COURT OF APPEAL FOR ONTARIO
Fairburn A.C.J.O., Coroza J.A. and Baltman J. (ad hoc)
BETWEEN
His Majesty the King
Appellant
and
W.W.
Respondent
Vallery Bayly, for the appellant
Jeffery Couse, for the respondent
Heard: September 25, 2024
On appeal from the acquittal entered by Justice Michael D. McArthur of the Superior Court of Justice, dated January 9, 2023, with reasons reported at 2023 ONSC 200.
This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.
A. Overview
1At all relevant times in this case, the respondent was a 52-year-old man, and the complainant was a 15-year-old girl. The two got to know each other because the respondent was a friend and co-worker of the 15-year-old’s father. The 15-year-old loved to ride horses and, as it turned out, the respondent had a horse. It was stabled over an hour from where the child lived. The respondent invited her to help him train and care for his horse, and she happily agreed. This necessitated quite a bit of contact between them, including communicating online to make plans to see the horse and to coordinate the long car rides to and from the barn.
2According to the complainant, not long after the arrangement commenced, the respondent started saying sexually charged things to her as they drove back and forth between her home and the barn. He also started sending her sexually charged electronic messages, including two videos, one of a man masturbating and the other of a man and woman engaged in sexual intercourse.
3As well, the complainant testified that on one occasion the respondent asked her to fellate him. On another occasion, she said that the respondent sexually touched her in her father’s barn.
4Eventually the complainant disclosed everything to her father which resulted in three charges: (i) sexual assault pursuant to s. 271 of the Criminal Code, R.S.C. 1985, c. C-46; (ii) invitation to sexual touching pursuant to s. 152; and (iii) transmitting sexually explicit material to a person the respondent believed to be under the age of 16 years for the purpose of committing either sexual assault (s. 271) or exposing one’s genital organs to a person under 16 years of age (s. 173(2)), pursuant to s. 171.1(1)(b).
5The trial judge acquitted the respondent on each count.
6As for the sexual assault count, the trial judge had a reasonable doubt about whether the event occurred. He acquitted.
7As for the invitation to sexual touching count, the trial judge had a reasonable doubt about the mens rea for the offence because, in his view, the request for a “blow job”, however “ill-advised and repugnant”, may have been only “jokingly” made. He acquitted.
8As for the transmitting sexually explicit material count, the trial judge accepted that the respondent sent the masturbation and sexual intercourse videos to a child he knew to be under the age of 16 years at the time that they were sent and that they constituted sexually explicit material. Even so, he had a reasonable doubt about the mens rea for the offence. This is because, as the trial judge explained: (i) the Crown failed to prove beyond a reasonable doubt that it was the respondent in the masturbation video; and (ii) the sending of the videos may have just reflected “continued intentional flirtatious activity” on the respondent’s part, which in the trial judge’s view, necessarily fell short of the intention required to make out the offence. He acquitted.
9This is a Crown appeal only in relation to the transmission of sexually explicit material count. For the reasons that follow, I would allow the appeal.
B. Factual Background
10As the Crown appeals on a narrow point and only in relation to one of the counts, I will focus on the facts relevant to that count.
11There is no dispute that the complainant was 15 years of age at the time of the alleged conduct or that the respondent knew that she was under 16 years of age.
12Nor is there any dispute that the respondent asked the complainant if she wanted to help him train one of his horses.
13The respondent and complainant communicated in various ways.
14From time-to-time he would drive her back and forth to the barn, which was a long distance from her home. During those drives, he would speak to her about sexual matters, including: (i) commenting upon the complainant’s looks; (ii) telling her that her “ass” looked good in what she was wearing; and (iii) describing his sexual encounters with others, including that one of his previous girlfriends was “very flexible” and a “squirter”. The respondent also asked the 15-year-old if she was a virgin, what types of sexual encounters she had engaged in with her “ex”, and if she was also a “squirter”. She testified to being embarrassed by these questions because she had never been involved in this type of conversation before, and she just stared out the window of the vehicle. She testified further that she made the assumption that the respondent was “trying to convince [her] to do things with him.” She did not think he was joking and she was uncomfortable.
15The respondent would also communicate with the complainant through text messages and with the use of a social media platform known as Snapchat. The complainant testified that Snapchat is a social media platform where “you can send pictures, videos and messages that disappear after a short amount of time.”
16Accordingly, many of the messages, videos, and pictures that the respondent sent to the complainant were not retrieved by the police. What they did have were photos of certain Snapchat messages that the complainant’s boyfriend took of her phone, at the time that those messages still appeared.
17Those pictures, about 10 percent of the communications that the complainant received from the respondent, were filed as exhibits at trial and the complainant testified about their content. Some of those messages were telling and carried a clear sexual component:
“I’ll pay for Sonny [the respondent’s horse], you just put your cute ass on him, ok? Cute little”
After the complainant expressed concern that her mother would not drive her to the barn, the respondent said: “I’ll bring you don’t be silly … I’ll bill you accordingly [grinning emoji] … Besides you make me look good being in the truck!”
“Your [sic] very easy on the eyes!”
“So cutie will you do any flirting with me?”
“I would love to nibble on that perfect ass. Hell … that whole body”
[After the complainant told the respondent her mother grounded her], he responded: “She needs a good stiff dick to cheer her up!”
“I’d have my lips all over if you let me”
“I may pop Abomey [a boner] if I see you in spandex”
“Those spandex would be nice to see”.
18At one point, the respondent sent a Snapchat message to the 15-year-old that he would “love to see what [he was] missing out on” and he “promise[d] not to screenshot them.” The complainant testified that this was in reference to his request that she send him naked pictures of herself on Snapchat. She also said that the respondent would ask to see her without clothes when they were together in person. She testified that she ultimately sent him a picture of her from the waist up, only in a nude coloured bra. According to the complainant, his response was something along the lines of: “[w]ow, you are so gorgeous”.
19The respondent eventually sent the complainant some photos and videos. It is the videos that received the most attention in the trial judge’s reasons, as they were what was said to constitute the sexually explicit material sent to the complainant.
20While the complainant could not preserve the videos, as they arrived by way of Snapchat, the trial judge accepted as a fact that the respondent sent them to her. One of the videos was of a man masturbating. The complainant believed that it was the respondent masturbating, although the trial judge had a doubt about who was in the video. She testified that immediately following receipt of that video, she received a communication from the respondent saying, “you should save that.” That communication was filed as an exhibit at trial.
21On a separate occasion, the respondent sent the complainant a video of what she believed to be him having sexual intercourse with a woman. The complainant could see that the woman had a tattoo on her hip that matched the tattoo in a picture that the respondent had shown her of his naked ex-girlfriend: “we were in the truck and he showed me a naked picture of a girl he claimed to be his ex-girlfriend [and] she had the same tattoo as this person.” Again, while the trial judge accepted that the respondent sent the video to the complainant and that it was of a man and woman having sexual intercourse, just like the masturbation video, he had a doubt about whether the respondent was the male party in the video.
C. The Trial Judge’s Reasons for Judgment
22The trial judge reviewed the evidence. He found as a fact that the respondent knew that the complainant was 14 or 15 years of age at the relevant time. He also found as a fact — “beyond any shadow of a doubt” — that the respondent engaged in the electronic communications with the complainant. He also fully rejected the respondent’s suggestion that he had no memory of those messages as defying any “rational or sensible explanation.” And he found beyond a reasonable doubt that the respondent sent the videos to the complainant and that the videos constituted sexually explicit material within the meaning of s. 171.1(5) of the Criminal Code.
23Therefore, to be clear, the trial judge was satisfied beyond a reasonable doubt that the Crown had proven that the respondent had:
(i) intentionally transmitted sexually explicit material;
(ii) to a person who he believed to be (and was) under the age of 16 years.
24That left the mens rea for the offence to be determined: whether the respondent transmitted the sexually explicit material “for the purpose of facilitating the commission of an [enumerated] offence”. As reflected on the indictment, the enumerated offences that the respondent was said to be intending to facilitate were sexual assault (s. 271) and exposing one’s genital organs to a person who is under 16 years of age (s. 273(2)).
25As I will come back to, the trial judge correctly noted that, in this context, the word “facilitate” means “to help, to bring about or make easier or more probable” and that the Crown did not have to prove the intention to actually commit the enumerated specified offences.
26He then went on to conclude that, as it related to the s. 273(2) enumerated offence, the respondent could not have intended to facilitate its commission because the Crown had failed to prove beyond a reasonable doubt the identity the person whose genital organs were displayed in the masturbation video. As he noted, the “particular section refers to the exposure of ‘his genital organs’ and not simply any depiction of genital organs.”
27For purposes of explaining why the Crown had failed to prove the mens rea relating to the facilitation of the commission of a sexual assault, the trial judge appears to have focussed in on only the sexual intercourse video, the one of the man and woman with the tattoo having sex. He started by noting the obvious, that “such video was immediately disturbing and unwelcomed by [the complainant]”, but went on to note that the issue was whether the respondent had the necessary intention to make out the offence.
28To this end, the trial judge then went on to note that only 10 percent of the total messages between the respondent and complainant had been captured and that the “vast preponderance of the communications between them were unremarkable and would have involved the broad spectrum from casual to flirtatious.” The trial judge acknowledged that some of the messages had what was “sexual innuendo and could be evidence to support an intention by [the respondent] to invite or groom the complainant into sexual acts.” However, they could also support the simple conclusion that the respondent was merely “continuing to engage in flirtatious conduct and he was pushing the bounds of this with [the complainant].” The trial judge made note of the fact that both the complainant and respondent at points “specifically reference their flirting, its continuation and their respective desires to do so concurrently in the same message.” To the trial judge, there was an absence of any attempt on the respondent’s part to pressure the complainant, to control or manipulate her by fear or threats, or to even isolate her and no attempt to direct her to “not make mention to others.”
29Accordingly, the trial judge found that he could not “exclude the possibility that the one or both of the videos [were] part of the ongoing flirtatious conduct on the part of [the respondent] which nevertheless is in exceedingly poor taste and judgment.”
30The reasons acquitting the accused conclude with the observation that the trial judge was “unable to find that the continued intentional flirtatious activity by [the respondent] in relation to the videos was improbable” and that, despite rejecting the accused’s evidence, there remained “other evidence in relation to ongoing flirtations that the court cannot reject.”
D. Analysis
(1) Overview
31The trial judge concluded that the Crown had failed to prove the mens rea for the offence of transmitting sexually explicit material for two main reasons.
32With respect to the enumerated offence of exposing one’s genital organs to a person under 16 years of age, the trial judge held that the Crown could not prove the identity of the person in the videos. Therefore, according to the trial judge, the Crown could not show that the respondent sent the videos with the intention of facilitating the exposure of his own genital organs.
33With respect to the enumerated offence of sexual assault, the trial judge explained that he could not rule out the possibility that the respondent’s intention was merely to continue flirting with the 15-year-old child. While the trial judge recognized that the respondent’s intention to flirt with the child was inappropriate, he proceeded as if this finding necessarily precluded a finding that the mens rea for the crime had been proven. This is despite the fact that the trial judge never explained what he meant when he repeatedly used the terms: “flirt”, “flirting”, “flirty” and “flirtatious”.
34As I will explain, while the trial judge correctly stated the law governing the mens rea for this offence, it is evident from his application of the law to the facts that he misunderstood and misapplied that law in two ways.
35First, the trial judge erred in proceeding as if the Crown had to prove beyond a reasonable doubt that it was the respondent in the masturbation video. Second, without explaining what he meant by an intention to “flirt”, the trial judge erred in treating the flirting label as if it necessarily fell outside the mens rea for the crime.
(2) The mens rea for transmitting sexually explicit material
36Section 171.1(1)(b) is an inchoate crime that is essentially focussed upon the intention of the accused as he engages in what may be highly reprehensible, but not necessarily criminal, conduct. Transmitting sexually explicit material to a child is an example of such conduct.
37While there should be no dispute that sending sexually explicit material to a person who the accused believes to be less than 16 years of age is most objectionable, the real essence of the s. 171.1(1)(b) crime lies in what the accused’s intention was at the time that he sent that material to the child.
38This inchoate offence allows the criminal law to intervene to protect children before the harm arising from actual enumerated sexual offences occurs. As Doherty J.A. put it in R. v. Alicandro, 2009 ONCA 133, 95 O.R. (3d) 173, at para. 32, leave to appeal refused, [2009] S.C.C.A. No. 395, at para. 20:
By criminalizing conduct that is preparatory to the commission of the designated offences, Parliament has sought to protect the potential child victims of those designated crimes by allowing the criminal law to intervene before the actual harm caused by the commission, or even the attempted commission, of one of the designated offences occurs.
39This is not to suggest, however, that the inchoate offence captured by s. 171.1(1)(b) is harm-free. To the contrary, children targeted by adult predators are often harmed through a grooming process involving the transmission of sexually explicit material, a grooming process that readies them for the designated offences yet to occur, a grooming process that robs them of their childhood entitlement to sexual innocence.
40While there is no one definition of grooming, it is largely about gaining a child’s trust so as to lower their inhibitions when it comes to sexual interactions: R. v. Bertrand Marchand, 2023 SCC 26, 487 D.L.R. (4th) 201, at paras. 51-52. If hindsight has taught us anything, it is that children often become sexually victimized only after a long period of grooming that renders them more susceptible to later victimization. That susceptibility arises from “reducing their inhibitions; or by prurient discourse that exploits a young person’s curiosity, immaturity or precocious sexuality”: R. v. Legare, 2009 SCC 56, [2009] 3 S.C.R. 551, at para. 28.
41Section 171.1(1)(b) is clear as to the mens rea. The accused must transmit the sexually explicit material to a person who the accused believes is under 16 years of age, “for the purpose of facilitating the commission of an offence” (emphasis added) pursuant to an enumerated provision.
42The wording of s. 171.1(1)(b) tracks the language of the child luring offence found in s. 172.1, which makes it an offence to communicate with a person the accused believes to be of a certain age, also “for the purpose of facilitating the commission of an offence” (emphasis added) pursuant to an enumerated provision. The respondent acknowledges that the wording is the same in both provisions and that guidance as to its meaning can therefore be gleaned from how the child luring provisions have been interpreted.
43Just like in the child luring context, the Crown must prove beyond a reasonable doubt that the accused had the specific intention of facilitating the commission of at least one of the enumerated offences: Legare, at para. 32; Alicandro, at para. 31. Here, the alleged enumerated offences are sexual assault (s. 271) and exposing one’s genital organs to a person under 16 years of age (s. 173(2)).
44While the accused must have a specific intention to facilitate the commission of one of the enumerated offences, the enumerated offences need not be objectively possible and the accused need not commit one of the enumerated offences or even have an intention to commit one of them: R. v. Bowers, 2022 ONCA 852, at paras. 15-17; Alicandro, at para. 32; R. v. McSween, 2020 ONCA 343, 151 O.R. (3d) 38, at paras. 104-107, leave to appeal refused, [2020] S.C.C.A. No. 285; and Legare, at paras. 25, 42.
45Notably, one can facilitate the commission of an enumerated offence by taking steps to help bring it about or by making it easier or more probable to commit: Legare, at para. 28. Therefore, in the context of this case, the Crown could prove the mens rea by showing that the respondent sent the sexually explicit material with the intention of helping to bring about a sexual assault or indecent exposure, or to make either of those offences easier or more probable to commit.
46One way to help bring about or make easier or more probable an enumerated offence is by grooming a young person or by reducing their inhibitions: Legare, at para. 28. Grooming can be achieved in different ways, including by engaging in sexual discourse with a child. From time-to-time, that sexual discourse may be framed as a “joke”, which can serve to normalize the conduct in the child’s mind and permit the accused to try and safely test the waters to determine if the child is yet susceptible to the commission of the enumerated offence: McSween, at para. 107. This is anything but a joke.
(3) The trial judge erred in how he approached the mens rea for this crime
(a) Overview
47Before delving into the mens rea for this offence, the trial judge explained why he was satisfied beyond a reasonable doubt that each of the other essential elements of the crime had been proven. For instance, and as before, he accepted the respondent’s evidence that he knew the complainant was “14 or 15 years of age at the relevant time” (she was actually 15 years of age at all material times). He also rejected the respondent’s evidence that he could not recall having sent the electronic communications to the complainant as a complete fabrication and concluded that all of the messages had been sent by the respondent to the complainant. The trial judge also concluded that the respondent had sent the child the masturbation and sexual intercourse videos and that those videos met the definition of “sexually explicit material” for purposes of s. 171.1(5) of the Criminal Code.
48That left only the mens rea to address. The trial judge generally articulated the law correctly in relation to this element of the offence:
The remaining essential element that the Crown must prove is that [the respondent’s] purpose in sending the videos must be to facilitate the commission of one of the designated offences with the complainant, that is, to commit a sexual assault (s. 271 Criminal Code) upon [the complainant] or commit an indecent act of exposing his genital organs to a person under 16 years of age for a sexual purpose (s. 173(2) Criminal Code).
The term ‘facilitate’ includes to help, to bring about or to make easier or more probable. The Crown does not have to prove that [the respondent] intended to carry out the specific offences, rather, the Crown need only prove that [the respondent] did so intending to facilitate the commission of the enumerated offences.
49There is no legal error in how the trial judge stated the law relating to the mens rea for this crime. As I will explain, the difficulty is in how he applied it.
50I see two overarching legal errors in how the law was applied. Specifically, the trial judge erred: (i) by conflating the elements of the enumerated offence under s. 173(2) into the mens rea for transmitting sexually explicit material; and (ii) by getting distracted by whether the respondent’s intention was to “flirt” with the child, as if an intention to flirt – a problematic term in and of itself – necessarily precluded an intention to facilitate the commission of the enumerated offences. I will deal with the issues in this order.
(b) The Crown did not need to prove that it was the respondent in the masturbation video
51Having recounted the law correctly, the trial judge immediately turned his attention to the enumerated offence under s. 173(2) of the Criminal Code. It is here that it first becomes clear that, despite having summarized the law on the mens rea correctly, respectfully, the trial judge misapplied that law.
52In relation to the specific intention to facilitate the s. 173(2) offence, the trial judge said as follows:
Firstly, as to the offence under s. 173(2) of the Criminal Code and, as found above, the Crown has not proven beyond a reasonable doubt that the identity of the person(s) depicted in the video. The particular section refers to exposure of ‘his genital organs’ and not simply any depiction of genital organs.
53Having arrived at that conclusion, and made that observation, the trial judge then moved along to consider whether the respondent had the intention to facilitate the commission of a sexual assault.
54While the trial judge is right that the s. 173(2) offence refers to a person exposing “his or her genital organs to a person who is under the age of 16 years”, the respondent was not being tried for having exposed his genital organs to the child. Indeed, if the Crown could have proven that it was the respondent in the videos, especially the male masturbation video, he probably would have been charged with the substantive crime of exposure under s. 173(2). Instead, he was charged with sending sexually explicit material to a person he knew was under 16 years of age for the purpose of facilitating a later enumerated offence, one of which may have been exposure pursuant to s. 173(2).
55Crown counsel did not need to prove that it was the respondent in the videos he sent to the child. Nor did the Crown even have to prove that the respondent had the intention to personally commit those offences later on. The Crown only had to prove beyond a reasonable doubt that, when the respondent sent the videos to the child, he had the specific intention of facilitating at least one of the two enumerated offences. In other words, that his purpose was to facilitate the child being the subject of a sexual assault or exposure at some later date, facilitation that could be achieved through the breaking down of barriers with the child and the reducing of her inhibitions so as to make it easier or more probable that an enumerated offence could be committed.
56Therefore, the first error of law pertains to the insistence upon proof of the respondent’s identity in the masturbation video to meet the mens rea for facilitating the commission of the s. 173(2) exposure offence.
(c) Labeling the intention as “to flirt” did not resolve the mens rea
57As to the second error, it relates to the labelling of the respondent’s intention as “to flirt”.
58The reasons for judgment reflect a certain focus upon whether it was possible that the respondent was merely involved in ongoing, intentionally flirtatious conduct with the child. The reasons are riddled with references to this idea. For instance, consider the following references in the reasons for judgment to the words flirt, flirting, flirty, and flirtatious:
(i) the complainant testified that the conversations between the respondent and complainant were “casual for the first two to three weeks, after which the messages from [him] became flirty”.
(ii) quoting from some of what the respondent wrote to the complainant, “[m]iss the flirting already”, “[s]o cutie will you do any flirting with me”, “I’m still gonna flirt but on a mild note, ok?”
(iii) there were “numerous examples and references to them flirting”;
(iv) “their communications changed from casual to flirty”;
(v) some of the communications in the filed exhibits are “expressly flirtatious”;
(vi) the messages reflected a “broad spectrum from casual to flirtatious”;
(vii) the electronic “messages can support an inference that this is consistent with [the respondent] continuing to engage in flirtatious conduct”;
(viii) “both [the respondent] and the complainant specifically reference their flirting”;
(ix) “the videos are part of the ongoing flirtatious conduct on the part of the [respondent]”;
(x) “the continued intentional flirtatious activity by [the respondent]”; and
(xi) “in relation to ongoing flirtatious activity by [the respondent]”. [Emphasis added.]
59In the end, the trial judge concluded that he could not “exclude the possibility that one or both of the videos are part of ongoing flirtatious conduct on the part of [the respondent] which nevertheless is in exceedingly poor taste and judgment.” The trial judge then concluded that he was “unable to find that continued flirtatious activity by [the respondent] in relation to the videos was improbable” and therefore, he had a reasonable doubt as to the mens rea for the offence.
60In my view, there are two problems with the repeated use of these terms – flirt, flirting, flirty, flirtatious – in the reasons for judgment, the first being the actual use of the terms and the second being that there is no clear sense of what was meant by the use of the terms.
The use of the terms: flirt, flirting, flirty and flirtatious
61The essential question that the trial judge needed to answer was whether the Crown had proven beyond a reasonable doubt that the respondent intended to facilitate — make easier or more probable — one of the enumerated offences set out on the indictment. Rather than answering that question, the trial judge focussed upon whether the respondent may only have intended to flirt with the child.
62I start with an observation about language when it comes to child sexual offences. As the Crown points out on appeal, the language used matters, and some terms can have the unintended effect of characterizing an offender’s conduct as normal, or erotic or affectionate, instead of inherently criminal: R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 147. This can have another unintended effect, which is to speak about children as if they are somehow part of the adult world where sexual gratification between consenting adults is an accepted and normal part of life.
63Characterizing interactions between adults and children — in this case a 52-year-old man and a 15-year-old child — by mobilizing terms that are normal in an adult-adult context, is troubling because it could serve to normalize those terms in the context of adult-child relationships: see R. v. Dew, 2024 MBCA 55, [2024] 10 W.W.R. 434, at para. 31; Bertrand Marchand, at para. 64. We need not go further than the actual dictionary definition of the term to understand why this type of normalization is highly problematic. The word “flirtation” is defined as “behaviour that demonstrates a playful sexual attraction to someone” and the term to “flirt” is defined as to “behave in such a way as to demonstrate a playful sexual attraction to someone”: Concise Oxford English Dictionary, 12th ed. (New York: Oxford University Press, 2011), at p. 545.
64To understand the definition of this term is to understand why it should not be used as a benign term in the child-adult context, almost as if it is a defence to this crime.
The flirting label did not preclude the requisite mens rea
65The trial judge erroneously approached the matter as if he had been confronted with a binary choice, that the respondent either intended to flirt or intended to facilitate the commission of the enumerated offences, but that they both could not be true. Unfortunately, the trial judge never explained what he meant by this term — specifically what he meant by to flirt — but even if we use the dictionary definition of the term, it can easily be subsumed into the mens rea for this offence.
66There is nothing inconsistent between the meaning of an intention to flirt and the intention to facilitate the commission of an enumerated offence by “helping to bring about and making easier or more probable” enumerated offences, by “‘grooming’ young persons to commit or participate in the prohibited conduct by reducing their inhibitions; or by prurient discourse that exploits a young person’s curiosity, immaturity or precocious sexuality”: Legare, at para. 28. Indeed, one might reasonably suggest that behaving in a way that demonstrates what the dictionary refers to as a “playful sexual attraction” to a child can be part and parcel of the intention to groom that child. This is not because it is actually playful, but because, like joking with a child, being playful is a “tool of grooming” that allows an adult to test the waters with a child: McSween, at para. 107.
67Accordingly, by focussing upon how to label the respondent’s conduct, as opposed to what the conduct actually said about the respondent’s intention, the trial judge never actually resolved the core issue that he needed to decide, which was whether, bearing in mind all of the evidence, the respondent intended to facilitate the commission of the enumerated offences.
(4) The Appropriate Remedy
68Crown counsel on appeal argues that, when placed within its proper factual context, the trial judge’s finding that the respondent had the intention to flirt with the child when he sent her the masturbation and sexual intercourse videos necessarily rose to the level of the required mens rea for the s. 171.1(1)(b) offence. Therefore, the Crown asks that we set aside the acquittal and substitute a conviction pursuant to s. 686(4)(b)(ii) of the Criminal Code. The Crown contends that a conviction is the correct remedy given that, but for the error, the respondent would have been convicted: R. v. Lutoslawski, 2010 SCC 49, [2010] 3 S.C.R. 60, at para. 1.
69The respondent takes the position that the Crown is now backtracking because, at trial, the Crown is said to have acknowledged that an intention to flirt was not enough to meet the mens rea for the offence and, therefore, the appeal should be dismissed.
70I do not read the trial Crown as having said that an intention to flirt was insufficient to meet the mens rea for the offence. Rather, I read the trial Crown’s submissions as saying that the respondent was not flirting with the child because his conduct went “far beyond flirtatious behaviour”. The trial Crown made clear that this was a specific intent offence and that the intention had to be to facilitate the commission of one of the enumerated offences. She correctly agreed that general “tastelessness” would not be enough to make out the mens rea for the offence.
71I see no backtracking here. Just like the trial Crown, Crown counsel on appeal acknowledges that this is a specific intent offence and that the intention must be to facilitate the commission of the enumerated offences. All the Crown on appeal is saying is that the trial judge’s finding of an intention to flirt, when placed in the context of his findings of fact, most specifically the intention to flirt by sending the masturbation and sexual intercourse videos, make out that specific intention.
72There is much to the Crown’s position here on appeal, as the trial judge’s findings of fact point heavily toward an intention to groom, including the respondent:
i. sharing his sexual experiences with the complainant, including that his ex-girlfriend was a “squirter” and asking the complainant if she was also a “squirter”;
ii. convincing the complainant to send him a picture from the waist up, dressed only in a bra;
iii. telling the complainant that her mother needed a “good stiff dick to cheer her up”;
iv. repeatedly commenting on the complainant’s looks, including that she had a “cute ass”, that she was “very easy on the eyes”, that she would be “nice to see” in spandex;
v. saying that he “may pop [a boner]” if he saw her in spandex (square brackets inserted by the trial judge); and
vi. commenting that he would “love to nibble on that perfect ass. Hell.. that whole body” and that he would “have my lips all over if you let me”; and
vii. sending the two sexually explicit videos and, in the case of the masturbation video, telling the complainant to keep a copy of it.
73Exercising this court’s jurisdiction under s. 686(4)(b)(ii) of the Criminal Code, to set aside an acquittal and enter a conviction, should be done in only the “clearest of cases”: R. v. Audet, 1996 CanLII 198 (SCC), [1996] 2 S.C.R. 171, at para. 48. These rare cases arise where “the trial judge’s findings of fact, viewed in light of the applicable law, supported a conviction beyond a reasonable doubt”: R. v. Katigbak, 2011 SCC 48, [2011] 3 S.C.R. 326, at para. 50. The ultimate question is whether, after removing the legal error, the trial judge made all of the findings necessary to support a verdict of guilt, whether those findings were implicitly or explicitly made: R. v. A.E., 2022 SCC 4, [2022] 1 S.C.R. 20, at para. 2; R. v. Cassidy, 1989 CanLII 25 (SCC), [1989] 2 S.C.R. 345, at pp. 354-55; R. v. Chung, 2020 SCC 8, [2020] 1 S.C.R. 405, at para. 30; see also, Lutoslawski, at para. 1.
74As is so frequently the case, context matters. I would not go so far as to say that an intention to flirt – to use the trial judge’s terminology for a moment – is necessarily synonymous with an intention to facilitate the commission of an enumerated offence. However, in my view, bearing in mind the context of this case, in its entirety, this is the only reasonable inference that arises from the facts as accepted by the trial judge.
75While we may not know exactly what the trial judge meant by the use of the terms – to flirt, flirty, flirtatious and flirtation – we do know that he accepted as a fact that the respondent successfully encouraged the child to send the near-nude photo of herself to him. We also know that he accepted as a fact that the respondent sent all of the electronic messages to the child, including his expressed desire to “nibble” on her “perfect ass” and “whole body” and to have his “lips” all over her if only she would “let [him].” And we also know that he accepted as a fact that the respondent sent the sexually explicit material – the masturbation and sexual intercourse videos – to the child, knowing that she was less than sixteen years of age at the time that they were sent.
76It is against that crystallized factual backdrop that the trial judge said that the respondent was likely just engaged in continued flirtatious conduct with the complainant when he sent the videos. In my view, the only reasonable inference to be taken from this evidentiary backdrop is that the conduct referred to by the trial judge as “flirting”, whatever he meant by that term, is clear evidence of an intention to groom the child so as to make it more likely that the respondent could do as he said he wanted to do: engage in sexual acts with her. As the respondent said, all she needed to do was “let [him]”. While the trial judge may have seen this as conduct in line with the dictionary definition of the term, which includes a “playful sexual attraction”, playful conduct and joking around are common tools in the arsenal of those grooming children.
77Set against the full context of the facts in this case, including the sending of the sexually explicit materials, and the respondent’s own confessed desire to have the child “let [him]” engage in sexual acts with her, the only reasonable inference to be drawn is that the respondent intended to facilitate the commission of the enumerated offences.
E. Conclusion
78I would set aside the acquittal and enter a conviction. I would ask the parties to contact the Executive Legal Officer to set a schedule for the hearing of submissions as to sentence.
Released: “February 19, 2025 JMF”
“Fairburn A.C.J.O.”
“I agree. Coroza J.A.”
“I agree. Baltman J. (ad hoc)”
1This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.