R. v. [REDACTED]
Her Majesty the Queen, and
 O.J. No. [REDACTED]
2015 ONCJ [REDACTED]
Brampton Court File No.: [REDACTED]
Ontario Court of Justice
Heard: July and December 2014.
Judgment: January 16, 2015.
[REDACTED], for the Crown.
[REDACTED], for the accused.
Reasons for Judgement
1 The accused is charged with one count of luring a child by means of a computer contrary to section 172.1(1)(b) of the Criminal Code of Canada. The Crown proceeded by indictment.
2 The elements of the offence are: (1) making use of a computer system to communicate; (2) communicating with a person who is, or who the accused believes is, under the age of 16; and (3) communicating for the purpose of facilitating one or more of the enumerated offences -- in this case, invitation to sexual touching, contrary to section 152 of the Code.
3 In the course of the trial [REDACTED] brought two Charter applications.
4 The first application asked that subsections (3) -- presumptive proof of belief - and (4) -- reasonable steps requirement - of section 172.1 be declared inoperative by reason of their incompatibility with the principles of fundamental justice and the presumption of innocence. In separate reasons I ruled that the operation of subsection (3) was contrary to the presumption of innocence and therefore granted the declaratory relief requested in relation to that subsection. The application challenging the constitutionality of subsection (4) was dismissed.
5 [REDACTED] also sought the exclusion of evidence obtained as a result of the release of his cell phone subscriber information by the cell phone service provider. The application alleged a breach of section 8 of the Charter. That application was dismissed on the basis that the applicant had not established that there was a reasonable expectation of privacy in the cell phone subscriber information.
6 Once the Charter issues were determined there was little dispute regarding the facts underlying the charge.
7 The evidence is clear that from February 6, 2013 to April 21, 2013 [REDACTED] used a computer to enter into a communication with a person who was identified in that communication as a 14 year old female named [REDACTED]. The content of the communication was sexual. In the course of the communication [REDACTED] invited the person with whom he was communicating to engage in sexual touching.
8 The person with whom [REDACTED] was communicating was not, in fact, under the age of 16. The actual communicant was an adult police officer posing as a 14 year old.
9 The outcome of the prosecution centres on whether the Crown has established beyond a reasonable doubt that [REDACTED] believed he was communicating with a person under 16 years of age or, alternatively, that even if he believed otherwise, that his belief should not afford him a defence as he failed to take any reasonable steps to ascertain the age of the person with whom he was engaged in communication.
Position of the Parties
10 The fundamental position of the defence is that [REDACTED] was role-playing with a person he believed to be an adult and they were engaging with each other within the context of a well-established role-play scenario. The specific role-play scenario is "Daddy/Daughter" or "Daddy/Little Girl" or close variations on the same theme.
11 Within the "Daddy/Daughter" role-play context there can be no reasonable expectation that a representation as to age on the part of the female correspondent will be believed inasmuch as misrepresentation of age is a fundamental feature of the female role in such a scenario.
12 The defence also maintains that [REDACTED]'s belief was supported by reasonable steps consisting of: 1) placing the initiating advertisement/invitation in an adult only section on Craigslist; 2) use of language in the advertisement consistent with a known role-play scenario; 3) the use of language in the advertisement that is not of a type that would be alluring to an underage female; 4) an assessment of the receptiveness of the responding party to the immediate initiation of highly sexualized chat without prelude, cultivation of trust or attempted grooming as indicating an adult respondent. According to the defence, these steps are reasonable in the context within which this exchange occurred.
13 The defence urges the Court to find that the statements made by [REDACTED] after his arrest and the fact that role-play is not referenced in the course of those statements should have little or no significance inasmuch as [REDACTED] was, at that time, mislead as to the actual identity of the person he was communicating with. The misinformation was so upsetting and confusing that [REDACTED] was knocked off his bearings and unable to articulate his true state of mind.
14 The defence contends that with all of this in play and factoring in [REDACTED]'s age and lack of criminal antecedents there is more than enough to suggest that he might be telling the truth and that should be sufficient to raise a reasonable doubt concerning his belief about the age of the person to whom he was directing his communications.
15 The Crown submits that there are two routes to conviction in this case.
16 First, the Court can and should find that [REDACTED] subjectively believed he was communicating with a female under the age of 16 in which case a finding of guilt follows.
17 In this context it is submitted that [REDACTED]'s state of mind is demonstrated by the words used in the course of the emailed communications and at the time of his arrest -- "I was only talking to one girl". His evidence that, for him, "girl" and "woman" is interchangeable should be rejected. The Crown suggests that the spontaneous use of the word "girl" in the context of a situation where he has just been informed that he is under arrest for internet child luring is significant and telling.
18 The Crown also points to the absence of any reference to role-playing in the entirety of the videotaped statement taken more than two and a half hours after his arrest and a little more than two hours after he has consulted with legal counsel as indicative of [REDACTED]'s true state of mind during the impugned communications. The demeanor displayed in the course of the videotape is not supportive of [REDACTED]'s claim that he was confused or unhinged.
19 Second, even if the Court entertains a reasonable doubt about his belief in the age of his correspondent the Court can and should find that the Crown has established beyond a reasonable doubt that his belief was not supported by reasonable steps in which case, by virtue of the operation of subsection (4) of section 172.1 of the Criminal Code, the defence of honest belief cannot be sustained.
20 The Crown submits that the measures cited by the defence do not constitute "steps", that the measures do nothing to assist in ascertaining the age of the person with whom [REDACTED] was communicating and in any event they were not reasonable measures in relation to the objective of insuring his interlocutor was overage.
21 For purposes of the trial the following are the salient facts:
* On January 10, 2013 [REDACTED] used his computer to place a personal ad on Craigslist. The ad was subsequently posted to the website;
* The heading of the ad was as follows: "Daddy looking for his little girl -- m4w -- 45 (Brampton)" ;
* The text of the ad was as follows: "Daddy looking for his little girl to meet and have some fun with him during the day next week on Tue. and Wed of this week have the place all to ourselfs too, in the Brampton and Knightsbridge area";
* On February 5, 2014 Peel Regional Police Officer [REDACTED], as part of her regular duties, was reviewing website postings on Craigslist in the personals section when she noticed [REDACTED]'s ad;
* Officer [REDACTED] is aware of the phenomenon of adult sexualized fantasy role -playing and she is also aware of the discrete subset of role-playing sometimes referred to as "Daddy/daughter" or "Daddy/ Little Girl".
* [REDACTED]'s attention was drawn to this posting because the text suggested that the person who posted the ad was looking to meet with a young girl and the post contained no limiters referencing "legal age" or "18+";
* [REDACTED], posing as a fourteen-year-old girl named [REDACTED], responded to the applicant's post. She did so using the following email address: [REDACTED]. The digits [REDACTED] were meant as a reference to [REDACTED]'s birth year;
* In her initial email response, on February 5, [REDACTED] asserts that she is fourteen years old and asks "wut do you mean";
* On February 6, at 9:52 am, [REDACTED] responds by saying that he is looking for a girl to play with and asks "what do you like to do";
* Later the same day [REDACTED] replies that she likes to "chill with friends, snowboard, watch movies, play bball, listen to music, play pick up with boys skates, eat chocolate...";
* Over the course of roughly half an hour from 3:40 pm (EST) to 4:15 pm on February 6 [REDACTED] and [REDACTED] ([REDACTED]) exchange the following messages:
- [REDACTED]: what age are you, you into sex at all yet;
- [REDACTED] ([REDACTED]): 14, I never done it yet;
- [REDACTED]: what have you done, want too;
- [REDACTED]: kissed and touched a bit, not sure but curious;
- [REDACTED]: curious on what, what would you like to do;
- [REDACTED]: sex I dunno, I'm curious bout sex; I dunno why the writing changed
- [REDACTED]: What have you done with your own body, ever put your finger in or around your pussy or breats
- [REDACTED]: not really my mom said touchin urself is bad but I guess I wash them so
- [REDACTED]: it is not bad at all, all moms and dads say that, I bet she touch and plays with herself at times too, you have to know how ti feels so rub your pussy and the little clit at the top inside and see how it feels, try it and get back;
- [REDACTED]: k I will but gtg for a bit;
- [REDACTED]: Do you have a picture of yourself;
* The conversation is resumed the next day. [REDACTED] says that she tried "it" and is not sure what to think. She says that she has to go to school. No picture is sent.
* The sexualized chat continues later on February 7 and sporadically thereafter mostly in the daytime on weekdays from February 7 to April 21;
* The communications that [REDACTED] prepared and sent as [REDACTED] contain deliberate misspelling and the use of common shortforms such as "lol" and "gtg". They also reference parents, grandparents, school activities and the need to leave to go to school. The timing of communications from [REDACTED] coincided with before and after school on school days;
* The interaction included attempted phone calls and a few text messages. In a text message on April 14 [REDACTED] asks [REDACTED] if she can send a photo;
* [REDACTED] makes no attempt to communicate after a missed call on April 26. When [REDACTED] asks by text "R U Mad at me?" on May 10 [REDACTED]'s response on May 21 is "Who are you?";
* [REDACTED] secures a warrant in relation to the offence of child luring and pertaining to [REDACTED]'s home address in Belleville Ontario. The warrant is executed on May 23;
* On May 23 at 7:16 am [REDACTED] arrests [REDACTED] for the offence of child luring. I find as a fact that in the course of the arrest [REDACTED] used wording that suggested that a complaint had been received from the guardian of a 14-year-old child. [REDACTED] did not disclose to [REDACTED] that she was the actual responder. She led him to believe that he had been communicating with a real or actual 14-year-old.
* [REDACTED] did this deliberately in order to foreclose the possibility that [REDACTED] might seize upon this disclosure to assert that he knew that he was talking to an adult from the outset;
* When advised of the reason for arrest [REDACTED] made a spontaneous utterance as follows: "I was only talking to one girl";
* The standard form of "rights to counsel" recitation was read to [REDACTED] as well as a primary caution. A call was placed on [REDACTED]'s behalf to duty counsel through [REDACTED]'s cell phone. He was placed in custody in a Peel Regional Police cruiser and transported back to Brampton;
* On the way to Brampton duty counsel phoned back. The cruiser pulled into a service center, the escorting officers exited the vehicle and [REDACTED] was permitted to consult with counsel in private. The call started at 7:49 am. [REDACTED] signalled that he was finished the call at 7:55 am;
* The cruiser arrived at PRPS 22 Division in Brampton at 9:46 am;
* [REDACTED] was booked and placed in an interrogation room at 10:05 am. He uses the washroom at 10:19 am. He is questioned by [REDACTED] beginning at 10:23 am and continuing to 11:09 am. The questioning is not overbearing, coercive or abusive. Both parties to the interview are polite and respectful throughout;
* The questioning includes the following exchange found at page 9 of the transcript:
[REDACTED] : Okay. Then we received a complaint to say that you were speaking to a young girl, um, 14 years of age, for a sexual purpose. And you did that on, using the internet, basically. And as I told you before, our job specifically deals with that, so we deal with those types of complaints. Does that make sense?
[REDACTED] : So that means you can't talk to anybody then? OK
[REDACTED] : Well, you can talk to people. You just can't speak to people under a certain age about sexual acts. If you engage in a conversation with an adult, you can say whatever you like, but not when it comes to children. Does that make more sense?
[REDACTED] : I don't know whether she was or not so.
* Later in the interview, at page 12 of the transcript, the following exchange occurs:
[REDACTED]: I was just talking so I don't know. I had no intentions of coming up here ah, or meeting the person, so.
[REDACTED]: But you said that you would.
[REDACTED]: Yeah, there's a lot of things I've said on there, so.
[REDACTED]: You had no intention of meeting?
Issue: Has the Crown proven beyond a reasonable doubt that [REDACTED] believed he was communicating with a person under the age of 16?
22 [REDACTED] has testified that he did not believe at any time that he was communicating with an underage female. On the evidence before this court his assertion is difficult to credit.
23 The evidence, apart from the testimony of [REDACTED] himself, suggests that [REDACTED] believed he was in fact communicating with a fourteen-year-old female. That evidence consists of the following:
* The ad was posted to a well-known and popular multi-purpose website as opposed to the type of discrete "adult only" chat rooms that [REDACTED] had previously accessed. If his intention was to restrict his communication to adult role players only it is difficult to understand why he would enter the more public domain of Craigslist. He testified that he took the route of posting an ad because the chat rooms were becoming boring and the ad would permit a more direct engagement. He had no explanation for why his role-playing in the chat room was getting boring. Since, on his evidence, he had no intention of actually meeting with any of the persons with whom he was role-playing, it is not clear why he would need to seek a more direct engagement;
* [REDACTED] was aware before he posted his ad on Craigslist that people involved in sexual chat on the internet tended to be dishonest. Indeed dishonesty is to some extent inherent in role-playing. [REDACTED] himself admits that he lied about his age in the advertisement. [REDACTED] would therefore be aware that the fact that the personal ad section of Craigslist asks for a simple confirmation of adult status -- without requiring proof of age or any other form of screening for adult capability - is a meaningless restriction and to his credit he admitted as much in the course of his cross-examination;
* The absence of any kind of age or purpose related limiters in the text of the posted ad -- such as "legal age" or "18 and over" or "Role Play (RP)" suggests that [REDACTED]'s interest was broader than adult role-play;
* The text of the communications suggests that the immediate and repeated statements by [REDACTED] that she was 14 were simply ignored. It is clear that there was no follow up. [REDACTED]'s stated assumption that he was dealing with an adult determined to remain in character is an assumption without any supporting foundation. On his own evidence he had very little experience in the world of adult role-play fantasy. There is no apparent basis upon which he could distinguish between an adult staying in character and a child stating her real age. The fact that [REDACTED] continued with the conversation in the face of these repeated representations of age is at least troublesome. While, in the context of the internet, he may not have had any basis to credit these assertions there was likewise no discernable or reasonable basis upon which he could discredit or disbelieve the representations;
* The use of language, diction and grammar by [REDACTED] that is consistent with that of a 14 year old. [REDACTED]'s explanation that this and the representations of age were again an indication of an adult staying in character is not supported by any indication of why that is the case. An examination of the content of the communication fails to disclose any features from which [REDACTED] could reasonably derive a clue or hint that this is an adult pretending to be an underage female. In fact the opposite is arguably true. The responses made by [REDACTED] to the sexualized suggestions of [REDACTED] are not sexually responsive. They are primarily inquisitive and yield little or no indication or suggestion of an indulgence or participation by [REDACTED] in her part of the fantasy or role-play. In other words the dialogue does not support the contention by [REDACTED] that he was engaged with another adult in the exploration of a role-play fantasy. [REDACTED]'s assertion that a real teenager would reference school activities is bald speculation;
* The statement made by [REDACTED] upon arrest is also troubling. I am not persuaded that in the context of his arrest on a charge of child luring the use of the word "girl" by [REDACTED] is simply the employment of the default term that he says he commonly uses to describe all females;
* The videotaped statement taken in Brampton contains no reference whatsoever to role-playing or an adult respondent. The statement is taken after [REDACTED] had roughly two hours to contemplate his position. The contention that he was flustered or confused or too shocked to properly respond to the allegation is not supported by the demeanour he demonstrates in the video. The officer did not pressure him. He had ample opportunity in the course of the interview to introduce the notion that he believed he was talking to an adult. The interchange on page 9 of the transcript and cited above in paragraph 21 (page 7) is an example. It is a reasonable inference that his statement makes no mention of role playing with an adult because that did not reflect his true state of mind.
24 The only thing standing in the way of the reasonable and logical inference arising from the evidence cited above is the testimony of [REDACTED]. He is a 67- year-old male with no prior criminal record. He is now, and was at the time, involved in a long-term adult heterosexual relationship. He says in his testimony that his intention was to attract a response from an adult female who was interested in a "daddy little girl" form of role-play. Notwithstanding his stated intention his conduct in the placement of the ad demonstrates little or no effort to limit the scope of his search to that realm and his continuation of the communication with [REDACTED] without any exploration of the truth of her representation of age suggests that he was content to engage in sexualized communication with someone who might be underage.
25 The subjective belief of an accused person in this context will be difficult for the Crown to establish to the requisite standard. That is, no doubt, a part of the rationale underlying the reasonable steps requirement found in subsection (4) of section 172.1.
26 On the whole of the evidence, including the testimony of [REDACTED], I am satisfied beyond a reasonable doubt that he was at least indifferent to the age of the person he was communicating with. Indifference however is not the equivalent of belief.
27 Nor, in my view, has the evidence satisfied me, at least to the standard of proof beyond a reasonable doubt, that [REDACTED] was wilfully blind, as that term is understood in Canadian criminal law, to [REDACTED]'s actual age. In other words, I am not satisfied that [REDACTED] actually suspected that [REDACTED] was underage and chose not to ask her in order to insulate himself from perfecting his knowledge. Rather, I mean indifferent in the sense of simply not turning his mind to the question in any meaningful way. In my view, such a state of mind is closer to negligence rather than the sort of advertence necessary to sustain a finding of an actual belief in his part that [REDACTED] was underage.
28 After carefully considering all of the evidence, I find that [REDACTED]'s evidence is sufficient, if barely so, to inspire a reasonable doubt concerning his subjective belief regarding the age of the person with whom he was communicating.
Issue: Has the Crown established beyond a reasonable doubt that [REDACTED]'s belief that he was communicating with a person over the age of 16 was not supported by reasonable steps to ascertain the age of the person?
29 It is important to note in relation to the determination of this issue that the determination is not whether "all" reasonable steps were taken, it is sufficient if there is a reasonable doubt that reasonable steps mandated by the circumstances in which the accused found himself were taken. I accept the position that the surrounding circumstances must include the existence of the "Daddy/little girl" role-play scenario in the realm of internet exchanges.
30 The obligation on the Crown is to demonstrate beyond a reasonable doubt that [REDACTED] failed to take such steps as a reasonable person would take in the surrounding circumstances.
31 [REDACTED] relies upon the following as constituting reasonable steps to ascertain the age of the person with whom he was communicating:
* The advertisement was posted to an adult restricted section of Craigslist;
* The language of the advertisement uses a specific term of art relating to a known and popular form of adult role-play. The language would not be alluring to an underage female;
* [REDACTED] asked the respondent for her age;
* [REDACTED] asked for a photo more than once;
* The nature of the initial exchange of emails was such that it would eliminate continuation of the dialogue by anyone other than a person of legal age who was interested in the role-play fantasy.
32 While the fact that this ad was posted in the personal ad section of Craigslist is arguably a step that speaks to the age of potential responders, I find that it is not a step that can be described as reasonable in light of the ease with which anyone of any age can enter that section (by a click of the mouse) and [REDACTED]'s candid admission that everyone on the internet lies. This is not a situation similar to the facts in Pengelly,1 a case in which the dialogue occurred in the context of, or through the avenue of, an adult site devoted exclusively to sexual fantasy. The potential for access by underage persons on a well-known and popular site such as Craigslist is far greater than on a site devoted to sexual fantasy. I find that posting the ad in the personal ad section of Craigslist is not a step that reasonably speaks to the ascertainment of the age of persons liable to respond.
33 Although the posted advertisement contains terms consistent with a known species of adult fantasy chat there is nothing in the text of the ad that restricts responders to those above 16 nor is there anything in the text of the ad that would deter persons under the age of 16 from responding. It may very well be that many, or even most, sensible, well-adjusted 14 year olds would not be interested in an ad such as this. This section however is concerned with protecting all children including the curious, the adventurous, the emotionally vulnerable, the intellectually challenged and the precocious. The purported step in this instance rests on [REDACTED]'s assumption that no underage female is likely to respond. I find his assumption in that regard is entirely unsupported and therefore not a reasonable step toward ascertaining the age of the person or persons responding to his ad.
34 It is, in my view, self-evident that asking a question about age and then either ignoring the answer or simply assuming, without further inquiry, that the answer is untrue, is neither a completed step to ascertain age nor a reasonable strategy to ascertain age. It is, at best, a half step. If the question is posed as a step to ascertain age then some meaning must be attached to the answer. A reasonable person confronted with [REDACTED]'s statements regarding her age in the dialogue that took place would either accept the answer as true, or at least possibly true, and discontinue the conversation (particularly after the representation was repeated) or, make further inquiries to ensure: 1) that the answer was false; and 2) that the person responding was not underage. Proceeding on the assumption, without further inquiry, that the answer is false and upon the further assumption that the person responding was not underage, is not the conduct of a reasonable person in the surrounding circumstances.
35 The same general observations apply to the request for a photo. On two occasions [REDACTED] requested a photo. [REDACTED] did not respond directly to either request. In my view, the request for a photo is again merely a half-step. It has no value unless there is a response to the request. [REDACTED] does nothing to follow up.
36 It is asserted on [REDACTED]'s behalf that the abruptly sexual character of the initial interchange coupled with the fact that [REDACTED] continued the communication allowed him to reasonably conclude that he was dealing with an adult. I have two problems with this submission. First, while the exchange evolved into a discussion of sex I do not accept the characterization that it was abruptly and precipitously sexual such that it would necessarily frighten away anyone other than an adult. The exchange is quoted in paragraph 21 above. The content speaks for itself. Although the sexual content ramps up quickly it begins on a tentative and exploratory note. I am not able to identify anything in the language used by [REDACTED] in the course of the dialogue that is either consistent with an adult speaker or inconsistent with an underage speaker. Second, there is no basis upon which the Court or [REDACTED] could reasonably conclude that no 14 year old would continue an internet conversation in this vein. It is a part of the internet context that communication is distant, faceless and largely anonymous. It is not reasonable to assume that a conversation that a 14 year old might not conduct face to face will not occur in the realm of the internet. Nor is there any basis upon which [REDACTED] could reasonably assume that no 14 year old would be interested in sexual fantasizing on the net. For these reasons the content of the conversation, even if it is characterized as overtly and precipitously sexual, does not assist in ascertaining the age of the person with whom [REDACTED] was communicating.
37 In the result, I am satisfied beyond a reasonable doubt that [REDACTED] did not take reasonable steps to ascertain the age of the person with whom he was speaking. Put another way. I am satisfied that [REDACTED] did not exercise the degree of care in ascertaining the age of the person with whom he was communicating that a reasonable person in the circumstances would have exercised.
38 The other elements of the offence charged are established on the evidence. Accordingly, the accused is found guilty as charged.
1 R v Pengelly, 2010 ONSC 5488