WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18..

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mould, 2020 ONCA 78

DATE: 20200131

DOCKET: C65581

Watt, Tulloch and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Russell Craig Mould

Appellant

Peter Lindsay and Hamna Anwar, for the appellants

Vallery Bayly, for the respondent

Heard and released orally: January 23, 2020

On appeal from the conviction entered on April 28, 2017 and the sentence imposed on July 4, 2018 by Justice Esther Rosenberg of the Ontario Court of Justice.

REASONS FOR DECISION

1After a trial before a judge of the Ontario Court of Justice conducted substantially on the basis of an Agreed Statement of Facts, the appellant was convicted of a single count of child luring under s. 172.1(1)(b) of the Criminal Code. He was sentenced to a term of imprisonment of 168 days to be followed by probation for a period of 1 year. He appeals both conviction and sentence.

The Background Facts

2Using the name “craig”, the appellant, who was then about 53 year old, posted an advertisement on the Casual Encounters section of Craigslist. He sought someone under age 28 or 22, a male. The content of the ad left no doubt about what “craig” sought.

3A police officer browsing this section of Craigslist began an investigation by responding to the ad as “austin” and providing a cell phone number where text messages could be received. An exchange of texts began. Within about two weeks of the response by “craig”, police determined that the initial ad and response had originated from an internet protocol address registered to the appellant and to his business.

4After several further electronic conversations, “craig” and “austin” agreed to meet at a coffee shop. When the appellant attended, he was arrested. A cell phone in his possession contained a text message exchange about the meeting.

5The appellant testified at his trial. He denied any interest in sexual encounters with minors, preferring instead men between the ages of 20 and 30. He claimed that the content of his collocutor’s communications caused him to realize that he was not, in fact, communicating, as “austin” insisted, with a 14 year old. He concluded that he was being deceived or “played” by someone with an agenda. Annoyed, he agreed to the coffee shop meeting so that he could enjoy a “gotcha” moment.

The Appeal from Conviction

6On the appeal from conviction, the appellant contends that the trial judge erred:

i. by reaching her conclusion that guilt had been proven beyond a reasonable doubt by illogical reasoning;

ii. by reversing the burden of proof; and

iii. by misapprehending aspects of the evidence.

7Whether these grounds are considered individually or cumulatively, we are satisfied that the appeal from conviction fails.

8First, we are not persuaded that the finding of guilt, in whole or in part, is grounded on illogical reasoning.

9The trial judge drew a logical inference that was within the field of inferences open to her on the whole of the evidence adduced at trial. She was satisfied, as was her entitlement, that the context and contents of the text messages were inconsistent with the appellant’s claim of annoyance and desire for a “gotcha” moment. Further, the context and content of these messages also put the lie to the appellant’s claim that he did not actually believe that his collocutor was 14 years old, and that he was not interested in having sexual contact with someone of that age, in particular, his collocutor.

10Second, when the Reasons for Judgment are taken as a whole, we are not persuaded that the trial judge’s words “I would simply have to take Mr. Mould’s word for it” amounted to an impermissible reversal of the burden of proof. We take it to be neither more nor less than an observation that the appellant’s claim stood on its own and was directly contradicted by other evidence, in particular, the context, content and prolonged nature of the appellant’s communications with “austin”. The trial judge expressly articulated the W.(D.) framework; examined the appellant’s evidence in the context of the rest of the evidence; rejected it and found that it did not raise a reasonable doubt about his guilt.

11The final point concerns what is said to be a misapprehension of two aspects of the evidence:

i. that, in another text exchange with another person, the appellant claimed no interest in sexual activity with persons under 18 years old; and

ii. that on search of the appellant’s home and computers, police found no evidence of child pornography or other sexual conversations with minors.

12In our view, the trial judge was entitled to give this evidence no weight in her analysis. In this respect, we observe that the preliminary crime of which the appellant was convicted was complete in advance of the exchange with the other collocutor. That other indicia which may have assisted in proof of the prosecution’s case were not found was assigned no weight was a conclusion reasonably open to the trial judge on this record.

13For these reasons, the appeal from conviction is dismissed.

The Appeal from Sentence

14The appeal from sentence was not pursued in oral argument. The appellant relied on his written submissions in support of that appeal. We are satisfied that the sentence imposed was fit.

Disposition

15The appeal from conviction is dismissed. Leave to appeal sentence is granted, but the appeal from sentence is dismissed, except that the victim surcharge imposed by the trial judge is set aside.