COURT FILE NO.: CR-19-206
DATE: 20210115
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Mr. G. Brotherston, for the Crown
- and -
CURTIS ALTMAN
Ms. A. Shahabi, for Curtis Altman
HEARD: November 30, December 1, 2, 2020 at Owen Sound and January 11, 2021 by videoconference.
REASONS FOR JUDGMENT
Justice F. Dawson
OVERVIEW
[1] Curtis Altman is charged with four offences of a sexual nature in relation to a young female, M.C., whom he met on Facebook.
[2] Count 1 alleges that on or about December 24, 2018 he transmitted a picture of his genitals to M.C., a person whom he knew was under the age of 16, for the purpose of facilitating an offence of sexual interference in relation to her, contrary to s. 171.1(1)(b) of the Criminal Code. While count 1 is awkwardly worded, I confirmed with counsel on January 11, 2021 that this was how all parties had always understood the count.
[3] Count 2 alleges that, during the same time period, he communicated by means of telecommunication with M.C., whom he knew to be under the age of 16, for the purpose of facilitating the commission of offences of sexual interference and sexual assault in relation to her, contrary to s. 172.1(1)(b) of the Criminal Code. Counts 1 and 2 may be referred to as the internet luring offences.
[4] As amended, counts 3 and 4 of the indictment allege that the accused committed the offences of sexual assault and sexual interference in relation to M.C. between December 24 and December 29, 2018. These substantive offences are based on the allegation made by M.C. that the accused had sexual intercourse with her two or three times during two visits she made to his home. Based on my assessment of the evidence, the first visit commenced late on December 25, 2018 and continued into the daylight hours on December 26, 2018. The second visit occurred on December 29, 2018 in the early morning hours and continued until the police attended at the accused’s home and apprehended M.C. as a runaway.
[5] At the time of the alleged offences the accused was 18 years of age, being a few months past his 18th birthday. M.C. was 13 years of age and it is common ground that the accused was aware of that. This case is unlike many cases of alleged internet luring as, despite a significant age difference between them, the complainant and the accused were both teenagers. They lived in two different small towns in rural Ontario. The evidence shows that M.C. was troubled and, I am satisfied, shows that the accused was bored and lonely. These findings do not preclude convictions for any of the offences charged.
[6] The evidence at trial consisted of the testimony of the complainant and her grandmother, the testimony of the accused and his mother, and a brief agreed statement of fact. The agreed statement of fact stipulates that vaginal swabs taken from the complainant were sent to the Centre for Forensic Sciences. However, there was not enough male DNA in the sample to provide a useful result.
The Issues at Trial
[7] Before dealing further with the evidence, it will be helpful to identify the issues and the positions of the Crown and the defence.
[8] In relation to the internet luring charges in counts 1 and 2, it is conceded that the accused communicated by Facebook with M.C., whom he knew to be 13 years of age, and that in the course of doing so he transmitted two pictures of his penis to her by electronic means. In relation to counts 1 and 2 the critical issue is whether Crown counsel has proven beyond a reasonable doubt that the accused’s purpose was to facilitate the commission of an offence under s. 151 and/or s. 271 of the Criminal Code, as specified in the respective counts.
[9] In terms of the substantive offences charged in counts 2 and 3, the Crown alleges that the accused had sexual intercourse with M.C., as she testified. The accused denies having had sexual intercourse with M.C. and denies touching her sexually at any time when she visited him and stayed overnight. As the accused agrees that he was fully aware that M.C. was only 13 years of age, proof of lack of consent on her part is not required and is not in issue.
[10] Clearly, the credibility and reliability of the various witnesses is also in issue in this case.
The Evidence
The Circumstances of the Complainant and the Accused
[11] In December 2018 M.C. was living with her grandparents, who had parented her from a young age. M.C. said she was dealing with a lot of things and that her mental health and state of mind were poor. She testified that she did not have a counsellor or psychiatrist or the medication or support that she needed and has since received. While she loved school, she had bullying issues which made it difficult for her, and she attended school intermittently. She had also recently learned that her grandfather was seriously ill, and she was also upset because her dog had to be put down. M.C. testified that she had “street brothers” who used her addiction to cigarettes to get her to commit minor crimes for them, such as trafficking in small amounts of marijuana. She occasionally ran away from her home.
[12] While M.C. had some difficulty remembering conversations and details of events due to the passage of time, she presented as articulate and intelligent and well able to communicate and to assert herself.
[13] M.C. said she used social media in December 2018. It was her means of feeling connected to the world. She used Facebook on her iPod. She had her real picture on her Facebook page and told people her true age, which was 13.
[14] Curtis Altman lived with his mother and three significantly younger brothers in a small town about 45 minutes away from where M.C. lived. He was not working or in school but was staying home to help his mother. His mother had given birth to his youngest brother by caesarean section about seven weeks before these events. His mother had previously been employed at a coffee shop but was home recovering and needed his help to clean, prepare meals and assist with the other children.
[15] I infer from the evidence that the accused’s family is not well off financially. There was no internet in the home and the accused would walk to the area of the public library to access Wi-Fi and social media on his cell phone. While he had a phone number, it was a temporary number obtained from an internet texting app and he could not use it to make or answer cell phone calls. I infer, however, that he could use his cell phone to make and receive calls and video calls if he was connected to the internet via Wi-Fi.
[16] Mr. Altman said he had lost all his friends when he and his mother and brothers moved away from another town. He said he had not made new friends but was interested in doing so. I have no reason not to accept his evidence on this point.
[17] I have mentioned the use of social media and the devices and access to the internet used by the complainant and the accused because of the importance recovered Facebook chats play in this case. On December 30, 2018 the police recovered the chats that took place between the complainant and the accused in the few days before Christmas and leading up to December 29, 2018. On consent, a printed copy of those messages was filed as Exhibit 1 at the trial. Counsel on both sides spent considerable time examining and cross-examining the complainant and the accused on the contents of the chats.
[18] Many short forms were used by the participants in their Facebook messages to one another. Those short forms have been explained in the evidence and are not controversial. In what follows I will often refrain from quoting the abbreviations and simply refer to the meaning being conveyed. Sometimes, however, it is helpful to refer to the short forms used or to describe the emojis or other images exchanged in the chats, in order to capture some significant ambiguity or potential double meaning to what was being communicated.
The Timeline
[19] Neither M.C. nor Curtis Altman could provide precise evidence about the dates on which events took place. Each indicated that their memories had degraded due to the passage of time. However, the timeline can be determined by looking at the evidence overall. It is not controversial that the complainant and the accused communicated by Facebook for a few days before Christmas and then met at the accused’s home on two occasions. It is known that the police attended at the accused’s home to apprehend M.C. on the second occasion, which was on December 29, 2018.
[20] With respect to the first visit, the complainant’s grandmother, S.C. testified that she noticed late on Christmas night that M.C. was missing from her home. She checked M.C.’s iPod and saw the communications between M.C. and the temporary phone number used by the accused. After unsuccessful attempts at a voice call, she texted the accused’s number to say that her granddaughter was missing and to ask for help in finding her.
[21] A screen shot of that text exchange has been filed on consent as Exhibit 2. The texts have no date stamp but indicate that they were sent on Wednesday at around 2:30 p.m. Everyone agrees that Christmas day in 2018 was a Tuesday. The accused testified that on her first visit the complainant arrived in his town by taxi at around 11:30 or so at night.
[22] Piecing this together, I conclude the complainant’s first visit was from late on December 25, 2018 until the afternoon of December 26, 2018. The accused testified that the texts from M.C.’s grandmother were received near the end of M.C.’s first visit to his home. He testified that after receiving those texts he walked M.C. to a convenience store where she was picked up by the Ontario Provincial Police (OPP).
[23] M.C. and the accused testified that there were no Facebook messages between them after December 29, 2018. S.C. testified that when she examined M.C.’s iPod she saw the penis pictures the accused had sent to M.C. She reported that to the police.
The Facebook Conversations
[24] I turn now to the Facebook message chats depicted in Exhibit 1. It appears to me that it would not be inaccurate to say that there are six or seven Facebook conversations contained in Exhibit 1. It is difficult to be precise, as there are pauses between the messages of undetermined length and conversations that start via a chat at one time sometimes continue after what appears to be a significant pause.
[25] As reproduced in Exhibit 1, the Facebook messages do not bear any date stamps. However, the document shows where video calls, which are interspersed with the messages, were attempted or completed. These are not marked with a date, but they do specify a day of the week and a time of day. If the call was completed, the elapsed time of the call is displayed.
[26] Given the witness’ testimony that the chats commenced in the few days before Christmas 2018, which was on a Tuesday, dates can be determined by inference for all but the first conversation. I also observe that Exhibit 1, at the top of p. 7, shows that what I have concluded is the second conversation, started on a Sunday. I find this was likely December 23, 2018.
[27] The first conversation has nothing recorded which would assist in establishing a date. Based on the evidence as a whole, it was likely on or about December 21 or 22, 2018.
[28] I will now review the Facebook conversations in chronological order. As I do, I will highlight certain facts which will be of significance in my later analysis.
[29] Communication between the complainant and the accused commenced after the accused sent M.C. a “friend request” on Facebook. The accused testified that in 2018 Facebook would make suggestions about who to send friend requests to. He said Facebook has since discontinued that function. This is the only evidence I have as to why or how the friend request was sent. There is no evidence to suggest any nefarious or oblique purposes on the part of Curtis Altman.
[30] The first conversation started when M.C. “waved” at Curtis Altman on Facebook. He waved back and they began to communicate. M.C. sent the first message. When the accused asked how she was she said, “really shitty” and asked how he was. He said he was bored and asked M.C. what was wrong. M.C. responded that both her parents had “deadly tumours” and said that she was planning on ending her life. M.C. added that she had been “used by many guys”. When the accused told her she should live for her parents, M.C. said she herself was suffering from a “life threatening medical condition” and was going to die soon anyway. She said she periodically required a new heart. I have no evidence to suggest this was true. M.C. told the accused that she was cutting herself and sent him a photo of scars on her arm. The accused told her not to do that.
[31] The first conversation continued in the same vein. M.C. referred to her 12 “brothers” getting her to do things and to having a mental illness. She then asked to see what the accused looked like and he transmitted a picture of his face to her. They then discussed that she was 13 years old and that he was 18. The accused told her she looked 16 or 17 and M.C. said she was often told that. The chat ended with them agreeing to talk later. There was nothing of a sexual nature in this first Facebook conversation. However, in cross-examination the accused agreed that he could see that M.C. was “vulnerable”, although that was not a reference to sexual vulnerability.
[32] The second conversation began on a Sunday at 9:49 p.m. It starts at p. 3 of Exhibit 1. I find this was on December 23, 2018. It appears that M.C. initiated the conversation. After initial greetings, M.C. volunteered that she was “gonna get drunk”. The accused responded, “fun”. M.C. then asked Mr. Altman if he would like to get drunk with her. He said that he would, but that she would have to come to his location. The accused testified that this was because his mother needed his assistance. There is support for that in other parts of the chat and in other parts of the evidence.
[33] The second conversation continues over several pages of Exhibit 1 and extended into the early morning hours of December 24. A significant portion of the chat was about trying to arrange for the two of them to get together. M.C. was pressing the accused to try to find her a ride. It is apparent from Exhibit 1 that the two also engaged in two video calls. The first was for 11 minutes and 59 seconds (Exhibit 1, p. 10). The second was for 26 minutes and 40 seconds (Exhibit 1, p. 11). The contents of these video calls are not recorded and both M.C. and the accused claimed they could not remember their discussions. I note, therefore, that I am missing some potentially important context for the surrounding Facebook messages.
[34] I also wish to highlight that the significant efforts being made by both M.C. and the accused to get together arose before there was any sexual content to the conversation. That came later and it was M.C., not the accused, who first intentionally added sexual content to the conversation. The agreement to meet preceded that and related to the plan for them to get drunk together. M.C. was pushing for the meeting.
[35] Sexual matters were introduced into the conversation in the following circumstances. When it appeared that arrangements being made by Mr. Altman to get M.C. a ride to his location had failed, M.C. became upset. She typed a message in all caps: “FUCK SAKES, I’M ABOUT TO LOSE MY SHIT”. In response to that message, the accused typed back: “Lol calm yr tits.”
[36] I accept the accused’s testimony that he did not intend this as a sexual reference at the time. He testified that this was an expression he often used, including with males. He withstood cross-examination on this part of his evidence reasonably well in my view. He acknowledged that he could now see how a 13-year-old girl might interpret it differently. I am far from satisfied that the accused intended this as a sexual reference at the time. However, it did seem to open the door for escalating sexualization and a change in direction to the conversation.
[37] M.C. responded by saying that her tits were calm. She then added, “Last time I checked they were comfy bare naked on my sheets”. Significantly, in my view, M.C. then sent (at p. 14) a picture of a “winking dog” to Mr. Altman. This picture, and others I will refer to, are larger than emojis and were described in evidence as “stickers”.
[38] Immediately after sending the sticker of a winking dog, M.C. sent the accused a sticker depicting a wide-eyed female with one hand in her hair, surrounded by red hearts and the prominent question “Do you like me? Yes, no, maybe.” I am satisfied that these communications from M.C. were the first intentional allusions to romance or possible sexuality that arose in the Facebook messages.
[39] M.C. then messaged that she wanted to facetime with the accused. Then, at p. 15 of Exhibit 1, there is an indication that M.C. and Curtis Altman “started sharing video”. That call is described as seven minutes and 33 seconds in length. Both M.C. and the accused claim not to be able to recall what transpired during that video call.
[40] I am suspicious of these claims of a complete lack of recollection by each of M.C. and the accused. From time to time during the testimony of each of them I formed the view that they were feigning a lack of recollection. It seemed to me that M.C. did not want to disclose all she remembered and wished to minimize the extent to which the evidence suggested she was involved in sexualized conversation or activity. The same comment may be applied to my assessment of the accused’s testimony.
[41] Both M.C. and the accused seemed to me at times to be less than completely candid about what was going on. Therefore, I am of the view that I probably do not have the complete picture of what was transpiring. I am again of the view that, as I am missing details of the video calls, I am missing important context for the surrounding Facebook messages. This is significant as the burden is on Crown counsel to establish beyond a reasonable doubt that the accused’s purpose in later transmitting a picture of his genitals (the act particularized in count 1) was for the purpose of facilitating another specified sexual offence.
[42] Just before the video call ended, Curtis Altman transmitted the message “Pussy lips” to M.C. Clearly, by this point the messaging had turned to sexual matters. Curtis Altman acknowledged this in his testimony. He asked M.C. if she was “gonna show me the thing now lol” and referred to M.C. as “such a tease”.
[43] This conversation ended on Monday, December 24 at around 2:04 a.m. when the accused said he was going to his house. It will be recalled that he went to the area of the public library to access the internet.
[44] The third Facebook conversation commenced on what I find to be Monday December 24, 2018, at 2:17 p.m. (Exhibit 1, p. 16). This conversation started with shared video. Once again, I do not have evidence of the details of that part of the conversation. M.C. indicated in her subsequent messages to the accused that she ended the video because of her mother.
[45] During this conversation there was continued talk of arranging to get together. The accused provided a video he made of playing the guitar and M.C. said she got a puppy for Christmas. The accused asked what the first thing is that M.C. will do when they meet. She said she would hug him. He then asked, “That it” to which she replied that she didn’t know. Conversation continued about getting M.C. a ride. M.C. then again sent the winking dog sticker. Exhibit 1 then indicates, at p. 23, that the accused changed the background colour on Facebook to pink and that M.C. then changed it to red.
[46] The accused and M.C. then began to send a series of “kissy face” emojis to each other. At p. 24 of Exhibit 1 various stickers are exchanged. M.C. transmitted a heart and a dog sitting up with three pink hearts. M.C. then transmitted a sticker of what appears to be a male and female teddy bear sitting close together and a dog or fox with a heart on its backside. The accused then sent a sticker of two figures hugging, of a male and female figure hiding behind a heart and of two cat-like figures under the word “love”.
[47] In response to the accused’s final sticker M.C. messaged, “U wish”. They then discussed M.C. coming to “chill”. M.C. asks: “Just chill”? A brief discussion follows in which M.C. asks the accused what he wants to do. He responds, “Not sure i like to live in the moment”. He also says, “Hug and just go with the flow of things.” M.C. says, “Probably the same.” That ended the conversation.
[48] What I would characterize as the fourth conversation starts at p. 26 of Exhibit 1. I cannot determine exactly when this conversation took place. It was likely on December 24, 2018. This is the conversation during which the accused transmitted two pictures of his penis to M.C. How the conversation developed leading to that is important in terms of proof of the accused’s purpose.
[49] The conversation started with the accused asking M.C. what she was doing. The complainant responded that she was still in the bath, where she had been during part of the previous conversation. When M.C. asked the accused what he was doing he said he was “sitting alone bored”. He also transmitted a kissy face.
[50] In response M.C. told the accused, “Then jack off, that helps.” The accused responded that he had “Nothing to jerk to”. M.C. then said she could fix that. M.C. testified that she had in mind that she would send the accused some pornography that her street brothers had sent her as a joke. I note that M.C. did not advise the accused that that was what she was referring to.
[51] In response to M.C.’s offer, the accused asked M.C. to “prove it”. Her retort was that he should go first. It was in response to that invitation that the accused sent a picture of his penis to M.C., saying it was an old picture. The accused then said it was her turn. In response, M.C. asked the accused, “How big r u when your hard.” The accused said, “Show me and ill show u.” M.C. then transmitted a photo of her breasts to the accused. That photo does not appear in Exhibit 1 as M.C. asked the accused to delete it and he did so.
[52] M.C. then told the accused it was his turn. At that point the accused transmitted a second picture of his penis to M.C. It appears from Exhibit 1, at p. 29, that after a pause of unknown duration the conversation ended when M.C. messaged that she was with her parents.
[53] At p. 29 of Exhibit 1, it appears that there was some brief insignificant communication between M.C. and the accused on Monday, December 24, 2018 at about 6:04 p.m. Kissy face emojis were exchanged. At 11:49 p.m. on the same date M.C. tried, unsuccessfully, to initiate a video chat with the accused.
[54] At p. 30 of Exhibit 1 there is brief communication by Facebook on Christmas day at 8:10 p.m. The only purpose seems to have been to arrange for a face time or video call. Exhibit 1 is ambiguous as to whether that video call took place, but I am satisfied that either it did or there was some other unrecorded communication between M.C. and the accused. Mr. Altman testified that M.C. advised him that she would take a taxi to his town. They agreed to meet at a bank where, according to the accused, M.C. used her grandmother’s bank card to withdraw $400, some of which was used to pay the cab driver. This was at about 11:30 p.m. They then walked to the accused’s home, where M.C. advised the accused’s mother that she had been dropped off by her grandparents.
[55] It is while at the accused’s home on this occasion that M.C. claims she first had sexual intercourse with the accused. I will deal with that evidence under a separate heading.
[56] Continuing with the Facebook messages, the final conversation commences towards the bottom of p. 30 of Exhibit 1. The conversation contains a reference to Friday at 4:36 p.m. This would have been December 28, 2018. At that time Mr. Altman advised M.C. that if she came over again they could not sleep in the same room. Exhibit 1 ends at that point. The accused testified that his mother had advised him that if M.C. came over again, she did not want them sleeping in the same room due to the complainant’s age.
The Substantive Offences
[57] M.C. testified that when she first arrived at Mr. Altman’s home on what I have found to be Christmas night, it was after 11:00 p.m. She said the accused’s mother was semi-awake on a couch with her new baby. The accused’s other brothers were asleep.
[58] M.C. testified that she accompanied the accused to his bedroom in the basement. She said they talked for a while before things escalated sexually. The bedroom door was then closed. She described laying down on the accused’s bed. She said the accused laid behind her facing in the same direction. She could feel his penis on her back becoming erect. She could not remember what was said. M.C. said the accused kissed the back of her neck.
[59] M.C. provided little detail. I observe that M.C. was not pressed for details either in examination-in-chief or in cross-examination. She said that both she and the accused were originally clothed but that by the time they had sexual intercourse all their clothes had been removed. She said her mind went blank, but she remembered the accused rubbing her legs and trying to unbuckle her jeans. She said that she “couldn’t think” as intercourse took place. She believed the accused ejaculated inside her.
[60] M.C. said she spent the night with the accused in his bed. The next morning she spent a few hours in his bedroom before she received a call from the OPP. She then walked to a convenience store and met the police, who took her home.
[61] M.C. testified that the second time she went to the accused’s home she again took a cab. This time she arrived during the early morning hours. She advised the accused and his mother that she had a fight with her grandmother and had no where else to go. Without providing much in the way of details, and again I note she was not pressed for details, she said the same thing happened as on her first visit. However, on this occasion she said she had a longer conversation with the accused’s mother before going to the accused’s bedroom. She testified that the accused slept with her in his bedroom and not upstairs, as suggested to her in cross-examination. She said that she and the accused had sexual intercourse in his bed and that the accused then slept on a separate mattress on the floor in the same room. While the door to the bedroom had been partially open, she said that during the night the door was fully shut.
[62] M.C. testified that at some point after she awoke the next day the accused told her that the police were at the door. She then left with the police.
[63] By the end of her cross-examination M.C.’s evidence was that she had sex with the accused twice on her first visit and once on her second visit. She agreed that she told the police in a statement soon after the events that she had sex with the accused about seven times. M.C. testified in cross-examination that things were moving quickly closer to the time of the events. She said that her memory had “come back more” in the intervening time. I observe that M.C. always acknowledged that there were details she did not remember well.
[64] Curtis Altman testified that when M.C. came to meet him the first time, he thought she was just coming to hang out. As he recalled it, M.C. and his mother had a lengthy conversation on that first occasion. He testified that the door to his bedroom was always open, as that was his mother’s rule. He said he and M.C. went to his room and played video games and watched movies. He said that around 4:00 a.m. he pulled out a second mattress and slept on it on the floor. He denied sleeping in the same bed as M.C. and denied that he had any sexual contact with M.C. He said he never touched her, aside from hugging her when they first met.
[65] Mr. Altman said M.C. stayed until the evening of the following day. He said that in the mid-afternoon his mother received a call saying that M.C. was “being looked for”. He escorted M.C. to a convenience store so she could meet the police. Later, his mother told him that she did not want him sleeping in the same room with M.C. again.
[66] Mr. Altman testified that M.C. arrived back at his home at 2:00 a.m. on December 29. He learned at 1:30 a.m. that she was already on her way. She said she had no where else to go. She arrived at his house by cab. His mother and the baby were still awake. He said his mother told him they would let others know of M.C.’s whereabouts in the morning.
[67] Mr. Altman testified that M.C. slept alone in his basement bedroom. He said he slept beside his mother and baby brother on an upstairs couch. I note that the accused’s mother said the accused slept in an upstairs bedroom. Mr. Altman denied any sexual contact with M.C. on this occasion as well.
[68] I will make brief reference to the evidence of M.C.’s grandmother S.C., and to the evidence of the accused’s mother, Amanda Brown.
[69] The main significance of S.C.’s evidence is as a foundation for the text messages contained in Exhibit 2. I will not summarize those. They are brief. The Crown relies on those texts to suggest that the accused misled S.C. when he texted her that M.C. was not with him, when in fact she was.
[70] Mr. Altman testified that he became aware that someone was trying to place a voice call to his cell phone but, due to the nature of his temporary phone number, he could not answer it. As a result, he sent back a text simply saying, “Hello???” When asked by text sent by S.C. who he was, he texted his name. He then received a text from S.C. about M.C. being missing. Mr. Altman testified that at that point M.C. took his phone away from him and said that she would deal with it. He went off to do other things and did not look at his phone again until later.
[71] I note that defence counsel did not cross-examine M.C. about whether she took the accused’s phone and responded to her grandmother’s text. I also observe, however, that the accused was not seriously challenged about the credibility of his evidence on this point when he was cross-examined. I further observe that M.C. lied to the accused’s mother twice about what was going on with her grandparents. Based on my assessment of all the evidence, I am unable to reject Mr. Altman’s evidence that it was M.C. who sent the last two texts recorded in Exhibit 2. This almost entirely blunts the point Crown counsel had hoped to make from these texts.
[72] The accused’s mother, Amanda Brown, testified about M.C.’s two visits to her home. She thought M.C.’s first visit was on December 26. She confirmed M.C.’s evidence that she and M.C. spoke only briefly during the first visit. M.C. confirmed to Ms. Brown that she was 13 years old and said her parents had dropped her off. Ms. Brown said M.C. and her son went downstairs to watch a movie and that the accused’s bedroom door was left open. She said the pair were up and down the stairs and she had to ask them to quiet down at around 4:00 a.m. Ms. Brown said she made no comment that night about sleeping arrangements. The accused testified that his mother told him to put down a second mattress.
[73] Before M.C. left the next day she told Ms. Brown her parents were coming to pick her up. Ms. Brown said she had no conversation with M.C.’s parents or the police between M.C.’s first and second visits.
[74] Ms. Brown thought M.C. returned to her home about three to four days later. She said M.C. showed up on her own at about 2:30 a.m. M.C. told her she had been kicked out of her home and did not know where else to go.
[75] Ms. Brown testified that on this occasion her son went upstairs to sleep in his brother’s room. She said she had told her son he could not sleep in the same room as M.C. because she was too young.
[76] Ms. Brown said she awoke the next morning at 7:00 a.m. M.C. was still in the basement. When the police arrived she had the accused yell downstairs for M.C. The police then told her M.C. was a runaway. Ms. Brown said this was her first notice of police involvement.
Analysis
Onus and Burden of Proof
[77] Before explaining why I have reached the verdicts that I have, I will comment briefly on the onus and burden of proof and explain how I have approached my task.
[78] The burden of proof is, of course, on Crown counsel to prove each of the essential elements of the offences charged beyond a reasonable doubt. I have approached my task in accordance with the principles set out in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, at p. 757, as those principles have been explained in cases such as R. v. D.(B.), 2011 ONCA 51, at para. 114; R. v. Smits, 2012 ONCA 524, at para. 37; and R. v. Brown, 2018 ONCA 481, at paras. 67-69. I have instructed myself that I am not to simply choose between the competing versions of events. If the evidence of the accused is accepted by me, or if, in the context of all the evidence, it raises a reasonable doubt about his guilt, then I must acquit. Even if his evidence does not raise a reasonable doubt, I may only convict if I am satisfied on a consideration of all the evidence that each of the essential elements of the offences charged have been proven beyond a reasonable doubt.
Counts 1 and 2 – The Internet Luring Offences
[79] Speaking generally, the essential elements of internet luring are described in cases such as R. v. Legere, 2009 SCC 56, at para. 36; R. v. Levigne, 2010 SCC 25, at para. 23; and R. v. McSween, 2020 ONCA 343. I recognize that there are some differences between ss. 171.1(1)(b) and 172.1(1)(b) pursuant to which counts 1 and 2 have been laid. I also recognize that the particulars of those charges are somewhat different. However, as I indicated near the outset, the only issue between the parties in relation to counts 1 and 2 is whether Crown counsel has established beyond a reasonable doubt that the accused’s purpose in transmitting pictures of his genitals and in communicating with the complainant via Facebook was to facilitate the commission of the other sexual offences specified in the counts. The cases I have cited are very helpful in understanding that a specific subjective intent must be proven: Legere, at paras. 31-34, 38 and 42. As stated in Legere, at para. 29, the “focus is on the intention of the accused at the time of the communication by computer”.
[80] As held in Legere, at para. 25, these offences are preparatory or inchoate in nature. There is no requirement that the accused meet or intend to meet the complainant with a view to committing any secondary offence. However, Legere makes it very clear that the purpose at the time of the relevant communication must be to facilitate such an offence. For example, to make it easier to commit such an offence.
[81] Having considered all the evidence together, I find I am left in a state of reasonable doubt concerning whether the accused’s purpose at the relevant time, in doing what he did, was the facilitation of either sexual interference or sexual assault. A number of factors, considered together, contribute to my doubt.
[82] Before referring to those factors I wish to add that I do not accept certain important parts of the accused’s evidence. I will elaborate on that when I deal with counts 3 and 4. However, in relation to counts 1 and 2, I find that the accused’s evidence, in the context of the other evidence, does raise a reasonable doubt. The essence of the accused’s evidence in relation to counts 1 and 2 is that he was just going with the flow of the communications he was having with M.C. and that he did not have the ulterior purpose or specific intent required for conviction. I think that may very well be so.
[83] First, I observe that there is no evidence before me that the accused set out to communicate with M.C., or any other underage person, for the purpose of facilitating a sexual offence. The uncontradicted evidence is that Facebook suggested that the friend request be made to M.C. There is no evidence that the accused was trolling the internet looking for a victim or that he had targeted M.C.
[84] Second, as I have found, sexual content was first intentionally injected into the flow of electronic communications by M.C. and not by the accused. That took place after M.C. and the accused had already agreed to meet. Furthermore, I note that it was M.C. who raised the two of them getting together in the first place by asking the accused if he wanted to get drunk with her. That was the context of their agreement to meet.
[85] In addition, as I noted at the outset, while there was a significant age difference between M.C. and the accused, they were both teenagers. Both, it seems, used social media as their primary means of communication, as teenagers tend to do. While not determinative, the use of computers for communication in the circumstances of this case, as I have found them to be, is quite different than in a more typical internet luring case. This does not seem to me to be a situation of a predator using the internet for predatory purposes. Rather, I view it as two teenagers, both of whom I have found were either troubled or lonely, talking to one another. They also expressed affection for each other.
[86] Due to the age difference between M.C. and the accused, the sexual bent the Facebook communications eventually took is unacceptable. It should not have happened, and I certainly do not condone it. The accused, as an 18-year-old, undoubtedly knew that sexual communications of the nature that took place here were improper. But I am far from convinced that he was not simply acting in the moment. This became a case of, “show me yours and I’ll show you mine”. There were also expressions of affection. As I have a reasonable doubt about the accused’s subjective intention at the time, about whether his purpose was the facilitation of a further specified offence, I find him not guilty on counts 1 and 2.
Counts 3 and 4 – The Substantive Offences
[87] In view of the complainant’s age and the age difference between the complainant and the accused, lack of consent need not be established and a finding beyond a reasonable doubt that the accused had sexual intercourse with M.C. between December 24 and December 29, 2018 must result in a finding of guilt on both counts 3 and 4. It would be implicit in such a finding that the accused intentionally touched M.C. for a sexual purpose and that he intentionally applied force to M.C. in circumstances of a sexual nature such that her sexual integrity was violated. The offences of sexual interference contrary to s. 151 of the Criminal Code and of sexual assault contrary to s. 271 of the Criminal Code, would be made out.
[88] I have reached the conclusion that the accused did have sexual intercourse with the complainant as she alleges. Keeping the principles of W.D. in mind, I have considered all the evidence together. I find that the accused’s evidence to the contrary is not credible. I do not accept it and it does not raise a reasonable doubt in my mind when considered alone or in the context of the other evidence. While I think that M.C. was reluctant to reveal all that she recalled about the sexual aspects of her Facebook conversations with the accused, perhaps due to embarrassment, that does not lead me to reject her evidence that sexual intercourse took place.
[89] Despite my reasonable doubt about whether the accused’s purpose in communicating on Facebook was to facilitate the commission of these offences, it is quite clear from the messages that the accused had a sexual interest in M.C. He acknowledged in cross-examination that he was sexually excited by aspects of his communications with M.C. When she came to his house they slept together in the same room. In these circumstances M.C.’s description of what occurred is logical and sensible. She was unshaken in her claims that sexual intercourse occurred, and I accept her evidence in this regard. Consequently, the evidence which I do accept establishes beyond a reasonable doubt that sexual intercourse took place. I will elaborate further on factors that have contributed to these conclusions.
[90] First, I will comment on the accused’s credibility. I would say that several aspects of the accused’s testimony in relation to both the Facebook chats and what took place when M.C. visited his home raise credibility concerns contributing to my rejection of his denials of sexual intercourse.
[91] As with the complainant, I find the accused has not revealed all he knows about the video chats interspersed with the Facebook chats. For example, he said in examination-in-chief that he did not remember what the video chat for seven minutes and 33 seconds, just before he typed “pussy lips”, was about. He also said in-chief that he did not remember why he typed “pussy lips”. However, in cross-examination he, somewhat reluctantly I thought, had to admit that this was an obvious sexual reference. Despite that, he maintained in cross-examination that he did not intend it as a sexual reference. That is simply unbelievable after applying common sense to the circumstances.
[92] This example is reflective of how the accused testified when cross-examined in relation to the messages in Exhibit 1. He conceded only what he had to when faced with the transcript of the Facebook messages. But on several occasions, he would not concede what common sense would suggest about the messages or what they meant. For example, he acknowledged sending the stickers I have described, many of which contained hearts, but he denied they were intended as romantic at the time that he sent them.
[93] The accused also said that when he changed the background colour on the Facebook page to pink, he did that only because pink is his favourite colour. He also said the winking dog sticker M.C. sent to him did not mean anything to him. Yet the stickers and emojis he sent back to M.C. suggest that he did understand that M.C. was interested in him. He was sending her symbols of romantic interest and affection. I do not accept his assertion that in sending things such as a fox next to hearts he was just “sending random stickers” as he testified.
[94] In short, throughout his evidence the accused downplayed or denied having romantic interest in M.C. Yet the contents of Exhibit 1 show the contrary.
[95] I turn to the accused’s evidence about M.C.’s first visit to his home. He denied that he and M.C. slept in the same bed. He said his mother told him to put down a second mattress and that he slept on it.
[96] The accused was cross-examined on a statement he gave to the police on January 16, 2019 shortly after his arrest. Portions of p. 54 of the transcript of that statement were put to him. He told the interviewing officer that on the first night M.C. slept in his “comfy bed” and that he slept next to her. When that was put to him in cross-examination, he said that he slept next to her but on a separate mattress. However, he was then cross-examined on the next part of the same statement where he said that on the first night he slept next to M.C. with a separate blanket. He told the officer that it was on the second night that he put down a separate mattress. In cross-examination the accused acknowledged that his memory was better at the time of the statement but would not agree that he slept in the same bed with M.C. on her first visit.
[97] Having observed this cross-examination I am of the view that it seriously impairs the accused’s credibility about sleeping arrangements on M.C.’s first visit.
[98] I note that the same cross-examination also impairs the credibility of the accused’s testimony that he did not sleep in the same room as M.C. on her second visit. In the portion of the prior statement put to him in cross-examination he said that on the “other night I put down a spare mattress”. Furthermore, the accused testified that on M.C.’s second visit he slept next to his mother on a couch in the living room. That is contradicted by his mother’s evidence. She said on that occasion he slept in an upstairs bedroom.
[99] It may well be that the accused’s mother honestly believed that her son was sleeping in an upstairs bedroom on M.C.’s second visit. However, her testimony contradicts his evidence that he slept beside her. Therefore, he certainly had the opportunity to be in his basement bedroom with M.C. Moreover, the accused’s prior statement to the police indicates that he did sleep in his bedroom with M.C. on her second visit, but on a separate mattress. I observe that an out-of-court statement by an accused person, as opposed to a witness, may be used to prove the truth of the contents of the statement even where the accused disagrees with the statement in testimony at trial.
[100] In summary, the evidence I have referred to undermines the credibility of the accused’s version of events. The portions of his prior statement that were put to him also offer support for M.C.’s evidence that they slept in the same bed on her first visit and in the same bedroom on her second visit. M.C. testified that on her second visit she and the accused had sexual intercourse in his bed although the accused slept on a separate mattress.
[101] Turning to the evidence of M.C., aside from my finding that she was reluctant to tell all she remembered about her Facebook conversations with the accused, I found her to be a straightforward witness. She was cross-examined to show that she told the police she though she had sex with the accused about seven times. I have dealt with that already. She also told the police that the photo she sent to the accused was of herself in a bra and not, as she acknowledged at trial, a photo of her bare breasts. She explained that she was embarrassed, had “body insecurity issues”, and did not want the police or anyone else to see the image. I find the explanations provided by M.C. for these two inconsistencies to be reasonable and I accept them.
[102] M.C. withstood cross-examination very well. Nothing was demonstrated in cross-examination which would lead me to doubt her evidence. Her testimony about sleeping with and having sexual intercourse with the accused fits comfortably with the other evidence in the case which I accept.
[103] As I have said, on an assessment of all of the evidence, I am satisfied beyond a reasonable doubt that the accused had sexual intercourse with M.C. on the two occasions when she visited him at his home. There will be a finding of guilt on counts 3 and 4.
Justice F. Dawson
Released: January 15, 2021