ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
AAMALLAL MOOTOO
Anna Gilmer, for the Crown
Aamallal Mootoo, Acting in person
Jennifer Myers, Counsel appointed under s. 486.3 of the Criminal Code
Erin Dann, Amicus Curiae
HEARD at Toronto: April 9, 12, 13, 14, 15, 19 and 20, June 15, 16, 23 and 24, 2021
Publication Ban
Subject to any further Order by a Court of competent jurisdiction, an Order has been made in this proceeding that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way, pursuant to s. 486.4(1) of the Criminal Code, R.S.C., 1985, c. C-46.
REASONS FOR JUDGMENT
DAVIES J.
A. OVERVIEW
1H.J. received a message from someone named “Jay” on Instagram in mid-March 2017. She and Jay communicated for a few days before they met in person on March 23, 2017. H.J. stayed at Jay’s apartment that night. H.J. says that Jay touched her breast while she was at his apartment. H.J. was only 15 years old.
2H.J. says she and Jay continued to communicate through various messaging applications, including Blackberry Messenger (BBM) and Kik, and spoke on the phone in the days after she stayed at his apartment. H.J. says she took screenshots of some of the messages she received from Jay. Some of the messages are sexually explicit. For example, Jay describes sexual activities he wanted to engage in with H.J. Jay also told H.J. he wanted her to engage in prostitution and make him lots of money. Jay sent H.J. messages about his friends engaging in sexual activity with their own children. Jay sent H.J. a photograph that he said was of his friend having intercourse with his 17-year-old daughter. Jay also told H.J. that his friend “pimps out” his daughter.
3H.J.’s sister recorded of a call between H.J. and Jay. The call is also sexually explicit. During the call, Jay told H.J. to touch herself in a sexual manner and gave her instruction on what to do. Jay talked about sexual activities he wanted to engage in with H.J. He also told H.J. that his friends would pay to have sex with her.
4Mr. Mootoo is charged with sexual interference, sexual assault, procuring a person under the age of 18 to engage in prostitution, making sexually explicit material available to a person under the age of 16, luring a person under the age of 16 for the purpose of facilitating a sexual offence, possessing child pornography, possessing child pornography for the purpose of distribution, and invitation to sexual touching.
5It is the Crown’s theory that Mr. Mootoo is Jay – that H.J. meet Mr. Mootoo on March 23, 2017 and stayed at his apartment, that Mr. Mootoo touched H.J.’s breast, that Mr. Mootoo sent the sexually explicit messages to H.J., that Mr. Mootoo told H.J. to touch herself in a sexual manner in the recorded call, and that Mr. Mootoo sent H.J. the photograph that the Crown says constitutes child pornography.
6Every criminal offence requires proof of a physical act and some element of intent. As is his right, Mr. Mootoo did not make any admissions at trial. So the burden remains on the Crown to prove each and every element of each count beyond a reasonable doubt.
7There are several factual issues that are relevant to more than one count on the indictment. For example, if the Crown cannot prove that H.J. met and stayed with Mr. Mootoo on March 23, 2017, Mr. Mootoo would be entitled to an acquittal on all counts. If the Crown cannot prove that Mr. Mootoo knew or believed H.J. was under the age of 16, he would be entitled to an acquittal on the charges of procuring a person under the age of 18 to engage in prostitution, making sexually explicit material available to a person under the age of 16, luring a person under the age of 16 for the purpose of facilitating a sexual offence and invitation to sexual touching. If the Crown cannot prove that Mr. Mootoo sent H.J. the sexually explicit messages and photographs, he would be entitled to an acquittal on the charges of procuring a person under the age of 18 to engage in prostitution, making sexually explicit material available to a person under the age of 16, luring a person under the age of 16 for the purpose of facilitating a sexual offence, possessing child pornography, and possessing child pornography for the purpose of distribution. And if the Crown cannot prove that the sexually explicit audio call was between Mr. Mootoo and H.J., he would be entitled to an acquittal on the invitation to sexual touching count.
8For the reasons that follow, I make the following findings and reach the following conclusions:
(i) Mr. Mootoo is the person H.J. met on March 23, 2017 and she stayed at his apartment that night. There are, however, many problems with H.J.’s evidence about what happened that night. Her testimony does not satisfy me beyond a reasonable doubt that Mr. Mootoo touched her in a sexual manner while she was at his apartment. Mr. Mootoo is acquitted of sexual interference (count #1) and sexual assault (count #2).
(ii) Mr. Mootoo knew H.J. was only 15 years old.
(iii) Mr. Mootoo sent the sexually explicit messages and photographs to H.J. Given the content of those messages and photographs, the Crown has proven beyond a reasonable doubt that Mr. Mootoo is guilty of possessing child pornography (count #6) and possession of child pornography for the purpose of distribution (count #7). Mr. Mootoo cannot be convicted of both counts. A finding of guilt will be entered on both counts but the possession of child pornography charge will be conditionally stayed.
(iv) The content of the messages also support a finding that Mr. Mootoo is guilty of making sexually explicit material available to a person under the age of 16 (count #4) and luring a child under the age of 16 (count #5). However, Mr. Mootoo cannot be convicted of both these offences and I invite the parties to make submissions on which count should be stayed.
(v) The sexually explicit voice call was between Mr. Mootoo and H.J. Based on the content of that call, alone or when considered together with the messages Mr. Mootoo sent to H.J., the Crown has proven beyond a reasonable doubt that Mr. Mootoo is guilty of inviting H.J. to touch herself in a sexual manner (count #8).
(vi) The Crown has not proven beyond a reasonable doubt that Mr. Mootoo actually procured H.J. to offer or provide sexual services for consideration. But the Crown has proven that Mr. Mootoo attempted to procure H.J. Mr. Mootoo is, therefore, guilty of attempting to procure a child under the age of 18 to offer or provide sexual services for money (count #3).
9I intend to address the common factual issues first. I will then consider whether the Crown has proven the essential elements of each offence beyond a reasonable doubt. But before doing any of that, I want to comment briefly on Mr. Mootoo’s conduct during the trial.
B. MR. MOOTOO’S CONDUCT AT TRIAL
10Mr. Mootoo was not represented by counsel at trial. Amicus was appointed to assist me. Counsel was also appointed under s. 486.3 of the Criminal Code to cross-examine H.J. on Mr. Mootoo’s behalf. Mr. Mootoo refused to work with s. 486.3 counsel. Mr. Mootoo also generally refused offers of assistance from amicus.
11At times, Mr. Mootoo participated in his trial in an appropriate and effective manner. He cross-examined several witnesses and made submissions on substantive issues.
12At other times, however, Mr. Mootoo’s behaviour was extremely volatile, disruptive, belligerent and abusive. Mr. Mootoo repeatedly called me names and swore at me. He was also verbally abusive to the Crown, the Officer-in-Charge, amicus and s. 486.3 counsel. When Mr. Mootoo became volatile and abusive, I removed him from the courtroom and ordered him to observe the trial via closed-circuit television. Mr. Mootoo was given several opportunities to come back into the courtroom when he appeared calmer.
13Mr. Mootoo’s outbursts seemed to be triggered by his frustration over how I was conducting his trial. Mr. Mootoo thought the trial was unfair. He thought I was corrupt. He thought that I was trying to control how he conducted his defence. He thought I wanted him to be convicted. I do not agree with any of Mr. Mootoo’s views about the fairness of his trial but will not otherwise comment on the substance of his complaints.
14At the end of the trial, Mr. Mootoo apologized for his angry and abusive outbursts.
15While Mr. Mootoo’s conduct was a significant distraction and was sometimes exasperating, it had no impact on my decision about his guilt or innocence.
C. COMMON FACTUAL ISSUES
(i) Is the Samsung Galaxy Mr. Mootoo’s phone?
16The Crown relies on evidence extracted from a Samsung Galaxy phone to prove that Mr. Mootoo is “Jay”. Mr. Mootoo argues that Samsung Galaxy was not his phone. Mr. Mootoo also argues that the police planted evidence on that phone. I must, therefore, decide whether the Samsung Galaxy belonged to Mr. Mootoo. I must also decide whether the information extracted from the Samsung Galaxy was on the phone when Mr. Mootoo was arrested.
17Mr. Mootoo was arrested on April 19, 2017 in the parking lot of Cedarbrae Mall. Detective Wes Neal testified that he took a phone out of Mr. Mootoo’s hand as two other officers handcuffed Mr. Mootoo.
18Detective Neal testified that when he seized the phone from Mr. Mootoo, the screen was not locked and a messaging application was open. Detective Neal typed four messages into the messaging application on the phone:
We 86593
Come now
Details neal
Det Neal
19Detective Neal intended to type his first name and badge number (Wes 86593) to create a record in Mr. Mootoo’s phone of the date and time he seized it. The phone auto-corrected what Detective Neal typed. Detective Neal tried a few times before he accurately typed his name.
20Detective Neal testified that he gave the phone to Detective Braganza while they were still in the parking lot of Cedarbrae Mall.
21Detective Braganza testified that Detective Neal gave him a black Samsung smartphone shortly after Mr. Mootoo’s arrest. Detective Braganza testified that he kept that phone in his possession until approximately 11:30 p.m. on April 19, 2017 when he put it in a temporary locker at 41 Division.
22Office Garrity retrieved a black Samsung phone from a locker at 41 Division on April 21, 2017 and prepared an application for a warrant to search the phone. The phone was in unsealed property bag C1620967. Detective Garrity did not make a note of the number of the property receipt with the phone. The IMEI number for the cell phone was 359653061690890. Officer Garrity returned the phone to the same locker in the same property bag when he was finished working on the warrant application on April 21, 2017.
23Officer Garrity retrieved the Samsung phone from the locker a second time on April 27, 2017 and delivered it to the Toronto Police Service Tech Crimes Unit. The phone was still in property bag C1620967 along with property receipt P622413.
24Detective Garcia, a forensic examiner in the Tech Crimes Unit, retrieved a black Samsung Galaxy phone from their secure locker system on May 8, 2017. The phone was in property bag C1620967 with property receipt P622413. The IMEI number of the phone Detective Garcia analyzed was 359653061690890.
25I am satisfied that the Samsung Galaxy phone that Detective Garcia received for analysis on May 8, 2017 is the same phone that Detective Neal seized from Mr. Mootoo on April 19, 2017. I accept Detective Neal’s evidence that he gave the phone to Detective Braganza. I accept Detective Braganza’s evidence that he received a Samsung phone from Detective Neal. I also accept Detective Braganza’s evidence that he put the Samsung phone in a secure locker at 41 Division on April 19, 2017. I find that the phone Officer Garrity retrieved from the locker on April 21, 2017 is the phone Detective Neal seized from Mr. Mootoo. I also find that the phone Detective Garrity delivered to the Toronto Tech Crime Unit on April 27, 2017 is the same phone he retrieved on April 21, 2017.
26Finally, I find the phone Detective Garcia analyzed on May 8, 2017 is the phone seized from Mr. Mootoo that Detective Garrity delivered to the Tech Crimes Unit on April 27, 2021. The phone Detective Garica analyzed had the same property bag number, the same property receipt number and the same IMEI number as the phone Detective Garrity delivered to the Tech Crimes Unit.
27Detective Garcia testified that he used a tool to extract data on the Samsung Galaxy. Once the data was extracted, Detective Garcia prepared a report in accordance with the search warrant. In this case, the warrant authorized Detective Garcia to search call logs, text messages, messaging applications, emails, photographs and videos stored on the phone or on the SIM card in the phone.
28Detective Garcia testified that the four messages Detective Neal typed into the phone shortly after Mr. Mootoo’s arrest were on the Samsung Galaxy when he analyzed it. This is further proof that the Samsung Galaxy Detective Garcia analyzed is the same phone Detective Neal seized from Mr. Mootoo.
29Other than Detective Neal, who sent four messages from Mr. Mootoo’s phone to prove that he was the one who seized it, there is no evidence that any other officer used Mr. Mootoo’s phone before Detective Garcia analyzed it.
30I find the Samsung Galaxy analyzed by Detective Garcia is the phone seized from Mr. Mootoo. With the exception of the four messages typed by Detective Neal, I find that the information in Detective Garcia’s extraction report was on the Samsung Galaxy when Detective Neal seized it from Mr. Mootoo on April 19, 2017.
(ii) Is Mr. Mootoo the person H.J. met on March 23, 2017?
31H.J. testified she first received a message from someone named “Jay” on Instagram in mid-March 2017. H.J. said she met Jay for the first time on March 23, 2017 and stayed at his apartment that night. H.J. knew that Jay was not his real name. She said Jay told her he would tell her his real name when she turned 16. H.J. testified that Jay initially told her he was 20 years old but later told her he was 30.
32H.J. did not identify Mr. Mootoo as Jay. Nonetheless, the Crown argues that the circumstantial evidence proves beyond a reasonable doubt that the person H.J. met on March 23, 2017 was Mr. Mootoo. I agree.
33H.J. gave a videotaped statement to the police on March 30, 2017. She was 15 years old at that time. H.J.’s statement was played during her examination-in-chief. H.J. adopted the content of her statement and it formed part of her evidence.
34H.J. told the police that she went to Cedarbrae Mall after school on March 23, 2017 to meet Jay. She waited at Cedarbrae Mall for a couple of hours but Jay did not show up. H.J. testified that she asked a stranger in the mall to use their phone to contact Jay. She logged onto a messaging application, Kik, and sent Jay a message. H.J. told the police that Jay told her to come to his apartment building but did not give her the exact address.
35H.J. said she walked around the area of Scarborough Golf Club Road and Lawrence Ave. East looking for Jay’s building. The first building she went to was not Jay’s building. H.J. testified that she finally found Jay’s building at about 9:30 p.m. She had to wait for someone to leave the building so she could get in.
36Jay told H.J. he lived in Apartment 1005 so she took the elevator to the tenth floor. She knocked on the door of Apartment 1005. The woman who answered the door said nobody by the name Jay lived there. H.J. testified that as she was speaking to the woman in Apartment 1005, a man got off the elevator and called her name. H.J. got back on the elevator with that man and they went to his apartment on the fifth floor.
37When H.J. left Jay’s apartment the next morning, she did not know the address of his building but she knew roughly where it was. H.J.’s sister, K.J., drove H.J. to the area to see if H.J. could find the building. K.J. testified that H.J. identified 3847 Lawrence Ave. East as the building where she stayed on March 23, 2017.
38The police obtained security video from 3847 Lawrence Ave. East, which is a Toronto Community Housing Building. Special Constable Sorentino works for Toronto Community Housing. She testified there were three cameras in the elevators and one camera in the lobby at 3847 Lawrence Ave. East. Special Constable Sorentino downloaded video from the security cameras, copied it onto a DVD and gave it to Detective Mohamed. I am satisfied that the surveillance video from 3847 Lawrence Ave. East is accurate and authentic.
39H.J. identified herself on the video.
40The video confirms that H.J. entered the lobby of 3847 Lawrence Ave. East at approximately 9:30 p.m. on March 23, 2017. She walked through the lobby, got on an elevator and took the elevator to the tenth floor. The video also confirms that a man took an elevator to the tenth floor a few minutes after H.J. and briefly stepped out into the hallway. A few seconds later, H.J. got back on the elevator with that man and they took the elevator to the fifth floor.
41There is also video of H.J. in 3847 Lawrence Ave. East on the morning of March 24, 2017.
42I have no doubt that H.J. went to 3847 Lawrence Ave. East on March 23, 2017. The issue is whether the Crown has proven that the man in the elevator with H.J. that night was Mr. Mootoo.
43I cannot identify the person in the elevator with H.J. as Mr. Mootoo. The person’s face is not visible in the video. The most I can say is that the person in the elevator with H.J. does not have any physical features (such as height, weight, skin colour or hair colour) that are obviously inconsistent with Mr. Mootoo’s physical appearance. Nevertheless, I am satisfied beyond a reasonable doubt based on the circumstantial evidence that the person H.J. met on March 23, 2017 was Mr. Mootoo.
44First, there is evidence that Mr. Mootoo was the person H.J. was messaging about meeting on March 232, 2017. H.J. testified the first message she received from Jay came from an Instagram account with the username “jayhuron”. She continued to communicate with Jay using that Instagram account before they met. A screenshot of four Instagram messages sent from H.J.’s account to jayhuron at 7:32 p.m. on March 23, 2017 was filed as an exhibit. The four messages read as follows:
Hey I’m in your lobby
Hurry up I’ve been waiting
N open my msg request
NOW!
H.J. received a message back from jayhuron asking her which building she was in.
45H.J.’s sister, K.J., testified that when H.J. did not come home after school on March 23, 2017, she logged onto H.J.’s Instagram account to try to figure out where she might be. K.J. saw the messages from H.J. to jayhuron and his response in H.J.’s Instagram account.
46There is a profile picture associated with the jayhuron Instagram account. H.J. told the police the picture is not a photograph of the person she met on March 23, 2017. It is not a photograph of Mr. Mootoo either. However, the profile photograph associated with the jayhuron Instagram account on H.J.’s phone was also found on Mr. Mootoo’s Samsung Galaxy phone when Detective Garcia analyzed it.
47Taken together, the evidence suggests that the person using the jayhuron Instagram account was the person H.J. ended up meeting. It also suggests that the jayhuron Instagram account belonged to Mr. Mootoo.
48H.J. told the police that she communicated with Jay by Kik as well. H.J. testified at trial that they started communicating over Kik a few days after Jay first sent her a message on Instagram. H.J. told the police that Jay had two Kik accounts: one with the username JT and one with the username Jay Turner. Detective Garcia testified that the Kik messaging application was installed on Mr. Mootoo’s phone. The username associated with the Kik account on Mr. Mootoo’s was “JT”. This is further evidence that Mr. Mootoo was the person H.J. was communicating with before March 23, 2017.
49Second, the evidence establishes that Mr. Mootoo was living on the fifth floor of 3847 Lawrence Ave. East on March 23, 2017. The police obtained a warrant and searched Apartment 514 at 3847 Lawrence Ave. East after Mr. Mootoo’s arrest. They found a passport and health card in Mr. Mootoo’s name in one of the bedrooms. The police also found an envelope from Revenue Canada addressed to Mr. Mootoo at 514 – 3847 Lawrence Ave. East.
50Third, the police found items of clothing in Mr. Mootoo’s apartment that match the clothing Jay was wearing on March 23 and March 24, 2017 when he was with H.J. When H.J. got on the elevator with Jay, he was wearing a dark hat with a yellow or gold P on the front and a shiny sticker on the brim. He was also wearing black and grey sneakers. Jay and H.J. went to Tim Hortons at Cedarbrae Mall for breakfast on the morning of March 24, 2017. The video from 3847 Lawrence Ave. East and from Cedarbrae Mall shows that Jay was wearing the same black hat with a gold P and a sticker on the brim. He was also wearing a dark grey winter jacket with chest pockets.
51The police seized a pair of black and grey sneakers and a black baseball cap with a gold P and a shiny sticker on the brim from Mr. Mootoo’s apartment. They also seized a dark grey winter jacket with chest pockets from Mr. Mootoo’s apartment.
52Fourth, while H.J. did not know the number of the apartment she went to with Jay, her description of the layout of Jay’s apartment is consistent with the video taken by the police of Mr. Mootoo’s apartment during the search.
53Fifth, H.J.’s description of the location of Jay’s apartment is largely consistent with the location of Mr. Mootoo’s apartment. H.J. said they turned right when they got off the elevator and then turned again. She said that Jay’s apartment was at the end of the hallway on the left by a stairwell. H.J. was mistaken about the direction she and Jay turned when they got off the elevator on the fifth floor. The video shows that she and Jay turned left when they got off the elevator on the fifth floor, not right. Otherwise, H.J.’s description of the location of Jay’s apartment is consistent with the location of Mr. Mootoo’s apartment. A floor plan of the fifth floor of 3827 Lawrence Ave. East confirms Mr. Mootoo’s apartment was the last apartment on the left side of the hall beside a stairwell.
54The only reasonable inference from all the circumstantial evidence is H.J. met Mr. Mootoo on the tenth floor of 3847 Lawrence Ave. East on March 23, 2017 and stayed at his apartment that night. In other words, I am satisfied beyond a reasonable doubt that Mr. Mootoo is Jay.
(iii) Did Mr. Mootoo send the messages captured in H.J.’s screenshots?
55The Crown adduced screenshots of several electronic messages that purport to be a conversation over Blackberry Messenger (BBM) between H.J. and someone with a username of “Knight in shining”. Many of the messages are sexually explicit. Some describe sexual acts that “Knight in shining” wants to engage in with H.J. Some talk about H.J. engaging in prostitution to make “Knight in shining” money. Some messages are about friends of “Knight in shining” who engage in sexual activity with their own children. Several of the messages contained photographs that are overtly sexual. “Knight in shining” said that one of the photographs is of his friend having sex with his own daughter. The Crown alleges that photograph and accompanying text constitute child pornography.
56The Crown takes the position that Mr. Mootoo wrote the messages captured in the screenshots and sent them to H.J. The Crown argues that the screenshots are direct evidence of Mr. Mootoo making sexually explicit material available to H.J. (count #4), recruiting H.J. to engage in sexual services for consideration (count #3), and luring H.J. for the purpose of facilitating an offence (count #5). The Crown also relies on the screenshots to prove that Mr. Mootoo was in possession of child pornography (count #6) and that he was in possession of the child pornography for the purpose of distributing it to H.J. (count #7). Given the importance of the screenshots to the Crown’s case, I must rigorously assess the admissibility and reliability of this evidence: R. v. Aslami, 2021 ONCA 249, 155 O.R. (3d) 401, at para. 30.
57The screenshots are photographs of messages purportedly received by H.J. A photograph is presumptively admissible if it accurately and fairly depicts what is shown in the picture and if it is authenticated: R. v. Tello, 2018 ONSC 356, at para. 9. Like any evidence, photographs can be excluded if their probative value is exceeded by their prejudicial effect. However, the burden would be on Mr. Mootoo to show that presumptively admissible evidence should be excluded because of to its prejudicial effect: R. v. Murphy, 2011 NSCA 54, 303 N.S.R. (2d) 356, at paras. 34-50; R. v. Currie, 2000 22822 (ON SC), 31 C.R. (5th) 306 (Ont. S.C.), at para. 8; and R. v. Granados-Arana, 2017 ONSC 2123, at paras. 3-4.
58There are three issues for me to decide before I can rely on the screenshots. First, are the screenshots authentic? In other words, has the Crown proven beyond a reasonable doubt that the screenshots depict actual messages received by H.J.? Mr. Mootoo argued that H.J. and her sister fabricated the messages in the screenshots. Second, is it fair to rely on the screenshots if some of the messages between H.J. and “Knight in shining” were not captured? Third, even if the screenshots are accurate, authentic and fair, has the Crown proven that Mr. Mootoo sent the messages to H.J.?
a. Are the screenshots accurate and authentic?
59Electronic evidence is inherently fallible. It is easy to create fake messages or manipulate real messages so they appear to be from someone other than the true sender. Dates and times associated with a message can also be altered. Jeff Lynch, the Technical Program Manager at Blackberry, was qualified as an expert on the functioning of BBM. He testified that in 2017 Blackberry did not verify the identity of BBM users so one BBM user could impersonate another BBM user by simply creating a new account and copy the other user’s profile picture and display name. The two accounts would look identical to the recipient of a message. The only way to tell the fake account from the real account would be through the account pin numbers, which are not displayed as part of an incoming or outgoing message.
60Given the reality that electronic evidence can be fabricated and manipulated, I must carefully consider whether the screenshots are pictures of actual messages that H.J. received: Aslami, at paras. 10–11, 30. Amicus argued that I should have a reasonable doubt about the authenticity of the messages because the Crown did not adduce forensic evidence that the messages captured in the screenshots were on H.J.’s phone or in her BBM account and because H.J. is not a credible witness. Mr. Mootoo argues that H.J. or her sister fabricated the messages.
61The easiest way for the Crown to authenticate the screenshots would have been to adduce expert forensic evidence that the messages captured in the screenshots were on H.J.’s phone or in her BBM account. But forensic evidence is not the only way to authenticate screenshots of messages. The person who received the messages or who took the screenshots can attest to their authenticity. Anyone who saw the messages in H.J.’s BBM account could also attest to the authenticity of the screenshots.
62The Crown did not adduce any forensic evidence that the messages from “Knight in shining” were on H.J.’s phone or in her BBM account. My finding about the authenticity of the screenshots will, therefore, depend at least in part on H.J.’s credibility and the reliability of her evidence.
63Assessing H.J.’s credibility and the reliability of her evidence about the authenticity of the screenshots is not easy. On the one hand, there are several problems with the credibility and reliability of H.J.’s evidence about what happened on March 23 and March 24, 2017, which I have detailed below in my discussion of the sexual assault and sexual interference charges. On the other hand, some of H.J.’s evidence is corroborated and, therefore, reliable.
64I can accept some, all or none of a witness’ evidence. Just because I reject some of H.J.’s evidence does not mean I must reject all her evidence. The problems with H.J.’s evidence about March 23 and March 24, 2017 cause me to approach all of her evidence with caution. Nevertheless, I accept her evidence that the screenshots are accurate pictures of messages she received.
65H.J. testified that she started communicating with Jay over BBM after they met in person. She downloaded the BBM application at Jay’s suggestion. H.J. testified that one of the usernames Jay used on Blackberry Messenger was “Knight in Shining Armour.” On the screenshots, the username that is visible is just “Knight in shining.” H.J. testified that the “Knight in shining” messages were from Jay. H.J. testified she did not use BBM to communicate with anyone other than Jay.
66H.J. testified that after communicating with Jay for a few days by BBM, she started to take screenshots of his messages because her sister told her to. H.J. testified that either she or her sister took the screenshots that were tendered as evidence at the trial. H.J. testified that the screenshots accurately capture messages she received from and sent to “Knight in Shining Armour” and they accurately capture her conversation with Jay.
67H.J.’s testimony was corroborated in part by K.J. who confirmed that “Knight in Shining Armour” was the only contact in H.J.’s BBM account. K.J. also testified that she saw inappropriate messages from “Knight in Shining Armour” in H.J.’s BBM account after H.J. came home on March 24, 2017.
68H.J.’s evidence is also partially corroborated by the testimony of Officer Allard and Detective Braganza who both testified that they saw sexually explicit and inappropriate messages on H.J.’s phone. Detective Braganza testified that he saw several messages come in on H.J.’s phone while it was in his possession. He testified that he read those messages and took screenshots of them. He testified that he took screenshots of other messages that were on H.J.’s phone as well. Detective Braganza testified that he also reviewed screenshots that had been taken before he seized H.J.’s phone of messages between H.J. and “Knight in Shining.”
69Officer Allard testified that he went to H.J.’s house on March 30, 2017 in response to a radio call about a missing person who had been found. Officer Allard testified that he spoke briefly to H.J. H.J. told him about meeting up with Jay. H.J. told Officer Allard she had received messages and photographs from Jay after they met. Officer Allard testified that he saw some of the photographs and messages. Officer Allard said the messages and photographs were sexually explicit.
70In my view, there is no evidence that H.J. or K.J. fabricated or altered any messages from “Knight in Shining.” H.J. was cross-examined at length about the fact that the screenshots do not capture all the communications with Jay. It was never suggested to H.J. that she fabricated the messages in the screenshots or that she manipulated the content of the messages.
71K.J. was also asked about the screenshots. K.J. testified that she saw inappropriate messages on H.J.’s phone from someone with a username “My Knight in Shining Armour.” I am satisfied that K.J. was referring to and read messages from the “Knight in Shining Armour” or “Knight in shining” account and was simply mistaken about the precise screen name. Mr. Mootoo never suggested to K.J. in cross-examination that she fabricated any of the messages captured in the screenshot or manipulated messages in H.J.’s account from “Knight in Shining Armour.”
72Mr. Mootoo and amicus suggested that H.J. and K.J. had a motive to fabricate messages from “Knight in Shining Armour” to frame Jay.
73There is evidence that H.J. and K.J. wanted to gather evidence to implicate Jay. K.J. believed Jay was trafficking young girls. H.J. testified that her sister wanted to “get” Jay. She said K.J. wanted Jay to send messages about how he was a pimp so they could take screenshots of the messages and give them to the police. H.J. said the only reason she continued to communicate with Jay after March 23, 2017 was to gather evidence against him. K.J. confirmed that she told H.J. to keep communicating with Jay so they could gather evidence to give to the police.
74There is also evidence that K.J. impersonated H.J. and sent messages herself to “Knight in Shining Armour.” K.J. initially said that she did not send any messages to “Knight in Shining Armour.” She later changed her testimony and said she sent more than one explicit message to “Knight in Shining Armour” from H.J.’s BBM account pretending to be H.J. I accept K.J.’s evidence that she sent sexually explicit messages to “Knight in Shining Armour” pretending to be H.J. However, that does not mean that K.J. fabricated or manipulated any messages received from “Knight in Shining Armour.”
75A motive to gather or preserve evidence is not the same as a motive to fabricate evidence. There is nothing inherently nefarious about a complainant wanting to gather or preserve evidence of a sexual offence. There is also nothing nefarious about H.J. continuing to communicate with Jay hoping that he would send incriminating messages. H.J. told the police she did not save the messages they exchanged on Instagram before they met. She told the police that their Instagram messages are no longer available because Jay deleted his Instagram account. H.J. testified that Jay told her to delete his BBM messages. H.J. told the police that she deleted some of Jay’s messages. H.J. testified that at some point, Jay started retracting messages he sent from the “Knight in Shining Armour” account. The expert from Blackberry testified that when a BBM message is retracted, it is deleted from both the sender’s account and the recipient’s account. The only way for H.J. to preserve the messages she received from “Knight in Shining Armour” was to take screenshots of them.
76As outlined in greater detail below, there is evidence that H.J. had a motive to fabricate the sexual assault allegation against Mr. Mootoo to avoid getting in trouble for skipping an important appointment and for not going home on March 23, 2021. However, I am satisfied that it was K.J.’s idea to take screenshots of inappropriate messages Jay sent to H.J. to give to the police. There is no evidence that K.J. had a motive to fabricate messages from “Knight in Shining Armour.” Her motive was to gather and preserve evidence.
77Even in the absence of forensic evidence that the messages were on H.J.’s phone, I accept her evidence that the screenshots are pictures of actual messages she received.
b. Is it fair to rely on the screenshots if there are messages missing?
78The screenshots do not capture every message between H.J. and “Knight in Shining Armour.” For example, one of the first messages from H.J. in the screenshots says, “What exactly do you mean by me getting pimped out”. There is no earlier message from “Knight in Shining Armour” that makes reference of H.J. being “pimped out.” There are several other messages that do not appear to be responsive to earlier messages. There are also screenshots that clearly cut off part of a message. H.J. agreed that the screenshots do not capture her entire conversation with Jay. H.J. could not explain why some of the messages were not captured in the screenshots. She could not remember how many messages were missing or the content of the missing messages.
79Amicus argues that I should not rely on the screenshots because they do not capture the text full conversation between H.J. and “Knight in Shining Armour.” In some circumstances, a statement by the defendant may be inadmissible if part of the statement is missing and it is out of context. As a general rule, the Crown is not permitted to adduce only a portion of a defendant’s statement; the Crown must adduce the full statement: R. v. Ferris, 1994 ABCA 20, 149 A.R. 1, at paras. 17–23, aff’d 1994 31 (SCC), [1994] 3 S.C.R. 756. But text messages are different than oral statements. A text message is an accurate record of what was said. If the meaning of a text message is clear on its own, the message can be admissible even if it was part of a longer conversation that was not all captured: R. v. Bridgman, 2017 ONCA 940, 138 O.R. (3d) 721, at paras. 45-58.
80The meaning of most of the text messages from “Knight in shining” is clear and not open to interpretation. For example, in one series of messages “Knight in shining” responded to H.J.’s question about what he meant by pimping her out with the following messages:
Have u at my house and me and my friends
Take turns fucking u when ur 16
N u give us head all the guys
These messages were captured in a single screenshot. There are no messages missing from Mr. Mootoo’s response and the meaning of these messages is clear. Two minutes later, “Knight in shining” wrote, “OK baby but ya I mean guys would pay even to suck ur pussy.” The meaning of that message is also clear on its face.
81In another series of messages, also captured in a single screenshot, “Knight in shining” wrote:
Good daddy wants his little girl breast feeding on a sofa
Playing with ur pussy butt naked
While breast feeding.
Again, the meaning of these messages is clear and not open to interpretation even if other messages in this text conversation might be missing.
82While H.J. and K.J. decided which messages to capture, there is no evidence that they deliberately captured only some messages to alter or manipulate the meaning of the messages. In my view, there is nothing unfair about relying on the screenshots if the meaning of the messages is clear even if some messages are missing.
c. Did Mr. Mootoo send H.J. the messages captured in the screenshots?
83Having found that the screenshots accurately and fairly capture actual messages received by H.J., the last issue is whether the Crown has proven beyond a reasonable doubt that Mr. Mootoo sent those messages.
84Amicus argues that I should be left with a reasonable doubt about whether Mr. Mootoo sent the messages because there is no evidence the messages were found on Mr. Mootoo’s phone and because H.J. and her sister had a motive to fabricate the messages.
85I have already found that there is no evidence that H.J. or her sister had a motive to fabricate messages from Mr. Mootoo. Although there is no evidence the messages or remnants of the messages were on Mr. Mootoo’s phone, there are several other pieces of circumstantial evidence that convince me beyond a reasonable doubt that Mr. Mootoo sent the messages in the screenshots to H.J.
86First, there was a contact in the BBM account on Mr. Mootoo’s phone in the name of H.J., which suggests that Mr. Mootoo communicated with H.J. by BBM.
87Second, the pin number associated with the “Knight in Shining Armour” BBM account on H.J.’s phone is the same pin number for the BBM account on Mr. Mootoo’s phone. H.J. read the pin number associated with the “Knight in Shining Armour” BBM account from her phone during her police interview. The pin number was 5F7183A3. Detective Garcia testified that the pin number associated with the BBM account on Mr. Mootoo’s phone was also 5F7183A3.
88The username associated with the BBM account on Mr. Mootoo’s phone was “=-d JAY+-d”, not “Knight in Shining Armour”. In my view, this is not significant. The expert from Blackberry testified that BBM users could change the name that appears on their outgoing messages. But the pin number did not change when the display name was changed.
89The expert from Blackberry testified that each BBM account has a pin number that is intended to be a unique identifying number. The expert testified it should not have been possible for two BBM accounts to have the same pin number. The BBM application automatically generated a pin number for each new account. In 2017, BBM users could change or customize their pin numbers. Customized pin numbers could not look like an existing pin, could not look like an automatically generated pin and could not start with the number 5 or the number 2. The pin number on Mr. Mootoo’s phone was not a custom pin; it was an automatically generated pin. The pin number on H.J.’s phone for “Knight in Shining Armour” was the same automatically generated pin, which supports my conclusion that H.J. did not fabricate a BBM account to look like Jay’s Knight in Shining Armour account. If she created a fake BBM account to fabricate messages from “Knight in Shining Armour”, it would have had a different pin number.
90Because the pin numbers associated with the BBM messages on H.J.’s phone and the account on Mr. Mootoo’s phone are the same, I am satisfied that the BBM account on Mr. Mootoo’s phone was used to send the messages to H.J.
91Third, all of the photographs H.J. received from “Knight in shining” were also found on Mr. Mootoo’s phone. H.J. received nine photographs from “Knight in shining”:
two photographs purporting to be of the mother of Knight in shining’s son having sex while she was pregnant,
a photograph of the pregnant woman in a red shirt that Knight in shining said was the mother of his child,
three photographs of a woman that Knight in shining describe as a friend who engaged in sexual activity with her own sons – one photograph is a woman fully clothed, one is of a woman wearing just black underwear and a black bra with the word “Goddess” imposed on the photograph, and one is of a woman’s kneeling on a bed wearing a black body suit,
a photograph of a man that Knight in shining described as a friend who engaged in sexual activity with his own daughter
a picture of a young woman in red underwear and a black shirt that Knight in shining said was his friend’s daughter; and
a picture of a penis penetrating a woman’s vagina that Knight in Shining Armour said was a picture of his friend having sex with his daughter.
92Each and every photograph in the messages from Knight in shining was found on Mr. Mootoo’s phone when Detective Garcia analyzed it. In my view, it is not plausible that Mr. Mootoo innocently and coincidentally had all nine images from the screenshots on his phone. The presence of the photographs from the screenshot on Mr. Mootoo’s phone is powerful evidence that he sent the photographs to H.J. It is also powerful evidence that H.J. did not fabricate the BBM messages. It is also not plausible that H.J. could create fake BBM messages containing sexually explicit photographs that Mr. Mootoo also happened to have on his phone.
93Finally, the profile photograph associated with the “Knight in shining” BBM account on H.J.’s phone (which is not a photograph of Mr. Mootoo) was also found on Mr. Mootoo’s phone. Again, it is not plausible that Mr. Mootoo coincidentally had a photograph of another man on his phone that happened to be the profile picture associated with a BBM account with his pin number on H.J.’s phone.
94In my view, the only reasonable inference from all the circumstantial evidence is that “Knight in shining” or “Knight in shining armour” is Mr. Mootoo’s BBM account and Mr. Mootoo sent the messages captured in the screenshots to H.J.
(iv) Did Mr. Mootoo know H.J. was 15 years old?
95H.J.’s age and Mr. Mootoo’s knowledge about her age are essential elements of several charges against Mr. Mootoo. For example, Mr. Mootoo cannot be found guilty of inviting or counselling H.J. to touch herself for a sexual purpose (count #8) unless the Crown proves that H.J. was under the age of 16 at the relevant time and Mr. Mootoo knew she was under 16 or that he was reckless as to her age: R. v. Carbone, 2020 ONCA 394, 150 O.R. (3d) 758, at para. 131.
96H.J. testified that she was 15 years old in March 2017. I accept her evidence on this point. The real issue is whether the Crown has proven beyond a reasonable doubt that Mr. Mootoo knew or believed H.J. was 15.
97H.J. testified that she told Mr. Mootoo that she was 15 before they met and while they were together. H.J. testified that she also told Mr. Mootoo she was in high school before they met. H.J. testified that on the morning of March 24, 2017, she told Mr. Mootoo she had to go to school. H.J. also told the police that Mr. Mootoo said he would not tell her his real name until she turned 16.
98Mr. Mootoo was not represented at trial. Counsel appointed under s. 486.3 cross-examined H.J. on Mr. Mootoo’s behalf. It was suggested to H.J. in cross-examination that at one point she told Mr. Mootoo she was 18 years old and at another time she told him she was 20 years old. It was also suggested to H.J. that the reason she deleted the messages she sent Mr. Mootoo before they met is because those messages would show that she told Mr. Mootoo that she was 18 years old. Finally, it was suggested to H.J. that she kept up the lie that she was 18 when she met Mr. Mootoo on March 23, 2017. H.J. denied all of these suggestions. She maintained that she told Mr. Mootoo she was 15 years old.
99Mr. Mootoo made only brief closing submissions. Mr. Mootoo did not expressly raise mistake of age as a defence in his closing submissions. However, Mr. Mootoo made comments during the trial that H.J. lied to him about her age. I take from Mr. Mootoo’s comments and the cross-examination of H.J. that Mr. Mootoo’s position is that he thought H.J. was 18 (or older).
100Mr. Mootoo may have a defence to the invitation to sexual touching charges if he honestly but mistakenly believed H.J. was 16 years old (or older). When mistake of age is raised, I must first decide if there is a basis in the evidence to support the defence. If there is, the burden shifts to the Crown to negate the defence. The Crown can negate the defence by proving either that Mr. Mootoo did not believe H.J. was older than 16 or by proving that he did not take all reasonable steps to ascertain her age. If, on the other hand, there is no basis in the evidence to support the defence or if the Crown is able to disprove the defence, I must still consider whether the Crown has proven beyond a reasonable doubt that Mr. Mootoo knew H.J. was 15 or was reckless as to her age: Carbone, at para. 129, Criminal Code, s. 150.1(4),
101As is his right, Mr. Mootoo chose not to testify. I, therefore, have no direct evidence from him about what he believed about H.J.’s age or what steps, if any, he took to confirm her age.
102Given the concerns I have about H.J.’s credibility and reliability, her testimony alone does not satisfy me beyond a reasonable doubt that she told Mr. Mootoo that she was 15 years old and that Mr. Mootoo knew she was 15. However, Mr. Mootoo made reference to H.J.’s age in several text messages he sent to H.J. after they met. In one message, Mr. Mootoo referred to H.J. as his “teenage slut.” In another series of messages, Mr. Mootoo said that he and his friends will “take turns fucking u when ur 16”, which I take to be short-hand for “when you are 16.” Mr. Mootoo also sent H.J. a message that said “in a few months” H.J. would be all his. I infer from these messages that Mr. Mootoo wanted to wait until H.J. turned 16 before having sex with her and engaging her in prostitution.
103In my view, there is no basis in the evidence to support a mistake of age defence. In fact, Mr. Mootoo’s messages prove he knew H.J. was not yet 16 years old. I am satisfied beyond a reasonable doubt that by the time Mr. Mootoo was sending sexually explicit messages to H.J., he knew she was only 15 years old.
104It is not clear whether the Crown has to prove that Mr. Mootoo actually knew or believed H.J. was under the age of 16 for Mr. Mootoo to be found guilty of luring H.J. for the purpose of facilitating the commission of an offence under s. 172.1(1)(b) of the Criminal Code (count #5) or making sexually explicit material available to H.J. under s. 171.1(1)(b) of the Criminal Code (count #4). Section 172.1(1)(b) makes it an offence for anyone to communicate by means of telecommunication with a person “who is, or who the accused believes is, under the age of 16 years” for the purpose of facilitating one of the enumerated offences. Similar language in used in s. 171.1(1)(b), which makes it an offence to send sexual explicit material to a person “who is, or who the accused believes is, under the age of 16 years” for the purpose of committing an offence. These offences criminalize conduct directed at a person who is under the age of 16 and conduct directed at someone who the defendant mistakenly believes is under the age of 16 (like an undercover officer posing online as a young girl).
105For the purpose of s. 171.1 and 171.2, if the defendant is communicating with an adult but thinks they are communicating with a child, the Crown must prove beyond a reasonable doubt that the defendant subjectively believed the person was under the age of 16. Recklessness as to the age is not sufficient in those circumstances: R. v. Drury, 2020 ONCA 502, 391 C.C.C. (3d) 18, at para. 60. The Crown is required to prove the defendant actually believed the person he was communicating with was under the age of 16 because the defendant’s state of mind is the main justification for criminalizing the communication. It is not a criminal offence to make sexually explicit material available to an adult or to communicate with an adult on line for a sexual purpose. When the defendant is communicating with an adult, there is no risk that any young person will be harmed by the communication. There is also no risk the defendant will facilitate the commission of an offence involving a child. It is the defendant’s mistaken belief that the person he is communicating with is under 16 and the defendant’s intention to communicate with a child for the purpose of facilitating a sexual offence that makes his conduct sufficiently blameworthy to warrant criminal sanction: Carbone, at para. 99, R. v. Alicandro, 2009 ONCA 133, 95 O.R. (3d) 173, at paras. 30-31, leave to appeal refused, [2009] S.C.C.A. No. 395; R. v. Legare, 2009 SCC 56, [2009] 3 S.C.R. 551, at paras. 32-34.
106The rationale for criminalizing communicating with someone like H.J. who is under the age of 16 (as opposed to an adult posing as someone under the age of 16) is different. It is not just the defendant’s state of mind that makes his conduct blameworthy. The conduct itself causes harm or a significant risk of harm. When the defendant is communicating with an actual child, like H.J., there is a real risk of harm to that child. There is also a risk that the defendant will commit a sexual offence involving that child. In those circumstances, it may be that proof of something less than subjective belief about the complainant’s age – i.e. proof of recklessness – may be sufficient to justify a conviction. I do not need to resolve this issue because I have already found that Mr. Mootoo subjectively knew H.J. was 15 years old.
107Section 286.3(2) of the Criminal Code makes it an offence for anyone to procure a person under the age of 18 to engage in prostitution. The Criminal Code does not specify what the Crown must prove in relation to the defendant’s belief about the complainant’s age under s. 286.3(2). Is proof of actual knowledge required or is recklessness as to the complainant’s age sufficient like it is under s. 152 of the Code? Again, I do not need to resolve this issue because I am satisfied beyond a reasonable doubt that Mr. Mootoo knew that H.J. was only 15 years old when he sent her messages and spoke to her about engaging her in prostitution when she turned 16.
(v) Conclusions
108In summary, I have made the following factual findings that are relevant to some or all of the charges on the indictment:
(i) Mr. Mootoo is Jay;
(ii) H.J. met Mr. Mootoo on March 23, 2017 and stayed at his apartment that night;
(iii) The screenshots tendered by the Crown are photographs of actual BBM messages received by H.J.;
(iv) Mr. Mootoo sent the sexually explicit messages and photographs to H.J.; and
(v) By the time Mr. Mootoo was sending H.J. sexually explicit messages, he knew that H.J. was 15 years old.
109I turn now to the issue of whether the Crown has proven the essential elements of each count beyond a reasonable doubt.
D. THE OFFENCES
(i) Sexual Assault (Count #2) and Sexual Interference (Count #1)
110Although sexual interference and sexual assault are distinct offences, they have some common elements. For example, one of the elements the Crown must prove in relation to both sexual assault and sexual interference is that Mr. Mootoo touched Ms. Jones in a sexual manner.
111H.J. told the police that she and Mr. Mootoo went out to buy shawarma at a nearby restaurant shortly after they got to his apartment on March 23, 2017. When they got back, H.J. ate a little and then told Mr. Mootoo she was tired. She testified that Mr. Mootoo asked if she wanted to sleep in his bedroom. She told him she wanted to sleep on the couch. H.J. says they went into the living room and sat on the couch. Mr. Mootoo turned on the television. H.J. testified that Mr. Mootoo sat very close to her on the couch, which made her uncomfortable. She says he touched her thigh with his leg and with his hand. H.J. said Mr. Mootoo also put his arm around her shoulder and touched her breast over her clothes. H.J. testified Mr. Mootoo eventually left the living room and she went to sleep on the couch.
112If Mr. Mootoo touched H.J.’s breast, I would have no difficulty concluding that he touched her in sexual manner. The real question is whether I am satisfied beyond a reasonable doubt that Mr. Mootoo touched H.J. as she described. The answer to that question turns on my assessment of H.J.’s credibility and the reliability of her evidence.
a. Assessing H.J.’s credibility and the reliability of her evidence
113Reliability refers to H.J.’s ability to accurately observe, recall and describe relevant events. Credibility refers to whether H.J. was telling the truth: R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at para. 33. I can only consider evidence that is both credible and reliable when deciding whether the Crown has proven its case beyond a reasonable doubt: R. v. Nyznik, 2017 ONSC 4392, 350 C.C.C. (3d) 335, at para. 15.
114H.J.’s testimony does not need to be corroborated before I can accept and rely on it: Criminal Code, s. 274. Sexual offences often occur in private. There is often no evidence to corroborate what the complainant says happen. It is, of course, possible for the Crown to prove a sexual assault or sexual interference charge beyond a reasonable doubt based solely on the uncorroborated testimony of the complainant. But if there is evidence that corroborates the complainant’s testimony that will tend to enhance her credibility and the reliability of her evidence. If there is evidence that contradicts the complainant that tends to undermine her credibility and reliability.
115Another useful tool for assessing the credibility and reliability of H.J.’s evidence is to consider whether there are inconsistencies between what she said at trial and what she has said about the same thing on other occasions. Inconsistencies between what H.J. said and what other witnesses said about the same topic are also relevant.
116Inconsistences vary in terms of their significance. On the one hand, minor inconsistencies about peripheral issues might not undermine the credibility or the reliability of a witness. On the other hand, a single inconsistency about a central issue in the case could significantly undermine the witness’s credibility and reliability. A series of inconsistencies might have a more significant impact on a witness’s credibility and reliability than a single inconsistency. I must, of course, consider any explanation given for an inconsistency by the witness.
117I must also consider H.J.’s age when considering the significance of any gaps or inconsistencies in her evidence: R. v. W.(R.), 1992 56 (SCC), [1992] 2 S.C.R. 122, at p. 133. H.J. was only 15 years old when the alleged sexual assault occurred. She was 19 years old when she testified at trial. The evidence of every witness, whether an adult or a child, must be assessed with the same level of scrutiny: R. v. B.(G.), 1990 7308 (SCC), [1990] 2 S.C.R. 30, at pp. 54-55. However, children experience the world differently than adults. Children may not remember details like dates, times and location that are important to adults. As a result, inconsistencies or gaps in relation to peripheral issues might impact the credibility and reliability of a child witness less than it would the testimony of an adult witness.
118Finally, if H.J. had a motive to fabricate evidence against Mr. Mootoo, that would be another relevant factor in assessing her credibility and the reliability of her evidence: R. v. Batte (2000), 2000 5751 (ON CA), 49 O.R. (3d) 321 (C.A.), at para. 121. Of course, Mr. Mootoo has no obligation to explain why H.J. would make a false allegation against him. The reason why H.J. might have fabricated the allegations may not be apparent. But if there is evidence that H.J. had a reason to make a false allegation against Mr. Mootoo that would be highly relevant to my assessment of her credibility and the reliability of her evidence.
b. Corroborating Evidence
119Some of H.J.’s testimony about what happened when she was with Mr. Mootoo on March 23 and March 24, 2017 was corroborated. For example, H.J. testified that when she arrived at Jay’s building, she took the elevator to the tenth floor and knocked on the door to Apartment 1005. She says that while she was at the door of Apartment 1005, a man got off the elevator and called her name. She said they got back on the elevator and they went to an apartment on the fifth floor. Security video from 3847 Lawrence Ave. East corroborates H.J.’s testimony on this point. The video shows that H.J. got on the elevator in the lobby and got off on the tenth floor. The video also shows that Mr. Mootoo took the elevator to the tenth floor and briefly stepped off the elevator into the hall. A few seconds later, H.J. got on the elevator with Mr. Mootoo and they take the elevator to the fifth floor.
120H.J.’s testimony about going to buy shawarma is also corroborated by the security video. She said that they got to Mr. Mootoo’s apartment at approximately 10:00 p.m. She said they went out a few minutes later to get food. She said they went down the stairs by Mr. Mootoo’s apartment and out a side door of the building. There is no video from the elevators or the lobby of Mr. Mootoo and H.J. leaving his building together on March 23, 2017. There is, however, video of Mr. Mootoo and H.J. getting in the elevator in the lobby shortly after 10:00 p.m. Mr. Mootoo had a bag in his hand. The video corroborates H.J.’s evidence that they went out to buy food and that they left through a side door of the building, not through the lobby.
c. Errors and Inconsistencies in H.J.’s evidence
121There were many, many errors and inconsistencies in H.J.’s testimony. The video evidence significantly contradicted some of H.J.’s testimony about what happened when she was with Mr. Mootoo. There are inconsistencies in H.J. testimony at trial. There are also inconsistencies between what H.J. said at trial and what she said in her police statement (which she adopted at trial) and what she said at the preliminary inquiry. Some of the errors and inconsistencies are minor. However, several errors and inconsistencies are much more significant. In fact, I am of the view that H.J. intentionally lied or exaggerated about some parts of what happened to make her seem more sympathetic and to make her allegations seem more serious. I do not intend to review every error and inconsistency in H.J.’s evidence. My analysis will focus on the inconsistencies that significantly undermine her credibility and reliability.
122Before I catalogue the significant errors and inconsistencies in H.J.’s evidence, I want to address two matters that do not, in my view, impact H.J.’s credibility and reliability: H.J.’s demeanour in the videos from March 23 and 24, 2017 and the incremental manner in which H.J. disclosed information to the police about the sexual assault.
123H.J. testified that she was terrified when she first saw Mr. Mootoo on March 23, 2017 because he looked much older than she expected. She also testified that she was horrified and scared by things Mr. Mootoo told her that day. She said that Mr. Mootoo told her he was a pimp and told her he wanted to pimp her out. She said that Mr. Mootoo told her he pimped out the mother of his children. He also told her he engaging in sexual activities with children. She testified she was still scared when she went to Cedarbrae Mall with Mr. Mootoo the next morning. H.J. was shown the video of these interactions and agreed that she did not look terrified or scared in either video. In both videos she appears to be smiling and comfortable with Mr. Mootoo. I do not take anything from the potential inconsistency between H.J.’s description of how she was feeling and how she appeared on the video. Someone can be subjectively terrified without showing any observable signs of their fear.
124H.J’s sister reported her missing to the police on March 23, 2017. After H.J. returned home, a police officer came to her house to confirm that she was safe. H.J. did not tell the first officer she spoke to that Jay touched her breast. She did not disclose the alleged sexual assault to the police until March 30, 2017. Deciding to report an alleged sexual offence to the police is a difficult decision. Some complainants decide to report right away. Some complainants wait before disclosing what happened. And some complainants never disclose what happened to them: R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 25. Sharing the details of traumatic events can also be very difficult and may happen incrementally. I do not take anything from the timing or incremental manner of H.J.’s disclosure about the alleged sexual assault.
The video evidence contradicts H.J.
125H.J.’s evidence about what happened on March 23, 2017 and March 24, 2017 was contradicted in several significant ways the video evidence.
126First, H.J.’s evidence about running into a girl she knew from kindergarten in the lobby of Mr. Mootoo’s building was contradicted by the video from 3847 Lawrence Ave. East.
127H.J. testified that she was sure she met her friend by the elevators in the lobby of Mr. Mootoo’s building. H.J. testified that she told her friend she was there to see someone she met online and her friend told her that was a bad idea. H.J. said she told her friend she could not go home because her family would be upset with her and she could not handle that. H.J. also told the police she used her friend’s phone to send Mr. Mootoo the Instagram message saying she was in his lobby, which was time stamped at 7:32 p.m.
128The video from 3847 Lawrence Ave. East shows that H.J. walked into the building just before 9:30 p.m. and walked directly to the elevator. Less than a minute later, she was in the elevator. H.J. did not speak to anyone in the lobby of Mr. Mootoo’s building.
129Even after being shown the security video, H.J. maintained that she did speak to a friend from junior kindergarten in the lobby of Mr. Mootoo’s before she got on the elevator. I find that H.J. is wrong about this. I also find her insistence she did meet a friend in Mr. Mootoo’s building in the face of contradictory video evidence significantly undermines H.J.’s credibility and the reliability of her evidence.
130H.J. also gave inconsistent evidence about meeting her friend from kindergarten. At trial, H.J. testified she met her friend in the lobby of Mr. Mootoo’s building. H.J. testified that her friend was alone when they met. H.J. initially testified she borrowed her friend’s phone to send Mr. Mootoo a message to let him know she was in his building. At the preliminary inquiry, H.J. testified her friend was with her brother and she borrowed the brother’s phone to contact Jay. Eventually, H.J. admitted at trial that her preliminary inquiry testimony about borrowing the brother’s phone was not true. She also said that she did not remember using anyone’s phone in Mr. Mootoo’s building. These inconsistencies further undermine the reliability of H.J.’s account of what happened on the evening of March 23, 2017.
131Second, H.J.’s evidence about how long it took her to get into Mr. Mootoo’s building was both internally inconsistent and contradicted by the video from 3847 Lawrence Ave. East.
132H.J. told the police it took her hours to get into Mr. Mootoo’s building. She said, “I was waiting and waiting and waiting, and then some man walked out and I went in.” At trial, H.J. testified that she waited for 10 or 15 minutes inside the vestibule of Mr. Mootoo’s building before someone left and she was able to get into the lobby. Both these accounts were contradicted by the video from 3847 Lawrence Ave. East. According to the video, H.J. entered the vestibule of Mr. Mootoo’s building at 9:25:47 p.m. At 9:27:19 p.m. someone left the building and H.J. walked into the lobby while the door was open. H.J. waited less than two minutes in the vestibule of Mr. Mootoo’s building, not 15 minutes or several hours. During cross-examination, H.J. ultimately admitted that she over-exaggerated how long it took her to get into Jay’s building. H.J. also agreed that she, in March 2017, was prone to exaggerate, even in very serious situations.
133Third, some of H.J.’s evidence about what happened on the morning of March 24, 2017 was contradicted by security video from Cedarbrae Mall.
134H.J. told the police she woke up at around 10:00 a.m. on March 24, 2017. H.J. said she was concerned when she woke up so late because she usually wakes up at 8:00 or 8:30 a.m. The police obtained video from Tim Hortons and from the food court at Cedarbrae Mall. The security video from Cedarbrae Mall shows that H.J. and Mr. Mootoo arrived at Cedarbrae Mall at approximately 9:20 a.m.
135There is a discrepancy between the time on the Tim Hortons video and the time on food court video. According to the Tim Hortons video, H.J. and Mr. Mootoo arrived in the food court just after 9:17 a.m. According to the food court video, they arrived just after 9:24 a.m. Nothing turns on the precise time Mr. Mootoo and H.J. are in the food court of Cedarbrae Mall. I find that the seven-minute discrepancy is inconsequential. I otherwise find that the video from Cedarbrae Mall is accurate and authentic.
136Based on the timeline from the video, Mr. Mootoo and H.J. must have left Mr. Mootoo’s apartment at or before 9:00 a.m., which proves that H.J. did not wake up much later than normal. Ordinarily, the fact that a child witness was mistaken about when they woke up would not be significant. However, H.J. used the fact that she woke up late to suggest that Mr. Mootoo had drugged her the night before.
137H.J. told the police that she and Jay smoked some marijuana when they were in his room on March 23, 2017. She said the joint she smoked had honey or brown specks on the outside of it. H.J. said that she had tried marijuana before but this time was different. She said she took one puff of marijuana and almost passed out. H.J. told the police she thought something was suspicious because Jay did not share her joint. H.J. also told the police that she did not eat any food at Mr. Mootoo’s apartment other than the shawarma he bought because she was worried he could have done something to it.
138At trial, H.J. agreed that she was trying insinuated in her police statement she woke up later than normal because Mr. Mootoo drugged her the night before. But did not wake up later than normal, which undermines her suggestion that she was drugged. I find that H.J.’s evidence about waking up late and being concerned that Mr. Mootoo had drugged her was designed to make her allegation more serious. This significantly undermines both her credibility and the reliability of her evidence.
139H.J.’s evidence of what happened at Cedarbrae Mall was also contradicted by the video. H.J. told the police that Jay ordered her coffee and something to eat from Tim Hortons while she went to the washroom. She said she loves coffee but did not drink the coffee Mr. Mootoo bought because she was afraid he put something in it. H.J. told the police that Jay noticed that she was not drinking her coffee and asked her if she was going to drink it.
140The video from Tim Hortons show that Mr. Mootoo never had an opportunity to put anything in H.J.’s coffee. H.J. took her coffee directly from the counter at Tim Hortons. Mr. Mootoo never had her coffee in his possession.
141The video also shows that, contrary to what H.J. told the police, she drank the coffee Mr. Mootoo bought her. She drank some while she is waiting for Mr. Mootoo to pay the cashier. She drank more while they were sitting at a table in the food court.
142H.J. ultimately agreed there was no opportunity for Mr. Mootoo to put anything in her coffee. She admitted that her police statement about not drinking her coffee was not true. She admitted that Mr. Mootoo never asked her why she was not drinking her coffee and that portion of her statement was also untrue. I find that H.J. lied to the police about being afraid that Mr. Mootoo put something in her coffee. I find that she fabricated this evidence to make her allegations against Mr. Mootoo seem more serious. This further undermines her credibility and the reliability of her evidence.
Inconsistencies about why H.J. did not have her phone
143H.J. testified that she did not take her phone with her when she left home on March 23, 2017. H.J.’s sister, K.J., confirmed that H.J. left her phone at home that day. However, H.J. gave inconsistent statements about why she left her phone at home that day. H.J. told the police that she left her phone at home because she was in trouble and her phone had been taken away from her. At trial, H.J. testified that she did not take her phone with her on March 23, 2017 because her sister wanted to “keep an eye” on any messages from Jay and was going to continue to communicate with Jay.
Inconsistencies about the decision to stay at Mr. Mootoo’s apartment
144At trial, H.J. testified that Mr. Mootoo forced her to stay at his apartment. She said Mr. Mootoo wanted her to stay so his friends could meet her. She also testified that Mr. Mootoo asked her to come back to his apartment after school on March 24, 2017. H.J. had never disclosed before trial that Mr. Mootoo asked her to come back. At the preliminary inquiry, H.J. said she asked Mr. Mootoo if she could stay at his apartment for the night. When confronted with this contradiction during cross-examination at trial and asked to confirm that she asked to stay at Jay’s apartment, she said, “I guess.”
145H.J. also gave inconsistent statements about leaving Mr. Mootoo’s apartment. H.J. testified that she called her sister from Mr. Mootoo’s phone on the morning of March 24, 2017. K.J., confirmed that she received a call from H.J. that morning. Both H.J. and K.J. testified that K.J. told H.J. that she had called the police to report H.J. missing. At trial, H.J. testified that the only reason she was able to leave Mr. Mootoo’s apartment was because he panicked when he heard the police were looking for H.J. However, H.J. told the police that Mr. Mootoo let her leave when she said that she had to go to school.
146These inconsistencies are significant. At trial, H.J. tried to paint a picture of Mr. Mootoo forcing her to stay at his apartment and only letting her leave because the police were looking for her. In earlier statements, H.J. said that she asked to stay and she left after telling Mr. Mootoo she had to go to school. I find that H.J.’s trial evidence is an exaggeration intended to make herself seem more sympathetic and to make Mr. Mootoo seem controlling and aggressive.
Inconsistencies about the alleged sexual assault
147H.J. gave inconsistent statements about the alleged sexual touching itself. For example, H.J. told the police that she told Mr. Mootoo that she did not feel comfortable when he was touching her. At trial, H.J. testified that she did not tell Mr. Mootoo she felt uncomfortable. She testified that was just something she thought to herself.
148H.J. also told the police that the alleged sexual assault ended when she got up and went into the washroom. During her examination-in-chief at trial, H.J. testified that Mr. Mootoo stopped touching her when she told him to stop. During cross-examination, H.J. said Mr. Mootoo did not stop touching her when she told him to.
Inconsistencies about whether Mr. Mootoo touched H.J. when she was sleeping
149H.J. told the police that Mr. Mootoo told her that he put his hand down her pants and digitally penetrated her while she was asleep. H.J. told the police that she did not feel Mr. Mootoo putting his hand down her pants. She said she only knew it happened because Mr. Mootoo told her about it the next morning. H.J. also told the police that she remembered waking up in the night and seeing Mr. Mootoo or somebody staring at her, although she said that might have been a dream.
150The Crown is not relying on this part of H.J.’s evidence in support of the sexual assault or sexual interference charges. The sexual assault alleged by the Crown is limited to H.J.’s evidence that Mr. Mootoo touched her thigh and breast when they were sitting on the sofa. Nonetheless, H.J.’s inconsistent statements about whether Mr. Mootoo put his hand down her pants are relevant to my assessment of her credibility and the reliability of her evidence.
151Contrary to what she told the police, H.J. testified at the preliminary inquiry that she felt Mr. Mootoo touch her while she was sleeping. She said she felt a hand in her pants. At trial, H.J. testified that she is sure her memory of waking up and seeing Mr. Mootoo staring at her was just a dream. She also testified that the whole experience of feeling someone touch her could have been a dream.
152I find that H.J.’s evidence at the preliminary inquiry was an exaggeration intended to make her allegations seem more serious.
d. Implausibility of H.J.’s evidence
153In addition to the many errors and inconsistencies in H.J.’s evidence, parts of her testimony were implausible. H.J. never gave a plausible explanation for what she was doing between 6:00 p.m. on March 23, 2017 when she left Cedarbrae Mall and 9:30 p.m. when she met Mr. Mootoo.
154H.J. testified that she and Jay had a plan to meet at Cedarbrae Mall on March 23, 2017 but had not set a time to meet. She said waited in the food court at the mall until 6:00 p.m.
155Jay told H.J. what his building looked like and roughly where it was but did not give her the address. It is not clear how or when Mr. Mootoo conveyed that information to H.J.
156H.J. said she walked around looking for Mr. Mootoo’s building from 6:00 p.m. until 9:30 p.m. She says she went into one building near Scarborough Golf Club Road and Lawrence Ave. East but it was the wrong building. She says she then walked around trying to find the right building.
157H.J. did not have her phone on March 23, 2017. She borrowed a phone from someone and sent Mr. Mootoo a message on Instagram at 7:32 p.m. saying that she was in the lobby of his building. Based on the video from 3847 Lawrence Ave. East, H.J. was not in Mr. Mootoo’s building at 7:32 p.m. as she said in her Instagram messages. H.J. never gave a clear explanation of where she was at 7:32 p.m. or whose phone she used to send these messages.
158Even if I assume that H.J. was in the wrong building when she sent the Instagram messages at 7:32 p.m., there is no explanation for what she was doing between 7:30 pm and 9:30 pm. All she could say was that she was walking around trying to find Mr. Mootoo’s building. She also said that she had to stop several times because she was tired. This explanation does not make any sense because Mr. Mootoo’s building was less than 400 metres from the first building H.J. went to. H.J. agreed that even with breaks, it only took her 20 minutes, including the breaks, to walk between the two buildings. While I do not expect H.J. to remember every detail of what happened on March 23, 2017, the fact that H.J. could not provide any plausible account of what she did during this two-hour period of time undermines the reliability of her evidence of what happened that day.
e. Motive to Fabricate
159There is evidence that H.J. had a motive to fabricate her allegation of sexual assault.
160H.J. testified that she was getting into trouble at home around the time she met Mr. Mootoo. She said her sister and her grandmother were both upset with her. She said she decided not to go home on March 23, 2017 because she wanted a break from being at home. H.J. had an appointment after school on March 23, 2017. She skipped the appointment to go to the mall. H.J. knew she would be in trouble for missing her appointment. She also knew she would be in trouble for not going home.
161H.J. agreed in cross-examination that her home life improved after she told her sister that she was sexually assaulted. Her family was not focused on the fact that she missed her appointment or the problems that caused her to leave. Once she and her sister devised the plan to identify Jay and gather evidence against him, H.J. was not in trouble anymore. H.J. testified her sister was being more understanding and supportive after she came home than before she left and she was getting positive attention from her sister. H.J. testified that she liked getting positive attention from her sister. She also acknowledged that in March 2017 she would engage in attention-seeking behaviour.
162H.J. denied that she fabricated a story about being sexually assaulted to avoid getting in trouble or to get positive attention from her sister. She also denied that she was maintaining a false story at trial to avoid getting in more trouble.
163Notwithstanding H.J.’s denials, I find that she had a motive to fabricate the allegations of sexual assault against Mr. Mootoo to avoid getting into trouble for missing her appointment and not going home on March 23, 2017.
f. Conclusion
164The Crown urged me to accept H.J.’s account of the alleged sexual assault despite any inconsistencies, inaccuracies or gaps in her evidence. The Crown argued that H.J.’s account of the alleged sexual assault was consistent. I disagree. There were inconsistencies in H.J.’s description of the alleged sexual assault. She was inconsistent about whether she told Mr. Mootoo she felt uncomfortable. She was also inconsistent about how and why the alleged assault ended.
165The Crown also argues that the inconsistencies, inaccuracies and gaps in H.J.’s evidence relate to peripheral issues and should not detract from overall credibility. For example, the Crown argued that it is understandable that H.J. cannot recall all the details of what happened before she met Mr. Mootoo on March 23, 2017. The Crown also argued that the inconsistencies about who she spoke to and when are insignificant. The Crown argued that these frailties in H.J.’s memory do not detract from the reliability of her evidence of what happened in Mr. Mootoo’s apartment.
166I agree that some of the inconsistencies and gaps in H.J.’s memory are understandable and insignificant. But some of the inconsistencies are much more significant. For example, H.J. maintained her position that she met a friend from kindergarten in the lobby of Mr. Mootoo’s building in the face of video evidence that her story could not be true. While H.J. may honestly believe that she met a friend in Mr. Mootoo’s building, the fact that H.J. maintained a demonstrably false story significantly shows that her memory is not accurate.
167I have also found that H.J. made several false statements and exaggerated what happened to make her seem more sympathetic and to make her allegations seem more serious. She exaggerated how long she waited to get into Mr. Mootoo’s building. She said that Mr. Mootoo forced her to stay at his apartment. She falsely told the police she slept in longer than normal and suggested that was because Mr. Mootoo drugged her. She told the police a false story about not drinking her coffee the next morning because she was afraid Mr. Mootoo might have drugged that as well. She said that Mr. Mootoo only let her leave when he found out the police were looking for her. These exaggerations and false statements significantly undermine the credibility of her testimony about the events of March 23, 2017.
168I have also found that H.J. had a motive to fabricate an allegation of sexual assault allegations to avoid getting in trouble when she finally went home.
169The onus is on the Crown to prove beyond a reasonable doubt that Mr. Mootoo touched H.J. in a sexual manner, which depends entirely on the credibility and reliability of H.J.’s evidence. Given the problems with H.J.’s testimony, it would be unsafe to rely on her uncorroborated testimony about what happened in Mr. Mootoo’s apartment on March 23 and 24, 2017. The Crown has not proven beyond a reasonable doubt that Mr. Mootoo touched H.J. in a sexual manner when she stayed at his apartment on March 23, 2017. Mr. Mootoo is, therefore, entitled to an acquittal on the sexual assault and sexual interference charges.
(ii) Making Sexually Explicit Material Available to a Person Under the Age of 16 (Count #4)
170The offence of making sexually explicit material available to a person under the age of 16 has four essential elements that the Crown must prove beyond a reasonable doubt. First, the Crown must prove the material in question meets the definition of “sexually explicit material” in the Criminal Code. Second, the Crown must prove that Mr. Mootoo sent the sexually explicit material to H.J. Third, the Crown must prove that H.J. was under the age of 16 and Mr. Mootoo knew (or believed) she was under the age of 16. Finally, the Crown must prove Mr. Mootoo sent the sexually explicit material to H.J. for the specific purpose of facilitating one of the offences listed in the provision.
171I have already found that Mr. Mootoo sent the BBM messages to H.J. and he knew she was 15 years old at the time. I am, therefore, left with two issues to decide: do the BBM messages constitute sexually explicit material and did Mr. Mootoo send them to H.J. for the purpose of facilitating the commission one of the offences listed in s. 171.1 of the Criminal Code.
172I have no difficulty finding that the screenshots constitute sexually explicit material as defined. “Sexually explicit material” includes photographs that show a person engaged in explicit sexual activity or depicts a person’s genitalia or anus for a sexual purpose. It also includes written material whose dominant characteristic is the description, for a sexual purpose, of explicit sexual activity with a person: Criminal Code, s. 171.1(5).
173Mr. Mootoo sent H.J. photographs depicting explicit sexual activity. For example, Mr. Mootoo sent H.J. a close-up photograph of a penis penetrating a vagina. The bodies and faces of the people are not visible in the photograph. In the messages that accompanied this photograph, Mr. Mootoo said it is a picture of his friend and his friend’s 17-year-old daughter having sex. It is the Crown’s position that the photograph and messages constitute child pornography. In another message, Mr. Mootoo said he had just received oral sex from his friend’s daughter.
174Mr. Mootoo also sent H.J. two photographs of a man having intercourse with a woman who was lying on her stomach. Mr. Mootoo said the woman in the photographs was his son’s mother. Mr. Mootoo also said he “pimped” his son’s mother when she was pregnant.
175Mr. Mootoo also sent H.J. text messages, the dominant characteristic of which was the description of explicit sexual activity. Mr. Mootoo sent H.J. messages detailing sexual acts he wanted H.J. to perform on him and his friends. He said that he wanted his friends to take turns having sex with H.J. when she turned 16.
176Mr. Mootoo asked H.J. to send him a picture of her in her underwear. He wrote, “So I’m dying to see u in panties. I really wanna see u know I’m in love with ur ass.” He also wrote, “Ya so try to send that pic” and “I know my friend want to see too.” H.J. testified that she never sent Mr. Mootoo a picture.
177H.J. told the police that she and Mr. Mootoo talked about having a child together. Mr. Mootoo said that he would pimp out H.J. while she was pregnant. Mr. Mootoo sent H.J. a message that said he wanted to have sex with H.J. while their son watched. He also wrote, “Fuck ya I mean I’d have ur legs wide open on the bed while our son watch ur pussy get fucked.” Mr. Mootoo also suggested that when their son was old enough, he and their son would have sex with H.J. together: “Ya once his cock is hard enough it will be daddy and son tag team on ur pussy lol we both smashed ur teen pussy.” Mr. Mootoo said this would be their “darkest secret.” During this conversation, Mr. Mootoo also wrote the following:
U gotta start doing anal
So u can take 2 cock
In ur little bum n pussy
178I am satisfied that Mr. Mootoo sent the sexually explicit text messages to H.J. for a sexual purpose and I am also satisfied the messages and photographs Mr. Mootoo sent H.J. constitute sexually explicit material.
179The last issue for me to decide is whether Mr. Mootoo sent H.J. the sexually explicit material for the purpose of facilitating one of the enumerated offences. Section 171.1(1) of the Criminal Code makes it an offence to distribute sexually explicit material to anyone under the age of 18 for the purpose of facilitating one of the enumerated offences. The Code contains different lists of enumerated offences depending on the age of the complainant:
s. 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.
180Amicus suggested that on a narrow reading of s. 171.1(1), Mr. Mootoo could only be convicted if he sent H.J. sexually explicit material for the purpose of facilitating one of the offences listed in s. 171.1(1)(b). I do not agree. Section 171.1(1) must be read holistically and purposively. Sections 171.1(1)(b) and (c) do not create distinct lists for cases involving complainants under the age of 16 or under the age of 14 respectively. Rather, section 171.1(1)(b) and (c) add offences to the enumerated list in s. 171.1(1)(a) for younger complainants. To state the obvious, a complainant who is under the age of 16 is also under the age of 18. A complainant who is under the age of 14 is also under the age of 16 and 18. The only reason separate sections are required is because different Criminal Code offences have different age restrictions. For example, it is only an offence under s. 152 to invite someone to touch themselves (or someone else) in a sexual manner if that person is under the age of 16. It is not an offence to invite someone who is over the age of 16 to touch themselves for a sexual purpose. That is why s.152 is listed in s. 171.1(1)(b) but not in s. 171.1(1)(a) which applies when the complainant is under the age of 18 but not under the age of 16. Similarly, the only provision listed in s. 171.1(1)(c) is s. 281 which makes it an offence to abduct a child under the age of 14. It is not a criminal offence to abduct a child who is over the age of 14.
181It would be absurd to interpret ss. 171.1(1)(a), (b) and (c) as distinct, exhaustive lists. Parliament cannot have intended to criminalize sending sexually explicit material to a 16 or 17-year-old for the purpose of procuring them into prostitution under s. 286.3(2) – which is included in s. 171.1(1)(a) – but not criminalize the same conduct directed at someone under the age of 16. Parliament must have intended it to also be an offence, for example, to send sexually explicit material to a 15-year-old for the purpose of procuring them into prostitution or for the purpose of facilitating a sexual assault, which are offences listed in s. 171.1(1)(a) but not in s. 171.1(1)(b). It would equally absurd to think that Parliament intended to limit the scope of this offence as it applies to people under the age of 14 to circumstances in which a defendant intended to facilitate the offence of child abduction. In my view, it is open to the Crown to prove that Mr. Mootoo sent sexually explicit material to H.J. for the purpose of facilitating any offence listed in s. 171.1(1)(a) or (b).
182I find that Mr. Mootoo’s messages were designed to expose H.J. to the idea of young girls having sex with adults and to normalize that behaviour. Mr. Mootoo’s messages were also designed to make H.J. believe that other girls engage in prostitution and to normalize that behaviour as well. I am satisfied beyond a reasonable doubt that Mr. Mootoo sent the sexually explicit material to H.J. to groom her and further his plan to have H.J. engage in prostitution for his benefit, which would be an offence under s. 286.3(2). I also find that Mr. Mootoo sent the sexually explicit material to H.J. to facilitate the offence of inviting or counselling her to touch herself in a sexual manner contrary to s. 152 of the Criminal Code.
183The Crown has proven beyond a reasonable doubt that Mr. Mootoo sent H.J. sexually explicit material for the purpose of facilitating an enumerated offence. Mr. Mootoo is found guilty of this offence.
(iii) Luring a Person Under the Age of 16 (Count #5)
184The offence of luring a person under the age of 16 has four essential elements that the Crown must prove beyond a reasonable doubt. First, the Crown must prove that Mr. Mootoo intentionally communicated with H.J. by means of telecommunications. Second, the Crown must prove that H.J. was under the age of 16. Third, the Crown must prove that Mr. Mootoo knew (or believed) H.J. was under the age of 16. Finally, the Crown must prove that Mr. Mootoo communicated with H.J. for the specific purpose of facilitating one of the offences listed in the provision.
185I have already found that Mr. Mootoo sent the messages to H.J. using the “Knight in shining” BBM account. Those were intentional communications by means of telecommunication: R. v. Woodward, 2011 ONCA 610, 107 O.R. (3d) 81.
186I have also found that H.J. was under the age of 16 and that Mr. Mootoo knew she was under the age of 16.
187The last issue for me to decide is whether Mr. Mootoo communicated with H.J. for the purpose of facilitating one of the enumerated offences. The enumerated offences in s. 172.1(1) of the Criminal Code are exactly the same as those enumerated in s. 171.1(1). I have already found that Mr. Mootoo sent H.J. the BBM messages for the purpose of facilitating the offence of procuring a person under the age of 18 to provide sexual services. I have also found that Mr. Mootoo sent H.J. messages counseling her to engage in anal intercourse, which is an offence under s. 152 of the Criminal Code.
188I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. Mootoo is guilty of luring H.J. for the purpose of facilitating an enumerated offence.
189Sections 172.1 and s. 171.1 are both aimed at preventing the same criminal harm: grooming young people to facilitate the commission of a sexual offence. These counts target the same societal interests, the same victims and the same consequence: R. v. Kinnear (2005), 2005 21092 (ON CA), 198 C.C.C. (3d) 232 (Ont. C.A.), at para. 93. Sections 171.1 and 172.1 are essentially different ways to commit the same prohibited act. Mr. Mootoo cannot be convicted of both counts: R. v. Harris, 2017 ONSC 940, at paras. 24-34. I invite the parties to make submissions on which of these two offences should be stayed.
(iv) Possession of Child Pornography (Count #6) and Possession of Child Pornography for the Purpose of Distribution (Count #7)
190Mr. Mootoo sent H.J. a photograph of a penis penetrating a vagina. The bodies and faces of the people are not visible in the photograph. H.J. sent a message asking Mr. Mootoo who was in the picture. Mr. Mootoo responded:
That’s her dad
Lol
H.J. then asked, “with her?” and Mr. Mootoo responded, “Ya he fucked her before and pimps her out too.” The Crown argues the photograph together with Mr. Mootoo’s messages constitute child pornography.
191Possessing child pornography has three essential elements. First, the Crown must prove beyond a reasonable doubt that the image and messages constitute child pornography as defined in the Criminal Code. Second, the Crown must prove beyond a reasonable doubt that Mr. Mootoo had child pornography in his possession in the sense that he had control over it. Finally, the Crown must prove beyond a reasonable doubt that Mr. Mootoo knew he had the child pornography in his possession. The Crown does not have to prove that Mr. Mootoo knew that the image and message constitute child pornography.
192The offence of possessing child pornography for the purpose of distribution requires the Crown to prove one additional element – that Mr. Mootoo had the child pornography in his possession for the purpose of distributing it.
193I have already found that Mr. Mootoo sent the photograph and messages to H.J. That necessarily means that Mr. Mootoo had the photograph and messages in his possession. Given that Mr. Mootoo sent the photograph and authored of the messages, it follows that Mr. Mootoo knew he had the photograph and the message in his possession. It also follows that he had the photograph and message in his possession for the purpose of distributing them to H.J.
194The only remaining issue is whether the photograph and accompanying messages meet the definition of child pornography. Child pornography includes any electronic visual representation of a person who is “or is depicted as being” under the age of eighteen engaged in explicit sexual activity. It also includes any written material whose “dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence”: Criminal Code, s. 163.1(1).
195In this case, the photograph on its own does not constitute child pornography. The age of the people cannot be ascertained from the picture and there is nothing in the photograph that suggests either person is under the age of 18. However, I cannot consider the photograph in isolation. I must also consider Mr. Mootoo’s description of the photograph: R. v. S.K.S., 2012 SKCA 18, 385 Sask.R. 249, at para. 7. Mr. Mootoo’s messages say the photograph was a picture of his friend having sex with his own 17-year-old daughter. In other words, Mr. Mootoo told H.J. the photograph was of a person under the age of 18 engaged in explicit sexual activity with her father. Whether that is an accurate description of the photo or not, I am satisfied that the photograph together with Mr. Mootoo’s description convey to any reasonable observer that the female person in the photograph is a child engaged in explicit sexual activity: R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, at para. 43. I, therefore, find that the photograph and message constitute child pornography and Mr. Mootoo is guilty of both possessing child pornography and possession of child pornography for the purpose of distribution.
196Mr. Mootoo cannot be convicted of multiple offences arising from the same transaction or conduct where the elements of the offence are essentially the same. In other words, Mr. Mootoo cannot be convicted of both possessing child pornography and possessing child pornography for the purpose of distributing it in relation to the same material. A conditional stay will, therefore, be entered in relation to the possession of child pornography charge.
(v) Invitation to Sexual Touching (Count #8)
197For Mr. Mootoo to be convicted of this offence, the Crown must prove four elements. First, the Crown must prove that Mr. Mootoo invited, counseled or incited H.J. to touch herself. Second, the Crown must also prove that Mr. Mootoo invited, counseled or incited H.J. to touch herself for a sexual purpose. Third, the Crown must prove that H.J. was under the age of 16 at the time. Finally, the Crown must also prove that Mr. Mootoo believed that H.J. was under 16 or he was willfully blind that she was under 16, or that he was reckless as to her age: Carbone, at para. 131.
198The invitation to sexual touching count relates to a voice call recorded by H.J.’s sister. The recording was played for H.J. and she identified her voice in the recording. H.J. said the call happened a few days after she met with Jay.
199K.J. testified that on March 28, 2017 – two days before H.J. and K.J. gave their police statements – she suggested that H.J. make a video call to “My Knight in Shining Armour” so they could take a screenshot of the person H.J. had been communicating with. K.L. said that H.J. called Jay but he did not answered. A short time later, H.J. received a call. K.J. testified that she recorded the call. K.J. said she also listened to the phone call and told H.J. how to respond to some of what the caller was say. The recording was also played for K.J. She also identified H.J.’s voice in the recording
200I accept H.J.’s evidence that the audio recording was of a call between her and Jay.
201I have no difficulty concluding that the content of the call constitutes counseling H.J. to touch herself in a sexual manner. The very beginning of the call is not recorded. Jay is already talking when the recording starts. H.J. testified that very little of their call was missing. At the beginning of the recording, Jay told H.J. to put her finger in her “pussy” and her “asshole.” When H.J. told Jay it was hurting, Jay told her to lick her finger first. Jay also said he was going to put his finger in H.J.’s “pussy and ass.” Later in the call, Jay asked H.J. if she “finished coming”, which I interpret to mean whether she had an orgasm when she touched herself.
202The main question is whether the Crown has proven beyond a reasonable doubt that Mr. Mootoo was the male voice in the recording.
203When H.J. testified at trial, she could not remember what username appeared on her phone when the call came in. She testified that Jay called her using Kik or BBM. She testified that she recognized the username as Jay’s username when she received the call. H.J. testified that she recognized the caller as Jay by his voice and by what he was talking about. K.J. testified that she saw “My Knight in Shining Armour” pop up on the H.J.’s phone when the call came in. I have already found that Mr. Mootoo is Jay and that Mr. Mootoo was using the “Knight in Shining Armour” BBM account.
204The content of the BBM messages also corroborates H.J. evidence that the audio call was with Jay or Mr. Mootoo. In one of the messages, Mr. Mootoo said, “Did u really play with urself last night.” When H.J. said she did, he asked “where did u do it.” H.J. responded, “In my living room.” Mr. Mootoo then wrote “Ok, lol it was so wrong hearing you say I love you my daddy.” I find that Mr. Mootoo was referring to the recorded voice call in these messages.
205Throughout the recorded audio call, Jay referred to himself as “Daddy”. He also asked H.J. to call him “Daddy.” Jay told H.J. to say, “I love you, Daddy.” At the end of the call, Jay told H.J. he loves her and H.J. responds, “love you too, Daddy.”
206I am satisfied beyond a reasonable doubt that Mr. Mootoo was the male voice on the recorded call.
207The Crown suggested that I could compare Mr. Mootoo’s voice to the male voice in the recorded call for the purpose of identifying the male voice. A trial judge can compare a defendant’s voice when testifying to an audio recording to determine if the defendant is the person in the recording: R. v. Gyles (2005), 27 M.P.L.R. (4th) 193 (Ont. C.A.), at para. 13; R. v. Dunstan, 2018 ONSC 4153, at para. 98, aff’d 2020 ONCA 145. The situation is more complicated here because Mr. Mootoo did not to testify and was unrepresented at trial. I only know what Mr. Mootoo’s voice sounds like because he made submissions and cross-examined witnesses on his own behalf. There is no appellate authority on the question of whether I can rely on Mr. Mootoo’s comments and examinations as a self-represented litigant to identify his voice in the recorded call. In R. v. Lewers, 2012 ONSC 3869, aff’d 2015 ONCA 41, the trial judge held that there is no principled reason to treat a defendant’s appearance and their voice differently for the purpose of this type of comparison. Trial judges are permitted to compare a defendant’s appearance at trial to any video evidence even if the defendant does not testify: R. v. Nikolovski, 1996 158 (SCC), [1996] 3 S.C.R. 1197. The trial judge in Lewers held that the same rule should apply to the use of the defendant’s voice whether he chooses to testify or not. Ultimately, however, the trial judge found that there was sufficient evidence in Lewers to identify the defendant without relying on voice identification evidence. One of the defendants in Lewers appealed his conviction. The Court of Appeal did not address this issue because it did not factor into the trial judge’s decision. Like in Lewers, I am satisfied beyond a reasonable doubt that the male voice in the recorded call was Mr. Mootoo without resorting to a voice comparison.
208I find Mr. Mootoo guilty of invitation sexual touching.
(vi) Procuring a Person Under the Age of 18 to Offer or Provide Sexual Services (Count #3)
209There are two distinct ways for the Crown to prove an offence under s. 286.3(2) of the Criminal Code. First, the Crown can prove the defendant intentionally procured a person under the age of 18 to offer or provide sexual services for money.
210Alternatively, the Crown can prove the defendant recruited, held, concealed, harboured or exercised control over a person who offers or provides sexual services for consideration for the purpose of facilitating the offence of obtaining sexual services for consideration: R. v. Gallone, 2019 ONCA 663, 147 O.R. (3d) 225, at para. 62. Under this theory of liability, the Crown must prove the defendant intentionally recruited, held, concealed, harboured or controlled someone who was already providing sexual services for consideration and he did so for the purpose of facilitating the offence of obtaining sexual services for money: Gallone, at paras. 62-63.
211Unfortunately, the indictment conflates the two way of committing this offence. The indictment alleges that Mr. Mootoo recruited H.J. to offer or provide sexual services for consideration for the purpose of facilitating the obtaining of sexual services for consideration. Nonetheless, the Crown’s theory was clear. They Crown alleges Mr. Mootoo was trying to convince H.J. to engage in prostitution when she turned 16.
212There is no evidence that H.J. was already involved in providing sexual services for money so the second way of proving the offence of procuring a person under the age of 18 to engage in prostitution is not available in this case. The Crown must, therefore prove that H.J. procured H.J. to offer or provide sexual services for money. Procure means to cause someone to act, to induce someone to act or to have a persuasive effect on someone’s conduct: R. v. Deutsch, 1986 21 (SCC), [1986] 2 S.C.R. 2 at para. 32, R. v. Joseph, 2020 ONCA 733, 153 O.R. (3d) 145, at para. 65.
213I have no doubt that Mr. Mootoo was grooming H.J. to engage in prostitution when she turned 16 years old. H.J. testified that Jay talked about being a pimp when she was at his apartment. She said Jay told her he pimped out the mother of his child while she was pregnant and lots of other girls. H.J. testified that Jay also talked about pimping her out. He said she could make a lot of money.
214Many of Mr. Mootoo’s BBM messages also talk about her selling sexual services for money when she was older. Mr. Mootoo’s messages talk about how he used to “pimp out” the mother of his child when she was pregnant. Mr. Mootoo’s messages talk about his friend having sex with and pimping out his own 17-year-old daughter. These messages tend to corroborate H.J.’s evidence that they talked about H.J. engaging in prostitution when she was at his apartment.
215In one series of messages, Mr. Mootoo asked H.J. “So u think u would want too [sic] have my friends fuck u?” H.J. responded, “um maybe.” Mr. Mootoo then wrote the following:
Or even head
No sex guys would love too
It is clear from these messages that Mr. Mootoo was trying to convince H.J. to perform sexual services for money. Mr. Mootoo was telling H.J. that if she was uncomfortable having intercourse with Mr. Mootoo’s friends, she could just perform oral sex on them.
216In the recorded audio call, Mr. Mootoo also said that he wanted H.J. to engage in prostitution to make him money. He said, “I own your pussy.” He said he wants to show H.J. off to some of his friends and he wanted dozens of men to have sex with her. Mr. Mootoo told H.J., “you will be the biggest slut I ever asked for.” He also said Jay it would be their “little secret.”
217I have no doubt that Mr. Mootoo intended to induce and persuade H.J. to provide sexual services for money. There is no evidence that H.J. ever provided sexual services for money. Mr. Mootoo’s efforts to induce and persuade H.J. did not result in her performing any sexual services for anyone. Mr. Mootoo was arrested before he fulfilled his intention to procure H.J. to provide sexual services for money. Mr. Mootoo, therefore, cannot be found guilty of procuring H.J. to provide sexual services for money.
218If, however, the evidence establishes that Mr. Mootoo attempted to commit the offence of procuring H.J. to provide sexual services for money even if he did not commit the completed offence, he can be convicted of the attempt: Criminal Code, s. 660; R. v. Husain, 2012 ONCA 697, 298 O.A.C. 104. To prove that Mr. Mootoo attempted to commit the offence of procuring H.J. to provide sexual services for money, the Crown must prove beyond a reasonable doubt that Mr. Mootoo intended to procure H.J. and took any step for the purpose of carrying out that intention: Criminal Code, s. 24(1).
219The BBM messages and recorded audio call provide compelling evidence of Mr. Mootoo’s intent or state of mind. Based on his own words, it is clear that Mr. Mootoo intended to convince H.J. to engage in prostitution when she turned 16 so he could make money. He said that is what he wanted in his messages and their call. By sending BBM messages and talking to H.J. about engaging in prostitution, Mr. Mootoo was starting the grooming process. These are clear steps he took to carry out his intention of procuring H.J. to offer sexual services for money on his behalf.
220While the Crown has not proven that Mr. Mootoo actually recruited or procured H.J. to provide sexual services for money, the Crown has proven that he attempted to procure H.J. to provide sexual service for money. He is, therefore, guilty of attempting to commit an offence under s. 286.3 of the Criminal Code.
E. CONCLUSION
221Mr. Mootoo is not guilty of sexual interference (count #1) or sexual assault (count #2).
222While Crown did not prove that Mr. Mootoo procured H.J. to offer or provide sexual services for consideration, the Crown has proven beyond a reasonable doubt that Mr. Mootoo attempted to procure H.J. Mr. Mootoo is, therefore, guilty of attempting to procure a child under the age of 18 to offer or provide sexual services for money (count #3).
223The Crown has proven beyond a reasonable doubt that Mr. Mootoo is guilty of both making explicit material available to a person under the age of 16 (count #4) and luring a child under the age of 16 (count #5). Mr. Mootoo cannot be convicted of both offences and I invite the parties to make submissions on which count should be stayed.
224The Crown has proven beyond a reasonable doubt that Mr. Mootoo is guilty of possessing child pornography (count #6) and possession of child pornography for the purpose of distribution (count #7). Mr. Mootoo cannot be convicted of both counts. A finding of guilt will be entered on both counts but the possession of child pornography charge will be conditionally stayed.
225The Crown has proven beyond a reasonable doubt that Mr. Mootoo is guilty of inviting H.J. to touch herself in a sexual manner (count #8).
___________________________ Davies J.
Reasons Released: September 10, 2021
COURT FILE NO.: CR-18-30000602-0000
DATE: 20210910
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
AAMALLAL MOOTOO
REASONS FOR JUDGMENT
Davies J.
Released: September 10, 2021
