R v KBR, 2016 ABQB 601

Court of Queen’s Bench of Alberta Citation: R v KBR, 2016 ABQB 601 Date: 20161025 Docket: 150025609Q1 Registry: Edmonton Between: Her Majesty the Queen - and - KBR Defendant Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4. By Court Order, information that may identify the Complainant must not be published, broadcast, or transmitted in any way. NOTE: This judgment is intended to comply with the restriction so that it may be published. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice B.R. Burrows _______________________________________________________ [ 1 ] Mr.

R is charged with one count of internet luring, specifically, the offence created by Criminal Code, s. 172.1(1)(b). [ 2 ] There were two other counts in the Indictment: Count 2 – attempted sexual assault; Count 3 – attempted sexual interference. At the conclusion of the evidence Mr. Nicholls for the Crown invited me to dismiss Counts 2 and 3 and I did so. [ 3 ] The Crown evidence was presented by two police officers. Mr.

R testified in his own defence. [ 4 ] RCMP Detective Steven Horchuk testified that on January 7, 2015, he was advised by an Edmonton Police Service officer that the parents of an 11 year old girl, AB, had reported that their daughter had engaged in sexualized conversations with unknown persons on the internet. The messages included images of a sexual nature. [ 5 ] Detective Horchuk assumed control of AB’s account on a specific internet messaging application. The particular application that AB had used did not save past communications once the user logged out of the application. But Det.

Horchuk was able to represent himself on the messaging application as being AB in ongoing communications with AB’s contacts. [ 6 ] On January 7, 2015, at 3:08 p.m., Detective Horchuk, pretending to be AB, initiated a conversation with one particular contact whose application user name was BR. Mr. R admits that he was that user. Detective Horchuk, as AB, and Mr. R exchanged

messages over the course of the following several hours. Mr. R sent the last message in the conversation just before 10:53 p.m. [7] From time to time during the conversation, Detective Horchuk took “screen shots” of the messages that passed betweenhimself and Mr. R. Mr. R admits, with one qualification which I will detail later, that the collection of screen shots is an accurate recordof the conversation. The collection of screen shots is in evidence and the messaging conversation as Detective Horchuk captured it, is anappendix to these Reasons. [8] Briefly, the conversation involved Mr.

R suggesting to AB that they meet and have sexual contact. During the conversationDetective Horchuk, as AB, first implied and then expressly told Mr. R that AB was under 12 years of age. Toward the end of theconversation, Mr. R and AB made arrangements to meet at a Tim Horton’s restaurant. The police arrested Mr. R at the restaurant. [9] The Crown’s theory is that, in participating in the messaging conversation, Mr. R committed internet luring, the offencedefined in CC 172.1(1)(b): 172.1

(1) Every person commits an offence who, by means of telecommunication, communicates with . . . (

b) a person who is, or who the accused believes is, under the age of 16 years, for the purpose of facilitating an offence under section151 or 152, subsection 160(3) or 173(2) or

section 271, 272, 273, or 280 with respect to that person . . . [10] As noted, Mr. R admits that he was the person communicating by an internet short messaging system with Detective Horchukwho Mr. R believed to be AB. There is no dispute that his purpose in the conversation was to arrange a meeting with AB for the purposeof having sexual contact with her.

There is no dispute that such sexual contact, given that AB was under 16 years of age, would be anoffence under one or more of the sections listed in s. 172.1(1)(b). [11] The issue is whether the Crown has proved beyond a reasonable doubt that as he was engaged in the conversation, Mr. Rbelieved that AB was under the age of 16 years.

Criminal Code, s. 172.1(3) and (4) [12] The Crown invokes CC s. 172.1(3) and (4): 172.1(3) Evidence that the person referred to in paragraph (1) . . . (b) . . . was represented to the accused as being under the age of . . .sixteen years . . . is, in the absence of evidence to the contrary, proof that the accused believed that the person was under that age.

(4) It is not a defence to a charge under paragraph (1) . . . (b) . . . that the accused believed that the person referred to in that paragraphwas at least . . . sixteen years . . . of age . . . unless the accused took reasonable steps to ascertain the age of the person. [13] The Supreme Court of Canada addressed these sections in R. v. Levigne 2010 SCC 25 , [2010] 2 S.C.R. 3. As to s.172.1(3) and

(4) Fish J. said, at para. 30 and 31: . . . pursuant to s. 172.1(3), evidence that the target of the communication was represented to the accused to be under the specified age,“is, in the absence of evidence to the contrary, proof that the accused believed that the person was under that age”. This rebuttablepresumption facilitates the prosecution of child luring offences while leaving intact the burden on the Crown to prove guilt beyond areasonable doubt.

Put differently, s. 172.1(3) assists the Crown in discharging its evidential burden on the element of culpable belief, butpreserves for accused persons the benefit of any reasonable doubt where the record discloses “evidence to the contrary”. . . . in virtue of s. 172.1(4), that the accused believed the person with whom he or she communicated was not underage will afford nodefence to the charge “unless the accused took reasonable steps to ascertain the age of the person”.

This provision was enacted byParliament to foreclose exculpatory claims of ignorance or mistake that are entirely devoid of an objective evidentiary basis. [14] Speaking further as to the rebuttable presumption in s. 172.1(3) and the reasonable steps requirement of s. 172.1(4), Fish J.said (para. 32) This presumption is rebuttable: It will be displaced by evidence to the contrary, which must include evidence that the accused took stepsto ascertain the real age of the interlocutor. Objectively considered, the steps taken must be reasonable in the circumstances.

The prosecution will fail where the accused took reasonable steps to ascertain the age of his or her interlocutor and believed that theinterlocutor was not underage. In this regard, the evidential burden is on the accused but the persuasive burden is on the Crown. . . .

Where the evidential burden of the accused has been discharged, he or she must be acquitted if the trier of fact is left with a reasonabledoubt whether the accused in fact believed that his or her interlocutor was not underage. [15] At para. 36 Fish J. further observed: . . . the accused’s belief that the person was not underage will afford a defence – but only if the accused took reasonable steps to ascertainthe age of his or her interlocutor, as required by s. 172.1(4). [16] The Crown submits that it was clearly represented to Mr.

R that AB, with whom he believed he was communicating, wasunder 16, in fact that she was under 12 and, there being no evidence to the contrary, that the presumption created by s. 171.1(3), that Mr.R believed the person to be under 16, applies. All elements of the offence are therefore established beyond a reasonable doubt.

Defence position and evidence [ 17 ] Mr. R’s position is that there is evidence that, despite the representations as to age made by Detective Horchuk pretending to be AB, he did not believe AB to be under 16 and that he took reasonable steps to ascertain AB’s age. [ 18 ] Mr. R’s evidence, in support of that position, the suggested “evidence to the contrary”, is that in December 2014, he communicated with a female person on an internet chat site called “Click N’ Flirt”. On that website, the female had the user name “Cumer45” and in her profile stated her age to be 35 years.

Her profile included several photographs including two of her face and others depicting her breasts and her vagina, partially clothed or fully naked. The photographs are in evidence by agreement. The parties have agreed that the photos are actually photos of AB, who was in fact 11 years old. I have ordered that the exhibit containing the photos be sealed. [ 19 ] Mr. R testified he “met” AB on the Click N’ Flirt website about a month before he was arrested. He had subscribed to the website in November 2014.

He testified that the website required that you confirm that you were over 18 years of age before you entered the website. Though you could browse or post a profile on the website without paying, in order to communicate with any of the users who had posted a profile to the website, you were required to provide a credit card and pay a charge. When Mr. R subscribed, he both confirmed that he was over 18 and provided a credit card number which, he testified, the website approved. [ 20 ] On that website, he accessed the accounts of many women who had also joined the site.

He sent messages or “winks” to the accounts of over 50 women. He created a profile for himself and put a photo of his penis on it. [ 21 ] AB had also posted a profile on the website. In the profile, she said that she was in Edmonton, 35 years old and bisexual. There was no written information about her weight, height or any other characteristics except the following: “I’m a horny bitch, love sex, and boys and girls, like cock like pussy.” [ 22 ] There were, however, photographs in AB’s profile. One was of a blond haired female with gold rim glasses. The other was of a female with dark hair and dark rim glasses.

The two photos appeared to be the same female. In the second, she looked like she weighed less than in the first. There were also pictures of her breasts, which were well developed, and one picture of her vagina. [ 23 ] Mr. R testified that in these pictures she looked to him to be close to 35 years of age. He viewed the photos as depicting a mature woman; certainly not a girl of 11 or of any age less than 18. [ 24 ] Mr. R and AB had 6 to 10 conversations of a sexual nature before the end of December 2014. The frequency of their conversations varied.

Sometimes days would pass between conversations. [ 25 ] At some point, Mr. R gave AB the number for his cell phone. Just before Christmas he received a call from her but did not answer it. He later confirmed in a website conversation that it had been her who called. Later the same day, she called again but said only, “Hello” before hanging up. Mr.

R again contacted her on the website to ask what was going on and she explained that she terminated the call because two friends barged into her room and they were having a “threesome.” He testified that he considered this explanation to be reasonable. [ 26 ] On December 27 th , AB suggested to Mr. R that they communicate using the KIK short messaging app because it was quicker and easier to use than the Click N’ Flirt website. Mr. R had not heard of the KIK app. He downloaded it and started to communicate with AB on December 28 or 29, 2014.

After that, they did not use the Click N’ Flirt website again. [ 27 ] They had little contact in the last days of December. The last thing AB said to Mr. R was, “I’m going to Mexico for 2 weeks.” That was the last conversation before the conversation of January 7 which ended just before Mr. R was arrested. [ 28 ] Mr. R testified that until the text message conversation of January 7, 2015, he had no notion in his mind that the person he was communicating with could be under 18.

Nothing about the information presented to him on the website, or in the written conversations he had with AB, or the one word he heard her speak on the telephone, “Hello”, provided even a hint that she was not a mature woman. [ 29 ] On January 7, 2015, Mr. R, a truck driver, drove from Calgary to Edmonton. He was to reload his truck the next morning. When he arrived in Edmonton, the first message sent by Detective Horchuk pretending to be AB was on Mr. R’s phone. He had not heard from AB in over a week. The entire conversation is set out in the appendix to these reasons. Mr.

R accepts that the transcript of the conversation is accurate, though he thought AB had said something about coming home from Mexico a week early. There is nothing to that effect in the transcript put in evidence. [ 30 ] In his testimony, Mr. R reviewed many of the exchanges in the transcript of the January 7 conversation. He testified as to how he interpreted the information presented to him in several of the exchanges. In particular: a. Lines 16 – 18: In answer to Mr. R’s question, “You live in Edmonton right”, AB answers, “I’m not supposed to say lol but ya.” Mr.

R testified that he understood this exchange as meaning that she was “not supposed to say” she was in Edmonton – as opposed to being in Mexico where he thought she would be for another week. He thought she was reluctant to say why she had come back to Edmonton early. As noted, Mr. R testified that he believed that in the series of exchanges, he asked her why she was back early from Mexico. No such inquiry appears in the exhibit. Mr. R’s acceptance of the exhibit as being accurate was subject to that qualification.

The evidence before me does not clearly address the possibility that an exchange about AB’s early return from Mexico was not captured on the screen captures that Det. Horchuk made from time to time during the course of the conversation. Detective Horchuk did testify that the screen captures, marked as an exhibit, contained the whole conversation.

b. Lines 27 – 28: AB observes that she is too young to drive and asks if Mr. R can pick her up close to her place. He responds, “Your not to young don’t give me that” Mr. R testified that his statement that she was not too young was based on the fact that she had been on an adult website and on the statement of her age on the Click N’ Flirt website, 35. c. Line 29 – 31: AB asks how old Mr. R thinks she is and he replies, “Not sure maybe 25 hard to tell by your picture. The one with the wire glasses you looked older.” In this passage, Mr.

R testified he was making direct reference to the photographs he had seen on the website and was suggesting that they certainly established beyond doubt that she was at least 25 and probably older. d. Line 34 – 45: AB expresses concern about his possible reaction that she is a lot younger than he thinks. He suggests that there is no reason for concern. He asks her age. She is reluctant to say. He says, “Your going to tell me 18”. She repeats that she is concerned about what his reaction will be if she tells him her age. He reassures her. She confirms that she is too young to drive – by a lot. He asks by how much.

She changes the subject to his age. Mr. R acknowledged in his testimony that in this passage, by saying that she was too young to drive, AB was saying that she was less than 16. Mr. R testified that this exchange indicated to him that AB was “playing a game” about her age. He testified that he did not know why she would be playing a game with him concerning her age, but he thought she was doing so. One possibility, he testified, was that she had “a weird fantasy” in which she wanted to play the role of a child in her communication with him. Mr.

R testified that despite what she was saying in this exchange about her age, he knew from the information and photos she had posted on the website, that she was 35. e. Line 44 – 45: Mr. R answers AB’s question as to his age by saying, “Alot more than you”. Mr. R did not offer any

interpretation of this answer in his evidence. f. Line 47 – 54: Mr. R asks AB how she got on the dating site. AB answers that she lied and says, “Sorry”. Mr. R asks what she is sorry about. He mentions her credit card. AB advises that a girl can get on the website without a credit card. She says that she in fact has a credit card but did not have to use it. AB says, “You don’t hate me that I lied.” Mr. R responds, “Hey stories get told on those sites all the time.” Mr. R testified that in asking about how she got on the website he was “digging” for information.

If she was as young as she was suggesting, how did she get on the website which required its users to be 18 and to have a credit card. He testified that a person cannot get a credit card unless they are over 18. Further, he testified, that everyone who uses the site to communicate with others who have posted profiles to the site must pay, regardless their gender. Possession of a credit card, he testified, is “. . . how they weed out the adults from the minors.” In

summary, Mr. R’s evidence was that he took the fact that AB had been a user of an adult website which he understood only permitted adults to use it and which required its users to register a credit card number, which he understood only an adult could obtain, as confirmation that AB was an adult. Nevertheless, he asked her how if she was not an adult she got on the website. She told him she lied and did not need a credit card because she was female. Mr. R testified that he did not at this point believe what AB was saying about her age, or how she got on the website. He did not tell her that he did not believe her.

Rather, he said, “Hey stories get told on those sites all the time.” He testified that he knows that people will lie about their age and appearance on websites in order to meet people of the type they want to meet. g. Line 60 – 72: AB talks about her sexual inexperience. She says that boys her age still play children’s games, and makes reference to her mother’s opinion that she, AB, is mature for her age. Mr. R responds, “Ya ok” to the mention of the children’s games. He says that “. . . the offer still stands.” AB asks if Mr. R has previously been with a virgin and says she is scared. Mr.

R says he was with a virgin when he was about 20 years of age. Apparently, in response to AB’s statement that she was “kinda scared honestly”, he responds, “No comenent”, which I take to be, “No comment”. Mr. R testified that he said “Ya ok” because he did not believe what AB was saying about her youth and sexual inexperience. He testified that from what she had posted on the website and from the nature of the many communications he had had with her on the website, he was satisfied that what she was now saying about her age was false. The purpose of the dismissive “Ya ok” was to tell her that.

He believed her to be 35 years old. h. Line 73 – 76: AB says that she will be 12 soon. Mr. R responds, “Ya ok” Mr. R testified that as before, this response, “Ya ok”, was meant to convey that he did not believe what AB was telling him about her age.

i. Line 81 – 82: Mr. R asked AB how tall she was. She responded “I’m tallest in my class”. Mr. R testified that he asked for her height because the information in the website profile about her appearance was sparse. Though her answer suggested she was in school, it did not affect his belief that she was 35. j. Line 84 – 85: AB says she only has $20 on her Visa for a cab. Mr. R testified that her reference to having a Visa in this passage was consistent with her being an adult, because, according to his understanding, a minor could not have a Visa. k.

Line 86 – 101: The exchanges relate to the mechanics of the anticipated sexual activity between AB and Mr. R. Mr. R testified that he understood AB to be flirting and playing around in these exchanges – to be confirming her interest in meeting but trying to make him beg. l. Line 117 – 118: Mr. R asks how much it would cost for her to take a cab to where he was. She responds she isn’t sure but that she had gone from home “to jasper place for basketball before and it was $15.” Mr. R testified that he was not familiar with any of the high schools in Edmonton.

He did not know what Jasper Place was – that it was a high school. He understood her to be saying that she played basketball. m. Line 164 – 165: In the last communication AB says she is nervous. Mr. R responds, “Me to I don’t now what to expect”. Mr. R testified that by his last message he meant that he had no idea who would be walking through that door. He knew very little about her appearance. He wondered if the person who would meet him would look like the pictures on the website. [ 31 ] Mr.

R testified that each time AB suggested in the exchanges that she was a child, he would think back to the pictures of her he had seen on the website which were all pictures of a mature woman, to the fact that she had a profile on an adult website, and to the chats they had had on the website. Pictures, he testified, don’t lie. [ 32 ] Mr.

R observed in cross-examination that his belief that AB was 35, or at least not a child, was supported by the fact that she wanted to meet him after 10:00 p.m. on a week night in a Tim Hortons. “No person that young would be out after 10:00 unsupervised.” [ 33 ] Also in cross-examination, Mr. R firmly maintained that it was his understanding that no one, regardless of gender, could use the Click N’ Flirt website as AB had used it with Mr. R, unless they had registered a credit card with the website, and that no person under 18 could get a credit card. [ 34 ] Crown Counsel identified to Mr.

R a number of questions that Mr. R might have asked AB to ascertain her age, but didn’t. Mr. R acknowledged that he did not directly ask her age or her date of birth, or with whom she lived, or about what he perceived to be an inconsistency between the fantasy age she was adopting and the sophistication of her sexual knowledge. Crown has onus of proof [ 35 ] Mr. R’s evidence was that at all times he believed AB to be an adult – indeed to be 35 years of age. Though Mr.

R is not called upon to prove that he believed AB to be an adult, if, after applying CC s. 172.1(3) and (4), I believe his evidence in that regard, I must find him not guilty. Also, if, after applying CC s. 172.1(3) and (4), I have a reasonable doubt as to whether or not he believed AB was an adult, I must find him not guilty.

If I neither believe his evidence nor have a reasonable doubt as to his belief about AB’s age, I must nevertheless not conclude that he is guilty of the offence charged unless having applied CC s. 172.1(3) and (4) and having considered all the evidence, I am satisfied beyond a reasonable doubt that he is guilty. [ 36 ] Mr. R can rebut the s. 172.1(3) statutory presumption that he believed AB to be underage by presenting evidence capable of contradicting the presumption, which evidence, as previously noted, must include that he took reasonable steps to ascertain AB’s age. Mr.

R’s steps to ascertain AB’s age [ 37 ] In his evidence, Mr. R testified that he took the following steps to ascertain AB’s age: 1. He made mental reference to his memory of the information that had appeared in AB’s profile on the Click N’ Flirt website and in their conversations on that website, in particular: a. the statement that she was 35, b. the photographs of her, c. the level of sophistication in her contributions to their several sexual conversations, d. that she had introduced him to the KIK text messaging application. 2.

He made mental reference to: a. his understanding that in order to use the website as AB had used it, she would have had to tell the website that she was at least 18 and would have had to have provided a credit card number, and

b. his understanding that a credit card cannot be obtained by a person under 18 years of age. 3. He implied in his responses to some of AB’s representations as to her age in the text conversation that he did not believe her. He said, “Ya ok” twice, “Ok” once, and “No comment” once. (Appendix, lines 65, 67, 72 and 75) 4.

He deduced that no underage female would be out of her home after 10:00 p.m. on a very cold January night without supervision, as AB said she had been (Appendix line 132) and as she said she would be in order to meet him. (Appendix, line 150). [ 38 ] In my view nothing on this list amounts to a reasonable step to ascertain AB’s age. The website profile information and photographs [ 39 ] Mr.

R testified to the effect that AB’s Click N’ Flirt website profile provided solid foundation for his belief that, notwithstanding the representations in the January 7 th conversation that AB was a child, she was in fact an adult. In my view, that is not so. Reliance on the information in the profile was not reasonable. [ 40 ] Mr. R acknowledged both in the January 7 th conversation and in his evidence that the written information in the profile was unreliable. “Hey stories get told on those sites all the time.” (Appendix line 59). [ 41 ] As to the photographs, though they were in fact photos of AB, Mr.

R did not know that. It would be as easy for AB to have posted false photographs in her profile as it was for her to provide other inaccurate information. I do not believe Mr. R’s evidence that, while he accepted that the written information could be false, he believed the photos must be genuine. [ 42 ] Further, Mr. R observed in the conversation (Appendix line 30) that he thought one of the photos he had seen was of a 25 year old and AB responded that she was a lot younger than that (Appendix line 34). To continue to rely on the photo as a reliable indicator of AB’s age thereafter was not reasonable.

This is so even if Mr. R believed, as he testified, that AB was engaged in a game – that she was playing the role of a child as some sort of sexual fantasy. He might have suspected that to have been the case but he could not be certain. To rely on the photographs in light of the answer AB gave him because he suspected she was engaged in a fantasy was not reasonable. [ 43 ] In any event, though Mr. R testified that in his opinion the photographs of AB’s face in the profile were clearly photos of an adult, in my view, having examined the photos, that opinion, if truly held, was not reasonable.

The clearest photo portrays a female who could very easily be an adolescent child trying to make herself appear to be an adult. In my view, Mr. R’s evidence that he believed the photo portrayed a 35 year old woman, or even a 25 year old woman (Appendix line 30), is not credible. Reliance on that or any of the photos as foundation for a conclusion as to AB’s age was not reasonable. Sexual sophistication of previous conversations [ 44 ] As to the level of sophistication in the sexual talk AB contributed to the December website conversations, and AB’s introduction of Mr.

R to the KIK texting application, neither, in my view, provided an indication of AB’s age that Mr. R could reasonably rely on. There is no transcript of any other specifics of the content of the conversations between Mr. R and AB on the Click N’ Flirt website in evidence. Mr. R testified that she talked about what she liked to do sexually, but could not remember exactly what she said. The only evidence about the level of sophistication of what she said is Mr. R’s opinion in that regard.

Given the demonstrated unreliability of his stated opinion as to the age of the person portrayed in the photographs in AB’s website profile, I am not prepared to credit his opinion in this context. [ 45 ] That AB knew of the KIK text messaging application and referred Mr. R to it similarly provided no reasonably reliable indication of her age – neither objectively, or, in my view, subjectively. AB met the subscription restrictions of the Click N’ Flirt website [ 46 ] Mr. R deduced that AB must be over 18 because she had subscribed to the Click N’ Flirt website.

He testified that a person seeking to subscribe would have to say they were 18 and would have to give a credit card number which, he understood, only a person over 18 could have. I do not believe that Mr. R was so naïve as to reach, let alone rely, on that logic. He clearly recognized that AB could have lied about her age to get into the website. (Appendix line 59) And, the possibility that a person under 18 might obtain and provide a real credit card number to a website, if that was in fact required, would not be remote. I do not accept that Mr. R actually believed otherwise. [ 47 ] Mr.

R questioned AB on these points (Appendix lines 17 – 59) and received an explanation. He testified that he knew, at the time, that the explanation was false. Yet he gave no indication that he had so concluded to AB. In my view, for his reference to these points to approach being a reasonable step to ascertain AB’s age, he would have to have put it to AB in the conversation that what she was saying was not true and to have received a reasonable explanation which he believed.

In my view, it was not reasonable for him to conclude that it was not necessary to do so because he suspected AB was playing a game about her age. Mr. R implied suspicion about her age to AB [ 48 ] Mr. R’s four responses that suggested he did not believe what AB had just said in relation to her age were incapable of constituting a reasonable step to ascertain her age. If Mr.

R truly was suspicious that AB was playing a game with regard to her age, his oblique suggestions of that suspicion in these responses (“Ya ok”, “OK” and “No comment”) were not likely to result in a response that would render certain whether or not the suspicion was accurate.

Only an adult would be out alone at night [ 49 ] Mr. R testified that he deduced that AB was an adult because AB said she had gone outside to look at the spot where he said he was parked and that she would come to meet him. She must therefore be an adult, since a child would not be out at that time on a cold weeknight without supervision. If Mr. R actually made this deduction, it did not constitute a reasonable step to ascertain her age. In the circumstances of the representations made to Mr. R that AB was a child, the deduction could do no more than contribute to a doubt about her age.

In order for a step to be a reasonable step to ascertain age, it must be capable of eliminating or at least significantly reducing doubt. Conclusion [ 50 ] Mr. R took no reasonable steps to ascertain AB’s age. Mr. R has not offered evidence capable of rebutting the presumption created by CC s. 172.1(3). Having applied CC s. 172.1(3) and (4), I do not believe Mr. R’s evidence that he believed AB to be an adult and I am not left in a reasonable doubt by his evidence. [ 51 ] In my view, the very last communication from Mr. R to AB in the January 7 th conversation is very significant.

He responds to AB’s statement that she is nervous about meeting him by saying, “Me too[.] [D]on’t [k]now what to expect” (Appendix line 165). I reject the suggestion in his testimony that in this message he was referring to her appearance when the vast bulk of the conversation had been about her age and not about her appearance. In my view, in this message, he was acknowledging that he did not know whether AB was an adult or a child. This last message demonstrates forcefully that Mr.

R did not believe that AB was not underage. [ 52 ] Having considered all the evidence, I am satisfied beyond a reasonable doubt that Mr. R is guilty as charged. I direct that a conviction be entered on Count 1 of the indictment. As previously mentioned, at the Crown’s request, Counts 2 and 3 are dismissed. Heard on October 3, 4, and 5 th , 2016. Dated at the City of Edmonton, Alberta this 25 th day of October, 2016. B.R. Burrows J.C.Q.B.A. Appearances: Mr. Keith Nicholls for the Crown Mr.

Dino Bottos for the Accused APPENDIX – Transcript of Messaging Conversation between AB (Detective Horchuk) and the Accused, KBR January 7, 2015 Between 3:08 p.m. and 10:53 p.m. AB: Happy New Year.

Or did I already say that! Lol KR: Nope 1st I heard of you for a long time. Happy New Year AB: You remember me [emoji] KR: Yes I do I figured you you forgot about me AB: Ya right. What doing? KR: Not a thing in Edmonton waiting to get loaded in the morning. You AB: Bored at home fml. You going to get drunk in the morning? Lol KR: You live in Edmonton right No its with work I drive for a living AB: Maybe . . . I’m not supposed to say lol but ya. KR: Hey if you here come cuddle up with me and ser what happens AB: Oooh. You have a house or hotel? KR: Don’t be shy AB: I’m not shy.

What’s in it for me lol KR: I am in my truck lots of room AB: Cool. Like a camper thing? KR: To pleasured Yes like a camper AB: You know I’m too young to drive. Can you pick me up close to my place? KR: Your not to young don’t give me that AB: How old to you think I am? KR: Not sure maybe 25 hard to tell by your picture That one with wire glasses you looked older. AB: U really think that? Wow I love you! KR: Well I am going for a shower I want you to come get each other lathered up AB: Would you hate me if I was a lot younger?

KR: No why would you say that AB: How young is too young KR: Why how old are you AB: I don’t want to say KR: Your going to tell me 18 AB: If I say no ur gonna hate me aren’t you KR: No AB: I wasn’t lying when I said I’m too young to drive. By a lot KR: How much AB: Now I feel silly. How old are you?

KR: Alot more than you Hey the choice is yours How did you get on the dating site AB: I lied. Sorry KR: With your credit card Sorry about what See I can teach you a few things AB: U don’t need a credit card for the first bit of you are a girl. I have a vanilla Mastercard I got but I didn’t have to use it Where are you from? KR: Ok are you coming Lethbridge area AB: Really? You don’t hate me that I lied. KR: Hey stories get told on those sites all the time AB: I have never really had sex.

I have never even seen a dick except the Internet and my cousin KR: Really AB: Boys my age still play with Pokemon and shit Really KR: Ya ok AB: My mom says I’m mature for my age and an old soul KR: Ok Well the offer still stands AB: Have you ever been with a virgin my age? I am kinda scared honestly KR: Yes when I was about 20 No comenent AB: I’m 12 soon which isn’t a baby anymore but I’m still not a slut How do I know you won’t kill me? KR: Ya ok Don’t worry you are in good hands AB: I want to believe you.

I really need out of this place KR: Somethings you have to wing it What else should I know I got you thinking How tall are you AB: I’m not sure. I’m tallest in my class KR: The offer still stands come cuddle AB: It’s cold and blowing out. I don’t want to wait for a bus but I only have $20 left on my visa for a cab. Are you close to west edm mall?

KR: I am 156 St and 118 ave petro can card lock I guess just north of it AB: I don’t know where that is. You promise to be gentle? KR: Yes I will AB: Ur not a crazy killer right? Lol KR: No I am not AB: And not up my bum right? My cousin says guys always want to out it in your ass lol Put Do you have a condom? KR: Yes I have a condom and up the ass is up to you AB: No way in my ass lol Wait, would I still be a virgin if you put your cock in my ass? KR: I won’t promise being lube or lotion AB: I’m surprised you haven’t sent me a picture of your cock. You know how many guys send that before you even talk to them?

KR: Want to see it come and see it Bring a towel for the shower AB: That’s kind of far. I am in the condos behind the Walmart on stony plain road and the new freeway. Can you come closer? I see trucks at the Walmart all the time. I can cut through the wall and walk there fast. You have a shower? Oh, I’m so dumb. At the petro place? KR: Ok I will AB: So just sex and not in my ass and with a condom? Nothing ruff k promise?

KR: Ok I am going to go down 170 and meet you on the courner somewhere Gentle and I will drive you nuts and show you how it is done AB: If you come to the side of the Walmart closest to the freeway I will cut across the main road and meet you. I can see it from my street KR: A black truck flat deck trailer AB: Like a big rig kind or littler ? KR: Yes big rig Hey how much for a cab ride here AB: Not sure. I go from home to jasper place for basketball before and it was $15. That’s at 156 St but I don’t know what avenue I’m really never out but excited too. Know what I mean?

Nervous KR: Ok by supper store Ok I am by best by By walmart Looking at subway AB: Cool k. You there now? If I peek over sound barrier I can see the back and freeway side of Walmart. KR: OK I am on stoney

AB: I can’t see subway from here. I will lose wifi when I come so I can’t kik. What’s ur number again? KR: ********** AB: I ran out side and looked over and its sSOO COLD lol I saw a truck with wood on the back beside the Walmart is that you KR: No I am on the street I am looking at sub way across on stoney AB: Ooh. Good thing I didn’t just run and jump in hehe KR: Tims is behind me AB: Oops. How close to tims? Can I bet you to buy me something? KR: No that’s all right maybe I should try to pull in I am kina behind tims AB: Ok. I’m gonna start walking in a minute.

I’m just hanging my phone to see if I have minutes so I can call you when I am walking. If not I can use the wifi at Tim Hortons. KR: Where are you AB: Did you want to meet inside first? I am about to walk out the door. I’m pretty much right behind you on the other side of the main road behind the Walmart KR: I am coming in AB: Can you buy me a stepped tean and a an apple pecan Danish? Pretty pretty please KR: I am at tims Ok AB: Cool. I’m leaving not so now wifi. I have a purple jacket with fur hood and fur boots. What are you wearing? KR: Brown and black jacket No apple Cherry left AB: Okay but cherry! Yay!

KR: Ok AB: An large steeped with milk and sugar pleace KR: Ok Blond Blue phone case AB: K. C u in a few KR: By the door AB: K I’m soooo nervous! KR: Me to don’t now what to expect