COURT OF APPEAL FOR ONTARIO DATE: 20210720 DOCKET: C66508

Feldman, Tulloch and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Swetu Chheda Appellant

Counsel: Brian Snell, for the appellant Katie Doherty, for the respondent

Heard: February 2, 2021 by video conference

On appeal from the conviction entered on May 11, 2018 and the sentence imposed on February 1, 2019 by Justice Joseph F. Kenkel of the Ontario Court of Justice.

Tulloch J.A.:

A. Introduction

1This appeal arises from an arrest and prosecution stemming from Project Raphael, a sting operation conducted by the York Regional Police Services between 2014 and 2017. As part of Project Raphael, undercover police officers posted fictitious advertisements for escort services on a website called Backpage.ca. The objective was to target buyers interested in purchasing sexual services from minors. When persons responded to the ads, an undercover officer posing as the escort would disclose in the ensuing text conversation that “she” was underage. Individuals who continued the chat and arranged to purchase sexual services were directed to a hotel room to complete the transaction. Upon their arrival, they were placed under arrest.

2The appellant was one of the individuals who allegedly answered one of the Project Raphael advertisements. An individual responded to the advertisement and arranged to meet two fourteen-year-olds at a hotel room for the purpose of buying sexual services. The text message conversation between the officer and the individual confirmed the ages of the “girls” and the fact that they were in high school. The appellant arrived at the designated meeting spot, and police arrested him.

3Despite searching the appellant and his vehicle, police never located the phone that sent the text messages in question. Thus, the principal issue at trial was whether the Crown proved beyond a reasonable doubt that the appellant was the person who arranged by text messaging to meet the underage sex workers. The trial judge concluded that the appellant was guilty as charged, and convicted him of child luring, arrangement by telecommunication to commit a sexual offence against a child, and obtaining sexual services for consideration from a person under the age of eighteen, contrary to ss. 172.1, 172.2, and 286.1(2) of the Criminal Code, R.S.C. 1985, c. C-46, respectively.

4The appellant appeals his convictions. He argues that the trial judge came to unreasonable conclusions regarding the cell phone evidence that the appellant relied on at trial to raise a reasonable doubt. He asks this court to consider fresh evidence from a cell phone technology expert, which he submits casts doubt on the validity of the trial judge’s findings. The appellant also argues that the Supreme Court of Canada’s decision in R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3 entitles him to a new trial.

5For the reasons that follow, I would dismiss both of the appellant’s grounds of appeal against his convictions.

6Although the appellant indicated that he sought leave to appeal his sentence in his notice of appeal, it appears that this ground has been abandoned. As such, it is dismissed as abandoned.

B. Factual Overview

7As noted above, officers from the York Regional Police Service placed advertisements for sexual services on Backpage.ca as part of an undercover police operation targeting individuals who purchase sexual services from minors. The advertisements included various descriptions, including: “Tight, Brand NEW girl”; “18”; “sexy and YOUNG”; and “I also have a YOUNG FRIEND if your interested too.” They also included a photograph of a female wearing a t-shirt with a high school logo on the front.

8Detective Constable Cook received numerous text messages in response to the advertisements, including one that was allegedly sent by the appellant. Officers referred to the phone alleged to be associated with the appellant as the “Suspect Phone”.

9Between 4:07 p.m. and 8:43 p.m. on March 29, 2017, a person operating the Suspect Phone had the following conversation with D.C. Cook, who was undercover as “Michelle”:

Suspect Phone [16:07]: Hey Michelle please remove the picture with you school name from you ad Suspect Phone [16:11]: Can i see you for 1 hr D.C. Cook [17:50]: Why do u want that picture removed. It’s my shirt Suspect Phone [17:51]: People my find out where you are from. Just a suggestions. Its your picture. Can i see you for 1 hr Suspect Phone [18:02]: Can i see u for 1 hr Suspect Phone [18:18]: Just trying to watch your back are you upset with me. D.C. Cook [18:24]: I’m in high school. And some guys like young girls so that’s why. I get more guys that way Suspect Phone [18:24]: Ok Suspect Phone [18:25] So can i see u D.C. Cook [18:31]: What would you like I’m doing duos too. Just ask Suspect Phone [18:32] Can i decide when i see u both D.C. Cook [18:35]: She is busy so I need to know. No pressure. She is young like me too. And hot Suspect Phone [18:36]: k duo D.C. Cook [18:50]: You want the duo. It’s protected sex and bare blow job for $150. That ok Suspect Phone [18:51]: Sure and tip D.C. Cook [19:09]: You cool we are young? We are small and look Young too and some guys freak because we look too young Suspect Phone [19:09]: No worries D.C. Cook [19:11]: Ok. We both 14 but turning 15 this year. We look a bit older I think. Suspect Phone [19:09] K D.C. Cook [19:16]: Ok my friend is booking me a room soon so I have to wait a little bit. She is coming to get me now. Suspect Phone [19:17]: Ok

10The person messaging from the Suspect Phone was directed by D.C. Cook to a hotel in Markham. After sorting out the time and location of the meeting, the following discussion ensued:

D.C. Cook [20:07]: …Can you bring me a hot chocolate please? I’ll be good to you. Suspect Phone [20:08]: Ok what kind D.C. Cook [20:09]: Timmies plz Suspect Phone [20:33] K I have hot choclete…

11Ten minutes later, D.C. Cook texted the Suspect Phone that “she” was in room 111, to which the Suspect Phone replied, “Ill see you soon.” A few minutes later, the appellant arrived at room 111 carrying two hot chocolates in a tray. He was placed under arrest. A search incident to arrest revealed that he was carrying $300 in cash, keys for a Volvo and Toyota, and some personal effects. He did not have his wallet or a cell phone on him.

12The police found the appellant’s Toyota in the hotel parking lot. Police obtained a tele-warrant and searched the vehicle, looking for a cell phone. They located the appellant’s identification and $280 in cash in the front console. They also found a cell phone in a compartment in the driver’s side door (the “Seized Phone”). Detective Constable Salmon testified that the search was complete once he found the phone.

13After police obtained a warrant to search the Seized Phone, a Computer Forensic Examiner concluded that it was not the phone used to communicate with D.C. Cook. There was also no information to indicate that the phone was used to look at advertisements on Backpage.ca.

14Police obtained cell phone records from Freedom Mobile regarding the Seized Phone. Gord Kent, a Senior Security Specialist in the Lawful Access Department at Freedom Mobile, testified regarding those records. He advised that the cell phone was registered to the appellant’s wife, Jigna Chheda.

15Police never found the Suspect Phone. Lorne Ellison of Rogers Communications testified that the Suspect Phone was a pay-as-you-go phone operating on the Rogers Network. Rogers did not have any identifying registration information associated with the Suspect Phone.

16The Crown tendered records disclosing the use and location of the Seized Phone and the Suspect Phone on the date of the offence. Officer Orshansky testified about the various cell tower locations captured in the records to show the connection between the locations of the Suspect Phone and the Seized Phone. The locations on the day in question were as follows:

• Shortly before 4:00 p.m., both phones were connecting with towers in the Niagara Falls area.
• Around 5:41 p.m., both phones connected to cell towers in Stoney Creek.
• Around 6:30 p.m., both phones connected to cell towers in Hamilton.
• Around 6:35 p.m., both phones connect to cell towers in Burlington.
• Around 6:50 p.m., both phones connect to cell towers in Oakville.
• At 7:06 p.m., the Seized Phone connected to a tower at Stoney Creek. Whereas, at 7:09 p.m., the Suspect Phone connected to a cell tower in Etobicoke.
• The Suspect Phone connected to towers in Vaughan from 7:17 p.m. to 8:11 p.m. The Seized Phone also connected to towers in Vaughan starting at 7:37 p.m.
• By about 8:30 p.m., both phones were in the Markham area.

17The Crown also tendered a record of two communications between the Seized Phone and the Suspect Phone in September 2016.

C. Decision Below

18The principal issue at trial was whether the Crown had proven beyond a reasonable doubt that the person texting D.C. Cook from the Suspect Phone was the appellant.

19The trial judge found that the circumstantial evidence against the accused was strong: he showed up to the precise room of the precise hotel at the agreed-upon time with the agreed-upon amount of cash and two hot chocolates from Tim Hortons. The trial judge also noted that the two cell phones – the Suspect Phone and the Seized Phone – connected to the same cell towers around the same time in various locations between Niagara and Markham between 4:00 p.m. and 8:30 p.m. on the day of the offence.

20The only point of contradictory evidence that the trial judge was required to address was a single time in the day when the Suspect Phone and the Seized Phone were not traced to the same location. Again, around 7:00 p.m., the Seized Phone connected with a tower in Stoney Creek, while the Suspect Phone connected with a tower in Etobicoke. The trial judge noted that this was “the only time when the two phones appear to be in different locations.”

21Defence counsel argued that this dissymmetry in cell phone towers suggested that the phones were in separate locations, operated by different individuals. According to defence counsel, this was further evidence that the appellant was not the individual who sent the messages from the Suspect Phone.

22The Crown led two witnesses to explain the data from each of the phones. Both witnesses explained that while cell phones typically connect with the nearest tower, certain geographic features – and particularly the presence of a large body of water – could impact which tower a phone may connect to. The trial judge concluded that the one difference in location between the two phones was “an anomaly likely explained by the fact of proximity to Lake Ontario along the QEW highway.” Otherwise, the phones were generally in similar locations throughout the day, and the times and directions of both phones were “highly distinctive and inconsistent with the general travel of persons commuting to work or attending an event.”

23As such, the trial judge concluded that “[t]he evidence as a whole reasonably points to only one conclusion – Mr. Chheda was the ‘suspect’ person who arranged to purchase sex from two young girls.” The one anomalous dissymmetry in the cell phone data evidence “was explained and otherwise could not reasonably leave a reasonable doubt on the whole of the evidence.”

24With respect to the appellant’s belief in the age of the person he was meeting, the trial judge articulated the law as follows:

19On the two s. 172.1(2) child luring offences alleged in counts 1 and 2, the statutory presumption regarding belief in age has been struck down – R. v. Morrison, 2017 ONCA 582 leave granted December 14, 2017 [2017] SCCA No. 290. In this case the Crown must prove that the accused communicated with a person under the age of 16 years for the purpose of facilitating an offence under s. 286.1(2) (child prostitution) with respect to that person. The accused is required to take reasonable steps to ascertain the age of the person – s. 172.1(4). The s. 286.1(2) child prostitution offence referred to in count 2 also contains a reasonable steps restriction in s. 150.1(5). With respect to counts 4 and 5 there is a reasonable steps requirement in s. 172.2.

25Ultimately, the trial judge found that the evidence showed the appellant “believed the girls were 14 and took no further steps in that regard because he was unconcerned with their age.” In so doing, he cited the following evidence: (i) the appellant sought to purchase sex from the youngest permissible age on the website he used; (ii) he was told over text message that he was meeting two fourteen-year-old girls in high school and he did not question the statement; (iii) he plainly believed he was speaking to a young girl of high school age as one of his messages counselled her not to post a photo with her high school logo on her t-shirt to protect her privacy; and (iv) he agreed to wait until someone other than the girls booked a room, which was an indication that they were minors since they were not old enough to book a room themselves.

26Considering all the evidence, the trial judge concluded that the Crown had proved all charges beyond a reasonable doubt.

D. Issues

27This appeal raises two issues. The first issue concerns the trial judge’s treatment of the cell phone tower data. On this front, the appellant seeks to adduce fresh evidence concerning cell phone tower technology. The second issue concerns whether the Supreme Court’s decision in Morrison, and specifically its effect on the law around mistaken belief in age, entitles the appellant to a new trial.

E. Issue One: The Cell Phone Tower Data

(1) Positions of the Parties

28The appellant takes issue with the trial judge’s finding that “the Crown has proved the tower selection by the Chheda Seized Phone at 1906 is an anomaly likely explained by the fact of proximity to Lake Ontario along the QEW highway.” The appellant submits that this finding is unsupported by the evidence, and the trial judge could not reach this conclusion without speculation. Further, the appellant submits that the trial judge erred in law by taking judicial notice about the operation of cell towers to ground the above-noted conclusion.

29The appellant also seeks to adduce fresh evidence from an expert in cell phone technology and the operation of cell phone towers. The expert came to the following conclusion about the impugned cell phone tower data:

1. It was “virtually impossible” that both phones could have been close to the Stoney Creek tower in that time frame;
2. It was “virtually impossible” that both phones could have been close to the Etobicoke tower in that time frame; and
3. If both phones had an unobstructed view of Lake Ontario, the possibility of them being together is “slightly more plausible”, but was still at the level of being “virtually impossible”.

30The appellant argues that this evidence is clearly relevant to a key issue, the expert is credible, and it could have left the trier of fact with a reasonable doubt. He further submits that the due diligence requirement should not prevent this evidence from being admitted for two reasons: (i) trial counsel could not have known that the trial judge would come to a conclusion about cell phone data that was not based on the testimony of the phone representatives; and (ii) due diligence is not determinative in a criminal case, particularly where the quality of fresh evidence is high.

31For its part, the respondent argues that the passage the appellant complains of discloses no error. First, the respondent submits that the trial judge’s conclusion was available to him based on the trial record, not judicial notice. Second, the respondent points out that the trial judge’s reasons on this point must be read in context: the one anomalous transmission cited by the defence could not reasonably leave the trial judge with a doubt based on the totality of the evidence.

32With respect to the fresh evidence application, the respondent argues that the evidence the appellant seeks to adduce is insufficiently cogent to warrant its admission at this stage in the proceedings. The respondent further submits that the fresh evidence could have been tendered at trial, but counsel failed to exercise due diligence.

(2) Analysis

33I agree with the respondent that the trial judge did not err in his treatment of the cell phone tower evidence. I would also dismiss the fresh evidence application.

34First, the trial judge’s finding with respect to the anomaly was grounded in the evidence. Two witnesses from cell phone companies testified about the cell tower data in this case: Lorne Ellison of Rogers’ Corporate Security Services, and Gord Kent, the Senior Security Specialist in the Lawful Access Department at Freedom Mobile. The witnesses confirmed that cell phones generally connect to the cell tower that is closest in physical proximity, because that tower usually has the strongest signal. The witnesses also testified about exceptions to this general rule. For example, Ellison noted that: “tall buildings, high hills and large bodies of water…may interfere with the line of site going from the phone to the tower in which case if there was some type of interference, it would go to the next strongest tower.” Similarly, Kent testified that: “There are exceptions to that rule like large bodies of water, large physical structures, elevation, topography, et cetera.” These comments grounded the trial judge’s conclusion that the anomaly was “likely explained by the fact of proximity to Lake Ontario along the QEW highway.” It follows that the trial judge did not improperly take judicial notice. His conclusion was available based on the evidence that was called before him.

35Second, the trial judge considered and rejected defence counsel’s argument that he should be left with a reasonable doubt regarding whether the appellant operated the Suspect Phone because of the different cell tower data for each phone at approximately 7:00 p.m. It was within his discretion, as the trier of fact, to decline to draw the inference suggested by the defence.

36Third, the anomaly in the cell phone tower data was just that – an anomaly. The cell phone records otherwise show that the devices had the same pattern of movement through several geographic areas that was sustained over the course of several hours. Furthermore, when it was clear from the evidence that the phones were together – for example, between 4:00 p.m. and 6:00 p.m. – it is undisputable that the Suspect Phone knew the person on the other end was a young high school girl. It was therefore completely reasonable on this record for the trial judge to conclude that the irregularity in the data did not raise a reasonable doubt when the data was viewed as a whole.

37Fourth, even with the anomaly in the cell phone records, the trial judge was not left with a reasonable doubt about the appellant’s identity based on the strong circumstantial case mounted by the Crown. He determined that the Crown had met its onus based on the totality of the evidence, including:

a. With the exception of the anomaly, the cell phone records disclosed “remarkable similarity in location and direction of travel for both phones on” the date of the offence – both before and after the anomalous transmission. b. The phone records also disclosed prior direct communications between the Suspect Phone and the Seized Phone. c. Once the Suspect Phone was communicating with the undercover officer, there were few messages sent from the Seized Phone. d. Within several minutes of being provided the hotel name, the appellant arrived at the hotel. e. Within minutes of the appellant advising that he had arrived at the hotel, he appeared outside the door of the specific hotel room that D.C. Cook had told the person operating the Suspect Phone to go to. f. The appellant was holding two Tim Horton’s hot chocolates, as requested by D.C. Cook in his messages to the Suspect Phone. g. The appellant had $300 cash on his person, and D.C. Cook had proposed a price of $150 for a half hour “duo” in his texts with the Suspect Phone.

38The anomaly in the cell tower data did not, and could not, meaningfully detract from the strength of the Crown’s case against the appellant. I see no error in the manner the trial judge considered this evidence.

39Additionally, the fresh evidence application must be dismissed.

40First, it suffers from a lack of due diligence. Although the due diligence requirement is not applied as strictly in the criminal context, the cell phone tower data was a live issue at trial, and it is not in the interests of finality to revisit this evidence. The evidence could have, and should have, been adduced at trial.

41Second, the fresh evidence cannot reasonably be expected to have affected the result. The trial judge specifically turned his mind to the anomaly in the cell phone tower data, and ultimately concluded that it would not raise a reasonable doubt. I accept his conclusion in this regard. Moreover, the proposed fresh evidence does not contradict the limited observation of the cell phone company representatives that the trial judge ultimately relied upon: namely, that a body of water could disrupt typical patterns of connection between phones and cell towers. As well, I agree with the respondent that assessing location based on cell phone tower evidence will always be a matter of probabilities, not certainties.

42I would dismiss this ground of appeal.

F. Issue Two: Mistaken Belief in Age Post-Morrison

(1) Overview of the Supreme Court’s Decision in Morrison

43Similar to this case, Morrison arose from an undercover police operation in which a police officer, posing as a fourteen-year-old girl named “Mia”, responded to an advertisement posted by Mr. Morrison seeking escort services. In a conversation that took place over a period of more than two months, Mr. Morrison invited “Mia” to touch herself sexually and proposed they meet to engage in sexual activity. Mr. Morrison was subsequently charged with child luring under s. 172.1(1)(b) of the Criminal Code, which is the same provision at issue in this case. That section provides:

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; or

44Notably, s. 172.1(3) contains a presumption in the event that a person who the accused communicated with represents themselves as being underage (the “Representation Presumption”):

172.1 (3) Evidence that the person referred to in paragraph (1)(a), (b) or (c) was represented to the accused as being under the age of eighteen years, sixteen years or fourteen years, as the case may be, is, in the absence of evidence to the contrary, proof that the accused believed that the person was under that age.

45Finally, s. 172.1(4) contains the following limit on the availability of the defence of mistaken belief in age (the “Reasonable Steps Requirement”):

172.1(4) It is not a defence to a charge under paragraph (1)(a), (b) or (c) that the accused believed that the person referred to in that paragraph was at least eighteen years of age, sixteen years or fourteen years of age, as the case may be, unless the accused took reasonable steps to ascertain the age of the person.

46At trial, Mr. Morrison challenged the constitutionality of ss. 172.1(3), (4) and 172.1(2)(a). Only ss. 172.1(3) and (4) are relevant for the purpose of this appeal as s. 172.1(2)(a) dealt with the mandatory minimum punishment associated with the offence under s. 172.1.

47The trial judge found that the Representation Presumption under s. 172.1(3) violated Mr. Morrison’s right to be presumed innocent under s. 11(d) of the Charter, but upheld the Reasonable Steps Requirement under s. 172.1(4) as constitutionally sound: see R. v. Morrison, 2015 ONCJ 598, 341 C.R.R. (2d) 25. Critically, the trial judge took the view that s. 172.1(1)(b) contemplated two independent pathways to conviction: the Crown had to establish beyond a reasonable doubt that the accused either: (1) believed the person with whom he was communicating was under the age of sixteen or (2) failed to take reasonable steps to ascertain the age of the person with whom he was communicating. The trial judge convicted Mr. Morrison on the latter pathway, that is, he failed to take reasonable steps to ascertain “Mia’s” age, despite having a reasonable doubt that Mr. Morrison had a subjective belief that “Mia” was underage.

48The Court of Appeal for Ontario upheld each of the trial judge’s conclusions on the constitutional questions, and dismissed the appeal: see R. v. Morrison, 2017 ONCA 582, 350 C.C.C. (3d) 161. The court acknowledged that the Reasonable Steps Requirement added an “objective dimension” to the fault requirement for child luring but it was not one of those exceptional offences that requires a purely subjective standard of fault: at para. 95.

49The Crown sought and was granted leave to appeal to the Supreme Court. The Crown took issue with the lower courts striking down the Representation Presumption under s. 172.1(3), and the mandatory minimum under s. 172.1(2)(a), as unconstitutional. Mr. Morrison cross-appealed, submitting that the Reasonable Steps Requirement under s. 172.1(4) was unconstitutional since it allowed for a conviction on the basis of objective fault.

50The Supreme Court heard the appeal on May 24, 2018, approximately two weeks after the appellant in this case was tried and convicted of the child luring offences, on May 11, 2018.

51Just under a year later, on May 15, 2019, the Supreme Court released its decision in Morrison. The majority allowed the appeal and cross appeal in part. The majority concluded that the Representation Presumption under s. 172.1(3) violated s. 11(d) and could not be saved by s. 1: paras. 51-73. The majority also concluded that the Reasonable Steps Requirement under s. 172.1(4) was constitutionally valid: paras. 74-80.

52Crucially however, the Supreme Court parted ways with the lower courts in one key respect: its interpretation of the Reasonable Steps Requirement under s. 172.1(4). Specifically, it held that a failure to take reasonable steps to ascertain a person’s age is not an independent pathway to conviction in the absence of the Representation Presumption under s. 172.1(3); it merely limits the availability of the defence of mistaken belief: para. 80. Instead, there is only one pathway to conviction available: the Crown must prove beyond a reasonable doubt that an accused subjectively believed that the person they were communicating with was underage in order to attract criminal liability: para. 83. Negligence or recklessness with regard to the other person’s age will not suffice: para. 83.

53The Supreme Court further clarified that if the Crown proves beyond a reasonable doubt that the accused did not take reasonable steps, then the trier of fact is precluded from considering the defence that the accused believed the other person to be of legal age: para. 83.

54With that in mind, I return to the issues at hand.

(2) Positions of the Parties

55The appellant argues that he is entitled to a new trial because Morrison changed the legal landscape concerning the mens rea that a Crown must prove to ground a child luring conviction under s. 172.1 of the Criminal Code. The appellant submits that there was ample reason to doubt the appellant’s subjective belief in the “girls’” age. Moreover, he argues that the trial judge’s conclusion may not stand absent the consideration that the appellant did not take reasonable steps to ascertain the age of the “girls” he was meeting.

56The respondent argues that the trial judge did not follow the line of reasoning prohibited by Morrison: namely, to jump from a lack of reasonable steps to a conclusion that the Crown had met its onus to prove that the appellant believed D.C. Cook was under sixteen. Instead, according to the respondent, the trial judge concluded that the Crown proved beyond a reasonable doubt that the appellant believed the “girls” were underage; a finding that is sufficient to ground a conviction notwithstanding in accordance with the Supreme Court’s decision in Morrison.

(3) Analysis

57As noted above, the trial judge did not have the benefit of the Supreme Court’s decision in Morrison, as it was released nearly a year after the appellant’s guilty verdict. But despite the shift in the court’s interpretation of the child luring provisions, the verdict in this case nonetheless remains on steady ground. I see no material legal error committed by the trial judge in convicting the appellant.

58After concluding that the appellant was indeed the individual messaging D.C. Cook from the Suspect Phone, the trial judge referred to the following evidence to support his conclusion that the appellant believed the person from whom he was arranging to purchase sexual services was fourteen:

a. The appellant “sought to purchase sex from a person with the youngest possible age permitted on the website he used”; b. The appellant “was told the person he was making arrangements with and her friend were 14 years of age and he didn’t question that statement”; c. The appellant “plainly believed that he was speaking to a young girl of high school age as he counselled her not to post a photo with her high school logo on the t-shirt to protect her privacy”; and d. The appellant “agreed to wait until another person booked a room for the girls, another indication that they were underage as they could not book their own room.”

59The trial judge then went on to conclude that: “The evidence shows Mr. Chheda believed the girls were 14 and took no further steps in that regard because he was unconcerned with their age.”

60In my view, it is clear that the trial judge concluded beyond a reasonable doubt on the facts presented that the appellant subjectively believed that the “girls” were underage. The above-noted evidence, viewed in its totality, supports a finding of subjective belief, not mere recklessness or negligence.

61The reference to the appellant not taking reasonable steps comes at the very end of this analysis and presents as a peripheral consideration, and not a fundamental factor in making the determination. This makes sense: whether the appellant took reasonable steps to ascertain the age of the person with whom he was communicating was not a live issue at trial. The appellant argued that the trial judge should be left with a reasonable doubt that he was the person operating the Suspect Phone. He did not additionally argue that he lacked the requisite belief that the person he was interacting with was under sixteen.

62I agree with the respondent that the trial judge’s reasons for judgment in this case do not support a conclusion that he reasoned backwards from the lack of any evidence of reasonable steps by the appellant to conclude that the Crown had met its onus. When viewed as a whole, the record is clear: the trial judge followed the only permissible pathway to conviction – proof beyond a reasonable doubt that the accused believed the other person was underage. As such, the trial judge’s finding of guilt complies with the present state of the law in the wake of the Supreme Court’s decision in Morrison. As such, I would decline to interfere with the trial judge’s decision on that basis.

63I would dismiss this ground of appeal.

G. Conclusion and Disposition

64I would dismiss the appellant’s appeal of his conviction. I would also dismiss his sentence appeal as abandoned.