R. v. Craig, 2013 BCSC 1562

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Craig, 2013 BCSC 1562 Date: 20130419 Docket: 149472-3 Registry: Victoria Regina v. Aaron Edward Douglas Craig Before: The Honourable Mr. Justice Bracken Oral Reasons for Judgment Counsel for the Crown: L. Baskerville Counsel for the Accused: C. Brennan Place and Date of Hearing: Victoria, B.C. April 3 and 4, 2013 Place and Date of Judgment: Victoria, B.C. April 19, 2013 [ 1 ] THE COURT: On October 12, 2012, Mr. Craig was convicted of three offences following a jury trial.

The first offence was sexual interference under s. 151 of the Criminal Code , the second was sexual assault under s. 271 of the Criminal Code , and the third was an offence commonly known as Internet luring under s. 172.1 of the Criminal Code . [ 2 ] As a result of the convictions, some factual issues must be determined before sentencing so that an appropriate factual foundation is available. The three main issues are: first, whether Mr. Craig was the individual who communicated with the complainant using the name "cuteguylovinlife"; second, did Mr.

Craig believe the victim complainant was 16 years of age or did he know that she was 13. Alternatively, was he convicted on the basis that he honestly believed the complainant was 16, but failed to take all reasonable steps to ascertain her true age; third, does the Kienapple principle apply in these circumstances and, if so, to which charge or charges. [ 3 ] I will deal with these questions in order. [ 4 ] The evidence was that there were two user or screen names with respect to the communications with the complainant. The communications were by means of a website known as Nexopia.

It was a website that allowed individuals, largely teenagers, to post a personal profile, to exchange email messages, and to communicate with public messages. [ 5 ] One of the individuals who communicated with the complainant admittedly was Mr. Craig. The other, using the name cuteguylovinlife, was not admitted to be Mr. Craig. [ 6 ] The Crown alleges that cuteguylovinlife was a name used by Mr. Craig and that he was the author of the messages communicated to the complainant from that sender. The Crown submits that issue is important because the messages were sent after Mr.

Craig knew the complainant was 13, and after she had told him she did not want any further contact with him. If Mr. Craig was in fact cuteguylovinlife, the Crown submits those communications constitute aggravating factors for the purpose of sentencing. [ 7 ] The evidence in this case is that the Internet Protocol address or IP address, as it is commonly known, used by cuteguylovinlife and Mr. Craig are identical. There is also evidence that the IP address is assigned to the single family residence where Mr. Craig resided at the time. The account is registered to Mr.

Craig's stepfather, who also resided in the residence, where I gather both still do live. [ 8 ] In one of the email exchanges, it was clear that the person using the name cuteguylovinlife was aware of the residential address where the IP address was assigned, and one of the messages from cuteguylovinlife was sent to the victim within a minute or so of a message sent by Mr. Craig to the complainant. [ 9 ] Finally, the Crown notes that the cuteguylovinlife suggested a meeting with the complainant at the same McDonald's restaurant in Central Saanich that was used by Mr.

Craig and the complainant to meet on prior occasions. He also seemed to be aware that her parents did not trust her. [ 10 ] Counsel for Mr. Craig argues that the Crown has not proven beyond a reasonable doubt that Mr. Craig sent the messages from cuteguylovinlife. He argues that if the Internet connection was used with a wireless router that was not password protected, it is possible that someone else within or without the residence could have used the connection or used the connection to gain access or hack into Mr.

Craig's Nexopia account or other personal information on the computer. [ 11 ] It was argued that, based upon expert evidence presented at the trial, the wireless signal could have been accessible beyond the

perimeter of the residence or in fact the property where the residence is situated, and thus accessible to someone other than Mr. Craig or a member of the household. [ 12 ] Counsel for Mr. Craig also points out that the Crown did not seek to lead evidence as to who was the registered user of the name or account for cuteguylovinlife at the Nexopia website. He argues that it could have been obtained by means of a warrant from Nexopia had the Crown chosen to do so. [ 13 ] The Crown alleges that if Mr.

Craig is cuteguylovinlife or used that name to communicate with the complainant after he knew she was 13 years old and wanted no further contact with him, that constitutes an aggravating factor for the purposes of sentencing. It therefore must be proven beyond a reasonable doubt: s. 724(3)(e). [ 14 ] On all of the evidence, I am satisfied beyond a reasonable doubt that Mr. Craig was the person who sent the messages under the screen name cuteguylovinlife. While it is possible that someone other than Mr.

Craig accessed the IP address and sent the messages, there is no evidence of another person and no suggestion that anyone else but Mr. Craig could or would have sent those messages. I find the submission that someone else may have been responsible to be speculative at best. [ 15 ] I note that both usernames used the same Internet Protocol or IP address. The sender of messages under the name cuteguylovinlife also displayed knowledge that would likely have not been available to anyone other than Mr.

Craig, and the timing of, at least one of the messages, was such that it was very unlikely that someone else would have been able to access and send a message under that name. [ 16 ] I am satisfied that the evidence is consistent with the conclusion that Mr. Craig was the sender of the messages from username cuteguylovinlife and it is inconsistent with any other conclusion. [ 17 ] I therefore find that the Crown has proven Mr. Craig was the sender of the messages under the name cuteguylovinlife and that it has been proven beyond a reasonable doubt. [ 18 ] The next issue is whether Mr.

Craig honestly believed the victim was 16 years of age or more at the time of the offences.

If he did, that does not constitute a defence, unless he took all reasonable steps to ascertain the age of the victim: see s. 150.1(4). [ 19 ] It was the Crown's position at trial that the jury could convict on the s. 151 and 172.1, that is Counts 1 and 3, if they found the accused knew the victim was under the age of 16 years or, even if he honestly believed she was 16 years of age or more, a conviction could be entered on the basis that he did not take all reasonable steps to ascertain her age. [ 20 ] The defence does not at this stage argue that Mr.

Craig has an available defence, but rather, if he honestly believed the complainant was 16 years of age or more, but simply failed to take all reasonable steps to ascertain her age, that conclusion might be considered as a mitigating factor at sentence: see R. v. Aimee , 2010 BCSC 1463 , paragraphs 27 to 30 . [ 21 ] While I am not convinced the offence is more or less serious from a sentencing standpoint, depending on the result of the inquiry, I accept that it was open to the jury to convict Mr.

Craig on a finding that he knew the victim was under 16 or on the basis that he reasonably believed she was 16 years old, but failed to take all reasonable steps to ascertain her age. [ 22 ] The Crown submits I should find that Mr. Craig knew she was under 16 years of age, and relies on the evidence at trial that the complainant herself testified that she told Mr. Craig she was 13, and there was no evidence to contradict her on that evidence. [ 23 ] The defence submission on this point is that there is other evidence, notwithstanding the fact that Mr.

Craig did not testify, upon which the jury could have concluded the victim was at least 16 years old. Counsel for Mr. Craig argues that the issue depends on the conclusion of the jury as to the victim's credibility. Obviously the jury accepted the evidence of the victim on several key points. However, Mr. Craig argues that the photos she had posted on her Nexopia profile were intended to create the impression that she was older than her real age.

More importantly, perhaps, her communications as to her lifestyle, drug and alcohol use, and claimed sexual experiences were well beyond what is expected of a 13-year-old child. [ 24 ] The essence of the defence submission is that, while the jury accepted the victim's evidence sufficiently to found the convictions on Counts 1 and 3, the court cannot be satisfied beyond a reasonable doubt of facts beyond what is necessary to support those verdicts. [ 25 ] Counsel for the defence also submits that the Nexopia profile of the victim was available at the time the offences were reported and that the profile was taken down when the victim closed her account.

There was evidence from the individual who administered the Nexopia website that once an account is closed, the profile of that account is expunged from the servers at Nexopia and are permanently removed and cannot be recovered. [ 26 ] In addition, there was evidence brought out in cross-examination of one of the victim's friends, a Ms.

V., that she thought that the victim had stated her age as 16 on her Nexopia profile. [ 27 ] Defence counsel also submits that there were areas of the victim's evidence where she admitted she had lied to her parents about her behaviour, and argued there were other unexplained discrepancies in her evidence. [ 28 ] Finally, counsel argued that the almost irresistible impression from the photos the victim agreed were placed on her Nexopia profile and the content of her email messages as to her previous sexual experience and lifestyle were clearly intended to impress others that she was older and more mature than she actually was. [ 29 ] The law is clear that the court must accept as proven all of the facts that are necessary to the jury's verdict: R. v.

Ferguson , 2008 SCC 6 .

[30] It is not necessary for the court to give Mr. Craig the benefit of the doubt where the jury's finding is unclear or equivocal: R. v.Roncaioli, 2011 ONCA 378 at paragraphs 58 and 59. [31] The correct approach is for the court to make its own independent determination of the facts in a way that is consistent with thejury's verdict: R. v. Roncaioli above; R. v. Brown, (SCC), [1991] 2 S.C.R. 518; and R. v. Tempelaar, (SCC), [1995] 1 S.C.R. 760. [32] As noted, I am not convinced my finding one way or the other on this issue will be a significant factor at the sentencinghearing.

The jury clearly accepted the victim was 13 years old. Nevertheless, in this case there is evidence that satisfies me that theappropriate finding of fact is that Mr. Craig believed the victim was 16 years of age, but failed to take all reasonable steps to ascertain heractual age.

The same finding is related to the wording in s. 172.1 in Count 3. [33] The Crown advanced both theories at trial and, in my view, it was open to the jury to base the conviction on Counts 1 and 3 onthe actual knowledge of the victim's age or on the basis that he believed that she was at least 16, and failed to take all reasonable steps toascertain her age. [34] The final issue is which of the charges should be stayed on the principle established in R. v. Kienapple, (SCC),[1975] 1 S.C.R. 729. Counsel for Mr.

Craig submits that the charge of Internet luring encompasses both of the other two counts in theindictment, and that the charge of sexual interference in Count 1 and sexual assault in Count 2 should be stayed. I do not accept that theprinciple in Kienapple goes that far. [35] In my opinion, the charge of Internet luring is distinct from the other two counts in the indictment, in that the gravamen of theoffence is the communication with a person under 16 years of age by means of a computer. The offence can be completed withoutphysical contact and without the parties ever meeting.

The other two offences cannot. [36] I find, therefore, that Count 3, the charge of Internet luring, does not encompass either of the other two counts in the indictmentin this case. [37] However, I do accept that the Kienapple principle applies to Counts 1 and 2, as each of those charges overlaps the other.

TheKienapple principle is captured in the following excerpt from the decision of Laskin J., as he then was, speaking for the majority, at p.11: If there is a verdict of guilty on the first count and the same or substantially the same elements make up the offence charged in a secondcount, the situation invites application of a rule against multiple convictions. [38] In this case, it appears to be common ground that one of the Counts 1 or 2 should be stayed upon application of the Kienappleprinciple, the question is which one. Both charges carry a maximum penalty of 10 years.

Count 1, sexual interference with a personunder the age of 16 years, also had, at the time of these offences in 2009, a minimum sentence of 45 days. Count 2 does not have aminimum sentence. [39] The Crown is entitled to have a conviction on the most serious offence: R. v. Loyer, (SCC), [1978] 2 S.C.R.631. [40] The case law is somewhat equivocal. In R. v. Lonegren, 2008 BCSC 1817, s. 151, sexual interference was considered moreserious because of the minimum sentence: see also R. v. M.(R.M.), (ON CA), [1998] O.J. No. 255, (O.N.C.A.), R. v.M.(S.J.), 2009 ONCA 244 , [2009] O.J. No. 1130 (O.N.C.A.), and R. v.

Young, [2010] N.J. No. 373 (N.L.S.C.), for otherdecisions with the same result. [41] However, there are other cases where the courts have directed a stay of proceedings on the sexual interference charge: see forexample R. v. Alyea, (BC CA), [1997] B.C.J. No. 2702 (B.C.C.A.), R. v. M.(R.C.), [2007] N.J. No. 58 (N.L.S.C).

Inthe latter case, the court was satisfied that the charge of sexual assault was, in all of the circumstances, the most serious offence. [42] It appears from the case law that even though there is a minimum sentence prescribed on the charge of sexual interference, thatfact, while an important consideration, is not determinative. However, I also note that in R. v.

Alyea, where the sexual interferencecharge was stayed, the court was not faced with a minimum sentence at that time for the offence of sexual interference. [43] The first minimum penalty for sexual interference under s. 151 was introduced in 2005. [44] The minimum penalty was increased in 2012, three years after these offences took place. [45] It is clear that the offence is considered serious by Parliament. Even so, it seems to me that it is not always appropriate to limitanalysis of the seriousness of the offence to the penalty alone.

While that factor may often be determinative, it is open to the court or itshould be open to the court to consider the nature and circumstances of each of the offences, including the prescribed penalties, indeciding which is the most serious offence. [46] Considering all of the circumstances of this case, including the prescribed penalties, I find myself in agreement with Crowncounsel that the sexual interference charge is the most serious offence in these circumstances. [47] The intent of the provision is clearly to protect young people, and Parliament has done so in part by creating a minimumsentence. [48] The facts of this case are such that I am satisfied that the conviction should be entered on Count 1, sexual interference, with aperson under the age of 16 years.

I therefore direct a conditional stay of proceedings on Count 2, the charge of sexual assault unders. 271 of the Criminal Code.

[ 49 ] There is one final issue that has been raised by Mr. Craig. Counsel for Mr. Craig submits that the victim here was "a willing participant" in the sexual activity. Put another way, the victim consented. The defence argues that that fact is relevant to the seriousness of Mr. Craig's conduct and to his degree of responsibility, and should operate in mitigation of sentence. I disagree. [ 50 ] The victim, as a person under 16, is not in law capable of consenting to such activity. The very existence of the law recognizes the vulnerability of young persons in this area of their life.

I do not accept consent can be a mitigating factor or in any other way can be seen to lessen the seriousness of the offence. At best, the absence of violence or lack of consent is a neutral factor, although the presence of such factors could and would likely constitute an aggravating factor. [ 51 ] In

summary then, I find that Mr. Craig was the author of the cuteguylovinlife messages relevant to this case. I find that the offence of sexual interference and Internet luring were committed on the basis that Mr. Craig believed the victim was 16, but failed to take all reasonable steps to ascertain her age, and I direct a conditional stay of proceedings on Count 2, the sexual assault charge. [ 52 ] Finally, I reject the submission that the willingness of the victim to participate has any relevance to the seriousness of the offence or to Mr. Craig's degree of responsibility for the offence. “J.K. Bracken, J.” The Honourable Mr. Justice Bracken