R v EF, 2021 ABQB 209

Court of Queen’s Bench of Alberta Citation: R v EF, 2021 ABQB 209 Date: 20210319 Docket: 181377235Q1 Registry: Edmonton Between: Her Majesty the Queen - and - E.F. Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the Complainant who is referred to as AB in these Reasons, or the young person who is referred to as CD in these reasons, must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published.

Corrected judgment: A corrected judgment was issued on March 22, 2019; the corrections have been made to the text and the corrections are appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice B.R.

Burrows _______________________________________________________ [ 1 ] At the commencement of this trial, the Crown advised that it was proceeding on three of the charges on the indictment against EF: - Sexual assault of AB contrary to CC s. 271 - Sexual touching of AB contrary to CC s. 151 - Luring of a child, AB, by telecommunication contrary to CC s. 172.1(

b) The Crown alleged that EF committed the sexual assault and sexual touching offences on November 7, 2018, the child luring offence on November 6, 2018, and that all three offences were committed at or near Edmonton, Alberta. [ 2 ] I refer to the Complainant as “AB” to protect her identity. Those are not her real initials. Later in these reasons I mention

EF’s 14-year-old daughter. I refer to her as “CD” in these reasons to protect her identity. Those are not her real initials. For the protection of CD’s identity, I have referred to the Accused as “EF”. Those are not his real initials. [ 3 ] There is no issue that AB was 15 years old on November 6 and 7, 2018. EF was 48 years old on those dates. [ 4 ] There is also no issue that EF communicated with AB electronically using a social media app called Chat Hour and, in those communications, arranged with AB that they would meet in person on November 7, 2018 in Edmonton to have sexual relations.

EF has admitted that there was sexual activity between him and AB on that date including sexual intercourse. [ 5 ] EF acknowledges that all but one of the elements of sexual assault, sexual touching, and child luring have been proved beyond a reasonable doubt.

The one element of each offence which is not admitted is as to EF’s knowledge of AB’s age at the relevant time. [ 6 ] EF’s defence to all three of the charges is that he honestly, though mistakenly, believed that AB was not under 16 years of age. [ 7 ] EF’s evidence was that he believed AB to be 18 when they communicated on Chat Hour and when they had sexual relations. [ 8 ] AB was a willing participant in the sexual activity with EF. However, given that she was under 16 years of age when the sexual activity occurred, her willingness has no legal significance.

Lack of consent is not an element of any of the offences charged against EF. AB’s Evidence The Zebra Centre Interview [ 9 ] AB was interviewed at the Zebra Centre within 3 hours of the police interrupting the sexual encounter between EF and AB. The video recording of the interview was received in evidence, the requirements of CC s. 715.1 having been satisfied. [ 10 ] In the interview AB said that EF picked her up earlier that day at the Strathcona Public Library in Edmonton’s Whyte Avenue area. They went to a couple of stores and to a hotel, and then to West Edmonton Mall, and then back to the hotel.

And then the police came. [ 11 ] She told the interviewer that she had met EF online, on Chat Hour, about two weeks earlier. She said EF told her he lived in Calgary, about his job, that he is divorced, and that he has children. She said that she first learned that he lived in Calgary from his Chat Hour profile. EF told her the other information in their chats. [ 12 ] AB said she accessed Chat Hour on the computers in the public library. EF was accessing it on his phone.

He showed her his phone in the hotel. [ 13 ] She said that EF had told her he was coming to Edmonton for work and he asked if she wanted to stay over with him “and we can talk and stuff and do whatever. . .”. [ 14 ] The interview included the following discussion about AB’s age and EF’s knowledge of it: Q. K. How old is [EF]? AB: 40-something, don’t know Q. 40-something? AB: Yeah Q. OK. Um and you’re 15 years old AB: Yeah Q. OK. And does he know how old you are? AB: Yeah. Q. OK, how does he know that? AB: I told him. Q. OK. Tell me about that conversation you had.

AB: I told him like online like the first time we started chatting. Forgot what, how he replied. Yeah, but he obviously wasn’t too bothered by it. Q. OK. What did you tell him? AB: I told him that, I’m not, ‘cause on my profile it says 18, but I, it won’t let me change it now. Um but I’m actually 15, so I told

him that. Q. OK. So just so I’m clear here, you told him that you were 15 years old? AB: Yeah Q. And how did he respond? AB: I forgot, but I don’t, he wasn’t, he, I just remember he didn’t seem bothered by it. [ 15 ] In the interview, AB said that at the hotel she and EF “screwed and stuff”. The interviewer was careful to accommodate her reluctance to discuss these matters explicitly. AB said she did not want to use bad language. When asked what body parts were involved in the action of “screwing”, she said, “his dick” and “the cervix” or “pussy”. AB said that she did not want to talk like this.

She said that when the screwing finished she went to the bathroom. The interviewer asked if she knew what “ejaculate” means. She said she did. He asked if she had seen ejaculate when in the bathroom. She said she had. She said EF had ejaculated inside of her. [ 16 ] AB told the interviewer that after that first session in the hotel room, she and EF went to West Edmonton Mall. They ate in the food court and then went to a movie. They then returned to the hotel. [ 17 ] AB said that at the hotel room she and EF “screwed” again. She said that the same body parts were involved as the first time.

EF, however, did not ejaculate the second time. EF got up to get some drinks and then the police arrived. [ 18 ] The interviewer said he would like to see the messages that had passed between AB and EF on Chat Hour. AB advised that the Chat Hour app deletes past messages automatically. There is a limit to the number of past messages it is possible to view. AB was not aware as to whether there was a way to access older messages. AB’s Testimony at Trial [ 19 ] AB testified that she had started Grade 10 in September 2018 but had stopped attending school not long after it started.

In November 2018 she was not working. She did not have a cell phone. She accessed the internet on the computers in the Strathcona Library. At the time she was staying near the library in the Whyte Avenue area. [ 20 ] She testified that there was no photograph of her on her Chat Hour profile. Her profile said she was 18 but when she talked to people using Chat Hour, she told them her real age. She did not know if it was required that a person be 18 in order to be allowed to access Chat Hour. She had put “18” in her profile because she was worried that people would block her if she put anything younger than 18.

AB’s Chat Hour profile is not in evidence. [ 21 ] She testified that in their online chat, she told EF that she was 15. His reaction was that he didn’t mind at all. Indeed, he seemed happy about it. He said, “Oh that’s interesting” or, “It doesn’t worry me”. She testified that some people would say they could not talk to her when she said she was 15 but that EF was the opposite of that when she told him her real age. [ 22 ] She thought the topic of her age had come up only once.

She did not think it had come up the day they met in person, November 7, 2018. [ 23 ] She testified that after she first met EF online, a couple of weeks before November 7, and after they had chatted for a while, EF sent her an email saying that he did not want to have a further relationship with her – that he did not think their relationship would work out because of the distance – he was in southern Alberta, she was in Edmonton. Then after a few days he resumed communications with her on Chat Hour. [ 24 ] In her testimony AB said that she considered EF a friend – that he had been nice to her.

After the Zebra interview she was taken to a hospital for a SART examination. She declined to participate in anything more than the taking of a buccal swab. At trial she was not clear about that detail. She said she felt bad for EF because he had been nice to her, but she thought she had agreed to the entire SWAT examination. [ 25 ] In cross-examination AB was asked why she told EF her true age if she did not want the relationship to end. She answered it was because she did not want to get in trouble.

It was then put to her that she carried on the relationship with EF knowing that it (her age) would get him in trouble. She responded that EF knew that too – that is why she had told him her real age. I understood her to mean that she told EF her real age so that the decision of whether to risk “trouble” by having a relationship with her was his. [ 26 ] Also, in cross-examination, AB was asked why she did not change her Chat Hour profile age to her true age. She said it was because she did not want people preaching to her that at her age, she should not be on that website.

Assessment of AB’s Credibility and Reliability [ 27 ] I found AB to be a credible and reliable witness. There was nothing in her demeanour either in her s. 715.1 video statement or as she testified in the trial that raised any concern in that regard. [ 28 ] I note that AB testified in the trial from a room outside the court room. There was a video connection between that room and the court room. This created no impediment to my ability to assess her demeanour. [ 29 ] During the first part of AB’s attendance as a witness before me, her s. 715.1 video statement was played.

I noticed that AB “nodded off” several times while the video was playing. Each time I asked that the video be stopped and I addressed AB, reminding her that it was important that she watch the video. She apologized for nodding off, and advised that she had watched the video the day

before. She had also reviewed the transcript of the video. I was satisfied that despite the nodding off, her adoption of the content of the video was reliable. [ 30 ] The most important element of AB’s evidence was her statement both in the video and in court that she told EF her true age, 15, at the commencement of the Chat Hour messaging, about two weeks before she met EF in person. She was very confident on that point in both contexts.

In my view, she responded to the cross-examination challenge made to her evidence on that point very well. (see para. [25] above) There was no indication that she was giving that evidence in order to divert responsibility for her sexual encounter with EF to EF.

Indeed, at least at the time of her s. 715.1 statement, she considered EF to have been nice to her and there were indications, such as her declining to participate in a full SART examination, that she did not want him to be in trouble. [ 31 ] That AB told EF that she was actually 15, though her Chat Hour profile said 18, is supported by a passage in the November 6, 2018 messages that passed between them. In the passage AB asks EF if he remembers her age and he replies “18” and then “lol”. I set out this passage below immediately before para. [70] and discuss it below at paras [70], [71] and [72].

The “lol” after EF’s reply of “18” indicates, in my view, that the reply is ironic – that EF knew that AB was not, in fact, 18. [ 32 ] AB’s evidence that she told EF that the age set out in her Chat Hour profile, 18, was not her actual age, is also supported by the passage in their November 6, 2018 messages where EF asks AB how she is acquiring the alcohol she tells him she has been drinking a lot of. I set this passage out immediately before para. [66] below and discuss it in paras. [66] and [67].

If EF truly thought AB was 18, he would not have wondered how she was able to acquire alcohol. [ 33 ] I found AB to be a truthful witness. I believe her evidence that she told EF that she was 15 in their early Chat Hour messaging. EF’s Evidence [ 34 ] EF testified that he is now 50 years old. He was married for about 7 years and divorced in 2013. He has four children. One is an adult son who lives with him. The other three, daughters currently aged 17 and 10 and a son aged 14, live with their mother.

He and his ex-wife have a typical arrangement that permits him access to his minor children. [ 35 ] EF testified that he met AB on Chat Hour a few weeks before they met in person which was on November 7, 2018. His Chat Hour profile included his photograph, a copy of which is in evidence. He was not asked what his profile said his age was. His Chat Hour profile, except for his photograph, is not in evidence. [ 36 ] He testified that he selected AB as a person with whom to have private chats on Chat Hour because her profile said she was from Edmonton and there were not many people from Alberta using Chat Hour.

He had never had any communication with her except by Chat Hour before they met on November 7, 2018. [ 37 ] In their initial chats AB told EF about her circumstances. They talked about sports (she was an Oilers fan, he was a Flames fan) and music (she like Rap, he liked Country). He testified that from these “conversations” he knew she was not living with her parents and that her parents were not together, that she did not have a lot of money, that she lived “downtown” and that she was using the library computer to chat with him because she did not have a phone and was not living at her mother’s place.

She told him something of her physical description. [ 38 ] He testified that AB mentioned that she lived in a group home. He testified that he did not know what that was and did not pay much attention to that information. He testified that he did not want her to be uncomfortable talking to him, so he did not ask her many personal questions at the start. [ 39 ] He testified that nothing she told him raised a concern with him that she was not the age stated in her profile – 18. [ 40 ] After a few days the chats between EF and AB turned to sexual matters.

EF testified that he did not dispute that he wrote the chat messages attributed to him in the extract of chats from his cell phone which are discussed below. (See paragraph [61] below). [ 41 ] After several days of sexually charged messaging between EF and AB, EF sent AB an email saying that he was not going to talk to her anymore. He had blocked her on Chat Hour and wanted to explain why he had done so by email. In examination in chief, he suggested he had two reasons for “ending the relationship”. First, as AB lived in Edmonton he would not be able to see her every day, and he wanted to.

Second, he was “turned on with her, very sexual with her” and did not want “it to just be about sex”. Then, a few days later, when he had plans to be in Edmonton, he unblocked her on Chat Hour and resumed communication with her. He told her he missed their chats, that he was coming to Edmonton, and suggested that they should meet in person. She agreed without hesitation. EF acknowledged in cross-examination that his primary motivation in recommencing communication with AB when he was coming to Edmonton was sex. [ 42 ] EF testified that he did not see any Chat Hour message from AB saying that she was 15 years old.

He said he never heard from her that she was 15. [ 43 ] EF testified that when they met on November 7, 2018, nothing about AB’s appearance gave him any concern that she was not 18. On the way to the hotel, they stopped at a liquor store. She went into the liquor store with him and seemed familiar with the different kinds of liquor. No one in the store questioned her age. [ 44 ] In cross-examination EF agreed with Mr. Nicholls’ suggestion that there is no prohibition on taking a child into a liquor store. Photographs from the liquor store’s surveillance system are in evidence.

In each of the five photographs AB is walking several feet behind EF. The photos suggest that it was EF who make the purchases at the liquor store. Neither EF nor AB was asked which of them actually purchased the bottle of vodka that was purchased, but it seems reasonable to infer both from the photographs and from the fact

that buying alcohol appears to have been EF’s idea, that he did. The liquor store staff would have had no reason to question AB’s age. [ 45 ] Before going to the hotel, EF and AB went to a Walmart store near the hotel. EF bought lubricant “to make my cock slippery”. The need to do so in order to facilitate anal sex had been discussed in the Chat Hour messaging the previous day. [ 46 ] From the Walmart, they drove to the hotel and parked in the hotel’s underground parking lot. EF had registered at the hotel and put his luggage in his room prior to meeting AB at the library.

From the underground parking they took the elevator to the floor where EF’s room was located. AB had a backpack. [ 47 ] In the hotel room, which was a suite, they had sexual intercourse in the bedroom. There was kissing, foreplay, and undressing before the sexual intercourse and “playing” and watching “some TV” after. They discussed dinner and decided to go out and have dinner.

They were in the hotel room for about an hour and left about 4:00 p.m. [ 48 ] EF testified that nothing that happened in the hotel room, including the nature of their conversation, raised any concerns about whether AB was the age stated in her Chat Hour profile. [ 49 ] They went to West Edmonton Mall. As they walked in the mall they held hands and kissed. The mall was somewhat crowded but not packed so there were many people around them when the kissed. They ate in the food court and then went to a movie.

EF agreed in cross-examination that they did not eat in an establishment where alcohol was available, but was not asked why not. [ 50 ] EF testified that he had no concerns that he, a 48-year-old man, was walking in a crowded mall holding hands with and kissing a female person, AB, who was, in his belief, 30 years younger than him. He testified that it did not cross his mind that there would be a problem with that. [ 51 ] They returned to the hotel. He poured a couple of drinks for them. They laid in bed naked and engaged in foreplay.

He testified that AB did not respond to the foreplay so they stopped that activity and watched TV and cuddled. Then the police arrived. [ 52 ] EF testified that he did not use a condom when he had sexual intercourse with AB. There was no risk of pregnancy because, he testified, he has “been fixed”. Further, AB was menstruating. [ 53 ] EF testified that AB never told him that she was not 18.

He testified that he believed she was 18. [ 54 ] In cross-examination EF was shown a photograph of AB which police obtained from AB’s mother when she, the mother, contacted them concerned about the messages she had seen passing between EF and AB on Chat Hour and about their arranged meeting. AB’s mother testified that she did not know how old AB was in the photograph. In my assessment, in the photograph AB is obviously very much younger than 18. EF was shown the photograph in cross-examination. Mr.

Nicholls suggested to EF that AB looked more or less like she did in the photograph when he met her on November 7, 2018. EF agreed with that suggestion without any qualification. [ 55 ] Also, in cross-examination, EF agreed that as a father of a daughter, CD, who was 14 at the time of his meeting with AB, he knew how a 14-year-old acts and talks. He was not asked, however, to compare how AB acted and talked to how CD acted and talked. [ 56 ] He acknowledged that he had thought it interesting or odd that AB’s Chat Hour profile did not include her photograph.

Most Chat Hour users had their photograph in their profile. [ 57 ] He agreed, in cross-examination, that though he had very little information about AB from her profile, he originally selected her for private chats on Chat Hour because she lived in Alberta which would permit him to meet her in person at some point. He further acknowledged he was looking for someone with whom to have a “casual relationship” – one focused mainly on casual sex with a person who had no expectations beyond that.

He agreed that his purpose in meeting AB in Edmonton was to have sex with her. [ 58 ] He agreed that there was no discussion of her age whatsoever when they met. He relied on what was in her Chat Hour profile – that she was 18. In cross-examination he repeated his testimony that AB never told him she was 15. [ 59 ] Also, in cross-examination he acknowledged that he knew his ex-wife, as a child, had been “in the system”. She had been in foster care.

He maintained however, that he did not know that a group home was a place where children with problems live. [ 60 ] He denied that he knew that people lie about their age online. The Chat Hour Messages [ 61 ] The evidence includes 1004 messages that were extracted by police from EF’s cell phone which was seized from the hotel room where EF and AB had sexual relations. The police computer expert who extracted the messages, Mr. Jeff Cameron, testified. [ 62 ] Mr. Cameron presented a hardcopy table with one row for each of the 1004 messages.

It was received in evidence without objection. [ 63 ] There are five columns in the table: 1. The number of the message from 1 to 1004. 2. The “partner id”. This is a 7 digit number which identifies messages which passed between EF and another person. Messages which passed between EF and AB have the partner id number 6639644. 3. The “message”. In many cases the message is not complete. It appears that this is because the table column is not wide enough, in

many cases, to contain the whole of the message. 4. The “sender” of the message. EF is identified as “1” and AB is identified as “0” in this column. 5. The “creation time”. This is a 13 digit number which represents the time the message was sent or received by EF’s cell phone in “Epoch time”. Mr. Cameron testified that the Epoch time of each message was derived from the computer’s time measurement function. Epoch time is the number of seconds which have passed since the first second of January 1, 1970.

To determine the time referenced by the “creation time” number in the table one uses a program readily available on the internet: epochconverter.com [ 64 ] All but 57 of the messages in the table, so 947 messages, passed between EF and AB. Of those 947 messages the earliest was from EF to AB on Monday, November 5, 2018 at 7:45 p.m. The last message was on Wednesday November 7, 2018 at 4:03 p.m. The breakdown of the 947 messages is as follows: 1. Monday, November 5, 2018 – 220 messages. Earliest: 7:45 p.m. Latest: 8:59 p.m. 2. Tuesday, November 6, 2018 – 483 messages. Earliest: 6:03 a.m.

Earliest sent by AB: 2:46 p.m. Latest: 9:00 p.m. 3. Wednesday, November 7, 2018 – 244 messages. Earliest 5:40 a.m. Earliest sent by AB: 11:41 a.m. Latest: 4:03 p.m. [ 65 ] In my view, several sections of this message collection are significant. I will quote some passages and discuss them and other passages of significance. Monday, November 5, 2018 – 7:45 pm to 8:04 pm EF: hello beautiful EF: hope ur doing well AB: I’m ok. you alright? EF: sometimes . . . . most of the time I’m not so s[rest of message cut off] AB: what’s going on? EF: I’m in Edm this week I’d like to meet you AB: sure, but why?

EF: honestly EF: I still have feelings for you AB: really? EF: yes AB: wow I’m surprised, how come?

EF: I’m regretting what I said to you AB: aww ok EF: I miss you and our conversations AB: yeah I miss you too, but this is pretty sudde[rest of message cut off] EF: not sudden I’ve been thinking about you for [rest of message cut off] AB: well ok, what do you wanna do when you c[rest of message cut off] EF: just signed up early this morning and wante[rest of message cut off] AB: yes i have thought of when I’m clear in the h[rest of message cut off] AB: tbh [to be honest] i haven’t been sober very often EF: honestly my plan was to come spend time w[rest of message cut off] EF: awwww AB: yeah that’d be nice EF: you want to get drunk with me lol

AB: yeah i’d like that, do you wanna? EF: yes AB: sure then, do you know what day you’re go[rest of message cut off] AB: Hi EF: I will be in Edm on wed and thurs nights . . . AB: what have you been upto lately? . . . EF: not to much just been doing some wood wo[rest of message cut off] EF: you? AB: just drinking and sleeping a lot i haven’t bee[rest of message cut off] EF: oh noooo.....how come AB: just too tired and lazy EF: awwwww AB: did I tell you I might be bipolar?

AB: my doctors think so EF: I will be in Edm by 5 on wed EF: ohhh my EF: how do you feel about that AB: idk [I don’t know] what to think i guess it kinda makes sens[rest of message cut off] EF: really EF: have you been noticing that AB: yeah it does AB: yeah i have been EF: is that why the drinking AB: i guess EF: new boyfriend getting you the stuff EF: what are you drinking these days AB: well i have friends who can get me things no [rest of message cut off] AB: beer, and rum and coke mostly EF: cool AB: yeah it’s sort of gross tbh [to be honest] EF: white rum or dark AB: dark it’s called screech [ 66 ] This excerpt indicates that there had been communication between EF and AB before the set of messages which are in evidence.

Both of them testified to this effect. Also, this passage is consistent with EF having ended their Chat Hour contact prior to these messages and having resumed that contact with the first of the messages set out above. [ 67 ] And, in my view, very significantly, this passage strongly indicates that EF knew that AB was not 18 years of age. When she mentioned that she was drinking alcohol a lot, he asked whether her new boyfriend was getting it for her. And she answered that she had

friends who could get her things. The context clearly establishes that they were talking about AB acquiring alcohol. EF’s question and AB’s answer both indicate that AB was not old enough to buy alcohol herself, and that EF knew that to be the case. Monday, November 5, 2018 – 8:15 pm to 8:22 pm AB: anything new? . . . EF: not to much .... been spending more time w[rest of message cut off] EF: she’s being a flirt lately tho AB: that’s nice, you guys go out as a family often AB: wym [what you mean] a flirt?

EF: yeah we do . . . going swimming and shopping EF: she’s just been Wrestling with me EF: lots of rubbing up against me AB: is that good or bad? EF: I like it....not sure how others feel about it [rest of message cut off] AB: lol she do it in public? EF: no EF: mostly at home EF: d love to hold your hand and kiss you in pub[rest of message cut off] AB: I’d like that too :) [ 68 ] In this passage EF refers to one or other of his daughters, the older of which was 14-year-old CD, “flirting” with him “mostly at home” by wresting with him and rubbing up against him.

He says he likes this conduct on his daughter’s part but is not sure how others feel about it. I infer from this that EF is aware that some would view such contact between father and daughter as unacceptable. When AB asks if this conduct happens in public he answers “no” but indicates he would like to hold AB’s hand and kiss her in public. [ 69 ] I find it significant that in this passage EF observes that he would like to hold AB’s hand and kiss her in public in the immediate context of his having described flirtatious conduct on the part of his child-aged daughter directed to himself.

It is, in my view, consistent with EF having known that AB, like his daughter, was a child. Monday, November 5, 2018 – 8:29 pm to 8:46 pm EF: would you be able to stay the night with me . . . AB: yeah i can AB: what do you wanna do that night? EF: awesome ???????? AB: yeah it’ll be fun :) EF: we could go see a movie or spend time in m[rest of message cut off] AB: either sounds great :) EF: yesss EF: order some pizza EF: get naked

AB: love pizza :) it’ll be really fun EF: I’m looking forward to feeling your hugs EF: kissing you AB: yes me too :) . . . . . . EF: I’m having very sexual thoughts about you [rest of message cut off] AB: tell me them;) . . . EF: I can kiss you and hold ur hand in pub[rest of message cut off] AB: yes i want that :) AB: you remember my age right though? EF: 18 EF: lol [laughing out loud] EF: yes I remember baby AB: lol ok good AB: was worried for a sec lol EF: and I want you to tell me that often when w [rest of message cut off] AB: you like knowing that? EF: yes AB: good me to :) EF: omg [oh my god] ????????

EF: baby [ 70 ] In this passage EF clearly suggests that he intends that he and EF will have sexual relations when they meet later that week. And in that context AB seeks to confirm that he knows her age. He says her age is “18” and in a separate message, the next message, says “lol”. He indicates a desire for her to tell him her age often. [ 71 ] In my view, in this passage, EF’s addition of the text abbreviation for “laughing out loud” after he says that AB’s age is 18 means that he knows that her age is not 18.

The use of the text language abbreviation “lol” indicates, in this context, that the statement just made has been made with ironic intent. It means that EF is actually confirming that he knows AB’s age is not 18. Further, it means that EF recognized that AB was of an age about which it was important that he be aware – important enough for AB to confirm with him that he remembered her age – that is an age less than 16. [ 72 ] That this is an accurate

interpretation of the passage is strengthened by the fact that after he has suggested sexual relations with AB, she seeks to make sure he knows what her age is, and that after EF says “18” and “lol” he says he wants AB to tell him her age often when they are together. This is consistent with EF feeding the paedophilic fantasies that are found throughout his messaging with AB. It is consistent with his knowing that she was a child. [ 73 ] After this passage the remainder of the exchange on Monday November 5 becomes very sexually explicit.

EF says, “I want to be naked with you a lot” and “I want to cummm deep inside you a lot” and similar things. He sends her two “private pics” which the context indicates display his erect penis. He says he would “love to get you pregnant”. The conversation ends at 8:59 p.m. – library closing time. [ 74 ] The conversation between EF and AB on Tuesday, November 6, 2018 includes similarly sexually explicit messages. EF again sends further pictures of himself to AB and the context suggests he was naked in the pictures. He tells AB that he would love her to call him daddy.

They talk about the type of sexual activity they might engage in when they meet. This exchange occurs: Tuesday, November 7, 4:45 pm to 4:50 pm EF: this time tomorrow we will be together hun

EF: I can’t wait to finally be with you AB: and we will have so much fun babe :) EF: You are my baby girl EF: my very very sexy daughter mmmm AB: wish i had more pics to show you babe EF: we can take pics of us together if you’d like AB: I’d love to babe :) EF: pics of daddy fucking his little girl AB: mmm hot EF: video of daddy making his baby cummm EF: you calling out daddy get me pregnant AB: hot [ 75 ] In this passage, as I read it, EF is fantasising about what will occur when he and AB meet the next day.

Clearly the partner he expects to be having sexual relations with is someone young enough to be his “sexy daughter”, his “little girl”, “his baby”, and to call him “daddy”. These references all suggest that EF knew that AB would fit those descriptions – that she was a child. Tuesday, November 7, 2018, 5:52 pm EF: me to my sexy woman AB: mmm AB: my sexy man:) . . . EF: just looking for Astro gel for your ass EF: I thought I had some??? AB: what’s that? EF: slippery lube [ 76 ] This passage has contradictory indications.

First that EF calls AB his “sexy woman” is somewhat inconsistent with him believing her to be a child. Second that AB asks what “Astro gel for your ass” is, suggests a lack of sophistication as to sexual matters, consistent with her being a child. [ 77 ] In the very sexually explicit messaging that follows this exchange, EF fantasizes about AB having sex with his daughter, CD (CD is not named). AB confirms with EF that CD is 14 years old. Then EF fantasizes about himself, AB and CD all having sex together and about him getting CD pregnant too. [ 78 ] A few minutes later EF asks AB what he calls “a sexy question”.

The whole of the question is not displayed on the exhibit but the start of it is, “if I was flirting with you at 10yrs old would y”. AB answers, “yes of course i would babe. I’d want to so badly. Would you?” EF replies, “yessss”. The following exchanges make it clear that the subject of this small

section of the conversation is EF imagining having sexual relations with a 10-year-old. The

section of the conversation moves immediately to EF expressing his strong desire to have sexual intercourse with AB. [ 79 ] That EF fantasizes about having sex with and getting 14-year-old CD pregnant, and about having sexual relations with a 10- year-old, all in the context of having sexual relations with AB, indicates that his talk about having sex the next day with AB and getting her pregnant was about his expectation that his desire to have sexual relations with a child would be realized imminently.

I interpret these passages as indicating that EF knew and delighted in the fact that AB was a child. [ 80 ] The messaging conversation between EF and AB on November 7 continued until the library closed at 9:00 p.m. [ 81 ] The messaging on Wednesday, November 8, 2018 begins at 10:56 a.m. EF and AB anticipate their meeting in “only a few more hours” and the sexual activity in which they will engage.

[ 82 ] In the course of this anticipation there is brief mention of their plans for Thursday, November 9. AB says, “i have to be back at the group home thursday.” EF responds, “that’s ok....I can pick you up in the afterno[rest of message cut off]”. EF does not ask what a group home is or why AB needs to be “back” at one. In his testimony at trial he said he did not know what a group home was. [ 83 ] There is also discussion, initiated by EF, of buying alcohol. In that context AB asks EF what his favorite drink is. He says vodka and cranberry. AB says she has never tried that, but would love to.

She asks if it is strong. EF answers, “all depends on how strong you make it”. AB asks, “so it’s vodka mixed with cranberry juice?” [ 84 ] In my view, this short exchange reveals AB’s naivety with regard to alcohol. It is a further indication that AB is very young. [ 85 ] After discussing details of where they will meet, the conversation returns, at EF’s initiative, to what they will do when they meet. EF says he wants to hug and kiss her when they meet. He says, “you can be very sexual towards me you know . . . I know ur shy tho” and AB says “i’ll try to be as outgoing as i can lol”.

That EF feels a need to tell AB that she can be “sexual towards him” and that he knows she is shy, indicates, in my view, that he is aware of her youth. [ 86 ] The third last and second last messages of November 7, 2018 are at 2:18 p.m. EF has arrived at the library. AB says, “ok be out in a minute:)” and EF responds “ok”. [ 87 ] The last message of November 7, 2018 is at 4:03 p.m. It was sent by AB and it is simply and emoji which appears in the exhibit as “:)”. This appears to have been sent after EF and AB had sexual relations at the hotel. Clearly, she was not at the library at 4:03 p.m.

Though the point was not addressed in evidence, I assume AB sent this message using EF’s phone. Has the Crown proved beyond a reasonable doubt that EF knew that AB was under 16 years of age when he communicated electronically with her about have sexual relations with her and when he had sexual intercourse with her ? [ 88 ] EF’s evidence was that he believed that AB was 18 on November 7, 2018.

He testified that this belief was founded on the fact that AB’s Chat Hour profile said she was 18. [ 89 ] I do not believe EF’s evidence in that regard. [ 90 ] In my view, the evidence establishes that EF knew that AB was younger than 18. In particular, I point to the evidence that EF wondered in the text messages how AB was able to acquire alcohol when she said she was drinking a lot and she answered that she had friends who would get what she needed.

This is a strong indication that EF knew AB was younger than 18. (see para. [67] above) That he was untruthful in testifying that he believed AB to be 18 severely erodes EF’s credibility. [ 91 ] As previously discussed, I believe AB’s evidence that she told EF in their early Chat Hour messaging that she was actually 15. I have previously discussed the evidence which leads me to this conclusion in paras. [30] to [33] above. [ 92 ] Other evidence that EF not only knew AB was younger than 18 but that he also knew she was under 16 includes: a.

That EF had broken off communications with AB and only resumed it when he knew he was coming to Edmonton. He had broken communications off because he realized that there was something negative about his having such sexual thoughts about and communications with AB. I reject EF’s evidence that he also cut off communications because AB lived several hours distant from him. That she was in Alberta was the reason he had originally invited her to have private Chat Hour conversations with him and his work often took him to Edmonton where AB lived.

EF restored communications because he was coming to Edmonton and could have a physical meeting with AB. (see para. [41] above) The temptation that opportunity provided overcame the negative feature of continuing communications with AB – that the sexually charged communication was with a child. b. That EF knew that AB did not have a cell phone or access to a private electronic device, but, rather, used the computers in the public library to communicate with him, had little money, was not working and that she did not live with her mother but lived in a group home.

All of these are characteristics of a youth – indeed of a troubled youth. It is also not credible that EF did not know what a group home is. (see paras. [38] and [59]) c. EF’s agreement with the suggestion made to him in cross-examination that the photograph of AB which Mr. Nicholls showed him was more or less what AB looked like when they met on November 7, 2018 and my own assessment that photograph is of a person much younger than 18. (see para. [54] above) d.

That AB’s Chat Hour profile did not include her photograph – a point which EF acknowledged he recognized as interesting, or odd and abnormal. (see para. [56]) e. That EF clearly engaged in sexual fantasies about having sexual contact with persons much younger than 16, including his own daughter who was 14, and AB as a 10-year-old. The text communications he had with AB strongly indicate that he saw the opportunity to meet her and have sexual relations with her as an opportunity to convert his fantasy into reality. (see paras. [69], [74], [75], [78], [79] above) f.

That communications EF received from AB displayed naivety and shyness about some sexual matters and about alcohol consistent with her being very young. (see paras. [76], [83], [84] and [85] above) [ 93 ] For these reasons I have concluded that I do not believe EF’s evidence that he thought AB to be 18, and therefore not under 16 years of age. Further I am satisfied that the evidence which supports that conclusion also supports the conclusion that there can be no reasonable doubt on that point.

[94] I am satisfied that the same evidence satisfies the Crown’s onus in respect of all three offences. The Crown has provedbeyond a reasonable doubt that EF knew that AB was under 16 years of age. [95] Given that conclusion, it is not necessary for me to consider whether or not EF took reasonable steps, or all reasonable steps todetermine AB’s age. I have found that, beyond a reasonable doubt, he knew her age to be less than 16. The defence of honest butmistaken belief as to AB’s age fails because the evidence establishes beyond a reasonable doubt that EF did not believe AB to be 16 orover.

It establishes beyond a reasonable doubt that he knew her to be under 16. [96] I find EF guilty of all three offences charged. [97] I invite counsel to address the application of R v. Kienapple (SCC), [1975] 1 SCR 729 in this case. Heard March 1 to March 9, 2021. Dated at the City of Edmonton, Alberta this 19th day of March, 2021. B.R. Burrows J.C.Q.B.A. Appearances: Keith Nicholls for the Crown Thomas M. Engel for the Accused _______________________________________________________ Correction of the Reasons for Judgment of The Honourable Mr. Justice B.R.

Burrows _______________________________________________________ In Appearances, Mr. Engel’s middle initial has been corrected to M.