NEWMARKET COURT FILE NO.: CR-18-00000728-0000 DATE: 20241213
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – M.C. Defendant
Counsel: Z. Sethna, for the Crown D. Lerner, for the Defendant
HEARD: October 28, 29, 30 and 31, 2024
REASONS FOR DECISION
MCCARTHY, J.:
The Charges
[1] M.C. (the “Accused”) is charged with child luring pursuant to s. 172.1(1) of the Criminal Code, R.S.C. 1985, c. C-46. Specifically, the Accused is charged with communicating electronically with a person who he believed was under the age of 18 for the purposes of obtaining sexual services.
Background and Agreed Facts
[2] As part of a concerted police investigation named Project Rafael, which looked to target customers who were willing to pay to have sex with underaged persons, Detective Constable Cober (“DCC”) of the York Regional Police (“YRP”), posing as a sex worker, posted two advertisements for escort services (“the ads”) on a website called Backpage.com (“Backpage”) on January 18, 2018, and January 19, 2018. The ads indicated that the sex worker offering services was 18 years of age. Upon being contacted by the Accused’s phone at approximately 9:28 p.m. on January 18, 2018, DCC used an application called Textnow to initiate an exchange of messages (the “messages”) from a YRP cell phone (“DCC’s phone”). The overall purpose of this was to arrange a meet-up between the person DCC was purporting to be and the person operating the Accused’s phone. Early in the message exchange, DCC advised the operator of the Accused’s phone that “she” was 14 years old.
[3] Between January 18, 2018 and January 26, 2018, the Accused had exclusive use of the phone used to exchange messages with DCC. At 6 p.m. on January 26, 2018, the Accused drove his white truck (the “truck”) into the parking lot at St. John’s Sideroad and Bayview Avenue in Aurora (the “plaza”). Once there, he proceeded to buy Belmont cigarettes (the “cigarettes”) at the plaza’s convenience store. The Accused was in possession of his phone when he was arrested by YRP just as he was re-entering his truck. A text call to the Accused’s phone revealed that it featured the same number as that which was engaged in the messages exchanged with DCC. A search of the truck also revealed $180 in cash in $20 denominations and a box of Trojan condoms in the back seat. The Accused is not a smoker and was not a smoker on the day of his arrest.
[4] The messages were exported and extracted from DCC’s phone and generated into a Textnow extraction report by a computer forensic technician.
[5] There is no dispute that the message exchange took place and that it involved the Accused and DCC, who portrayed himself as a sex worker and offered sexual services for a cash price. There is no dispute as to the truth of the contents of the messages. The extraction report contains all the Textnow messages as they were contained on DCC’s phone.
The Crown’s Position
[6] The Crown contends that it is abundantly clear from the messages that the Accused wanted to hire a sex worker for sexual services. The Accused initiated the exchange with DCC in response to the Backpage ad for sexual services. He inquired about rates and services and set up a meeting with DCC. When the Accused showed up at the agreed upon location, he brought the requested cash and condoms. Moments before the scheduled meeting, the Accused purchased the cigarettes as requested.
[7] The Crown argues that the only explanation consistent with the messages and the Accused’s movements and conduct on January 26, 2018, is that the purpose of the communication was to purchase sexual services.
[8] As well, there can be no doubt that the Accused believed that the targeted sex worker was 14 years old. This was repeated and acknowledged multiple times in the messages. This was consistent with the ad describing the sex worker as “new”, “young”, “fresh”, and “shy”. The messages suggests a meeting up with the sex worker after her “exam”. The Accused was advised that the sex worker could not buy alcohol or cigarettes because “she” did not have “identification”.
[9] The essential elements of the offence have been proven and a conviction should follow.
The Defendant’s Position
[10] The Defence contends that the Accused lacked the specific intent to commit the alleged offence and the Crown has failed to prove intent beyond a reasonable doubt.
[11] The Defence asserts that the Accused’s historical Crime Stoppers tips and his Backpage postings warning of scams should also give rise to a reasonable doubt. These previous actions by the Accused, who freely admitted that he hired sex workers for services over 15 years or more, demonstrate that he was one to report human trafficking scams and underage sex workers. This is wholly inconsistent with an individual who, years later, would seek to engage underage sex workers for services.
[12] The Accused testified that he was never interested in hiring underage sex workers. He testified that his communications and arranged meeting with the individual with whom he exchanged the messages were born of a stupid curiosity to discover the identity of that person, whom he never believed was an underage sex worker. The content of the messages and the circumstances surrounding their exchange are as consistent with this explanation as they are with an inference that the Accused intended to purchase and obtain sexual services from a minor.
Discussion
[13] Because M.C. testified, the court is obliged to engage in the form of analysis called for by the Supreme Court of Canada in R. v. W.(D), [1991] 1 S.C.R. 742. In respect of the first prong of the W(D) test, if I accept the Accused’s exculpatory evidence that he did not intend to hire the sexual services of a minor, I must acquit. On the second prong, even if I do not accept his exculpatory evidence, if it leaves me with a reasonable doubt about his guilt for the alleged offence, I must acquit. On the third prong, I must consider all the evidence, including that of the Accused, and determine whether the evidence I do accept leaves me with a reasonable doubt as to whether the Accused is guilty of sexual luring.
[14] I do not accept M.C.’s exculpatory evidence and am not left with a reasonable doubt based upon that evidence.
[15] First and foremost, the Accused’s evidence was simply too far-fetched. It was illogical and defied common sense. It was also completely inconsistent with any reasoned analysis of the content of the messages, the Accused’s actions and conduct, and the balance of the circumstantial evidence punctuating the days and hours leading up to the planned meet-up with the sex worker.
[16] The messages establish that the Accused was alerted that the sex worker was underage on three clear occasions; two of these occasions involved “her” clarifying that she was 14. On each occasion, the Accused confirmed that he was okay with the fact that the sex worker was underage.
[17] The Accused’s suggestion that he believed the messages were from either a robber or a scammer is simply preposterous. I cannot accept that a middle-aged man in his right mind would, for no good reason, put himself in harm’s way and blithely or indifferently enter a situation where he foresaw that he might be robbed.
[18] The Accused’s suggestion that he was following up on the arranged meet-up out of a “stupid curiosity” cannot be taken seriously. Even if I was prepared to entertain this as a possibility, everything about the Accused’s conduct in the timeframe leading up to the plaza meet-up makes it abundantly clear that his only intention was to pursue the rendez-vous with the underage sex worker for sexual services.
[19] If the Accused genuinely believed that he would encounter a robber or the police at the meet-up, there would have been no need to purchase the cigarettes at the convenience store. This step on his part is not consistent with what a person wanting to simply discover the identity of the person they are messaging would take. Purchasing the cigarettes in the moments before the scheduled encounter is consistent, and only consistent, with the Accused wanting to fulfill the specific request of the purported sex worker, who had thrice stated that “she” was underage.
[20] Similarly, if the Accused had been in any way concerned with protecting himself from a robbery or at least in maintaining control of the situation, he would not have described himself as “white” and operating a truck. Nor would he have been so casual about leaving cash on the console of his truck or leaving his wallet in a location where somebody with even a modicum of effort and with only a cursory search would be able to find it. It also begs the question of why he would not have hidden his laptop if he expected to be robbed.
[21] Moreover, if the Accused suspected that the individual he spotted in the convenience store might have been a police officer, why would he not have approached him with a view to enlisting the officer’s assistance to unmask or apprehend the robber or scammer the Accused suspected was on his way to the plaza? For that matter, if the Accused was so convinced that he was about to encounter a robber or a scammer in the parking lot, why would he not have contacted the police? He had time between the messages to call 911. He had his cell phone with him. He was not in any danger while in the convenience store. The messages must have satisfied him that the “robber” was moments away and would have been looking for a truck in the plaza.
[22] I do not accept the Accused’s evidence that his truck was so cluttered with personal belongings and work-related items that there would have been no space for a sexual encounter. No corroborating evidence was given to support this assertion from the three officers involved in his arrest. The most that one could say is that the truck was cluttered. Common sense suggests that it does not take much space to carry out a sexual act, especially with a person who described “herself” as petite. Also, clutter in a vehicle can easily be moved from one seat to another or into the back cab with minimal effort. The day before the meet-up, the parties agreed that the encounter would be a “car call”. This is entirely consistent with the Accused having to describe the vehicle in which he would be waiting and its location near the plaza’s IDA pharmacy.
[23] The Accused made a poor witness. He was hesitant and often took whole moments to answer questions that he recognized as troublesome. He was cagey and careful in giving answers to the point where it was obvious that he was being untruthful. I do not accept that he could not “remember” reporting under 18 ads for sexual services to Crime Stoppers or other authorities. This, I find, was a distinct and specific action that he would have remembered taking; he had been active in the sex trade and conversant with Backpage-type ads since 2005. Moreover, he portrayed himself as being especially sensitive to exploitation because his former spouse had been a victim of it.
[24] The Accused was both vague and evasive when explaining why and when he might have reported sexual exploitation in the past. His distinction between sexual exploitation that he needed to “see” as opposed to it being “hypothetical” was completely unconvincing. His ultimate position that his decision to call police would be exercised on a “case to case” basis was weak and self-serving. The Accused’s suggestion to the Crown that there might have been something in the “body” of his Backpage posts warning of underage sexual exploitation was entirely unbelievable. I find this suggestion to be nothing short of a blatant attempt to paint himself as a champion of victims of sexual exploitation and therefore incapable of committing the alleged offence.
[25] The Accused’s narrative about sex trade scammers stealing $120 from him in 2015 (the “2015 incident”) was most concerning. The Accused expressed that he could not remember “that far back” about whether weapons were involved. He was not scared, only shocked about being robbed. He even described himself as “indifferent” to being robbed and accepted it as a risk of attending appointments through Backpage-type ads. The Accused had no concern that the sex worker involved in the 2015 incident might have been under 18 or that sexual exploitation had been occurring. The Accused’s testimony in this trial contrasted sharply with the evidence he gave at the previous trial in January 2020. At the 2020 trial, the Accused stated that child prostitution had been the basis of the complaints he made about the 2015 incident and that he thought the sex worker involved was under 18. Most damning was that in testifying about this incident in January 2020, the Accused neglected to mention that he had been robbed. In fact, he denied it. His only concern was the underage prostitution he discovered. Ultimately, the 2015 incident is of little relevance to the events underpinning the alleged offences before me. That said, I find the Accused’s credibility to have been greatly undermined by providing such contrasting accounts of what must have been a traumatic event. His attempt to trivialize the robbery and the violence characterizing the 2015 incident was a poorly veiled attempt to explain away why he had not mentioned being robbed while under oath in 2020.
[26] The circumstantial evidence in this present case was highly compelling. I find that it overwhelmingly points to the Accused having committed the alleged offence. That evidence included: the Backpage ad for sexual services posted by DCC; the Accused admittedly answering the ad and communicating with the purported sex worker; and the free and open discussion of services and rates without even the slightest attempt to conceal what was being sought and offered (oral sex and protected sex) and at what rates. Further, from the outset, and on more than one occasion during the exchange, the purported sex worker informed the Accused that “she” was underage. This is clear from the following messages: “Do you mind if I’m younger than 18?”; “Hey hun, I’m 14 years old – u ok with that”; “Wow your 21 years older than me are u clean?”; and “Ok so I don’t want to waste our time. Do u mind if I’m only 14 years old?”. In response to this information, the Accused unhesitatingly confirmed that he was okay with the sex worker being underage. This exchange alone establishes the knowledge and intent of the Accused. Not only did the messages, both sent and received, point to the Accused seeking services from a sex worker, but they also unequivocally indicated that “she”, his target, was underage – specifically, 14 years old.
[27] The irresistible inference that must be drawn (and indeed the only one available on an objective, impartial, and proper assessment of the evidence) is that the Accused fully intended to hire a sex worker for sexual services in the hours and days leading up to the eventual meet-up and the resultant arrest at the plaza. Upon learning that his target sex worker was 14 years old, the Accused continued unwaveringly to engage in the message exchange, all the while doggedly pursuing a meet-up and the sexual services he plainly knew were at the end of it. The messages do not contain anything that would tend to show that the Accused was uncertain, confused, fooled, or unconvinced about what he was pursuing. Nor is there any ambiguity in the information offered by DCC that the sex worker was 14 years old. Finally, every move made by the Accused on that day – from confirming services, rates, and the meet-up location; bringing condoms and cash in his truck; arriving on time at the plaza; describing his vehicle; purchasing the cigarettes; and offering his location in the plaza – is consistent with the Accused having the intention of meeting up with an underaged worker who would perform sexual services for cash.
[28] The circumstantial evidence is inconsistent with the Accused harboring a stupid curiosity or an expectation of being robbed. It is only consistent with an intention by the Accused to engage the sexual services of a 14-year-old girl.
[29] The Crown has proven the essential elements of the offence beyond a reasonable doubt. The Accused engaged in communication via telecommunication (ie text messages) for the purpose of engaging in sexual touching and intercourse with a person under the age of 18 years.
Disposition
[30] For the foregoing reasons, I find the Accused guilty of luring as charged and there shall be a conviction entered on the charge on the indictment.
J.R. McCARTHY J.
Released: December 13, 2024
NOTE: As noted in court, on the record, this written Ruling is to be considered the official version and takes precedence over the oral reasons read into the record. If any discrepancies between the oral and written versions, it is the official written Ruling that is to be relied upon.