R. v. Mills, 2014 NLPC 112

IN THE PROVINCIAL COURT OF NEWFOUNDLAND AND LABRADOR JUDICIAL CENTRE OF ST. JOHN’S Citation: R. v. Mills, 2014 NLPC 0112A01710 Date: December 19, 2014 Docket: 0112A01710 BETWEEN: HER MAJESTY THE QUEEN AND: SEAN MILLS Before: The Honourable Judge D. Orr Place Heard: St. John’s, NL Dates Heard: October 28 and 29, 2013 November 19, 2013 January 9 and 24, 2014 June 16 and 17, 2014 26, 27 and 28, 2014 December 1, 2014 Appearances: Kathleen O’Reilly Counsel for Her Majesty the Queen Rosellen Sullivan Counsel for the Accused

Summary: Accused charged with four counts of internet luring. The sole issue at trial was the identity of the accused as the author ofthe messages sent to two undercover police officers. Crown has established identity with respect to counts one and two. Accusedconvicted on count two; count one stayed; and counts 3 and 4 dismissed. Authorities Cited: CASES CONSIDERED: R. v. J.-L.J., 2000 SCC 51 , [2000] 2 S.C.R. 600; Daubert v. Merrell Dow Pharmaceuticals, 509U.S. 579; R. v. Hamilton, 2011 ONCA 399 , [2011] O.J. No. 2306; R. v. Fliss, 2002 SCC 16 , [2002] 1 S.C.R. 535; R. v. Wilks, 2005 MBCA 99 , [2005] M.J. No. 328; R. v. Lapensee (2009), 2009 ONCA 646 , 70 C.R. 6th 165; R. v.

Legare, 2009 SCC 56 , [2009] 3 S.C.R. 551; R. v. W.(D.) (1991), (SCC), 63 C.C.C. (3d) 397 (S.C.C.); R. v.Marquard, (SCC), [1993] 4 S.C.R. 223; R. v. P.(S.H.) (2003), 2003 NSCA 53 , 176 C.C.C. (3d) 281; R. v. G.(M.) (1994), (ON CA), 93 C.C.C. (3d) 347; R. v. L.T.P. (1997), (BC CA), 113 CCC (3d) 42; R.v. Griffin, 2009 SCC 28 , [2009] S.C.J. No. 28; R. v. Arp, (SCC), [1998] 3 S.C.R. 339; R. v. Lifchus, (SCC), [1997] S.C.J. No. 77 STATUTES CONSIDERED: Criminal Code, R.S.C., 1985, c. C-46; Canada Evidence Act, R.S.C., 1985, c. C-5 REASONS FOR JUDGMENT ORR, PCJ: INTRODUCTION [1] Mr. Mills is charged with four breaches of

section 172.1 of the Criminal Code. He has been charged with two counts ofcommunicating with Leeann Power and two counts of communicating with Julia Brown via a computer system for purposes ofcommitting sexual offences. Neither Julia Brown nor Leeann Power was a real individual; they were fictitious girls under the age of 16created by Constable Hobbs and Constable Follett. [2] The accused has pleaded not guilty to the offences. He maintains that he did not send any messages via computer to either ofthe “girls”.

He disputes the content of the messages and the number of the messages produced by the Crown but acknowledges theremust have been some messages sent. He states that any messages that were sent were sent by his former girlfriend and he did not knowwhat they contained. Counsel for the Crown disputes the involvement of Mr. Mills’ former girlfriend and maintains that he is responsiblefor all of the messages and that their content clearly establishes the offences.

THE FACTS [3] The evidence was that on the 28th of February, 2012, Constable Hobbs created a Hotmail account for a fictitious 14 year oldfemale person Leann Power. Constable Hobbs then created a Facebook page and profile with background information listing her addressas St John’s and that she was a student at local high school Holy Heart of Mary.

He used a profile picture he obtained on the internet forboth the Hotmail and Facebook accounts. [4] Constable Hobbs did not make any “friend” requests for his Facebook page but received several friend requests from otherindividuals as a result of having listed Holy Heart of Mary as his profile’s high school. He received other friend requests from otherindividuals who were friends of the people he had already agreed to friend and added them to his Facebook page. [5] On the 20th of March he received a Facebook message from Mr. Mills asking about the profile picture. Constable Hobbs as Leann responded to Mr.

Mills on the 21st of March and asked which person he was in his pictures on his Facebook page. Mr. Mills responded. On the 22nd of March, Constable Hobbs as Leann corresponded with Mr. Mills saying “she” was new to Facebook andunfamiliar with what to do. Mr. Mills responded to “her” and asked to see more pictures. It is clear from the message content that herealized her age as he stated, “But you seem really sweet and I don’t care about someone’s age.

All that matters is the kind of person theyare….Are you open to meeting new friends, meeting new people to hang out with you?” [6] From the photographs he observed on Mr. Mills’ Facebook page on the 22nd of March, Constable Hobbs obtained the licensenumber of his motorcycle and performed a motor vehicle registration check. From this he learned Mr. Mills’ address and date of birth. Inorder to ensure that he had captured all the information on the screen, Constable Hobbs employed a program called “Snagit” whichallows the computer user to capture and copy the information on the screen.

Snagit is a screenshot program that captures video displayand audio output. Constable Hobbs employed the Snagit program on each of his communications with Mr. Mills.

[ 7 ] The “Snagit” program is a program that is available to the public and commonly used. In addition to the screen captures on the 22 nd of March, Constable Hobbs performed a CPIC check on Mr. Mills and on the 23 rd he performed an ICAN check on Mr. Mills. [ 8 ] On the 22 nd of March, Mr. Mills sent a message to the Leann Power’s Facebook page and provided his cell phone number and asked what she was doing on the weekend. On March 22 nd , Mr. Mills sent an email to Leann and stated his age was 23 (it was 32), that he was a carpenter and asked her to send him a text message and he would keep her entertained.

Leann indicated she did not text and wanted to use emails. [ 9 ] Mr. Mills continued to send emails to Constable Hobbs as Leann for the next two months until his arrest on the 22 nd of May, 2013. There was only one occasion when the communication between Constable Hobbs as Leann and Mr. Mills took place outside of the email traffic, that was on the 6th of April when Constable Hobbs as Leann posted a comment on Mr. Mills’ Facebook wall. The post was removed and a message sent to “Leann” as follows: “Look I don’t want you to be upset but I had to remove it.

Nothing personal, It’s just my Mom is on my facebook and she is really old fashion. I’d rather not hear what she has to say about our age difference.” [ 10 ] In addition to the communication between Constable Hobbs as Leann and Mr. Mills, there was also communication between Constable Follett and Mr. Mills. Constable Follett created a fictitious person, Julie Brown, also 14 years of age. Constable Follett as Julie Brown corresponded with Mr.

Mills between March 27 and May 11, 2012 on Facebook, Hotmail messenger and Hotmail email. [ 11 ] Constable Follett testified that using the Julie Brown identity he had initiated contact with Mr. Mills by sending a friend request to Mr. Mills shortly after creating the profile. Constable Follett’s communication was generated as a direct result of Constable Hobbs’ profile and was directly related to Constable Hobbs’ activity. Constable Follett’s communications included an exchange between Julie Brown and Mr. Mills on the 30 th of April when Mr. Mills sent a photograph of a penis.

There followed an email exchange on that date and on the 1 st of May where Constable Follett as Julie Brown suggested going for a drive. The content of email exchanges on the 3 rd of April established that Julie Brown was 14. [ 12 ] Counsel did not take issue with the content of the emails establishing both the ages of the fictional Julie Brown and Leeann Power or that the messages were sexual in nature. There were other objections to the admissibility of the messages, specifically that they could not form part of the record as they were not business records and they formed part of the investigators’ notes.

I will deal with that issue later but the central issue in this case is the identity of the author of the messages. [ 13 ] Both the Crown and counsel for the accused called expert evidence. Mr. Dean Boyer was called by the Crown and Mr. Ryan Purita by the accused. Mr. Boyers CV (exhibit DB No. 1) establishes that he was trained both as a member of the Canadian Forces and as an employee of the Royal Newfoundland Constabulary.

His training outside the ambit of these organizations was from St Lawerence Technical College and other certificate courses both from computer software companies and the RCMP and the military. Mr. Purita provided a CV (exhibit RP #1) which shows that he is employed with “Sherlock Forensics” a company in which he is a shareholder. He, like Mr. Boyer, has received training and certification from computer software companies. In addition, he has received certificates from the British Columbia Institute of Technology. Both Mr. Purita and Mr.

Boyer were qualified to give expert evidence in data recovery and computer forensic analysis. [ 14 ] Mr. Boyer assisted in the search of the accused’s home and located two computers there: a laptop which had been issued to him by his school and a desktop computer. Mr. Boyer photographed the living room and the computer screens entering 80 photographs showing the area where the computers were kept and a series of photographs of the open computer screens. Both computers were in the living room of Mr. Mills home in close proximity to each other. Mr.

Boyer said that the laptop was on and as a result no password was required to open it. He took a series of photographs of the open screen scrolling down it. The photographs show a series of Facebook pages later identified by Mr. Mills in his evidence as his Facebook pages. [ 15 ] The computers were seized from the residence and Mr. Purita and Mr. Boyer used a computer program, Encase, to analyze the contents of the hard drives removed from them. Encase creates a forensic image of the hard drive and it was the forensic image that was analyzed by Mr. Purita and Mr. Boyer. Mr.

Boyer was asked, “To your knowledge, Encase is that generally accepted in the computer forensics community?” A. “Yes as far as I know it is. It’s one of the biggest software for forensics analysis out there.” Mr. Purita indicated in his evidence, and included on his CV, the fact that Encase is recognized by law enforcement and widely used by government and police services in Canada and the United States. That said, neither Mr. Purita or Mr. Boyer were qualified to provide detailed information as to how Encase functions; their evidence was on its technical application and the information it retrieved.

The evidence they provided was similar to the expert evidence provided led by the Crown in many cases: DNA, fingerprint, ballistics, etc. and is generally (with the exception of DNA) in the sole province of police crime labs and not the subject of academic study. It is routinely admitted with little scrutiny of its reliability.

[16] The Supreme Court of Canada in R. v. J.-L.J., 2000 SCC 51 , [2000] 2 S.C.R. 600, referred with approval to Daubertv. Merrell Dow Pharmaceuticals, 509 U.S. 579 and adopted the methodology proposed in Daubert to evaluate expert scientificevidence. Four criteria were adopted in the Daubert decision to evaluate that evidence: 1. Falsifiability of the theory; 2. Peer review and publication of the theory; 3. Known or potential rate of error and the existence of standards controlling the research on which the theory is based; and 4.

General acceptance of the methodology underlying the theory in the scientific community. [17] The evidence tendered by Mr. Boyer and Mr. Purita is not novel evidence and therefore subject to special scrutiny. In fact, it isevidence closer to the type of technical evidence tendered in R. v. Hamilton, 2011 ONCA 399 , [2011] O.J. No. 2306. In thatcase, the Ontario Court of Appeal held the trial judge did not err by admitting the evidence of three Crown witnesses concerning thelocation of cell phones without first conducting a voir dire on its admissibility.

The evidence given by the three employees of carriercompanies was not opinion evidence but factual evidence, which the employees were qualified to give because of their knowledge,observations and experience. Their evidence was reliable, probative and understandable. It was therefore properly admissible. However,in this case, the parties have sought to qualify their experts as forensic analysts and interpret the data retrieved by the program.Consequently, the evidence they sought to provide went beyond the purely technical and factual. [18] Mr.

Boyer testified that the Encase program had retrieved portions of the messages received by Constables Hobbs and Follettfrom the laptop and the desktop in “unallocated clusters”. Mr. Boyer testified that unallocated clusters are an area used by the computerfor temporary storage of information. The information there could include deleted messages and data indicating that the computer hadvisited a Facebook page or sent or received a message. Mr.

Purita testified that the information contained in the clusters was unreliableas to date and time and that the fragments recovered might contain fragments of more than one message. Mr. Purita also testified that inhis opinion fragments of messages could appear in the unallocated space even when the subject computer had not visited the web page.He demonstrated how information could be copied and pasted into a computer without that computer even being attached to the internet.

Counsel for the accused reviewed the unallocated cluster fragments and pointed to some apparent duplications and discrepancies wherethe same clusters appear to be repeated and to fragments 6, 8, 12, 15 and 21 which all contain the words “pace of life these days”, aphrase which Counsel submits does not appear in any of the screen captured chats or emails. [19] Ultimately, I have no information before me on the error rate or reliability of the Encase program. However, both experts haverelied on it and both testified that it is a reliable forensic program; consequently, it is admissible evidence.

The issue remains the weightto give to this evidence. [20] Mr. Purita’s evidence is that there is more than one way the email, chat and Facebook fragments could appear in theunallocated space. He conceded it was unlikely that all of these fragments could have been copied and pasted into Mr. Mills’s computerand acknowledged that they could appear there if the computer had accessed the information as the Crown has alleged.

There is noquestion that the content of most of the fragments is consistent with the screen capture emails. [21] Ultimately, with respect to the Leann Power conversations, the accused was arrested following a series of messages betweenConstable Hobbs and allegedly Mr. Mills where it was agreed that Leeann and Mr. Mills would meet at Bowring Park at a specifiedtime. Mr. Mills would be more easily identified as he would be walking his dog. Mr. Mills has testified that he went to meet with LeeannPower at the request of his girlfriend Tory Strickland. [22] The accused testified that he and Ms.

Strickland had an open relationship. He said that she was bisexual and she had beenattempting to meet a female in order for them to have sex with this person. The accused testified that he understood that she had beenarranging these meetings through “Plenty of Fish”, an online dating site. He said he understood that a person was required to be 18 to usethis site. He maintained he had no knowledge of the Julie Brown emails and did not know about the Facebook chats or messages. Heacknowledged that the Facebook page which was open on his computer at the time that his home was searched was his.

The content ofthis page is the same in almost every respect as the content of the Facebook page that Constable Hobbs and Follett were communicatingwith. His evidence is that any messages from Leeann Power were relayed to him by Tory. Consequently, with this admission he hasacknowledged that messages were sent by a computer to “Leeann”, one of the essential elements the Crown must establish. In light ofthis admission, Mr. Purita’s evidence that the messages may not have come from either of Mr. Mills’ computers and that the fragmentslocated on them might be from another source seems less likely.

THE SCREEN CAPTURE EVIDENCE

[23] Counsel for the accused has argued that the screen captures obtained by Constable Follett and Constable Hobbs using the“Snagit” software are not admissible. She submits they are not business records but form part of the officer’s investigative notes. She isrelying on section 30(10) of the Canada Evidence Act. [24] In R. v.

Fliss, 2002 SCC 16 , [2002] 1 S.C.R. 535, the accused freely confessed to an undercover police officer that hehad killed a woman and provided many details during a conversation surreptitiously recorded pursuant to a prior judicial authorization.The next day, the officer reviewed the transcript and made corrections based on listening to the tape supplemented with his recollectionof parts of those conversations.

The trial judge, having concluded that the authorization ought to have been refused for insufficiency ofevidence, declared the tape and related transcript inadmissible but admitted the officer’s viva voce evidence of the conversation, whichwas basically a recitation of the corrected transcript. The jury convicted the accused of first degree murder. The majority of the Court ofAppeal reduced the conviction to second degree murder. The sole issue on the appeal concerns the admissibility of the viva voceevidence of the officer’s conversation with the accused.

The court held the jury was entitled to hear from the officer about hisconversation with the accused, and the officer was entitled to refresh his memory by any means, including inadmissible evidence. [25] Similarly in R. v. Wilks, 2005 MBCA 99 , [2005] M.J. No. 328, the Crown witness wished to rely on the notes he hadmade by way of

summary on his computer of his interaction with the accused. The Manitoba Court held: 27 … Secondly, the officer's testimony does not qualify for admission as “past recollection recorded”. This doctrine would applyonly if the prosecutor could satisfy the four Wigmore criteria, usefully summarized by the Alberta Court of Appeal in R. v. Meddoui(1990), (AB CA), 61 C.C.C. (3d) 345, per Kerans J.A., at p. 352: The basic rule in Wigmore on Evidence (Chadbourn rev. 1970), vol. 3, c. 28, s. 744 et seq. provided: 1. The past recollection, must have been recorded in some reliable way. 2.

At the time, it must have been sufficiently fresh and vivid to be probably accurate. 3. The witness must be able now to assert that the record accurately represented his knowledge and recollection at the time. The usualphrase requires the witness to affirm that he “knew it to be true at the time”. 4. The original record itself must be used, if it is procurable. And (at para. 64): ... The admission of past recollection recorded but no longer remembered is an exceptional procedure and the conditions precedent to itsreception should be clearly satisfied.

i) The Importance of the Two Rules 28 We refer again to Mewett and Sankoff (at 13-13): ... Failure to distinguish between a witness using something to refresh his or her present memory and a witness using something as arecord of a past memory may result in a witness being refused permission to consult notes or other memory-jogging devices or,conversely, being permitted to testify on the basis that his memory has been refreshed when it is clear that it is not the memory that isbeing refreshed, but an inadmissible record of past memory that is being introduced. [26] In this case, Constable Hobbs and Constable Follett were able to identify the documents produced by the “Snagit” screen

captures and testify that they were accurate. The screen capture itself is more akin to a photo or real evidence than it is to notes. It is not aparticularly clean document as it does produce a printed document which includes irrelevant additional items around the borders of thepage, including photographs and advertisements. Notwithstanding this, the documents do meet the first three Wigmore criteria. Thefourth criteria, production of the original document, is fulfilled in the sense that the printed page is the best evidence as it has beenidentified as accurate by the officer who produced it.

I find that the screen captures are admissible and that section 30(10) does not apply.I would note that even if the documents were not admissible pursuant to the Canada Evidence Act, following R. v. Fliss, supra, the vivavoce evidence of Constables Hobbs and Follett on the content of the messages is clearly admissible. THE LAW [27] The accused is charged with four breaches of

section 172.1(2). In R. v. Legare, 2009 SCC 56 , [2009] 3 S.C.R. 551,the Supreme Court held at paragraph 25: 25 It will immediately be seen that s. 172.1(1)(

c) creates an incipient or "inchoate" offence, that is, a preparatory crime that capturesotherwise legal conduct meant to culminate in the commission of a completed crime. It criminalizes conduct that precedes thecommission of the sexual offences to which it refers, and even an attempt to commit them. Nor, indeed, must the offender meet or intendto meet the victim with a view to committing any of the specified secondary offences. This is in keeping with Parliament's objective toclose the cyberspace door before the predator gets in to prey. [28] And at paragraph 28: 28

Section 172.1(1) makes it a crime to communicate by computer with underage children or adolescents for the purpose offacilitating the commission of the offences mentioned in its constituent paragraphs. In this context, "facilitating" includes helping to bringabout and making easier or more probable -- for example, by "luring" or "grooming" young persons to commit or participate in theprohibited conduct; by reducing their inhibitions; or by prurient discourse that exploits a young person's curiosity, immaturity orprecocious sexuality. [29] The elements of the offence were set out at paragraph 36: 36 To sum up, then, I reiterate that s. 172.1(1)(

c) comprises three elements: (1) an intentional communication by computer; (2) witha person whom the accused knows or believes to be under 14 years of age; (3) for the specific purpose of facilitating the commission of aspecified secondary offence -- that is, abduction or one of the sexual offences mentioned in s. 172.1(1)(c) -- with respect to the underageperson. 37 All three elements must, of course, be established by the Crown beyond a reasonable doubt. [30] In this case, if the evidence establishes that the accused was the author of the messages, the elements of the offence are madeout.

In each case, the ages of the victims was established as 14 the content of the messages was sexual in nature and aimed at facilitatinga sexual encounter and commission of one of the listed offences. [31] Counsel for the accused has argued that there is no direct evidence linking the accused to the email addresses used incommunicating with either Leeann Power or Julie Brown. In Mr. Boyer’s photographs of the open laptop screens, the email addresses donot appear on any of the open screens.

The fragments of the emails contained in the unallocated clusters contain many of the same wordsbut there are a few differences in some of the messages and both experts testified that the times and dates within these fragments areunreliable. [32] The accused has testified. Assessing the credibility of an accused person the court must apply the test set out by the SupremeCourt of Canada in R. v. W.(D.) (1991), (SCC), 63 C.C.C. (3d) 397 (S.C.C.) as follows: First if you believe the accused, obviously you must acquit.

Secondly, if you do not believe the testimony of the accused but you are leftin reasonable doubt by it, you must acquit. Thirdly, even if you are not left in doubt by the evidence of the accused, you must askyourself whether, on the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of theaccused. [33] In assessing credibility, the Supreme Court of Canada in R. v. Marquard, (SCC), [1993] 4 S.C.R. 223, heldthat in assessing credibility:

Credibility must always be the product of the judge or the jury's view of the diverse ingredients it has perceived at trial, combined withexperience, logic and an intuitive sense of the matter ... Credibility is a matter within the competence of lay people. Ordinary peopledraw conclusions about whether someone is lying or telling the truth on a daily basis. [34] However, it is an error to give undue weight to the demeanor of a witness when assessing their credibility. In R. v.

P.(S.H.)(2003), 2003 NSCA 53 , 176 C.C.C. (3d) 281, the Nova Scotia Court of Appeal held: While demeanor is a legitimate marker in the assessment of the veracity and reliability of someone taking the stand, it is not the onlymeasure and must, I respectfully suggest, always be approached with caution. One is not judging character. The obligation is to ascertainthe truthfulness and reliability of a person's testimony. Appearances alone may be very deceptive. A most reprehensible witness maywell be telling the truth. A polished well mannered individual may prove to be a consummate liar.

Reasons of intelligence, upbringing,education, race, culture social status and a host of other factors may adversely affect a witness's demeanor and yet may have little bearingon that person's truthfulness. Consequently quite apart from the witnesses appearance or mood, his or her testimony must be carefullyconsidered for its consistency or inconsistency with all of the other evidence presented at trial before any decision can be madeconcerning its acceptance, in whole or in part, or the weight to be attached to it. [35] In R. v. G.(M.) (1994), (ON CA), 93 C.C.C. (3d) 347, Mr.

Justice Galligan of the Ontario Court of Appealidentified the use of prior inconsistent statements as one of the most effective means of gauging credibility: Probably the most valuable means of assessing credibility of a crucial witness is to examine the consistency between what the witnesssaid in the witness box and what the witness said on other occasions, whether on oath or not. Inconsistencies on minor matters of detailare normal and are to be expected, they do not generally affect the credibility of the witness. This is particularly true in cases of youngpersons.

But where the inconsistency involves a material matter about which an honest witness is unlikely to be mistaken, theinconsistency can demonstrate a carelessness with the truth. The trier of fact is placed in the dilemma of trying to decide whether or not itcab rely upon the testimony of a witness who has demonstrated carelessness with the truth. [36] In this case, the accused has, with respect to Leeann Power, provided an explanation as to why he was in the park walking hisdog at the time set in the message.

The message had been that he would be at the park walking his dog “so you won’t have any troublepicking me out.” He said he was there because his girlfriend Tory had asked him to meet Leeann there. Tory was not called as a witness.The accused indicated that he did not know where she was at the time of the trial. In R. v. Lapensee (2009), 2009 ONCA 646 , 70 C.R. 6th 165 the Ontario Court of Appeal noted the trier of fact should draw an adverse inference from the failure of a party to call awitness only with the greatest of caution. Accordingly in the absence of any other evidence as to the absence of Ms.

Strickland I candraw no inference. [37] The explanation provided by the accused as to why he was in the park to meet Leeann is not credible. The accused has statedthat Tory had carried out these conversations without his knowledge yet the messages invite the recipient to contact the accused on histelephone. It is not reasonable to conclude that an individual would try to hide an activity from the accused and at the same time invitethe target of the conversation to telephone the accused. His evidence lacked credible detail and did not make logical sense.

In addition,the accused has identified the Facebook page as his; it seems very unlikely that another individual could send a relatively large numbersof messages on someone else’s Facebook page over a period of months without their knowledge. [38] The accused himself testified that his purpose for meeting Leeann was to arrange a sexual encounter. He has stated he believedthat Leeann was 18 because the age range for Plenty of Fish was set at 18. That said, the test the accused must satisfy with respect to thecomplainant’s age is as set out in R. v.

L.T.P. (1997), (BC CA), 113 CCC (3d) 42 as a requirement that the accusedtake all steps a reasonable person would take in the circumstances to ascertain the complainant’s age. In this case, even if I were toaccept the accused’s account, it seems he took almost no steps to ascertain the complainant’s age other than to rely on the age restrictionon Plenty of Fish. I have no other evidence that he is correct on that point but there is nothing contrary to his evidence on that issueeither.

However, there was no encounter with a real person and I do not accept the accused’s evidence, so little turns on this issue. [39] The situation with respect to the allegations regarding Julia Brown is different. The accused has denied all knowledge of JuliaBrown communications. There was no meeting set up and confirmed with Julie Brown. The evidence with respect to “her” is entirelycircumstantial. [40] R. v. Griffin, 2009 SCC 28 , [2009] S.C.J.

No. 28, at paragraph 29 the court stated: We have long departed from any legal requirement for a “special instruction” on circumstantial evidence, even where the issue is one ofidentification: R. v. Cooper, (SCC), [1978] 1 S.C.R. 860. The essential component of an instruction on circumstantialevidence is to instill in the jury that in order to convict, they must be satisfied beyond a reasonable doubt that the only rational inference

that can be drawn from the circumstantial evidence is that the accused is guilty. Imparting the necessary message to the jury may beachieved in different ways: R. v. Fleet (1997), (ON CA), 120 C.C.C. (3d) 457 (Ont. C.A.), at para. 20. See also R. v.Guiboche, 2004 MBCA 16, 183 C.C.C. (3d) 361, at paras. 108-10; R. v. Tombran (2000), (ON CA), 142 C.C.C. (3d)380 (Ont. C.A.), at para. 29. [41] There is evidence of messages that appear to be coming from an individual named Sean Mills. There is, as well, the fragmentsfound in the unallocated space of his computer which contain portions of those same messages.

However, there is no direct evidencetying the accused to the messages and the conclusion that the accused sent the messages while the most probable explanation is not theonly explanation. [42] No application was made by counsel for the Crown that the evidence with respect to Leeann Power be considered as similar factevidence. In R. v.

Arp, (SCC), [1998] 3 S.C.R. 339, the court held at paragraph 45: Instead, a principled approach to the admission of similar fact evidence will in all cases rest on the finding that the accused's involvementin the alleged similar acts or counts is unlikely to be the product of coincidence. This conclusion ensures that the evidence has sufficientprobative force to be admitted, and will involve different considerations in different contexts. Where, as here, similar fact evidence isadduced on the issue of identity, there must be a high degree of similarity between the acts for the evidence to be admitted.

For example,a unique trademark or signature will automatically render the alleged acts "strikingly similar" and therefore highly probative andadmissible. In the same way, a number of significant similarities, taken together, may be such that by their cumulative effect, theywarrant admission of the evidence.

Where identity is at issue ordinarily, the trial judge should review the manner in which the similaracts were committed -- that is to say, whether the similar acts involve a unique trademark or reveal a number of significant similarities.This review will enable him or her to decide whether the alleged similar acts were all committed by the same person. This preliminarydetermination establishes the objective improbability that the accused's involvement in the alleged acts is the product of coincidence andthereby gives the evidence the requisite probative force.

Thus, where the similar fact evidence is adduced to prove identity, once thispreliminary determination is made, the evidence related to the similar act (or count, in a multi-count indictment) may be admitted toprove the commission of another act (or count). [43] There was no voir dire held to make this determination consequently the allegations must stand on their own merits one cannotbe used to corroborate the other. [44] In R. v. Lifchus, (SCC), [1997] S.C.J. No. 77: Perhaps a brief

summary of what the definition should and should not contain may be helpful.

It should be explained that: - the standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials,the presumption of innocence; - the burden of proof rests on the prosecution throughout the trial and never shifts to the accused; - a reasonable doubt is not a doubt based upon sympathy or prejudice; - rather, it is based upon reason and common sense; - it is logically connected to the evidence or absence of evidence; - it does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and - more is required than proof that the accused is probably guilty -- a jury which concludes only that the accused is probably guiltymust acquit.

[ 45 ] Consequently, I find that with respect to counts one and two the Crown has met the burden of proof. I do not accept the accused’s explanation as to why he was at the park to meet Leann. The evidence obtained from his computer hard drive coupled with his attendance at the park establishes that he sent the messages to Constable Hobbs. The content of the messages establishes the offences. The two counts are differentiated only on the basis of the belief in the age of the victim otherwise they are alleging the same offence.

I am satisfied that the accused believed the victim’s age was fourteen consequently a conviction should be entered on count 2 and the conviction on count one stayed. [ 46 ] I find that the Crown has not met the burden of proof with respect to counts 3 and 4. The evidence with respect to these counts is sufficient to establish that the accused probably sent the messages. However, he has denied any knowledge of the messages and there is nothing beyond the messages themselves and the fragments recovered from the computers to connect the email and chat messages to him.

As a result, I find that the Crown has not established his identity as the author. _________________________ DAVID ORR Provincial Court Judge