Court File and Parties
Newmarket Court File No.: CR-16-00002295 Date: 2019-07-12 Ontario Superior Court of Justice
Between: Her Majesty the Queen – and – Sivaratnam Sinnappillai, Defendant
Counsel: Kellie Hutchinson, for the Crown Jessica Sickinger, for the Defendant
Heard: July 12, 2019
Ruling On: Directed verdict application
Boswell J.
Overview
[1] Just before midnight a lone, Sri Lankan male knocked on a hotel room door. The door opened. A police officer stepped out and arrested the male. He was charged with and is now on trial for the offences of luring a female, whom he allegedly believed was 15 years old, to facilitate the purchase of sexual services from her and to facilitate the offence of inviting sexual touching. Both offences are grounded in s. 172.1 of the Criminal Code.
[2] The Crown’s case has concluded. The defendant seeks a directed verdict, arguing there was insufficient evidence tendered by the Crown to establish the first essential element of each of the two offences.
[3] The following brief reasons explain why the application is dismissed.
The Governing Authorities
[4] The test on a directed verdict application is well-settled and is not in dispute here. The court must determine “whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty”: see United States of America v. Shephard, [1977] 2 S.C.R. 1067, at p. 1080.
[5] The “Shephard test” has been refined somewhat over the years since it was formulated. In R. v. Acevedo, [2013] O.J. No. 1345, at para. 5, Strathy, J., now C.J.O., described how the modern iteration of the test is to be applied in cases where the Crown’s case is wholly or largely circumstantial:
…[I]s there any evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty? See R. v. Monteleone, [1987] 2 S.C.R. 154 at para. 8; R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828 at para. 21. The motion must be dismissed if there is admissible evidence that could, if it were believed, result in a conviction. In a case like this one, where the evidence relied on by the Crown is entirely circumstantial, the court must engage in a limited weighing of the evidence to determine whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw: see Arcuri at para. 23, per McLachlin C.J.C. It is not, however, the responsibility of a judge on a motion such as this to choose between competing inferences. Where the evidence is capable of supporting more than one inference, only the inferences that favour the Crown are to be considered: R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635 at para. 18, per Major J.
[6] To survive a directed verdict application, the Crown must satisfy the court that it has tendered evidence reasonably capable of satisfying each of the essential elements of the charged offences beyond a reasonable doubt.
[7] As the Supreme Court explained in R. v. Villaroman, 2016 SCC 33, at paras. 17-18, where the Crown’s evidence is wholly or predominantly circumstantial in character, the jury must be satisfied that the defendant’s guilt is the only rational inference that may be drawn from the circumstantial evidence. This is not to say, however, that I must be satisfied, at this stage, that the defendant’s guilt is the only rational inference available from the body of evidence adduced by the Crown. That is a determination for the jury.
[8] My function, at this stage, does not involve the ultimate weighing of evidence, or in the choosing between competing inferences. My task is only to determine if it is possible for the jury, acting reasonably, to infer guilt from any competing inferences available on the evidence: R. v. Jama, 2017 ONSC 471, at para. 29.
The Essential Elements
[9] Since the Crown must tender evidence capable of satisfying each of the essential elements of the charged offences, it is worthwhile setting out what those elements are. The essential elements of offences charged under s. 172.1 of the Criminal Code were the subject of recent Supreme Court scrutiny in R. v. Morrison, 2019 SCC 15. Justice Moldaver, for the majority, instructed that in the context of a police sting where there is no actual underaged person involved, the offence of child luring has three essential elements:
(i) There must be an intentional communication by means of telecommunication; (ii) The accused must believe the person s/he is communicating with is under the requisite age; and, (iii) The communication must be for the purpose of facilitating the commission of a designated offence.
(See para. 95).
The Evidentiary Record
[10] The Crown’s case was brief. It was completed within a day and a half. Four witnesses testified – three police officers and one civilian member of the York Region Police Service.
[11] Inspector Ryan Hogan described for the jury the basic contours of a police sting operation known as “Project Raphael”. He said the police were looking to catch parties seeking to purchase the sexual services of underaged sex workers. The police posted an advertisement for a fictitious female escort on an online classifieds website called backpage.com. As bait, they posted information that included an indication that the sex worker, “Kathy”, was 18 years old. The ad included a number where interested parties could text Kathy. In reality, Insp. Hogan was posing as Kathy.
[12] At about 10:11 p.m. on March 25, 2016, a person using phone number 647-609-0460 (the “Client”) contacted Insp. Hogan indicating that he was looking for a half an hour of “full service” sexual activity. There was some discussion about pricing, then Kathy indicated that she was only 15 and asked if that was okay. She had to ask twice, but eventually the Client said, “Don’t worry, I like”. It was agreed that the Client would attend a hotel in Markham to meet with Kathy. The Client said he was a brown Sri Lankan. He said he would be 40 minutes and at 10:59 p.m. said he was just leaving.
[13] At 11:44 p.m. the Client texted Insp. Hogan again and advised that he was at the hotel. He asked for the room number. Insp. Hogan said “Rm 406”. Roughly three minutes later Mr. Sinnappillai knocked on the door to room 406 and was arrested.
[14] A search incident to arrest yielded a black Samsung phone, a set of car keys and one $100 bill. The price that had been agreed upon for a half hour “bareback” session was $100.
[15] The Samsung phone was taken into custody by Constable Christopher Morrison. He testified that, using a police phone, he called the number 647-609-0460 and the Samsung began to ring. He then removed the SIM card and packaged it and the phone in a plastic evidence bag. He described the phone as a model SM-6530W and noted its serial number. He said once an item goes into a bag the bag gets sealed, though he did not specifically indicate that he sealed the bag with the phone in it on this occasion.
[16] The phone was ultimately logged into the York Region Police Service property room on March 29, 2019. There is no evidence as to what happened with the phone between the time that PC Morrison took custody of it and the time that it was secured in the property room.
[17] In April 2016 the police obtained a warrant to search the phone. The next month it was removed from the property room and delivered to Kyle MacLean who is a member of the York Region Police Service “Tech Crimes” unit. He extracted data from the phone and recovered the text conversation between the Client and Insp. Hogan.
[18] Mr. MacLean prepared an extraction report for the investigating officers. His report indicates that the model number of the phone is SM-G5308W. He did not record the serial number.
The Positions of the Parties
[19] The defence submissions focussed on the first essential element of the charged offences.
[20] Ms. Sickinger argued that the Crown has failed to adduce evidence reasonably capable of supporting the inference that Mr. Sinnappillai was the person communicating by telecommunication with Insp. Hogan. She pointed to the following shortcomings in the Crown’s case:
(i) Offences under s. 172.1 of the Criminal Code are inchoate offences. The offence was complete once the Client was told (assuming he believed) that Kathy was 15 and further efforts were made to arrange for sexual activity with her. The Crown has failed to produce evidence capable of establishing that Mr. Sinnappillai was the Client (i.e. the user of phone number 647-609-0460); (ii) None of the Crown’s witnesses associated the Samsung phone seized from Mr. Sinnappillai with number 647-609-0460; and, (iii) There are serious problems with the continuity of the phone seized from Mr. Sinnappillai. First, no one explained what happened to the phone between March 26 and March 29, 2016. Second, the phone searched by Mr. MacLean had a different model number than that recorded by PC Morrison. The Crown is unable, in the circumstances, to prove that the phone searched by Mr. MacLean is the one seized from Mr. Sinnappillai.
[21] Ms. Sickinger asserted that the Crown’s case depends entirely on an inferential chain. Specifically, that Mr. Sinnappillai had a Samsung phone; that the phone was associated with number 647-609-0460; that the phone seized from Mr. Sinnappillai contained the text messages exchanged with Insp. Hogan; and that Mr. Sinnappillai was the author of those messages.
[22] Ms. Sickinger contends that there are significant breaks in the inferential chain that make it impossible for the jury to reasonably conclude that Mr. Sinnappillai was the person who communicated with Insp. Hogan.
[23] Crown counsel took the position that this motion could be resolved without any regard to the Samsung phone. She asserted that there is sufficient evidence, without the phone, upon which a properly instructed jury, acting reasonably, could infer that Mr. Sinnappillai was the person who communicated with Insp. Hogan. She submitted, however, that even if there are continuity issues with respect to the phone, those are matters that go to weight. At this stage of the proceedings, the court’s analysis must be based only on the inferences favourable to the Crown. It is entirely possible for the jury to conclude, notwithstanding any continuity issues, that the phone searched by Mr. MacLean was indeed the phone seized by PC Morrison.
Discussion
[24] I agree with the Crown’s submissions.
[25] Ms. Sickinger is quite right that offences under s. 172.1 of the Code are inchoate – or preparatory – offences. Depending on the jury’s findings, the charged offences would have been complete well before Mr. Sinnappillai knocked on the door to room 406. Indeed, his attendance at the hotel room is not part of the offence, but properly characterized as post-offence conduct. That said, post-offence conduct of this nature may be relevant to – and considered by the jury with respect to – the issue of identity.
[26] There is, in my view, sufficient evidence in the record – without regard to the cell phone seized from Mr. Sinnappillai – to support the conclusion that he was the person who texted with Insp. Hogan. The Client advised that he was a brown, Sri Lankan male. He arranged for services that would cost $100. He said he was 40 minutes away. Some 45 minutes later, the Client texted to say that he had arrived. He asked for the room number. He was told to come to room 406. Moments later Mr. Sinnappillai, a Sri Lankan male, with a $100 bill in his pocket, knocked on the door to room 406.
[27] I further agree with Crown counsel that issues with respect to the continuity of the phone go to the weight of the evidence. Considering for the time being only the inferences most favourable to the Crown, it is open to the jury to conclude that PC Morrison made a mistake when he recorded the model number of the phone and that, notwithstanding a gap of 3-4 days, he eventually delivered the phone seized from Mr. Sinnappillai to the property room for safekeeping. Moreover, that the phone seized from Mr. Sinnappillai was indeed the phone later searched by Mr. MacLean.
[28] Defence counsel may certainly be able to “make some hay” with the continuity issues, but it remains open to the jury, in my view, to conclude that the phone searched by Mr. MacLean was one and the same as the one seized from Mr. Sinnappillai at the time of his arrest. If they do so conclude, then the presence of the text conversation with Insp. Hogan on that phone will provide further support on the issue of identity.
[29] Defence counsel did not raise any issues with respect to the sufficiency of the evidentiary record as it relates to the second and third elements of the charged offences. I will, accordingly, not spend any time on them, other than to observe that, in my view, there is also sufficient evidence in the record to satisfy the Shephard test insofar as those elements are concerned.
[30] In the result, I am satisfied that there is sufficient evidence in the record that a properly instructed jury, acting reasonably, could conclude that Mr. Sinnappillai is guilty of each of the two charged offences. The motion for a directed verdict must, therefore, be dismissed.