ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Rihanotu Otokiti
Defendant
J. Spangenberg, for the Crown
R. Farrington, for the Defendant
justice A. K. mitchell
HEARD: March 6-8, 2017
RESTRICTION ON PUBLICATION
By court order made under s. 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
Introduction
1The defendant, Rihanotu Otokiti, stands charged with five counts: one count of making child pornography contrary to s. 163.1(2) of the Criminal Code of Canada (the “Code”); one count of possessing child pornography contrary to s. 163.1(4) of the Code; one count of using telecommunication to communicate with a person who was or was believed to be under 18 for the purpose of facilitating the commission of an offence under s. 163.1 contrary to s. 172.1(2) of the Code; and two counts of communicating via telecommunication with a person believed to be under the age of 16 for the purpose of facilitating the commission of an offence under s. 151 and s. 152 contrary to s. 172.1(2) of the Code.
2These charges arise from communication between the defendant and the complainant, G.H., using “KIK Messenger” which took place during a 24 ½ hour period commencing at 12:18 p.m. on March 13, 2014 and ending at 12:48 p.m. on March 14, 2014. At the time of the alleged offences, the complainant was 9 years of age. During these communications, G.H. sent Ms. Otokiti a number of images of herself. It is admitted these images are child pornography.
3The defendant was arrested on May 7, 2014 after police executed a search warrant at her residence. A search of the defendant’s rented room uncovered an iPhone 4S cell phone. From this cell phone, pornographic images of the nine-year-old complainant together with text messages exchanged between the defendant and the complainant were recovered.
The Factual Context
4Ms. Otokiti’s evidence with regards to events preceding the conversation underlying the alleged offences is unchallenged and largely not in dispute. At the time of the alleged offences the defendant was 21 years of age. She was born in Nigeria and immigrated with her family to Canada at the age of 15 years. In March of 2014, the defendant was a student living in Brampton and was enrolled in the paralegal program at Sheridan College. She has no criminal record.
5In February 2014, Ms. Otokiti learned she was pregnant and had an abortion which led to the breakdown of her long-term relationship. She became depressed and as a distraction began registering on various dating websites. During the morning hours of March 13, 2014 Ms. Otokiti completed her profile for the Plenty of Fish dating website. The registration form required information relating to her age, occupation, intentions (casual or serious relationship) and the type of relationship she was seeking.
6As a condition of use, the Plenty of Fish dating website Terms of Use Agreement requires users to represent and warrant they are 18 years of age and older.
7As Ms. Otokiti described her intentions: she was looking for a female to “chat with and have fun with”. She was upset and angry with men generally and wanted nothing to do with them at that point.
8After being contacted by the complainant through the Plenty of Fish website, Ms. Otokiti reviewed the complainant’s profile. Her profile contained a number of photos all of which depicted an adult female. In one photo the same adult female is shown drinking alcohol with a group of adults at a party. The complainant’s profile indicated she was employed, that she had a driver’s license and that she was interested in women.
9The defendant’s conversation with the complainant on Plenty of Fish was her first experience with a woman. The defendant and the complainant chatted online through the Plenty of Fish website for a few hours and, at the suggestion of the complainant, their conversation transitioned to KIK messenger for more privacy. Ms. Otokiti and the complainant were both aware that explicit photographs could not be shared through the Plenty of Fish website.
The Communication Exchange
10The timeline and content of the impugned conversation between the defendant and the complainant on KIK messenger is as follows:
March 13, 2014 at 12:18:37 p.m. - Ms. Otokiti writes: “Hey Whatsup”.
March 13, 2014 at12:31:13 p.m. - G.H. responds: “Not much” accompanied by an image of a hairless vagina with a finger inserted.
March 13, 2014 at 12:32:19 p.m. - Ms. Otokiti responds: “Haha you are so dirty”.
March 13, 2014 at 12:32:30 p.m. - Ms. Otokiti writies: “Nasty lil girl and I love it”
March 13, 2014 at 12:34:04 p.m. - G.H. responds: “you got any pics I could see”
March 13, 2014 at 12:34:23 p.m. - G.H. writes: “Sorry”
March 13, 2014 at 12:34:54 p.m. - Ms.Otokiti responds: “Hmm no”
March 13, 2014 at 12:35:04 p.m. - Ms. Otokiti writes: “You should show me more”
March 13, 2014 at 12:43:48 p.m. - G.H. responds: “Ok” accompanied by an image of a hairless vagina. A bra is visible in the photograph.
March 13, 2014 at 12:43:55 p.m. - G.H. sends the first image again.
March 13, 2014 at 12:44:24 p.m. - Ms. Otokiti writes: “Your boobs pic. Send it”
March 13, 2014 at 12:45:01 p.m. - G.H. responds: “Here” accompanied by an image of an adult female’s breasts. The female is wearing a bra.
March 13, 2014 at 12:46:12 p.m. - Ms. Otokiti responds: “Good girl”
March 13, 2014 at 12:46:21 p.m. - Ms. Otokiti writes: “Send a full pic”
March 13, 2014 at 12:46:30 p.m. - Ms. Otokiti writes: “I want to see everything”
March 13, 2014 at 12:46:38 p.m. - G.H. writes: “Don’t have one”
March 13, 2014 at 12:47:34 p.m. - G.H. writes: “I can send separate ones I don’t have a full one sorry”
March 13, 2014 at 12:48:15 p.m. - Ms. Otokiti writes: “Ok send separate ones”
March 13, 2014 at 12:48:36 p.m. - Ms. Otokiti writes: “When are we gonna have sex?”
March 13, 2014 at 12:48:44 p.m. - G.H. responds: “Boobs” accompanied by the same image sent at 12:45:01 p.m.
March 13, 2014 at 12:48:56 p.m. - G.H. sends the first image again.
March 13, 2014 at 12:48:57 p.m. - G.H. writes: “Pussy”
March 13, 2014 at 12:49:20 p.m. - Ms. Otokiti responds: “I want to suck on them”
March 13, 2014 at 12:49:34 p.m. - G.H. writes: “I don’t know you decide when we’re going to have sex”
March 13, 2014 at 12:50:32 p.m. - G.H. writes: “I’m sure I want to suck on yours”
March 13, 2014 at 12:51:19 p.m. - G.H. sends the same image of the adult female breasts.
March 13, 2014 at 12:51:30 p.m. - G.H. sends the first image again.
March 13, 2014 at 12:52:13 p.m. - Ms. Otokiti writes: “Hahaha let’s fuck today”
March 13, 2014 at 12:52:22 p.m. - Ms. Otokiti writes: “You should come”
March 13, 2014 at 12:52:30 p.m. - Ms. Otokiti writes: “You drive?”
March 13, 2014 at 12:52:04 p.m. - G.H. writes: “No”
March 13, 2014 at 12:52:51 p.m. - Ms. Otokiti writes: “Well you should cab or bus”
March 13, 2014 at 12:54:12 p.m. - G.H. writes: “No money”
March 13, 2014 at 12:54:42 p.m. - Ms. Otokiti sends an emoji.
March 13, 2014 at 12:56:06 p.m. - G.H. writes: “What”
March 13, 2014 at 12:56:33 p.m. - Ms. Otokiti writes: “Yeah”
March 13, 2014 at 12:58:15 p.m. - G.H. writes: “What’s the (emoji) face for”
March 13, 2014 at 1:00:08 p.m. - Ms. Otokiti writes: “Oh that was a mistake I was gonna use this (emoji)”
March 13, 2014 at 1:10:17 p.m. - G.H. writes: “Oh here’s my pussy” accompanied by an image of a hairless vagina.
March 13, 2014 at 1:11:00 p.m. - Ms. Otokiti writes: “It looks delicious. Come show me on skype”
March 13, 2014 at 1:12:55 p.m. - G.H. responds: “Ok”
March 13, 2014 at 1:12:55 p.m. - G.H. writes: “I’m VaginaBreasts”
March 13, 2014 at 1:13:42 p.m. - Ms. Otokiti responds: “Haha really”
March 13, 2014 at 1:14:02 p.m. - G.H. writes: “Yah”
March 13, 2014 at 1:14:11 p.m. - Ms. Otokiti writes: “I wanna see”
March 13, 2014 at 1:14:26 p.m. - G.H. responds: “See what”
March 13, 2014 at 1:15:32 p.m. - Ms. Otokiti writes: “You on skype”
March 13, 2014 at 1:15:47 p.m. - G.H. writes: “Ok I’m VaginaBreasts”
March 13, 2014 at 1:16:08 p.m. - Ms. Otokiti responds: “That’s Ur name on skype?”
March 13, 2014 at 1:17:57 p.m. - G.H. writes: “VaginaBreasts”
March 13, 2014 at 1:22:08 p.m. - Ms. Otokiti writes: “I don’t see your video or Ur boobs and vaguna”
March 13, 2014 at 1:24:31 p.m. - G.H. responds: “I will see my vagina if you stay on I was getting the camera to go to my vagina”
March 13, 2014 at 1:25:13 p.m. - Ms. Otokiti responds: “Ok fix the camera I will call u soon”
March 13, 2014 at 1:25:48 p.m. - G.H. responds: “Ok great”
March 13, 2014 at 1:26:51 p.m. - G.H. writes: “It’s fixed”
March 13, 2014 at 1:29:24 p.m. - Ms. Otokiti writes: “Turn Ur camera on”
March 13, 2014 at 1:30:46 p.m. - G.H. writes: “It is on”
March 13, 2014 at 1:30:46 p.m. - Ms. Otokiti writes: “I can’t see”
March 13, 2014 at 1:32:17 p.m. - G.H. responds: “Can’t see what you see my pussy”
March 13, 2014 at 1:34:30 p.m. - Ms. Otokiti responds: “No I don’t”
March 13, 2014 at 1:34:38 p.m. - Ms. Otokiti writes: “Are you on tango?”
March 13, 2014 at 1:34:40 p.m. - G.H. writes: “You should”
March 13, 2014 at 1:34:53 p.m. - G.H. writes: “No I’m not on tango”
March 13, 2014 at 1:36:57 p.m. - Ms. Otokiti writes: “Ok something is wrong with Skype”
March 13, 2014 at 1:37:04 p.m. - G.H. writes: “Skype me please”
March 13, 2014 at 1:38:42 p.m. - Ms. Otokiti writes: “Ur vid is not showing”
March 13, 2014 at 1:39:03 p.m. - Ms. Otokiti writes: “Go download tango on Ur phone”
March 13, 2014 at 1:39:10 p.m. - G.H. writes: “Oh.om”
March 13, 2014 at 1:39:16 p.m. - G.H. writes: “Ok”
March 13, 2014 at1:40:20 p.m. - Ms. Otokiti writes: “Yeah and u will do what ever I want on camera right? I don’t like when people waste my time”
March 13, 2014 at 1:40:37 p.m. - Ms. Otokiti writes: “Are you gonna be a good bitch?”
March 13, 2014 at 1:42:00 p.m. - G.H. writes: “Won’t download”
March 13, 2014 at 1:45:00 p.m. - Ms. Otokiti writes: “Why not”
March 13, 2014 at 1:45:07 p.m. - G.H. responds: “I’ll do what you want on camera (emoji)”
March 13, 2014 at 1:45:57 p.m. - G.H. writes: “I’ll do what you want ok”
March 13, 2014 at 1:46:31 p.m. - Ms. Otokiti responds: “So get it”
March 13, 2014 at 1:46:40 p.m. - Ms. Otokiti writes: “Good”
March 13, 2014 at 1:46:52 p.m. - G.H. writes: “Tangos downloading”
March 13, 2014 at 1:49:13 p.m. - G.H. writes: “Downloaded”
March 13, 2014 at 1:49:28 p.m. - Ms. Otokiti writes: “Ok send me Ur number”
March 13, 2014 at 1:50:03 p.m. - G.H. writes: “What number”
March 13, 2014 at 1:50:11 p.m. - Ms. Otokiti writes: “Number to vid call u there”
March 13, 2014 at 1:50:23 p.m. - Ms. Otokiti writes: “Ur call”
March 13, 2014 at 1:50:52 p.m. - G.H. writes: “Ok”
March 13, 2014 at 1:51:11 p.m. - Ms. Otokiti writes: “Yes”
March 13, 2014 at 1:53:35 p.m. - G.H. writes: “I don’t know what to do Skypes easier than tango just saying”
March 13, 2014 at 1:53:43 p.m. - Ms. Otokiti writes: “I don’t see you in skype”
March 13, 2014 at 1:56:31 p.m. - G.H. writes: “It’s your camera get it on your phone ok”
March 13, 2014 at 1:58:34 p.m. - Ms. Otokiti writes: “I am using my phone”
March 13, 2014 at 2:03:57 p.m. - Ms. Otokiti writes: “Anyway send me more pics”
March 13, 2014 at 2:20:08 p.m. - G.H. responds: “Ok” accompanied by an image of a hairless vagina.
March 13, 2014 at 2:20:41 p.m. - G.H. writes: “One boob” accompanied by an image of a single breast.
March 13, 2014 at 2:21:06 p.m. - G.H. writes: “Two boob” accompanied by an image of a single breast.
March 13, 2014 at 2:23:48 p.m. - G.H. writes: “Like em”
March 13, 2014 at 2:24:02 p.m. - Ms. Otokiti writes: “Yes I want to see you playing with them”
March 13, 2014 at 2:25:02 p.m. - G.H. writes: “How”
March 13, 2014 at 2:25:58 p.m. - G.H. writes: “Can’t do vids on here only on Skype (emoji)”
March 13, 2014 at 3:07:48 p.m. - G.H. sends an image of a single breast cupped in a hand.
March 13, 2014 at 3:08:14 p.m. - G.H. re-sends the image first sent at 2:21:06 p.m.
March 13, 2014 at 3:08:20 p.m. - G.H. sends an emoji.
March 13, 2014 at 3:31:14 p.m. - Ms. Otokiti writes: “Well Skype is no working”
March 13, 2014 at 3:31:20 p.m. - Ms. Otokiti writes: “Send me a vid”
March 13, 2014 at 4:14:30 p.m. - G.H. writes: “How”
March 13, 2014 at 4:44:39 p.m. - Ms. Otokiti writes: “Try to record it”
March 13, 2014 at 6:21:47 p.m. - G.H. writes: “How”
March 13, 2014 at 6:22:38 p.m. - Ms. Otokiti writes: “Ok never mind”
March 13, 2014 at 7:25:45 p.m. - G.H. writes: “Ok” accompanied by an image of a hairless vagina previously sent.
March 13, 2014 at 7:26:44 p.m. - Ms. Otokiti responds: “I want to see Ur finger in there”
March 13, 2014 at 7:27:17 p.m. - Ms. Otokiti writes: “U need to get a job bitch so u can ve money for the bus”
March 13, 2014 at 7:27:28 p.m. - Ms. Otokiti writes: “Go ask Ur parents”
March 13, 2014 at 7:28:55 p.m. - G.H. writes: “Here” accompanied by an image of the complainant reclining with her fingers inserted in her vagina. The lower portion of her face is visible in the background.
March 13, 2014 at 7:29:45 p.m. - Ms. Otokiti writes: “Squeeze Ur boobs”
March 13, 2014 at 7:30:26 p.m. - G.H. writes: “Ok”
March 13, 2014 at 7:31:12 p.m. - G.H. sends an image of her gripping the top of her left breast. Her face is covered by her hand.
March 13, 2014 at 8:01:16 p.m. - G.H. writes: “Hello”
March 13, 2014 at 8:04:46 p.m. - Ms. Otokiti writes: “Pull Ur nipples”
March 13, 2014 at 8:32:43 p.m. - G.H. sends an image of her pinching her right nipple. Her face is visible.
March 13, 2014 at 8:54:09 p.m. - Ms. Otokiti writes: “Good girl”
March 13, 2014 at 8:54:20 p.m. - Ms. Otokiti writes: “U re a good bitch”
March 13, 2014 at 8:54:25 p.m. - Ms. Otokiti sends an emoji.
March 13, 2014 at 8:54:36 p.m. - Ms. Otokiti writes: “Just keep sending more pics”
March 13, 2014 at 8:54:53 p.m. - Ms. Otokiti writes: “I want to see Ur boobs all red”
March 13, 2014 at 8:55:37 p.m. - G.H. re sends the earlier image of her right breast.
March 13, 2014 at 8:56:20 p.m. - Ms. Otokiti writes: “Spank it and make it red”
March 13, 2014 at 9:01:16 p.m. - G.H. sends an image of her left breast. Her mouth and chin are visible.
March 13, 2014 at 9:02:04 p.m. - Ms. Otokiti writes: “Go stay in front of the mirror and take Ur whole body”
March 13, 2014 at 9:02:15 p.m. - Ms. Otokiti writes: “Everything”
March 13, 2014 at 9:24:11 p.m. - G.H. responds “ok” accompanied by an image taken in the mirror of her naked body from the mid-thigh area. Her arms are covering her breasts and the cell phone is partially covering her face.
March 13, 2014 at 11:30:01 p.m. - G.H. sends an image of two figure skaters.
March 14, 2014 at 11:10:45 a.m. - G.H. re-sends the image of her right breast.
March 14, 2014 at 11:33:37 a.m. - G.H. writes: “Hey”
March 14, 2014 at 11:48:10 a.m. - Ms. Otokiti replies: “Hey”
March 14, 2014 at 12:24:08 p.m. - G.H. writes: “Want more pics”
March 14, 2014 at 12:48:26 p.m. - G.H. resends the image of herself pinching her right nipple.
11There is no dispute that, without clicking on the image to enlarge, the size of any image on the screen of Ms. Otokiti’s cell phone was approximately 3 x 3 cm.
12Ms. Otokiti deleted the photos and conversation from her cell phone after receiving the complainant’s full body image at 9:24 p.m. on March 13, 2014 and blocked G.H. as a contact after receiving the final image at 12:48 pm on March 14, 2014.
13Approximately 2 months later, the accused was charged after this text exchange and other exchanges were discovered by the complainant’s mother on the family’s laptop computer and reported to police.
The Governing Law
a) General Principles
14The defendant is presumed innocent until the Crown proves beyond a reasonable doubt her guilt with respect to these offences. This is a heavy burden of proof that rests with the Crown and it is not enough that the Crown proves probable or likely guilt: see R. v. Lifchus1.
15Additionally, because the defendant testified, I must address the three-part test set out by the Supreme Court of Canada in R. v. W.(D).2as follows:
(i) If I believe the testimony of the defendant that she did not commit these offences, I must find her not guilty;
(ii) If I disbelieve the testimony of the defendant but her testimony leaves me with a reasonable doubt as to her guilt, I must find her not guilty; and
(iii) If I disbelieve the testimony of the defendant and such testimony does not leave me with a reasonable doubt, I may only find her guilty if the evidence that I do accept establishes her guilt for that offence beyond a reasonable doubt.
b) The Offences
16The relevant provisions of the Code are as follows:
s. 151 Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years:
(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 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 two years less a day and to a minimum punishment of imprisonment for a term of 90 days.
s. 152 Every person who, for a sexual purpose, invites, counsels or incites a person under the age of 16 years to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the person under the age of 16 years:
(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 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 two years less a day and to a minimum punishment of imprisonment for a term of 90 days.
s. 163.1(2) Every person who makes, prints, publishes or possesses for the purpose of publication any child pornography is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year.
s. 163.1(4) Every person who possesses any child pornography is guilty of:
(a) an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or
(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of 6 months.
s. 172.1(1) Every person commits an offence who, by means of telecommunication, communicates with:
(a) a person who is, or who the accused believes is, under the age of 18 years, for the purpose of facilitating the commission of an offence with respect to that person under s. 153(1), s. 155, 163.1, 170, 171 or 279.011 or s. 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 s. 151 or 152, s. 160(3) or 173(2) or s. 271, 272, 273 or 280 with respect to that person.
c) Mistake of Age Defence
17Section 172.1(4) states:
(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 or fourteen years of age, as the case may be, unless the accused took reasonable steps to ascertain the age of the person. (emphasis added).
18Ms. Otokiti relies on the mistake of age defence provided in s. 172.1(4) of the Code. The mistake of age defence provides an absolute defence to all of the charges against the defendant should the court find that Ms. Otokiti believed the complainant was over 18 years of age and, further, that the accused took reasonable steps3 to ascertain the age of the complainant.
19To convict an accused person who relies on the “mistake of age” defence, the Crown must prove, beyond a reasonable doubt, either that the accused person did not honestly believe the complainant was at least 18, 16 or 14 as the case may be (subjective element); or did not take reasonable steps to ascertain the complainant’s age (objective element).4
20Section 172.1(4) of the Criminal Code requires an accused who claims mistake of age to have exercised a degree of care in ascertaining a complainant’s age that a reasonable person in the circumstances would have exercised. While the accused bears the evidentiary onus, the Crown bears the onus of proving that the accused failed to take sufficient steps to determine the complainant’s actual age.5 That is, the Crown must prove beyond a reasonable doubt that all reasonable steps were not taken.6
21Gascon J. in George provided a helpful overview of the analysis to be undertaken with respect to the objective element of the defence. He noted at para. 9:
Determining what raises a reasonable doubt in respect of the objective element is a highly contextual, fact-specific exercise… In some cases, it may be reasonable to ask a partner’s age. It would be an error, however, to insist that a reasonable person would ask a partner’s age in every case. Conversely, it would be an error to assert that a reasonable person would do no more than ask a partner’s age in every case, given the commonly recognized motivation for young people to misrepresent their age… Such narrow approaches would contradict the open-ended language of the reasonable steps provision. That said, at least one general rule may be recognized: the more reasonable an accused’s perception of the complainant’s age, the fewer steps reasonably required of them. This follows inevitably from the phrasing of the provision (“all reasonable steps”) and reflects the jurisprudence and academic commentary.
22Durno J. in R. v. Ghotra7 provided further guidance and refinement on what constitutes the taking of “reasonable steps” by an accused and whether active steps are required. At para. 105, he concludes:
On these authorities, I am persuaded that the accused is not required to take active steps to ascertain the other person is an adult in every case. “Reasonable steps” to ascertain the other person’s age can include information received from any source whether elicited by active steps by the accused or otherwise. The determination as to what will constitute “reasonable steps” is made in the context of all the evidence in the case, including information known to the accused. There will be cases where active steps are required, and others there may be no such requirement. When steps are taken, the issue becomes whether they were reasonable in those circumstances.
(i) Did the accused subjectively believe the complainant was under the age of 18 years?
23Ms. Otokiti testified that she believed the person with whom she was communicating was an adult (over the age of 18) because:
a) the first contact Ms. Otokiti had with G.H. was on the dating website “Plenty of Fish”. The Plenty of Fish Terms of Use Agreement required that any user of the website or its services be 18 years of age or older;
b) G.H.’s profile on Plenty of Fish indicated she had a job, was interested in encounters with women, was over the age of 18 and was able to drive. Her profile pictures depicted an adult female;
c) during discussions on the Plenty of Fish website G.H.’s communicated in a mature manner with respect to her work, interests, sexual interests, etc. She carried on the conversation in a manner uncharacteristic of a nine-year old child;
d) G.H. told the defendant her birthday and although the defendant could not recall her specific response, her response did not suggest to Ms. Otokiti she was communicating with a child;
e) the first image sent by G.H. to Ms. Otokiti was unsolicited and was a close-up of a vagina being digitally penetrated. The rest of G.H.’s body and in particular her face were not visible in the photograph. Ms. Otokiti said that in her experience many adult women, as a personal style choice, do not have pubic hair. This photograph did not cause Ms. Otokiti any concern that she may be dealing with a child;
f) in response to a request for a picture of her breasts, the complainant sent a photo of the upper body area of a mature female; and
g) the duration of the mid-week conversation suggested G.H. was an adult. The KIK conversation began shortly after noon on Thursday, March 13th, and continued throughout the afternoon and evening ending shortly before midnight on March 13, 2014. G.H. then restarted the conversation 12 hours later at 11:10 am on Friday March 14, 2014.
24The Crown argued that the following evidence given on cross-examination suggests Ms. Otokiti is not credible and believable and leads inexorably to the conclusion that she knew she was communicating with a child at a very early stage in their communications:
a) She claimed to be a cautious person yet two hours after the conversation migrated to KIK messenger she did not check the KIK profile of G.H. nor her profile picture and claims she did not click to enlarge the photos sent to enlarge their size on her screen despite requesting these images;
b) Upon advising the accused that she did not drive and did not have money for a cab or a bus (despite G.H. claiming in her Plenty of Fish profile that she held a job and could drive), Ms. Otokiti told the complainant to ask her parents for money rather than ask G.H. any questions about her age and about the inconsistency in the information she had previously provided;
c) The communications between G.H. and Ms. Otokiti painted a picture of an experienced, aggressive, controlling participant rather than a cautious, passive, naive young woman as Ms. Otokiti claimed to be;
d) Ms. Otokiti claimed not to like the photos that were sent by G.H. and was shocked by them, yet her KIK messages evidence the accused encouraging G.H. to send more photos and texting “nasty little girl” and “I love it”; and
e) Ms. Otokiti gave contradictory evidence on cross-examination – stating she was the dominant character in the exchange of messages and in control of the exchange and then claiming to be “just playing along” and “going with the flow”.
25Although her testimony was vague at various times, on balance her evidence was believable and was unchallenged in any meaningful way whether during cross-examination or during her police interview. While she was not precise and specific during portions of her testimony, I do not find this lack of precision and specificity as indicative of an intention to deceive the court. English is not her first language and therefore she has a reduced ability to articulate her thoughts. I observed that Ms. Otokiti was non-combative and somewhat vague during cross-examination. However, her demeanour did not suggest she was being evasive or untruthful.
26Her uncontroverted evidence regarding her conversation with G.H. on the Plenty of Fish website and the content of the complainant’s Plenty of Fish profile is compelling and lends significant weight to her testimony. The Plenty of Fish website is a dating website. It is not a social media website such as Facebook or Instagram. Its very purpose is to connect adults seeking sexual encounters with other consenting adults. Plenty of Fish is not a website well-known for its use by pedophiles.8
27The complainant did not testify. The court did not have the benefit of assessing the demeanour and sophistication of this child. There is no evidence to suggest G.H. did not present in a manner consistent with an adult as the defendant claims. The content of the complainant’s KIK messages suggested G.H. was an adult, not a 9 year old child.
28The full body photograph sent at 9:24 pm on March 13, 2014 clearly depicts the body of a prepubescent child. I am unable to make that same finding with respect to any of the other 3x3 cm images visible to Ms. Otokiti when she was communicating in a sexually explicit manner with G.H. After receiving this picture, Ms. Otokiti senses something is not right and deletes all pictures and text messages between herself and the complainant.
29From a review of the exchange of messages it becomes apparent that Ms. Otokiti has lost interest in the pictures and the conversation by mid-afternoon on March 13, 2014. Consider that 92 text messages were exchanged between Ms. Otokiti and the complainant during the first 2 hours of their conversation as compared to 37 messages during the subsequent 9 hours. This evidence corroborates the evidence of Ms. Otokiti that she had moved on and was involved in other activities including watching movies on her laptop computer and not paying close attention to her conversation with G.H. and the pictures she was receiving from G.H. To use her words, the conversation was merely a “distraction”.
30Ms. Otokiti’s evidence was largely uncontroverted/unchallenged with respect to the following the material issues:
She was not aroused by the conversation or the photos sent by G.H. Ms. Otokiti says she did not click to enlarge the photographs sent by G.H. This evidence has a ring of truth. Many of the photos sent by the complainant were duplicates yet the accused did not comment on this fact suggesting she was not paying attention to the images being received. None of the photos were saved to her phone or her laptop.
She was distracted and not focussed on the images she was receiving from the complainant. She testified that she was messaging other persons, watching movies and videos on Youtube and visiting other websites during the 24 hour period she was communicating with G.H. Her evidence in this regard is credible. The above timeline evidences significant time lapses between the messages sent after the first two hours of the conversation. It is reasonable to infer that the accused was engaged in other activities and not paying close attention to the message and pictures sent by Ms. Otokiti.
She does not know the difference between a child’s vagina and an adult’s vagina. Ms. Otokiti has no children. There is no evidence she had ever viewed child pornography before receiving the pictures sent by G.H. The pictures of G.H.’s vagina are close up and in each picture G.H. has her finger inserted in her vagina thereby distorting the image.
31Last, the conduct of Ms. Otokiti subsequent in time to her conduct constituting the actus reus of the offences, namely, deleting the complainant’s contact information, deleting the message string from March 13 and 14, 2014 and blocking the complainant cannot be considered as part of the analysis of the steps taken to ascertain the age of the complainant. However, this conduct is admissible for the purpose of assessing Ms. Otokiti’s credibility at large which includes her belief that she was communicating with an adult.9
32For the foregoing reasons, I believe Ms. Otokiti’s evidence and find Ms. Otokiti held a subjective belief throughout the exchange of messages with the complainant that G.H. was 18 years of age or older. Of course, this finding does not end the analysis.
(ii) Did the accused take the reasonable steps required in the circumstances to ascertain the age of the complainant?
33At the time of the KIK conversation, G.H. was 9 years of age. This fact is not in dispute. In order to rebut the presumption that the accused knew G.H. was under the age of 16 or 18, as the case may be, Ms. Otokiti must have taken reasonable steps in all of the circumstances to ascertain G.H.’s age.
34The evidence as to steps taken by the accused, if any, is undisputed. Aside from asking G.H. for her birthdate while conversing through the Plenty of Fish website, Ms. Otokiti took no other positive steps to determine the age of G.H. I must decide whether what the accused knew and observed about the complainant were all the steps a reasonable person needed to take or whether a reasonable person ought to have made further inquiries. In making that determination I must take into account the following considerations and the evidence on them: the accused’s observation of the complainant; the complainant’s behaviour; the information the complainant told the accused about herself, including information about her age; the activities engaged in by the complainant; and the times, places and other circumstances in which the complainant and her conduct were observed by the accused.10 This list is not exhaustive.
35Ms. Otokiti was a neophyte to the world of online dating. She was completely unfamiliar with the type of individuals she might encounter online. It was not reasonable for Ms. Otokiti to have predicted the scenario which ultimately unfolded. That scenario was anything but typical (arguably unprecedented) and it is within this context that the reasonableness of her conduct must be assessed.
36In addition to the context described earlier in these reasons, the reasonable steps, if any, which ought to have been taken are informed by the following circumstances: the initial contact between the accused and the complainant was made on a dating website restricted to adults; the complainant communicated and conducted herself in a manner and with the maturity of an adult; at no time did the complainant divulge her true age to the accused and instead took active steps to deceive the accused into believing she was an adult by sending photos of an adult female’s breasts claiming they were her own breasts; and the complainant sent close-up images of her digitally penetrating her vagina as well as pictures of each nipple photographed separately.
37Unlike the majority of the case law dealing with the “mistake of age” defence, the circumstances of this case do not involve an undercover police officer posing as an underage girl on a website or internet chat room known to be frequented by pedophiles. Nor does this case involve a pubescent teenager soliciting the affections of an unsuspecting adult. Rather, this case involves a 9 year old child with obvious mental health issues soliciting sexual encounters with adults. This child was able to access the online-world of adults seeking sexual encounters because she was provided with seemingly unrestricted and unfettered access to the internet. The complainant’s parents had an obligation to care for and protect this vulnerable child. They - not Ms. Otokiti - failed in that duty.
38I am satisfied that in these circumstances nothing further was required of Ms. Otokiti to ascertain the age of the complainant. The Crown has not proven beyond a reasonable doubt that Ms. Otokiti failed to take reasonable steps to ascertain the complainant’s age.
Conclusion
39For the foregoing reasons, I find Rihanotu Otokiti not guilty on all counts on the indictment. The return date of December 11, 2017 is hereby vacated.
“Justice A. K. Mitchell”
Justice A. K. Mitchell
Released: October 5, 2017
CITATION: R. v. Otokiti, 2017 ONSC 5940
COURT FILE NO.: 46/16
DATE: 2017/10/05
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Rihanotu Otokiti
REASONS FOR JUDGMENT
justice A. K. mitchell
Released: October 5, 2017
Footnotes
- 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320.
- 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.
- Contrast this with the higher threshold under the mistake of age defence found in s. 150.4 of the Code which requires that the accused take all reasonable steps to ascertain the age of the person. (emphasis added)
- R. v. George, 2017 ONSC 2330 at para. 8.
- R. v. Dragos, 2012 ONCA 538 at paras. 35 and 44.
- R. v. Saliba, 2013 ONCA 661, [2013] O.J. 5887 at para. 28 citing R. v. Duran, 2013 ONCA 343 at para. 54.
- 2016 ONSC 1324.
- Refer to the factual matrix in See R. v. Morrison, 2017 ONCA 582 and R. v. Drury 2017 ONSC 2330.
- R. v. George, supra at para. 23.
- R. v. Duran, 2013 ONCA 343, [2013] O.J. No. 2388 (C.A.) at paras. 53 and 54.