R. v. Sinclair, 2021 MBPC 41

Citation: R. v. Sinclair , 2021 MBPC 41 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) D. Simard, ) for the Crown ) and ) ) ) ) Aaron Sinclair ) L. Kellie-McMillan, Accused ) for the Accused ) ) Reasons for Decision delivered ) on the 13th day of October, 2021 ) A.D., at the City of Winnipeg, ) in the Province of Manitoba. Tracey Lord, A.C.P.J. [ 1 ] Aaron Sinclair is charged pursuant to s. 172.1(1) (

a) of the Criminal Code of Canada that he communicated with a person under the age of 18 (P.K.) by means of telecommunication for the purpose of facilitating the commission of an offence under s. 153 (1), (sexual exploitation), between January 3, 2020, and June 4, 2020. [ 2 ] Section 153(1) provides that, Every person commits an offence who is in a position of trust or authority towards a young person, who is a person with whom the young person is in a relationship of dependency or who is in a relationship with a young person that is exploitive of the young person, and who (

a) For a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of the young person; or (

b) For a sexual purpose invites, counsels or incites a young person to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the young person. [ 3 ] For the purposes of s. 153 “young person” is defined in subs. (2) as meaning a person 16 years of age or more but under the

age of 18 years. Overview [ 4 ] The named complainant P.K. whose date of birth is […], 2003 was not called to give evidence at trial, however those familiar with her and her circumstances were.

While much of the evidence in this trial is not in dispute, the inferences to be drawn from the evidence are. [ 5 ] Between January 2020 and May 2020, Lauren Wilton, a youth mentor employed at Little Sisters Group Home (Little Sisters) where P.K. was placed by Child and Family Services (CFS) often supervised P.K. and was involved in her care. [ 6 ] Little Sisters is a level 5 placement run by Ma Mawi Wi Chi Itata Centre (Ma Mawi), predominantly for Indigenous girls, who have experienced trauma, have co-occurring substance abuse and mental health issues and who are at risk of being sexually exploited in the community. [ 7 ] In her position at Little Sisters Ms.

Wilton taught the residents life skills, and provided them with crisis counselling and education regarding substance abuse and exploitation. She worked extensively with P.K. and developed a close relationship with her. Despite this, P.K often went missing from the placement. [ 8 ] P.K. was also a client of StreetReach which is an organization falling under the Manitoba Department of Families. In conjunction with other government and community organizations, StreetReach works with sexually exploited and missing youth. Young people are referred to the program by their legal guardian.

Little Sisters and StreetReach maintain close contact as they have many clients in common. [ 9 ] Each morning StreetReach staff receive a list of missing youth from the Winnipeg Police Service (WPS). If a youth in the StreetReach program is on the list, staff will search for them at locations they are known to frequent. [ 10 ] Tajana Momic-Djuric, an acting supervisor with StreetReach testified P.K. was referred to their program in July 2018 and came onto her case load in January 2020 when P.K. was moved to Winnipeg. She and P.K. would communicate via Facebook Messenger and have visits at Little Sisters. Ms.

Momic-Djuric testified that their relationship was strained because she was the one in charge of finding P.K. when she went missing. [ 11 ] Upon entry into the StreetReach program clients are assessed using a tool designed to evaluate whether they are at risk to be sexually exploited. Ms. Momic-Djuric testified that when P.K. first entered the StreetReach program she was assessed by someone else using this tool and found to be at risk of sexual exploitation. Ms.

Momic-Djuric indicated based on her own review of P.K.’s social history and the observations she made of her, she agreed with this assessment. [ 12 ] Christopher Molloy is an outreach worker employed with StreetReach. He was also familiar with P.K. both from her time in their program and also from a prior placement through Marymound. He had many interactions with her over several years. [ 13 ] Cst. Ashleigh Park is a member of the WPS Counter Exploitation Unit.

This unit deals with sexually exploited and missing persons and works collaboratively with StreetReach and Little Sisters to identify and locate missing youth. [ 14 ] Cst. Park was familiar with P.K. as she had been placed on the unit’s High Risk Victim (HRV) list in December 2019. She tried to maintain contact with P.K. through social media and actively looked for her when she was missing. Cst.

Park testified between January and June 2020, P.K. was missing approximately 15 times. [ 15 ] None of these individuals have current contact with P.K. as she is no longer in the care of Child and Family Services, having turned 18. [ 16 ] These individuals also came to know Aaron Sinclair as a result of his ongoing relationship with P.K. Based on information known to them, all believed the relationship to be a romantic or intimate one. During the time frame at issue, Mr. Sinclair was 39 years old and P.K. was 16 and 17 years old. During at least part of this time frame Mr.

Sinclair was bound by an order that he have no contact with P.K. [ 17 ] Between January and June 2020, Mr. Sinclair had two residences, C[…] Street and P[…] Avenue. When P.K. was missing from her placement she was often located in the company of Mr. Sinclair at his residence. [ 18 ] Cst. Park testified she was also aware from police records that during this time frame Mr. Sinclair’s phone number was [phone number 1]. Evidence of Christopher Molloy [ 19 ] Mr. Molloy testified he had approximately half a dozen encounters during the relevant time frame with Mr.

Sinclair at his residence when he was searching for P.K. After one such encounter on February 3, 2020 Mr. Molloy also had a Facebook Messenger exchange with Mr. Sinclair. Exhibit 3 contains a report about their in person encounter and the Facebook conversation. [ 20 ] When at the residence Mr. Sinclair was advised P.K. was a minor as well as a youth in care. In the Facebook exchange that followed, Mr. Sinclair asked in the future that Mr. Molloy call before coming to pick up P.K. Mr. Molloy advised it would be better if Mr.

Sinclair called StreetReach when P.K. was there because then they could just wait outside for her rather than coming into the residence. [ 21 ] Mr. Sinclair responded that the suggestion did not work for either him or P.K. and further advised he does not discourage P.K. from coming to his residence because he feels if she is smoking weed there, she is safer than if she is elsewhere getting into trouble and

smoking meth. [ 22 ] In this conversation, Mr. Molloy clearly advised Mr. Sinclair P.K. was a child in care and if she was not at her placement they would continue to come looking for her. Mr. Sinclair ended the conversation by saying if they did not call ahead the door would not be answered in the future. Mr. Molloy wrote a report about this conversation which was forwarded to the WPS. [ 23 ] Following this exchange Mr. Molloy testified Mr.

Sinclair sometimes appeared annoyed when they would come to his residence looking for P.K., and further that on a couple of occasions P.K. did not come out of the residence willingly. Evidence of Lauren Wilton [ 24 ] Ms. Wilton testified that as she became aware of the relationship between Aaron Sinclair and P.K. she tried to develop the appearance of a friendly relationship with Mr. Sinclair so that P.K. would feel comfortable telling her when she was with him. [ 25 ] As part of this effort, Ms. Wilton engaged Mr. Sinclair in conversations, both in person and on the phone. Ms.

Wilton testified she picked P.K. up at C[…] Avenue, Mr. Sinclair’s residence dozens of times. On two of these occasions she had in person conversations with him. [ 26 ] Ms. Wilton testified she sometimes called Mr. Sinclair on his cell phone and on occasion he would call the group home to advise them that P.K. was safe and that they could pick her up at his residence. On one occasion he told Ms. Wilton he was concerned about P.K.’s suicidal ideation. [ 27 ] Ms. Wilton testified in one of their phone conversations, Mr. Sinclair told her he had received some training at Ma MaWi.

On another occasion when he called the group home, the Ma Mawi phone number appeared on the call display. Ms. Wilton said that she felt this was an attempt by Mr. Sinclair to be manipulative about his involvement with P.K. [ 28 ] Ms. Wilton noted P.K. began coming home with expensive items she could not afford. These items included a purse, an iPad and a computer. Although she had no direct knowledge of how P.K. came to have these items, based on the information she did have, she believed they came from Mr. Sinclair. She conceded, however, it was also possible P.K. had stolen the items. [ 29 ] Ms.

Wilton testified that P.K. often came home under the influence of alcohol or other substances or was in this condition when she was picked up from Mr. Sinclair’s residence. She said that to her knowledge P.K.’s substances of choice were alcohol and marijuana but she was also aware P.K had used methamphetamine at least once. [ 30 ] Ms. Wilton said her relationship with P.K. began to deteriorate once a no contact order was put in place prohibiting Mr. Sinclair from having contact with P.K., and she became aware Ms. Wilton was calling the police to report breaches of the order. [ 31 ] Ms.

Wilton testified on April 12, 2020, P.K. had been up for several days and had been absent from the group home for a period of time early that morning. Later that evening when P.K. finally fell asleep on the couch, Ms. Wilton noticed her cell phone was charging in the hallway and that she while slept, P.K. had missed several calls and texts from someone identified on the phone screen as “unicorn panda”. [ 32 ] While she slept Ms. Wilton used P.K.’s thumb print to unlock the phone in order to view the texts. She found a number of the texts to be concerning and as a result took screen shots of them.

All the text messages were recent, having been received within the preceding 48 hours. She also took a screen shot of the phone’s screen when “unicorn panda” called again and followed that up with a screen shot of the contact page for “unicorn panda”. The screen shots of the texts and the caller information were turned over to the WPS and are contained in Exhibit 2. [ 33 ] Page 25 of Exhibit 2 is the screen shot taken of the call from “unicorn panda” that came in while Ms. Wilton was examining the phone.

Page 27 is a screen shot of the contact information for “unicorn panda” showing the phone number as [phone number 1]. From her prior contact with him Ms. Wilton knew this to be Mr. Sinclair’s phone number. [ 34 ] Before further referencing the content of Exhibit 2, a number of clarifications about the exhibit and its content are required. The screen shots of the text messages contained in Exhibit 2 are presented in the order the screen shots were taken, not in the order the texts were sent and received. As a result, many of the conversations are presented out of order and were pieced together by Ms.

Wilton when she testified. In addition, a number of the screen shots are presented twice. [ 35 ] For clarity, Ms. Wilton advised the grey messages on the left of the screen are from “unicorn panda” and the green messages on the right of the screen are from P.K. Finally, the time shown at the top of the screen in each image is the time the screen shot was taken, not the time of the text itself. [ 36 ] There are three series of text messages that are particularly relevant to these proceedings. [ 37 ] Pages 24, 17, 9, 13, and 1 of exhibit 2 (in that order) are screen shots of text messages between P.K. and Mr.

Sinclair from the early morning of April 12, 2020. The conversation took place between 3:13 a.m. and 6:28 a.m. Ms. Wilton testified that when read together the texts explain P.K.’s early morning absence from the group home and confirmed a meeting took place with Mr. Sinclair. [ 38 ] The exchange began with Mr. Sinclair telling P.K. he had left the bottom door unlocked and referring to her as “snuggle tits”. He asked her to confirm if she was coming or not. (Page 24.) [ 39 ] At page 17 P.K. confirmed she was coming. Mr. Sinclair commented that he was afraid to get arrested.

P.K. asked him to text when he was close to McGregor. At page 9 Mr. Sinclair said he would be there in 10, that he loved her and apologized for making P.K. wait. At page 13 he confirmed he was crossing Soldier and to meet in the back lane on the other side of McGregor and finally at page 1 Mr. Sinclair asks P.K. if she has made it to her room, and they discussed their visit as having been too short.

[ 40 ] Pages 18, 19 and 7 appear to be a sequence of texts from Mr. Sinclair on April 12, 2020 in which he told P.K. he had a gram of crystal meth and she responded by reminding him she was trying to quit using. [ 41 ] At page 18 Mr. Sinclair asked P.K. if she had told her staff or police she did not want there to be a no contact order between them and told her that he just found a gram of jib. P.K. responded by saying “fuck your jib” and told him she was trying to quit. [ 42 ] Further text messages of note occurred later in the day on April 12, 2020.

Pages 4, 5, 6, 11, 12, and 14 (in that order) appear to be a sequence of texts that end at 8:12 p.m. on April 12, 2020. In the exchange Mr. Sinclair and P.K. have a conversation in which Mr. Sinclair wanted P.K. to come over and she wanted to stay home. [ 43 ] At page 4 P.K. told Mr. Sinclair that her phone was going to die and she was possibly going to pass out. At page 5 Mr. Sinclair mentioned he was frustrated and told P.K. the downstairs door was open and that he hoped she would come by. P.K. responded that she was making tea. At page 6 Mr. Sinclair told P.K. to sleep but then in Ms.

Wilton’s view took his approval back by saying “or not” in a continuing effort to encourage her to come over. [ 44 ] Pages 11, 12 and 14 are a series of continuing texts from Mr. Sinclair that went unanswered by P.K. because she was asleep on the couch. Ms. Wilton testified she felt the texts in this series became more aggressive by suggesting P.K. owed Mr. Sinclair an explanation as to why she was not coming over. [ 45 ] Finally at page 14 he asked P.K. to bring weed when she came and to make sure she lets him know if she was not coming.

This page concludes with the words “get your skinny ass here before I finish this shower cousin fucker lol”. [ 46 ] P.K. woke up while Ms. Wilton was examining her phone and became visibly upset, repeatedly slamming doors and left the group home shortly after. Ms. Wilton and another staff member followed her and observed her go to C[…] Street, Mr. Sinclair’s residence. The police were called and P.K. came out of the residence when they arrived. Evidence of Tajana Momic-Djuric [ 47 ] On May 21, 2020, P.K. had been missing from the group home since April 30, 2020. StreetReach staff had received information Mr.

Sinclair was living at P[…] Avenue so Mr. Molloy and other staff went there to look for her. P[…] Avenue is a multiple suite residence similar to a rooming house. [ 48 ] Ms. Momic-Djuric was also involved in this incident. She was called to assist her colleagues in entering the address. By the time she arrived they had managed to gain entry and Mr. Molloy was on the second level of the residence speaking with Mr. Sinclair. [ 49 ] When Mr. Molloy went to Mr. Sinclair’s room on the second floor Mr. Sinclair answered the door but then came outside and would not let staff see inside the room.

He told them P.K. was not there and wanted to take the conversation downstairs. Mr. Molloy told him they would not leave until they were allowed to look in his room. [ 50 ] Mr. Molloy testified at this juncture Mr. Sinclair asked on a hypothetical basis what would happen if P.K. was there. Mr. Molloy advised him she would be taken back to her placement. When Mr. Sinclair further asked what would happen regarding the no contact order in force at the time, he and another male who had joined the conversation tried to persuade Mr. Molloy to say Mr. Sinclair and P.K. had not been together. Mr.

Sinclair was advised if he did not let StreetReach staff into his room the police would be called. [ 51 ] Mr. Sinclair returned to his room, after which Mr. Molloy heard him speaking with a female. Mr. Sinclair then went downstairs and left the door to his room open at which point Mr. Molloy was able to see P.K. inside. [ 52 ] Mr.

Molloy described the room as being approximately 8 x 10 feet in size, containing a bed which took up most of the room with clothing and other belongings strewn about. [ 53 ] P.K. came out of the room but when she left the residence itself, she tried to walk away from StreetReach staff rather than leaving with them. Mr. Molloy testified this was likely because P.K. was aware there was an outstanding warrant for her arrest. [ 54 ] Mr. Sinclair assisted them by calming P.K. down and ultimately convinced her to go with them. In Mr. Molloy’s estimation this had a lot to do with her eventually complying. [ 55 ] Mr.

Sinclair did not testify on his own behalf or call other evidence. Crown Argument [ 56 ] The Crown submits they have proven all essential elements of the offence under s. 172.1(1) beyond reasonable doubt and in order to make this finding invites the Court to draw a number of inferences from the evidence of the Crown witnesses and the exhibits. [ 57 ] There are three elements to the offence under

section 172.1(1) that must be proven by the Crown, and each must be proved beyond reasonable doubt. [ 58 ] The first is that the accused intentionally communicated by means of telecommunication. Telecommunication includes communication via the Internet using a computer, cell phone or tablet including by text message. ( R. v Leskosky, 2020 ABQB 502 para.11.) [ 59 ] On April 12, 2020, the text messages being sent to P.K.’s phone came from “unicorn panda” using the number [phone number 1]. The Crown argues I should be satisfied beyond reasonable doubt the texts were sent by Mr.

Sinclair, and points to several pieces of evidence to support this. [ 60 ] Firstly, in one of the text messages itself, P.K. refers to the sender by the name Aaron. (Exhibit 2 page 6.)

[ 61 ] Secondly, in the Facebook communications found in Exhibit 3 purporting to be between Mr. Molloy and Aaron Sinclair, Mr. Sinclair asked in the future that StreetReach staff call him at [phone number 1] before coming to his residence. [ 62 ] According to Mr. Molloy’s report this exchange took place the same day Mr. Molloy had been present at Mr. Sinclair’s residence to pick up P.K.

Based on the name Aaron Sinclair appearing at the top of each screen shot of the Facebook conversation, and the content of the conversation clearly being about StreetReach staff picking a female up at a residence, I am satisfied the person communicating with Mr. Molloy was Mr. Sinclair. I am therefore also satisfied the contact number provided to Mr. Molloy in the conversation, [phone number 1] was a number used by Mr.

Sinclair in February 2020. [ 63 ] Finally, the Crown points to Exhibit 1, a copy of a warrant alleging the offences before the Court, and authorizing a search of a phone purporting to be that of Mr. Sinclair with the number [phone number 1]. From this exhibit, I could conclude when the warrant issued there were reasonable grounds to believe the phone described was that of Mr. Sinclair. [ 64 ] Although not mentioned by the Crown in her submission, I also note Cst. Park testified according to WPS records, Mr.

Sinclair’s phone number was [phone number 1]. [ 65 ] Based on all of the above taken together, I am satisfied beyond reasonable doubt that it was Mr. Sinclair who sent the text messages to P.K. on April 12, 2020, and that he did so by means of telephone number [phone number 1]. [ 66 ] The second element to be proven is that Mr. Sinclair knew or believed the person he was communicating with was under 18 years of age. [ 67 ] I am satisfied beyond reasonable doubt based on the evidence given by Ms.

Momic-Djuric, P.K.’s StreetReach worker that her date of birth is […], 2003, making P.K. 16 years old on […], 2020. [ 68 ] As for Mr. Sinclair’s knowledge of P.K.’s age, the Crown argues from the numerous contacts he had with StreetReach staff, group home workers as well as the police regarding P.K., he was well aware of her age. [ 69 ] Specifically, on February 3, 2020 Mr. Molloy along with WPS attended to C[…] Street, the residence of Mr. Sinclair in search of P.K. After locating her there Mr. Sinclair was advised P.K. was a minor as well as a youth in care and that she was not supposed to be at his residence.

This information was reiterated by Mr. Molloy in the later Facebook communication when he again informed Mr. Sinclair that P.K. was a child in care. (See Exhibit 3.) [ 70 ] I am satisfied beyond reasonable doubt particularly by the evidence of Mr. Molloy that Mr. Sinclair knew P.K. was under the age of 18 at the time he communicated with her. [ 71 ] The final and highly contested element the Crown must prove is that the communication was for the specific purpose of facilitating a specified secondary offence, in this case sexual exploitation.

On this point the accused’s intention must be determined subjectively and with reference to the time of the communication. [ 72 ] The Crown submits pursuant to s. 153(1) the relationship between Mr. Sinclair and P.K. while not being one of trust or authority or one of dependency, was a relationship that was exploitive in nature and points the court to s.153(1.2)(a)-(

d) which set out a non-exhaustive list of factors to consider in examining the nature and circumstances of the relationship. (

a) the age of the young person – P.K. was 16 and 17 during the time frame of the charge before the Court but specifically at the time of the text messages she was 16 years old, almost 17. This can be contrasted with a situation where a young person is nearly 18 years old. (

b) the age difference between the accused and P.K. – Mr. Sinclair was 23 years older than P.K. at the time of the text communications on May 12, 2020. This can be contrasted with communications between someone who is a young adult and very close in age to a young person. (

c) the evolution of the relationship - The Crown submits there is no evidence on this point and as such it should be treated as a neutral factor. I would note, however, there is evidence this was not a new relationship at the time the text messages were sent in April 2020 but one that had been in existence at least as far back as February 3, 2020, when P.K. was retrieved from Mr. Sinclair’s residence by the staff of StreetReach. (

d) the degree of control or influence over the young person - The Crown asks the Court to examine a number of pieces of evidence and infer control or influence by Mr. Sinclair over P.K. [ 73 ] She points to the fact that he called her group home to speak with staff about her and express concern regarding her mental health. [ 74 ] The Crown also relies on the Facebook exchange between Mr. Sinclair and Mr. Molloy in which he spoke for P.K. in advising Mr.

Molloy that not only did it not work for him if StreetReach staff came to pick P.K. up without calling first, but that it also “did not work for her”. [ 75 ] In their text communications (Exhibit 2, page 26) Mr. Sinclair asked P.K. if she had told staff or the police that she did not want a no contact order between them. The Crown submits this was an attempt by Mr. Sinclair to exert control over P.K. and influence her behavior. [ 76 ] The Crown also points to both the manipulative and also aggressive and demanding tone of some of the texts messages. As an example, Exhibit 2, pages 11 and 12 in which Mr.

Sinclair indicated he was entitled to know why P.K. was making certain decisions. [ 77 ] Finally on May 12, 2020, when P.K. did not want to go with StreetReach staff, after being found in his residence, Mr. Sinclair

encouraged her to go with them and she did. The Crown argues this shows P.K. listened to Mr. Sinclair and followed his instruction. [ 78 ] In addition to the factors set out in the Criminal Code , the Crown submits there is also other evidence from which the Court can infer this was an exploitive relationship. In particular, evidence about the use of substances and references in the text messages the Crown argues are sexual in nature. [ 79 ] The Crown argues the Court can look to the evidence of Ms. Wilton that P.K. was often under the influence of alcohol or other substances when she was located at Mr.

Sinclair’s residence as evidence that she was often in a state of lowered inhibition when in his company. [ 80 ] There are references in the Facebook exchange with Mr. Molloy on February 3, 2020, (Exhibit 3) from which it can clearly be found Mr. Sinclair did not discourage P.K. from coming to his residence and using marijuana while there. In the exchange Mr. Sinclair argued it was safer for P.K. to be doing this than to be out on the street “smoking meth and 26 year old shit”. [ 81 ] Another possible inference to draw from allowing drug use at his residence is that this was a method used by Mr.

Sinclair to entice or encourage P.K. to go there rather than elsewhere. [ 82 ] Other specific references to drug usage within the relationship are found at Exhibit 2 page 14 “bring weed” and page 18 “Found jib” referring to methamphetamine. The Crown argues these references suggest they used drugs together. [ 83 ] The Crown submits the presence of drugs within the context of their relationship is a factor to consider as it was arguably used by Mr.

Sinclair to have further contact with P.K. in circumstances that increased her vulnerability to exploitation. [ 84 ] The Crown argues that a sexual relationship can be inferred from the frequency with which P.K. was with Mr. Sinclair at his residence, which was described by Mr. Molloy as nothing more than a bedroom. [ 85 ] There are many references within the texts from which the Crown argues it can be inferred Mr. Sinclair and P.K. were in an intimate sexual relationship. Beginning with the plentiful use of heart and kiss emojis. [ 86 ] Other examples from Exhibit 2 include at page 9 Mr.

Sinclair told P.K. he loved her and called her sweetheart. [ 87 ] At page 23 when telling P.K. he had left the bottom door unlocked Mr. Sinclair referred to her as “snuggle tits”. [ 88 ] At page 28 in response to P.K. saying she was not coming over, Mr.

Sinclair replied, “I’m going to go fuck my hand”. [ 89 ] At page 11 “good night if you go to sleep, fuck yeah if you show up”. [ 90 ] At page 14 “get your skinny ass here before I finish this shower cousin fucker”. [ 91 ] From these references the Crown argues the Court can infer the relationship was a sexual one, a further factor to consider in concluding the relationship was exploitive. [ 92 ] Finally, the Crown argues Mr. Sinclair was well aware of the many factors making P.K. vulnerable and easily exploited by him. [ 93 ] There is evidence he knew she was a child in the care of an agency.

He called her group home to voice concerns about her mental health. He was aware of her use of marijuana and methamphetamine and encouraged the use by providing substances and a private place to consume them. [ 94 ] The Crown does not have to prove sexual exploitation was occurring, only that the communication by Mr. Sinclair was intended to facilitate sexual exploitation to occur. The Crown argues I should conclude this was an exploitive relationship and that Mr. Sinclair was communicating with P.K. with the intention of facilitating sexual exploitation.

Defence Argument [ 95 ] The defence concedes the facts in this case are largely uncontested, but argues the Court should draw different inferences from the facts than those suggested by the Crown. Further, that a proper application of the law to the facts does not support the charge before the Court as there is insufficient evidence to prove either the actus reus or the mens rea of the offence beyond a reasonable doubt. [ 96 ] Counsel for Mr.

Sinclair argues the relationship between his client and P.K. was an established one prior to the dates in the Information, and that it was a consensual one allowed by law by virtue of P.K.’s age. He further challenges that P.K. was a vulnerable young person and questions the basis for this conclusion by those who cared for her. [ 97 ] He argues the Court should not be satisfied that what Mr. Sinclair was doing was grooming behavior as was suggested, as it is equally consistent with behavior designed to assist P.K. [ 98 ] Counsel for Mr.

Sinclair also correctly points out the messages before the Court are not complete and were curated by Ms. Wilton for the purpose of characterizing the relationship as exploitive. He reminds the Court that other messages not included might have shown the relationship to be otherwise. [ 99 ] He questions the motivation of Ms. Wilton and argues her evidence is not credible, as her dislike for Mr. Sinclair coloured the assumptions she made about him and his intentions toward P.K. As an example, he cited her assumption that the expensive items P.K. brought home had come from Mr.

Sinclair when in fact she acknowledged in retrospect P.K. could also have stolen them. [ 100 ] Counsel for Mr. Sinclair submits the Court ought to draw a distinction between the usual circumstances of offending under s.

172.1(1) and the circumstances of Mr. Sinclair and P.K., in that this was not a case of a person using the anonymity of the internet to lure a young person into illegal sexual activity. [ 101 ] The defence argues that while there is no evidence of sexual activity between Mr. Sinclair and P.K., in this case sexual activity between them would be presumptively legal because P.K. was 16 or older and legally able to consent.

This being the case, it would be illogical if they could not communicate about sexual activity as well. [ 102 ] He further argues the Court should not be satisfied beyond reasonable doubt this was a sexually exploitive relationship as there is no evidence of P.K.’s vulnerability such that the Court should conclude she was unable to consent to sexual activity. Alternatively, there is no evidence that Mr. Sinclair knew of her vulnerability such that he had the required mens rea to exploit her; that being the specific intent for luring and sexual exploitation. [ 103 ] More specifically, he argues Mr.

Sinclair was not aware of vulnerabilities that may have affected P.K.’s ability to consent to sexual activity. While it is acknowledged the Court can infer he was aware P.K. was in the care of CFS and therefore likely under the age of 18, he argues Mr. Sinclair’s behavior within the relationship was supportive, rather than exploitive. [ 104 ] As examples of this, he points to the content of the text messages in which Mr.

Sinclair supported P.K.’s intention to stop using drugs and regularly contacted workers and expressed a desire to keep P.K. off the streets and safe. [ 105 ] Further, counsel submits there is no evidence Mr. Sinclair intended to exert control over P.K. or influence her decision making, and nothing to suggest that her decision making was as a result of his actions and not voluntary. [ 106 ] Finally, counsel for Mr. Sinclair argues intent of a sexual nature cannot be inferred from the texts and asks the Court to conclude the facts of this case fall outside the parameters of

section 172.1(1) and the criminal behavior it intends to capture, as P.K. was legally able to consent to sexual activity with Mr. Sinclair. This being the case, it is illogical for it to be a criminal offence for them to communicate about it. The Law [ 107 ] The leading cases regarding the

interpretation of s. 172.1(1) are R .v. Legare , 2009 SCC 56 and R. v. Morrison 2019 SCC 15 . [ 108 ]

Section 172.1(1) creates a preparatory crime that captures otherwise legal conduct meant to culminate in the commission of a completed crime. It criminalizes conduct that precedes the commission of the sexual offences to which it refers, and even an attempt to commit them.

Nor, indeed, must the offender meet or intend to meet the victim with a view to committing any of the specified secondary offences. ( Legare , para. 25 .) [ 109 ] The offence created criminalizes communication for the purpose of facilitating one of the enumerated secondary sexual offences. [ 110 ] At para. 28 of Legare , the court defined facilitating as including 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. [ 111 ] In para. 31 of the same case, the court confirmed the content of the conversation is not determinative; what matters is whether the evidence as a whole establishes beyond a reasonable doubt that the accused communicated with an underage victim for the purpose of facilitating the commission of a specified secondary offence in respect of that victim. [ 112 ] The intention of the accused must be determined subjectively.

The accused must be shown to have engaged in the prohibited communication with the specific intent of facilitating the commission of one of the designated offences. [ 113 ] Inferences may be drawn from the natural and probable consequences of the accused’s acts to make a finding about his or her subjective state of mind and the purpose of the communication. ( R. v. Leskosky , 2020 ABQB 502 para. 28 .) [ 114 ] In Morrison the Supreme Court noted the range of conduct that constitutes an offence under this

section is extremely broad. More specifically, the impugned communications need not be sexually explicit or objectively capable of facilitating the secondary offence. [ 115 ] As previously referenced, much of the evidence in this trial was not disputed and with the exception of Ms. Wilton, the credibility of the Crown witnesses was not vigorously challenged. [ 116 ] With respect to Ms. Wilton’s evidence, it was clear to me she cared for P.K. and was concerned for her wellbeing. She accepted a challenging position and was dedicated to her job. When challenged on her feelings about Mr.

Sinclair and it was suggested to Ms. Wilton that she hated him, she responded that she did not hate him, but rather hated what he had done to P.K. [ 117 ] In my view her response showed she was capable of seeing the situation objectively. It may be said that she went to extremes to expose the relationship between Mr. Sinclair and P.K. but it could equally be said her actions were a sign of her commitment to ensure P.K.’s safety and wellbeing. [ 118 ] The evidence of each of the Crown witnesses remained consistent on cross-examination.

The content of their evidence in terms of their interactions with both P.K. and Mr. Sinclair was also consistent with one another. I accept their evidence. [ 119 ] In light of her personal circumstances including her young age, the fact she was in the care of an agency, reportedly had a history of trauma, potential mental health issues, substance use issues and was a frequent run away from her placement, I am satisfied P.K. was a vulnerable young person. [ 120 ] I am satisfied Mr.

Sinclair was aware of P.K.’s age and living circumstances from the contact he had with her workers at Little Sisters, StreetReach and the police. He had raised his own concerns about her mental health and was aware of her drug use both with him

and elsewhere on the street. He was aware that she was often absent from her group home and encouraged her when she was, to be with him. Based on this, I am satisfied Mr. Sinclair was aware that P.K. was a vulnerable person. [ 121 ] I am also satisfied Mr. Sinclair exercised control and influence over P.K. based on the circumstances set out in paras. 77 – 81 of this decision. [ 122 ] I find the use of drugs together and his encouragement of it, created an environment that encouraged contact between Mr. Sinclair and P.K. in circumstances that increased her vulnerability. [ 123 ] I find the relationship between Mr.

Sinclair and P.K. was an intimate one and of a sexual nature based on the circumstances set out in paras. 88-93 of this decision. There is no other reasonable explanation for a 39 year old man to use the language highlighted in the text messages of April 2020 when communicating with a 16 year old girl. [ 124 ] Based on these factors, in addition to P.K.’s age, the 23 year age difference between her and Mr.

Sinclair and the frequency with which they were together, I am satisfied their relationship was an exploitive one. [ 125 ] I am satisfied beyond reasonable doubt the communications in the text messages in Exhibit 2 were sent by Mr. Sinclair with the intention of facilitating a sexually exploitive relationship with P.K. as contemplated by s. 153(1) of the Criminal Code . [ 126 ] I am therefore satisfied the Crown has proven all the elements of the offence under s. 172.1(1) of the Criminal Code beyond reasonable doubt and I am accordingly convicting Mr. Sinclair. “Original signed by:” Tracey Lord, A.C.P.J.