NEWMARKET COURT FILE NO.: CR-16-02297
DATE: 20190917
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
BENJAMIN WEILAND
Defendant
Michelle Rumble, for the Crown
Boris Bytensky, for the Defendant
HEARD: March 19, 20, 21, and July 9, 2019
REASONS FOR JUDGMENT
DI LUCA J.:
[1] On the evening of March 25, 2016, Benjamin Weiland was at a low point in his life. He had suffered a significant personal loss. He was depressed. He had been drinking. He was also looking for sex.
[2] On an earlier occasion he had responded to a certain ad for sexual services found on Backpage.com. His text had received no response. He decided to try his luck again, and this time he received a response from a purported sex worker named “Jamie.” He engaged Jamie in a discussion about sexual services. During this text conversation, Jamie indicated that she was 15 years of age. Mr. Weiland eventually agreed to attend a nearby hotel. He arrived at the designated hotel room armed with cash and condoms.
[3] To his great surprise, he was not greeted by Jamie. Instead, he was greeted by several members of the York Region Police Service, one of whom very quickly took Mr. Weiland to the ground and arrested him.
[4] Unbeknownst to Mr. Weiland, the York Region Police Service was running a sting operation known as Project Raphael. The objective of Project Raphael was to target those seeking to obtain sexual services from underage prostitutes. As part of this operation, investigators posted various advertisements for female escorts on Backpage.com. The ads offered the services of a female escort with a stated age of 18, and provided a cell phone number for interested parties to contact. Once interested parties texted the number provided, an undercover officer would engage in a discussion around the provision of sexual services. At some point during the conversation, the officer would “reveal” that “her” true age was 14 or 15 and, if things went according to plan, the target would continue the conversation and then set up a rendezvous.
[5] Following his arrest, Mr. Weiland was charged with the following offences:
That he between March 25th and 26th, 2016 did, by means of telecommunication, communicate with Thai Truong, who was believed to be under the age of eighteen years, for the purpose of facilitating the commission of an offence under Section 286.1(2) of the Criminal Code with respect to that person, contrary to Section 172.1, subsection (2) of the Criminal Code of Canada.
That he also did by means of a telecommunication, with Thai Truong, who 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 he also did communicate with Thai Truong, 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.
[6] In support of its case, the Crown relied primarily on a Backpage ad posted in relation to this investigation, the exchange of text messages between Mr. Weiland and Inspector Thai Truong whom Mr. Weiland believed was a sex worker named Jamie, and a post-arrest statement given to investigators by Mr. Weiland.
[7] Mr. Weiland testified, and the core of his defence is that he did not believe that “Jamie” was underage despite the fact that she stated she was 15 years old.
[8] Shortly before this trial was heard, the Supreme Court of Canada released its decision in R. v. Morrison, 2019 SCC 15. This decision declared the Criminal Code provisions establishing a presumption of belief in a stated age unconstitutional. As a result, this case is to be decided without the benefit of the presumption, but with the guidance of the Supreme Court’s discussion on the required elements of the offence that the Crown must prove beyond a reasonable doubt.
The Backpage Advertisement
[9] During the operation of Project Raphael, police posted a number of ads on the Backpage.com website. The police purpose in posting the ads was to attract men who were interested in having sex with minors.
[10] Viewing and posting ads on the website required acknowledgement of an age disclaimer. The ads posted all indicated that the subject of the ad is 18 years of age. The website would not let some under the purported age of 18 post an ad.
[11] On the night of March 25, 2016, Inspector Truong (then Det. Sgt.) posted the ad that was used in this case. The ads were shown in chronological fashion on the Backpage website, with the newest ads listed first. In order to keep the ad towards the top of the list of ads, the ad had to be re-posted. Each posting and re-posting of the ad cost roughly $10 in crypto currency.
[12] Inspector Truong composed the ad and first posted it at approximately 8:30 p.m. The ad was re-posted at 11:02 p.m. A copy of the ad was tendered as Exhibit 12. It includes three photographs of a female police officer posing as a sex worker. Her face is not revealed in the pictures. In the first photo she is on a bed wearing what appears to be a sports bra and yoga style shorts. In the next two photos she is wearing a tight dress. It is difficult from the images to discern her actual age. While the person depicted in the photos could be a 15 year old, she could equally or perhaps more probably be in her 20’s. In fact, the female officer who posed for the photo was in her mid to late 20’s when the photographs were taken.
[13] In addition to the photographs, the ad included the following text:
YOUNG Shy FRESH and NEW – MARKHAM tonight Highway 7 and Woodbine – Be gentle - 18
Hi super new to this and pretty shy so be nice and gentle please. I have brown hair and green eyes and I like to play volley ball.
80 hh, 140 fh, I like nice guys. In calls near Highway 7 and Woodbine Av MARKHAM. I cant be working all night :)
I have a friend also working, shes young like me text me if you r serious. No phone calls please. TEXT ONLY. 289-355-5721 :)
Jamie :)
Poster’s age 18
[14] The reference in the ad to “80 hh” and “140 fh” is shortform coded language meaning $80 for one half hour, and $140 for a full hour of sexual services.
[15] Inspector Truong indicated that he wrote the text of the ad using language to portray himself as young. That said, he agreed that the language used was not shortform code for an underage sex worker.
The Conversation Between Mr. Weiland and Inspector Truong
[16] On March 25, 2016, at 11:18 p.m., the accused sent a text to the phone number listed in the ad. This was not the first text he sent to this phone. He had sent an earlier text on March 14, 2016, but he received no response.
[17] This time, he received a response and the following text conversation ensued:
23:18 – Weiland: Are you available tonight?
23:19 – Jamie: yes i am right now
23:19 - Weiland: What are the rates?
23:20 – Jamie: 80 hh 140 fh
23:20 – Weiland: What hotel?
23:21 – Jamie: What do you want hun?
23:21 – Weiland: 1230
23:21 – Jamie: yes but are you ok if im not quite 18 yet? Some guys are ok and some aren’t Id like to be honest
23:22 – Weiland: How old are you?
23:22 – Jamie: 15 but I look older
23:23 – Weiland: Your 15?
23:23 – Jamie: yes
23:24 – Weiland: Are you sure you know how to have sex at 15?
23:26 – Weiland: I’m 19 so we’re both young
23:26 – Jamie: nice
23:27 – Weiland: So what hotel is it?
23:28 – Jamie: homewood suites
23:29 – Weiland: Can you send me some sort of picture?
23:30 – Jamie: no hun im trying to be safe sorry
23:30 – Weiland: Lol how do I know your not a cop?
23:30 – Weiland: How could you book a hotel at 15? You can’t even get a credit card till 18.
23:31 – Jamie: ur funny. I have a regular who gets me my rooms silly
23:31 – Jamie: well im not a cop ive been working all week. i cud be one
23:32 – Weiland: I guess it wouldn’t really matter
23:33 – Jamie: if i was a cop I wudnt of been honest with u silly
23:33 – Weiland: How tall are you?
23:34 – Jamie: 5 4
23:35 – Weiland: weight?
23:36 – Jamie: 115
23:36 – Weiland: Sound good
23:39 – Weiland: I will be there at 1230
23:41 – Jamie: ok did you want a hh or fh
23:41 – Weiland: Hh
23:42 – Jamie: ok hh just normal sex right? thats 80 ok
23:42 – Weiland: sure
23:44 – Jamie: ok can u bring a condom babe im all out
23:45 – Weiland: Yup
23:52 – Weiland: Text me the room number at 12:25
23:53 – Jamie: i will text my room when you get here hun
[18] Mr. Weiland then took a taxi to the hotel location. He sent a further text indicating he had arrived and he was provided a hotel room number. He made his way up to the room, knocked on the door and was promptly arrested.
The Post-Arrest Statement
[19] Following his arrest, Mr. Weiland provided a voluntary statement to police. The statement was tendered into evidence as part of the Crown’s case. In this statement, Mr. Weiland admits that he used his cell phone to send text messages in response to the ad posted by Inspector Truong. During the interview, Mr. Weiland is asked what happened and he explains that he saw an ad on Backpage.com that indicated an age of 18. He clicked on the ad and texted the person indicated in the ad. He then states “and she said, “I’m underage” dah dah dah dah. And then I went along with it. So I mean….not much else I can say”.
[20] The following exchange then takes place:
D/C TURNER: You mentioned that – that – how – how old was the person who….
BEN WEILAND: It said on the ad 18.
D/C TURNER: Okay. Okay. And then, um, and then what age did you find out….
BEN WEILAND: So, I don’t know, I can’t remember exactly. It was probably – I don’t know how many texts in it was or anything like that – I can’t – I don’t remember.
D/C TURNER: That’s okay. What -…
BEN WEILAND: Um….
D/C TURNER: …what was the age of the person?
BEN WEILAND: Well, she said “I’m a little bit younger than most people would expect.” I said, “Like you’re younger than 18?” and she said “I’m 15” and I said “15?” and the I just went along with it.
D/C TURNER: Okay. Okay. So, you knew – you knew that the person you were talking to was – was 15 years of age?
BEN WEILAND: Well, like I guess.
D/C TURNER: Okay. And how old – how old did you tell that – that undercover officer….
BEN WEILAND: I said I was 19.
D/C TURNER: Okay.
BEN WEILAND: So I lied.
[21] Toward the end of the statement, Mr. Weiland is asked what he would have done if he had arrived at the hotel room and found a 15 year old girl inside the room. He initially indicated that he did not want to answer the question and then replied as follows:
Well, the bottom line is no – there was no 15 year old girl at the door. It was a bunch of officers that arrested me. There was never any money exchanged or any touching of a 15 year old woman. So, I mean (shakes head in the negative).
Mr. Weiland’s Evidence
[22] Mr. Weiland is 29 years old. He was 26 years of age at the time of the offence. He is single and lives with his father. He has no criminal record. He has a high school education and took some additional college courses in golf course management.
[23] Four months prior to the offence date, his mother tragically took her own life. Mr. Weiland was suffering from depression and was drinking regularly.
[24] On March 25, 2016, he and his father went out for dinner and alcohol was consumed. Following dinner, Mr. Weiland went to a bar where he consumed some more alcohol. He felt intoxicated.
[25] At a certain point in the evening, Mr. Weiland decided to find a sex worker. He went on the Backpage website, which he had used in the past, and located an ad for a sex worker operating in his geographical vicinity. The location was a primary concern as he was taking taxis and did not want to spend a lot of money for travel.
[26] Mr. Weiland was looking for an adult sex worker. He noted that the ad he was looking at indicated that the poster was 18 years of age. That said, his main focus in the ad was the posted location which was near the bar he was at.
[27] Mr. Weiland did not have a great memory about the texts he sent and received. He was intoxicated at the time and the events took place over three years ago. That said, he indicated that when “Jamie” said she was 15, he did not believe her. He thought she was lying about her age and so he lied about his age, indicating he was 19 years old. He could not really explain why he indicated he was 19.
[28] He indicated that when Jamie said she was 15, he went back and looked at the picture posted in the ad and came to the conclusion that the person in the photos looked like she was over 20 years old. He asked Jamie to send him a photo so he could see what she looked like and he asked questions about whether she knew how to have sex and about her ability to have a credit card to rent a hotel room.
[29] Mr. Weiland explained that he was “pretty sure” the person he was speaking with was over 18, but he was not 100% sure. He explained that there was “a part of him” that was not totally sure.
[30] He explained that he asked the person’s height and weight to assess whether they were in proportion and to assess the person’s age.
[31] In view of the questions he asked and the answers he received, he was 85-90% sure that the person he was speaking with was over the age of 18. At no time was he sure that he was speaking with an adult. He decided to attend the hotel room and his plan was to visually verify that the person was of age. He indicated he had no interest in underage sex, and that if he saw an underage person at the hotel he would have simply left.
[32] Mr. Weiland was taken to his statement to Det. Cst. Turner wherein, he responded “Yeah I guess so” to the officer’s question “you knew the person was 15?” He explained that his answer was not a statement that he believed that she was 15, rather it was an acknowledgment that the text he received indicated that the person was 15.
[33] In cross-examination, Mr. Weiland maintained that his focus in reviewing the ad was the location and not the stated age of the poster. He maintained that he was very intoxicated despite not showing many outward signs of intoxication. He claimed limited knowledge of the terminology used in the texts such as “hh” and “fh” for half hour and full hour.
[34] On several instances he claimed confusion and/or a lack of memory. He explained that when Jamie was telling him that she was 15 he was confused, because that age did not match the pictures. That said, Mr. Weiland had difficulty explaining what features in a photo could assist in distinguishing a 20 year old from a teenager. Mr. Weiland also had difficulty explaining why he felt asking the person’s height and weight would assist him in determining her age.
[35] Mr. Weiland denied that the reason why he told Jamie he was 19 was because he was worried that if he indicated his real age, Jamie might decide he was too old. Lastly, he denied that he was being accurate and truthful when he told Det. Cst. Turner that he “just went along with it”. He explained that this comment was misinterpreted, and that he did not intend it as an admission that he believed the person was 15 years of age.
The Legal Framework
[36] Section 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]
[37] Section 286.1(2) of the Criminal Code provides:
Obtaining Sexual Services for Consideration from Person Under 18 Years
286.1(2) Everyone who, in any place, obtains for consideration, or communicates with anyone for the purpose of obtaining for consideration, the sexual services of a person under the age of 18 years is guilty of an indictable offence….
[38] The luring provisions of the Criminal Code target sexual predators who communicate with children for the purpose of engaging in illicit sexual activity. The provisions criminalize certain forms of communication with persons believed to be under certain specified ages where the purpose of the communication is the commission or facilitation of certain sexual offences. The nature of the offence is essentially inchoate and the commission of the offence is complete once the accused communicates with a person who is, or who the accused believes to be under a particular age for the purpose of the commission of or facilitation of certain listed offences. The actual commission of an offence or facilitation of the commission of an offence is not required.
[39] In Morrison, at paras. 39 and 40, Moldaver J. explains the nature of these provisions as follows:
… 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 “identifying and apprehending 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. [Citations 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”.
[40] One issue in Morrison was the constitutionality of Section 172.1(3). That section of the Code created a presumption of belief in a stated or communicated age. In the context of a luring sting, once an undercover police officer communicated that he or she was of a certain age, the accused was presumed to believe that stated age. The Crown could rely on this presumption to establish the requisite mens rea for the offence. Of course, it remained open to the accused to rebut the presumption by showing that he or she took reasonable steps to ascertain the age of the person they were communicating with, and that they believed the person to be under the legal age.
[41] Writing for the majority, Moldaver J. found the presumption to be unconstitutional as it permitted an accused to be convicted even in cases where the trier of fact was left with a reasonable doubt about the accused’s belief in the stated age.
[42] One area of concern for Moldaver J. was the commonly accepted fact that persons operate on the Internet under fictitious guises, particularly when it comes to sexual matters. In this regard, Moldaver J. adopted the comments of the Court of Appeal in Morrison, wherein the Court stated at para. 60:
There is simply no expectation that representations made during Internet conversations about sexual matters will be accurate or that a participant will be honest about his or her personal attributes, including age. Indeed, the expectation is quite the opposite, as true identities are often concealed in the course of online communications about sexual matters.
[43] In addition to striking down the statutory presumption of belief, the Supreme Court also provided guidance on the requisite elements of the offence of luring, on how proof of those elements can be accomplished in the absence of the presumption.
[44] In this regard, Moldaver J. explained that in the context of a police sting where there is no actual underage person in the communication, 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; and (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.
[45] In 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.
[46] Importantly, Moldaver J. notes that proof of recklessness will not suffice. Recklessness is a state of mind where a person who is “aware that there is a danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk”: see R. v. Sansregret, 1985 CanLII 79 (SCC), [1985] 1 S.C.R. 570 at p. 582, as cited by Moldaver J. in Morrison at para. 100.
[47] Ultimately, if 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.
The Reasonable Steps Requirement
[48] In Morrison, the Supreme Court also upheld the constitutionality of the reasonable steps requirement found in Section 172.1(4) of the Code. The Court then offered some guidance as to how the section would apply in the absence of the statutory presumption that was declared unconstitutional.
[49] In this regard, it is important to keep in mind the distinction between what the Crown must prove in order to obtain a conviction and the nature of the defence that is subject to the reasonable steps requirement. Admittedly the distinction is a fine one, and in the absence of presumption of belief in age it is difficult to conceive of a police sting scenario where the Crown leads sufficient evidence to obtain a conviction and the accused is, nonetheless, acquitted on the basis of mistaken belief in age.
[50] In accordance with Morrison, the Crown must prove beyond a reasonable doubt that the accused believed, either actually or on the basis of willful blindness, that the person they were communicating with was under the required age which is 18, 16 or 14, depending on the subsection of the offence provision relied on.
[51] If the Crown fails to prove belief on either basis, the accused is acquitted.
[52] Aside from the Crown’s obligation, the accused is permitted to raise an affirmative defence that he or she believed that the person they were communicating with was over the required age. However, in order to do so, the accused must point to some evidence giving an air of reality to a claim that they took reasonable steps to ascertain the age of the person they were communicating with.
[53] According to Morrison, at para. 116, the defence that the accused believed the person he was communicating with was over the legal age 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. In other words, the accused must show that the defence has an "air of reality".
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.
[54] In Morrison, Moldaver J. clearly states 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. Indeed, Moldaver J. explains that whether the accused is convicted or acquitted does not hinge on whether the accused took reasonable steps to ascertain age. The reasonable steps analysis only enters the picture where the accused seeks to advance the affirmative defence that he believed the person he was communicating with was over the legal age. Where the defence is not advanced or fails to meet the air of reality threshold, a conviction is not automatic. The Crown must, nonetheless, prove that the accused believed the person they were communicating with was underage.
Application to the Facts of this Case
[55] The central and ultimate issue in this case is narrow. Has the Crown proven beyond a reasonable doubt that Mr. Weiland believed the person he was communicating with via text message was under the age of 18?
[56] There is no issue that Mr. Weiland intentionally communicated with “Jamie” for the purpose of engaging in sexual activity. The only real issue is whether he believed Jamie when “she” indicated that she was 15 years old.
[57] I pause at this juncture to consider the nature of the defence that was advanced by Mr. Weiland. The central thrust of the defence submissions is that the Crown has simply fallen short of proving that Mr. Weiland believed that the person he was communicating with was under the age of 15. The defence relies primarily on Moldaver J.’s decision in Morrison, and argues that this is a case of recklessness but not wilful blindness or actual belief. As a secondary position, the defence argues that Mr. Weiland believed the person he was communicating with was over the legal age and he took reasonable steps to ascertain the person’s age.
[58] The distinction between the nature of the defences advanced is important. In Morrison, Moldaver J. notes that where the Crown proves beyond a reasonable doubt that the accused has not taken reasonable steps to ascertain the age of a person they are communicating with, the accused will be barred from arguing that he believed the person was over the legal age. In such an instance, the accused’s evidence that he believed that the person was over the legal age cannot be considered in deciding whether the Crown has proven the case beyond a reasonable doubt. However, a conviction only follows where upon consideration of all of the evidence, the trier of fact is satisfied that the accused believed the person was under the legal age: see Morrison, at paras. 82, 83, 129 and 130.
[59] I start my analysis by assessing Mr. Weiland’s evidence. In short, he was not a great witness. His evidence suffered from obvious and significant memory gaps. He struggled to describe what he was thinking and why he was doing certain things during the text messages. Some of the answers he gave bordered on the nonsensical. To cite one example, he maintained that the reason why he asked “Jamie” her height and weight was to ascertain her age. He maintained that the answers he received helped assure him that she was not 15 years of age, though he could not explain how height and weight could be used to differentiate a 15 year old from a 20 year old. This evidence made no sense and was clearly contrived to support his defence. The reality is that he likely asked these questions to ascertain whether the person’s physical characteristics matched his personal preferences.
[60] Mr. Weiland also shaded other aspects of his evidence in support of his defence. For example, I find that he exaggerated his degree of intoxication. On his evidence he was significantly intoxicated. However, the balance of the evidence suggests he demonstrated no signs of impairment. I find he also exaggerated the degree to which his focus was placed on the geographical location set out in the ad, as opposed to the particulars describing the sex worker. While I am sure that the geographical location was of some importance to him, I have no doubt that he also would have been focussed on determining whether the ad poster met his personal preferences. Lastly, I find that he downplayed his degree of knowledge regarding how sex ads and sex workers operate. I cite his evidence about the meaning of “hh” and “fh” as an example in this regard.
[61] I also note an observation from having watched Mr. Weiland’s testimony and his statement to police. Mr. Weiland strikes me as having modest intellectual abilities. He is not very articulate and he displays some expressive and perhaps cognitive limitations. I sense that part of his difficulty in explaining what his thought processes were is perhaps related to these characterological traits. Indeed, while I have concerns about the veracity of several aspects of his evidence, there are also aspects of his evidence where I suspect Mr. Weiland could have truthfully better explained or expressed his position but was incapable of doing so.
[62] I turn next to assessing the core issue in this case and that is whether the Crown has proven that at the time of the communication, Mr. Weiland believed the person he was in communication with was under the age of 18.
[63] I can deal with the issue of willful blindness quickly. Simply stated, this is not a willful blindness case. Mr. Weiland responded to the assertion that Jamie was 15 by asking questions on that issue. He did not turn a blind eye or place himself in a state of deliberate ignorance.
[64] The more difficult question is whether he believed the assertion that Jamie was 15, or whether he acted recklessly aware of the risk that Jamie could be 15.
[65] While this case is a close call, I am ultimately not satisfied that the Crown has proven the requisite degree of mens rea beyond a reasonable doubt. In short, I have a reasonable doubt on the basis that Mr. Weiland acted recklessly. While I accept that one available conclusion on the evidence is that Mr. Weiland believed that Jamie was 15 and he did not care, an equally and perhaps more available conclusion is that he was aware of the risk that Jamie was 15 and he proceeded in the face of that risk. I reach this conclusion for the following reasons:
a. The Backpage ad refers to the ad poster as 18 years of age, and the text of the ad also states 18 years of age. That said, I acknowledge that the text of the ad uses language suggestive of a young, though not necessarily unlawful age. I also acknowledge that the stated age of a participant is often presumed to be fictitious, much like other aspects of an ad for a sex worker.
b. The photos of the female posing in the ad do not readily or clearly depict someone who is underage.
c. Once “Jamie” reveals her age as 15, it is clear that Mr. Weiland asks questions suggesting he does not believe her. For instance, he asks whether she even knows how to have sex at age 15. He asks how she managed to rent a hotel room since you need to be 18 to have a credit card. He asks if she is a police officer. These questions support a clear inference that he does not believe that she is 15 years old, and instead believes her stated age is fictitious.
d. He asks her to send a photograph. This clearly suggests that Mr. Weiland has some concern about the photos depicted in the ad and whether the photos are actually of the person he is communicating with.
e. He lies and indicates that he is 19. While Mr. Weiland could not offer a clear explanation for why he mentioned this fictitious age, an inference is that he was simply responding to a perceived fictitious age by proffering a fictitious age.
f. I am not prepared to find that his comments to Det. Cst. Turner amount to an admission that he believed Jamie to be 15 years old. When I read those comments in context and consider Mr. Weiland’s explanation for them as well as his presentation as a witness, I accept his evidence that this comment was simply meant as an acknowledgement that he was aware that the person he was communicating with stated that she was 15 years of age. His explanation that he “went along with it” is not, when viewed in context, an expression that he believed the age. Rather, I find that his expression is essentially to the effect that he “played” along with what he believed was a fictitious age.
g. While I have concerns about aspects of Mr. Weiland’s evidence, I do accept one aspect of his evidence as at least supporting a reasonable doubt. I accept his evidence that he was pretty sure he was dealing with an adult, but not 100% certain. Mr. Weiland asserts and I accept that he was aware of the risk that the person he was communicating with was under the legal age, but he proceeded to attend at the hotel despite the risk. Viewed in the context of the whole of the evidence, his assertion makes sense and is logical.
[66] The core issue in this case is whether the Crown has proven beyond a reasonable doubt that Mr. Weiland “believed” that “Jamie” was underage at the time of the communication. The text communications suggest that during these communications, he does not believe the stated age of 15. I accept that by the end of the communication an inference arises that Mr. Weiland may have believed that Jamie was 15 and may have decided to attend at the hotel room nonetheless. But that is not the only inference. Another inference, and perhaps a stronger inference, is that he was simply aware of the risk that she might be underage and he decided to proceed in the face of that risk.
[67] Having considered the evidence as a whole, I am not satisfied beyond a reasonable doubt that the accused “believed” the person he was communicating with to be under the age of 18. Accordingly, I am not satisfied beyond a reasonable doubt that the accused committed the offences in the indictment.
[68] Mr. Weiland, please stand. For the reasons I have just given, I find you not guilty. You are free to go.
Justice J. Di Luca
Released Orally in Court: September 17, 2019
NOTE: As noted in court, on the record, this written Judgment 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 Judgment that is to be relied upon.