Court and Parties

Superior Court of Justice

His Majesty The King v. S.B.

Reasons for Judgment

Before: The Honourable Justice K. Phillips On: Thursday, October 31, 2024, at Ottawa, Ontario.

Publication Ban: Information contained herein cannot be published, broadcast, or transmitted pursuant to Section 486.4(1) of the Criminal Code of Canada by order of Justice of the Peace K. Baum on May 21, 2022.

Appearances: H. Shouldice, Counsel for the Provincial Crown R. Carew, Counsel for S. B.

Reasons for Judgment

PHILLIPS, J.: (orally)

S. B. stands charged with three offences contrary to the Criminal Code. First, that on or about the 5th of January 2022, he did commit a sexual assault on G. P., contrary to Section 271. Second, that on that same day, he did with a part of his body for a sexual purpose, namely his hand, directly or indirectly, touch the body of G. P., who at the material time was, in his view, 15, in actual fact, 14. And finally, that on the same date, Mr. B. did, for a sexual purpose, invite a person under the age of 16, namely G. P., to directly or indirectly touch with a part of his or her body the body of S. B., contrary to Section 152.

This case is very unusual. The complainant’s evidence is that she, along with friends, actively set out to catch a paedophile, and it was with this objective that she commenced communicating with the accused through a social media platform. In effect, she and others set out to entice the accused to commit the offences. The accused was a former acquaintance of her mother, and this entire matter begins, according to the complainant, as an initiative to catch him as a paedophile to have him both removed from social media and imprisoned.

She then sent him sexual photos, including nudes and videos of herself, both masturbating and engaging in sexual intercourse with other males. She engaged him in very explicit text exchanges making clear that she wanted to have sexual contact with him. The accused was an active participant in this inappropriate social media communication.

I will pause here to comment on the aspect of this case involving the fact that the complainant appears on the Snapchat record to be an enthusiastic driver of the idea that there be sexual contact between her and the 36-year-old man she was then corresponding with. She appears highly sexual and forward about the subject.

I consider this aspect to be an enormous immaterial red herring. To the extent that the complainant is exhibiting sexualized behaviour and clear willingness to engage in sexual activity, it is all, given her age, properly understood as just manifestation of her immaturity. Any 36-year-old man who was not reckless or willfully blind about the question would understand that. Any 36-year-old man should see right through a 15-year-old girl’s sexual behaviours, communications, and even invitations as the immature words of a child too young to actually consent to any sort of sex.

I also, of course, instruct myself to be mindful of any twin-myth reasoning. More to the point, I am aware that the complainant’s sexual behaviours have absolutely nothing to do with assessment of her credibility.

The complainant gave her evidence in a way that also calls for comment. Simply put, her testimony showed that she is a very troubled young woman. She is angry at the world and is full of attitude. I point this out because I want to make clear that I intend to approach her evidence with sensitivity and understanding in this area. It appears to me that she comes by her mindset quite honestly. I heard of her having a very difficult family life, for instance.

She is not the first teenager this Court has seen in the witness box exhibit anger and frustration and the like, and I assess her as the troubled teenager that she is.

That said, I nonetheless find the evidence of G. P. to be very problematic. I adopt as my own the submissions made by both counsel about her credibility shortcomings. I agree that her evidence had the flavour of being made up as it went along. I do not believe that her alleged friends, M. and A., even exist. I think they were made up to offload the embarrassment of having her words put to her. It seemed to me that this girl, at her age, wanted simply to distance herself from full ownership of the highly sexual and embarrassing communications in the record here.

The fact that she denied under oath at the preliminary inquiry even knowing a Matt, demonstrates this, and is frankly, near fatal to her credibility. I do not believe that she was engaged in vigilantism to catch a paedophile to clean up the internet. She did nothing with the so-called evidence she had collected that would have enabled her to complete that claimed objective.

I could go on, but I think the point is made and the un-impressiveness of her credibility is not even a contentious issue between the parties. I will simply indicate that I do not believe the bulk of her evidence and agree that it would be dangerous to found a criminal conviction on her word alone.

I do accept the complainant’s evidence, however, insofar as it relates to the issue of identification. That said, the lion’s share of my conclusion that the Crown has indeed proved identification beyond a reasonable doubt is the fact that the text record indicates clearly that she was corresponding with the S. who installed the sound system in her mother’s car, which car was identified by make and model. To my mind, there is no doubt that the accused is the author of the communications in evidence before me set out at Exhibit 1.

In the circumstances, for a conviction to result on Counts 1 and 2, I must be satisfied beyond a reasonable doubt that the complainant and the accused did indeed end up in his car together and that he touched her breasts and vaginal area during that car ride. I have concluded that it would be unsafe to found a conviction on the complainant’s word alone. As I have tried to explain, her credibility is very suspect. I agree with defence counsel that it does not ring true that the accused would drive to spots like right in front of the windows of fast-food joints or right to where he knows cameras are situated in order to engage in the obviously wrong behaviour of sexually touching a young teen.

The Crown suggests that on the written exchanges alone, a conviction should result. I respectfully cannot agree. I find it plausible that the “next time” comment could relate to a hope for a second attempt to connect after the first attempt simply failed. I also find it plausible that the accused’s comments about the complainant’s breasts and her ability to kiss could relate to him having viewed the pornographic videos she had by that point sent to him.

I should emphasize that I am not finding these things to be facts. I am merely indicating that they are plausible, alternate explanations arising from these pieces of indirect evidence. If this was a balance of probabilities analysis, I would have no trouble convicting. But it is not. The evidence must satisfy me beyond a reasonable doubt. As outlined by the Supreme Court of Canada in the well-known decision of Villaroman, I must not draw a guilt inference if there exist plausible inferences consistent with innocence.

In the end, while I am satisfied that the car ride and the malfeasance reported all probably happened, I am left with a reasonable doubt as a result of both the evidence and the absence of evidence. I find the accused not guilty of Count 1 and Count 2.

I come to a completely different conclusion, however, in respect of Count 3. I note the wording of the applicable section of the Criminal Code, Section 152: “Every person who, for a sexual purpose, invites, counsels, or incites a person under the age of 16 years to touch directly or indirectly with a part of the body or with an object, the body of any other person, including the body of the person who so invites, counsels, or incites, and the body of a person under the age of 16, is guilty of an offence.”

I read and reflect upon the text record or Snapchat record captured at Exhibit 1 over what are described elsewhere as Pages 12 and 13 as representative examples. I have already indicated that I find the authors here to be both G. P. and the accused before the Court. It was established at the beginning that G. P. was Mr. B’s friend’s daughter, and that she was but 15 years old.

It matters not, as I have indicated, that the 15 year old is an enthusiastic participant in this exchange. As I have indicated, 36-year-old Mr. B. should have understood that sexual invitations from a 15 year old are just manifestations of her immaturity and any man his age would understand his moral and legal obligation to avoid engaging in such communication.

Ms. P writes, “What are you into in bed? I’m into more than you expect.” He writes back, “Want to just meet up tonight, see where it goes first?” She writes, “Well, I’m on my period so laugh my ass off want to know if you into fucking while on period.” [as read] He writes, “Yeah, doesn’t really matter. No babies on periods, L-O-L.” She writes, “Do you got a condom?” He writes, “I can buy some now.” She writes, “Okay. How big is your dick?” He responds, “I’m good with that, come find out.” “So, where do you want me to go?”, he says, after indicating his penis is some nine inches long. She responds, “I’m horny, where are we going to fuck?” He responds, “Can you get out? I would like to get abused by you anywhere. Where are you? I have condoms.” He says, “I’m at the gas station getting the strongest rubbers.” Him, “Where do you want to meet?” Her, “Where are we going to fuck?” Him, “Anywhere, I’m down. My place or car or outside or hotel.” I could go on, but the point is made. Clearly, he is ready to go, making it as easy as possible to hook up with her. He is trying to facilitate a sexual encounter and he is very squarely within the ambit of this Criminal Code offence by inviting, counselling, or inciting a person that he knows is under the age of 16 to touch his body for a sexual purpose. That is the plain and ordinary meaning of these words; no other interpretation is possible. He knew that he was corresponding with a 15-year-old girl, and the only way this text exchange can be read is that he is inviting her to meet up with him for the purpose of sexual activity. Why else would he be condom shopping or pointing out that he has a place or that he can pick her up in his car?

In my judgment, the evidence shows beyond a reasonable doubt that Mr. B is guilty of an offence, contrary to Section 152. On Count 3, I find him guilty.

Conclusion

In summary, due to the frailties in the evidence related to my credibility concerns about the complainant, and also because of my assessment of the plausibility of competing inferences from the indirect evidence, per Villaroman, I have decided that it would be unsafe and dangerous to convict at the criminal standard of Counts 1 and 2, even though those offences probably occurred as described. But when I get to Count 3, the evidence is frankly overwhelming.

S. B., having landed upon a conversation with a girl he knew to be 15, set about to invite her to an episode of sexual touching. He did so over an extended period of time, over extended communication exchanges, and maintained his position with focus and enthusiasm.

I am satisfied beyond a reasonable doubt of his guilt of Count 3, and accordingly, I enter a verdict of guilty on that offence.

MATTER ADJOURNED

Transcript Certification

FORM 3 ELECTRONIC CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2)) Evidence Act

I, Lisa Crawford, certify that this document is a true and accurate transcript of the recording of Rex. v. S. B. in the Superior Court of Justice, held at 161 Elgin Street, Ottawa, taken from recording number 0411_CR34_20241031_092934__10_PHILLIKE.dcr, which has been certified in Form 1 by M. King.

November 8, 2024

Certified Court Reporter Authorized Court Transcriptionist ID# 8063214008 Ontario, Canada

• This certification does not apply to the Reasons for Judgment, which were judicially edited.

A certificate in Form 3 is admissible in evidence and is proof, in the absence of evidence to the contrary, that the transcript is a transcript of the certified recording of evidence and proceedings in the proceeding that is identified in the certificate.