Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen Respondent
— And —
Douglas Morrison Applicant
Before: Justice George S. Gage
Heard on: July 3, 2014
Reasons for Charter Ruling released: December 10, 2014
Counsel:
- Scott Latimer, for the Crown
- Anthony Bugo and Sal Caramanna, for the accused
GAGE J.:
Introduction
1The applicant is charged with one count of luring a child by means of a computer contrary to section 172.1(1)(b) of the Criminal Code of Canada. The text of the entire section reads as follows:
172.1 (1) Every person commits an offence who, by a means of telecommunication, communicates with
(a) a person who is, or who the accused believes is, under the age of 18 years, for the purpose of facilitating the commission of an offence under subsection 153(1), section 155, 163.1, 170 or 171 or subsection 212(1), (2), (2.1) or (4) with respect to that person;
(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
(c) a person who is, or who the accused believes is, under the age of 14 years, for the purpose of facilitating the commission of an offence under section 281 with respect to that person.
Punishment
(2) Every person who commits an offence under subsection (1)
(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or
(b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months and to a minimum punishment of imprisonment for a term of 90 days.
Presumption re age
(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.
No defence
(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.
2The elements of the offence are: (1) making use of a computer system to communicate; (2) communicating with a person who is, or who the accused believes is, under the age of 16; and (3) communicating for the purpose of facilitating one or more of the enumerated offences – in this case, invitation to sexual touching, contrary to section 152 of the Code.
3For purposes of the application only it is assumed that the following facts can be proved by the Crown:
On February 3, 2013 the applicant used his computer to place a posting on a popular internet site. The posting (personal ad) invited communication by way of reply;
Shortly after the ad was posted an adult police officer, posing as a fourteen year old girl named Mia, responded to the applicant's post;
In the initial email interaction between the applicant and Mia (the responding police officer) the officer asserted that she was fourteen years old and that she had not "done" sex yet;
In the ensuing email exchanges between the applicant and Mia the topic of sexual activity was explored and on one occasion a meeting was scheduled but did not occur;
The sexualized communication between the applicant and "Mia" which continued through February and March is of such a nature that the facilitation of an invitation to sexual touching can be inferred;
The communications ended when the applicant was arrested in May 2013.
4The focus of the application is the operation of the highlighted presumption contained in subsection 172.1(3) in conjunction with the highlighted "reasonable steps" requirement embodied in subsection 172.1(4).
The Argument
Applicant
5The applicant asks that the combined operation of the two subsections be declared or found to be inoperative in this case by reason of the inconsistency created between the operation of the subsections and the applicant's Charter enshrined rights to have a trial conducted in accord with the principles of fundamental justice (section 7) and his right to be presumed innocent until proven guilty (section 11(d)).
6The applicant asserts that, where an internet dialogue includes a representation that the internet interlocutor is underage (as this one does), the combined operation of subsections (3) and (4) has the effect of placing an accused person in a position where a conviction is compelled even in circumstances where the presiding jurist entertains a reasonable doubt about whether the applicant believed that the person he was communicating with was under 16. This, he submits, is inconsistent with the presumption of innocence enshrined in section 11(d).
7While subsection (3) is framed as an "evidence to the contrary" presumption, the practical effect of the presumption – inasmuch as it presumes a state of mind rather than an objectively discernable or verifiable fact and arises immediately upon the making of an unverifiable representation and can only be overcome by the demonstration of reasonable steps – is to force the accused person into the stand and to displace the burden of proof.
8The applicant also asserts that the combined operation of the two subsections creates a situation where an accused person is liable to conviction for behaviour that contains no element of criminal fault – holding an honest belief he is dealing with an adult and in fact actually dealing with an adult – while imposing a burden to demonstrate reasonable steps to confirm or validate that honest and factually innocent belief. This, it is submitted by the applicant, is inconsistent with principles of fundamental justice.
Crown
9The Crown submits that each of the two subsections use language that has been previously found to be constitutionally palatable.
10The presumption contained in subsection (3) is an "evidence to the contrary" presumption. The presumption can be displaced by evidence found anywhere in the case that is capable of raising a reasonable doubt. It does not displace the burden of proof and is not therefore constitutionally objectionable.
11The "reasonable steps" requirement contained in subsection (4) does nothing more than require the accused to demonstrate only the degree of care in ensuring that he was not dealing with a minor that he is capable of giving. The section employs language that has been previously ruled as constitutionally acceptable in relation to other situations – most notably in the sexual assault context.
12The Crown argues that the distinction the applicant attempts to draw between actual luring of an underage child and luring of a person the accused believes in underage is a false one. The essence of the offence is the act of luring through computer communication a person the accused believes is under the proscribed age – it matters not whether the actual interlocutor is over or under age. The essential element in either case is the belief of the accused.
13The Crown asserts that it is open to Parliament to legislatively foreclose a defence of mistake or ignorance that is entirely devoid of an objective evidentiary basis. The overall operation of the section does not in these circumstances offend any of the principles of fundamental justice.
Discussion
14The combined operation, though not the constitutionality, of subsections (3) and (4) of section 172.1 was reviewed and considered by the Supreme Court of Canada in the Levigne decision. The Court identifies the social purpose of the enactment of the offence as identifying and apprehending "adults who, generally for illicit sexual purposes, troll the Internet to attract and entice vulnerable children and adolescents."
15It is common ground that the offence addresses an important social concern.
Reasonable Steps Requirement
16The reasonable steps requirement found at subsection (4) requires the Crown to establish beyond a reasonable doubt that that accused failed to exercise due diligence towards ensuring that his communications were with a person of legal age. Put another way the onus is on the Crown to prove beyond a reasonable doubt that reasonable steps were not taken. The operation of the subsection is described in the decision of the Ontario Court of Appeal in Dragos as follows:
(b) Due diligence or reasonable belief
29The appellant further argues that the trial judge erred by employing the equivalent of a due diligence test, instead of a reasonable belief test, in assessing whether the appellant took reasonable steps to ascertain E.B.'s age. More specifically, he contends that the trial judge erred by interpreting the phrases "reasonable steps" and "all reasonable steps" under ss. 172.1(4) and 150.1(4) of the Code as mandating an inquiry as to those steps that a reasonable person would have taken to ascertain E.B.'s age, rather than an evaluation of whether a reasonable person could have believed that E.B. was 14 years of age on the basis of the information available to the appellant.
30I would also reject this argument.
31In various parts of his reasons, the trial judge referred to the steps that a reasonable person would have taken in the circumstances to ascertain E.B.'s age, in contrast to the appellant's conduct. This approach did not reflect legal error.
32Relying on this court's decision in R. v. Thain, 2009 ONCA 223, the trial judge held that the "reasonableness of the steps taken to ascertain the age of the person must be assessed in context". He further held, at paras. 46 and 47, that whether "reasonable steps" or "all reasonable steps" were taken must be assessed on an objective, reasonable person basis. These observations accord with the controlling legal principles. What constitutes "reasonable steps" in a given case is a fact-specific inquiry that turns on the circumstances of the case.
33The Supreme Court of Canada has described the s. 150.1(4) "all reasonable steps" requirement as a "due diligence defence": R. v. Hess; R. v. Nguyen. Similarly, the British Columbia Court of Appeal has interpreted the applicable test under s. 150.1(4) as asking what steps "a reasonable person would take in the circumstances" to ascertain a complainant's age: R. v. P. (L.T.), at para. 20. See, also, R. v. Hayes, [1991] A.J. No. 1232, 12 W.C.B. (2d) 457 (Q.B.).
34The appellant contends that the s. 172.1(4) "reasonable steps" requirement applicable to the Internet luring charge must mean something less strict. He points to the Supreme Court's statement in R. v. Levigne, at para. 31, that the s. 172.1(4) reasonable steps requirement "was enacted by Parliament to foreclose exculpatory claims of ignorance or mistake that are entirely devoid of an objective evidentiary basis" (emphasis added). In the appellant's submission, this statement means that the reasonable steps requirement is met by proof of some objective basis on which a reasonable person could make the same mistake of age asserted by the accused.
35In my view, s. 172.1(4) requires an accused who claims mistake of age to have exercised a degree of care in ascertaining a complainant's age that a reasonable person in the circumstances would have exercised. I say this for the following reasons.
36I note, first, that in Levigne, the Supreme Court upheld convictions for child Internet luring, holding that the defence of mistake of age is not available when an accused has failed to take "the reasonable steps he was required by law to take": see paras. 36-38 (emphasis in original).
37Second, the plain language of s. 172.1(4) focuses on whether an accused "took reasonable steps" to ascertain the age of the complainant, not whether there was an objective basis for the accused's honest belief in the complainant's age. As Levigne confirms, at para. 41, s. 172.1(4) requires both that real steps be taken to ascertain the age of the person with whom an accused is communicating and that those steps be "reasonable" in the circumstances.
38Third, the statutory purpose of s. 172.1, the Internet luring provision of the Code, weighs in favour of a construction of "reasonable steps" that protects children by requiring an accused to take more, rather than fewer, precautions in ascertaining a complainant's age.
39Fourth, the "reasonable steps" language of s. 172.1(4) may be analogized to the requirement under s. 273.2(b) of the Code that an accused "take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting" in order to make out a defence of an honest but mistaken belief in consent against a charge of sexual assault. See R. v. A. (J.), 2011 SCC 28. This court has held that this provision "requires the accused to act as a reasonable person would in the circumstances by taking reasonable steps to ascertain whether the complainant was consenting": R. v. Cornejo, at para. 22, leave to appeal to S.C.C. refused [2004] S.C.C.A. No. 32.
40The similarity in language between ss. 172.1(4) and 273.2(b) of the Code lends further support to the conclusion that a due diligence formulation of the "reasonable steps" requirement is appropriate in the s. 172.1(4) context, as it is under s. 273.2(b).
41Finally, contrary to the appellant's submission, I see nothing in this court's decision in Thain that is inconsistent with the application of a due diligence approach to the "reasonable steps" requirement of s. 172.1(4). As the trial judge noted, Thain holds, at para. 37, that "the reasonableness of the steps taken to ascertain the age of the person must be assessed in context". The contextual analysis mandated by Thain in no way conflicts with an assessment of the steps a reasonable person would take in the circumstances to ascertain the age of a complainant.
17As noted above the wording of subsection (4) of section 172.1 mirrors to a large extent the language used in section 273.2(b) which provides, inter alia, that honest belief in consent is not a defence to the charge of sexual assault where "the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting."
18The wording of section 273.2(b) was found by the Ontario Court of Appeal to be constitutionally sound. That ruling was not disturbed in the subsequent appeal to the Supreme Court of Canada.
19The internet is a wide open, unrestricted and largely unregulated communications frontier. The offence of child luring, as described and enacted in section 172.1 does not seek to criminalize any communication with minors nor does it criminalize communication of a sexual nature. It does however proscribe communication with children that has as its purpose the facilitation of one of the enumerated criminal offences.
20The effect of the insertion of the words "or who the accused believes is" in conjunction with provisions contained in subsection (4) is that communications that otherwise meet the definition will not be excused by a bald and unsupported assertion that the accused believed he was communicating with a person above the specified age. In other words, the defence of innocent belief in legal age will not prevail unless such belief is "honest" in the sense that it is not shown to be wilfully blind or reckless.
21The effect of the provision does not reverse the burden of proof. Nor does it criminalize innocent behaviour. To the extent that it may impose a tactical burden on the accused it does so in relation to matters within his exclusive knowledge and control. I therefore conclude that the reasonable steps provision found in subsection (4) of section 172.1 is not constitutionally offensive.
Presumption Regarding Age
22Subsection (3) provides that, in the absence of evidence to the contrary, a representation of the computer respondent being underage is proof that the accused believed that the respondent was underage.
23One feature of the presumption that appears to be at least peculiar is that in the context of a sting operation the section requires that a statement that is deliberately false will constitute proof that the accused believed that statement to be true.
24The essence of the offence is communication for an improper purpose with a person who the accused believes is underage. The belief of the accused is an essential element of the offence. Analysis of whether it is an element of the actus reus or the mens rea is not helpful, the important point is that the offence is not established without proof of the belief.
25An essential element of the offence cannot be established by statutory presumption in a constitutionally acceptable way unless there exists an inexorable connection between the fact that engages the presumption (here, a representation as to age) and the existence of the essential element (the accused's belief as to the interlocutor's age).
26The idea that a representation as to age will necessarily be believed by the recipient strikes me as tenuous. In the context of the Internet, that notion is rendered even frailer. In the online world, the anonymity furnished by the Internet virtually ensures that much is not as it seems. Rightly or wrongly, pseudonyms and falsehoods are a pervasive part of online communication. Given this, it does not follow, in my view, that an online representation as to age would necessarily be believed by the person to whom it is made. It is therefore far from certain that even a rational or logical connection is established between the representation and the presumption of belief as to age, much less an inexorable connection.
27A statutory presumption will be constitutionally objectionable if it requires the accused to disprove an element of the offence. While the insertion of the words "in the absence of evidence to the contrary" would seem to allow the evidence to dispel the presumption to come from any source, since the vital element in question is the state of mind of the accused, it is difficult to envision how the presumption can be dispelled without effectively compelling evidence from the accused. This objectionable aspect is compounded when the presumption is coupled with the "reasonable steps" provision in subsection (4).
28A statutory presumption will be constitutionally objectionable if it places the accused in a position where conviction is compelled in the face of the existence of reasonable doubt.
29I agree with the proposition advanced by the applicant that the operation of the reasonable steps requirement unreasonably restricts the ability of the accused to overcome the presumption. Evidence to the contrary must post-date the representation and must be specifically directed to the age of interlocutor. Appreciation of context has little or no scope.
30In Levigne the trial judge had a reasonable doubt that the accused believed that the computer respondent was underage and a reasonable doubt about whether his belief was reckless or wilfully blind.
31Notwithstanding the existence of a reasonable doubt both the Alberta Court of Appeal and the Supreme Court of Canada found that, by virtue of the combined operation of subsections (3) and (4) of section 172.1 the trial judge was "bound" to convict.
Conclusion
32I conclude that where an essential element of the offence is a belief it is constitutionally permissible to circumscribe a defence of honest belief by allowing the Crown to demonstrate that the accused took no reasonable steps to ensure that his belief was objectively reasonable.
33For the reasons set out above I conclude that the operation of the statutory presumption found in subsection (3) is in breach of section 11(d) of the Charter and is constitutionally objectionable particularly when it is applied in concert with the reasonable steps provisions found in subsection (4) of section 172.1.
34The question of whether the provisions could be justified under section 1 was not argued. For purposes of this ruling I make the observation that in my view the inclusion of subsection (3) will not survive a "proportionality" analysis. The operation of subsection (4) on its own is sufficient to eliminate specious claims of innocent belief or ignorance. A representation as to age in the course of the communications in issue will impact the analysis of honest belief whether it is statutorily presumed to establish belief or not.
35In the result I order that the statutory presumption found in subsection (3) will be of no force and effect in this prosecution. This of course does not exclude the evidence of the representations made in the course of the communications alleged to be between the applicant and the Peel Region police officer nor the common sense inferences that may be drawn therefrom.
Released: December 10, 2014
Signed: "Justice George S. Gage"
