the officers were involved in the investigation of this case for child luring, obtaining a search warrant and attending the Allen residence. At the Allen residence certain officers were involved in Mr. Allen’s arrest and the execution of the search warrant pursuant to which various items of property were seized including an HP computer owned by Mrs. Allen which Mr. Allen used to access the internet, and a Toronto Maple Leaf hoodie belonging to Mr. Allen. In addition to the HP computer and the hoodie, a cell phone was also seized.
35Other police officers were involved in transporting Mr. Allen to and dealing with Mr. Allen at the police station where he was interviewed by D.C. Wohlert and gave a statement.
36S.P.C. Bingham is a Digital Forensic Analyst, employed by the Ontario Provincial Police. He attended at the Allen residence at 101 Compton Crescent in Bradford. Pursuant to the search warrant, he previewed the hardware on an HP desktop computer. He found messages with “Jenny W” through Craigslist and he also found two photos in a profile labeled ”Garry Allen” showing a white person wearing a Toronto Maple Leaf hoodie holding up three fingers.
37Inessa Pesenko is an OPP officer who conducted a computer search of the HP computer pursuant to the search warrant. Her Agreed Statement of Facts was read into the record, Exhibit 13 on the voir dire. She also prepared a report dated October 30, 2015, marked as Exhibit 15.
38I do not propose to review the evidence of each and every one of these officers except where necessary. I will deal with the evidence of P. C. Sloan and D.C. Wohlert later in these Reasons.
THE CHAT LOG
Evidence of Inessa Pesenko
39Inessa Pesenko testified about her search of the HP computer seized at the Allen residence. Her Agreed Statement of Facts (Exhibit 13) was admitted into evidence for the purpose of trial and reads as follows:
Ms. Pesenko is employed with the Technological Crime Unit of the Ontario Provincial Police as a computer forensic analyst. She has been employed there since December of 2014.
She first became involved in the matter before the court on February 3rd, 2015. She was assigned to conduct a search of the computer seized from the Allen residence. The search was conducted as the result of a request made by D.C. Wohlert.
Prior to conducting the search Ms. Pesenko reviewed a copy of the telewarrant to search 101 Compton Cres. in Bradford on June 11th, 2014. She checked that the correct address and name were listed and that the warrant was signed by a Justice of the Peace to confirm the warrant related to the case assigned to her. She checked the search terms listed in Appendix A of the warrant. She had no access to the Information to Obtain the warrant. She does not the have training [sic] or authority to make any other determination of validity with respect to the warrant. She did not receive any other information with respect to the validity of the warrant with respect to this search. She relies on the police officers involved to make that determination, D.C. Wohlert in this instance.
Ms. Pesenko conducted a search for evidence relating to the investigation of Mr. Allen. She conducted her investigation using a forensic copy of the data from the computer seized from the Allen residence. This data is a complete copy of the entire contents of the computer. This is done to protect the integrity of the original data. This copy was created in December of 2014 by another employee of the Technological Crime Unit John Coe.
Evidence relating to the matter before the court was located. Ms. Pesenko created a report detailing her findings.
Following the preliminary inquiry Ms. Pesenko conducted a further search of the copy of computer seized from the Allen residence. This was conducted after the preliminary inquiry was completed and before October 30, 2015. This was done on Mr. Pesenko's own initiative and not as a result of a request from D.C. Wohlert. Ms. Pesenko created a further report outlining her findings.
At all times Ms. Pesenko relied on the authority of the June 11th, 2014 warrant to conduct her searches. There was no other warrant or authority provided to her.
40In addition to the Agreed Statements of Facts, Ms. Pesenko gave viva voce testimony. Filed as Exhibit 15 was her report dated October 30, 2015. Her findings are summarized at pages 5, 6 and 7 as follows:
a) On June 11, 2014, Detective Constable Kip Wohlert from the OPP Child Sexual Exploitation Unit at General Headquarters submitted a Search Warrant to the OPP Technological Crime Unit for the attendance of the TCU personnel at a search warrant in the town of Bradford, Ontario for charges related to offences 172.1(1)(a) and 172.1(1)(b).
b) This search warrant was executed on June 11, 2014. Several computer and storage devices were previewed on-scene. One computer and one cell phone were seized from the search warrant residence at 101 Compton Crescent, Bradford.
c) On June 12, 2014, Detective Constable Kip Wohlert from the OPP Child Sexual Exploitation Unit submitted two (2) devices to the OPP Technological Crime Unit for the processing of devices for charges related to offences 172.1(1)(a) and 172.1(1)(b).
d) The devices that were submitted to TCU were assigned the following TCU evidence number:
Item #013750 – is one Samsung cell phone, S/N=N/A
Item #013751 – is one HP Pavilion 6700F, S/N:MXX8510348
e) All submitted computer devices were forensically acquired by December 02, 2014 by Civilian John COE.
f) Undercover officer D/C Kip Wohlert began an investigation using a Craigslist account and was corresponding using Craigslist message ID
94dec669c6583efab4689579D.C.84c6be@reply.craiglist.org. Undercover officer used “Jenny W” undercover name and will be referred to as “Jenny W” in this report.
g) As a result of forensic analysis reference to “Jenny W” was found on HP computer Item #013751.
h) As result of forensic analysis picture(s) of person in Leaf jersey holding up 3 fingers was found on HP computer Item #013751.
i) As a result of forensic analysis conversation between HP computer user and Craigslist user 94dec669c6583efab4689579D.C.84c6be@reply.Craigslist .org was found on HP computer Item #013751.
j) As result of forensic analysis it was determined that on April 16, 2014 user of HP computer logged onto the “garry allan” account and used Craigslist account # 4421152680/cbvkd-4421152680@pers.Craigslist .org to participate in conversation with Jenny W introduced to him as a 14 year old girl.
k) Recovered date on suspect’s computer shows that conversation between computer user and Craigslist user 94dec669c6583efab4689579D.C.84c6be@reply.Craigslist .org started on April 16, 2014 and continued over period of months April, May and June 2014. During the conversation Craigslist user #4421152680 pointed out to Jenny W that Craigslist posted advertisement’s description was “I’m looking for sex with a young woman”. Craigslist user #4421152680 invited Jenny W to chat about sex, asked Jenny W to take a nude picture of herself, suggested Jenny W to visit porno sites, referred to Jenny W as “sexy”, and invited Jenny W to meet.
l) As a result of forensic analysis reference to gmx1966@hotmail.ca was found on HP computer Item #013751.
m) As result of forensic analysis reference to “Garry” “Allen” was found on HP computer Item #013751.
n) A result of forensic analysis reference to “jenny_Sk8rgurl_12” in form of “jennySk8rgurl.12” was found on HP computer Item #013751.
Evidence of D. C. Wohlert
41D. C. Wohlert testified as to his interaction as “Jenny” or “Jenny W” with “Garry”. He testified that there was a computer program used by his office to capture and record the “chats”. That program enables all of the different chats to populate from his computer into the format which is the Chat Log Book.
42D. C. Wohlert gave the following evidence.
43D.C. Wohlert has been an officer with the Ontario Provincial Police for 29 years. Since 2006 he has been a member of the Child Sexual Exploitation Unit. He compiled the chat log.
44Marked Exhibit Ten (Exhibit 7A of the Preliminary Inquiry) is the chat log of the communications between D.C. Wohlert and a person whom we later learned was Mr. Allen. All of the 509 emails are located in Exhibit Ten.
45D.C. Wohlert described his duties in the unit. He was involved in investigating online exploitation of children and was specifically tasked to investigate the online luring offences, both reactive and proactive. He also presents lectures to various community organizations and to police services.
46D.C. Wohlert described the difference between proactive and reactive investigations. The proactive investigations would be similar to the investigation in the case at bar. In such investigations he monitors the social network sites and identifies persons who might be exploiting children online. The reactive investigations are those following up on complaints reported to the police.
47D.C. Wohlert testified that in this investigation he entered into the website known as Craigslist. He was looking for advertisements that had word similar to “young” and “any age” that he could potentially investigate. He started reviewing this website on April 16, 2014.
48D.C. Wohlert testified that on April 16, 2014 at 2:05 p.m. he observed that an unknown person had posted an advertisement looking for a “young woman”, “prefer under 110 pounds”, “for sexual encounters”. These key words raised a suspicion that the young woman being sought had a petite stature and could be a child.
49D.C. Wohlert described the search of this particular website which had resulted in a number of arrests in the past. D.C. Wohlert sent a response on April 16, 2014. The purpose of his email response was to provide an opportunity for this unknown person to respond. D.C. Wohlert posed as a 14 year old girl with blond hair, five foot tall, weighing 90 pounds and living in Innisfil. He gave that person the opportunity to respond or not. “Guess we can chat if u want to”. He testified that this site was a known predatory website for child exploitation which he explored as part of a bona fide criminal investigation.
50On April 16, 2014 at 4:33 p.m. an unknown person responded to the email and a conversation started and continued over the following two months.
51At that point in his evidence, D.C. Wohlert referred to Exhibit Ten, the chat log, and was taken through the series of chats, 509 in all, between himself, posing as “Jenny W”, and the other person on the Craigslist account number 4421152680. Throughout, D.C. Wohlert used the email address JennyWsk8rgurl.12@gmail.com.
52D.C. Wohlert was taken through the 509 email exchanges compiled in the chat log (Exhibit 10). Those emails commenced on April 16, 2014, and ended on June 1, 2014. These emails were an exchange between D.C. Wohlert, posing as “Jenny W”, and the person at Craigslist 4421152680, identified as “Garry.” That person was later identified as Garry Allen. Throughout these email exchanges, D.C. Wohlert portrayed “Jenny W” as a 14 year old girl. The initial posting came from Mr. Allen who was looking to have sex with a young woman under 110 pounds. From email number 49 forward there was talk about pictures. At email 54 Mr. Allen asks “Jenny” to take a selfie of her body but not her face and hold three fingers up so that he would know it was her.
53Email 61 is the response in relation to the picture. At email 65, Mr. Allen tells “Jenny” to send the picture to GMX1966@hotmail.com. D.C. Wohlert continues the chat through the Craigslist account number. At email 69 Mr. Allen sends a message about needing a picture to know that he is chatting with a woman and if he does not get a picture then they will not chat anymore.
54D.C. Wohlert testified that he did not have a picture immediately available. However, he did obtain a picture from Detective Gibbons of his office. Her face was not depicted. This photo was sent to Mr. Allen on April 23, 2014, by email 74.
55D.C. Wohlert testified that he continued portraying himself as “Jenny”, a 14 year old girl. He testified that he carried on because it was his duty to determine whether this was a child exploitation case. By sending the picture, he was complying with the earlier request. It was up to Mr. Allen to decide if he wanted to discontinue chatting.
56There are further chats after the picture was sent. There was some chat by Mr. Allen that he would send “Jenny” a “cock pic” if she were older but he did not want her to get into any trouble if her mother found the picture. There are further emails where “Jenny W” was complimented by Mr. Allen as being very sexy.
57At email 84 he asks if “Jenny” has let a guy play with her very hot sexy body. D. C. Wohlert continues to maintain the persona of “Jenny W”, a 14 year old girl. At email 102 on April 25, 2014, he sends a picture as an attachment Still0000.BMP to “Jenny”. This is a picture of Mr. Allen seated with the photo depicting his crotch area. They continued to chat. At email 117, “Jenny” tells Mr. Allen that she has purchased some new jeans. At email 118 dated April 27, 2014, Mr. Allen asked “Jenny” to send him a selfie of her “tight ass”. At email 153, Mr. Allen asks “Jenny” if she has ever watched porn movies, to which “Jenny” replies “No”. Mr. Allen indicates that he has and directs “Jenny” to a site called “Badjojo” by email dated April 28, 2014. He tells her that she can turn off the “history” on the laptop so that her parents will not know what she has seen.
58At email 178, Mr. Allen tells “Jenny” that if she does not like “Badjojo” there are more free sites. She is asked at email 185 whether or not she has checked out “Badjojo”. At email 202 dated April 30, 2014, Mr. Allen directs “Jenny” to another porn website called “Redtube”.
59D.C. Wohlert testified that “Badjojo” and “Redtube” are adult porn sites that depict both soft and hard core pornography. He describes what each term meant. They were intended for persons over the age of 18 and depicted simulated sexual acts as well as extremely explicit sexual activities between adults and animals.
60The chats continued, again talking about sex. At email 242 dated May 12, 2014, “Jenny” chats with Mr. Allen about a pic from “Jenny” holding up three fingers so he would know she was real.
61At email 281 dated May 17, 2014, “Jenny” sends Mr. Allen a pic of “Jenny” wearing black yoga pants (Exhibit Two on the voir dire). “Jenny’s” email refers back to Mr. Allen’s email, 273, dated May 15, 2014, about the black yoga pants. The picture of the person in the black yoga pants is that of P.C. Sloan.
62At email 285, dated May 17, 2014, “Jenny” asks, “…is it ok that im 14 years old????” And Mr. Allen replies at email 286 on the same date that, “…is okay and yes I really like your pic”.
63Mr. Allen asks for a front view of her “sexy body” in her black yoga pants at email 288 on May 18, 2014. At email 306, “Jenny” sends Mr. Allen the “pic” he requested, holding three fingers up so that he would know it was her. This picture is of P.C. Sloan once more wearing black yoga pants facing a mirror.
64At email 308, dated May 20, 2014, “Jenny” tells Mr. Allen that she “…will be 15 years old in july”. At email 313 dated May 20, 2014, Mr. Allen again asks “Jenny” if she “…would be embarrassed if I sent you a cock picLOL”. He never does send her such a photograph.
65However, at email 327 he does send her Still0000.BMP being a photograph of himself wearing a Toronto Maple Leafs hoodie, holding up three fingers. “Jenny” acknowledges receiving this picture. There is chatting about a meet but the meeting never happens.
66At email 377, Mr. Allen requests another “pic” of “Jenny”:
can you send me another one with a little less clothes on . so i can see that sexy body more.
67That email is dated May 27, 2014. At email 381, Mr. Allen sends this message on May 27, 2014:
how about your bathing suit or less its up to you
68He goes on to chat that “Jenny” does not have to if she feels embarrassed. At email 386, “Jenny” asks if Mr. Allen is serious, that he wants to see her naked. He replies by email 387, dated May 27, 2014:
with a bathing suit only naked if you feel comfortable
69She replied that she had never done so before and would be too embarrassed to do so. He responded that she should forget that he asked and that he did not want her to feel weird by the request:
your to nice for me to piss you off.
70That message was contained in email 390 dated May 27, 2014. The chat about pictures from “Jenny”, naked or otherwise, continued, starting with email 396, sent by “Jenny” on May 27, 2014. She asks:
like totally naked or???
71He responds by email 397 on the same date:
what ever you like top on or off with panties on what ever your comfortable with sexy
72At email 414, dated May 30, 2014 and preceding, there is further discussion about seeing naked pics of “Jenny’s” body.
73At email 416, dated May 30, 2014, Mr. Allen asks “Jenny”:
you don’t have to answer this question but do you play with your self
74“Jenny” responds:
Not really….is that ok????
75The chats continue about having sex, “playing with yourself” and the following message by Mr. Allen to “Jenny” at email 427, dated May 30, 2014:
bye for now sexy and have a great weekend. to bad i couldnt coach you into playing with your self before your parents get home.
76He goes on at email 430, same date:
i could tell you what to do and close your eyes and think of me with my tongue all over your body
77“Jenny” responds at email 431 on the same date:
really????u would want to do that?????
78Mr. Allen replies at email 432 on May 30, 2014:
yes and i know you would love it
79The chat continues on the same date with Mr. Allen chatting at email 436:
yes i would make you feel like a woman
80The chats about “Jenny” masturbating do not end there. The chats continue at email 438, 439 and 440, where Mr. Allen asks “Jenny” if she was thinking about:
playing with your self with my direction
81This was at email 440, dated May 30, 2014. There are further discussions about Mr. Allen wanting to take pictures of “Jenny” after school was over at email 456, dated June 3, 2014.
82At email 463, dated June 4, 2014, Mr. Allen tells “Jenny” that he’d love to meet her. At email 464 on the same date he tells her that he cannot stop thinking of holding his hands on:
…your little beautiful bum.
83At email 467, dated June 4, 2014, he tells “Jenny” as he has told her before that he is 45:
…i could go to jail just thinking about you.
84The chats continue with further discussion about “Jenny” sending Mr. Allen “pics”. In email 495 dated June 6, 2014, Mr. Allen talks about meeting:
if we meet on Wednesday and im not to gross for you can i touch your little butt.
85There is chatting about going for a walk in the park on Wednesday. However, Mr. Allen could not meet on Wednesday. However, at email 506 dated June 11, 2014, he goes on to chat:
i want to meet you you sexy thing you
86The last message is email 509 by “Jenny” dated June 11, 2014, where she tells Mr. Allen that she is going to go for a walk with a friend and hang out at home until her parents return.
87D.C. Wohlert testified that Exhibit 10 (the chat log) represents the entire chat between himself posing as “Jenny” and Mr. Allen. The exhibit was produced for the court. All emails were obtained directly from Google mail and laced into a format created by officers in his office. The emails are put in order to create a thread using a tool available to the officers without changing any of the original chat wording.
88On June 10, 2014, D. C. Wohlert received the following subscriber information from Craigslist, set out on that page. The posting identification number was 4421152680. This was the posting ID of the person who was messaging “Jenny”. Poster email GMX1966@hotmail.com was the email of the person creating the Craigslist profile to set up an account on Craigslist. The poster internet protocol was number 64.231.106.14. The account was set up on Sunday, April 13, 2014. The area description was Barrie and the geographic area was Bradford. The category description was “Casual Encounters” and the category type was “personals”. The age listed was 45. The posting title was “want to fuck a young woman – M4W”.
89On June 10, 2014, D. C. Wohlert learned the internet protocol address 64.231.106.14 as at Sunday, April 13, 2014 at 12:09 Pacific Time, was registered to “Garry Phillip Allen, 101 Compton Cr. Bradford, Ontario”.
90D.C. Wohlert continued working on the ITO for a s. 487 search warrant on June 9, 2014. He continued working on other investigations as well.
91He was seeking to search computers and other devices linking Mr. Allen to images, chat logs and email messages.
92On June 11, 2014 at the conclusion of the chats, D.C. Wohlert believed that the person he spoke with had committed a number of offences through the use of a computer, such as sexual assault, invitation to sexual touching, making child pornography and making available sexually explicit material. The child pornography offence was based on requests from Mr. Allen to the 14 year old girl wanting to see naked pictures of herself.
93He had commenced working on the ITO on June 11, 2014 at 10:30 a.m. He worked throughout the day on the ITO, hoping to obtain a warrant sometime during the day and then executing the search warrant further to the investigation.
94The ITO, when completed, was to go to the Barrie Courthouse. He was unable to complete the ITO in time and was advised by Sergeant Thomas that the ITO would not be accepted after 3:30 p.m. The problem was that no Justice of the Peace would be available after that time to review the ITO. It was D.C. Wohlert’s intention to complete the ITO before 3:30 p.m. and then travel to Barrie with the ITO to present it to a Justice of the Peace. That never happened. As a result, a telewarrant document was prepared. D.C. Wohlert explained that there were a number of other child exploitation arrests which had occurred within a short period of time. These arrests were reported by the media and he was concerned about potentially alerting anyone else with the effect that evidence would be either deleted or destroyed. He was concerned about the media publicity and the destruction of evidence. He was aware of another case where, in the midst of an online communication, the suspect had heard that someone was arrested for talking to a child which resulted in the end of a conversation at that point in time. There was nothing else before June 11, 2014 that factored into obtaining the search warrant, apart from what was contained in the chats.
95D.C. Wohlert finished writing the ITO at 6:14 p.m. The ITO was faxed to the telewarrant center at 6:36 p.m. as a result of a technical difficulty with this fax machine. At 7:11 p.m. he received the authorization signed by Justice of the Peace Brownell. D.C. Wohlert then briefed his team and proceeded to 101 Compton Crescent. Marked as Exhibit 11 was the ITO telewarrant (marked Exhibit Eight at the Preliminary Inquiry).
96At 7:54 p.m. D. C. Wohlert arrived at the Allen residence. He conducted the briefing and assigned duties to various officers. He decided what items would be seized. He found Mr. Allen, his wife, and one child at home. D.C. Wohlert identified Mr. Allen seated at counsel table in court. Sergeant Thomas was assigned to take control of Mr. Allen. D.C. Wohlert was not involved with Mr. Allen’s arrest. He was involved in supervising the search and seizure. He had no interaction with Mr. Allen except for the online chats and Mr. Allen’s subsequent interview.
97The time on the telewarrant granted for the search was from 7:15 p.m. to 11:59 p.m. on June 11, 2014. This later time was not requested in the ITO but rather 8:59 p.m.
98D. C. Wohlert testified that the police arrived at 7:54 p.m. and at that time it was dark. Certain items were seized and given to D.C. McDermott. On the following day, June 12, 2014, D.C. Wohlert received a computer tower and cell phone which were brought to the Electronic Crime section at Orillia Headquarters and secured in their vault. D.C. Wohlert was not involved in the transportation of Mr. Allen to the Bradford Police station.
99He next saw Mr. Allen at the Bradford station where he conducted an interview of Mr. Allen in the audio/video recording room. Another officer was the monitor. His notebook shows that at 11:30 p.m. he concluded his duties for the day on June 11, 2014.
100Mr. Allen was brought from the cells to the interview room. D.C. Wohlert could not recall by whom. He did not have any conversation at the station with Mr. Allen prior to the interview.
101Viewed on the voir dire was the video/audio recording of Mr. Allen’s interview with D.C. Wohlert on June 11, 2014. The CD of this interview was marked Exhibit 12. Mr. Allen’s interview was videotaped at the South Simcoe Police Service station at Bradford. His videotaped statement commenced at 10:15 p.m. and ended at 11:20 p.m. D.C. Wohlert explained the offences with which Mr. Allen was charged and Mr. Allen understood that explanation.
102In addition to the evidence of D.C. Wohlert given on the blended voir dire, regarding conversations between “Jenny” and “Garry”, he also gave further viva voce evidence.
103He testified that images of P.C. Sloan and P.C. Gibbons were obtained from them. He had explained to each of them that these images would be used as part of police investigative technique. It was explained to them that these images could be used in other police investigations. There was no expectation that their images would be kept private. Marked at Exhibit 2 on the trial is a DVD of photos (2) which were the subject of a sealing order at the preliminary hearing. At the request of the Crown, the sealing order continued.
104In cross-examination, D.C. Wohlert testified that his investigation began by proactive search of the Casual Encounters ads contained in Craigslist. He was posed as “Jenny”. It was his experience that Craigslist was a known place of criminal activity. He had conducted a large number of investigations of the Craigslist site and had made a large number of arrests. There were many ads placed on Craigslist. He agreed that prior to entering onto Craigslist there is a disclaimer a person must be 18 years of age and a caution of potential adult content. A user would need to acknowledge and click onto the disclaimer.
105He testified that in 2013-2014 over a period of a year and a half, he had conducted 81 Craigslist investigations in an undercover capacity posing as a child. Arising out of those investigations, there were three arrests contemporaneous with the investigation involving Mr. Allen. Those arrests over the year and a half period arose out of his daily monitoring Craigslist. He agreed that on a monthly basis he would look at 1,000 ads on Craigslist.
106He would use key words as identifiers where there were ads giving rise to suspicion. He testified as to various key words he would use. He described how he would click on Craigslist Casual Encounters and, check a title and then proceed to view the full ad. This was how he came upon the initial advertisement. D.C. Wohlert posing as Jenny responded to the advertisement. He described how the “chat log” was generated by a message sent through a computer to the Craigslist server to the responding computer.
107He testified that the original emails were on a different format. The “chat log” was created by a software program that put the chats in chronological order for ease of court use. The “chat log” does not consist of screenshots of original emails. Rather the “chat log” is a compilation of chats by use of a particular software program. He did not know how that program operated. He testified that all data was captured from the computer into the compilation. He did not know exactly when this was done but sometime during the disclosure process. All the messages were received in his Gmail account. He did not create an independent record but those messages remain the computer. He did not create a separate message as back-up.
108In the ITO, there were some screenshots. Approximately 100 to 200 messages of the 509 messages were used. These screenshots were taken at various times throughout the investigation. He did not know if any messages were missing. He testified that all messages were captured and presented to the court. The software program created the compilation of all the chats on the Google mail account. He relied on the Gmail account to capture the messages. The Gmail account did not notify him of any problems with the account. There was no issue in respect of the account.
109He described how the program enters the “Jenny” account address and the Craigslist number 4421152680@prs.Craigslist .org. The program pulls out all the chats back and forth and puts them in a compilation format starting with email number 1. These emails are only between the JennySkrgurl.12@gmail.com and the Craigslist 4421152680 addresses. He testified that the program creates an exact copy of the emails - date, time and content. He did not know the time that the emails were received or sent. He did not reconcile the universal time stamp or compared dates. The time stamps in the “chat log did not match the original email time stamp. There is a tool used to convert the UTC stamp but that was not used by him in this case.
110The only two addresses in this investigation were the addresses between “Jenny” and the Craigslist address 4421152680. He testified that no messages were sent outside of these two addresses.
111He did acknowledge that there were some emails that were the gmx1966 Hotmail address. He did notice this as one of the emails within the thread of communications between “Jenny” and the Craigslist 4421152680. He testified that all messages were sent through the Craigslist server. He further testified that he responded to emails through the Craigslist server. He did not respond directly to the gmx address. The first time that he observed the gmx address was when he was putting together the original email package. He could not recall if there any glitches in respect of the Craigslist server. Again, based on his recollection he did not sent any emails to the gmx address directly. All responses were to the Craigslist identifier. All messages went through the Craigslist server number. He did not see the gmx address until about a month ago when he reviewed original emails.
112He was taken through many of the “chat log” entries. He did not agree that “Garry” seemed reluctant or was stepping back. When asked if he was a cop, he did not agree that he was because he was acting undercover.
113When asked why he did not stop communicating with Mr. Allen after Mr. Allen indicated that he was looking someone over 18 years of age, D.C. Wohlert testified that it was up to Mr. Allen to decide if he wanted to continue. D.C. Wohlert provided Mr. Allen with the opportunity to continue if he wanted to and the conversation continued with the exchange of photographs. D.C. Wohlert provided two photos to Mr. Allen as “Jenny”. These photos did not match the description of “Jenny”.
114There was some question as to whether or not some conversations referenced keeping the conversations private such as no monitoring by Jenny’s mother. He was asked about some portions of the communications which appeared missing or disjointed. His evidence was that there were none. However, he was taken to email 110 that dealt with Mr. Allen referencing Jenny going shopping but no previous emails by Jenny telling him that she was going shopping. Also, there were some emails that were sent by Mr. Allen referencing Jenny’s school. These emails were not commented upon by D.C. Wohlert for safety reasons. He did not wish to identify any high school where young people would be attending.
115He testified that “Garry” (Mr. Allen) sent emails telling “Jenny” where to go to find pornographic sites such as BadJoJo and RedTube. There was an email sent by Mr. Allen that referred to teen sex (email 195).
116There was evidence of the photos of adult detectives being sent to Mr. Allen with their faces obscured. The images in these photos did not match the description of Jenny. While there was a message about sending another picture with less clothes on, no such photo was ever sent to “Garry”. No naked pictures were sent to him either. At email 390 “Garry” says “forget I asked”. However the conversation continues about naked pictures. There were conversations about a meeting which never occurred. After that, Mr. Allen was arrested. There were questions about encouraging Mr. Allen to meet. D.C. Wohlert testified that it was Mr. Allen who brought up the subject of meeting “Jenny” much earlier in time. He wanted to meet Jenny to take pictures.
117D.C. Wohlert denied that it was not illegal to have discussions with a person under 18 years of age about sex. It was illegal when such conversations were for the purpose of facilitating certain criminal conduct – the kind of conduct with which Mr. Allen is charged.
118While Mr. Allen called off the meeting of June 11, 2014, he still wanted to meet but no other later date was set up for a meeting.
119In re-examination, D.C. Wohlert testified that he did not manually delete any of the images on the email server. He did not know about the adjustment of time on the server. He did not know what the UTC was about except for the Wikipedia definition. He did not know what the time zone minus 7 (or -7?) was about. He did not know if daylight savings time was taken into account in respect of time. He testified that he did not know when the screenshots were taken as found in the ITO.
The Police Statement
120D. C. Wohlert conducted an interview of Mr. Allen in the audio/video recording room at the South Simcoe Police Service Station at Bradford on June 11, 2014. The videotaped statement of Mr. Allen commenced at 10:15 p.m. and ended at 11:20 p.m. The following is a summary of D. C. Wohlert’s evidence in respect of the taking of Mr. Allen’s statement.
121Mr. Allen was brought from the cells to the interview room. D.C. Wohlert could not recall by whom. He did not have any conversation at the station with Mr. Allen prior to the interview.
122Viewed on the Voir Dire was the video/audio recording of Mr. Allen’s interview with D.C. Wohlert on June 11, 2014. The CD of this interview was marked Exhibit 12. Marked as Exhibit 12A was the transcript of Mr. Allen’s videotaped statement. Mr. Allen’s interview was videotaped at the South Simcoe Police Service station at Bradford. His videotaped statement commenced at 10:15 p.m. and ended at 11:20 p.m. D.C. Wohlert explained the offences with which Mr. Allen was charged and Mr. Allen understood that explanation.
123D.C. Wohlert also explained to Mr. Allen that Mr. Allen had the right to speak with a lawyer for free legal advice and Mr. Allen acknowledged that the spoke to duty counsel when he was brought into the station. D.C. Wohlert also explained that Mr. Allen had the right at any time to speak with counsel. Mr. Allen advised D.C. Wohlert that his lawyer told Mr. Allen not to say anything. However, Mr. Allen continued to participate in the interview.
124After explaining the charges, D.C. Wohlert went on to explain that if a new charge arose, then he would stop and advise Mr. Allen that he would have the right to contact a lawyer at that time. Further, D.C. Wohlert went on to say and confirm that, as Mr. Allen’s lawyer said, Mr. Allen had the right not to say anything in answer to anything that D.C. Wohlert had to say. Mr. Allen was not obligated to say anything and if he wanted to that was his choice.
125D. C. Wohlert went on to explain the jeopardy that Mr. Allen was facing in respect of his criminal charges and went on to explain that if convicted, these offences carried mandatory minimum sentences that run consecutively. Mr. Allen understood what D.C. Wohlert was telling him.
126Mr. Allen knew that he was speaking with someone who was 14 years of age, although he was looking to speak to someone 18 to 20 years of age. Nevertheless, even though Mr. Allen was not going to meet with “Jenny”, he did tell her that he would like to meet just to keep the conversation going. Regardless, Mr. Allen was busy at work and did not intend to meet with “Jenny”. Although he said there was no excuse, Mr. Allen denied that he was a sexual predator. Mr. Allen said that he did not realize that “You can do something by not even meeting anybody”.
127D.C. Wohlert put to Mr. Allen that he was talking to “Jenny” and saying that Mr. Allen would direct her on how she could touch herself and masturbate. Mr. Allen responded that he should not have done that. D.C. Wohlert also put to Mr. Allen that some of the chats were super graphic and that Mr. Allen was asking “Jenny” for pictures in a thong or top on or top off, “What ever (sic) you are comfortable with”. He told Mr. Allen that that was illegal. He advised Mr. Allen that this was just a sampling of what had come off the computer. He also told Mr. Allen that “Jenny” was showed “Badjojo” and “Redtube” by Mr. Allen. Mr. Allen acknowledged that he had told “Jenny”, a 14 year old, to look at these sites. D.C. Wohlert explained that the reason the law was passed was to prevent the grooming process to break down the inhibitions of children. Mr. Allen was 53 years of age at the time and he was not dealing with somebody that was over the age of 18, 19 or 20. Mr. Allen told D. C. Wohlert that “Jenny” was the only female that he had ever talked to that was 14 years of age. First, Mr. Allen thought that it was a male person or a joke. Again he said that there was no excuse. He told D. C. Wohlert that he had asked “Jenny” for specific pictures and that Mr. Allen had sent one to her holding up three fingers and he had her send one to him holding up three fingers.
128D.C. Wohlert went on to explain the bail process and what would likely happen the next morning when Mr. Allen was to appear in court.
129Mr. Allen told D.C. Wohlert that he should have stopped the conversation with “Jenny”. He did not deny sending “Jenny” the pictures where he was wearing the Maple Leaf hoodie and holding up three fingers. Mr. Allen spoke to some people at work and learned about Craigslist and joking about talking to not a girl but a guy on Craigslist. Mr. Allen became curious but again said he should have stopped. He did not realize that his chats would get him into big trouble. He did agree that there were some chats where Mr. Allen said to “Jenny” that he could not meet with her because he would go to jail and would be in big trouble.
130Mr. Allen thought that there was something wrong but continued with the chats anyway. They talked about her pictures to him and his pictures to her and the exchange about the “cock pic”. Mr. Allen again said that he should have stopped the chats. He said: “It’s almost like you just get caught up in the conversation kinda thing or”.
131They talked about what would likely happen at court before the Justice of the Peace the following day and D.C. Wohlert did not know whether or not he would be able to attend. He was asked questions by Mr. Allen as to the possible outcome. However, D.C. Wohlert replied that the terms, conditions of bail and possible outcome were left to the decision of the presiding Justice. They also talked about the seized computer and how Mrs. Allen would have to acquire another computer to do online banking. Mr. Allen told D.C. Wohlert that he did not think that just chatting would get him into trouble.
132For a moment, D.C. Wohlert left the interview room and then returned with a female police officer. He introduced this female officer to Mr. Allen as “Jenny”. She told Mr. Allen that she was the 14 year old girl that he spoke to. Mr. Allen told the officer that she was the only 14 year old that he had spoken to and repeated to her how he went on Craigslist before and spoke with someone who turned out to be a guy. The interview ended at 11:20 p.m.
133D.C. Wohlert testified that the female officer in the interview room was P.C. Sloan. After the interview, Mr. Allen was escorted to his cell. There were no discussions about the investigation. After Mr. Allen was escorted to his cell, D.C. Wohlert saw Mr. Allen and his wife at a shopping center. They said hello and that was it.
134Other than the 509 email chats between them, D.C. Wohlert did not have any conversations with Mr. Allen. He did not have any idea why Mr. Allen had referred to GMX1966@hotmail.com in one of his emails. As “Jenny”, D.C. Wohlert did not receive any direct messages from that address.
135D.C. Wohlert testified about the C4 All Program that was created by the Electronic Crimes Unit which permitted the categorization of a large number of images on a computer or storage device. This software program was used to search for the images set out in Appendix ‘A’ of the ITO and the search warrant. He did not have these images from the computer categorized by the C4 All Program when he took Mr. Allen’s statement.
136When he viewed the C4 All Report of images found on Mr. Allen’s computer, he did not find any child pornography images.
137As for the cell phone, there was nothing of investigative interest regarding the phone.
Mr. Allen’s Trial Evidence
138Mr. Allen testified at trial. At the time of the arrest he was 53 years old and living in Bradford with his wife, daughter and granddaughter. At the time, he was working as a tool and die maker.
139He testified that he had worked at a manufacturing plant in Newmarket for 31 years as a tool and die maker. That plant closed in June of 2010 and after an eight month search he found another job but that plant closed as well in 2012.
140Between 2012 and 2014 his financial situation deteriorated. After another search he found a new job in Newmarket sometime in 2012 and was employed there for seven months.
141After that, he located to his current employer. He found that job in May of 2013. This job at first was a contract position lasting six months and then after that he was given a one year contract.
142He described the environment at his workplace in 2013 and 2014. He described it at first as being “culture shock” as he was the only Caucasian person working on the floor. He described interaction with his co-workers as being very difficult as they were culturally different and not “minglers”. He tried to fit in with his co-workers and nobody wanted to help him. It was important that he fit in and get along with his co-workers. He wanted people to trust him and he wanted his co-workers to speak favourably of him to his employer as he really needed the job and wanted to stay on.
143Mr. Allen testified that because his employer was in the automotive manufacturing field, he could only speak with his co-workers either at break time or at lunch.
144While on breaks or at lunch, he observed his co-workers laughing and talking on their cell phones. Mostly, his co-workers were on Craigslist, Casual Encounters, where they were “gay bashing” and talking to adults about sex. His co-workers were mostly on “men to men” ads and they were sending messages, laughing and talking about what they were doing. Mr. Allen saw his co-workers on their cell phones sending messages to ads on Craigslist.
145After seeing this, Mr. Allen sat with his co-workers and asked what they were doing on Craigslist. He was told that this was an adult site and one would have to be 18 years of age to be on this site.
146Mr. Allen first remembered going on Craigslist probably in the Fall of 2013 where he checked out the Craigslist Casual Encounters site.
147When asked why he went home to go on Craigslist, Casual Encounters, Mr. Allen testified that he did so in order to have more conversation with the guys at work – to get them on his side. He testified that he needed him so that they would think he was an “all right guy” and to speak to his supervisors favourably about him. He said he did so in order to get close to his co-workers to try to “break the ice”. Mr. Allen believed that if he went on Craigslist he could talk to his co-workers, again, to “break the ice” and to have something in common with them.
148Mr. Allen testified that his co-workers were on Craigslist pretty much on a daily basis. Other than looking at the Casual Encounters ads, he answered some of the ads talking to people over 35 years of age. He described how messages came to his email address. He described how he would respond to the ads by using his computer.
149In the Fall of 2013 to June of 2014, he visited Craigslist almost every day. Previous to the Fall of 2013, he knew about Craigslist and had a couple of chats in 2010. He stopped these chats in 2011. In 2010 and 2011, he had approximately 20 chats, mostly with women and possibly about sex. He testified that he was bored but he was not going to meet with anybody. If anybody said that they would like to meet he would say no and the conversation stopped. In respect of the people Mr. Allen talked to, he assumed that they were telling the truth but they could also be lying. He testified that he had spoken to someone for a week and a half whom he believed to be a lady but later found out it was a man with a beard. Between 2010 and 2011, he did not post anything during that time. He just replied to ads.
150In the Fall of 2013 he observed his co-workers chatting on Craigslist. Mr. Allen started chatting on Craigslist just after Christmas 2013. From January 2014 to June of 2014, he talked to 50 people on Craigslist Casual Encounters. The conversation was always about sex. He testified that he chatted with women because he was “not into guys or gay bashing”. His purpose for these chats was to tell his co-workers about what he was doing in order to “break the ice”.
151Mr. Allen testified that he would babysit his granddaughter during the evenings and would go on Craigslist Casual Encounters for about an hour. While he testified that this could have been entertainment he also testified, again, that at first it was to “break the ice” with his co-workers. Mr. Allen testified that he enjoyed the conversations on Craigslist. He testified that there was no other reason that he chatted on Craigslist Casual Encounters except to fit in with this co-workers.
152Mr. Allen testified that he only posted one ad, being the ad to which D. C. Wohlert responded.
153Mr. Allen was asked about how his posting came about. Sometime in April 2014, he told his co-workers that he was going to post an ad. He told them that he wanted to post an ad to say that he wanted to “fuck a young woman” and also described the size of the woman he preferred. He testified that it was important to tell his co-workers about what he was going to post because, again, he wanted his co-workers to know that he was one of them.
154Mr. Allen testified that he wrote on a piece of paper “I wanna fuck a young woman, 130 pounds, not matter what nationality”.
155Mr. Allen consulted with his co-workers about his proposed posting. His co-workers gave him advice in respect of the ad and told Mr. Allen that he should put down 110 pounds because he would not want to talk to a “fat one”. Further, it was important for him to specify a young woman over 18 because he did not want to “fuck a young kid”. He was not into that.
156Mr. Allen spoke to the guys after he had posted his ad and the co-workers said that they had seen it the next day after the ad was posted by Mr. Allen.
157At first, Mr. Allen thought that his co-workers were the ones who had responded to his posting. He remembered these chats which came to his computer at home to which he responded on that same computer after work. He described how he logged onto his computer, using his GMX email account. He testified that there were some exchanges that he recalls one in particular, with “Jenny” about shopping and another about a picture. He testified that he chatted with “Jenny W” frequently.
158Mr. Allen was taken through the email chats set out in Exhibit 10 starting with email number one which he had received three or five days after he had posted his ad. He thought that it was his co-workers who were playing with him because they knew that he had posted the ad. This theme continued throughout his evidence. He thought it was his co-workers because they were answering ads all the time and laughing at the ads. Mr. Allen assumed that they were not truthful.
159At emails four-five he asked whether the other person was a cop. When he was asked why he had asked the question, he testified that this was part of the conversation because he thought that it was probably his co-workers. When “Jenny” told him she was 14 years old, he asked if she was a cop because one would have to be an adult to be on this site. This just came into his head probably because his co-workers were talking about cops. He did not know why his co-workers would have had such a discussion. Again, he just thought that it was one of his co-workers that was putting him on. He thought that if he asked if the other person was a cop one of his co-workers would come forward and say no, it was just one of them. Also, it came into his head that sometimes the police would be looking for “bad men” and saying that they were young girls. He saw a T.V. show about an undercover sting one time. Again, this just came into his head and this is what he said.
160Another theme that ran through Mr. Allen’s evidence was that not only was he trying to find out if he was talking to his co-workers, but also he was also trying to identify if he was talking to a real person so he asked for a picture (pic) and that way he could see if he was dealing with a man or an adult playing with him. He had exchanged pics with people with whom he had chatted before. Mostly he would ask for a pic first. If he had received a pic of a 14 year old girl there is no way he would have continued talking to a “14 year old kid”. At this time, Mr. Allen still thought he was chatting with an adult. He did not know who that person was but he decided that if that person was going to play with him, he was going to play back. That was the way that it was with everyone on Craigslist. He testified that it was “pretty much a game”. Once more, he testified that he was still trying to “break the ice” with his co-workers so they would say good things to his superiors because he needed the job. When asked why he kept the conversation going with this person who said that she was 14 years of age, Mr. Allen testified that he thought that it was his co-workers who were chatting with him and that it was just part of a game. He testified that he knew that he could not talk with a 14 year old girl about sex. However, it was all right to talk to someone over 18 about sex. At this point in time he thought that she was over 18 but the ruse was that she was under 18. He thought it was from his co-workers.
161Looking at emails 25-26, Mr. Allen testified that he decided to say something nice. His motive was to keep the conversation going. If his co-workers were chatting with him, he wanted to keep the “ruse” going.
162Mr. Allen testified about the conversation with his co-workers where one of them had said that they had talked to a person for three months.
163Mr. Allen wanted to keep the conversation going as he saw the chats as a competition to beat chats lasting three months. He was asked why he wanted to keep the ruse going. Again if it was his co-workers, they would have a good laugh.
164If he was talking to someone and it was a ruse, Mr. Allen would “be rusing back” to keep the conversation going. He thought he was not chatting with a 14 year old girl, but rather, he thought he was chatting with a guy he was working with.
165Mr. Allen went to work after receiving some of these chats and spoke with his co-workers. He asked if someone, being his co-workers, were “effing him around”. They all laughed and said no. He did not believe them because of what they had done before in their other chats with other people.
166Mr. Allen did not receive a “pic” (email 39) and concluded that he was dealing with someone over 18 years of age who was “rusing” him. He testified that in respect of emails 40, 41, 42 and 43, he wrote those emails because he wanted to find out if it was one of his co-workers who was playing with him. He had concluded that it was not a 14 year old girl because the messages were too long and that a 14 year old did not talk as “Jenny” did. He did not receive any “pics”. He did not receive any answers about where “Jenny” went to school. He thought that if he would get an answer then he would be able to confirm that it was an adult. Nevertheless, he knew he was not talking to a 14 year old girl. Mr. Allen was still trying to find out if his co-workers were chatting with him.
167Mr. Allen believed that he told his co-workers about the conversations that he was having on a daily basis. To the best of his knowledge, he told them about the contents of his chats. He recalls that his co-workers said “That’s not a kid”. At this point in time (April 21, 2014, email 69, 70, 71, 72) he was still thinking that he was chatting with a man. He sent a pic but did not get one back. He continued to think that it was a co-worker that he was chatting with.
168When Mr. Allen eventually received two pics, he determined that the person in the pics did not resemble a 14 year old, 90 pound girl. The pics showed an adult woman. This confirmed that he was not chatting with a 14 year old person and that he knew that he was being “rused” by an adult, so he was going to “ruse” right back and keep the conversation going. He testified that he sent email 77, 78 about the “cock pic” to further the ruse. He testified that there was role playing going on involving a guy from work and not a 14 year old girl.
169Mr. Allen testified sending a pic of himself wearing a dark shirt (crotch shot at email 102). When asked why he sent this pic, he testified that pics are sent all the time on Craigslist.
170At email 103 Mr. Allen was asked by “Jenny” whether he did not want to chat anymore. It was up to Mr. Allen. Mr. Allen replied that he wanted to continue to chat because he was still trying to find out if he was talking to a man or a role-player. He was not looking for a “14 year old kid” or anyone under 18. He was just involved in role-playing and he was not looking for sex with a young woman, despite the ad that he posted. If he did not keep the conversation going the conversation would end. He did not want the conversation to end because he was still talking to his co-workers being involved in the chats of this sort appeared to be “working” because his co-workers were talking to him more. Mr. Allen still wanted to “break the ice” with his co-workers. He wanted to meet with the other person to figure out with whom he was chatting. The other person did not agree.
171In respect of email 153, he sent this message to “Jenny” about watching porn movies. When asked why he sent such a message, he testified that it was part of the ruse and it just came up. Mr. Allen testified that one of the guys at work suggested that he ask about porn movies. The porno sites “Badjojo” and “Redtube” came from the guys at work. Mr. Allen had been on these sites a couple of times. He could not remember when but testified it was before he was involved with his conversations with “Jenny”. Again, Mr. Allen testified that he was still trying to find out whether he was chatting with a co-worker. In trying to find that out, he participated in the “ruse”. He continued with his conversation so he could continue talking to his co-workers. They were even suggesting a few things that he could say in his chats. Mr. Allen thought this was a good sign because they would talk to him and he had “broken the ice”. Mr. Allen testified that if the conversation stopped this probably would not change his relationship with his co-workers but likely he would not have anything to talk to them about.
172Mr. Allen did recall receiving email 209 from “Jenny” about “possibly playing with yourself”.
173In respect of Mr. Allen’s response at email 220, “When you do have sex you need someone that will make it great for you”. He did not remember why he sent that email.
174As Mr. Allen was taken through further emails, he testified that he wanted to keep the conversations going because the guys at work were laughing about it every day. Again, upon receiving another pic of a woman, he believed that the woman was an adult. He did not believe that the person with whom he was chatting was only 14 years of age. He responded to the pic by sending chats, sexual in nature, as part of role-playing. Later, Mr. Allen recognized the person in the two pics as P.C. Sloan.
175Mr. Allen testified that at email 327 he sent a photo of himself holding up three fingers while wearing a Toronto Maple Leaf hoodie. He sent email 332 in reference to a dirty pic. He never sent one and this was all part of role-playing and trying to find out with whom he was dealing with.
176In respect of email 334, Mr. Allen sent this message but he was never going to meet with “Jenny”. The message was just part of the ruse, role-playing and keeping the conversation going.
177At email 377 Mr. Allen sent a message asking for a photograph with a little less clothes on “so I can see that sexy body more”. Once again, Mr. Allen testified that this was all part of role-playing. He was not expecting to receive anything. He was just keeping the ruse going and he was talking to his co-workers and one of them suggested that he should ask for a naked picture. He did not say why. Mr. Allen testified that an adult male was not going to send a naked pic of somebody. He testified that his exchanges with “Jenny” about naked pics were not truthful, part of the ruse, part of role-playing and part of keeping the conversation going.
178Mr. Allen was asked about email 416 that he sent asking “Jenny” if she masturbated. When asked why he started this conversation, Mr. Allen testified that one of his co-workers had suggested it and he was taking direction from his co-workers about this message. Once again, Mr. Allen was trying to make sure that he “broke the ice” and kept the conversation going. He told his co-workers about these emails but did not show the emails to them.
179Mr. Allen testified that he did send emails 429, 430, 431 and 432 about masturbation. Again, it was all part of role-playing. Mr. Allen testified that it was never his intention to engage in sexual behaviour with a 14 year old girl.
180Emails about agreeing to meet or take photos were also part of role-playing. Mr. Allen testified that he absolutely had no interest in doing any of these things with a 14 year old or anyone else. When asked why these messages were sent, Mr. Allen testified that it was all part of the ongoing ruse. Mr. Allen did not think that “Jenny” was really 14. He thought that the person he was chatting with was at least 18 years of age and was not a kid. He believed that he was talking to someone that was an adult. Mr. Allen had no intention of meeting with “Jenny” and the chats would stop.
181At this point in time (early June 2014) Mr. Allen wanted to demonstrate to his co-workers that he could chat for two to three months. Mr. Allen went on to testify that it was still important how his co-workers reacted to him because they all thought he was a corporate spy. They told him that they thought he was a cop, a spy sent to weed out people not doing their jobs. This mattered to Mr. Allen because if the conversations went on this would show that he was not a corporate spy. Further, he needed the confidence of his co-workers because he was on contract. His co-workers would be interviewed by management and Mr. Allen needed his job to go forward.
182In respect of meeting with “Jenny”, Mr. Allen wanted to keep this conversation going. He said if there would be no meeting the conversation would be over.
183Mr. Allen testified about the statement which he gave to D. C. Wohlert. Mr. Allen remembered giving this statement after he had been arrested and informed about the charges against him.
184Before the interview, Mr. Allen though that “Jenny” was an adult. At first, he thought that it was someone from work but this was denied. However, at the time that he gave his statement, he thought that “Jenny” was maybe P.C. Sloan because he saw a pic of her.
185Mr. Allen was asked about his exchange with D. C. Wohlert found at Exhibit 12A, the transcript of his videotaped statement at page 13, line 11. Mr. Allen testified that he did not want to talk to a 14 year old girl. He was trying to tell D. C. Wohlert that Mr. Allen was not as the police were saying – he was not a pedophile. He was trying to tell D. C. Wohlert that Mr. Allen was really not talking to a 14 year old. When Mr. Allen told D. C. Wohlert that “Jenny” was the only one that he ever talked to that was 14, Mr. Allen testified that he did not believe that “Jenny” was only 14. Again, he thought that “Jenny” was a guy playing with Mr. Allen.
186Mr. Allen did not deny that the picture found on his computer of a person wearing a Maple Leaf hoodie holding up three fingers was him.
187After Mr. Allen was arrested, he testified that he did not tell anyone at work that he was arrested. He did not want them to know because he could get fired. Mr. Allen did not ask any of his co-workers to come to court to testify in his defence because he did not want his circumstances to be reported at work. Mr. Allen did not want to get fired. If he had a criminal record, Mr. Allen could not find another job. If Mr. Allen was without work, he would lose everything. He was asked if at any time through the chat, he was engaged in any sexual act with anyone not an adult. He replied “Absolutely not”. When asked if he ever wanted to possess or look at child pornography, he testified absolutely not and he never did. When asked if he wanted to participate in creating child pornography, Mr. Allen replied absolutely not and that it was disgusting.
188Mr. Allen denied that he ever wanted to touch or be touched by anyone under the age of 18. When asked if he ever believed he was communicating with someone under 18 he replied absolutely not.
189Once again, Mr. Allen was asked why he would engage in these conversations. Mr. Allen testified that he had to “break the ice” with his co-workers and to do so the only thing was to go on Craigslist. He needed to “break the ice” so that he could keep his job, otherwise he would lose everything.
190In cross-examination, Mr. Allen was asked to identify his co-workers, namely the people he was trying to impress to keep his job. He testified that they were all gone from his workplace. However, there was still one person there who worked the night shift. Mr. Allen did not communicate with this person. He only knew him by the name on his shirt “GIN” which could be a short form or a nickname. Mr. Allen could not provide any more details.
191Mr. Allen confirmed that in 2013 and 2014 he was trying to fit in at work. He could not show anything on a phone. His co-workers showed him chats that they were talking about. They were engaged in chats to mock people for their preference or orientation. He thought he could fit in with them.
192Mr. Allen was asked about how these chats started and how he discussed with five or six co-workers about the chats by seeing the conversations on their cell phones. This happened every day because he made an effort to talk to his co-workers. They never told him to shut up or go away. Most of the co-workers were gone and the only name that he knew is someone by the name of “GIN”. He felt that he was starting to fit in and said he was going to post an ad.
193When it was suggested that he did not need to post an ad, Mr. Allen testified that he felt that he had to go the “extra mile”. He assumed that going the extra mile would mean posting the ad so that they could see it and he told them that he posted the ad the very next day.
194Mr. Allen did not have a cell phone. His co-workers did not see the responses to the chats. Mr. Allen agreed there would be no way for them to verify or disbelieve what he told them about the chats. He agreed that he could have told his co-workers that he was carrying on his chat of choice without actually doing it.
195Mr. Allen was asked about the time when he first went on Craigslist in 2010, after the plant where he had worked for 31 years had closed. He was trying to find a job. He testified that he first started chatting on the computer four months before.
196Mr. Allen agreed that he did not need to go on Craigslist Casual Encounters, but he was bored. He engaged in 20-50 chats all with women or couples. He knew this because they had told them their age and sent a pic.
197Mr. Allen agreed that he did not know if the pic was of the person he was talking to. He took their word for what he thought was there.
198Mr. Allen was questioned about his statement to D. C. Wohlert.
199It was suggested that there was no reference in the transcript of his interview about any ruses or role-playing. Mr. Allen testified that he was advised not to say anything. However, he did say many things to D. C. Wohlert because he wanted D. C. Wohlert to know that Mr. Allen was not a pedophile. He did acknowledge that he did say that “Jenny” was the only 14 year old that he had talked to but there was nothing about role-playing or ruses. He agreed that he said in his interview that “Jenny” was “The only one I’ve ever talked to that’s 14”. He did not say that “Jenny” was the only one that said she was 14. Mr. Allen was asked why he did not take advice and why he continued to volunteer things to D. C. Wohlert and why he did not invoke his right to silence. He was asked why he would tell the police certain things, like he was “not that kind of guy” and at the same time would not want the police to know about role-playing and being involved in a ruse.
200Mr. Allen testified that he had not been arrested before and he was totally confused and that explained why he did not tell he police about role-playing or being a ruse. However, put to him was that he was not so confused that he could not tell the police what he wanted to say.
201Chatting to “Jenny” about her mother or sleepovers or a friend who was also 14 was all part of the role-playing of someone who was also involved in role-playing.
202However, when asked if she was role-playing, “Jenny does not respond”. Mr. Allen thought that she was 18. However, he agreed that “Jenny” said that she was 14. She asked if he was okay with her being 14 and he agreed. He never asked her for any other proof to prove that she was 14. He never asked “Jenny” if she liked role-playing. He believed that he was dealing with an adult and not a 14 year old. He agreed that he did not need to keep the conversation going and that he could have still kept talking to his co-workers. However, Mr. Allen said that he did not do so.
203In re-examination, Mr. Allen testified that he did not know the names of the people who left.
204In his prior history chatting on Craigslist, while he chatted 30-35 times there was one occasion where someone had lied. It was not a woman but a man. Mr. Allen had never seen or answered any ads from someone under 18.
205When Mr. Allen made his statement to the police, he did not think that “Jenny” was 14. He thought that he was chatting with an adult playing the role of a 14 year old girl. He thought that it was one of the guys at work. The pictures were of adults and not children. He thought the wording used by “Jenny” was not wording that a 14 year old girl would use. He denied that he took a chance talking to a 14 year old girl or anyone under the age of 18. In his head, Mr. Allen believed that he was talking to an adult. However, “A 14 year old fell into my lap”. He kept on talking because he enjoyed chatting but not because it was a 14 year old girl.
ANALYSIS
206While Mr. Allen raised concerns about the completeness of the chat log in that certain chats were missing, for example, the chat about “Jenny” going shopping, I am satisfied that the chat log, Exhibit 10, is reliable evidence regarding the most significant part of the emails. The content of the emails were not challenged by Mr. Allen when he was interviewed by D. C. Wohlert or in Mr. Allen’s testimony at trial.
207Counsel agreed that the evidence given by police witnesses at the voir dires could be applied at trial with the exception of Exhibit 9 (the court presentation) and evidence of any interaction between Sergeant Thomas and Mr. Allen in the kitchen and on the deck at his home. The evidence of these witnesses as to what roles they played, what they saw or did, does not raise any credibility issues and I accept their evidence.
208I will next address my credibility findings.
Mr. Allen’s Credibility and W.D.
209Assessing credibility involves an examination of all the evidence including the evidence of the chats, Mr. Allen’s police statement, exhibits and his evidence at trial.
210Mr. Allen testified that he conducted and maintained the chat on Craigslist, Casual Encounters internet website dedicated to sexual conversations in order to impress his co-workers, some of whom would be consulted by management when it came time to renew his contract. He testified about how keeping his job was very important to maintain financial security for himself and his family.
211Mr. Allen testified about the need to fit in, about the need to “break the ice”. He knew his co-workers frequented the Casual Encounters section of Craigslist and he knew and could see what they were doing on that site during their breaks and lunch hour. According to Mr. Allen, if he maintained friendly relations with his co-workers he could fit in with them and maintaining the chat was one way to have something in common with them.
212Mr. Allen testified that his co-workers had made suggestions on the wording of the ad Mr. Allen proposed to post. From time to time, they made other suggestions about the nature of certain emails. Mr. Allen testified that his co-workers offered suggestions which he adopted about emails he should send to “Jenny” regarding watching porn movies, sending naked pics and “Jenny” masturbating.
213However, none of Mr. Allen’s co-workers testified at trial. In cross-examination Mr. Allen was able to recall only one nickname “Gin” of one of his co-workers with whom he no longer communicated. He testified all of the other co-workers no longer worked at the same plant. This was his evidence, although he socialized with these co-workers for months. According to Mr. Allen he would report to his co-workers daily the chats with which he had with “Jenny”. His co-workers laughed and found the chats entertaining. Mr. Allen’s evidence was that his phone at the time did not have access to the internet, unlike the devices used by his co-workers. His co-workers would be able to tell he had posted the ad but they would have no idea of confirming or disbelieving what he said in the chats. He conducted the chats on his HP home computer and simply told his co-workers what the content was. In cross-examination, he agreed he could have simply concocted or faked a chat and reported whatever he wished to his co-workers. I find this evidence renders implausible that Mr. Allen needed to maintain the chats in order to save his job. To the contrary, Mr. Allen did not need the chats to impress his co-workers. He could have reported anything to them without carrying on the chats with “Jenny” for two months. I reject Mr. Allen’s evidence as incredible that such chats were necessary to “break the ice” with his co-workers and to be friendly with them so they would report favourably to his superiors. His co-workers would have no way of knowing for themselves the contents of those chats. They only knew what Mr. Allen told them and for that to happen, Mr. Allen did not need the chats. Instead, I find he spent two months engaged in chats of a sexual nature with someone who could very well have been a 14 year old girl. I find Mr. Allen’s testimony about the involvement of his co-workers and his explanation as to the purpose of the chats is not believable. Rather, I find his evidence in this regard lacks any credibility.
214In his police interview, Mr. Allen told D. C. Wohlert that he knew it was wrong to carry on sexual conversations with 14 year olds. However, when confronted with the allegations by police, Mr. Allen insisted in his statement that he did not know he could get into trouble just by talking. I find this is nonsense given the nature and content of the chats. I find Mr. Allen’s evidence at trial was designed to portray him in a moral and exculpatory light. For example, he testified that he absolutely would not engage in any sexual act with anyone not an adult. Further, there was an absolute denial that he would ever want to possess or look at child pornography; or ever want to create child pornography; or ever want to touch or be touched by someone under the age of 18; or ever believe in communicating with someone under the age of 18. When asked why then he was engaged in the chats with “Jenny”, Mr. Allen testified he needed to “break the ice” with his co-workers and the only way to do this was through Craigslist. Keeping his job was paramount and if he lost it, he would lose everything. Such was Mr. Allen’s mantra.
215This was Mr. Allen’s explanation for engaging in sexually explicit conversations for two months with “Jenny”, a girl he knew to be 14 years old. Mr. Allen’s evidence at trial runs counter to his statement to D. C. Wohlert. He knew those chats were wrong but he continued with the chats anyway. They talked about her pictures to him and his pictures to her and the exchange about the “cock pic”. Mr. Allen again said that he should have stopped the chats. He said: “It’s almost like you just get caught up in the conversation kinda thing or”. I find his denials at trial, however vigorous, do not diminish Mr. Allen’s knowledge that his chats were wrong and his acknowledgement that he went too far with them.
216Mr. Allen also told D. C. Wohlert repeatedly that “Jenny” was the only 14 year old he had sexual conversations with. However, at trial he insisted that what he meant was she was the only one who said she was 14. Mr. Allen’s qualification is meaningless. Again, I find he is attempting to cast himself in the most favourable light. But more than that, I find his evidence at trial was designed to escape the plain incriminating meaning of his words to D. C. Wohlert. (See Exhibit 12A at page 25). For this reason, I do not accept Mr. Allen’s trial evidence over what he said to D. C. Wohlert on this point.
217At times in his trial testimony, Mr. Allen insisted that he had doubts about the genuineness of “Jenny” or her age. He thought one of his co-workers was “Jenny”. When he confronted his co-workers they said no. He thought that it might be an adult, maybe a woman, maybe a man. He continued with his chats always wanting to find out the identity of the person with whom he was chatting. Mr. Allen repeatedly testified that he did not believe that the person was a 14 year old and he never did. The questions he asked were to try to find out with whom he was talking. (See Exhibit 10, emails 69-70, 82 and 92). He testified at trial that he had accepted the photographs sent by “Jenny”, notwithstanding his evidence at trial that the photographs gave away that she was an adult. Mr. Allen said at email 75, “Very nice pics. You are real. That’s all great and how are you today”. He expressed no doubts in that email but asserts in his trial evidence that he had many doubts. Mr. Allen’s explanation was that if he said the person was not “Jenny”, then the conversation would have stopped and he did not want that to happen for the reasons Mr. Allen expressed numerous times.
218I find that Mr. Allen’s trial evidence is inconsistent with email 75. At trial he testified he knew the pics were of an adult female. However, he did not say that at email 75. If he knew it was an adult female his questions about the identity of the other party would have been answered. One would have expected Mr. Allen to stop the chats because he would no longer have any doubts. But he did not do so. Rather, he continued to chat with “Jenny”, a 14 year old girl. Again, his evidence at trial is inconsistent with this emails and actions. This inconsistency also undermines Mr. Allen’s credibility.
219Mr. Allen testified that in addition to receiving three pics, he received another photo but he could not remember when. He could see the person holding the camera up with her right hand and he could see at least three quarters of her face. He could see most of her eyes, nose and mouth. Her face was turned to the right. He testified he could see her whole face and could recognize that person. He testified “Jenny” sent this photo but he could not recall to what email address. Later he recognized the person in the photo as P. C. Sloan when she came to his residence at the time of his arrest. This pic was not contained in the chat log. After he received this pic, he deleted it. This photograph was not found when Mr. Allen’s computer was searched.
220The Crown submits Mr. Allen’s evidence about this photo is an invention so he can more confidently assert that he knew “Jenny” was not a child because he could see her adult face. The Crown submits this event as related by Mr. Allen did not happen.
221I have considered the evidence of D. C. Wohlert and P. C. Sloan. I find their evidence credible and compelling. I find that not only did P. C. Sloan not take or send such a photo but that D. C. Wohlert took special care to ensure that the photos he sent to suspects did not identify the photos’ subject. P. C. Sloan testified she did not take a picture of her face because she knew what the photos were for and she was wary of what a suspect might do with them.
222In addition to being conscientious about the privacy of the officers used in the photos he sends to suspects, D. C. Wohlert specifically and repeatedly testified that he did not have any contact with Mr. Allen outside of the chats.
223I reject Mr. Allen’s evidence that a photo of P. C. Sloan’s face was sent to him. It is entirely implausible and inconceivable given the police evidence as to the great pains taken that no such photo alleged by Mr. Allen be sent to a suspect and no such photo was ever found on Mr. Allen’s computer. Again, I find Mr. Allen’s testimony regarding this photograph to be totally incredible and once more, his credibility is adversely impacted.
224Further, Mr. Allen testified to a considerable extent that he had carried on this sexual chat with an apparent 14 year old as part of a game, a role-playing game. He also testified that he viewed the chats as a competition to see if he could keep the chats going for two to three months as some of his co-workers said they did.
225There are two significant problems with Mr. Allen’s evidence. The first problem is grounded in the chats themselves. I find there is nothing in the chats that supports Mr. Allen’s contention that the parties were role-playing. The second problem is that Mr. Allen’s “ruse” or role-playing evidence at trial is completely inconsistent with his prior statement to D. C. Wohlert.
226First, it was Mr. Allen who posted an ad on Craigslist Casual Encounters site on the internet. It was Mr. Allen who posted an ad not for “anyone to play with”. Rather, he advertised looking to “Fuck a young woman”. According to Mr. Allen, he did not want to talk to an old woman because he had done that before. I find that the “chat log” Exhibit 10 is cogent and compelling evidence which I accept. It relates the course and content of the chats between “Jenny” and Mr. Allen for some two months, ending June 11, 2014.
227A careful review and scrutiny of the 509 emails do not feature Mr. Allen asking for fantasy scenarios. Rather, what the chats do feature are all requests coming from Mr. Allen. The requests are all for direct and unambiguous sexual activity, such as nude photos, intercourse, watching pornographic sites and masturbation. The chats do not reveal any elaboration of the surrounding circumstances that would support Mr. Allen’s contention.
228Also, it is noteworthy that “Jenny” never asks for anything sexual. This does not support Mr. Allen’s contention that they were role-playing. It is Mr. Allen who offers a picture of his genitals. It is Mr. Allen who offers to talk “Jenny” through masturbation. It is Mr. Allen who asks for nude pictures from “Jenny”, if she is comfortable with that.
229It is Mr. Allen who calls “Jenny” sexy and tells her what he would like to do to her. “Jenny” never responds in kind. I find there is no role-playing here. There is no game. There is no ruse. There is no sexual reciprocity that can be viewed when considering all of the emails and all of the evidence surrounding those chats.
230Mr. Allen’s evidence is that he was role-playing to keep the conversation going, to learn the identity of the other party chatting, to further the competition, to ingratiate himself with his co-workers so they would speak favourably of him to his superiors in order to ensure further employment. I find all of Mr. Allen’s evidence in this regard simply not credible. Mr. Allen proffers evidence about his conduct by way of a myriad of explanations that on his evidence and on all of the evidence does not support role-playing or a ruse or trying to compete or trying to learn the identity of “Jenny”. All of these explanations are implausible, and are not borne out by the chats or his evidence. The explanations fall immeasurably short and lack any common sense. They are simply not to be believed. I reject Mr. Allen’s evidence in regards to role-playing in all the circumstances. Again, his credibility is successfully impugned.
231Mr. Allen’s prior inconsistent statement to D. C. Wohlert must be considered. When Mr. Allen was arrested and he was confronted by the allegations that he lured a child, in his police interview, Mr. Allen responded that this child was the only one and that he was not a predator. He went on to say that he did not know that he could get into trouble for just talking and that he should have stopped when he had the chance.
232Mr. Allen’s complete silence about the “ruse” is not evidence of his guilt and I do not draw any adverse inference from his silence on that issue with D. C. Wohlert. However, I do find that the absence of any reference to role-playing or ruse to the police in the interview is significantly relevant to Mr. Allen’s credibility. There is a major inconsistency between Mr. Allen’s version of events at the time he gave his statement and his version at trial. At the time of his statement, his version was that he did not know it was illegal and that he had done it only once. At trial, his version was that he knew that a sexual chat with a child was illegal but that it had all been pretend.
233I am entitled to take this major inconsistency into account in assessing whether Mr. Allen’s evidence can raise a reasonable doubt. See R. v. Hill, [2015] O.J. No, 4758 (OCA) at paras. 45, 47; R. v. Kovacevic, 2017 ONSC 193, [2017] O.J. No. 119 (SCJ) at paras. 34-36, 43.
234I have considered the testimony of Mr. Allen which I do not believe. I have also considered Mr. Allen’s testimony in relation to the four part test set out in R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.
235I conclude that Mr. Allen’s evidence to the effect that he did not believe that “Jenny” was under the age of 18 is not to be believed and does not raise a reasonable doubt.
Has the Crown Proved its Case Beyond a Reasonable Doubt
236The next stage of my analysis is to determine whether the Crown has proved its case against Mr. Allen beyond a reasonable doubt.
237I reject Mr. Allen’s evidence and find it does not leave me in a state of reasonable doubt. What remains to be determined is whether the evidence that I accept is such that the Crown has met its onus.
238Regarding this part of the analysis there are three questions posed:
Has the Crown proven beyond a reasonable doubt that Mr. Allen believed that the other party to the chats was under the age of 16?
Has the Crown proven beyond a reasonable doubt that Mr. Allen did not take reasonable steps to ascertain that the other party was not a 14 year old girl?
Has the Crown proven beyond a reasonable doubt that Mr. Allen communicated with what he thought was a 14 year old girl for the purpose of facilitating the commission of a sexual offence?
239The elements of the offence of luring are set out by the Supreme Court of Canada in R. v. Legare. The elements are:
An intentional communication by computer;
With a person whom he accused knows or believes to be under 14 years of age; and,
For the specific purpose of facilitating the commission of a specified secondary offense that is one of the sexual offences mentioned in s. 172.1 (l)(c) with respect to the underage person. R. v. Legare, at para. 36
240The elements of the offence must be determined using a purposive rather than a compartmentalized approach. As the court said in Legare, at paragraphs 38 and 42:
[I]t is neither necessary nor particularly helpful for trial judges to recast every element of the offence in terms of its actus reus, or "act" component, and its mens rea, or requisite mental element.
What matters, I repeat, is whether the evidence as a whole establishes beyond a reasonable doubt that the accused communicated.
241Regarding element 1, the intentional communication by computer requires that the Crown prove that Mr. Allen in this case used his computer to communicate with the recipient of the emails he sent in response to his ad on Craigslist. Mr. Allen acknowledged that he in fact carried on the 'chat' with D.C. Wohlert who was posing as a 14 year old girl. Therefore I find this element is proven.
242Regarding element 2, I find the Crown has the benefit of the presumption under s. 172.1(3). In addition, I find the Crown has the benefit of the overwhelming evidence at this trial that Mr. Allen thought he was talking to a 14 year-old and the almost complete absence of anything credible to the contrary.
243Mr. Allen expressed doubts about the age of his sex chatting partner. However, there was never any follow up by Mr. Allen. I find the only reaction to the photograph he was sent in chat 74 was, "you are real thats great" and "you are very sexy" in the next two chats. With respect to the photo sent by “Jenny” at email 281, the exchange of emails between Mr. Allen and “Jenny” is as follows:
Email 282: (Allen) to bad for me your only 14 wow you have a killer butt.
Email 284: (Jenny) awwwwwwwwwwwwwww ty…glad you liked it :-).
Email 285: (Jenny) oh….is it ok that im 14 years old????
Email 286: (Allen) yes its ok and yes I really like your pic.
Email 287: (Allen) I still like chatting to a sexy lady like you.
Email 288: (Allen) can you show me a front view of your sexy body in your black yoga pants.
244I find the most telling evidence that Mr. Allen believed “Jenny” was 14 was that he kept chatting. He was quite content to accept and be reassured that she was 14 without further enquiry.
245Although Mr. Allen expressed doubt about “Jenny’s” age, such doubt does not amount to disbelief or taking reasonable steps. Mr. Allen made repeated statements to the police that “Jenny” was the only 14 year old with whom he chatted.
246I find the existence of the photograph and Mr. Allen request for it do not constitute reasonable steps in all the circumstances. R. v. Pengelley, 2010 ONSC 5488, [2010] O.J. No. 4174 (SCJ), is distinguishable on this point. There are major differences on the facts of that case from our case. In Pengelley:
The accused was chatting in a hard-core, adult only fantasy site.
The officer first represented that she was 18.
The parties talked specifically about role-playing and fantasy.
The accused expressed a sexual interest in the girl's mother.
The photograph sent was obviously not of a 12 year-old
The girl did a lot of her chatting during what should have been school time.
The parties laugh about not being able to verify things on the internet
R. v. Pengelley, supra, paras. 42-50
247In the case at bar, I find there are key differences that demonstrate Mr. Allen was quite content to rely on “Jenny's” assurances that she was 14. Mr. Allen testified that the photographs could well be.of a 14 year-old. He testified that his knowledge of how 14 year-olds talk was out of date at the time of the chats, and could point to no more specific example than the long "aww" without elaboration. I find it is not enough to have asked for the photo in circumstances where he admits that the photo could have been of a 14 year old.
248It is also important that in our case, as I have found, there was absolutely no talk of fantasy in the chats. Never is role-playing raised by Mr. Allen. D.C. Wohlert consistently maintained that “Jenny” is 14 and supported this with facts about her life consistent with that age; for example, grade 9, sleepovers with friends, a 14 year old friend, lack of sexual experience, a mom who can take her computer away from her, living with her parents and not wanting to get a summer job . Nothing “Jenny” said was inconsistent with her being a 14 year-old or suggestive in any way that she was playing a game.
249For these reasons, I find the second element has been satisfied and that the Crown has proven beyond a reasonable doubt that Mr. Allen believed the other party to the chats was under the age of 16. In this case, the age was 14.
250Regarding element three, the Crown must establish beyond a reasonable doubt that Mr. Allen had the specific subjective intent to facilitate the commission of sexual offences against a child.
251“Facilitating” requires less than an attempt. It means to make easier, by grooming, by lowering inhibitions, or by normalizing sexual discourse with children. R. v. Legare, supra, at para. 28.
252The conduct of Mr. Allen must be viewed through the prism of the object of the laws criminalizing online predation of children. As the Supreme Court has said in Legare, supra, at paras. 25 and 26:
25 It will immediately be seen that s.172.l(l)(c) creates an incipient or "inchoate" offence, that is, a preparatory crime that captures otherwise legal conduct meant to culminate in the commission of a completed crime. It criminalizes conduct that precedes the commission of the sexual offences to which it refers, and even an attempt to commit them. Nor, indeed, must the offender meet or intend to meet the victim with a view to committing any of the specified secondary offences. This is in keeping with Parliament's objective to close the cyberspace door before the predator gets in to prey.
26 Speaking for the court in R. v. Alicandro, 2009 ONCA 133, 246 C.C.C. (3d), Doherty J.A. observed that the purpose of s. 172.l is evident from its language. I agree. In Justice Doherty's words at para. 36:
The language of s. 172.1 leaves no doubt that it was enacted to protect children against the very specific danger posed by certain kinds of communications via computer systems. The Internet is a medium in which adults can engage in anonymous, low visibility and repeated contact with potentially vulnerable children. The Internet can be a fertile breeding ground for the grooming and preparation associated with the sexual exploitation of children by adults. One author has described the danger in these terms:
For those inclined to use computers as a tool for the achievement of criminal ends, the Internet provides a vast, rapid and inexpensive way to commit, attempt to commit, counsel or facilitate the commission of unlawful acts. The Internet's one-[to]-many broadcast capability allows offenders to cast their nets widely. It also allows these nets to be cast anonymously or through misrepresentation as to the communicator's true identity. Too often, these nets ensnare, as they're designed to, the most vulnerable members of our community -- children and youth.
Cyberspace also provides abuse-intent adults with unprecedented opportunities for interacting with children that would almost certainly be blocked in the physical world. The rapid development and convergence of new technologies will only serve to compound the problem. Children are the frontrunners in the use of new technologies and in the exploration of social life within virtual settings.
Gregory J. Fitch, Q.C., "Child Luring" (Paper presented to the National Criminal Law Program: Substantive Criminal Law, Advocacy and the Administration of Justice, Edmonton, Alberta, July 2007), Federation of Law Societies of Canada, 2007, at s. 10.1, pp.1& 3)
253Facilitating, in its context here, means lowering a child's inhibitions and defences, desensitizing a child to sexual discourse and inculcating in a child the belief that sex with an adult would be desirable. In this way, the predator can more easily commit the prohibited sexual acts with the child when they meet. The persuasion has all been done in advance.
254In the following way, I find Mr. Allen sought to do all those things:
He asked if she had ever had sex, had sex with an older man, and then if she'd like to try (Emails 29-30, 35-36, 39-43, 106).
He offered to send her a picture of his penis (Emails 78-84, 313).
Although he is the first to raise the subject of pornography, and “Jenny” is not really enthusiastic, Mr. Allen suggests to her that she must be curious. (Emails 153, 168-176, 199).
He gently tries to reassure her about having sex for the first time (Email 216).
He repeatedly compliments her body, calls her sexy, says she has a great ass, and a tight ass, and calls her hot. He is never encouraged to do that. “Jenny” never asks what he looks like or compliments him physically.
Mr. Allen introduces her to the idea of her masturbating while he tells her what to do, knowing she is inexperienced. He will teach her. He will make her feel like a woman. He encourages her, and attempts to persuade. (Emails 416-440)
He asks her for a nude picture of herself, but not in a demanding way. Only if she is comfortable, he assures her. (Emails 376-402)
255It is important to note that the invitation to sexual touching is the offence itself, not just facilitation. Section 152 of the Criminal Code makes it an offence to invite “Jenny” to touch sexually any other person and that includes herself.
256The request for the nude picture of “Jenny” assists in the creation and making of child pornography.
257The intent of Mr. Allen is absolutely clear in the chats. Mr. Allen is committing offences by some words, and clearly preparing the ground for the commission of sexual assault and sexual interference by other words.
258On the basis of the evidence I do accept, I am persuaded beyond a reasonable doubt that Mr. Allen communicated with what he thought was a 14 year old girl for the purpose of facilitating the commission of a sexual offence. For these reasons, I find Mr. Allen guilty on counts one, two, three and five.
259Regarding count four, I find Mr. Allen used his computer to communicate with “Jenny” a person he believed to be 14 years for the purpose of making available to her sexual explicit material contrary to s. 171.1(1). I find the Crown has proven that Mr. Allen committed this offence beyond a reasonable doubt. “Sexually explicit material is defined in s. 171.1(5) of the Criminal Code. Mr. Allen made available to “Jenny” access to the soft and hardcore adult pornographic websites found at Badjojo and Redtube. I find Mr. Allen did not take reasonable steps to ascertain the age of “Jenny”. He believed she was 14 years old and the Crown on all the evidence has the benefit of the presumption found at s. 171.1(3). In respect of count four, I further rely on all the evidence and findings. I am persuaded beyond a reasonable doubt that Mr. Allen committed the offence charged at count four. For these reasons I find Mr. Allen guilty on count four.
CONCLUSION
260For these reasons, I find Garry Phillip Allen guilty on Counts 1, 2, 3, 4 and 5.
DiTOMASO J.
Released: June 23, 2017