R v Dew, 2022 MBPC 26

CITATION: R v Dew , 2022 MBPC 26 IN THE PROVINCIAL COURT OF MANITOBA STONEWALL BETWEEN: Her Majesty the Queen ) S. Harland ) for the Crown ) and ) ) ) Douglas Dew ) A. Hodge (Accused) ) for the Accused ) ) ) ) Reasons for Decision ) Delivered: May 16, 2022 Notice of Restriction on Publication In accordance with s. 486.4(1) of the Criminal Code , there will be an order directing that any information that could identify the complainant shall not be published in any document or broadcast or transmitted in any way. C.A. DEVINE, P.J. [ 1 ] The accused is charged with luring pursuant to

section 172.1(1) (

b) of the Criminal Code , with respect to text communications he had with a 15-year-old teenager, B.D. The Crown proceeded by way of indictment; the election was to the Provincial Court for trial. On the morning of trial, counsel agreed that the only issue to be determined is whether the communication constituted the offence of luring. Counsel arrived at an agreed statement of facts for the Court and presented argument. This is my decision. FACTS [ 2 ] The following facts were agreed to by counsel and presented to the Court. [ 3 ] The complainant B.D. was born on […], 2005.

The accused Douglas Dew (Dew) sent him messages on his iPhone between August 12 and 26, 2020, when the complainant was 15 years old, thereby did “by a means of telecommunication, [communicate] with” the complainant within the meaning of Criminal Code

section 172.1(1) (b). [ 4 ] The accused was born October 14, 1975 and was 44 years of age at the time the messages were sent. He had been a friend of B.D.’s father for 20 years at the time of the communications. B.D. and the accused worked together daily in the summer of 2020, depending on the weather, for 10 to 12 hours each day doing manual labour for a landscaping company owned by the complainant’s father. [ 5 ] The accused mentored the complainant on mechanics and helped him with his dirt bike. [ 6 ] The accused never touched the complainant sexually and did not make inappropriate comments in person.

[ 7 ] The complainant found it awkward to see the accused after the accused sent him sexual messages. [ 8 ] The messages were filed with the Court as exhibits. Exhibit 1 was the extraction report from the accused’s phone. Exhibit 2 was pages of screenshots from the complainant’s phone. They set out the same communication, except the teen’s screenshots include emojis and photos (non-sexual in nature, such as of a dirt bike) and there are a few more unanswered text messages written by the accused after the end of the back and forth communication. THE OFFENCE CHARGED, s. 172.1(1)(b) 172.1(1) Every person commits an offence who, by a means of telecommunication, communicates with (

b) a person who is, or who the accused believes is, under the age of 16 years, for the purpose of facilitating the commission of an offence under

section 151 or 152, subsection 160(3) or 173(2) or

section 271, 272, 273, or 280 with respect to that person. [ 9 ] In this case, the accused is charged with communicating to facilitate the commission of the offence of invitation to sexual touching, pursuant to

section 152.

That offence provides: 152 Every person who, for a sexual purpose, invites, counsels or incites a person under the age of 16 years 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 person under the age of 16 years… [ 10 ] The specific form of the invitation to sexual touching in this case was to invite or counsel the complainant to masturbate himself. [ 11 ] It is agreed that inviting, counselling or inciting a child to masturbate themselves constitutes the offence of invitation to sexual touching ( R v Munro , 2016 BCPC 241 ; R v Somogyi , 2010 ONSC 8039 ; R v Smith , 2007 BCSC 1955 ). [ 12 ] It is important to remain focussed on the “luring” offence however.

The accused is not charged with invitation to sexual touching, but rather with the facilitation of that offence. “Facilitating” does not mean the same as “having the purpose of committing” the invitation to sexual touching ( Smith at para 17 ). [ 13 ] Justice Fish for the Supreme Court of Canada explained the operation and purpose of the offence of luring in the Court’s trenchant decision in R v Legare , 2009 SCC 56 . [ 14 ] The purpose of the criminalization of certain types of computer communication with children is to protect children from sexual predation and exploitation that is perpetrated via computer systems.

Justice Fish quotes with approval para 36 of Justice Doherty’s decision in R v Alicandro , 2009 ONCA 133 , as follows: 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-[to]-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. (Gregory J. Fitch, Q.C., “Child Luring” (Paper presented to the National Criminal Law Program: Substantive Criminal Law, Advocacy and the Administration of Justice, Edmonton, Alberta, July 2007), Federation of Law Societies of Canada, 2007, at s. 10.1, pp. 1 & 3). [emphasis added] ( Legare at para 26 ) [ 15 ] The offence of child luring is an inchoate or preparatory crime that criminalizes otherwise legal activity that is meant to culminate in the commission of a crime.

It criminalizes the conduct that precedes the sexual offence or attempt at a sexual offence. The objective is “to close the cyberspace door before the predator gets in to prey” ( Legare at para 25 ). [ 16 ] Justice Fish explained that

section 172.1(1) makes it a crime to communicate by computer with an underage child for the purpose of facilitating the invitation to sexual touching (in this case). He explained that “facilitating” an offence in that context includes: - helping to bring about, - to make easier, - to make more probable, - luring, - grooming, - reducing their inhibition, and - using “prurient discourse that exploits the young person’s curiosity, immaturity or precocious sexuality” (para 28). [ 17 ] Justice Fish “hastened to add” that use of sexually explicit language is not an essential element of the offence of luring.

While some offenders use sexually explicit language, and it may be easier to establish the criminal purpose of the accused when such language is used, “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” ( Legare at para 29 ).

Justice Fish referred to Justice Hill’s similar comments in R v Pengelley , [2009] OJ No 1682 (Ont SCJ) at para 96 , where he stated (at para 30): [C]omputer 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. [emphasis added] [ 18 ] Therefore, the proper approach is to consider whether the evidence as a whole establishes that the accused communicated with the child for the purpose of facilitating the specified secondary sexual offence. [ 19 ] In this case, the question is whether the evidence establishes that the accused communicated with B.D. for the purpose of facilitating the offence of invitation to sexual touching.

More specifically, the question is whether the evidence establishes that he communicated with B.D. for the purpose of facilitating, for a sexual purpose, the invitation, or counselling or incitement of B.D. to masturbate . [ 20 ] I turn to the communications. THE TEXT MESSAGES [ 21 ] The messages all occurred over a 14-day period when the accused and B.D. were working together at B.D.’s father’s landscaping company.

In the paragraphs that follow, the messages have been intentionally reflected as written. [ 22 ] The messages start on August 12, 2020 with the accused asking the teen about work, letting him know that he enjoyed working with him, that he is a “cool dude”. Apparently the accused believed he would be fired that day. It appears that B.D. is trying to assure him that he is not fired and that his dad would understand. The accused tells him, “Your a good friend. I appreciate that.” He went on to compliment B.D., “I’m really proud of you young fella.

Every time I work with you I smile.” [ 23 ] The next significant conversation takes place on August 14, 2020 . The accused tells B.D. that he was in Teulon with some “really really bad news”, that is, that he hangs out with the Hells Angels all the time. He tells the teen not to tell anyone, that it is private. The teen responds within seconds, “Ofc I wouldn’t tell anyone secrets safe with me”. The accused tells him that he is a “good man”.

He goes on to tell B.D. about the Hells Angels, what “81” means, what “prospects” are, and that he knows a lot of Hells Angels all over Canada and that he has a special job with them, but at the same time warns B.D. not to tell others. [ 24 ] He first refers to masturbation that day: “I’ll be in Bed in five minutes. But it’ll probably take 6 minutes to do what I gotta do before I close my eyes. See you tomorrow young fella.” But he then expresses regret that he has over-shared: “Ok sounds good young fella. Can’t believe I told you that. It’s private stuff. I didn’t think I was juiced. Didn’t have that many today.

Trying to cut back bad. I’m gonna be fired. And I need this job.” [ 25 ] The teen responds with, “Ya but my dad understands how hard it is”. The accused responds by saying, “Ok. I appreciate your kind words young fella. You made me smile. When my world is upside down, that I will never forget. From now on, Your protected, You don’t have to know what it means yet. But you will when your tiny bit older”. B.D. answers, “Ok”. The accused assures him, “You’ll smile young man. This is a big one”. [ 26 ] He refers to masturbation a second time during this same chat.

The conversation is as follows: … Dew You in bed yet punk B.D. Soon Dew Ok. Glad your not staying up to late. I still haven’t made it to bed yet. But I definitely wanna do something before I go to sleep B.D. Ya Dew Lol. You bailing what I’m cutting down B.D. Ya Dew Ok. I’m bad young fella. I do it like 2-3 times a day. I know it’s bad. But I love it. You upset with me now ? B.D. No not at all Dew Ok cool cool. Hope you’ve done it before. B.D. Ya Dew Ok cool cool. Sounds good. What’s your favourite bed or shower. ? Mine is definitely bed [Marked as “Read” immediately. 15 minutes elapse.] Shit. That was bad. Sorry.

Now your upset with me

[Marked as “Read” immediately. One minute elapses.] I’m smoking weed like it’s going outta style. I’m sorry. Please don’t block me again. B.D. I won’t Dew Ok cool cool. I think your a really good young man. I’m proud of you. You work really hard. Very impressive.i smile when I work beside you B.D. Thanks me too Dew Ok cool cool. I’m glad your cool. Your a good young man. You in bed now. [Marked as “Read” immediately. Two minutes elapse.] Ok cool cool. I got climbed up into my bed, Now, It’s late. I know. I’ll be at work tomorrow.

I’m still gonna do it before I sleep are you gonna too [Marked as “Read” immediately. Three minutes elapse.] B.D. No Dew Ok. Sleep good young fella [ 27 ] There is no further communication for two days. Then it is minimal, the accused telling B.D. to enjoy his weekend. Back at work, August 18, 2020 , there is more communication with the accused asking B.D. to listen to a song and give him feedback, and telling B.D. that he liked working with him. Then he says he needs the boy’s advice. … Dew I was kinda thinking about cutting my hair. I put it out on snap for like twenty minutes before I deleted it.

But almost everyone that saw my story said, Fuck wicked hair bro. Or whatever. But outta twenty mins. 81 people told me. Don’t cut it. As. Long as I condition it. It’s gorgeous B.D. Ya Dew Ok little bro. It stays. Hope your happy with your hair these days. Did you eat tonight B.D. Ya I did Dew Ok sounds good. You still watching tv or in bed B.D. Getting in bed Dew Ok cool cool. Did you shower B.D. Ya Dew Ok sounds good. You in bed now [Marked as “Read” immediately. 11 minutes elapse.] B.D. My phone is being shitty Dew Ok no worries bro. Service is shit these days. I’m gonna do something crazy before bed too. Lol.

Hope you had a good explosion. I’m almost in bed. You mad? B.D. No Dew Ok cool cool. Sleep good tonight. And dream well. See you tomorrow young fella. It took 8 minutes? B.D. Ya see you tomorrow maybe I’m going fishing. Dew Oh fuck. Sweet. Hope you have a great time little bro. I think you will. Ok better sleep good tonight. Don’t do it again [Marked as “Read” immediately. 28 minutes elapse.] Lol. I’m gonna. Lol. Hope you catch lots tomorrow. Will be a fun day [ 28 ] That is the end of the communication on August 18, 2020 and on August 19 there is minimal communication about the fishing.

On August 20, 2020 , the accused writes about some type of previous conflict with a client of the company and that he expects to be involved in a physical fight that night. Once he learns that the boy is not at work, he tells him that he is in the shower. …

[The text is marked as “Read” immediately. 12 minutes elapse.] Dew Are you upset with me young fella? [Marked as “Read” immediately. Two minutes elapse.] Hope you showered and shaved lately lol. [Marked as “Read” immediately. Five minutes elapse.] You shaved lol ok sounds good. The lady’s love it [Marked as “Read” immediately. Two hours elapse.] B.D. Lol Dew Ok. Lol. It looks way better shaved [Marked as “Read” immediately. One minute elapses.] Especially when your rubbing one out [Marked as “Read” immediately. Four minutes elapse.] You upset with me [Marked as “Read” immediately. Two minutes elapse.] B.D.

No Dew Ok cool cool bro. Did you shave [Marked as “Read” immediately. Three minutes elapse.] B.D. Ya Dew Do you do it everyday? I do it twice. Morning and night. Sometimes. Nothing comes out. But feels amazing [Marked as “Read” immediately. 24 minutes elapse.] You upset I said that [Marked as “Read” immediately. 35 minutes elapse.] Ok cool cool sorry I talked so crazy [Marked as “Read” immediately. 36 minutes elapse.] B.D. It’s fine [50 minutes elapse.] Dew On Ok cool cool. Hope tonight is going smooth little bro [Marked as “Read” immediately. Three minutes elapse.] Don’t ever shave up hill.

You will definitely get red marks [Marked as “Read” immediately. Three days pass.] [ 29 ] On August 23, 2020 , the accused writes again. Dew How’s your weekend going you little bandit? B.D. Good [ 30 ] The boy is going tubing. The accused tells him to have a good time and then says he lost his best friend that day, because the guy started drinking again after being sober for three years. The boy responds with “Oh” after three minutes. [ 31 ] Sometime after 4:00 a.m. Dew messages the boy again, apologizing for the lateness and asks if the boy is ok. He says that he is. It is now August 24, 2020 .

He then asks, just after 5:00 a.m., if the boy is in bed now. B.D. does not respond.

[ 32 ] Later that day, at 5:36 p.m., the accused asks the boy to come to the shop to help him for 10 minutes if he’s home. The boy responds after a few minutes with, “Ya sure.” There is no further conversation or reference to the request to come to the shop. It is unknown if he goes to the shop to help the accused. But at 2:40 a.m. on August 25, 2020 the accused writes: Dew Hope you had a good afternoon young fella. I’ve lost my best friend now. And feeling pretty bad about it now. He won’t even open my snaps B.D. That’s not goos Good Dew I just put on a story. Hopefully he looks at it I feel like complete shit.

Thinking about hanging my self [Marked as “Read” immediately. Two minutes elapse .] If he sees it. I’ll delete right away [Marked as “Read” immediately. Five minutes elapse .] I’m not in the best shape young fella. Feeling kinda low right now [Marked as “Read” immediately. 25 minutes elapse .] B.D. Ya I get it … They chat about work, movies and YouTube and then at 4:05 a.m. the accused writes: … Dew Ok cool cool. I just climbed up in my bed. I’m probably gonna do something crazy now. you in bed yet ? B.D. Ya just closing my eyes Dew Ok sounds good. Get a good rest tonight. I’ve got an exciting next 7 minutes B.D.

Ok Dew Lol. You bailing what I’m cutting down B.D. Ya Dew Lol. Ok. I’d race you. But I’d probably loose. Lol. [Marked as “Read” immediately. One minute elapses .] B.D. Ha Dew Please don’t tell me I upset you B.D. No you didn’t just bad wifi Dew Ok cool bro. I’m happy now. I gotta get back to work now. Lol. [ 33 ] There is no further communication on August 25. On August 26, 2020 just after midnight the accused writes to him about working on a customer’s car. He continues into 3:00 and 4:00 a.m., but there is no response from B.D. after 4:06 a.m.

The accused sends several more messages and then by 5:00 p.m. on August 26, he writes: Dew Why won’t you talk to me … At 1:03 a.m. August 27, 2020 he writes: Dew I just got fired. Sorry young fella. Take care of your self Not sure why little brother And your mom. Blocked me. Wtf At 5:46 a.m. he writes: Dew You still up 6:10 a.m.:

Dew If I could tell you something I will. 7:01 p.m.: Dew How’s your afternoon going bro ? 7:07 p.m. Dew I just showered. Did a mint job REASONABLE DOUBT AND THE APPROACH TO ANALYZE EVIDENCE IN THE CANADIAN LAW [ 34 ] It is a foundation of Canadian criminal law that an accused person is presumed innocent. [ 35 ] Many evidentiary and procedural rules support the presumption of innocence. In determining whether a person is to be convicted or acquitted of a criminal offence, the onus on the Crown is high.

The Court must be satisfied of the accused’s guilt, on the whole of the evidence, beyond a reasonable doubt (R v CLY , 2008 SCC 2 at paras 6-8 ). “The paramount question in a criminal case is whether, on the whole of the evidence, the trier of fact is left with a reasonable doubt about the guilt of the accused” ( R v Vuradin , 2013 SCC 38 at para 21 ). ANALYSIS OF THE TEXT MESSAGES [ 36 ] Considered as a whole, the text messages make it clear that the accused was subtly but inexorably moving his communication with B.D. in the direction of counselling, inviting or inciting him to engage in sexual activity.

It was a well-orchestrated campaign designed to reduce the boy’s inhibitions. The progression is very obvious when the messages are read from the beginning on August 12, 2020 to the end on August 27, 2020, after the accused had not heard from the boy for two days, had been fired and the boy’s mother had blocked him from further telecommunication. [ 37 ] The progression unfolds as follows. [ 38 ] The texts begin on August 12, 2020 . First he compliments B.D., telling him that he enjoys working with him and that he is a “cool dude”.

These would be very pleasing, ego-boosting words for a 15-year-old boy to hear from a 44-year-old man. Then he befriends B.D., telling him that he is a “good friend”. He compliments him and tells B.D. that every time he works with him, B.D. makes him smile. Then he seeks B.D.’s counsel on whether his father was angry about his work. [ 39 ] Two days later on August 14, 2020 , the matter moves to the next phase when he impresses B.D. with his criminal gang connections.

He shares secrets with B.D. about the Hells Angels, and tells B.D. to keep that secret with him, thereby drawing him into a confidence about criminal matters. He checks that the boy is still with him when he shares his regret that he over-shared about the Hells Angels and at the same time brings the boy into his worry about getting fired. He seeks and receives reassurance from the boy. And then he thanks the boy, lets him know he made him smile, and promises protection in the future.

It was that night that he first referred to masturbation, first in passing, in the thick of his efforts to draw the boy close to his secrets and worries, then later in more obvious terms. He keeps checking to see if he has scared the boy away with his talk of masturbation; “You upset with me now?” The boy tells him that he is not at all upset. He pushes a little further. After the boy admits to having masturbated, the accused asks if he likes to do it in bed or the shower.

Uncharacteristic to the other responses from B.D. which are immediate, 15 minutes lapse (as can be seen on the time stamps from the extraction report of the accused’s phone). The accused immediately back-tracked to check whether he had gone too far or too fast. In fact, it appears that the boy blocked him, because the accused tells him, “Please don’t block me again,” and the boy answers that he won’t.

The accused then showers him with non-sexual compliments, letting him know that he is a really good young man, he is proud of him, that B.D. works really hard, he is impressive and that the accused smiles when he is beside him. After the boy thanks him and says “me too” the accused pushes again, asking if the boy is in bed. The text is read immediately, but B.D. does not respond. The accused then continues, letting him know that he’s climbed into bed and is going to masturbate, then asking the boy if he is going to masturbate as well.

The text is read immediately but the boy does not respond for three minutes and then answers, “No.” [ 40 ] There is no communication for two days, and then the accused only tells B.D. to enjoy his weekend. On August 18, 2020 , when they are back at work, the accused texts the boy about music, asking him to listen to it and give his opinion. He tells the boy that he likes working with him. Then he asks for the boy’s advice about whether he should cut his “gorgeous” hair.

Although the boy’s answer is equivocal, being only “Ya”, the accused feigns that the response is advice and tells the boy he is taking his advice. That is a calculated effort to groom the boy. He is asking the boy if he is in bed, if he showered, and learning that the boy has, he asks again if B.D. is in bed. Although the text is immediately read, B.D. does not respond for 11 minutes and then says that his phone is not working well. The accused assures him it is alright and then returns to the topic of masturbation. He tells B.D. that he is going to masturbate and that he hopes the boy had a good “explosion”.

As is characteristic in this communication, the accused inches forward carefully and then checks to see if the boy is still with him, “You mad?” The boy replies that he is not. The accused pushes forward more about masturbation, asking if it took eight minutes. The boy deflects, telling him that he might go fishing the next day. The accused pushes more, telling the boy to have a great time, but also that he should not masturbate again. The boy does not respond.

Twenty-eight minutes elapse and then the accused sends a “LOL” and again wishes him a good day fishing. [ 41 ] On August 20, 2020 the accused sends private information about a conflict he has had in the past with a customer and then tells the boy that he expects to be in a fight that night. Once he learns that the boy is not at work, he tells him that he is in the shower. B.D. reads the text immediately, but does not respond. The accused then asks if B.D. is upset with him.

B.D. is ignoring him, but the accused keeps pushing; “Hope you showered and shaved lately lol.” B.D. is still not responding but the accused curiously then texts, “You shaved lol.” There is no response. Then B.D. writes “LOL.” The accused continues to write about shaving in a manner that suggests that he has seen a photo. There were no photos attached to the materials extracted from the accused’s phone. I did not have evidence about some photos that may have been deleted, or sent via Snapchat which I know the accused was familiar with, as he referred

to it in the communication with B.D. The language suggests that there was some sharing of photographic images however: “Ok. Lol. It looks way better shaved.” It is obvious from the context and totality of the texts that the accused is referring to shaving the groin area, not the face. [ 42 ] By this time, the accused is becoming more bold and explicit with B.D. Although B.D. read the comment above, he did not respond. The accused tells him it looks better especially when masturbating, that is, “rubbing one out”. When B.D still does not respond, the accused retreats to ask if he is upset.

The boy takes two minutes to respond “No.” Upon receiving that response, the accused continues, asking if the boy shaved. Although B.D. immediately read the text, he did not respond for three minutes and then said, “Ya.” The accused responds by asking how often the boy masturbates, and he shares his

schedule with B.D. with explicit details. The boy does not respond. Thirty-five minutes elapse and the accused immediately back tracks, apologizing for talking “so crazy”. Again, there is a significant lapse, of 36 minutes. B.D. responds that “It’s fine.” The accused then tells him not to shave uphill or he will get red marks. B.D. does not respond. Three days pass. On August 23 , 2020 the accused writes to B.D. about some personal problems with a friend. Sometime after 4:00 a.m. now August 24 , the accused writes again, asking the boy if he is okay.

After 5:00 a.m. he writes again, asking the boy if he is in bed. B.D. does not respond. [ 43 ] Later that day he asks the boy to help him in the shop and the boy says “ya sure.” I have no direct evidence of whether the boy met him, but the accused writes at 2:40 a.m. that he hoped the “young fella” had a good afternoon. He then goes on to talk about his low emotional state including suicidal thoughts. He is pressing the boy to be his confidant, like a boyfriend.

The boy’s response time is very slow, but he manages a response of, “Ya, I get it.” [ 44 ] That seems to be enough to perk up the accused who returns to the business of texting on the topic of getting into bed and masturbating. He suggests racing the boy. The boy does not respond. Again, the accused is then concerned he has pushed too hard and is asking if he has upset B.D. There is no further communication on B.D.’s end. FINDING [ 45 ] The nature and progression of the communication by the accused, along with the timing of the texts are all important.

The texts typically occur late at night, usually well after midnight. [ 46 ] The accused is communicating with the boy in a manner which is suggestive of “courting” him – inveigling himself into the boy’s confidence, complimenting him, sharing secrets, treating him like an adult. In totality, it is analogous to one teenager courting another. But the accused was a 44-year-old man and B.D. was a 15-year-old boy. This was “luring” not “courting”. [ 47 ] He was clearly trying to normalize and make acceptable the nature of the sexual content with B.D.

He would push as far as he could go before B.D. did not respond, at which point he would quickly retreat, apologize and check on whether he had gone too far. [ 48 ] The offence of luring for the purpose of facilitating the commission of the offence of invitation to sexual touching is made out in this case. [ 49 ] Contrary to the defence argument, this is perhaps a stronger case of luring than most. This case of luring was purely preparatory. The text communications preceded the logical next step or culmination of the crime of asking the boy to masturbate.

It is exactly what the offence was designed to do, that is, to “close the cyberspace door before the predator gets in to prey” ( Legare at para 25 ). [ 50 ] The content and progression in the communication was designed to bring about and make it easier or more probable that the accused could ask B.D. to masturbate himself, without scaring the boy away. The texts and the circumstances in which they were made, including their timing and the efforts the accused made to draw the boy in and assure him that everything was alright, is textbook luring.

The accused’s actions demonstrate beyond a reasonable doubt that he was attempting to reduce B.D.’s inhibitions and use “prurient discourse” to “exploit [B.D.’s] curiosity, immaturity or precocious sexuality” ( Legare , at para 28 ). [ 51 ] There is no other logical explanation for the texts, when considered in totality.

The totality of the messages and the circumstances in which they were made, including the boy’s reticence at times to respond and the accused’s efforts to quell his discomfort, all demonstrate that the intention of the accused was to facilitate the commission of the crime of invitation to sexual touching, specifically that B.D. masturbate himself. DECISION [ 52 ] I find Douglas Dew guilty of the offence of luring in

section 172.1(1) (

b) of the Criminal Code , specifically that he, by means of telecommunication, communicated with a person under the age of 16 for the purpose of facilitating the commission of the offence of invitation to sexual touching. Original signed by Judge Devine DEVINE, P.J.