R. v. L.S., 2022 BCPC 338

Citation: R. v. L.S. 2022 BCPC 338 Date: 20221018 File No: 55570-1 Registry: Vernon IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REX v. L.S. BAN ON PUBLICATION Pursuant to s. 486.4(2) of the Criminal Code of Canada REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. GUILD Counsel for the Crown: J. Bagan Counsel for the Defendant: L. Helps Place of Hearing: Vernon , B.C. Dates of Hearing: July 11 & 12, 2022 Date of Judgment: October 18, 2022

Overview of Facts [ 1 ] Mr. N. was reviewing his teenaged daughter’s cell phone to ensure there was no inappropriate activity. He came across a blocked contact, which was unusual, so he sent a text message to find out who was blocked, and why. That text message went to Mr. S. A conversation ensued, with Mr. N. pretending to be a 14 year old girl, M., who turned 15 in the midst of the two-week long conversations. Near the end of the conversations, Mr. S. offered to buy M. liquor and sent a picture of his penis. Shortly after that, Mr. N. went to the police and reported what happened. Mr. S. was arrested. [ 2 ] Mr.

S. is charged with four offences of a similar nature. Two relate to making available sexually explicit material for the purpose of facilitating various offences. Of those two, one requires proof that M. was under 18, the other that she was under 16. The two remaining offences are that Mr. S. communicated by telecommunication with a person under 18, or 16, for the purpose of facilitating the same offences. The charges are under sections 171.1(1) (a), 171.1(1) (b), 172.1(1) (

a) and 172.1(1) (

b) of the Criminal Code . Issues [ 3 ] The arc of the communication between Mr. S. and M., which was all by text messages, was the unsolicited message to which he responded, followed by a conversation. That ended with Mr. S. saying he did not think he should be talking with a 14-year-old girl, and that they could talk more when she was 18. Mr. S. had learned she turned 15 the next week. He re-established communication by wishing her a happy belated birthday. He then went on to ask what M. looked like.

He gave a brief description of himself, sent an unsolicited photograph of himself, then asked M. to send him a picture. Mr. N. sent an altered old photograph of his girlfriend. Mr. S. said she was beautiful. They had more conversations, with Mr. S. initiating contact and inquiring about her personal life. [ 4 ] The content of the conversation then seemed to change. Mr. S. said he wanted M. with a side of chocolate for lunch. He said he would be all over her if he was 16. He said she made him think dirty thoughts. He offered to buy her liquor and made some arrangements to do so.

After about a three hour pause, he sent M. a picture of his penis, admitted he meant to send it to her and asked if she liked it several times. He then asked M. for a picture and said he wanted to see more of her body. He then offered to buy her liquor again, and said he could send another photograph of himself. [ 5 ] The defence conceded that identification, jurisdiction and date were not in issue, and that Crown had proved beyond a reasonable doubt Mr. S. believed “M.” was under 16 years of age. Also no issue was taken with the fact that he had the intent to communicate by telecommunication.

There also appeared to be no issue that Mr. S. sent M. sexually explicit material as defined in s. 171.1(5) of the Criminal Code . [ 6 ] The main issue is whether his communications were for the purpose of facilitating another specified offence. Just sending M. the photograph is not all that is required for the charges he faces. The Crown must also prove that in sending the photograph, or communicating, he intended to make it easier for him to commit another offence. [ 7 ] The defence argued that Mr. S. was not “trolling” the internet, looking for potential victims of illegal acts he was thinking of committing.

He did not initiate the communication, and, as Mr. S. testified, communication continued simply because he wanted to feel less lonely and isolated during the pandemic. He was lonely because he was facing marital disharmony and denigration at work, and the pandemic restrictions meant he had little opportunity for meaningful social contact. Mr. S. argued the Crown failed to prove his criminal intent beyond a reasonable doubt and underscored the specific intent required for the offence, which he argued was not made out on all the evidence. [ 8 ] To convict Mr.

S., I would have to reject his evidence and then draw the inference of his specific intent from the Crown’s evidence. He said there was no basis to reject his testimony. I disagree. I find the Crown has proved two of the charges, Counts one and three, beyond a reasonable doubt. My reasons for this conclusion follow. Analysis [ 9 ] Mr. S.’s concessions regarding what the Crown proved beyond a reasonable doubt were appropriate. There was no doubt on the evidence that those points were proved as required. The only real issue was his specific intent. [ 10 ] I will refer to Mr.

N. as M. when he was posing as her, and will at times refer to M. as “her” or “she”. I will refer to M. as if she was a real 14 or 15 year old, as that is what Mr. S. believed, and that is what is important for the offences. Examination-in-chief, chief and re-examination refer to the times when Mr. S.’s lawyer was asking him questions. Cross-examination refers to the period when the Crown was asking Mr. S. questions. Law [ 11 ] It is important to know that Mr. S. is presumed innocent. The Crown must prove beyond a reasonable doubt his guilt, including his specific intent in sending the communications.

If the defence evidence is believed, or is capable of being believed, I must acquit him. Even if I reject his evidence, I must be satisfied beyond a reasonable doubt of his specific intent, and guilt, based on all the evidence I accept. [ 12 ] To obtain a conviction, the Crown must prove beyond a reasonable doubt that Mr. S. communicated with M. “for the purpose of facilitating the commission” of at least one of the enumerated offences set out in the four charges.

[ 13 ] It is helpful to set out the purpose of the offences [i] : [36] The language of s. 172.1 leaves no doubt that it was enacted to protect children against the very specific danger posed by certain kinds of communications via computer systems. … The Internet is a medium in which adults can engage in anonymous, low visibility and repeated contact with potentially vulnerable children. The Internet can be a fertile breeding ground for the grooming and preparation associated with the sexual exploitation of children by adults.

One author has described the danger in these terms: For those inclined to use computers as a tool for the achievement of criminal ends, the Internet provides a vast, rapid and inexpensive way to commit, attempt to commit, counsel or facilitate the commission of unlawful acts. The Internet's one-too-many broadcast capability allows offenders to cast their nets widely. It also allows these nets to be cast anonymously or through misrepresentation as to the communicator's true identity. Too often, these nets ensnare, as they're designed to, the most vulnerable members of our community -- children and youth. . . . . .

Cyberspace also provides abuse-intent adults with unprecedented opportunities for interacting with children that would almost certainly be blocked in the physical world. The rapid development and convergence of new technologies will only serve to compound the problem. Children are the front-runners in the use of new technologies and in the exploration of social life within virtual settings. [Emphasis added] [ 14 ] The Supreme Court of Canada has explained the elements of two of the offences Mr. S. faces [ii] , although the analysis applies to all of them: [28]

Section 172.1(1) makes it a crime to communicate by computer with underage children or adolescents for the purpose of facilitating the commission of the offences mentioned in its constituent paragraphs.

In this context, “facilitating” includes helping to bring about and making easier or more probable — for example, by “luring” or “grooming” young persons to commit or participate in the prohibited conduct; by reducing their inhibitions; or by prurient discourse that exploits a young person’s curiosity, immaturity or precocious sexuality. [29] I hasten to add that sexually explicit language is not an essential element of the offences created by s. 172.1. Its focus is on the intention of the accused at the time of the communication by computer.

Sexually explicit comments may suffice to establish the criminal purpose of the accused. But those who use their computers to lure children for sexual purposes often groom them online by first gaining their trust through conversations about their home life, their personal interests or other innocuous topics. [30] As Hill J. explained in R. v. Pengelley , [2009] O.J.

No. 1682 (QL) (S.C.J.), at para. 96 : . . . computer communications may serve to sexualize or groom or trick a child toward being receptive to a sexual encounter, to cultivate a relationship of trust, or to undertake a process of relinquishing inhibitions, all with a view to advancing a plan or desire to physical sexual exploitation of a young person. [31] Accordingly, the content of the communication is not necessarily determinative: What matters is whether the evidence as a whole establishes beyond a reasonable doubt that the accused communicated by computer with an underage victim for the purpose of facilitating the commission of a specified secondary offence in respect of that victim. [ 15 ] The Crown submitted that the possible offences are s. 163.1 (possessing or accessing child pornography); s. 286.1(2); s. 151; s. 152; and s. 173(2).

The reason a conviction cannot be entered with respect to s. 173(2), exposing genital organs to a person under 16, is technical. He sent sexually explicit material – the picture of his penis. But did he do so in a “place”? [ 16 ] I did not receive submissions on that point. It may be that the internet, or cell phones, would qualify as a place, but in the circumstances, I do not need to and I am not prepared to make that finding in the absence of full argument. Even if I assume he exposed himself to a person under 16 for a sexual purpose in a place, that is not enough to sustain a conviction.

He is not charged with that offence. The Crown has to prove that he sent the photograph of his penis to facilitate exposing himself again, contrary to that section. The photograph itself cannot be the same as the exposure he intends to facilitate, and there was no sexually explicit material sent before he sent the penis picture. His offer to send another photograph later would be subject to argument whether the internet or a cell phone was a place. [ 17 ] I conclude that the only realistic possible offence is under s. 163.1.

The other offences listed in the relevant sections would be too far a stretch given the evidence in this case. [ 18 ] The relevant parts of that

section are: 163.1

(1) In this section, child pornography means (

a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means, … (ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years; …

(4) Every person who possesses any child pornography is guilty of [an offence]

(4.1) Every person who accesses any child pornography is guilty of [an offence]

(4.2) For the purposes of subsection (4.1), a person accesses child pornography who knowingly causes child pornography to be viewed by, or transmitted to, himself or herself.

[ 19 ] To distil the section’s requirements, the Crown must prove beyond a reasonable doubt that Mr. S.’s text messages, including photographs, were sent to facilitate possessing or accessing child pornography. Defence Evidence [ 20 ] The only defence evidence came from Mr. S. The essence of his testimony was that he felt isolated because of the COVID-19 lockdowns, his and his wife’s work schedules such that they rarely saw each other, his family obligations and limited friendships at work.

He received the email from M. unexpectedly, responded and continued their conversation as a means of alleviating his feelings of isolation. He said he never had any intent to commit any of the enumerated offences, or any offence, except providing liquor to a minor. I will now analyze his testimony in light of all the evidence. [ 21 ] Mr. S. was born in January, 1987. At the time of the offence he was living in (omitted for publication) with his wife and two young children. He had been married for almost 11 years. One of his children was on the autism spectrum. The parenting

schedule was chaotic and to accommodate it, Mr. S. worked on the weekends and looked after their children during the week while his wife worked. His work was in 12-hour shifts. He was a boiler operator at (omitted for publication) and has a grade 12 education. [ 22 ] Mr. S. testified that at the time he generally felt depressed since his whole life was simply work and caring for the children, with additional stressors from financial issues and an autistic child. In addition, the restrictions from the COVID-19 pandemic meant he was unable to socialize.

The result was that he felt lonely and that no one was talking to him. [ 23 ] The text message from the unknown number on February 1, 2021, two days after his birthday, started as a conversation. He enjoyed it because it was someone to talk with. The conversations made him feel happy and not lonely. He said when he knew M.’s age he was very uncomfortable about communicating, but continued to do so until he ended the conversation. He explained the reason he kept talking despite M.’s young age was that the conversations boosted his confidence and made him feel good about himself.

He said when he found out her age, he thought about when he was in high school which was a difficult but also a good time in his life. He testified he was not thinking of a sexual relationship with M. at the time. M.’s Age [ 24 ] The text messages show he did not think they should communicate because she was 15 [although she was 14 at the time], but Mr. S. enjoyed talking with her. M. replied to the effect it had been nice and said goodbye, with an unhappy or frown face emoji. Mr.

S. then wrote “well when you turn 18 we can talk more”, added thumbs up and waving hand emojis, and said goodbye. [ 25 ] He testified that he said he would talk to her more when she turned 18 because he felt it was necessary to let her know he was not thinking about her in a sexual way. Nothing in the communication to that point even remotely hinted at anything sexual. In cross- examination, he said he wanted to continue the conversation, but “her age was a factor” so he was hoping to talk to her more about her hopes and dreams when she was 18.

He said the lonely part of him wanted to continue the conversation, but her age was a big factor in deciding to end the conversation. She was not of legal age so he thought the conversation should end. He interpreted the unhappy face emoji as an indication M. was sad he had ended their conversation. [ 26 ] His testimony and the texts show he clearly understood it was not appropriate to continue to communicate with M. until she was 18 years old. The relevance of that age is she would be the age of majority. His evidence that he was trying to let her know he was not thinking of her in a sexual way is perplexing.

It was unnecessary if there was no sexual connotation or intent with the communication at the time. M. did not suggest she thought there was anything wrong with it. A simple statement to that effect would have been clear, but not needed if he intended to end the conversation. It was a non-issue. [ 27 ] His evidence that he wanted to talk to her about her hopes and dreams seemed far fetched. A text conversation consisting of banter with a 14 year old, female stranger for less than an hour and 15 minutes does not lead to a realistic desire to talk in depth about her life three years later.

That testimony seemed self-serving and a result of the charges he faces. Mr. S. Continued the Conversation [ 28 ] Despite his stated intent to not communicate further, and his acknowledgment in cross-examination that at the time he thought the conversation with her was almost over before he sent his last text message, Mr. S. started up the communication eight days later on February 9. He sent M. a belated happy birthday wish. M. said thanks. He said you’re welcome.

And that was it. [ 29 ] At trial, he explained he did so because it was nice to acknowledge somebody's birthday, and that he had just had his birthday but had not gotten much acknowledgment because of the COVID-19 lockdowns. In cross-examination, he acknowledged that he had thought about M. in the interval, wondered what she looked like and was interested in building a friendship, which he perceived as something different from building a relationship. He acknowledged he did not think it was right to have a conversation with a 15 year old girl, but it made him feel better to talk to someone who was nice to him.

He was a little evasive in cross-examination on the issue of friendship versus relationship and in agreeing with what was obvious: he wanted to talk to M. Mr. S. asks M. about her Body [ 30 ] Two days later, on February 11, Mr. S. sent a text in the evening: “I’m curious on what you look like” along with a couple of emojis. M. asked if he was wanting her to tell him what she looked like. In response, on February 12 Mr. S. texted “Are you tall fat skinny and short lol” followed by a laughing emoji.

He explained at trial he was curious what M. looked like, and wanted to put a face to the person he was communicating with. He explained that is why he later sent a picture of himself. [ 31 ] I am sure he was curious, but that does not explain the communication in light of what he previously acknowledged and said: it was inappropriate to continue to communicate with M. His testimony that he was just trying to put a face to M. is inconsistent with the

text message asking about her body. He did not start seeking information about her face. He then sent a text message about his body, followed by a message that he wore glasses, then a full body photograph. [ 32 ] In cross-examination, he said he described himself and sent his photograph to show he was not lying about his looks. Wanting to show he was not lying could only be to try to build M.’s trust. Mr. S. agreed that was so. He agreed he wanted M. to send a photograph of herself. He did not explain why he did not ask if she wanted to see what he looked like.

His sending a photograph to M. was for the purpose of establishing trust so she would send him a similar photograph of herself. That is what he wanted. M. sent an altered facial photograph. Mr. S. Thought M. was Beautiful [ 33 ] Mr. S.’s response was: “Wow your beautiful”. His only explanation at trial was that he was trying to boost her confidence, because after the picture M. sent two “nervous” emojis. M. did not respond to his comment. Mr.

S. then sent a text a minute later saying: “Don’t be worried you’ll have all the boys chasing you” followed by a wink emoji, and 7 minutes later, “Your poor dad is going to be chasing all the boys from you” followed by two laughing emojis. Three minutes later he sent a text “Ok then?” M. had not replied to any of those texts. [ 34 ] His explanation-in-chief was he sent the text message about her father because when he was in high school, girls were mean to him at times and he intended to boost her confidence. That made little sense.

In cross-examination, he said his responses were encouragement, not flirtatious, but more like he was joking. He acknowledged the reference to boys was an indication that they would want to hang out with her in a romantic sense. When asked about the text referring to her dad, he denied he implied she would have a number of suitors, stating that he was just referring to guys being friends. That denial does not fit with his acknowledgment of the boys having a romantic interest. He explained he sent the text “Ok then?” as he wondered if she had read his texts and he was concerned about how she took them.

He said he did not want her to feel uncomfortable about her appearance. [ 35 ] M. responded, thanking him and saying her photograph was mostly filters, that is, altered. Mr. S. then changed the topic, asking what video games she played, but within four texts he returned to reference M.’s photograph and said “Man I can’t stop looking at your photograph your eyes are so beautiful”, followed by a smiling emoji with hearts for eyes. He denied the heart-eyed emoji conveyed affection, saying he was just admiring her eyes. He did not explain why a heart emoji was needed to communicate that to a 15 year old girl.

There was no other explanation of why he returned to comment about the beauty of her eyes. I think it is fair to say a heart suggests far more than platonic approval with no interest in romance. Although his returning to comment about the beauty of M.’s eyes might be consistent with wanting to boost her confidence, Mr. S. did not say that was the purpose.

The texts and evidence suggests he did so only because he was truly struck by her beauty; in other words, it was to let M. know of his admiration – at the least, a curious thing for a 34 year old male stranger to say to a 15 year old girl. [ 36 ] When pressed that in fact he thought M. was beautiful, he said she looked nice but only her eyes were beautiful. When confronted with his initial response to the photograph: “Wow your beautiful”, he said that he meant to say her eyes were beautiful. [ 37 ] He said what he meant in other texts, and he did not explain how he made the alleged mistake.

His next texts referred to boys chasing her. Those two texts obviously referred to his statement that she was beautiful. In cross-examination, he agreed that in his first text message he responded with adoration and encouragement. It was not limited to her eyes. A heart-eyed emoji is consistent with adoration. He did not text and try to convey that boys would chase her in a romantic sense simply because of her eyes. [ 38 ] I do not believe his explanation.

His assertion that he meant to refer only to her eyes was an attempt, long after the fact, to avoid acknowledging what he truly thought at the time, which he expressed in the text messages. His denial that he meant she was beautiful colours his credibility . I conclude he thought she was beautiful. Accordingly, he might have been physically attracted to her. Mr. S. Again Continues Conversation and Seeks M. to Confide in him [ 39 ] In the text communications, he continued to try to communicate with M. but got no reply. The next day after she responded he said he thought M. was ignoring him.

Shortly after another lull, Mr. S. said “What not talking to me again jeez” followed by an emoji, whose expression is unclear. He was obviously trying to continue their communication. He said he then asked where she lived to keep the conversation going, because he was trying to get to know her. [ 40 ] In chief, he said that it would have been nice if she lived in the same area as he did, although it did not really matter. In cross- examination he said he did not want to know where she lived, asserting he just picked a topic to keep the conversation going.

He also said he picked that topic to see if she lived near him. His answers were inconsistent. He said determining where she lived was interesting conversation. If it was interesting, he was interested in the answer. He wanted to know where she lived. It mattered. [ 41 ] After continuing the text communications while he was at work, he changed topics by asking, out of the blue, “Are you a only child?” There had been no suggestion she was an only child. His explanation for that text was that he wanted to know her family situation because he thought it must be lonely to be an only child.

His evidence did not explain why he brought up that specific topic in that way, when there had been no reference to it previously. Assuming that was true, why would he want to know if she was lonely? A plausible inference is he wanted to do so because a single child might be wanting friendship and would therefore be more open to his advances. [ 42 ] M. replied that she had an older sister that lived with her father out of town. Mr. S. replied “That’s sad sorry to hear that sweety”.

His explanation for using ‘sweety’ was that he felt bad for her that she was separated from family, and that he used the same word when speaking to his daughter when she was upset. He went on to say that he was not trying to comfort M., just acknowledging she was in effect an only child. Yet it is clear that he would call his daughter ‘sweety’ to comfort her. And if he did not want to comfort M., in case she was an only child, there was no need to bring up the subject.

When it was put to him that ‘sweety’ was an affectionate term, he did not really answer the question, stating that was what he called his daughters when they were upset. He agreed he was trying to build trust with M., but stated it was more like he was trying to comfort her.

[ 43 ] His explanations are contradictory and make no sense. I reject them. I find he tried to find out if M. was an only child to comfort her if she was, and thereby become closer to M. When it was put to him that he wanted M. to know that she could confide in him, he answered “no, she doesn’t have to”. That too was unresponsive to the point. He denied he wanted M. to feel she could confide in him, yet also agreed she wanted M. to think of him as a trusted adult. Those too are inconsistent. Confiding in someone requires trust. He was asking very personal questions, wanting M. to confide in him. Mr. S.

Wanted to Have M., with a Side of Chocolate [ 44 ] Mr. S. then switched topics again, by sending M. a picture of himself at work near a large saw. M. said be careful and Mr. S. replied “Always gorgeous” followed by a winking emoji. Mr. S.’s explanation for calling her gorgeous was that he would use that word with male workmates. He gave as an example that when workmates were upset and swore he would say "what's up gorgeous”. He testified that he was a jokester, and the text message was similarly, simply joking. [ 45 ] Mr.

S.’s definition of “gorgeous” was it meant a person that was dressed up and ready to hit the town and have fun. He denied he was referring to M.’s beauty, despite that being part of the meaning of the word. Although that may have been what Mr. S. meant to convey, or did not mean to convey, M.’s response showed she took it literally: that Mr. S. was calling her gorgeous, as in strikingly beautiful. That context is important in considering the next text messages. [ 46 ] There was a lull in the conversation and M. texted “Did you fall into the mega saw lolll”. Mr.

S. had accepted that ‘lol’ meant ‘laugh out loud’, and took no issue with repeated letters. Mr. S. said he was just finishing lunch and then texted “Your so sweet caring for me” followed by a heart emoji. He denied he was referring to her with affection. He denied a heart went beyond friendship and said that he sent heart emojis to male friends often. The heart apparently meant something different from the previous heart-eyed emoji where he meant to convey adoration. He did not explain how that was so. [ 47 ] M.’s text message was obviously a joke. Mr.

S. did not explain why he expressed in the text message that he took it as actually caring. He converted a joke into having real meaning, with no jest involved. Mr. S. explained that he and M. were building a friendship. If so, it was a friendship based on joking back and forth to that point. Why he converted an obvious jest into real caring was unexplained. Doing so would not be consistent with their friendship to that point. [ 48 ] M. then asked an innocent question, obviously responding to his statement he was finishing lunch: “What’s for lunch?” Mr.

S. replied “You with a side of chocolate” followed by a winking emoji. In chief, Mr. S. explained that he made that remark because he is a jokester at times, and again referred to calling male friends at work ‘gorgeous’. There was no other explanation at that point. His testimony begged the question: why would a 35 year old adult male send to a 15 year old girl that impliedly sexual comment in response to a simple question, when nothing sexual had ever been raised? At the least, it was an inappropriate comment. It seemed to suggest he meant it literally, with a sexual connotation. [ 49 ] In cross-examination, Mr.

S. maintained he was joking, denied there was any romantic connotation to it, and agreed he was being sarcastic. He then agreed that in context it was romantic, although he was being sarcastic. He denied there was anything sexual to it, explaining he would have said something different if he meant it sexually – something that would have been demeaning. He had no explanation of why it would have been demeaning. Eventually he said he just meant that it was sweet that she was talking about his lunch, and the winking emoji was not flirtatious but a nudge, meaning he was bugging her.

He said a nudge was different than a wink, then when asked to explain what a wink meant, he said it meant a nudge. [ 50 ] His testimony that he simply meant it was sweet that M. was talking about his lunch defies belief. He had just said plainly it was sweet of her to care about him and a saw. His assertion that he was being sarcastic falls flat in context and when scrutinized. [ 51 ] Apart from some inconsistent answers, there was no real explanation that provides a plausible explanation of how that was a joke in the context of their conversation.

Although the tone and context on its face may in part be in jest, saying it was in jest does not explain the point of the jest, especially since he had just converted M.’s jest into actual caring. His simple denial it was sexual in cross- examination did not explain why he said that rather than something else. He did not explain why he chose a form of jest that had sexual connotations, when he ostensibly meant to convey that M. was sweet because she asked what he had for lunch. Why it was sweet of her to ask that question when he first said he was having lunch was also unexplained.

There was no explanation of why he chose that phrase as a form of sarcasm, if it was; certainly none that made any sense. [ 52 ] In light of M. taking his calling her gorgeous literally, the sexual connotation comes to the fore. In effect, he was saying he wanted to have beautiful M. for lunch, with a side of chocolate. It was flirtatious and sexually suggestive. I conclude he meant it to be taken as sexually suggestive, and then followed the sting of that flirtatious suggestion by replying what he was actually having. It seems plain that he was one of the ‘boys’ chasing her. Mr. S.

Wished he was 16 to Date M. [ 53 ] That conclusion is buttressed by his next text, where he said he wished he was 16 because he would be all over her. On its face that was an admission he desired M. physically, and impliedly, sexually. In chief, he testified he said he wished he was 16 because that was when he started to feel better about talking to girls and socializing. That did not explain why he said he would be all over M. In cross-examination, he said he meant to indicate that if he was 16 he would want to date M. He seemed to agree it was flirtatious.

He said “all over you” meant he would not want anyone else to have her and he would try to make her his girlfriend. He denied that meant having sexual relations. He agreed he meant that he wished he was younger so he could be with M. at that time. Teens kiss when they are boyfriend and girlfriend. That is sexual activity, or sexual relations. His bald denial did not make sense. M. did not respond to his comment. [ 54 ] There were also references in the text messages at the same time to the pandemic, and M. said she would see friends soon so was happy.

In context, her happiness was restricted to seeing her friends. However, Mr. S. asked if being happy was a response to him wishing he was 16 or the pandemic, along with a laughing emoji. He was obviously wanting to keep his wishes of being younger, and

therefore wanting to be M.’s boyfriend, a focus of the conversation. [ 55 ] M. replied “both”. Mr. S. agreed he understood with that response M. meant she wished he was 16. M. then texted “Or I wish I was older”. Mr. S. replied “Mmm now your making me think (with a thinking emoji) dirty thoughts” followed by an emoji. He then texted “Oh well”. He agreed that was all part of one conversation, and said his comment about dirty thoughts was not wishing he was 16, but that he was thinking of her as a young adult, since she said she wished she was older. A young adult might include being 18.

The fact remains he was thinking of M. in a sexual way, and that he wished he was able to follow through on his thoughts. There was no evidence on point, but it appears his saying “Oh well” was an acknowledgment that was not appropriate. [ 56 ] Mr. S. then confirmed she was in grade 9 and turned the conversation to whether she was going to see male or female friends later. It was put to him he asked about the genders as he wanted to know. He answered that he was wondering if she had any friends at all. However, the previous text message from M. established she did have friends. Mr.

S.’s answer did not respond to why he asked about gender. In that respect it was evasive. [ 57 ] M. said she was meeting girls and that they were going to try to have some drinks. Mr. S. then offered to get liquor for M. and included a winking emoji. He agreed that emoji did not mean he was joking, which he had asserted was its meaning in other texts. There would be no way to discern how they might have those different meanings, and he gave no explanation. It was suggested the emoji was flirtatious.

He did not deny that, answering that perhaps auto-correct had somehow put it in, though he did not recall if that was the case. If it was an error, he did not correct it. His answer was unresponsive and speculative. There was no need to speculate, other than to try to hide his true motive. [ 58 ] I find he meant to put it in and meant to be flirtatious, continuing in the same vein as he had earlier in that conversation, thinking dirty thoughts. His answers about its use in these text messages diminishes the credibility of his prior explanations of the meaning of a winking emoji. Mr. S. Offers to Buy M.

Liquor [ 59 ] Mr. S. then led the conversation to make a plan for him to buy liquor for M. the next day after he finished work. He ended his text with a kissing face emoji with a heart by the lips. He denied it implied romance, saying he was just being silly, comparing it to calling males at work ‘gorgeous’. He did not say he sent that emoji to work colleagues. He did not explain how that emoji was a joke. His answer defies belief. [ 60 ] In his testimony, Mr. S. denied he wanted to meet M. In chief, he said he regretted the offer to get liquor because she was under age and it was not right to give her alcohol.

In cross-examination he said that he talked himself into doing so as he had promised M. he would get liquor. In fact he made no promises and said so in chief; he made the initial offer to do so in the texts; M. did not immediately say yes to his offer; and he pushed the plan forward until she agreed. Nothing in the texts even remotely raises regrets. It was also open to Mr. S. to change his mind rather than push the plan forward. The text messages show he never changed his mind. [ 61 ] In his statement to the police, Mr.

S. stated that M. had needed someone to get her liquor and that he agreed and did not really care. He gave that explanation on February 14, 2021, the day after those text messages. His recollection would have been far better than at trial, yet he minimized who brought up getting alcohol. In chief, he was asked why he agreed to buy M. alcohol. He said that when he grew up no one would do it for him. He did not suggest it was wrong. In his statement, he said he had done the same thing previously for young cousins, that he really did not care and that buying M. liquor was not a big deal.

He knew the legal drinking age in BC was 19. [ 62 ] His trial evidence conflicts with his statement to police. His explanations at trial are also inconsistent with the texts. I do not believe his testimony. It was self-serving and the contradictions were unexplained. [ 63 ] That text message offer ended with a kissy face emoji with a heart by the lips. Mr. S. maintained at trial that when he sent that kiss emoji he was not being romantic, just silly. As with its previous use, I disbelieve his testimony in the context of the conversations, especially those that day where Mr.

S. was flirtatious and expressed sexual desire. [ 64 ] Mr. S. denied at trial that he had made a plan to meet M., suggesting that because there was no specific time there was no real plan. That too was not believable, in part because he said in a text message that he would text M. the next day to finalize their plan to meet. Mr. S. seemed to deny there was a plan so that it might look like he did not want to meet M., a point he raised in his testimony. [ 65 ] Mr. S. texted that M. could pay him back for the liquor another time.

He explained in cross-examination he said that because young people did not have a consistent cash flow. Yet the only time payment was raised in the text messages was the one text where he deferred payment by M. and her friends to the future. He clearly expressed a desire to meet with M. not just once to give her the liquor, but again later to get payment. That contradicts his trial explanation that he did not want to meet M., as do further text messages the next day where Mr. S. continued to offer to buy M. liquor. Eventually in cross-examination, he agreed he was definitely willing to buy M. alcohol.

There would be no point in doing so unless they were going to meet. I find he wanted to meet M., and was a willing participant in unlawfully getting her alcohol, more than one time. [ 66 ] M. said okay to the offer to be paid back later. That ended their conversation, at 4:27 pm. Mr. S. Sends M. an Unsolicited Photograph of his Penis [ 67 ] The next communication was from Mr. S. It was a close up picture of his flaccid penis hanging out of his underwear. That was followed by a text “Shit sorry (emoji) wrong person” at 7:48 that night. M. replied at 8:10 pm and said “You mean that wasn’t for me???” Mr.

S. replied two minutes later “Well kind of i just didn’t mean to send it i was chicken out”. M. replied saying she was confused on whether he meant to send it to her. Mr. S. replied “Ok I sent it to you I just didn’t know if I had it in me lol”. [ 68 ] The text messages show he asked M. multiple times if she liked it after confirming it was a photograph of himself. He referred to

it being embarrassing and M. replied that she had never talked to anyone that way before. Mr. S. then asked M. to send him a picture of herself, if she was comfortable doing so. M. replied that she had already sent a picture. Mr. S. then said he did not want to pressure her, but two minutes later texted “I like to see more of your body?” [ 69 ] In chief, Mr. S. explained that he had taken the penis photograph a few weeks before and sent it to his wife, who got mad at him for sending it at work and that she did not like it, which made him sad and depressed.

He said he sent it to M. because he wanted to feel good about himself. He said he was hoping for a compliment, but denied hoping it would lead to more sexualized conversation or actual sexual activity with M. [ 70 ] In cross-examination, he agreed he had time to think between the end of the conversation in the afternoon and sending the photograph of his penis in the evening. He agreed that M. was on his mind during that time gap. When asked if M. was on his mind when he sent the picture, he answered “yes I guess”.

He was asked if he sent the picture to M. so he would feel better about himself and he agreed, but initially said nothing about his wife’s negative comments and raised for the first time that workmates had belittled him. [ 71 ] In brief, he said he sent the picture to make himself feel better, and hoped that M. would say don’t worry, that his penis was an average size. He denied he was being flirtatious. When it was suggested he was concerned about M. liking his photograph, he said he was more concerned about his appearance, which was not a denial that he wanted M. to like his photograph.

He eventually admitted he was concerned about M. liking the photograph he sent – a picture of his penis. He said he just wanted M. to know he sent the photograph as a boost for his ego. He agreed he did not say that simple statement, testifying he thought it. [ 72 ] Mr. S. did not explain why he thought a girl who had just turned 15 and that he did not know would be able to comment on the size of his penis relative to other penises. That is especially so in light of the fact that she said she was shy as she had never talked that way before.

If she had not talked that way, it was likely she had not seen many penises, if any – certainly not enough to be able to make any valid comparison. His explanation is not believable. His denial he was being flirtatious is equally untrue, especially in light of the previous obviously flirtatious messages, and his apparent acceptance he knew they were. [ 73 ] He testified that when he asked M. for another photograph of herself, he gave several answers. He first said he was just joking when he asked for it.

When asked if in fact did not want a photograph of her, he said he was just trying to get her to respond about anything. Yet she had already responded. She had previously said “obvi”, short for of obviously, in response to his question of whether she liked the photograph. M. had sent four smiley faces when he said he liked it clean down there, referring to shaving his genital area. He agreed he also got M.’s response that she was shy and had never talked that way before. [ 74 ] He testified that the smiley face she sent when she said “Okay” was ambiguous.

M. was responding to his text saying that it was okay for M. to be shy. That text and emoji were not ambiguous. In any event, even if I accepted it was ambiguous to him, he did not try to clarify its meaning, something a caring platonic friend who did not want to press on with the flirtatious and sexually focussed conversation would likely do. Mr. S. did not do that. Immediately after M. said okay, he asked her to send him “a pic”. He testified he did so as he just wanted her to acknowledge he was an average person. That made no sense. Nor did saying he was joking and had no desire to get another photograph.

If that were so, he would not keep asking for one, which he did. [ 75 ] He then testified he asked for the photograph just to keep the conversation going. I am sure he wanted it to continue. The real question is why, which he never answered in his testimony. The context of that request and its follow-up, saying he wanted to see more of her body, provides the answer. He was not joking. His testimony was not only unbelievable, it was an attempt to hide his true and obvious motive. He first said he only wanted to put a face to M. He had that. He clearly wanted more. He did not want just a face. He asked for “a pic”.

He did not specify what kind, but in the context of sending a photograph of his genitals, the implication is he wanted the same back. He never explained why that “pic” was important, other than saying he wanted to keep the conversation going, and that he wanted to see a full body shot. [ 76 ] He testified that when he repeated his request for another photograph, he was joking around. Again that made no sense and I reject that as untrue. I also reject his testimony that he did not want to meet her, or that he did not want to have a sexual conversation with M.

His testimony was, in effect, that he wanted M. to reciprocate with sending photographs. [ 77 ] Mr. S.’s further offer to get liquor for her is more evidence contradicting his assertions at trial and in his statement to police, showing he had no qualms about offering to do illegal acts for and with a minor, and that he wanted to meet up with M. [ 78 ] The next day M. sent a text message saying she had gotten drunk and been grounded, and that she was going to delete the conversation with Mr. S. Mr.

S. replied “smart girl”, then offered to send her another picture another time, even though M. had never asked for one. [ 79 ] In cross-examination, when asked if it was important that their conversation be kept secret, he testified that he was just worried about buying liquor for her. He said offering to send another photograph was just him joking. When asked if he was concerned that M.’s parents would see the conversation, he said “The conversation in my mind wasn’t inappropriate”. He was then asked if he had any doubts and he replied that the only doubt he had in his mind was sending the nude photograph.

Why his evidence changed from just being concerned about buying M. liquor to having no concerns about their conversation, which included the photographs, to then saying the only concern he had was the photograph, was left unexplored. They are inconsistent answers on their face. [ 80 ] It was surprising he first said he was only concerned about buying her liquor. As noted, I have already rejected that assertion. Part of the conversation that had just been gone through is that he liked to shave “down there”, obviously referring to his genital area.

Why he did not think that was inappropriate conversation with a 15 year old was unexplained. And then he expressed that he only had some doubt about the propriety of sending the photograph of his penis. That is far from saying he knew it was entirely inappropriate. His evidence was a statement that in fact he thought it was probably alright. In some respects, that is consistent with his evidence that he was only concerned about buying her liquor, but that does not assist him. [ 81 ] In his statement to police, he admitted that sending the photograph was a “lapse of judgment”.

When asked why he would send a picture like that he said he had no idea and was “still racking my brain about it.” When asked if he wanted to say anything else, he

repeated that it was a lapse of judgment, that he was still racking his brain and referred to everything going on in his life. [ 82 ] In chief he explained that he was very scared when he was responding to the police officer’s questions, and that he did not know what was going on in his mind. He said he was not thinking clearly and just wanted everything to go away. He linked that to the fact that he was taken to the hospital by the police and stayed for about 4 days under the Mental Health Act . [ 83 ] Although that may well be true, that is not the same as saying he did not have an operating mind.

The statement’s admission into evidence is an admission he had an operating mind. His answers in the statement, when events were fresh in his mind, were at times understandably evasive. His statement that he could not recall why he sent that photograph is inconsistent with his evidence at trial. He did not testify that what he said in the statement was untrue. I find he knew he was in trouble and did not want to make any admission that might make his situation worse. Conclusion on Defence Evidence [ 84 ] I have rejected Mr.

S.’s testimony and explanations regarding his intent and motives regarding most of the text messages and communication. Although I accept that the conversation started innocently, I do not believe Mr. S.’s testimony it remained innocent. Conclusion on the Evidence I Accept [ 85 ] I accept the text messages at their face value. Their meaning is plain. The conversation is sometimes in a joking manner, but has serious content. The fact that Mr.

S. was truthful about where he worked and the vehicles he owned is consistent with his testimony that he was just making conversation, but it is also consistent with building trust, which he admitted he was trying to do. That is an aspect of grooming. Impliedly, Mr. S. argued that it would not make sense to make himself readily identifiable, as he had done, if he were planning on committing other offences, or any offence. Although it makes sense that a person would try to hide their identity when planning to or when committing a crime, many people do not.

Many crimes make no sense, with the offenders leaving their identity in no doubt. His self-identification was made when the conversation had not clearly turned to being flirtatious with sexual content. That argument is unpersuasive. [ 86 ] After recognizing that it was not appropriate to converse with a 14 year old, Mr. S. made contact, then said he was curious about what she looked like, and went on to ask about her body, not her face. He then described himself and sent a photograph to build trust. He asked for that to be reciprocated. It was. He focussed on her beauty.

He said boys would want to be her boyfriend. Teens kiss and have other sexual relations. He continued to build trust with M. He used terms of endearment that were apparently taken at face value by M. [ 87 ] He converted a joke into a suggestion she cared for him, with a heart as emphasis. He said he wanted to have her for lunch with a side of chocolate. Mr. S. then said he wished he was 16 and that he would be all over her. That was a clear statement he wanted to be close to M. That was a statement of romantic interest, physical interest and sexual interest.

He kept his stated wish that he was younger and be her boyfriend front and centre in their conversation. He confirmed his sexual interest when he said he was having dirty thoughts about her. The sexual connotations and flirting were obvious. Mr. S. wanted to meet her. Buying alcohol was an excuse to do so. Doing so without payment was a way to meet her more than once. He made a plan to buy M. liquor and give it to her. [ 88 ] He kept thinking about M. He then sent her a picture of his penis and talked about how he liked shaving his genital area. He asked if she liked it. She said she did.

He followed up asking M. to send a picture, and pressed her to do so. He repeated he wanted to see more of her body. [ 89 ] Mr. S.’s pattern was consistent. Building trust by divulging information about himself, then seeking reciprocity, which was usually given. Then repeat. There is no reason to think Mr. S. was unaware of that pattern. Building trust was his stated goal. It was obvious from the texts. [ 90 ] Mr. S. moved to texts about looks - not facial, but body. He sent a picture and requested one in return. It was reciprocated. He commented on her beauty. Then there were more sexualized texts.

Some of M.’s responses were not a rejection. For example, after saying he had dirty thoughts, M. texted “Oops” with emojis that included a smirk, then “And u live so farrrr”, implying that if they were closer, acting on dirty thoughts might be possible. Then more trust building and repeated offers to buy M. liquor. M. agreed. The same pattern. Then the penis picture. The context and evidence overall leads inexorably to the conclusion Mr. S. sent the penis picture hoping to get a similar picture in return. [ 91 ] In the text messages, M. said he already had a photograph. Mr.

S. replied saying he did not want to pressure her. Yet two minutes later he texted “I like to see more of your body?” That was pressure. That was no joke. That was not just to keep the conversation going. That was a true statement – he wanted to see more of M.’s body, in particular her naked body and genitalia. [ 92 ] I find that he spent considerable time and effort building trust before he sent an unsolicited naked picture of himself. Directly after, he asked for a photograph of her body, and then asked if she wanted him to get liquor.

I find he wanted a similar naked picture of M., for which he pressured her, and in the course of which he offered to do her illegal favours – buying liquor. [ 93 ] Had that illegal endeavour been completed, and if M. was really a 15 year old girl, he may have gone on to commit other offences, but at this point the text communications do not prove he was trying to facilitate any other of the enumerated offences. [ 94 ] I am satisfied beyond a reasonable doubt that Mr. S. sent text messages and sexually explicit material to facilitate possessing or accessing child pornography. I convict him on Counts 1 and 3.

He is acquitted of Counts 2 and 4. I will hear submissions on whether there should be a Conditional Stay as a result of the application of the principle set out in R. v. Kienapple [1] .

____________________ The Honourable J. Guild Provincial Court Judge [i] R. v. Alicandro , 2009 ONCA 133 [ii] R. v. Legare , 2009 SCC 56