WARNING
The court hearing this matter directs that the following notice should be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4 of the Criminal Code:
(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
NEWMARKET COURT FILE NO.: CR-17-2516-00
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
C.D.R.
Defendant
Gemma Sang, for the Crown
Richard Litkowski, for the Defendant
HEARD: July 17, 18, 20 and 21, 2019
REASONS FOR DECISION
Delivered Orally
Summary of Facts
Background of Investigation
1The accused was charged as part of a sting operation known as Project Raphael. Investigators posted an advertisement of a female escort on Backpage.com. The ad provided a contact number for interested parties to contact by text.
2The number was in fact the cell phone number used by an undercover, Detective Constable MC.
3Backpage.com is well known to police as a location where predators seek out young and underage girls who are involved in underage prostitution.
4The objective of Project Raphael was to target those seeking to obtain sexual services from underage prostitutes.
The Posted Backpage.com Advertisement
5DC MC posted an ad on March 27, 2017 at 2:57 pm. The ad included 3 photographs of a female officer posing as an underage prostitute. Her face is not revealed in the pictures and it would be difficult from the images to discern her actual age. The female officer pictured in the ad was in fact in her 30s at the time the photographs were taken. In one of the pictures, she is wearing a t-shirt with the words “K. High” printed on it.
6In addition to the photographs, the ad included the following text:
Back only for a few days – Tight Brand NEW girl in [north of Toronto] - Waiting for you – 18
Hi guys my name is Michelle and I’m a girl who is sexy and YOUNG with a tight body looking for fun. I’m only here for a few days just visiting from out of town.
I also have a YOUNG FRIEND if you interested too.
Highway 7 and Leslie area :)
In calls only. Don’t miss this you’ll be sorry!!
80 hh 140fh
TEXT ONLY
Poster’s age: 18
7When posting an ad on Backpage.com, it is impossible to input an age younger than 18. It is for this reason that the ad posted by DC MC referenced Michelle to be 18 years of age.
8The reference in the ad to “80 hh” and “140 fh” indicated that it would cost $80 for one half hour of sexual services, and $140 for a full hour.
9When a person contacted the ad by text, DC MC would hold himself out to be “Michelle”. He would then engage in text conversations with a prospective purchaser regarding the services offered. In the context of these conversations, Detective MC represented that he was actually 14 years of age. He would then inquire whether the person was still interested in arranging for the sexual services. If so, he would arrange for them to meet at the hotel at north-end Toronto. Once the person seeking sexual services attended the hotel room, the person would be arrested.
10According to DC MC, there were a number of males who did attend the hotel looking to have sex with “Michelle”. These males were arrested. However, most individuals contacting the ad were disgusted when DC MC represented himself to be 14, and had no interest in engaging in sex with an underage girl
The Conversation with the Accused
11On March 27, 2017, at 16:01, the accused contacted DC MC’s posted ad. DC MC who was holding himself out to be Michelle responded. The text conversation went as follows:
16:01 - Accused: Hey hun are you available
16:02 - UC: Yep
16:02 - Accused: Where are you located and what are your rates hun
16:14 - UC: Leslie and 7. 80 hh for protected sex and bj.
16:15 - Accused: Bbbj?
16:16 - UC: Yep.
16:16 - Accused: You have a Friend you mentioned in your ad
16:17 - UC: Yep Jamie she is on BP too. Blonde
16:17 - UC: 150hh
16:21 - Accused: For both?
16:22 - UC: Yep
16:22 - Accused: Can’t find her ad
16:24 - UC: 6474956233
16:26 - Accused: OK yes I want to see you girls.
16:26 - Accused: When is best time to come
12DC MC testified that Bbbj meant “bare back blow job” which means oral sex without a condom. He also testified that his texts indicated it would be $150 for a half hour for both girls for oral sex without a condom and protected sex.
13After the accused confirmed he wanted to see the girls, the conversation continued as follows:
16:28 - UC: Just so you know we under 18. Some guys freak out and I don’t want problems. We are small and it’s obvious.
16:29 - Accused: I’m cool with it. I’ll be gentle as long as you’re sexy and willing.
16:30 - Accused: I’ll start making my way to you now. Where are you staying?
16:31 - UC: We are both willing. We’re 14 but will both be turning 15 this year. That cool? We are buddies and very flexable??
16:32 - Accused: Should be lots of fun
16:32 - Accused: Are those real photos from the ads. Those girls look a bit older.
16:36 - UC: they are both us.
16:37- Accused: Ok. I’m going to leave now.
16:37 - Accused: Where are you located.
16:39 - UC: Go to [north-end Toronto] and msg me. I tell you where to go then.
16:39 - Accused: ok. It’s a hotel?
16:40 - UC: Yeah hotel. Ok just so we know you want sex with both of us and a blow job? I don’t need any surprises.
16:41 - Accused: Yes sex with both and bbbj from both
16:42 - UC: ok that’s fine thanks.
14DC MC testified that he had tried to make it clear in his communications that Michelle and Jamie were underage. When cross-examined on why he did not reference Michelle and Jamie’s purported ages earlier on in the conversation (it was only referenced 26 minutes in), DC MC testified that the conversation did not reasonably flow that way.
15He acknowledged that it would be preferable to reveal the purported age as soon as possible to avoid any unnecessary conversation. He also acknowledged that, if he tried, he likely could have referenced the age earlier on in the conversation. However, he maintained that each conversation had its own natural flow. It was not always possible to reveal the age at the outset.
16The conversation with the accused continued as follows:
16:42 - Accused: Can you girls dress up for me
16:44 - UC: Like what
16:44 - Accused: Do you have a body suit
16:44 - UC: No
16:44 - Accused: Leggings?
16:44 - UC: I’m 14 I got regular clothed and my bra and underwear.
16:45 - Accused. Ok. Dress in something cute and sexy
16:45 - Accused: Same with Jamie
16:46 - UC: OK will do
16:46 - Accused: I like thongs if you have
16:47 - UC: I do.
16:47 - Accused: Perfect
16:47 - Accused: Ok so I’ll text when I’m there
16:49 - UC: Kk
17At 17:49, DC MC texted the accused again to determine his whereabouts. The conversation continued:
17:49 - UC: You coming
17:50 - Accused: Yes just in some traffic
17:50 - Accused: I’m on my way
17:51 - UC: How long so I can get ready
17:51 - Accused: 20
17:51 - UC: Ok
18:13 - Accused: Which hotel
18:14 - UC: You at [north-end Toronto] area
18:14 - Accused: Yeah
18:14 - UC: [hotel in north-end Toronto]
18:14 - UC: Msg when in the lot and I’ll give you room number
18:14 - Accused: Ok be there shortly
18:15 - UC: Ok
18:15 - UC: Can’t wait
18:16 - Accused: Both you girls ready looking cute
18:16 - UC: I would say we look hot
18:16 - UC: ☺
18:23 - Accused: Good I’m here
18:23 - UC: Ok come up to 440
18Officers were waiting in Room 440. At 18:27, the accused knocked on the door. The police opened the door and ushered the accused into the hotel room. The accused was arrested by P.C. AN.
19P.C. AN conducted a search incident to arrest and seized a Samsung S5 cell phone as well as a $100 bill and a $50 bill from C.D.R.’s coat pockets. The phone was tested and confirmed to be the same phone used to communicate with the undercover officer.
C.D.R.’s Evidence
20The accused, C.D.R., is 28 years old. He was born in 1991.
21He has known about Backpage.com since high school. He would access the site from time to time for escort services. He used it 5-10 times while he was in university. After university, he used it about 30 times. He has used it 35-40 times over a seven year period.
22Typically, he would access the gallery page and look for blond-haired women. According to the accused, he would look for blond-haired, athletic females that were approximately his age.
23He would also decide on an escort on the basis of their location. His focus was on location, rate and availability.
24He would select a female from the gallery and he would usually go to their location (out call). The accused testified that overall he was usually satisfied with the services he obtained from Backpage.com. He knew that he could back out if things were not what he expected when he arrived at the location.
25In the numerous times he used Backpage.com, he had only backed out of the services on four occasions. He described the four times as follows:
One time the girl’s photo was not accurate. She had modified it. He felt she had misrepresented her appearance. He did not want to follow through with the arrangement in the circumstances.
Once the woman was under the influence of drugs. He had no interest in having sexual relations given her condition.
Once the escort’s hotel room was extremely messy. The wastebasket had open condoms, there were towels on the floor, and there was food out. He did not feel comfortable in the circumstances. He briefly argued with the escort and he left $20 for her before leaving.
Once he went to the location and he heard there was a man in the bathroom. He left right away.
26In the summer of 2016, he was working at a café in downtown Toronto. He was a Captain (Server). In December 2016, he also started working at an Italian restaurant.
27By March 2017, the accused had been overworked. He had developed planter fasciitis and was finding it hard to keep up with the demands of the two jobs. Tom, his manager at the café, said he needed to take some time off.
28After a week off of work, the accused started to feel better and looked forward to returning. However, when he went in to meet with his manager (Tom), Tom said he was arranging for the accused to have a serving assistant. While this would assist the accused with his workload, it would cut into the accused’s pay.
29After meeting with Tom, he phoned his mother. His mother did not seem to appreciate how much Tom’s decision to get him an assistant would hurt his income. They had an argument so he just cut her off. He was stressed out. He took a Tylenol 3 and a Xanex. He also smoked a little marijuana. He was going to see his mother for dinner, so he decided he would straighten things out with her then.
30His parents were living north of Toronto, and the accused was staying at a condo downtown. He started looking for an escort that he could meet with on his way to north of Toronto. He was going to go to his parent’s for dinner at 7:00 p.m.
31The accused testified that he was looking for blondes and came across the ad. He thought the female in the ad was of age by looking at her pictures. She looked older for sure. He knew that sometimes girls would use fake pictures, but he thought the picture was a real one. He didn’t believe her to be underage. The accused testified that when she said she was 14, he thought she was playing around. He thought she was just trying to “role play”. He was just playing along.
32According to the accused, he never had the intent to have sex with someone under 18. If he had arrived and Michelle was actually 14 years old, he would have left. He would have been disgusted. The accused testified that he would have complained to the front desk and even called the police.
33He has never had sexual relations with an underage girl before. Nor has he ever communicated with an underage female through Backpage.com.
34In his experience, he has had women act “young” before. For example, one female had once said “Come play with me daddy”. The accused acknowledged that he never really “role-played” before.
35In cross-examination, the accused agreed that he did not make any additional inquiries about Michelle’s age, ask for a picture of her face or request identification. He testified that he did not make any additional inquiries because he believed Michelle was at least 18 years of age.
Analysis
36The accused is charged with the following offences:
That on or about March 27th, 2017, the accused did, by means of telecommunication, communicate with a person, namely Detective Constable MC, who was or was believed to be under the age of sixteen years, for the purpose of facilitating the commission of an offence under Section 152 of the Criminal Code with respect to that person, contrary to Section 172.1, subsection (2) of the Criminal Code of Canada.
That on March 27th, 2017 the accused did communicate with Detective Constable MC, for the purpose of obtaining for consideration the sexual services of a person under the age of 18 years, contrary to Section 286.1, subsection (2) of the Criminal Code of Canada.
That on March 27th, 2017 the accused did, by means of a telecommunication, make an arrangement with a person, namely, Detective Constable MC, to commit an offence under Section 152 of the Criminal Code with respect to another person who was believed to be under the age of sixteen years, contrary to Section 172.2 subsection (2) of the Criminal Code of Canada.
General Principles
37The objective of the luring provisions is to target sexual predators who communicate with children who are or are believed to be underage for the purpose of engaging in illicit sexual activity. As explained by the Supreme Court in R. v. Morrison, 2019 SCC 15 at paras. 39 and 40:
Parliament created this offence to combat the very real threat posed by adult predators who attempt to groom or lure children by electronic means. As this Court explained in Levigne, the offence seeks to protect children by “identify[ing] and apprehend[ing] predatory adults who, generally for illicit sexual purposes, troll the Internet to attract and entice vulnerable children and adolescents”: para. 24.
To achieve this purpose, s. 172.1 criminalizes conduct that precedes the commission, or even the attempted commission, of certain designated offences, most of which involve sexual exploitation of children. It thereby creates an essentially inchoate offence — that is, a preparatory crime that captures conduct intended to culminate in the commission of a completed offence. [Cites omitted] There is no requirement that the accused meet or even intend to meet with the other person with a view to committing any of the designated offences: see Legare, at para. 25. The offence reflects Parliament’s desire to “close the cyberspace door before the predator gets in to prey”: para. 25.
38Section 172.1 of the Criminal Code provides:
Luring a child
172.1 (1) Every person commits an offence who, by a means of telecommunication, communicates with
(a) a person who is, or who the accused believes is, under the age of 18 years, for the purpose of facilitating the commission of an offence with respect to that person under subsection 153(1), section 155, 163.1, 170, 171 or 279.011 or subsection 279.02(2), 279.03(2), 286.1(2), 286.2(2) or 286.3(2);
(b) a person who is, or who the accused believes is, under the age of 16 years, for the purpose of facilitating the commission of an offence under section 151 or 152, subsection 160(3) or 173(2) or section 271, 272, 273 or with respect to that person; or
(c) a person who is, or who the accused believes is, under the age of 14 years, for the purpose of facilitating the commission of an offence under section 281 with respect to that person.
No defence
(4) It is not a defence to a charge under paragraph (1)(a), (b) or (c) that the accused believed that the person referred to in that paragraph was at least eighteen years of age, sixteen years or fourteen years of age, as the case may be, unless the accused took reasonable steps to ascertain the age of the person. [Emphasis added]
39In the context of a police sting where there is no underage person, the offence of child luring has three essential elements: (1) an intentional communication by means of telecommunication; (2) with a person who the accused believes is under the requisite age; (3) for the purpose of facilitating the commission of a designated offence with respect to that person. The Crown must prove each of these elements beyond a reasonable doubt.
40In order to establish the second element outlined above in the context of a police sting where there is no underage person, the Crown must prove beyond a reasonable doubt that the accused (1) believed the other person was underage or (2) was wilfully blind as to whether the other person was underage.
41If the trier of fact is left in a state of reasonable doubt as to whether the accused believed the other person was of legal age, then the accused is entitled to an acquittal.
42Subsection 172.1(4), however, stipulates that the defence that the accused believed the other person was of legal age can be raised only if the accused took reasonable steps to ascertain the other person's age.
The Reasonable Steps Requirement
43According to Morrison, the reasonable steps defence would operate in practice as follows:
a. First, in order to raise the defence, the accused bears the evidentiary burden of pointing to some evidence from which it may be found that he or she took reasonable steps and honestly believed the other person was of legal age.
Morrison provides that if the accused cannot discharge this evidentiary burden, then the defence will not be left with the trier of fact.
According to Morrison, in the context of a jury trial, the trial judge should provide a limiting instruction that because the accused failed to take reasonable steps to ascertain the other person’s age, the jury is precluded, as a matter of law, from considering the defence of honest belief in legal age.
b. Second, if the accused discharges his or her evidentiary burden, the defence is left with the trier of fact, and the Crown then bears the persuasive burden of disproving the defence beyond a reasonable doubt.
c. Third, regardless of whether the defence can be considered, the trier of fact must ultimately determine whether the Crown has proven beyond a reasonable doubt that the accused believed the other person was underage.
44Generally speaking, “a reasonable steps” requirement provides that a mistaken “belief” is not a defence unless the accused has taken reasonable steps to ascertain the actual age of the person. This essentially creates a due diligence standard and puts the onus on the accused to have made reasonable efforts/inquiries to determine the person’s actual age.
45Obviously, what constitutes “reasonable steps” is largely driven by context. In certain cases, if all indications are that the person is of age, there may be no need for an inquiry at all. The concept of “reasonable steps” necessarily incorporates an objective element into the analysis.
46In Morrison, the Supreme Court made clear, however, that section 172.1(4) of the Criminal Code does not relieve the Crown of its ultimate burden of proving beyond a reasonable doubt that the accused believed the other person was underage.1 This was explained in Morrison at para. 82, 83, 90 and 92:
Subsection 172.1(4) does not make this requirement any less essential. [I]t does not provide an independent pathway to conviction; it merely limits a defence.
Consequently, if the Crown proves beyond a reasonable doubt that the accused did not take reasonable steps, then the trier of fact is precluded from considering the defence that the accused believed the other person to be of legal age. But that does not relieve the Crown of its ultimate burden of proving beyond a reasonable doubt that the accused believed the other person was underage.
Thus, to illustrate, if the trier of fact can only conclude from the evidence that the accused was negligent or reckless with regard to the other person’s age, the Crown would not have met its burden, and the accused would be entitled to an acquittal. This is because negligence and recklessness are states of mind that do not entail any concrete belief about the other person’s age. In short, there is but one pathway to conviction: proof beyond a reasonable doubt that the accused believed the other person was underage. Nothing less will suffice. [Emphasis added]
47Morrison holds that whether the accused is convicted or acquitted does not hinge on whether the accused took reasonable steps. The Crown must prove beyond a reasonable doubt that the accused believed the other person was underage.
48This is due to the inchoate nature of the offence. Intentional communications with a person the accused actually believes to be underage is required to attract criminal liability. Mere recklessness in one’s communications, particularly when there is no actual victim, is not sufficient. As explained by Abella J. in her dissent at para. 201 of Morrison:
Online communications become criminal child luring when coupled with the requisite mental elements: the accused’s belief that he or she is communicating with a child, and the accused’s intention to facilitate a specified offence against that child. The further an offence is removed from the actual harms sought to be avoided, the more important the subjective component becomes in order to justify criminalization (Legare, at paras. 32-33, quoting A. Ashworth, Principles of Criminal Law (6th ed. 2009), at p. 456; Stewart (2010), at p. 15). As a result, to constitute child luring, it is essential that the communications online be done for the purpose of facilitating a subsequent offence and that the accused believe the communicant to be a child. These elements form the mens rea of the offence (Stewart (2010), at pp. 16-17). As a preparatory crime, child luring captures otherwise legal conduct — communications online — where it is subjectively intended to culminate in the commission of a completed crime (Legare, at paras. 25 and 32). [Emphasis added]
49Given the comments in Morrison, in the context of section172.1 of the Criminal Code, even if the accused does not take reasonable steps to verify age, or was reckless in his approach to the issue, the ultimate question is still whether the accused believed that the other person was underage when he communicated with him/her for the purpose of engaging in sexual activity.
50Accordingly, even if the accused takes no steps, an honest but mistaken belief that the person was of age would still be relevant. In other words, an accused who does not subjectively believe the person is underage lacks the requisite mens rea, regardless of whether or not the accused took reasonable steps. The Supreme Court explained this at para. 109 of Morrison:
The line between active and passive steps is not always easily drawn and may amount to little more than semantics. Whether we characterize certain steps as “passive” or “active” is of no moment.
In my view, there is no compelling reason, whether in a sting context or otherwise, for foreclosing the notion that arguably “passive” conduct — such as the receipt and consideration of unsolicited information — could provide information reasonably capable of supporting the accused’s belief that the other person was of legal age. [Emphasis added]
51Take for example a situation where the accused actually thought the person was 18 years old at the time of the communication. However, the images listed in the ad were such that the accused knew there was a “risk” the person was underage. The accused would clearly be reckless by not making inquiries. There would also be no “air of reality” to a defence that he took reasonable steps.2
52That said, his understanding of the person’s actual age would clearly still be relevant to the issues to be determined by the trier. The trier must determine if the accused believed the person was under the requisite age.
53In such circumstances, there would be no proper basis to exclude the accused’s evidence regarding his belief. It should not matter that the accused failed to take reasonable steps.
54When considered in this light, the “defence” of reasonable steps as framed in Morrison seems to potentially prevent the jury from considering evidence relevant to a fact in issue. This cannot be the way in which the Supreme Court intended the defence to be understood. As explained in the dissent of Abella J. in Morrison at para. 216:
It is a principle of fundamental justice under s. 7 that the accused has the right to present full answer and defence to a criminal charge (R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193, at paras. 41 and 43). This depends on the accused’s ability to establish a defence and challenge the case presented by the prosecution. The right to full answer and defence in turn upholds the right of the innocent not to be convicted, itself enshrined under s. 11(d) of the Charter. Where a provision has the effect of obstructing an accused’s ability to present full answer and defence to the charge leveled against him or her, it will constitute a violation of both ss. 7 and 11(d). [Emphasis added]
55It may be that steps taken to verify age (“reasonable steps”) can assist a trier to conclude that the accused held an honest but mistaken belief. It would also make sense that absent an evidentiary basis, the accused cannot assert that he/she took “reasonable steps” to verify age.
56That said, even in the absence of reasonable steps, the accused’s “actual” belief remains relevant and should not be excluded from the trier’s consideration. The Crown must make out its case having regard to all of the evidence, including the testimony of the accused, even in the absence of reasonable steps. A failure to make inquiries in a particular case may lead a jury to reject the accused’s evidence of belief (wilful blindness). That said, a failure to take reasonable steps should not preclude the jury from considering the accused’s evidence on the issue his/her belief.
57Any relevant facts, including the communications themselves, the context of the communications, other surrounding facts, the accused’s testimony, and any steps taken by the accused to verify age (reasonable or not) should be considered on the issue of whether the accused “believed” that the person was underage.
58Accordingly, I will consider all the evidence in determining whether or not the Crown has discharged its onus.
Application to the Facts of the Case
59The accused clearly communicated by means of telecommunication with a person for the purpose of engaging in sexual activity. It is also clear the accused sought to obtain sexual services in exchange for money. The only real question to be answered is whether the accused “believed” DC MC to be an underage female (14 years old) when he was engaged in the communications for sexual services.
60The ad itself states that Michelle is “tight” and has a “YOUNG FRIEND”. While the ad itself would suggest Michelle is younger in age, nothing in the original ad would suggest that Michelle was under the age of 18. On the contrary, the original ad indicates that Michelle was 18 years old. The female pictured in the ad also looks to be a female over 18 years old.
61That said, the text messages demonstrate that DC MC clearly held “Michelle” out to be 14 years of age. In fact, DC MC told the accused on at least 3 separate occasions that he was under 18 years of age. The relevant texts are as follows:
16:28 - UC: Just so you know we are under 18. Some guys freak out and I don’t want problems. We are small and it’s obvious.
16:29 - Accused: I’m cool with it. I’ll be gentle as long as you’re sexy and willing.
16:30 - Accused: I’ll start making my way to you now. Where are you staying?
16:31 - UC: We are both willing. We’re 14 but will be both be turning 15 this year. That cool? We are buddies and very flexible??
16:32 - Accused: Should be lots of fun
16:32 - Accused: Are those real photos from the ads. Those girls look a bit older.
16:36 - UC: they are both us.
16:37- Accused: Ok. I’m going to leave now.
16:37 - Accused: Where are you located.
62Shortly thereafter, Detective MC again restated Michelle’s” age as being 14 in the following texts:
16:42 - Accused: Can you girls dress up for me
16:44 - UC: Like what
16:44 - Accused: Do you have a body suit
16:44 - UC: No
16:44 - Accused: Leggings?
16:44 - UC: I’m 14 I got regular clothed and my bra and underwear.
16:45 - Accused. Ok. Dress in something cute and sexy
16:45 - Accused: Same with Jamie
16:46 - UC: OK will do
16:46 - Accused: I like thongs if you have
63The accused testified that he never believed that Michelle was underage. According to the accused, he was looking for a blonde-haired athletic female escort approximately his own age. When he looked at the photographs posted in the ad, he believed that the person he was speaking with was approximately his own age.
64The accused acknowledged that “Michelle” stated she was 14. However, the accused testified that he thought when Michelle said she was 14 years old, she was merely role-playing.
65According to the accused, he expected to attend the hotel and meet with a female his own age. He based this belief on the pictures. According to the accused, had he arrived at the hotel and observed a 14 year old female, he would have contacted the front desk or the police to complain. He never would have been interested in having sexual relations with a 14 year old girl.
66I reject the accused’s evidence. There is nothing in any of the texts which would suggest that the accused believed that Detective MC was “role-playing”. On the contrary, the accused’s text responses, in context, make it evident that the accused believed he was dealing with 2 underage females (14 years of age), and proceeded to negotiate for sexual services nonetheless.
67It is evident that the accused did not initially intend to obtain sexual services from someone who was underage. There is nothing to indicate the accused was looking for a person who was underage by contacting the posted ad. Nothing in his initial conversation would indicate that he was looking for an underage female. That said, once the accused was told that Michelle was 14, he remained intent on obtaining sexual services from her in exchange for money.
68I recognize that I must apply the rules set out in R. v. W.D., [1991] SCR 742, as follows:
If I believe the evidence of the accused, I must acquit.
If I do not believe the evidence of the accused, but I am left with a reasonable doubt by it, I must acquit.
Even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence I accept, I am convinced beyond a reasonable doubt by the evidence of the accused’s guilt.
69I reject the accused’s evidence. Nor am I left with a reasonable doubt by it. Having considered the evidence as a whole, I am satisfied beyond a reasonable doubt that the accused “believed” both Michelle and Jamie to be 14 years old and he communicated by telecommunication with DC MC for the purpose of engaging in sexual activity with both of them.
70Accordingly, I find the accused guilty on counts 1 and 2 in the Indictment.
71Count 3 relates to communications with a person to arrange for sexual services from another person who is under the age of 16. This count relates to the text communications with DC MC posing as “Michelle” with a view to having sex with “Jamie”.
72For the reasons outlined above, I am satisfied beyond a reasonable doubt that the accused also believed that “Jamie” was underage at the time of the communications with DC MC. Again, I am satisfied beyond a reasonable doubt that the accused communicated with DC MC for the purpose of arranging sexual services with “Jamie”, a female he believed to be 14 years of age.
73I have applied the requirements as set out in R. v. W.D. After considering the evidence as a whole, I am satisfied beyond a reasonable doubt that the accused committed the offence in Count 3. As such, I also find the accused guilty on Count 3 in the Indictment.
Justice C.F. de Sa
Released Orally in Court: July 29, 2019
NOTE: As noted in court, on the record, this written Ruling is to be considered the official version and takes precedence over the oral reasons read into the record. If any discrepancies between the oral and written versions it is the official written Ruling that is to be relied upon.
At para. 79, the Supreme Court in Morrison provided that the stigma and punishment associated with the offence of child luring would not necessarily require pure subjective mens rea. However, they found it unnecessary to decide the issue given the limited availability of the “reasonable steps” requirement.
Footnotes
- As explained in Morrison at para 75, to accord with the principles of fundamental justice, the mental element of an offence must “maintain a proportionality between the stigma and punishment attached to a [conviction for the offence] and the moral blameworthiness of the offender”. A small group of offences, including murder and attempted murder, carry such stigma and punishment that they require a purely subjective standard of fault: R. v. Creighton, 1993 CanLII 61 (SCC), [1993] 3 S.C.R. 3, at p. 18. However, “an objective fault requirement is constitutionally sufficient for a broad range of offences” beyond this limited class: Creighton, at p. 18.
- As explained in Morrison at para 100: Recklessness refers to the state of mind of a person who, “aware that there is danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk”: Sansregret, at p. 582. By contrast, wilful blindness “arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant”: p. 584.