R. v. J.W.S., 2017 ONSC 7089
COURT FILE NO.: 961/15
DATE: 2017 11 28
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
J.W.S.
Defendant
M. Jennifer Goulin, for the Crown
Martin Montes, for the Defendant
HEARD: November 21 and 22, 2017
REASONS FOR JUDGMENT
Trimble j.
[1] J.W.S. is charged with one count of agreeing or arranging to commit sexual interference with a child under section 172.2(1)(b) of the Criminal Code of Canada.
[2] The relevant portions of section 172.2 of the Code read:
(1) Every person commits an offence who, by a means of telecommunication, agrees with a person, or makes an arrangement with a person, to commit an offence
(b) under section 151 … with respect to another person who is, or who the accused believes is, under the age of 16 years; or
(2) Every person who commits an offence under subsection (1)
(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; …
Legal Burden and Standard of Proof
[3] As in all criminal cases, the onus is on the Crown to prove the essential elements of the charge, beyond a reasonable doubt. The accused is not required to prove anything, or to give evidence. He is entitled to say, as he says in this case, the Crown has not proved its case.
What are the Essential Elements of the Charge of Agreeing or Arranging to Commit Sexual Interference of a Child Under Section 172.2(1)(b) of the Code?
[4] Both counsel referred me to R. v. Cooper, 2016 ONSC 6384 (S.C.J.) and R. v. Tomasik, 2016 ONSC 3719, [2016] O.J. No. 3132 (S.C.J.).
[5] In Cooper, Miller, J., held that the test to be applied in any case involving offences under section 172.2(1)(b) of the Code is the test applied by the Supreme Court of Canada to section 172.1(1) in R. v. Legare 2009 SCC 56, [2009] S.C.J. No. 56. In so holding, Miller, J. relied on R. v. Rodwell (OSC, unreported, September 22, 2016); and R. v. Tomasik 2016 ONSC 3719, [2016] O.J. No. 3132 (S.C.J.).
[6] In Legare, the Supreme Court said at paragraph 42, “what matters is whether the evidence as a whole establishes beyond a reasonable doubt that the accused communicated by computer … for the purpose of facilitating the commission of a specified secondary offence in respect of [another] person.”
[7] At paragraph 36 the Court held that:
…s. 172.1(1)(c) comprises three elements: (1) an intentional communication by computer; (2) with a person whom the accused knows or believes to be under 14 years of age; (3) for the specific purpose of facilitating the commission of a specified secondary offence - that is, abduction or one of the sexual offences mentioned in s. 172.1(1)(c) - with respect to the underage person.
[8] I agree with Miller, J.’s analysis. Therefore, applying Legare, the essential elements of a charge of agreeing or arranging to commit sexual interference with a child under section 172.2(1)(b) of the Code are: 1) did J.W.S. intentionally use telecommunication; 2) to communicate with a person; 3) to agree or make an arrangement to commit an offence under section 151 of the Code with respect to another person whom J.W.S. believed to be under the age of 16 years?
[9] The parties concede that the first two elements are present. J.W.S. admits that he intended to use his computer to communicate (via a specific photo sharing specific and then by an email) with another person. J.W.S. admitted that he wrote the emails on Exhibit 1 that are attributed to Bob Smith. The parties agree that the only issue in dispute is whether J.W.S., in so communicating, made an agreement or arrangement with this other person to commit an offence under section 151 with respect to another person he knew was under 16 years of age.
What are the Positions of the Parties?
The Crown
[10] The Crown says that it has met its burden. The evidence (predominantly the emails in Exhibit 1) shows that J.W.S. had an agreement and arrangement with Chad Cornish to allow J.W.S. to assault Mr. Cornish’s then 9 year old niece. The Crown gives four interrelated reasons for its position:
The plan was real. By the end of the discussions J.W.S. made an agreement and plan to assault Mr. Cornish’s 9 year old niece;
J.W.S. took extensive preparatory steps;
J.W.S. initiated the conversation with Mr. Cornish, and suggested the plan whereby he could assault Mr. Cornish’s niece, and re-engaged Mr. Cornish when the conversation fell silent; and
J.W.S. had concerns about the niece telling the police, and having to drug or bribe her.
The Accused
[11] J.W.S. admits that he was the author of the emails sent by Bob Smith. He says, however, that the Crown has not proved the charge beyond a reasonable doubt. He gives three principle reasons for this:
The emails are not a complete record, and I should have reasonable doubt.
There was no plan or agreement to assault the niece. Rather, the only plan or agreement was for a “pre-meeting” to determine whether a further meeting would take place.
If there was an agreement or arrangement to assault someone, there is no evidence that the person to be assaulted was under 16 years of age.
The Facts
[12] As indicated, J.W.S. admitted that he wrote the emails in Exhibit 1, under the pseudonym of Bob Smith.
[13] Aside from the admissions, the evidence comprised a transcript of the emails, and the oral evidence of the lead investigating Peel Regional Police officer. The Defence prepared a very helpful summary of the emails, which I have reviewed, compared the emails, and found to be accurate.
[14] Sargent Ullock is a police officer trained in internet investigation and offences such as child pornography. In 2014, he was working in Peel Regional Police’s Internet Child Exploitation Bureau. Aside from his evidence with respect to copying the emails, his other evidence went largely uncontested.
[15] On April 22, 2014, then Constable Ullock received information from the RCMP’s National Child Exploitation Centre that they were investigating C.C. He had posted on Image Source, a Russia based photo sharing website frequently used by child pornographers, non-pornographic photos of a young girl he referred to as his niece. Someone else was posting comments suggesting that he wished to sexually assault the niece. The RCMP had geo-located the other person to Mississauga, and therefore notified Peel police.
[16] Between April 22 and 25, Peel police identified C.C. and located him in St. Thomas. Through open sources on line (mostly Facebook), they also identified C.C.’s niece whose photo C.C. had posted on Image Source. On April 25, police arrested C.C. at his home, and seized his computer. C.C. provided his passwords and, on April 29, police searched his computer and his account on Image Source. “Bob Smith” had posted comments on the photo of C.C.’s niece, and geo-location indicated that he was in Canada. The conversation on Image Source indicated that C.C. was offering his niece, whom he indicated was 9 years old, and that Smith was interested in assaulting her.
[17] Constable Ullock located C.C.’s niece through open internet sources, and interviewed her. She appeared to him to be 9 years of age.
[18] Constable Ullock also reviewed C.C.`s Yahoo email account, in which he found an email conversation between C.C. and “Bob Smith” that transpired between Tuesday April 22 and Thursday April 24. Their conversation by way of comments on the photo C.C. posted on Image Source moved from Image Source to the Yahoo email account.
[19] Constable Ullock blocked and copied the emails into a word document. In addition, he changed the password to the Yahoo account to preserve it.
[20] In the emails, Mr. Smith posted three photos of a young girl whom he described as his wife’s niece and described what he had done to her. He also posted a photograph of his ex-partner’s daughter and described what he had done to her. Through open source information, the police were able to identify Mr. Smith’s wife’s niece and his ex-partner’s child. They were able to determine that the internet account from which Mr. Smith emailed was owned by J.W.S.’s spouse. Through her Facebook account they were able to locate J.W.S. The photographs on Ms. S.’s web presence which identified her niece, matched those that Mr. Smith had provided to C.C. on April 22. The police concluded J.W.S. was “Bob Smith”. He was arrested on May 14 and interviewed and eventually admitted that he was Bob Smith and had written the emails the police had captured.
[21] In late May or early June, when Constable Ullock was assisting with preparing the indictment, he tried to enter C.C.’s Yahoo account and could not do so. The password that he re-set did not work. He cannot explain why. Therefore, the hard copy of the emails at Exhibit 1 is the only copy of the emails.
[22] J.W.S. did not question the accuracy of the content of the emails, to whom and from whom the emails were addressed, or the dates and times that they were sent. He did contend that the emails may be incomplete and that Constable Ullock made errors in copying them to a Word document.
Result and Analysis
[23] On the whole of the evidence, the Crown has proved beyond a reasonable doubt that J.W.S. agreed and arranged with C.C. to assault his 9 year old niece. I find J.W.S. guilty. I say this for the following reasons:
The emails show the development of an agreement between the two men to assault C.C.’s niece. The emails provide great detail about what J.W.S. wanted to do to C.C.’s niece.
The agreement was not simply an agreement to meet and assess further actions. On Thursday April 24, there was discussion in the emails about a meeting whereby J.W.S. could meet the girl on Friday, April 25, and if J.W.S. decided he wanted to proceed further, the assault could take place on Saturday the 26th. However, after C.C. said that he would have his niece from 3:45 to 5 p.m., on Friday the 25th, the plan was to assault her on Friday the 25th. The only issue was where. J.W.S. referred to meeting them at a Tim Hortons and buying her a doughnut because “she might need her strength”, presumably for the ordeal that was to follow immediately thereafter.
The discussion between the two men is more than a fantasy for J.W.S. On April 24, he speaks about fantasizing about what he was planning to do for two days, but when he speaks of what he wants to do with C.C.’s niece and how he wants to do it, his language does not speak of his hope or his dream, but of a plan. Further, at several points he speaks of fear of being caught, having to work around his wife’s work schedule, and the consequences for his son should J.W.S. be caught. This fear arises only because he is planning to assault the girl, not because he fantasized about it. He is aware of risks inherent in the assault and is planning how to minimize them. By 11:28 pm on April 24, the agreement and arrangement was that the assault would happen the next day. J.W.S. was to rent a motel room and bring video and still cameras to capture their assault. All J.W.S. asked for was an intersection close to C.C. so that he could arrange the motel.
J.W.S. argued that there was no plan as there was no agreement as to specific date and time, and place. In effect, he submitted that section 172.2(1)(b) required almost a contract. In this respect, he relied on Tomasik, at paragraph 92 and 93.
In Tomasik, Hennessy, J. held that discussions between the accused and an undercover police officer that ended with the question “Maybe we can chat for a while then end up meeting. What would you like to do if things work out?” were insufficient to lead to the finding that Mr. Tomasik agreed with or concluded an arrangement with the undercover officer. Hennessy, J. concluded that the chats ended before Mr. Tomasik made any specific proposal about meeting up. They agreed only to chat before meeting.
In J.W.S.’s case, however, I find that there was such an agreement and arrangement. The details of what was to be done to the child were clear. The date and time were set – between 3:45 and 5 p.m., on Friday the 25th. The only issue was the place. It was clear that once C.C. gave the intersection, J.W.S. would book a motel close to the intersection and provide the details to C.C..
This level of detail parallels that which existed in Tomasik in respect of the arrangements Mr. Tomasik made with sex workers, before they went to police. Hennessy J. held that the agreement or arrangement existed where the plan was that Mr. Tomasik and the sex workers would abduct and assault a girl within a certain age range, for a specific price. No specific time and place were agreed to. Hennessy, J. said that “One is left with the alarming thought that but for the resistance or refusal of [the sex workers] that Mr. Tomasik might have been able to succeed with his plan.” In J.W.S.’s case, I wonder that but for C.C.’s arrest, J.W.S. would have succeeded with his plan.
- I do not accept J.W.S.’s argument that he did not know that C.C.’s niece was under 16 years old. He argues this because on verbiage used by C.C. in his email of April 22 at 2:36, in which he refers to his niece as “…a Lil old, but she looks groomable and train able.” and on April 22, he says that they could continue to abuse her on an ongoing basis “tell [sic] she gets knocked up lol”.
I reject this submission for a number of reasons. First, I accept Constable Ullock’s uncontested evidence that on the photo sharing website the niece was listed as being nine years old, and that she appeared that age on the website and when he interviewed her. Her age and the photos of her is what piqued J.W.S.’s interest. Further, 16 year olds are not “groomed”; children are. The phrase “tell she gets knocked up lol” refers more to the length of time the two men would have to abuse the niece, not her age at the time of the plan to abuse her. Finally, at 7:29 pm on April 23rd, J.W.S. wants to see “… some CP pics just so I know I am not being set up.” It was uncontested that “CP pics” means child pornography photographs, not teen photographs or photographs of a woman over 16.
- J.W.S.’s submits that I should have reasonable doubt because I do not have a complete record of the emails. The electronic file is lost. We have only the blocked and copied emails that Constable Ullock made, which were not double checked by someone else against the original electronic file. The time and date references are not uniform in all the emails. Some emails attach the previous email thread and others do not. Some are out of order. J.W.S. says that I cannot be certain of the existence of an agreement or arrangement without a complete copy of the emails.
I disagree.
The whole of the conversation is not copied in the emails because it began on the website and ended when C.C. was arrested. The irregularities that J.W.S. points out in the email times and dates, and the fact that some of the printed emails attach discussion threads and others do not, was addressed by Constable Ullock. He said that he copied all of the emails. If some attach discussion threads, that is because the email he copied attached the discussion threads. As for differences in date and time information, that too was explained. It was a result of the programs that applied either to the emails when copied or Word when the text was copied into the new document.
More importantly, notwithstanding the inconsistencies J.W.S. pointed out, the flow of the emails' content in continuous. No gaps in the emails can be seen based on their sense and flow.
[24] For these reasons, a finding of guilt will be registered on the sole count on the indictment.
Trimble J.
Released: November 28, 2017
CITATION: R. v. J.W.S., 2017 ONSC 7089
COURT FILE NO.: 961/15
DATE: 2017 11 28
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
J.W.S
REASONS FOR JUDGMENT
Trimble J.
Released: November 28, 2017