CITATION: R. v. Collier, 2019 ONSC 7021
COURT FILE NO.: CR 19-10000219-0000
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Adam Collier
BEFORE: H. McArthur J.
COUNSEL: E. Evans, appearing as counsel for the Crown/Respondent
P. DeJulio and P. Locke, appearing as counsel for the Defendant/Applicant
HEARD: September 30, October 1, 2, 3, 4, 7, 8, 9, 11, and 15, 2019
reasons for judgment
H. MCARTHUR J.:
Introduction
1Adam Collier posted an advertisement on the “Casual Encounters” section of the Craigslist website with the title, “Big cock for high school girl m4w (west end)”. An undercover officer responded to the ad posing as a 14-year-old girl named Addy. Over the next month, Mr. Collier had sexualized email conversations with the Addy persona. He graphically described what he wanted to do with her sexually, told the Addy persona to touch herself sexually and asked her to send him photographs of her naked breasts. He sent her photographs of his penis. He sent her two pornographic videos titled, “Rookie Teen Sucking Dick” and “sexy teen giving 1 hell of a BJ”. Mr. Collier also discussed meeting with the Addy persona to have sex.
2After executing a warrant on Mr. Collier’s computer and obtaining emails through a request made to Google Inc. in California pursuant to the Mutual Legal Assistance Treaty, police discovered that around the same time frame, Mr. Collier had been having similar sexualized chats with six other unknown individuals who held themselves out to be underage girls: S.S., D.D., J.D., S.C., T.B., and J.1 As with the Addy persona, Mr. Collier engaged in sexualized conversations with these individuals, asked them to send naked photos and sent them images of his penis. The police also located 46 child pornography images (of which 19 were unique) on Mr. Collier’s computer.
3The Crown alleges that Mr. Collier communicated with or sent sexually explicit material to the Addy persona and the six other individuals with whom he was exchanging emails, in order to facilitate the offences of: make child pornography, sexual assault, invitation to sexual touching, sexual interference, and indecent exposure.
4As a result, Mr. Collier is now facing one count of child luring contrary to s. 172.1(1)(a) of the Criminal Code, four counts of child luring contrary to s. 172.1(1)(b) of the Criminal Code, one count of making sexually explicit material available to a child contrary to s. 171.1(1)(a) of the Criminal Code, four counts of making sexually explicit material available to a child contrary to s. 171.1(1)(b) of the Criminal Code, and one count each of possession of child pornography, access child pornography, make child pornography, and attempt to make child pornography.
5The defence concedes that the Crown has established the child pornography counts beyond a reasonable doubt. As a result, there will be findings of guilt with respect to counts 3, 4, 5, and 6.
6With respect to the remaining counts of child luring and making sexually explicit material available to a child, the defence argues that the Crown has failed to establish that Mr. Collier believed that he was communicating with underage individuals or that his purpose was to facilitate any designated offences.
7In particular, the defence argues that based on Mr. Collier’s evidence, I should have a reasonable doubt. Mr. Collier testified that he has Autism Spectrum Disorder (ASD). He explained that because of this disorder, he feels the need to inflexibly obey and follow rules and believes that others follow the rules as well. Mr. Collier testified that because the Casual Encounters section required users to click on a link confirming that they were over 18, he honestly believed that he was chatting with adults engaged in sexual role-play. That is, he believed that any users of the Casual Encounters site would of course follow the age rule and thus by necessity be over 18. Mr. Collier is also a playwright and testified that he viewed his email exchanges with the Addy persona and the others as scripts or screenplays, not reality. Dr. Graham Glancy testified and was qualified as an expert in forensic psychiatry and ASD. He confirmed the ASD diagnosis for Mr. Collier and explained that the need to rigidly adhere to rules is a symptom consistent with ASD.
8The Crown counters that Mr. Collier should be disentitled from relying on the defence that he believed that he was communicating with individuals over the age of 18 because he failed to take reasonable steps to ascertain their ages. Further, she argues that even if Mr. Collier is permitted to advance the defence that he believed the individuals were over 18, his evidence is incredible and should not leave me with a reasonable doubt. Looking at the evidence in its totality, she argues that she has established beyond a reasonable doubt that Mr. Collier believed that the Addy persona and the others with whom he was emailing with were underage, and that he communicated with them and sent them sexually explicit material in order to facilitate several designated offences.
9I do not intend to outline the facts at the outset and will refer to them only as necessary in my analysis.
10I propose to start out by briefly outlining the applicable legal framework, before turning to my analysis.
Applicable Legal Framework
11The offence of child luring is set out in s. 172.1 of the Criminal Code and provides as follows:
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.
Presumption re age
(3) Evidence that the person referred to in paragraph (1)(a), (b) or (c) was represented to the accused as being under the age of eighteen years, sixteen years or fourteen years, as the case may be, is in the absence of evidence to the contrary, proof that the accused believed that the person was under that age.
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.
12Recently, in R. v. Morrison, 2019 SCC 15, the Supreme Court of Canada struck down the presumption set out in s. 172.1(3) as unconstitutional. Moldaver J., for the majority of the court, then set out the applicable legal framework for child luring offences in the absence of the presumption. As he explained, 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 defendant believes, either actually or on the basis of wilful blindness, is under the requisite age of 18, 16 or 14, depending on the subsection of the offence provision relied on; 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.
13The defendant may raise an affirmative defence that they believed that the person they were communicating with was over the required age. However, in order to do so, the defendant 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. If the defendant discharges this evidentiary burden, the defence is to be left with the trier of fact, and the Crown then bears the persuasive burden of disproving the defence beyond a reasonable doubt. If the defendant fails to meet this burden, then they are disentitled from advancing the affirmative defence of belief in age. If so, however, the Crown must still prove beyond a reasonable doubt that the defendant believed that the person with whom they were communicating was underage.
14The offence of making sexually explicit material available to a child largely mirrors the child luring offences. Section 171.1 of the Criminal Code provides as follows:
171.1(1) Every person commits an offence who transmits, makes available, distributes or sells sexually explicit material to
(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 280 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.
Presumption re age
(3) Evidence that the person referred to in paragraph (1)(a), (b) or (c) was represented to the accused as being under the age of 18, 16 or 14 years, as the case may be, is, in the absence of evidence to the contrary, proof that the accused believed that the person was under that age.
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 18, 16 or 14 years of age, as the case may be, unless the accused took reasonable steps to ascertain the age of the person.
15While the presumption in the child luring offence has been struck down as unconstitutional, the presumption in the making sexually explicit material available to a child offence has not been. No constitutional challenge to this provision was brought in Mr. Collier’s case. Despite that, both sides approached their submissions on this offence in a similar fashion to the luring offence, that is, as if there was no statutory presumption. It may be that counsel did so in the belief that it flows inevitably from the reasons in Morrison that the presumption in s. 171.1(3) is unconstitutional. Given the approach of counsel in this case, and without ruling on the constitutionality of the presumption in this section, I am prepared to consider this matter as if the presumption did not apply, and use the analytic framework suggested in Morrison. That is, before Mr. Collier can advance a positive defence that he believed that the individuals to whom he sent sexually explicit materials to were over 18, he must first point to reasonable steps that give an air of reality to this defence. If he fails to do so, he cannot rely on the affirmative defence that he believed them to be over 18. The Crown, however, must still establish beyond a reasonable doubt that he believed them to be underage.
16The Crown must also establish beyond a reasonable doubt that Mr. Collier communicated with or sent sexually explicit materials to the Addy persona or one of the six other individuals with whom he was exchanging emails, in order to facilitate the designated offences of: make child pornography (counts 1 and 2), sexual assault (counts 8 and 9); invitation to sexual touching (counts 7 and 13); sexual interference (counts 10 and 12); and indecent exposure (counts 11 and 14).
17I say the Addy persona or one of the six others, as the Indictment is not particularized to any one individual, but rather each count sets out a date range of between April 11, 2017 and June 29, 2017. The Crown argues that during this time frame, Mr. Collier committed the offences of child luring and making sexually explicit material available to a child in relation to the Addy persona as well as in relation to each of the other six individuals with whom he was exchanging emails. She argues that each count can be proven beyond a reasonable doubt with respect to the Addy persona or S.S., D.D., J.D., S.C., T.B., and J. She takes the position that if I am satisfied beyond a reasonable doubt with respect to at least one of them, that will ground a finding of guilt.
18In my view, this is an unusual and potentially problematic way to approach the Indictment. The defence, however, did not argue that the counts were duplicitous or raise any objection to proceeding in this manner. The defence agreed that it would be appropriate to consider the evidence in relation to each individual with whom Mr. Collier was emailing as similar fact evidence in relation to the others. The defence was also not taken by surprise, as the Crown advised counsel of her position before the trial started. The defence knew that the Crown took the position that each count could be proven essentially seven different ways but did not argue that they were prejudiced by this approach.
19That said, this approach does make the analysis somewhat cumbersome. For ease, I will initially consider whether the Crown has established its case on each count only in relation to the Addy persona. I will then turn to consider the evidence in relation to the other six individuals.
20Before turning to an assessment of each count, however, I will first consider whether the defence has established an air of reality to the assertion that Mr. Collier took reasonable steps in relation to the Addy persona and the other six individuals such that he can rely on the affirmative defence of an honest belief that they are over 18.
21I turn now to my analysis.
Analysis
Can Mr. Collier rely on the affirmative defence that he honestly believed that the Addy persona and the other individuals with whom he was exchanging emails were over 18?
22Mr. Collier testified that he believed that the Addy persona and the six others with whom he was exchanging emails were over 18 for two reasons: 1) in order to access the Casual Encounters section of Craigslist, users were required to click on a link attesting to the fact that they were over the age of 18, and 2) they sometimes emailed him when students would be in school.
23As made clear in Morrison, before Mr. Collier can rely on his professed belief, there must be an air of reality to the assertion that he took reasonable steps to ascertain the ages of the Addy persona and the others with whom he was communicating who told him they were underage. The defence concedes that but for the ASD diagnosis, there would be no air of reality to the defence of reasonable steps. The defence argues, however, that because Mr. Collier had a neurological disorder that made him prone to slavishly follow rules and believe that others did so as well, the steps he took were reasonable given his circumstances.
24The Crown counters that Mr. Collier’s evidence that he believed them to be of legal age is implausible. Further, she asserts that Dr. Glancy’s evidence should be given little weight, as he does not have significant experience dealing with those with ASD, and because his conclusion relies on Mr. Collier’s self-serving and unlikely account of events. Thus, she argues that Mr. Collier has failed to establish an air of reality to the defence that he believed the individuals with whom he was exchanging emails to be of legal age. I cannot agree for the following reasons.
25In R. v. Cinous, 2002 SCC 29, the majority of the court made clear that when determining if there is an air of reality, the trial judge must assume that the evidence relied upon by the defendant is true. The judge does not make determinations about the credibility of witnesses, weigh the evidence, make findings of fact, or draw determinate factual inferences. Nor is the air of reality test intended to assess whether the defence is likely, unlikely, somewhat likely, or very likely to succeed at the end of the day. The question for the trial judge is whether the evidence discloses a real issue to be decided. In my view, the issues raised by the Crown go to whether the defence succeeds, not whether the defence is in play.
26As explained by Moldaver J. in Morrison at para. 105, an assessment of reasonable steps is highly contextual. It has both an objective and subjective component: the steps must be objectively reasonable, and the reasonableness of those steps must be assessed in light of the circumstances known to the defendant at that time. Given this, what may qualify as reasonable steps in one case may not in another.
27In my view, when assessing whether Mr. Collier took reasonable steps, the evidence that he has been diagnosed with ASD is a fact that goes to what circumstances were known to him at the time. As Dr. Glancy testified, ASD is a neurological disorder. A symptom of ASD can be an inflexible and uncompromising adherence to rules. Mr. Collier’s evidence that he firmly believed that since people follow rules, the requirement that users attest that they were over 18 before accessing the site would be complied with must be viewed through this prism. In my view, the combined effect of Mr. Collier’s evidence and the evidence of Dr. Glancy leads to the conclusion that there is an air of reality to the assertion that Mr. Collier took reasonable steps. To be clear, in the vast majority of cases, the steps Mr. Collier took would not suffice to meet the reasonable steps requirement. But in my view, Mr. Collier’s evidence and the expert evidence before me regarding his ASD diagnosis and how that could impact on Mr. Collier’s stated belief that underage individuals would not access an adults-only site is enough to put the affirmative defence of reasonable steps and honest belief in legal age into play.
Has the Crown proven the offences in relation to the Addy persona beyond a reasonable doubt?
28Mr. Collier testified that he believed the Addy persona to be over 18 and that his purpose in emailing with her was not to facilitate a designated offence. Rather, he believed he was engaged in fantasy role-play with an adult. He is a playwright and he viewed his email exchanges as a screenplay; he wrote what he thought the other person wanted to hear. The defence argues that Mr. Collier’s evidence is credible and that the Crown has failed to establish its case beyond a reasonable doubt. The Crown counters that Mr. Collier’s evidence is implausible, marred by contradictions and inconsistencies, and should not leave me with a reasonable doubt. The email communications between Mr. Collier and the Addy persona, she argues, establish his guilt on the offences beyond a reasonable doubt.
29In assessing the submissions of counsel, I keep in mind that Mr. Collier is presumed to be innocent unless and until the Crown has established each essential element of the offences beyond a reasonable doubt. It is not enough for me to believe that Mr. Collier is possibly, or even probably guilty. As a standard, reasonable doubt does not require proof beyond all doubt, nor does it require proof to an absolute certainty. At the same time, reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities.
30If I believe Mr. Collier’s evidence that he honestly believed that the Addy persona was over 18 and he was engaged in fantasy role-play, then I must acquit. Even if I do not believe Mr. Collier’s evidence, but am left in reasonable doubt by it, I must acquit. Finally, even if I reject Mr. Collier’s evidence, I must still ask myself whether based on the evidence that I do accept, if the Crown has established beyond a reasonable doubt that Mr. Collier believed the Addy persona to be underage and that he communicated with her or sent her sexually explicit material in order to facilitate designated offences.
31I will deal first with my assessment of the defence evidence.
32Mr. Collier testified that he has ASD, a diagnosis confirmed by Dr. Glancy. While the Crown argues that I should question that diagnosis, in my view Dr. Glancy’s evidence that Mr. Collier has ASD was reliable and credible. I accept that Mr. Collier has ASD.
33That said, the evidence suggests that Mr. Collier has a mild form of ASD. He was 17 before he was diagnosed with what was then called Asperger’s (but would now be referred to as ASD). Dr. Glancy explained that such a delayed diagnosis is consistent with individuals with mild ASD. Further, Dr. Glancy agreed that aspects of Mr. Collier’s history were somewhat atypical for those with ASD. Mr. Collier graduated from university with an honour’s degree in philosophy. He then won a scholarship to New York University to pursue a specialized master’s program in playwriting. Mr. Collier has been involved in writing plays since university. Some have been produced and he has won several awards for his work. He went abroad twice to teach English. At the time of these offences, Mr. Collier was volunteering at hospices and hoped to become a nurse. Dr. Glancy said that this history also supports the finding that Mr. Collier has a mild form of ASD.
34In examination-in-chief, Mr. Collier came across quite well. He painted a vivid picture of the negative impact that ASD has had on his life. He provided compelling testimony about how he suffers from depression, anxiety and social isolation, which ultimately led him to Casual Encounter in the hopes that he could establish some human contact. Having seen Mr. Collier testify over two days, I accept his evidence that he is sad and lonely and that he finds it difficult to interact with others.
35That said, there were other aspects of Mr. Collier’s testimony that caused me concern. His evidence was inconsistent on several points and tended to change and evolve when he was confronted with evidence that seemed to undermine his position.
36For example, in examination-in-chief, Mr. Collier said that he began posting ads on Casual Encounters because he was desperate for human contact, not because he was interested in sexual matters. He said that he had reached a point where he was no longer able to get through his days wandering the streets, going to stores and writing and reading the paper. The impression he gave was that the emails were the only lifeline he had to save him from drowning in his loneliness.
37That impression, however, was undercut in cross-examination when Mr. Collier was seeking to explain why, if he was interested in human contact rather than sexual matters, he saved the pornographic photographs he had been sent from individuals he had been emailing with, such as S.S., in subfolders labelled “Fun Pics” and “Non-Fiction”. After being pressed on this point, Mr. Collier suddenly said that the Casual Encounters interactions were a miniscule part of his life. The rest of his time was filled with things he enjoyed, such as reading, writing and volunteering. This position seemed inconsistent with his earlier evidence.
38By way of another example, in examination-in-chief, Mr. Collier said that he had asked the Addy persona to send him naked photos, as he was getting uncomfortable with their talk about meeting. He did not want to end the email communications, because the emails were so important to him. He thought that asking for sexual photos would discourage the Addy persona from wanting to meet with him, without discouraging her from sending emails.
39In cross-examination, however, Mr. Collier was confronted with the fact that he had done internet research on whether it was illegal to talk to teens on the internet, the age of consent in Ontario and how often Ontario prosecutes age of consent offences. Mr. Collier sought to explain this research by saying that he was looking for a way to end all communications with the Addy persona. He said that he knew that the email relationship had to end completely, and he was looking for a way to end it on realistic grounds. This contradicted his earlier testimony that while he wanted to avoid meeting, he wanted to continue to receive emails.
40Moreover, after conducting the internet research, purportedly to get information to dampen the Addy persona’s interest in meeting, Mr. Collier continued to discuss the topic of meeting with the Addy persona. When confronted with this, Mr. Collier’s evidence changed again and he said that because the Addy persona seemed so excited about meeting, he thought he would “indulge” her with setting up a “pretend meeting” as he was afraid that the “wonderful gift” of emails would disappear. But that answer contradicted the evidence he had given just moments before that he had been looking up topics such as the age of consent in Ontario in order to end the emails entirely.
41There was another difficulty with Mr. Collier’s claim that he asked for naked photos in part as a way to dissuade the Addy persona from wanting to meet. On May 26, he asked the Addy persona for a picture of her breasts, saying that he would “love” to see her nipples. This was only two days after he started emailing with the Addy persona and before they had discussed meeting. In my view, this undermines his evidence before me.
42Moreover, Mr. Collier’s evidence that he did not want naked photos of the Addy persona and asked for them in part to dissuade her from wanting to meet, is difficult to reconcile with the other email communications Mr. Collier was having around the same time frame. He first asked the Addy persona for photos of her breasts on May 26, 2017. One month earlier, on April 26, 2017, he asked D.D. for topless pictures. He also asked for, and received, sexually explicit photos from S.S. in April and May 2017. Significantly, on June 28, 2017, the day before Mr. Collier was arrested in relation to the Addy persona, Mr. Collier asked T.B. if she had any topless “pics”. At that point in time, however, they had not discussed meeting.
43Mr. Collier also claimed that he asked for naked photos to heighten the dramatic tension in the emails that he viewed as being akin to a screenplay. He also said that he brought up meeting with the Addy persona as a way to heighten the dramatic tension of his “script”. But I have some difficulty reconciling Mr. Collier’s description of his email conversations as screenplays with the actual text of his discussions. Most of his emails were just a few lines. He did not write detailed and elaborate scenarios, rather, his emails were generally just a few sentences, outlining graphic sexual acts. In my view, the basic and simplistic nature of his emails makes it difficult to accept Mr. Collier’s evidence that he believed he was essentially writing a screenplay, not seeking sex.
44Further, Mr. Collier testified that his ads referenced high school girls because he had learned from watching pornography that a classic archetype is the naïve but sexually available young girl and the older male with a big penis. But Mr. Collier, who was 34 years old at the time he was emailing with her, told the Addy persona that he was in his early 20’s. Mr. Collier’s true age would have been far more consistent with the older man/younger girl age role-play he said he was engaging in with the Addy persona. His lie, in which he told the Addy persona that he was a young man in his early 20’s, seems to be more consistent with an effort to entice the 14-year-old Addy persona into a sexual relationship.
45I also had some difficulty with the three reasons advanced by Mr. Collier as to why he believed the Addy persona to be an adult. The first reason was that the Addy persona sent Mr. Collier two photos of the Olympic swimmer Amanda Beard (one that showed her as a teen and one that showed her as a young adult) and said that her father claimed she resembled the swimmer. Mr. Collier testified that he took from the pictures that the Addy persona looked like Ms. Beard. While Mr. Collier did not explicitly say that he believed the Addy persona was over 18 because of the Ms. Beard photos, defence counsel argues that it is reasonable to infer that the photos contributed to his belief. But the Addy persona never said that the pictures depicted her current age, only that her father said she resembled Ms. Beard. There was nothing in the email exchanges that suggested that Mr. Collier believed the Addy persona was over 18 because of the photos. And given that Mr. Collier failed to testify that he drew any inference about the Addy persona’s age from the photos, I cannot accept counsel’s submission that I should nonetheless infer that he did.
46The second reason advanced by Mr. Collier was that the Addy persona sometimes sent emails when a student would be in school. In cross-examination, however, Mr. Collier agreed that he knew that students could have a spare class or skip school. Indeed, the Addy persona even spoke about skipping school to meet Mr. Collier. He also agreed that the Addy persona often emailed at times consistent with when a student would be able to do so.
47The third reason was that the Casual Encounters site was meant to be for adults only. In cross-examination, Mr. Collier clarified that the key reason that he believed the Addy persona to be of legal age was because users had to click on a link saying that they were over 18 to use the Casual Encounters site. He stressed this point repeatedly. In my view, however, there were several problems with his evidence on this point.
48For example, while Mr. Collier initially claimed that he believed that everyone follows rules, he admitted in cross-examination that some people do not. After this admission, he then said that as it relates to the highly sensitive area of sexual matters, he believed that people followed the rules. But he also admitted that he was aware that some individuals under the age of 18 will access adults-only pornography sites. Mr. Collier’s knowledge that some teens would access adults-only pornography sites, makes it difficult to accept that he believed that no teens would access the adults-only Casual Encounters site.
49Moreover, when Mr. Collier was pressed on why he would not confirm that he was actually emailing with an adult engaged in role-play, given that he knew that some teens accessed adults-only pornography sites, he said that he “thought carefully about that” but was embarrassed and afraid that he would “ruin” it if he asked. But, if because of his ASD, Mr. Collier truly believed that everyone follows the rules and thus would follow the age requirement of the site, then there would be no reason for him to think carefully about whether he should ask if he was speaking with a child or an adult.
50Further, Mr. Collier testified that following rules means that people should tell the truth. Yet despite his professed rigid adherence to the rules, he lied to the police. He lied about his email addresses and hid the existence of the other “justmylittlesecret” addresses that he used. He lied and said he was not emailing any girls other than the Addy persona. His lies to the police are inconsistent with his position that his ASD makes him inflexibly follow rules.
51In addition, when speaking with the police after his arrest, Mr. Collier failed to say anything about the need for users to click on a link confirming that they were over 18. Mr. Collier, of course, was not obliged to say anything to the police. He had the right to remain silent and was told so. But Mr. Collier ultimately chose to speak with the police about his interactions with the Addy persona. Yet he neglected to say anything about the age 18 requirement of the site.
52In my view, Mr. Collier’s failure to mention anything to the police about the age requirement on the Casual Encounters site is particularly odd in light of Dr. Glancy’s evidence. Dr. Glancy confirmed that a rigid adherence to rules is a symptom consistent with ASD, but he also said that those with this symptom will often become highly emotional if they believe that a rule that should be followed has been broken. Yet in Mr. Collier’s case, he did not express any anger when the police used a ruse and told him that the Addy persona was actually a young girl. He did not protest that it was unfair for him to be in this predicament because ‘Addy’ had not followed the rules as she was supposed to. He did not fixate on the age rule and his belief that rules are to be followed. This causes me some concern about the credibility of Mr. Collier’s evidence.
53There was another concern I had about Mr. Collier’s evidence. In examination-in-chief Mr. Collier said he was unaware of any other forum where he could have email communications with others. He had looked and there was nothing out there except for Casual Encounters. In cross-examination, however, he admitted that Craigslist also had a forum called “Platonic” where users could engage in email communications with others. Mr. Collier testified that he was interested in philosophy, reading, writing and that he was obsessed with the news. Yet despite these interests, he did not post any ads on the Platonic site to find like-minded people to exchange emails.
54As can be seen from the above, I had numerous concerns regarding Mr. Collier’s evidence. Those concerns were not ameliorated by a consideration of Dr. Glancy’s evidence. Much of Dr. Glancy’s opinion was based on the self-reported and untested assertions of Mr. Collier. Dr. Glancy did not have the opportunity to see Mr. Collier cross-examined. He thus did not consider the numerous inconsistencies and issues in Mr. Collier’s evidence that were exposed through cross-examination.
55Overall, looking at the issues that I have with Mr. Collier’s evidence, I find that I do not believe him. Nor does his evidence leave me with a reasonable doubt. I thus go on to consider whether the Crown has established that Mr. Collier believed the Addy persona to be underage and that he communicated with her or made sexually explicit material available to her in order to facilitate the specified designated offences.
56The Addy persona responded to Mr. Collier’s ad seeking high school girls. As Mr. Collier acknowledged, most high school girls would be under the age of 18. The Addy persona repeatedly held herself out to be 14 years old. The Addy persona spoke about being in grade nine, which would be consistent with her stated age. The Addy persona also spoke about her friends, family, school, and hobbies in a manner consistent with her stated age. Mr. Collier responded throughout as if he were speaking with a 14-year-old girl. When the chats with the Addy persona progressed to talks about meeting, Mr. Collier researched whether it was illegal to talk to teens online, the age of consent in Ontario and how often Ontario prosecuted the age of consent. In my view, the totality of the evidence establishes beyond a reasonable doubt that Mr. Collier believed that the Addy persona was a 14-year-old girl.
57Turning to an assessment of whether the Crown has established that Mr. Collier communicated with the Addy persona, and sent the persona sexually explicit material, in order to facilitate designated offences.
58Defence counsel argues that the email exchanges Mr. Collier had with the Addy persona were so coarse, rude and vulgar, that as a matter of common sense, Mr. Collier could not have believed that he could attract girls with such talk. That is, defence counsel argues that no one could find that Mr. Collier’s purpose was to facilitate a designated offence, because it was so clear that no one would be seduced by his graphic sexual words.
59But in my view, this submission confuses the chance of success, with the hope of success. That is, the question is not whether Mr. Collier would be able to entice a young person into a sexual encounter with his words, but rather, whether his words were meant to entice a young person into a sexual encounter. As noted in Morrison, at para. 40, the child luring provision creates an essentially inchoate offence. It is a preparatory crime that captures conduct intended to culminate in the commission of a completed offence. There is no requirement that the defendant meet or even intend to meet with the other person with a view to committing any of the designated offences. The section seeks to “close the cyberspace door before the predator gets in to prey”: R. v. Legare, 2009 SCC 56, at para. 25.
60Counts 1 and 2 set out the designated offence of make child pornography. Mr. Collier asked the Addy persona to take pictures of her naked breasts and sent her sexually explicit material to encourage her to do so. Looking at the emails in their entirety leaves me with no doubt that he asked for these pictures because he wanted them. This conclusion is further bolstered by the fact that about one month before asking for naked photos from the Addy persona, Mr. Collier both asked for and received pornographic photos purported to be of S.S. Thus, I reject the submission that Mr. Collier was simply engaged in fantasy role-play and did not really want to receive naked photos of the Addy persona. I find that his purpose was to facilitate the offence of making child pornography. As a result, there will be findings of guilt on counts 1 and 2.
61Moreover, Mr. Collier discussed meeting with the Addy persona to have sex. If the Crown establishes beyond a reasonable doubt that he communicated with and sent sexually explicit material to the Addy persona for the purpose of facilitating such a sexual encounter, that would ground a finding of guilt with respect to all of the remaining counts, which set out the designated offences of sexual assault, sexual interference, invitation to sexual touching and indecent exposure.
62In my view, the tenor and content of the email conversations make clear that meeting with the Addy persona to have sex was not a fantasy for Mr. Collier, but a goal. Mr. Collier asked the Addy persona to touch him sexually. He told her to touch herself and others sexually. He sent her photos of his penis and pornography while discussing the sexual things he wanted to do to and with her. He spoke about meeting with her to take her virginity. He discussed various meeting spots, such as the Eaton Centre. And of import, while Mr. Collier was discussing meeting with the 14-year-old Addy persona to have sex with her, he was also researching how often Ontario prosecutes people for engaging in sexual contact with those who, because of their age, cannot legally consent.
63Looking at the evidence in its totality, it is clear to me that Mr. Collier wanted to have sex with the 14-year-old Addy persona (who could not legally consent because her age), that he wanted to touch her sexually and have her touch him sexually, and that he wanted to show her his penis for a sexual purpose. That is, I am satisfied beyond a reasonable doubt that Mr. Collier communicated with and sent sexually explicit material to the Addy persona to facilitate the designated offences of sexual assault, sexual interference, invitation to sexual touching and indecent exposure. As a result, there will be findings of guilt with respect to the remaining counts.
64Given the overlap between some of the counts, I will hear submissions from counsel on the application of R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729 at the appropriate time.
65In light of the findings of guilt I have made on each of the counts in the Indictment, it is not strictly necessary for me to consider whether each of the counts could also be made out with respect to the other individuals with whom Mr. Collier was emailing who held themselves out to be underage. That said, whether the Crown could establish that Mr. Collier also committed offences in relation to these individuals will be a factor to consider when determining an appropriate sentence. As a result, I will briefly consider whether a case has been made out with respect to the others.
Has the Crown proven beyond a reasonable doubt that Mr. Collier also committed offences in relation to the other six individuals with whom he was exchanging emails?
66Between April 11, 2017 and June 29, 2017, Mr. Collier was also emailing with six other individuals who held themselves out to be underage girls. These individuals have never been found. While the Crown argues that based on the emails it is clear that they were in fact underage girls, she does not ask me to make this finding. Rather, she asks me to find beyond a reasonable doubt that Mr. Collier believed them to be underage.
67Mr. Collier testified that he believed these individuals to be over 18 for the same reasons that he thought that the Addy persona was over 18 -- the Casual Encounters section required users to click a link attesting that they were over 18. He said he believed that he was speaking with adults who wanted to engage in role-play. His purpose was to have some human contact by entertaining others with emails that were akin to a “screenplay”. As noted above, however, I do not believe Mr. Collier’s evidence, nor does it leave me with a reasonable doubt.
68The Crown argues that she has made out a case with respect to each of the other six individuals with whom Mr. Collier was exchanging emails. Defence counsel counters with similar submissions to those advanced in relation to the Addy persona. That is, defence counsel argues that the emails drafted by Mr. Collier were so vulgar and coarse, that it is clear that no one could be seduced by them. Thus, no one could seriously find that Mr. Collier’s purpose was to facilitate a designated offence. However, as I have noted above, in my view this submission confuses the chance of success with the hope of success.
69Clearly, Mr. Collier achieved more success in some of his email exchanges with these six individuals than with others. As I will detail below, some of the individuals only emailed with Mr. Collier for a short time. Some stopped communicating with him after he sent them photos of his penis. Others engaged in graphic email communications with him over a lengthy period of time. One individual sent him pornographic photos purporting to be of her. But the question is not how far Mr. Collier got in his email exchanges, instead, the question is what his purpose was in communicating with and sending sexually explicit material to these individuals.
70I turn now to a brief analysis with respect to each of the six individuals that Mr. Collier was exchanging emails with.
71S.S. responded to ads with the subject “Highschool” and “hs girl”. She told Mr. Collier she was in grade 10. She told Mr. Collier in one exchange that she was 15 and in another that she was 16. S.S. sent Mr. Collier photos of a girl consistent with that age range. There was nothing about the content or context of the emails Mr. Collier exchanged with S.S. to suggest that she was an adult. Given that S.S. gave two ages, I am unable to find that Mr. Collier believed her to be under 16. However, looking at the numerous email exchanges between the two, and the photographs S.S. sent to Mr. Collier that she claimed were of her, in my view the Crown has established beyond a reasonable doubt that Mr. Collier believed her to be under the age of 18.
72Mr. Collier had numerous highly sexualized email exchanges with S.S. Mr. Collier sent S.S. pictures of his penis. She sent him pornographic photos that she said were of her. Mr. Collier asked S.S. to take photos in certain poses and she complied. At one point, when Mr. Collier said he was picturing S.S. in a certain pose, she said “hold on that hard to take. Lol, I try” and then sent him a photo depicting what he had just described. After she did so, he asked if she had ever taken pictures when she was younger. He spoke about her visiting the city so he could have sex with her. Considering the email exchanges in their entirety, I am satisfied beyond a reasonable doubt that Mr. Collier’s purpose in communicating with and sending sexually explicit material to S.S. was for the purpose of facilitating the designated offence of make child pornography. The other offences only apply to individuals under the age of 16, and thus do not apply to S.S. given my findings about Mr. Collier’s belief in her age.
73D.D. responded to an ad posted by Mr. Collier with the subject, “hung for high school girl -m4w (near downtown)”. D.D. told Mr. Collier that she was 14 years old and in grade 9. D.D. never said anything to suggest that she was an adult engaged in role-play and Mr. Collier never said anything to suggest that he believed her to be an adult. D.D. sent Mr. Collier a “selfie” photo consistent with her stated age. Based on the totality of the evidence, I find that the Crown has established beyond a reasonable doubt that Mr. Collier believed D.D. to be under the age of 16.
74Mr. Collier engaged in highly sexualized conversations with D.D. He sent her photos of his erect penis and asked her to send photos of her naked breasts. He asked her where she was in the city and talked about meeting her to have sex at the Eaton Centre. It seems that D.D. had an ulterior motive in chatting with Mr. Collier, in that she wanted him to buy her lingerie. But the fact that D.D. may have been trying to use Mr. Collier to buy her things would not excuse Mr. Collier if he had a criminal purpose in emailing with D.D. And looking at their email exchanges in totality, I am satisfied beyond a reasonable doubt that Mr. Collier communicated with and sent sexually explicit material to D.D. for the purposes of facilitating the offences of make child pornography, sexual assault, sexual interference, invitation to sexual touching and indecent exposure.
75J.D. responded to an ad posted by Mr. Collier with the subject, “hung for high school girl- m4w”. J.D. initially told Mr. Collier she was 16 years old and a virgin. In later discussions, when J.D. expressed some fear or reluctance about the sexual things Mr. Collier was suggesting, he asked her “how old are you? be honest”. J.D. then told Mr. Collier she was only 15. Following that age disclosure, Mr. Collier continued to have sexualized conversations with J.D. Given that J.D. provided two ages, I am unable to find beyond a reasonable doubt that Mr. Collier believed her to be under the age of 16. However, the totality of the email exchanges satisfies me beyond a reasonable doubt that he believed her to be under the age of 18.
76Mr. Collier had highly sexualized conversations with J.D. He asked her to send “pics”. Mr. Collier discussed taking her virginity, saying “we can go slow”. He canvassed if she was in the downtown area of the city and told her he lived close to Kensington market. After Mr. Collier sent J.D. a photo of his erect penis, she stopped responding to his emails. Based on the email exchanges, I am satisfied beyond a reasonable doubt that Mr. Collier communicated with and sent sexually explicit material to J.D. for the purpose of facilitating the offence of make child pornography.
77S.C. responded to an ad posted by Mr. Collier with the subject, “Handsome, hung for high school girl – m4w”. She told him she was 17 years old. At no point in the email exchanges did S.C. respond as if she were an adult and Mr. Collier never indicated in any way that he believed her to be an adult. Based on the email exchanges, I am satisfied beyond a reasonable doubt that Mr. Collier believed S.C. to be under the age of 18.
78Mr. Collier had sexualized email conversations with S.C. He asked her for “pics”. He then sent her a photo of his erect penis and asked if she could “hookup?” After that, S.C. stopped responding to his emails. Based on the email exchanges, I am satisfied beyond a reasonable doubt that Mr. Collier communicated with and sent sexually explicit material to S.C. for the purpose of facilitating the offence of make child pornography.
79T.B. also engaged in email conversations with Mr. Collier. T.B. told Mr. Collier that she was “turning 14”. Mr. Collier laughed at that and responded, “and you’re going on craigslist already?” When Mr. Collier asked for “pics”, T.B. sent a number of “selfie” photos that showed a girl consistent with T.B.’s stated age. When he asked for photos of her friends as well, T.B. sent Mr. Collier photos of the same girl with other young girls. Based on the email exchanges, in my view the Crown has established beyond a reasonable doubt that Mr. Collier believed T.B. to be under the age of 16.
80Mr. Collier had highly sexualized email conversations with T.B. He asked T.B. if she would meet him and asked where she was in the city. He discussed the sexual things he wanted her to do to him and that he wanted to do to her. While he did not send her any photos of his penis, I agree with the Crown that what Mr. Collier wrote to T.B. can be viewed as sexually explicit material. Looking at their email exchanges in totality, I am satisfied beyond a reasonable doubt that Mr. Collier communicated with and sent sexually explicit material to T.B. for the purpose of facilitating the offences of make child pornography, sexual assault, sexual interference, invitation to sexual touching and indecent exposure.
81J. responded to an ad with the subject “interested”. She told Mr. Collier she was 17 years old and hoping to lose her virginity. There was nothing in the emails from J. that suggested she was an adult and Mr. Collier never said anything to suggest that he thought she was an adult. Looking at the entire email exchanges between J. and Mr. Collier, I am satisfied beyond a reasonable doubt that he believed her to be under the age of 18.
82Mr. Collier also had sexualized email conversations with J. He asked her if she had performed fellatio before and if she had any “pics”. Mr. Collier sent her pictures of his erect penis and asked her where she was in the city. Based on the email exchanges, I am satisfied beyond a reasonable doubt that Mr. Collier communicated with and sent sexually explicit material to J. for the purpose of facilitating the offence of make child pornography.
Conclusion
83For the reasons set out above, there will be findings of guilt with respect to counts 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, and 14.
Justice Heather McArthur
Date: December 5, 2019
