2015 ABCA 45

In 2015 ABCA 45, Mr. T, a 27 year old man, was convicted of multiple counts of child luring, invitation to sexual touching, sexual interference and sexual assault of a child. He committed these offences over a five-month period.

Mr. T posed as a 19 year old man online. He met a 14-year-old girl, Ms. S, in a chatroom where they could exchange messages and video chat. Their conversation was sexual and he convinced Ms. S to take her clothes off and touch herself. Ms. S later introduced Mr. T to her friend Ms. H, a 13 year old girl. Mr. T also engaged in private sexual conversations with Ms. H, including mutual masturbation over video chat. The two arranged to meet and had sexual intercourse.

Mr. T’s behaviour was reported to the police and Ms. S allowed a police officer to pose as her online and engage in conversations with Mr. T, including having Mr. T show himself on video so the officer could identify him. The police also obtained Mr. T’s IP address during this time, which was then used to identify him via his internet service provider. This information was used to obtain a search warrant for Mr. T’s vehicle and home. He arrived home during the search and was allowed to speak with counsel, after which Mr. T gave a statement of admission that included acknowledgement that the girls were under age. At trial he argued that his rights against unreasonable search and seizure, and his right to counsel under the Charter, were violated, but his arguments were dismissed.

Mr. T appealed his convictions, arguing the trial judge erred in failing to find Mr. T’s Charter rights were violated. The trial judge had made his decision before the release of Spencer, which held that an ISP subscriber has reasonable expectation of privacy in their identifying in-formation related to their IP address. The court held that there was enough information with-out the IP information to obtain a search warrant and that even if his rights had been breached, the evidence would have been admitted either way.

In relation to Mr. T’s right to counsel, Ms. S’s name had been crossed off on one count of his list of charges. He asked the detective why it was, but the detective did not know and offered to allow Mr. T to speak to counsel again, which he declined. Mr. T later gave several admissions about knowing the complainants’ ages. He argued that this was a violation of his right to counsel. The police must give the accused an opportunity to speak with counsel if the investigation takes on a new and more serious turn that would require legal advice. Ms. S’ name had been crossed out on that charge because Mr. T had been speaking with an officer during the time period alleged on the charge. The Court of Appeal agreed with the trial judge that this change would not cause a reasonable person to seek additional legal advice as it actually lessened the jeopardy he was faced with and he was provided with an opportunity to contact counsel a second time, which he declined.

The appeal was dismissed.

Also see: 2013 ABQB 724 (Trial)

Criminal Offence(s): Sexual Assault