CITATION: R. v. Patterson, 2018 ONSC 4187
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
RICHARD PATTERSON
Defendant
Jennifer Stanton, for the Crown
Frank Bernhardt, for the Defendant
HEARD: December 4, 5, 7, 8, 11, 12, 13, 14 of 2016 And January 3, 4, 5 and 8 of 2017
Bawden j.
Table of Contents
Table of Contents. 1
Introduction. 2
The Evidence. 2
The Arrest of Richard Patterson. 2
Mr. Patterson’s Statement to Police. 4
The Investigation of Mr. Patterson’s Laptop. 5
The Extraction of Data. 5
The Discovery of Child Pornography on Mr. Patterson’s Laptop. 6
The Discovery of Evidence of Child Luring. 6
Matthew D.’s Evidence at Trial 8
Facebook Records Obtained through MLAT. 9
The Issues Raised at Trial 10
The Garofoli Application. 10
The Facial Application. 10
The Sub-Facial Application. 13
Section 24(2) 17
Proof of the Substantive Offences. 18
Overview of the Content of Mr. Patterson’s Laptop Computer 18
The Forensic Evidence. 23
Proof of Possession of Child Pornography. 24
Proof of Accessing Child Pornography. 28
Appendix A - Identifying Mr. Patterson as the User of the Josh Jay and Jim Jay Accounts. 49
Introduction
1Richard Patterson was charged with possession of child pornography, accessing child pornography and luring a child by electronic means. After a lengthy trial which included challenges to virtually every aspect of the evidence, I found Mr. Patterson guilty of possession and access to child pornography but dismissed the charge of luring under section 172.1(1) of the Criminal Code. I advised Mr. Patterson informally of my reasons and conclusions when he appeared before me on May 11, 2018. These are my formal reasons.
The Evidence
The Arrest of Richard Patterson
2Michael Lawrence was working at a construction site near Yonge and Bloor in Toronto on April 18th, 2016. At around 8:30 a.m., he went to a nearby Tim Horton’s to buy coffee for himself and his crew. The restaurant was busy and the lineups were long. Mr. Lawrence bought his coffees and was on his way out when he passed a table occupied by the defendant, Richard Patterson. Mr. Lawrence glanced at the screen of Mr. Patterson's open laptop and saw an image of a boy, naked from the waist up and covered in what appeared to be oil. The boy was posed in a sexually provocative manner. Mr. Lawrence stopped dead in his tracks, walked backwards and stared at the screen for several seconds. He then hastily returned to the counter to contact the manager. Mr. Lawrence was convinced that Richard Patterson was viewing child pornography.
3Lawrence Hilton was another customer at the Tim Horton's that morning. He overheard Mr. Lawrence's agitated conversation with the manager and, being curious as to what was troubling Mr. Lawrence, stepped out of line to stand just behind Mr. Patterson and see what was on the laptop screen. What he saw, (to quote his words), caused the hair to go up on the back of his neck.
4Mr. Hilton saw that Mr. Patterson was chatting on Facebook with what appeared to be a boy under the age of 14 years. The image of the boy was naked from the waist up with his body covered in an oily substance and posed in an obviously provocative fashion. There were also smaller images of other boys on the screen, all similarly naked from the waist up.
5Mr. Hilton was able to read a portion of the ongoing chat. It appeared to him that the boy pictured on the screen was saying that he would be graduating soon and Mr. Patterson was suggesting that the two should meet up. Mr. Hilton was alarmed by that possibility.
6Mr. Hilton approached Mr. Patterson and asked “what is your deal with little boys?” Mr. Patterson replied that the boy was his son, a suggestion that Mr. Hilton immediately dismissed. The boy in the image did not even remotely resemble Mr. Patterson.
7Back at the coffee counter, Michael Lawrence was becoming frustrated by the failure of the Tim Horton’s manager to comprehend the seriousness of the situation. It appeared that she was simply going to ask Mr. Patterson to leave the restaurant. Mr. Lawrence hurried back to his construction site in order to enlist the assistance of a paid duty police officer. Constable Smith was reluctant to leave his post but on the insistent request of Mr. Lawrence, he agreed to attend the restaurant. The moment that P.C. Smith entered the Tim Horton’s, Mr. Patterson closed the lid of his laptop.
8Based on information provided by Mr. Lawrence and Mr. Hilton and his own observations of Mr. Patterson’s nervous demeanor, P.C. Smith placed Mr. Patterson under investigative detention and called for uniformed officers. P.C. Casasola and P.C. Bannister arrived a short time later. They placed Mr. Patterson under arrest, seized his belongings and drove him back to 53 Division for further investigation.
Mr. Patterson’s Statement to Police
9D.C. MacInnis is a member of the Child Exploitation Section of the Toronto Police Service. She and her partner commenced a videotaped interview of Mr. Patterson at 12:40 p.m. on the day of his arrest. The admissibility of that statement is conceded. The following are the pertinent aspects of the statement:
a. Mr. Patterson initially denied that he had been using his laptop at all that morning. He claimed that his computer had remained in his backpack when he was at the Tim Horton’s.
b. He then admitted that the computer might have been on the table but he did not use it.
c. He denied that he had been on Facebook that morning.
d. He denied having a Facebook account.
e. Mr. Patterson finally admitted that he had been on Facebook that morning but said that he was using the account of a friend’s 15 year old son who was gay. Mr. Patterson said that he was reluctant to use the account because the boy’s friends would sometimes appear half dressed in their profile pictures. He claimed that he could not recall the name of the account.
f. Mr. Patterson acknowledged that he “may have accidentally” opened one of his friend’s son’s messages and seen nude pictures which he quickly closed.
g. He admitted that “there might be some other things on my laptop that shouldn’t be on there”.
h. When asked if he meant child pornography, Mr. Patterson said “I believe they are all over eighteen”. He explained that he would visit a porn site once or twice a week and the site claimed that all of its models were 18 and older.
i. Mr. Patterson denied that he had ever tried to meet any of the people that he chatted with online. He also denied that he had ever asked any of those people to send him a picture.
10Detective MacInnis checked Mr. Patterson’s criminal record and determined that he had a lengthy record for sexual offences against children. In 1993 he was convicted of sexual assault and sexual interference which led to a 14 year prison term. She obtained a warrant to search Mr. Patterson’s computer.
The Investigation of Mr. Patterson’s Laptop
The Extraction of Data
11D.C. Kidd is a computer forensic analyst. Acting on the warrant obtained by D.C. MacInnis, he extracted images and video from Mr. Patterson’s hard drive using LACE, a software program developed by police to locate digital evidence of child exploitation. D.C. Kidd also extracted internet and system files using Internet Evidence Finder (IEF). D.C. Kidd provided the extracted data to D.C. MacInnis who then reviewed and categorized the extracted files.
12D.C. MacInnis divided the electronic files into three categories. Category 1 images and video fit the definition of child pornography set out in section 163.1(1) of the Code. Category 2 files consisted of sexualized images which were of investigative interest but did not meet the definition of child pornography. All other images and videos fell into Category 3.
The Discovery of Child Pornography on Mr. Patterson’s Laptop
13D.C. MacInnis concluded that 17 images and 14 videos found on Mr. Patterson’s computer fit the definition of child pornography.
14The images which met the definition of child pornography could be divided into three broad categories:
a. Thirteen of the images showed prepubescent boys wearing either underwear, shorts or a diaper.
b. Three of the images showed either the sexual organ or the anus of the subject.
c. One image depicted a teenage boy engaged in explicit sexual activity.
15All 14 of the videos showed naked prepubescent boys involved in explicit sexual activity.
The Discovery of Evidence of Child Luring
16The extraction from Mr. Patterson’s laptop revealed that he had been using two Facebook accounts. The profile names for the two accounts were “Jim Jay” and “Josh Jay.”1In the Jim Jay account, Mr. Patterson represented himself to be an 18 year old gay male. In the Josh Jay account, he pretended to be Jim Jay’s 15 year old brother.
17When D.C. MacInnis reviewed the IEF report which included snippets of Mr. Patterson’s Facebook messages, she found a message which had been sent to Mr. Patterson’s laptop five days before his arrest. The message read “Ok see u Sunday”. Mr. Patterson had been arrested on a Monday morning. D.C. MacInnis was immediately concerned that Mr. Patterson might have already met with one of the boys that he had been chatting with on Facebook and, given Mr. Patterson’s criminal background, she resolved to find the person who sent that message as quickly as possible. The message was sent by a Facebook user who had a Facebook identification number ending in 8378.
18Using the Facebook identification number 8378, D.C. MacInnis was able to determine that the message had been sent by a 15 year old boy living in the Toronto area named Matthew D. D.C. MacInnis contacted Matthew and advised him that Jim Jay and Josh Jay were not young gay males as he had believed but rather a middle aged man. Matthew provided D.C. MacInnis with his Facebook password and gave her permission to copy all of the messages that had been sent and received between himself, Jim Jay and Josh Jay. D.C. MacInnis downloaded all of the chat which was still accessible on Matthew’s Facebook account.
19The first conversations occurred between Matthew and Jim Jay. On March 17th, 2016, Mr. Patterson in the guise of Jim Jay asked Matthew what kind of boyfriend he wanted. Matthew responded that he wanted someone who was very cute and young. Three weeks later, Mr. Patterson created the Josh Jay Facebook account in which he represented himself to be Jim Jay’s younger brother, Josh. The profile picture which Mr. Patterson posted on the Josh Jay account portrayed Josh to be an attractive teenager. The accompanying biographical information indicated that Josh was 15 years old.
Matthew D.’s Evidence at Trial
20Matthew D. testified that he began using Facebook when he was 12 or 13 years old. All of the information which he posted to Facebook was accurate including the city where he lived, his date of birth and even his cell phone number. Matthew did have some privacy settings on the account but he did not take significant steps to protect his identity. He clearly did not believe that he was at any risk.
21By the time that he was 15, Matthew knew that he was gay. Mr. Patterson, (posing as Josh Jay), asked Matthew “your new at being gay aint you” (sic) to which Matthew answered “Yes. I am a virgin and have not come out yet.” It was obvious when Matthew testified that he is still not comfortable discussing his sexuality. He presented as a very gentle, trusting young man.
22Matthew’s recollection of his conversations with Jim Jay and Josh Jay were occasionally at odds with the digital record. He believed that he had first messaged with Josh Jay although the records show that it was Jim. He was certain, however, that his only contact with Josh and Jim had been over Facebook. He reviewed the chat messages which had been obtained directly from Facebook and confirmed that they accurately recorded all of his conversations.
Facebook Records Obtained through MLAT
23Shortly after Mr. Patterson was committed for trial, the Crown obtained an order under the Mutual Legal Assistance Treaty (MLAT) requiring Facebook in the United States to turn over all of Mr. Patterson's Facebook Communications using the Jim Jay and Josh Jay accounts. The results of that application were received shortly before the commencement of this trial.
24The records received from Facebook include all of Mr. Patterson’s Facebook activity. They show that Mr. Patterson was a member of a Facebook group which was devoted to the exchange of images of child pornography and which provided a forum for members to discuss sexual activity with children.
25Midway through the trial, the defence brought an application to exclude the Facebook evidence. The application sought to exclude not only the evidence which had been obtained through the MLAT order but also the messages which D.C. MacInnis had recovered from Matthew’s own Facebook account. After hearing evidence and submissions concerning Mr. Patterson’s standing to bring that application, I concluded that he did not have a reasonable expectation of privacy with respect to either source of the Facebook records. Accordingly, the application was dismissed.
26Due to the late disclosure of the evidence, the Crown did not rely on the Facebook evidence in order to prove the charges of accessing or possession of child pornography. The Crown does, however, rely on the MLAT materials to establish the nature of Mr. Patterson's communications over Facebook and his specific conversations with Matthew D.
The Issues Raised at Trial
The Garofoli Application
27At the outset of the trial, Mr. Bernhardt indicated by way of oral submission that he wished to challenge the validity of the warrant to search Mr. Patterson’s computer. I permitted Mr. Bernhardt to file a Notice of Application and pursue the issue through his cross-examinations at trial.2 I also gave the defence leave to cross-examine the affiant of the Information to Obtain in furtherance of a proposed sub-facial challenge to the warrant. Mr. Bernhardt ultimately did not make any submissions as to why the Garofoli application should be granted and effectively acknowledged that it would likely fail but he has not formally abandoned it. The application does fail for the following reasons.
The Facial Application
28The facial challenge to the warrant alleges that the ITO fails to establish objective grounds to believe that Mr. Patterson had committed either of the offences enumerated in Appendix B of the ITO, (luring a child and attempt sexual interference.)3 This challenge requires the court to consider whether the issuing justice could have found that D.C. MacInnis’ belief was objectively reasonable based solely on the evidence disclosed in the ITO.
29Det. MacInnis set out the following evidence in the ITO to establish reasonable and probably grounds to believe that the offence of luring a child under section 172.1 of the Criminal Code had been committed:
a. Michael Lawrence provided a written statement to police indicating that he had observed Mr. Patterson to be engaged in live chat with young boys on his laptop. The boys were photographed in sexually provocative poses and appeared to be rubbing their naked chests.
b. Lawrence Hilton observed Mr. Patterson having a live Facebook chat with a boy who appeared young enough to still be in public school. The boy messaged Mr. Patterson that he would be graduating soon and Mr. Patterson “talked about meeting up with the boy”.
c. When a uniformed officer entered the restaurant, Mr. Patterson quickly closed his laptop and began to shake.
d. The security video from the Tim Horton’s showed Mr. Patterson using his laptop from the time that he entered the restaurant at 7:47 a.m. until the arrival of P.C. Smith at 8:42 a.m. Mr. Patterson denied to police that he had ever taken his computer out of his bag.
e. Mr. Patterson ultimately acknowledged that he had been using his laptop at the Tim Horton’s and had logged onto a friend’s Facebook account. He navigated to the friend’s son’s Facebook page where he inadvertently viewed a photograph of a naked male aged between 14 to 15 years. He admitted that police would find ‘questionable’ material on his laptop.
f. Mr. Patterson’s criminal history includes the following entries relating to sexual offences committed against children:
i. Mr. Patterson had been released on September 20th, 2015 after serving a one year sentence for sexual assault upon an 18 year old male and breach of a SOIRA Order.
ii. In 1993, Mr. Patterson abducted a 13 year old male who was riding his bicycle in a park and forced him to engage in fellatio and attempted anal intercourse. Mr. Patterson was ordered to participate in a 30 day psychiatric assessment following his arrest on these offences. He escaped from the hospital and, while unlawfully at large, entered an elementary public school and abducted a six year old boy. Mr. Patterson pulled the boy into a bathroom cubicle, placed him on the floor and lay on top of him. The victim managed to escape. Mr. Patterson served the entirety of his 14 year sentence for sexual assault and sexual interference.
iii. Mr. Patterson was convicted in 1992 of sexual interference in relation to his step-brother.
iv. In 1990, Mr. Patterson was convicted of sexual assault in relation to another young male.
v. In 1988, Mr. Patterson was convicted of assault causing bodily harm arising from the attempted abduction of a six year old boy.
vi. In 1985, Mr. Patterson was engaged as a babysitter to care for three children including a six year old boy. When he was alone with the boy, Mr. Patterson performed fellatio on him while masturbating himself. The victim tried to escape by pulling on Mr. Patterson’s hair and Mr. Patterson retaliated by biting the victim’s penis. He then ordered the victim to perform fellatio on him.
vii. Correctional Services Canada classified Mr. Patterson as a diagnosed pedophile who remained untreated and was considered at high risk to re-offend.
30D.C. McInnis stated that she had reasonable grounds to believe that Mr. Patterson had been chatting with young boys over Facebook. Relying on her training and experience as an officer in the child exploitation unit, she stated that Facebook users are able to share images and videos with one another and that digital files of that nature are commonly used to commit the offence of luring.
31I find that the information set out in the ITO did provide an objectively reasonable basis to believe that Mr. Patterson had committed the offence of luring a child for the purpose of facilitating the commission of a sexual offence. Mr. Patterson had a lengthy history of committing sexual offences against children. Two complete strangers had observed disturbing images of children on Mr. Patterson’s laptop and they both took immediate steps to raise the alarm. One of the witnesses observed Mr. Patterson exchanging messages with a young boy to arrange a meeting. As soon as a uniformed police officer entered the restaurant, Mr. Patterson closed the lid of his laptop and subsequently denied that he had even been using Facebook.
32The facial challenge to the warrant fails.
The Sub-Facial Application
33A subfacial challenge to a warrant seeks to impeach the reliability of the information provided in the ITO. The challenge permits the amplification of the record and the excision of information which is found to be unreliable or untrue. The test to be applied is whether the issuing justice could have granted the warrant based on the information determined to be sufficiently reliable after the subfacial review.
34There are two elements to Mr. Patterson’s subfacial challenge. The first argument is that the authorization was overly broad in permitting police to search for images of child pornography when there were no grounds to believe that Mr. Patterson had committed that offence. The second argument is that the police executed the warrant in a fashion which exceeded the scope of the authorization by failing to place limits or filters on the forensic software which was used to search the computer. The defence submits that the offence under investigation was luring a child and, since the evidence only disclosed the use of Facebook Messenger as the instrument of luring, the authorization should have been confined to the examination of text messages sent over Facebook. Mr. Bernhardt submits that once the search of the computer revealed the presence of child pornography, investigators were obliged to return to the issuing justice for further authorization prior to continuing to search for images and video.
35D.C. MacInnis acknowledged in cross-examination that she did not have reasonable grounds to believe that Mr. Patterson had committed the offence of being in possession of child pornography at the time that she applied for the warrant but nevertheless requested authorization to search his computer for images which squarely fell within the Criminal Code definition of child pornography. She gave the following explanation for that request:
a. Pornographic images and video are commonly used by sexual offenders to lure children. Offenders use pornography to normalize sexual contact between adults and children with the ultimate goal of grooming children to engage in sexual activity which they otherwise might resist. In order to investigate the offence of luring a child, it was necessary that she determine if Mr. Patterson had access to such images or videos.
b. She required access to images and video on the computer in order to identify the child that Mr. Patterson had been communicating with on the morning of April 18th as well as any other possible victims. Images conveyed through Facebook and other social media platforms can be deposited as digital artifacts on the hard drive of a computer and such artifacts can be extremely useful in identifying possible victims as well as providing evidence of the intentions of the suspect.
c. Facebook is much more than a text based instrument for communication. Those who prey on children typically create false social media personas which rely on images and video to attract the interest of children. If a warrant to investigate child luring was confined to the review of text messaging alone, many of the most common elements of a suspect’s efforts to lure children would be lost.
36Both D.C. MacInnis and D.C. Kidd were challenged in cross-examination as to why they employed forensic software tools such as LACE and IEF to search the computer when they knew that those programs would conduct an unlimited search of the hard drive for images or videos of child pornography. Both officers testified that digital evidence of luring is rarely found in easily accessible file structures. Offenders will frequently delete files which would demonstrate contact with children or the evidence of that contact may only reside in remote systems generated files. In order to find such evidence, investigators must use sophisticated forensic software such as LACE and IEF which are capable of finding such images no matter where they may reside on the hard drive.
37D.C. Kidd testified that LACE and IEF are also capable of providing direct evidence of the identity of the parties who were engaged in a chat which is often essential to a successful prosecution.
38Mr. Bernhardt suggested to D.C. Kidd that he should have applied time-based filters in his search of the computer such that only images or video accessed within a reasonable period of time would have be uncovered by the search. Mr. Bernhardt went so far as to suggest that the search should have been confined to Mr. Patterson’s computer activity on April 18th, the date that Mr. Hilton had observed the invitation to meet on the laptop screen. In response, D.C. Kidd pointed out that many artefact files created by the operation of computer systems do not have reliable file creation dates and relevant files would have gone undetected if temporal filters had been employed. He also observed that efforts to lure a child frequently take place over the course of weeks and months. A forensic search confined to a single day’s data would never capture that highly pertinent evidence.
39I accept the evidence of Detective Constables MacInnis and Kidd on the voir dire. The evidence of the witnesses at the Tim Horton’s gave rise to a reasonable inference that Mr. Patterson was using Facebook to lure children. The identification of the victim or victims of that offence demanded that investigators search for images. Drawing on their experience and training, the officers quite properly requested authorization to search the computer for images and videos which could provide evidence of grooming efforts on the part of Mr. Patterson. It would be simply impossible to conduct a search for such files without the use of forensic software such as LACE and IEF.
40Mr. Bernhardt relied on Jones 2011 ONCA 632 to argue that the warrant was unreasonably broad in permitting the officers to search the computer without any restrictions regarding the dates when files were created. I accept D.C. Kidd's evidence that the unrestricted search was necessary to investigate the offence of child luring. Unlike Jones, the officers in this case sought and were granted authorization to search for digital evidence of child pornography. Given the nature of this investigation, that request was entirely reasonable.
41I am also satisfied that the warrant was not overly broad in permitting a search for images and video which would fit the definition of child pornography. Given that the search for such images was an integral element of the investigation into child luring and that the warrant specifically authorized the police to search for such images, there was no need to seek further authorization once they were found.
42The subfacial challenge to the warrant has not given rise to any concerns regarding the reliability or good faith of the evidence set out in the ITO. There is no cause to excise any evidence from the ITO and, in keeping with my earlier finding concerning the facial attack to the warrant, I find that the issuing justice certainly could have granted the warrant based on the information disclosed.
Section 24(2)
43If I have erred in my analysis of the section 8 challenge to the warrant, I would nevertheless admit the evidence pursuant to section 24(2) of the Charter.
44If there was a breach of section 8 of the Charter, it cannot be described as a serious one. D.C. MacInnis sought and obtained judicial authorization to undertake a forensic examination of Mr. Patterson’s laptop which included a search for images of child pornography. There is no suggestion that she misled the issuing justice with respect to the grounds for that search or the manner in which it would be carried out. D.C. Kidd testified that the authorization granted in this case was similar to authorizations granted in all investigations of child luring. If there was a breach of section 8, it was certainly not a willful one.
45The impact of the breach on Mr. Patterson’s Charter protected rights would be serious but that factor is far outweighed by society’s interest in the adjudication of this case on its merits. Mr. Patterson has a lengthy and frightening history of sexually abusing children. Two patrons of a Tim Horton’s restaurant were so alarmed by what they saw on Mr. Patterson’s computer screen that they sought out police assistance, maintained observations on Mr. Patterson until police arrived and then attended a police station to provide detailed statements concerning their observations. Their statements provided sufficient detail that a highly trained officer in the Child Exploitation Unit subjectively believed that Mr. Patterson was using his computer to lure children for the purpose of committing sexual offences. Those concerns proved to be well founded when the computer was forensically examined. To exclude such evidence on a technical breach of the Charter would surely tend to bring the administration of justice into disrepute.
Proof of the Substantive Offences
Overview of the Content of Mr. Patterson’s Laptop Computer
46Mr. Patterson is charged with the possession of one image and one RAR file which meet the definition of child pornography. He is also charged with having accessed 17 images and 14 videos of child pornography. There is no single fact that proves either possession or access to child pornography in this case. The 31 files containing child pornography represent a small fraction of the total number of image and video files which were found on the computer. The fact that there are so few files containing child pornography is one of the strongest arguments against the inference that Mr. Patterson knowingly possessed or accessed them. In his statement to police, Mr. Patterson admitted that he frequently visited a pornographic website which posted videos of young people but he relied on the website’s representation that all of its models were over the age of 18. He also admitted, however, that police might find things on the computer that “shouldn’t be there”.
47The Crown relies on a vast array of forensic evidence to prove that Mr. Patterson had knowledge and control of the pornographic files. Prior to embarking on a minute examination of that forensic evidence, it is useful to survey the landscape of Mr. Patterson’s use of his computer. This wide view reveals a great deal about his interests and predilections.
Mr. Patterson’s Pictures Folder
48The majority of the images that Mr. Patterson saved to his pictures folder are pornographic images of young white males. All of the images have lengthy numerical file names, a fact which strongly suggests that they were downloaded from websites that Mr. Patterson visited.
49D.C. MacInnis testified that she has been trained to be conservative in her categorization of pornographic images. If there is any reasonable doubt as to whether an image meets the definition of child pornography, she will err on the side of caution. The most common cause for uncertainty is the age of the subject. D.C. McInnis’s caution was evident in her review of the Pictures Folder. When I reviewed the folder, I found several images of subjects who seemed very likely to be under the age of 18 and posed in an obviously pornographic fashion.
50The only image in the folder that D.C. McInnis identified to be child pornography was the photo of a naked boy lying face down on a white bedspread. The image is notable for the fact that the boy is nude and plainly under the age of 18 but it is otherwise entirely in keeping with other images in the folder.
The Terms that Mr. Patterson Searched on the Internet
51Using the IEF software, D.C. Kidd was able to extract the words and phrases that Mr. Patterson searched on the internet. The phrases included the following:
Teen boy cum
Young boy erection
Young Little Boys in Shower
Tight teen virgin boys cum first time
Teen boys haveing sex (sic)
Teen boys big cock pictures
Teen boys ass pictures
Small Boy Ass
Young Teen Boys Asses
52These search terms are consistent with the images which were saved to Mr. Patterson's pictures folder as well as the pornography which D.C. MacInnis found on his hard drive. It is hard to imagine any evidence which could more perfectly capture Mr. Patterson’s interests than the terms that he searched on Google and Bing. They represent, in his own words, the images and videos which he most wanted to see.
The Websites that Mr. Patterson Visited
53D.C. McInnis testified that Mr. Patterson frequently visited a website entitled “Model Boys”.
54The Model Boys website offers a series of images of prepubescent boys portrayed in sexualized poses. Most of the boys are topless and some are dressed only in underwear. As D.C. McKenna's observed, no reputable modeling agency would ever offer images of this kind for sale.
55The Model boys home page contained links to several other websites with similar content including Modelteenz, Newstar, Sons of Zeus and Truboymodels. Mr. Patterson followed the links to these websites and viewed the posted images. All of these sites offered sexualized poses of prepubescent boys wearing only their underwear or, in the case of one boy, a diaper.
56One can easily infer from Mr. Patterson’s frequent navigation to these sites that he had an interest in sexualized images of boys. One motif which appears frequently in the Model Boys websites is the depiction of prepubescent boys posing as they are about to remove their underwear. Images with this theme appeared in many files on Mr. Patterson’s hard drive.
57Mr. Patterson searched the phrase “teen boy cum” using his Internet browser. One of the websites which returned on this search was entitled “www.teenboysmilk.com”. D.C. MacInnis navigated to the site and found that it primarily consisted of videos of teenaged males masturbating to ejaculation. Mr. Patterson bookmarked this site as a favorite in his Internet Explorer browser and the IEF results showed that he visited it often. Digital artifacts including at least one video from this website were found on Mr. Patterson's laptop.
Mr. Patterson’s Facebook Activity
58The records obtained from Facebook through the MLAT request included a chat between Mr. Patterson in his guise as Josh Jay and a Facebook user with a Facebook ID number ending in 0264 on April 15th, 2016. Josh Jay began the chat by saying “hi handsome how you doing”. Mr. Patterson told 0264 that he was 15 years old and 0264 responded that he was 12. Mr. Patterson then sent the following messages:4
Josh: I bet you got a boyfriend
Have you been fucked before
You want me to
Well since you said you want to get fuck can you show me a pic of your ass
590264 responded to this message by sending a photograph of a naked boy lying face down on a white bedspread. The image is the same one which appears in Mr. Patterson's Pictures Folder and in various cache folders on his hard drive. The model is a boy identified as “Robbie” on the Model Boys website. After receiving the image, the following exchange took place:
Josh: nice you got a nice cock to
0264: you fuck me?
Josh: yea i will do you like to get blow jobs to
Josh: was it good getting fucked
0264: my first was when i was 8
Josh: that was young did you want to do it or did you get raped
Josh: can you handel a big cock
If you show me your cock ill show you mine
Is this the onily site your on
60These messages unmistakably demonstrate that Mr. Patterson has an interest in sexual activity with male children.
61The Facebook records also indicate that Mr. Patterson joined a Facebook Chat group on March 22nd, 2016 using his Jim Jay account. The object of the group was to exchange images and videos of child pornography. On March 30th at 7:21 p.m., one of the group members posted an image of the same Robbie from the TruBoys Models website wearing only a diaper. Mr. Patterson asked the sender 36 minutes later “is that you”.
62The MLAT results also show that Mr. Patterson received a number of images of fully naked prepubescent boys over Facebook including images of children engaged in explicit sexual activity. The Crown is not relying on these images due to the late disclosure of the evidence but there is no dispute that they are images of child pornography.
Conclusions Concerning Mr. Patterson’s Interests and Predispositions
63Mr. Patterson has an abiding sexual interest in young males. That interest is reflected in the pictures that he saved, the websites that he visited and his social media activities. His predilection is important to bear in mind when weighing the defence argument that Mr. Patterson did not see and was not aware of the few images of child pornography which were found on his hard drive.
The Forensic Evidence
64In order to explain my findings with respect to the access charge, it is necessary to review the forensic evidence in some detail. I provide the following summary of the evidence of D.C. Kidd as a guide to my findings with respect to possession and access of the individual images:
a. Some of the images which the Crown alleges that Mr. Patterson accessed were found in his Google Chrome Cache memory. Google Chrome is an Internet browsing program. When a user loads a page from a website using Chrome, the program will automatically create a small version of the images which appear on the page and save those images into a cache memory database. These images are saved within a database rather than as individual files and they are not recognizable as images on the hard drive of the computer. Chrome will save all of the images which form part of the webpage regardless of whether the image is actually seen on screen by the user. The fact that an image is saved to Google Chrome Cache indicates that the user navigated to the webpage but it is not conclusive proof that the user actually saw the image. File creation dates on images retrieved from Google Chrome Cache are not forensically reliable.
b. On March 24th, 2016, Mr. Patterson deleted Google Chrome from his computer. From that point forward, he used Internet Explorer (IE) exclusively as his Internet Browser. IE also archives small versions of images which appear on webpages loaded by the user but, unlike Google Chrome, those images are saved in a recognizable format in the Temporary Internet Files of the computer. It is difficult but possible to view these images by navigating through a lengthy series of computer generated folders. The presence of such images in the Temporary Internet Files folders can give rise to an inference that the user saw the image but, for the same reasons discussed in regards to Google Cache memory, it is not conclusive proof. File creation dates in IE Temporary Internet Files are forensically reliable if the proper date and time are set in the BIOS of the computer. (D.C. Kidd determined that the BIOS for Mr. Patterson’s computer was properly set to Eastern Standard Time.)
c. Orphaned files are files which were once saved to the hard drive within a folder and the folder has since been deleted from the hard drive by the user. The files within the original folder remain intact on the hard drive but they no longer have an address and they are inaccessible to the user. The file creation date on an orphaned file is not a reliable indicator of when the file was created or deleted.
d. Thumbcache Images are images which are created by the Windows Operating System in order to facilitate access to images by the user. The presence of a thumbnail cache image on the hard drive demonstrates that the image was at some point viewed by the user within a user controlled folder.
Proof of Possession of Child Pornography
65The Crown alleges that Mr. Patterson was in possession of only two files which contained child pornography. The first image is of a naked boy lying face down on a white bedspread. The second file is a RAR file which contains 139 images which are compressed into a single file. Of those 139 images, 7 are alleged to be child pornography.
66In order to prove that Mr. Patterson was in possession of the images of child pornography, the Crown must prove that he had physical control over the computer, knowledge of the nature of the images and some measure of control over them.
67There is no doubt that Mr. Patterson had physical control over the laptop. He was observed to be using it at the Tim Horton’s restaurant on the day of his arrest and admitted to police that he had purchased it from a repair shop on Jarvis Street. The evidence does not disclose the precise date when he purchased the computer but Mr. Patterson told police that he arrived in Toronto on March 2nd, 2016 and the first communications between Mr. Patterson using the Jim Jay account and Matthew D. occurred on March 16th, 2016. When he was asked who the computer should be returned to at the completion of the police investigation, Mr. Patterson sarcastically answered “It would be mine if it was with me? Don’t you think?”
The Boy on the White Bedspread
68This image appears in the three different places on Mr. Patterson’s computer. It is present in the thumbnail cache, as an orphaned file and as a saved image in the Pictures Folder. The image was sent to Mr. Patterson by a Facebook friend on April 15th and he almost immediately saved it into his pictures folder.
69The evidence that Mr. Patterson knowingly possessed the image is incontestable. The dominant characteristic of the image is the boy’s anal region and scrotum and Mr. Bernhardt ultimately conceded that the only issue that could give rise to a reasonable doubt is whether the Crown has proven beyond a reasonable doubt that the boy in the image is under the age of 18. I am satisfied that he is for the following reasons:
a. There is no sign of body hair on any part of the boy’s body;
b. The boy has a very slight frame with narrow hips;
c. His testicles show no sign of sexual development; and
d. His skin is buoyant and unmarked by any signs of aging.
70Mr. Patterson himself was seemingly satisfied that the boy was well under the age of 18. The Facebook user who sent him the picture represented that he was the boy in the picture and stated that he was 12 years old. The conversation that followed between them was premised on that basis.
71Mr. Patterson acknowledged in his statement to police that they might find things on his laptop that “shouldn’t be there”. The fact that the file also appears as an orphaned file indicates that the user at one point attempted to remove the image from the computer.
72Based on all of the above, I am satisfied beyond any reasonable doubt that Mr. Patterson knew that the image was on his computer, was aware of the nature of the image and had control of the computer.
The RAR File
73One of the files recovered from Mr. Patterson’s hard drive was a RAR file. A single RAR file can contain a number of images which have been compressed from their original file size into a single smaller file. In order to view the images contained within a RAR file, it is necessary to decompress the file using software which is readily available on the Internet. No such software was installed on Mr. Patterson’s computer.
74The RAR file which was found on Mr. Patterson’s laptop was downloaded from the Sons of Zeus website on April 17th, 2016. “Sons of Zeus” was a website which was linked to the Tru Boys website. D.C. MacInnis testified that in order to reach the link to download the RAR file, it was necessary to scroll through a series of twelve preview photos which presented a representative sampling of the contents of the RAR file. One of the twelve preview photos met the definition of child pornography. Once downloaded, the RAR file could be decompressed into 139 distinct images. D.C. MacInnis testified that 7 of the 139 decompressed images met the definition of child pornography.
75The seven images appear in Exhibit 7 at page 44. They depict a prepubescent boy between the ages of 10-14 posing as he removes a pair of white underwear. The boy’s penis is very nearly exposed in all of the images and its outline is visible through the white underwear. The boy’s gaze is directed towards his almost exposed penis in two of the photographs. In the remaining images, he is looking towards the camera in a seductive manner.
76Mr. Bernhardt submitted that there is a reasonable doubt as to whether the dominant characteristic of the images is the sexual organ of the boy or that the images are for a sexual purpose. With respect, I do not have any doubt on either point.
77The sexual organ does not need to be exposed in order for an image to constitute child pornography. The Crown relies on the decision of Justice Mocha in Meikle [2011] O.J. No. 4151 on this point. I agree with Her Honour’s reasoning and I adopt it. The focus of these images is clearly the boy’s genital region with the evident suggestion that as the series continues, his penis will eventually be exposed. That suggestion is underscored by the boy’s seductive glance towards the camera. There is no evidence of any artistic or educative component to the images and, arrayed as they are in the Sons of Zeus website, there is no realistic basis to find that the dominant characteristic of the images is anything other than a sexual one. I find that all seven of the images contained in the RAR file meet the definition of child pornography.
78The only other issue raised by Mr. Bernhardt is whether the court can be satisfied that Mr. Patterson took possession of the files when he downloaded the RAR file. Mr. Bernhardt submits that Mr. Patterson did not possess any software which was capable of decompressing the files and without such software, there is no evidence that he ever saw the files or had knowledge of their contents.
79In Daniels, 2004 NLCA 73, the Newfoundland and Labrador Court of Appeal found that possession of illegal data files begins at the moment the accused begins to download the files to his hard drive, even if the download was interrupted and the images were never viewed. The Supreme Court of Canada expressly approved that finding in Morelli 2010 SCC 8.
80The images that appear in the RAR file include 7 images of child pornography. In order to download the file, Mr. Patterson was required to scroll through a series of preview images which clearly alerted him to the material that he was downloading. When he hit the link to download the file, he assumed control of the images. The images that he downloaded are entirely in keeping with his abiding interest in images of prepubescent boys displayed in nearly naked poses.
81I find that Mr. Patterson is also guilty of possessing these images.
Proof of Accessing Child Pornography
82The Crown alleges that Mr. Patterson accessed child pornography by knowingly seeking out and viewing images on the Internet. The Crown relies on the entirety of the evidence to prove that allegation but particularly the forensic evidence which reveals the digital artefacts created by Mr. Patterson’s Internet activity.
83The defence does not dispute that the inferences relied upon by the Crown can be drawn but argues that the inferences are not sufficiently strong to prove the charge beyond a reasonable doubt. Mr. Bernhardt stressed the following:
a. The fact that an image appears in the cache memory of an Internet browser does not prove that the user ever saw the image. When the user navigates to a webpage, all of the images which appear on that page will be saved to the cache memory of the computer regardless of whether they appeared on the screen of the user.
b. A Facebook user does not necessarily have control over the images which he receives. When a Facebook friend sends an image or video to a user, that file will open automatically as soon as the two parties enter into a chat. A defence expert testified that if a Facebook user is engaged in a chat using Facebook on Internet Explorer and the other party sends an image or video, that file will immediately be saved into the Temporary Internet Files of the receiver. This can occur even though the image or video may not have appeared on the screen of the user.
c. Short videos of the kind found on Mr. Patterson’s hard drive may loop on pornographic websites and be deposited into the cache memory of a user’s computer without ever having appeared on the user’s screen.
84Mr. Bernhardt’s points were well developed in the evidence and there is no doubt that they are fundamentally correct. In this case, however, there is a wealth of forensic evidence which, when combined with the evidence of Mr. Patterson’s predilection for certain types of images, dispels the alternative inferences suggested by the defence. When viewed collectively, the forensic evidence demonstrates patterns to Mr. Patterson’s behaviour which defeats any suggestion that his access to child pornography was accidental or the result of the unwanted actions of others.
85The following are my findings with respect to each of the images which were allegedly accessed by Mr. Patterson.
The Boy with the Red Blanket (Exhibit 7, Page 45)
86This image depicts a boy of approximately 14 years of age who is naked apart from a red blanket which is wrapped around his waist. The boy is holding his erect penis which is not covered by the blanket. The dominant characteristic of the image is the penis of the boy and it is depicted with an obviously sexual purpose. I am satisfied beyond any reasonable doubt that the image constitutes child pornography.
87The image appears twice in the Google Chrome Cache of the computer and in one orphan file. The file names for the cache images were automatically generated by Chrome and they incorporate a portion of the name of the website where they were accessed. The image was accessed from the teenboysmilk website on March 24th, 2016 at 3:51 p.m. and 4:00 p.m. from a webpage entitled “Wow-So-Cute”. The teenboysmilk website was bookmarked as a favourite in Mr. Patterson’s Internet Explorer browser.
88A visually identical version of the “Wow-So-Cute” image also appears as an orphaned file on the computer. This is consistent with the file having been accessed and saved within a folder which was subsequently deleted by the user. The fact that the image appears in both the Chrome cache and as an orphaned file supports the inference that the image was accessed by the user.
89Mr. Patterson’s search terms in Bing indicate that he searched the Internet for websites which would offer exactly what was provided by teenboysmilk. His Chrome browser accessed a page where this image could be found twice within the space of ten minutes and a version of the image was saved in a user generated folder which was subsequently deleted by Mr. Patterson. This, in combination with all of the other evidence in the case, satisfies me beyond a reasonable doubt that Mr. Patterson knowingly accessed this image in order that he could view it.
Teen Portrayed with Ejaculate on Tongue (Exhibit 7, Page 45)
90This image portrays a prepubescent boy with his mouth wide open displaying what is depicted to be ejaculate on his tongue and chin. I am satisfied beyond a reasonable doubt that the subject of the image is well under the age of 18 and the photograph depicts him as being involved in explicit sexual activity.
91This image appears in the Google Chrome Cache. It was last accessed on March 24th, 2016 at 3:57 p.m. (three minutes prior to the last access to the image of the Boy with the Red Blanket.) The cache file name demonstrates that the image was observed on the twinkbfvideos website which is another pornographic website which closely corresponds to Mr. Patterson’s web browsing interests. This image was also saved as an orphaned file on the hard drive.
92Based on the fact that the image was accessed at roughly the same time as The Boy in the Red Blanket, that it also appears on the hard drive as an orphaned file and that the image is in complete alignment with Mr. Patterson’s demonstrated sexual interests, I am satisfied beyond any reasonable doubt that Mr. Patterson knowingly accessed this image in order that he could view it.
Boy on Yellow Bedspread Holding Erect Penis (Exhibit 7, Page 43)
93This is an image of a boy holding his erect penis through a pair of white underwear. The boy’s face is not visible in the image but there are no signs of physical maturation and I find as a fact that the subject is under the age of 18. The boy’s sexual organ is the dominant characteristic of the image and the purpose of the picture can only be a sexual one. Accordingly, I find that the image constitutes child pornography.
94This image appears in the thumbnail cache of the computer but does not appear in either the Google Chrome or temporary internet files. This suggests that the image was deliberately copied into a folder from a source other than the Internet such as a USB key or portable hard drive and then subsequently deleted by the user. This theory is supported by the fact that the same image appears in two orphaned files on the computer. None of these files provide a reliable file creation date.
95The fact that this image appears in the thumbnail cache demonstrates that an original, larger version of the image was at some point viewed by the user when it resided in a user controlled folder. The original image has since been deleted and it could not be found in the recycle bin. The thumbnail replica which was found in the thumbnail cache was created by the Windows system without any notification to the user.
96Mr. Patterson’s practice was to download images from the Internet and this is the only instance that arises in the evidence where an image was acquired from any other source. The fact that the image appears in an orphaned file suggests that it was accessed and saved within a folder which was deleted by the user. It is not possible to determine the date when these events occurred.
97Despite the limits to the forensic evidence, I am satisfied beyond a reasonable doubt that Mr. Patterson accessed this image. The image is entirely in keeping with the subjects that Mr. Patterson searched on the Internet and his particular interest in images of prepubescent boys wearing underwear which barely covers the sexual organ. Based on the entirety of the evidence, I am satisfied beyond a reasonable doubt that Mr. Patterson accessed this image.
Boy Reclined on Couch Wearing a Diaper (Exhibit 7, Page 43)
98The watermark on this image identifies it as a download from TruBoyModels.com which was a website that Mr. Patterson visited frequently. It appears in the Temporary Internet files which indicates that Mr. Patterson accessed the image using Internet Explorer. It is one of several images of “Robbie” that appear on Mr. Patterson’s hard drive. Given Mr. Patterson’s frequent visits to the website and his apparent interest in this particular model, I am satisfied beyond any doubt that he accessed this image.
99It is clear from this image that Robbie is no more than 12 years old. Although his sexual organ is covered by a diaper, it is unmistakably that his penis is the dominant characteristic of the image. D.C. MacInnis testified that images of children wearing diapers cater to a fetish amongst some pedophiles. I cannot find on the evidence that Mr. Patterson necessarily shares that fetish but it is noteworthy that two other images of diapered children were found on his computer. A different but similar picture of Robbie wearing a diaper appeared in the materials seized from Facebook and Mr. Patterson commented on the image within two minutes of it being posted.
100This image is consistent with Mr. Patterson’s clear predilection for images of prepubescent boys wearing something akin to underwear. I am satisfied that this depiction of the sexual organ and anal region of a child is for a sexual purpose and that it falls within the definition of child pornography.
Boy Standing in Diaper Looking Down (Exhibit 7, Page 43)
101I am not satisfied that the dominant characteristic of this image is the sexual organ of the child. The image is blurry and it is taken at a distance so that it is not possible to make out even the outline of the child’s sexual organ. I would characterize the dominant characteristic of the image to be the naked chest of the child rather than his sexual organ and as such, I cannot be satisfied that it constitutes child pornography.
Boy in White Shorts in Gymnastic Pose (Exhibit 7, Page 43)
102I am not satisfied that this image constitutes child pornography. The child is portrayed wearing shorts which cover the anal and genital region. I cannot say that either region is clearly the dominant characteristic of the image and therefore have a doubt as to whether the image constitutes child pornography.
Boy Removing Calvin Klein Underwear (Exhibit 7, Page 43)
103The dominant characteristic of this image is the sexual organ of a boy who is under the age of 18. A reasonable viewer, looking at the image in context of the other images found on Mr. Patterson’s laptop, would see its dominant characteristic to be a depiction of the child’s sexual organ for a sexual purpose. The image is remarkably similar to the seven images of child pornography which Mr. Patterson downloaded as a RAR file from the Sons of Zeus website.
104I am satisfied beyond a reasonable doubt that the image meets the definition of child pornography.
105This image was recovered from the Temporary Internet Files and also appeared in an orphaned file. It is one of several images which Mr. Patterson evidently downloaded from the Internet into one or more folders and then subsequently decided to delete. His act of downloaded and then deleting the images demonstrate that he intentionally had access to them.
Photograph of the Anus of Infant Child (Exhibit 7, Page 45)
106This image appears only once in an orphaned file on the computer. It is the only pornographic image of an infant that was found on the computer and it is unlike the other images that Mr. Patterson sought out and saved. The file could only have become orphaned by a user initiated deletion of a file folder and one could infer from that fact that Mr. Patterson accessed the image. There remains, however, a possibility that the file was left on the computer by a previous owner. In light of the limited forensic evidence concerning this file and the fact that it does appear to be outside of Mr. Patterson’s ordinary patterns, I have a reasonable doubt as to whether Mr. Patterson accessed this file.
Photograph of Genital Area of Child Wearing Blue Shorts (Exhibit 7, Page 43)
107This image was also found in only one orphaned file. It is thematically in keeping with Mr. Patterson’s interest in images of prepubescent males wearing underwear and posed in sexually provocative ways but the gender of the child is uncertain and there is nothing in the file structure that assists in determining where the image came from. There is not enough evidence to safely conclude that Mr. Patterson accessed this image.
Naked Boy on Bed with Erect Penis (Exhibit 7, Page 45)
108This image was also found only in an orphaned file. I suspect that Mr. Patterson deliberately took possession of the image and subsequently deleted it because of its obviously illegal nature. A visually identical image appears in the materials seized from Facebook through the MLAT order but the Crown is not relying on those images as evidence of accessing child pornography. The image does not appear in any cache memory. There is no watermark which links the photo to any website which Mr. Patterson frequented.
109On the evidence that I have been asked to consider, I could not discount the possibility that the image was left on the computer by a prior user and for that reason, I am not satisfied beyond a reasonable doubt that Mr. Patterson accessed the image.
Video Files
110D.C. Kidd found 14 digitally unique videos which are alleged to be child pornography. Some of the videos are visually identical which reduces the total to 11 videos. The defence has conceded that all but one of the videos meets the definition of child pornography. The video in issue (Video 11) unmistakably is of explicit sexual activity but the faces of the participants are never visible and I agree with Mr. Bernhardt that it is not possible to be satisfied that they are under the age of 18. Thus, 10 short videos depicting child pornography were found on Mr. Patterson’s laptop.
111All ten of the videos were saved into the temporary internet files through an automatic function of Internet Explorer. As was the case with images, when a user navigates to a webpage, IE will automatically save a small version of video which appears on a webpage into the temporary internet files in order that it can be quickly retrieved by the user. As was the case with images, the fact that the video appears in the temporary internet files does not determinatively prove that the user saw the video.
112All of the ten videos are very short. Videos of this kind are often “looped” on pornographic websites and it is possible that they could be captured by the browser cache memory without ever having been noted or observed by the user.
113It is also possible for such videos to be sent over Facebook and captured in the cache memory of the browser without any opportunity for the user to prevent the transmission.
114The ten videos fall into three broad categories:
a. 1, 2, 5 and 8 all depict two prepubescent boys engaged in explicit sexual activity;
b. Video 12 shows a prepubescent boy exposing his penis; and
c. Videos 4, 6, 7, 9 and 10 all show teenaged boys masturbating.
115There is a host of evidence which convinces me beyond a reasonable doubt that Mr. Patterson knowingly accessed these videos:
a. The content of the videos matches the terms that Mr. Patterson searched on the Internet: teen boy cum, young boy erection, teen boys having sex, small boy ass.
b. Video 9 has a watermark on the video reading “TeenBoysMilk”. Mr. Patterson had marked that website as a favourite in Internet Explorer. The file name for the video in the temporary internet files included the title of the webpage where it had been accessed: “hot blond boy wank on cam” from the TeenBoysMilk website.
c. The IEF report demonstrated that Mr. Patterson navigated to the website xvideos.com on April 1st, 2016 and followed tags to find videos related to the topic “boy-virgin”. Video 8 depicts two naked boys simulating intercourse; it was saved to the cache files on April 1st. Video 13 is a digitally distinct but visually identical version of Video 8; it was saved to the cache on April 2nd. I draw the inference that Mr. Patterson first went to the site on April 1st and then went back on the following day to see the video again.
d. Four of the five videos depicting teen boys masturbating (Videos 4, 6, 7 and 10) were all saved into the cache files on April 4th between 1: 18 p.m. to 1:20 p.m. The remaining such video (Video 9) was saved to cache on April 2nd. The clustering of similarly themed videos around particular dates and times lessens the likelihood that these were unseen artefacts and increases the likelihood that Mr. Patterson sought out and viewed these videos during his searches of the Internet.
e. Videos 1, 3 and 14 are visually identical versions of a video showing a representation of one prepubescent boy anally penetrating another. Video 14 is the only one of the videos which was found outside of the temporary internet files. It was an orphaned file. The fact that this video appears in the temporary files as well as in an orphaned file increases the likelihood that Mr. Patterson accessed this file although its presence in an orphaned file does not lead to the inference that he actively downloaded it.
116The evidence of access to any one video may be equivocal but when the evidence is considered in its entirety, there is no reasonable doubt that he accessed these videos in the same fashion that he accessed the images described earlier.
The Offence of Internet Luring Under Section 172.1(2) of the Criminal Code
117The offence of luring under s 172.1(2) of the Code is an inchoate offence. The section criminalizes the preparatory steps which could lead to the victimization of children rather than the victimization itself. It is not necessary that the offender meet or even intend to meet with the victim with the intention of committing any of the secondary offences listed in s. 172.1(1)(c). The offence does not require that the accused engage in sexually explicit language with the victim to demonstrate his intent. It is enough if the accused communicated with an underage person by means of a computer system to facilitate one of the enumerated offences. For these purposes, the word “facilitate” includes making it easier or more probable to commit the secondary offence.
118The offence is made out if the Crown is able to prove that at any time that the accused engaged in the electronic communications, he did so with the specific intent of facilitating the commission of one of the enumerated secondary offences. That determination must be based on the whole of the evidence, not just the communications themselves.5
119There is no dispute in this case that Mr. Patterson did communicate with Matthew D. using a computer and knowing that Matthew was 15 years old. The defence acknowledges that there is some evidence in the messages themselves as well as the Facebook profiles of Jim Jay and Josh Jay which could be interpreted as efforts to groom Matthew. Mr. Bernhardt argues, however, that on the whole of the evidence it is reasonably possible that Mr. Patterson’s sole intention was to engage in harmless fantasy and there is a doubt as to whether he had the intention of facilitating any secondary offence. If such an inference is rationally available, Mr. Patterson must be acquitted of the luring charge.
The Communications between Jim Jay and Matthew D.
120The Jim Jay Facebook account was registered on June 28th, 2012 using Mr. Patterson’s cell phone number. The profile picture on the Jim Jay account portrayed a young male posing topless in an obviously sexual manner. The background photograph on the profile showed a truck. The biographical information which appeared on the Facebook profile page indicated that Jim Jay was 18 years of age.
121Matthew D. was a naive and vulnerable 15 year old boy who was seeking to find companionship on the Internet. He had become friends with an older gay male named Richard Adams who he had met in person and evidently trusted. Richard Adams was a Facebook friend of Jim Jay’s and it is possible that Jim Jay (a.k.a. Mr. Patterson) came to know of Matthew’s existence through Richard Adams. Jim Jay and Matthew became Facebook friends.
122The messaging between Jim Jay and Matthew began on March 16th, 2016. After exchanging greetings, Matthew asked Jim how old he was. There was no response from Jim Jay on that day. On March 17th, Matthew sent another greeting to Jim Jay and when Jim responded, Matthew again asked him how old he was. Jim responded “18 and you”. Matthew said that he was 15. The following dialogue then occurred (italics added for emphasis):
Jim: Are you gay?
Matthew: Ya.
Jim: I bet you got a boyfriend.
Matthew: I don’t.
Jim: You looking for one
Matthew: Ya.
Jim: Cool so am I.
123At this point, Jim Jay sent a picture to Matthew. The picture was evidently sent in error because it prompted Matthew to ask “what did you just send?” followed by the comment “u sent a pic of me”. Jim Jay answered “oh that was on my messages” and Matthew accepted that explanation. It is difficult to draw any firm conclusion from this apparent error on Mr. Patterson’s part but it certainly suggests that he had at least viewed if not saved an image of Matthew prior to conversing with him. Images from Matthew’s Facebook page were found on Mr. Patterson’s hard drive.
124The conversation between Jim Jay and Matthew continued:
Jim: What kind of boyfriend you looking for
Matthew: Nice loving verry cute young (sic)
Jim: Oh ok so I’m older than you.
Matthew: Where do u live
Jim: Toronto and you
Matthew: Toronto
Jim: Cool would you date me
Matthew: Send me new pic of u.
Jim: I got to get new ones I just uploaded a few pictures yesterday.
Matthew: Can u send me new pic of u now
Jim: Ok if I can send it on here
Matthew: U can.
125Jim Jay then twice attempted to send an image. The transfer was unsuccessful on both attempts and the evidence does not disclose the images that Mr. Patterson was attempting to send or whether it was a genuine attempt to send images.
126Matthew then asked Jim where he lived in Toronto. Jim asked why he wanted to know and the following ensued:
Matthew: Just want to know.
Jim: On Jarvis and you.
Matthew: I know there I went there a lot of time before.
Jim: oh yea.
Jim: Can I see a nice pic of you
127Matthew sent Jim Jay a picture of himself with his father.
128Later on March 17th, Matthew sent a “wyd” message to Jim Jay (‘what are you doing?’). It appears that Matthew would often send this message when he wished to chat with a friend. Jim responded that he was talking with a few guys and Matthew inquired if one of them was his friend Richard. The following conversation ensued:
Jim: Who’s that
Matthew: B. Adams
Jim: your mentioning names I don’t know.
Matthew: I’m beside him u are texting him now.
Jim: Oh.
Matthew: U just texted him saying that would be cheting on your boyfriend.
Jim: You with him
Matthew: yes. I’m his friend. I’m at his house now.
Jim: do you do anything with him
Matthew: No do u have a bf
Jim: yea he lives with me.
Matthew: Why did u say u would be my bf
Jim: when did I say that
Matthew: U said u were looking for one and do I want to be your bf
Jim: Oh.
Matthew: Do u want to meet one day
Jim: Maybe
129Bearing in mind that the definition of “facilitate” for the purposes of s. 172.1(1)(c) includes making more probable the commission of a secondary offence, this conversation comes very close to proving an essential element of the offence. Mr. Patterson determined that Matthew was a 15 year old gay male living in the Toronto area and that he was looking for a boyfriend. Mr. Patterson had inquired if Matthew was open to dating Jim Jay and, having determined that he was, asked Matthew if he “did anything” with Richard Adams. Mr. Patterson knew when he asked this question that Richard Adams was an older male and that Matthew had met with him in person. When Matthew asked Jim Jay if he would like to meet some day, Mr. Patterson answered “maybe”. These messages could be construed as the preliminary steps towards arranging a meeting which could include a sexual encounter.
130Jim Jay and Matthew continued to message one another on March 17th and 18th. On March 18th, Matthew asked Jim “how’s your boyfriend”. Jim Jay did not respond to that inquiry. Several minutes passed and Matthew messaged “hey” with the evident intent of continuing the conversation. There was no further communication between Jim Jay and Matthew until April 16th, 2016 when Matthew sent a message “hey”. In the interim, Mr. Patterson introduced a new character into the conversation – Josh Jay.
The Communications between Josh Jay and Matthew D.
131Mr. Patterson created the Josh Jay Facebook account on April 6th, 2016. The profile of Josh Jay had some clear similarities to the Jim Jay profile. The profile pictures for both accounts showed a topless teenage boy posing in a sexual manner. The background photos for both accounts showed vehicles. Mr. Patterson provided an “intro” to the Josh Jay account which read “hi im josh and I like to meet new guys as well im gay and proud of it”.6 Jim Jay was a friend of Josh Jay on Facebook. In his conversations with Matthew, Mr. Patterson represented that the two boys were brothers, gay, and lived in Toronto.
132On April 6th, 2016, Matthew sent a friend request to Josh Jay which was accepted. The two began to converse on April 9th:
Josh: Hi
Matthew: How are u
Josh: im good your cute
Matthew: Aww thanks
(Matthew sends a smiling picture of himself wearing a cartoon t-shirt.)
Josh: your welcome so your my age 15
Matthew: That pic is me and yea im 15.
133A pause of roughly two minutes passed between a message sent by Matthew and the following response by Josh: “ok im back I just had to wake jim up.” The following exchange then occurred:
Josh: you guys live around bloor street
Matthew: No we are don mills and sheppard
Josh: oh yea I don’t know Toronto
Josh: that good yet I only been here a few days
Matthew: Ok do u want to meet one day
Josh: just you and me
Matthew: Ok
Josh: so I guess your single like me
Matthew: Yes
Josh: so what kind of boyfriend you looking for
Matthew: A loving kind one when do u want to meet
Josh: when ever it’s a good time
134This is another appropriate juncture to consider the defence position that Mr. Patterson was only engaging in a virtual fantasy relationship and he had no intention of facilitating any secondary offence. Through the Jim Jay persona, Mr. Patterson had learned that Matthew was looking for a boyfriend who was ‘nice, loving, very cute and young’. Mr. Patterson obligingly created the Josh Jay character that had all of these characteristics. When Matthew suggested a meeting, Mr. Patterson responded through the Josh Jay persona “just you and me”. Mr. Patterson rarely used punctuation and one has to read the context of his messages to discern their meaning. This message appears to be more of a statement than a question. It was an indication by Richard Patterson through the Josh Jay persona that he wanted to meet with Matthew alone.
135Matthew then suggested that they meet at the Fairview Mall located at Don Mills and Sheppard and he asked Mr. Patterson for his cell phone number. Mr. Patterson did not respond to that request.
136On April 11th, Matthew again asked Josh when he would like to meet. Josh replied that his brother (Jim) was going to drive to Fairview on Saturday but Jim would want to be alone with Josh. Josh asked when Matthew when he was available to meet and Matthew suggested Sunday at Fairview Mall. Josh agreed to the meeting and Matthew again asked for his cell phone number. Jim finally answered Matthew’s repeated requests for his cell phone number by saying “I don’t give my number out that easy”. The following conversation ensued:
Matthew: Can I have it please tust me im very nice I need ypur number so I know when u are there
Josh: I thought you said 1230 to meet there
Matthew: I did say 12:30 pm but please so we can talk and I can tell u where to meet me in Fairview mall.
Josh: I don’t give my number out right away I don’t know if I can trust you that easy.
Matthew: U can tust me we are going to meet Sunday at 12:30
Matthew: My number is (cell phone number provided) text me.
Josh: you seem to be preety pushy about getting my number like your getting somebodys help.
137Josh asks if there is a Tim Horton’s at the mall and Matthew tells him that there is. They agreed to meet there at 12:30 p.m. on Sunday and Matthew again requested a picture so that he would know Josh when he saw him. Matthew sent two pictures of himself but never received a picture back.
138Matthew messaged Josh the next day and asked if they could meet on Saturday instead of Sunday. Josh replied that he was busy on Saturday and when Matthew inquired about an alternative day, Josh abruptly announced “I got a boyfriend now.” Approximately two hours later, Matthew asked “can we be friends?” Mr. Patterson responded:
Josh: depends on how you consider friends
Matthew: No sex or bfs
Josh: why is that the first thing you think of
Matthew: Because I thought you might think that. But I now you have a
bf. So we can just go for hot chocolate.
Josh: you know the way you gon on about things im not sure im ready to
meet you.
Matthew: I am harmless. I wont push you. Sorry
Josh: we will meet some other time ok
Matthew: Ok sorry I threw you off. My bad.
Josh: your new at being gay aint you
Matthew: Yes. I am a virgin and have not come out yet.
Josh: take your time don’t be in a rush you might do that with the wrong
person and he might end up hurting you.
Matthew: I know thanks can we meet one day
Josh: lets not be in a rush ok
139In Legare, the Supreme Court of Canada observed that section 172.1 of the Code is designed to prevent predatory adults from using the anonymity of the Internet to groom and victimize vulnerable adolescents. The legislation achieves this purpose by criminalizing the preliminary steps towards committing sexual offences which includes the grooming of prospective victims. The court noted that predators frequently groom their victims by engaging them in seemingly innocuous conversation which leads the victim to divulge information which could ultimately be used to facilitate the commission of a sexual offence. That commentary seems to aptly describe the actions of Mr. Patterson.
140Mr. Patterson learned through electronic messaging that Matthew was a naive and trusting teenager who had not disclosed to anyone that he was gay. He also knew that Matthew was willing to meet with Josh Jay alone and that he would do so without even having a cell phone number for Josh. He knew that Matthew had a friendship with an older gay man (Richard Adams) and that the two met in real life. All of this would be extremely valuable information for a sexual predator. If the case were to be decided on this evidence alone, one could readily conclude that Mr. Patterson had made more probable the commission of any of the prohibited secondary offences.
141But the Supreme Court in Legare emphasized that trial judges must consider the evidence as a whole in deciding whether the offence is made out. Section 172.1 is an inchoate offence and as such, it demands the highest degree of subjective fault to justify the imposition of criminal sanction. It is not an offence to communicate by computer with an underage person, even if the communication is anonymous and concerns sexual matters, unless it is proven beyond any reasonable doubt that the communication was undertaken with the specific intent to facilitate one of the enumerated secondary offences. The whole of the evidence in this case includes the fact that Mr. Patterson repeatedly rebuffed Matthew’s requests to meet, refused to provide a telephone number, never engaged in any explicit discussion of sexual acts with Matthew and never requested nor sent any sexual images to him.
142I am quite alive to the fact that it is not necessary for the accused to meet or even intend to meet the victim in order to make out the offence under s. 172.1. I have concluded, however, that the absence of an intention to meet is a fact which I am obliged to consider in deciding whether or not the accused specifically intended to facilitate the commission of a secondary offence.
143It is similarly not necessary that the accused engage in explicit sexual language with the victim in order to make out the offence. When the messages sent by the accused do express a desire to engage in sexual activity with the victim, (as was the case in Legare), they can provide compelling and direct evidence of the intention to commit a secondary offence. The absence of such language does not preclude a conviction but it does require that the proof of specific intent arise from some other evidence. In this case, there is nothing outside of the communications themselves which can furnish that essential element.
144The defence urges me to find that Mr. Patterson’s conversations with Matthew were simply fantasy and that he had no intention whatsoever to commit any offence. I find that there is some support for that theory in Mr. Patterson’s Facebook records.
145Mr. Patterson was involved in a chat with Facebook user 0264 on April 15th, 2016. The conversation was sexually explicit and Mr. Patterson asked 0264 to “show me a pic of your ass”. 0264 sent a picture of Robbie from the TruBoys website lying face down on a white bedspread. Mr. Patterson responded with “nice you got a nice cock to”.7
146Det. MacInnis testified that Mr. Patterson had accessed the TruBoys website many times throughout March and April of 2015. He was familiar with the model “Robbie” by April 15th and it is impossible to believe that he genuinely thought that he was conversing with “Robbie” when he was messaging with 0264. It was a fantasy conversation taking place between two adults, both of whom must have known that the other participant was in all probability an adult.
147A similar fantasy conversation occurred on March 30th, 2016. Mr. Patterson was a participant in a group chat and one of the participants posted an image of the same Robbie wearing a diaper and posing on a couch. Mr. Patterson inquired “is that you”. Once again, Mr. Patterson was seemingly prepared to pretend that the other participant in the chat was a young boy when he must have recognized that the image had been downloaded from TruBoys.
148I find that there is evidence to support Mr. Bernhardt’s submission that Mr. Patterson used Facebook to engage in fantasy chats which he never expected or intended to result in a real life experiences. Mr. Patterson rebuffed Matthew’s many invitations to meet. He never indicated that he intended to touch Matthew in a sexual manner. He arguably discouraged Matthew from considering him as a potential boyfriend.
149Despite the very able submissions of Ms. Stanton, I find that I am left with a very small but reasonable doubt as to whether Mr. Patterson had the specific intent to facilitate the commission of a secondary offence at the time that he communicated electronically with Matthew. Oddly enough, I am satisfied that his actions would have facilitated the commission of a secondary offence. I am just not fully satisfied that he intended that result. As such, I am obliged to dismiss the charge.
Appendix A - Identifying Mr. Patterson as the User of the Josh Jay and Jim Jay Accounts
150There was no admission at the outset of the trial that Mr. Patterson had been the user of the Jim Jay or Josh Jay accounts. Mr. Bernhardt eventually did concede that Mr. Patterson was the creator and sole user of the Josh Jay account and ultimately had no submissions as to why the Court should not make the same finding with respect to the Jim Jay account. The following is a sampling of the evidence which bears on the issue:
a. D.C. McInnis was able to navigate to the Facebook profile pages for both Josh Jay and Jim Jay using Facebook user identification numbers extracted from Mr. Patterson’s laptop.8 The profile and background pictures which had been used to create these two accounts were found on Mr. Patterson’s laptop.
b. When D.C. McInnis first powered up Mr. Patterson’s computer, she navigated to Facebook. The browser automatically opened the Josh Jay Facebook account. D.C. McInnis confirmed that the Facebook Identifier for the account matched the Facebook Identifier for the Josh Jay account.
c. Det. McInnis obtained a production order requiring Facebook to provide the subscriber information for the two accounts. The cell phone number which was used to open the Josh Jay account on April 6th, 2016 was the same number which accessed the SIM card seized from Mr. Patterson’s cell phone at the time of his arrest.
d. The cell phone number which was used to open the Jim Jay Facebook account on June 28th, 2012 was registered to Mr. Patterson.
e. Richard B. Adams was a friend of both Jim Jay and Josh Jay.
f. Jim Jay misspelled the word “pretty” as “preety” in a Facebook message sent to Matthew on April 16th. Josh Jay misspelled the word in the identical fashion on April 13th.
g. Josh Jay and Jim Jay were “friends” of one another on Facebook and they were represented to be brothers. The content of their conversations with Matthew D. in March and April of 2016 demonstrate that the author of the Josh Jay account was familiar with Matthew’s conversation with Jim Jay.
h. Jim Jay told a number of friends on Facebook that he has an Acer tablet and an older HP laptop running Windows 7. These descriptions correspond to the items seized from Mr. Patterson at the time of his arrest.
151I find as a fact that Mr. Patterson was operating both the Josh Jay and Jim Jay Facebook accounts throughout March and April, 2016 using his HP computer. There is no evidence that anyone other than Mr. Patterson used those accounts during that time.
Bawden J.
Released: July 6, 2018
CITATION: R. v. Patterson, 2018 ONSC 4187
COURT FILE NO.: CR-17-10000056-0000
DATE: 20180706
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
RICHARD PATTERSON
Defendant
REASONS FOR JUDGMENT
BAWDEN J.
Released: July 6, 2018
Footnotes
- I find as a fact that Mr. Patterson was the sole user of both the Jim Jay and Josh Jay Facebook accounts during the relevant period of March and April, 2016. My reasons for that conclusion can be found in Appendix A to this judgment.
- To her credit, Crown counsel Jennifer Stanton had anticipated the application and filed a comprehensive Respondent’s Factum two weeks prior to the commencement of the trial despite not having received a Notice of Application or Factum from the applicant.
- D.C. MacInnis testified that when she prepared the ITO, she mistakenly believed that she was required to name a secondary offence that Mr. Patterson was attempting to facilitate through his electronic communications. I accept that the inclusion of the attempt sexual interference was a drafting error which had no impact on the validity of the warrant.
- Exhibit 7 pages 58 and 59.
- Legare at paragraphs 32-35, 42.
- Exhibit 7, page 11.
- Exhibit 7, pages 58-59.
- Exhibit 7, Page 11.