ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-19-50000447

DATE: 20210419

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MIKAIL MOOLLA

Defendant

Katherine Rogozinski, Counsel for the Crown

Simon King, Counsel for the Defence

HEARD: March 23-24, 26, 29 and 30, 2021

M.A. CODE J.

REASONS FOR JUDGeMENT

A. OVERVIEW

[1] The accused Mikail Moolla is charged in a three-count Indictment with child luring (contrary to s. 172.1(2)a), making sexually explicit material available to a child (contrary to s. 171.1(2)a), and breach of probation by failing to keep the peace and be of good behaviour (contrary to s. 733.1(1)).

[2] Moolla elected trial by judge alone and consented to proceeding virtually over Zoom, rather than attending at the Court House during the Covid-19 pandemic. There were some difficulties with the Zoom hearing facilities at Maplehurst C.I., where the accused is in custody. These difficulties were remedied sufficiently by March 24, 2021 and the Crown called its entire case in that one day. There were further difficulties on March 26, 2021, as the accused was not feeling well. The matter did not proceed that day, in order to allow Moolla to be assessed by medical staff. On March 29, 2021, he was feeling much better and he testified during most of the day as the only defence witness. On March 30, 2021, I heard closing argument from counsel and reserved judgement until April 1, 2021. These are my Reasons for Judgement.

[3] I wish to thank both counsel, at the outset, for the very effective and responsible way in which they conducted the trial.

B. FACTS

[4] At the opening of trial, counsel tendered an Agreed Statement of Fact admitting the following:

• that Moolla was the person who was communicating with the undercover police officer, over email initially and then over Kik messaging;

• that Moolla’s oral utterance and his formal statement to the police upon arrest were made voluntarily; and

• that Moolla was bound by a probation order at the time of the alleged offences in November 2017 and the probation order required him to keep the peace and be of good behaviour.

[5] A great deal of documentary evidence was tendered by the Crown through its three witnesses. The undercover officer, Detective Sabadin, responded to an ad on Craigslist that was admittedly posted by the accused Moolla. It was titled “Sweet 16 to Nasty 19” and stated the following:

“Looking for some hot young girls who like to play with men a little older. Virgin or not, I want you. I want to have sex with you … No condoms, no pulling out. Discreet a must.

Must be at least 16 and at most 19, clean, disease free, and open to fucking raw … petite, not on birth control. Don’t be shy! Come out, come out wherever you are!

Send me your full stats, your pics, and your location. No time wasters, BBWs, or trans, please. Must be able to verify that you’re real.

Do not contact me with unsolicited services or offers.”

I have omitted some of the more sexually explicit parts of the above Craigslist ad.

[6] When Detective Sabadin responded by email, which he stored in Outlook, a large number of email messages ensued between Moolla and Sabadin (who was posing as “Addison Williams,” a 14-year-old girl). These emails are found in 18 pages of documentary records (in Exhibit 2A), beginning at 7:38 a.m. on November 15, 2017 and ending at 9:42 a.m. that same day. At this point, after two hours of exchanging emails, the two parties agreed to carry on their conversation over an application known as Kik messages. These further messages between Moolla and Sabadin (still posing as the 14-year-old girl named “Addison”) are found in 161 pages of documentary records (in Exhibit 3), beginning at 9:35 a.m. on November 15, 2017 and ending at 8:37 a.m. on November 17, 2017 when Moolla was arrested. The arrest occurred as Moolla and the alleged 14-year-old girl were about to meet for the first time near his residence in Toronto.

[7] The police executed a search warrant on Moolla’s apartment, shortly after his arrest, and seized his computer. They also seized his cell phone, which he was using at the time of his arrest. A technology expert, Det. Cst. Saini, searched the computer and the cell phone pursuant to a search warrant. As a result, another lengthy document was generated setting out Moolla’s internet browsing and Google searching history over the three days when he was communicating with the alleged 14-year-old girl. Det. Cst. Saini’s Extraction Report from these two devices (Exhibit 5) sets out the chronology and the nature of Moolla’s internet browsing and Google searches, together with the Kik messages, so that the timing and inter-relationship of these activities can be appreciated.

[8] Upon arrest, Moolla asked Det. Cst. Mailer “was she real?” Det. Cst. Mailer believed that he replied, “yes.”

[9] In the above brief outline of the Crown’s evidence, I have not summarized the detailed content of the extensive documentary evidence. That is because the issues in this case are narrow and focused. In the accused’s testimony, and in defence counsel’s closing argument, the substance of the Crown’s evidence was not disputed. In particular, it was accepted that Moolla’s interlocutor repeatedly stated and implied that she was only 14 years old, that she was sexually inexperienced, and that she was hoping Moolla would “teach” her about sexual matters. It was also accepted that Moolla responded positively to these representations, stating immediately that he would be a “patient teacher,” expressing no concerns or questions about her age, and engaging in graphic descriptions of the sexual activities that he was planning with her. After two full days of these online discussions, Moolla and “Addison” agreed to meet at his residence. When “Addison” arrived nearby and claimed in a message to be lost, Moolla exited his residence in order to meet “Addison” at a nearby café. At this point, Moolla was arrested. I will refer to the contents of the messages exchanged between Moolla and “Addison” in some further detail below, when analysing the elements of the offences charged.

[10] In his testimony, Moolla did not dispute the self-evident content of the above-summarized conversations that he had with “Addison” during the three days in November 2017. He repeatedly and consistently raised only one issue about their conversation, namely, his belief that they were both “trolling.” He explained that “trolling” is a common internet phenomenon, also known as “catfishing.” It means that an interlocutor is pretending to be someone else, such as by assuming a false identity or false status, in order to bait or harm or embarrass the other party to the conversation. Moolla’s initial ad on Craigslist was not “trolling” as he genuinely was seeking out someone age 16 to 19, which is his preferred age range for sexual partners. He is 35 years old. When his interlocutor responded, stating in her second email (at 7:47 a.m. on the first day of their conversation) that she was only 14 years old, he testified that he knew “right away this is a troll.” His immediate response at 7:48 a.m., stating “Nice! Got any pics of yourself,” was him “starting to troll back.” From this point onwards, he believed that the entire conversation involved both parties engaging in “trolling” in all of their messages. “Addison” was pretending to be a 14-year-old interested in sex with a more experienced older man and Moolla was pretending to be interested in sex with a 14-year-old. In fact, he was sure that “Addison” was at least 18 years old. Furthermore, he had no interest in sex with a 14-year-old. He testified that children make him uncomfortable and that he is not sexually attracted to 14- and 15-year olds. I will make further reference below to some of the details of Moolla’s testimony, when assessing his credibility.

C. ANALYSIS

[11] The parties agree that the verdict on Count 3, charging breach of probation, will be determined by the result on Counts 1 and 2. If Moolla is convicted on either Count 1 or 2, he must be convicted on Count 3. If Moolla is acquitted on both Counts 1 and 2, he must be acquitted on Count 3.

[12] The parties also agree that the one unique element in the Count 2 offence (charging the offence of making sexually explicit material available to a child, contrary to s. 171.1) is clearly made out. In this regard, there is no doubt that Moolla sent “Addison” a photograph of a penis and he sent numerous messages graphically describing their anticipated sexual activity. These communications admittedly satisfy the statutory definition of “sexually explicit material” found in s. 171.1(5). As a result, the only disputed elements in Count 2 are ones that completely overlap with Count 1, namely, knowledge or belief that the interlocutor is under age 16 and “the purpose of facilitating” certain sexual offences.

[13] The result in the case, therefore, turns entirely on my analysis of the Count 1 offence of child luring, contrary to s. 172.1. The law is now settled as to the elements of this offence, in cases like the present one, where the interlocutor is not a child under the age of 16 but is a police officer pretending to be a child under the age of 16. The Crown must prove three elements beyond reasonable doubt, as follows:

• first, an intentional communication by means of “telecommunication;”

• second, with a person who the accused knows or believes to be under age 16; and

• third, for the specific purpose of “facilitating” the commission of one of the designated offences in s. 172.1(1)b (for example, sexual interference or sexual assault).

See: R. v. Legare (2009), 2009 SCC 56, 249 C.C.C. (3d) 129 at para. 36; R. v. Morrison (2019), 2019 SCC 15, 375 C.C.C. (3d) 153 at para. 43 (S.C.C.); R. v. McSween (2020), 2020 ONCA 343, 388 C.C.C. (3d) 153 at para. 103 (Ont. C.A.).

[14] The first element is admitted. The statutory term “telecommunication” is defined in s. 35 of the Interpretation Act and it includes the means of communication and devices used in the present case. Moolla’s numerous communications with “Addison” over these devices were undoubtedly deliberate. As a result, the only elements in dispute are the second element (knowledge or belief as to “Addison’s” age) and the third element (specific intent to “facilitate” certain sexual offences with “Addison”). Both of these elements require an assessment of Moolla’s credibility because he denied them in his testimony, asserting that he believed “Addison” was age 18 or over, and that his purpose/intent was only to engage in internet “trolling” and not to “facilitate” sexual activity with “Addison.” In assessing Moolla’s credibility, the well-known principles in R. v. D.W. (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.) must be applied. My understanding of those principles is set out in R. v. Edwards (2012), 2012 ONSC 3373, 93 C.R. (6th) 387 (Ont. S.C.J.) and in R. v. Thomas 2012 ONSC 6653, [2012] O.J. No. 5692 (S.C.J.), which I will not repeat in these Reasons. I note that the analysis of D.W. in R. v. Edwards, supra was adopted by the dissent in R. v. Hogg (2013), 2013 PECA 11, 300 C.C.C. (3d) 435 at paras. 131-144 (P.E.I. C.A.). On further appeal, the Supreme Court of Canada agreed with the dissent. See: R. v. Hogg (2014), 2014 SCC 18, 309 C.C.C. (3d) 178 (S.C.C.). Also see: R. v. Vuradin (2013), 2013 SCC 38, 298 C.C.C. (3d) 139 (S.C.C.).

[15] Beginning with the second element, namely, whether Moolla’s state of knowledge or belief was that “Addison” was age 14, the Crown’s evidence standing alone is strong and compelling. Mr. King, counsel for Moolla, frankly conceded this. The credibility of Moolla’s contrary account – that he believed her to be age 18 – must be assessed in the context of all the evidence, including the Crown’s contrary evidence. The Crown’s more important evidence on this point can be summarized as follows:

• on five separate occasions during their lengthy conversation, “Addison” expressly stated that she was only 14 years old. Moolla consistently and repeatedly responded in a manner indicating that he understood and accepted her stated age and lack of experience. The last of these five exchanges captures their tone and content. After Moolla had referred to himself as a “gentleman pervert,” “Addison” replied, “I just don’t want to disappoint. I’m mature but I’m still only 14, just don’t have experience like most of the girls you probably date. Please just be patient with me.” Moolla replied, “It’s your first time. Don’t sweat it. Even if it was disappointing there is always experience and room to improve … You’re a very sweet and very dirty girl. I like dat,” followed by an emoji blowing a kiss;

• after three of the above references to being only age 14, “Addison” expressly asked Moolla, “I just don’t want to make plans if your not okay with my age.” He replied, “I’m perfectly fine with you and your age” [emphasis added];

• shortly after the above exchange, Moolla asked “You in high school or middle school?” [emphasis added]. This reference to “middle school” indicates Moolla’s appreciation of her young age. “Addison” replied, “I’m in grade 9,” consistent with her stated age of 14. What ensued in their lengthy conversation was repeated references to her school commitments and activities, all consistent with her young age;

• the language used by “Addison,” the topics “she” discussed, and the attitudes and states of mind “she” expressed were all consistent with a young, inexperienced, and often naïve girl. In particular, she repeatedly referred to or implied her lack of sexual experience and her mother’s degree of supervision and oversight of her daily life (for example, stating “Mom shuts down electronics at 8:30”);

• Moolla repeatedly and consistently recognized the reality that “Addison” was to some degree under her mother’s control, for example, stating “I don’t want you in trouble … When you’re not with Mom, let me know;” and

• once they began planning to meet, Moolla took significant precautions to ensure their proposed meeting would be secret. In particular, he took the following steps: he asked “Addison” not to tell her best friend “Kate” that they were meeting; in reference to meeting at his apartment, he said, “I would want to sneak you in … there is security cameras … No cameras in the stairs or hallway … Meet near my place, then sneak you in;” he later said, “I also had thoughts of smuggling you in a duffle bag. Bring you up to my place in it … Then we have fun, then I bring you back out” (there also appear to be internet searches related to this topic); when discussing the possibility of meeting at a hotel, Moolla stated “Place must be safe for both of us … We could pretend that we don’t know each other … To cover our asses. Then you can sneak out, retracing your steps as cover” [emphasis added]; and finally, when they agreed to meet at his apartment, Moolla directed “Addison” (once “she” had allegedly arrived nearby) to “the back entrance” and warned that “There is a camera on the ground floor. All other floors are safe. Guard is not at his post either.”

[16] The logical common sense inference from the above body of evidence is that Moolla believed and accepted that “Addison” was age 14. See: R. v. Morrison, supra at paras. 69-70. However, the Crown’s evidence does not stand alone. It has to be assessed in the context of the accused’s testimony denying any such belief. This task is somewhat complicated by s. 172.1(4), which sets out the statutory requirement that an accused’s belief that his interlocutor “was at least” the requisite legal age must be based on “reasonable steps to ascertain the age of the person.” The Court in R. v. Morrison, supra at paras. 82-3, made it clear that s. 172.1(4) enacts an “affirmative defence” and the accused’s failure to take “reasonable steps” does not “relieve the Crown of its ultimate burden of proving beyond a reasonable doubt that the accused believed the other person was underage.”

[17] In the present case, counsel for Moolla concedes, correctly in my view, that Moolla did not take any “reasonable steps.” Rather Moolla’s testimony is that he simply assumed, based on his prior experience with the internet, that anyone who responds to his ads and states they are only 14 and are interested in sex with him, must be a “troll” and must be at least age 18. He never took any steps to inquire about “Addison’s” actual age, let alone “reasonable steps,” and he acknowledged that his assumptions about “trolls” on the internet were merely “speculation,” and that there is “always a 50% chance they [the assumed troll] are real.” As a matter of law, the Supreme Court has held that assumptions about the unreliability of the internet cannot amount to s. 172.1(3) “evidence to the contrary.” See: R. v. Morrison, supra at para. 61 where Moldaver J. stated:

I pause to note that “evidence to the contrary” under subs. (3) would not include the inherent unreliability of representations made over the Internet; it refers instead to evidence which is specific to the particular circumstances of the accused and indicates that he or she did not believe the other person was underage. As Fish J. noted in Levigne, “evidence to the contrary” must include steps to ascertain the other person’s age: para. 32(2). Further, if “evidence to the contrary” were to be read so broadly as to include the dubious nature of Internet communications or other forms of telecommunication, then the presumption would be rendered meaningless. Since an offence under s. 172.1 necessarily includes some form of telecommunication, the Crown would never be able to rely on the presumption because there would always be some evidence to the contrary. In my view, this was plainly not Parliament’s intent. [italics of Moldaver J., underlining added for emphasis].

[18] By a parity of reasoning, if the inherent unreliability of the internet and its phenomenon of “trolling” could amount to s. 172.1(4) “reasonable steps,” then this affirmative defence would be available in all cases involving “telecommunications” over the internet. In addition, in this particular case the accused had placed an ad on Craigslist seeking a sexual partner “at least 16 and at most 19.” The consistent response that came back from “Addison” was that “she” was only age 14. The initial parameters of Moolla’s ad could no longer be relied on as a “reasonable step” in the face of these repeated “red flags,” as Moldaver J. explained in R. v. Morrison, supra at para. 108:

Relatedly, if the accused takes some initial steps that could reasonably support a belief that the other person is of legal age, but “red flags” are subsequently raised suggesting he or she may not be, then the accused may be required to take additional steps to ascertain the other person’s age: see Dragos, at paras. 62-64 and 66. If the accused takes no such additional steps, then he or she may be found not to have satisfied the reasonable steps requirement. The requirement is thus an ongoing one. [Emphasis added].

[19] For all the above reasons, the affirmative defence of reasonable belief that “Addison” was age 16 or more is not available to the accused. There is simply no “air of reality” to the defence, as explained in R. v. Morrison, supra at paras. 118-120. However, the far more fundamental issue in this case is the credibility of Moolla’s asserted defence that he believed he and “Addison” were engaged in mutual or reciprocal “trolling,” that is, assuming false identities or a false status in order to achieve some malicious or deceptive purpose. The more important factors relating to the credibility of this account are the following:

• first, Moolla has a not insignificant criminal record that has some relevance to his credibility;

• second, Moolla’s demeanour or manner as a witness was often evasive, argumentative, hesitant, or defensive. This manner of testifying also has some relevance to his credibility;

• third, and more importantly, the internal content of his testimony in relation to his asserted defence was often inconsistent, incoherent, or contradictory. I will set out a number of examples of this kind of testimony. He testified that when someone answers one of his ads and says that they are only 14, he immediately believes they are a “troll” and he asks for their phone number as a verification test. He explained that “trolls” never give out their real phone number, whereas someone who was actually 14 and was not a “troll” could give out their phone number, and so “every time I get a phone number I stop the conversation and move on.” He never proceeded to use this verification test in the present case, contrary to his evidence that it was his invariable practise. He also testified that “trolls” usually do not have “good intentions.” They can even be “malicious” and can actually “harm” their interlocutor. As a result, when he is “trolling” back, as in the present case, he never uses the name or address of some innocent third party as his own assumed identity. This invariable practise protects innocent third parties from being harmed by a “troll.” In this case, he immediately suspected that “Addison” was a malicious “troll” because “she” asked if “you live alone,” causing him to believe that this “troll” could be setting up “a robbery or something malicious.” In spite of this claimed belief, he gave “Addison” his real name, real address, and real photograph. In cross-examination, a number of further examples of this kind of testimony emerged. He initially testified that he believed “Addison” was at least 18 but that it was “iffy” and he “could have been wrong.” He then reversed this testimony and asserted that he was “100% sure” that she was at least 18. Also in cross-examination, he initially testified that he did not know whether “Addison” was “real or not.” He then withdrew this testimony, stating that he “misspoke.” He also agreed, in cross-examination, that his Craigslist ad tried to warn off “trolls” by stating, “No time wasters” and “Must be able to verify that you’re real.” In spite of this warning, he spent many hours chatting with “Addison” who he believed to be a “troll.” Finally, towards the end of cross-examination, Moolla gave a series of convoluted and contradictory answers about why he arranged to meet with “Addison” on the morning of November 17, 2017, in spite of believing that “she” was a “troll.” His initial answer was that he knew no one would come to his apartment because “trolls never show up at my apartment.” He then testified that he was, in fact, anticipating confronting the “troll” at the coffee shop but he believed “she” would never come at all. He was then reminded that he had done a Google search at 3:31 a.m. that morning for “the beaches to 5 marine parade drive” (that is, from her alleged home in the Beaches neighbourhood to his apartment on Marine Parade Drive) and that he had sent “her” a message at 7:02 a.m. telling her that it should take “an hour and 20 minutes” to reach his apartment. In light of this Google search and message, he testified that he was actually “excited” about meeting this “troll” who said that “she” was 14 years old. He then withdrew this evidence. He testified that he “misspoke,” that he did not expect the “troll” to show up, that it could have been the police, and that he went out to meet this person anticipating that the person would not show up. In the end, he testified that he did not know why he went out of his apartment to meet “Addison” on the morning of November 17, 2017;

• fourth, Moolla’s own admitted conduct contradicts his testimony that he was just engaged in “trolling.” In particular, it is significant that Moolla gave “Addison” his real name, his real email address, two real photographs, and his real home address. None of this is consistent with “trolling.” Moolla was never able to rationally or coherently explain why he would not have made up a fictitious name, a fictitious address, and a fictitious “photo-shopped” photograph (as “Addison” did) if he was actually “trolling.” Similarly, Moolla was never able to explain rationally or coherently why he would meet with a “troll” at his own home. Finally, Moolla’s internet activity infers that he was genuinely interested in meeting and having sexual relations with this 14-year-old on November 17, 2017. His “web history” at the time revealed the following: a search on November 15, 2017 titled, “A 13 year old girl is not ‘All Grown Up’ … the sexualization of child actresses …”; a Google search on November 15, 2017 on the subject of “ovulation” (when discussing having intercourse with “Addison” without a condom); a YouTube video that he apparently watched on November 15, 2017 titled “12 year old and dances to wiggle;” numerous searches on November 15, 2017 for Toronto hotels (when discussing meeting with “Addison” at a hotel); a number of searches on November 16, 2017 titled “shoppers drug mart plan b,” “Emergency contraception,” “Contraception,” and “Plan B” (when discussing these matters with “Addison” as means of avoiding pregnancy); a Google search titled “twerking 14” followed by a YouTube video that he apparently watched on November 16, 2017 titled, “14 year old Twerking;” and a Google search on November 15, 2017 titled, “dancing umbrella lolita;” and

• fifth, the compelling Crown evidence (summarized above in six bullet points at para. 15), inferring that Moolla believed “Addison” was 14 years old and that he was actively engaged in trying to arrange sexual relations with her. This body of Crown evidence is also relevant to the credibility of Moolla’s contrary account. As Doherty J.A. explained in R. v. J.J.R.D. (2006), 2006 40088 (ON CA), 215 C.C.C. (3d) 252 at para. 53 (Ont. C.A.):

An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence.

Also see: R. v. R.E.M. (2008), 2008 SCC 51, 235 C.C.C. (3d) 290 at para. 66 (S.C.C.); R. v. Hansen (2018), 2018 ONCA 46, 140 O.R. (3d) 209 at para. 34 (C.A.)

[20] Taking all five of the above considerations into account, in their totality, I am satisfied that the accused’s assertion that he was engaged in “trolling” with another 18-year-old “troll” should be completely rejected. It is simply not credible and it does not raise a reasonable doubt in relation to the second element, namely, whether the accused believed that his interlocutor was under age 16.

[21] Having completely rejected the defence evidence in relation to the second element, and pursuant to the principles set out in W.D., the Crown’s case in relation to proof of this element still has to be assessed. As Moldaver J. explained in R. v. Morrison, supra at para. 121:

Where the accused has failed to point to any steps capable of amounting to reasonable steps in the circumstances, this may be a good indication that the accused believed the other person was underage or was wilfully blind as to whether the other person was underage. However, even if the defence lacks an air of reality, this is not necessarily determinative of the accused’s belief. The Crown continues to bear the burden of proving beyond a reasonable doubt that the accused believed the other person was underage. Where the defence is unavailable, even though the trier of fact will be precluded from considering the defence, the evidence as a whole may leave gaps or weaknesses in the Crown’s case that could give rise to a reasonable doubt as to whether the Crown has met its burden of showing that the accused believed the other person was underage.

[22] I have already summarized the more important aspects of the Crown evidence relating to the second element of knowledge (in the six bullet points set out above at para. 15). The only logical inference that emerges from that body of evidence is that the accused believed “Addison” to be 14 years old and that he wished to have sexual relations with “her.” I am satisfied that the Crown has proved the second element beyond reasonable doubt.

[23] The third element requires proof that the accused’s “purpose” was to “facilitate” one of the designated offences (in this case, sexual assault or sexual interference in relation to a 14-year-old who was not legally capable of consenting). The meaning of this third element is helpfully set out in R. v. Legare, supra at paras. 28-35, where Fish J. held that “facilitating includes helping to bring about and making easier or probable – for example, by luring or grooming young persons to commit or participate in the prohibited conduct” and that “the intention of the accused must be determined subjectively.” Fish J. adopted the reasons of Doherty J.A. in R. v. Alicandro (2009), 2009 ONCA 133, 246 C.C.C. (3d) 1 at para. 31 (Ont. C.A.), holding that the Crown must prove that the accused “engaged in the prohibited communication with the specific intent of facilitating the commission of one of the designated offences.” Also see: R. v. Morrison, supra at para. 40.

[24] I agree with Mr. King’s submission, on behalf of the accused, that if Moolla’s evidence is believed, or if it raises a reasonable doubt, to the effect that he was engaged in “trolling” and had no intention of actually arranging or trying to set up a sexual encounter with a 14-year-old girl, then the Crown would not have proved this third element. In addition, I agree with Mr. King that “trolling” on the internet is undoubtedly a modern reality. See, e.g. R. v. Morrison, supra at para. 58. However, that is simply not what was happening in this case. For the reasons already set out above, I am satisfied that Moolla’s account in this regard is not credible. It must be completely rejected and it does not raise a reasonable doubt, on the basis of the totality of the five considerations already summarized above at para. 19.

[25] Once Moolla’s exculpatory account is set aside, the Crown’s evidence is overwhelming to the effect that Moolla was planning and arranging a sexual encounter with “Addison,” by way of repeated communications with “her,” and that he knew her to be age 14 (and therefore, incapable of consenting). His messages arranging this encounter prove a clear “purpose” of “facilitating” the offences of sexual assault and sexual interference, as explained by Fish J. in R. v. Legare, supra. I am satisfied that the Crown has proved the third and last element beyond reasonable doubt.

D. CONCLUSION

[26] For all the reasons set out above, I am satisfied that the three offences of child luring, making sexually explicit material available to a child, and breach of probation have been proved beyond reasonable doubt. Accordingly, the accused will be found guilty on Counts 1, 2 and 3.

M.A. Code J.

Date of Judgement: April 1, 2021

Released: April 19, 2021

COURT FILE NO.: CR-19-50000447

DATE: 20210419

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

MIKAIL MOOLLA

REASONS FOR JUDGeMENT

M.A. Code J.

Date of Judgement: April 1, 2021

Released: April 19, 2021