WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences.
(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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(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) MANDATORY ORDER ON APPLICATION
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.
486.6 OFFENCE
(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.
Court Information
Ontario Court of Justice
Between:
Her Majesty the Queen
— AND —
Sanjay Rasiah
Before: Justice S. Pratt
Heard on: 20–23 October 2020
Reasons for Judgment released on: 7 December 2020
Counsel
Andrew Telford-Keogh — Counsel for the Crown
Patrick Ducharme — Counsel for the Defendant
Judgment
Introduction
1Sanjay Rasiah, hereinafter the Defendant, is charged with committing the offence of child luring. He was also charged with possessing child pornography, but the Crown invited an acquittal on that count at the outset of his closing submissions. That count will be dismissed. The remaining offence arises from an online relationship the Defendant had with J.S., hereinafter the Complainant. The Crown says that the evidence of the Complainant, corroborated in part by the evidence of the Defendant, proves the offence beyond a reasonable doubt. The Defendant says that an essential element of the offence related to the age of the Complainant has not been proved, and he should consequently be found not guilty. These reasons explain why the Defendant will be found guilty of Child Luring.
Admissions
2While no admissions were made at the outset of trial, the issue of identity was admitted at the close of the Crown's case. That is, it is admitted that the person the Complainant communicated with at the relevant times was, in fact, the Defendant.
3It is also not contested that the Complainant's date of birth is 10 December 2001.
Issues
4The main issue in this case relates to the age of the Complainant during her communication with the Defendant. Specifically, it is the Defendant's knowledge of her age that informs much of my decision.
5Section 172.1 of the Criminal Code states 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 with respect to that person under subsection 153(1), section 155, 163.1, 170, 171 or 279.011 or subsection 279.02(2), 279.03(2), 286.1(2), 286.2(2) or 286.3(2);
(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.
172.1 (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 14 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 two years less a day and to a minimum punishment of imprisonment for a term of six months.
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.
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.
6Section 172.1(3) was found to violate s. 11(d) of the Canadian Charter of Rights and Freedoms in the case of R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3 and is therefore of no force or effect.
7In the present case, the allegation is that the communication between the Defendant and the Complainant was meant to facilitate the commission of an offence under s. 163.1. Specifically, the accessing and making of child pornography.
8The relevant portions of section 163.1 of the Criminal Code states as follows:
163.1 (1) In this section, child pornography means
(a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,
(i) that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or
(ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years;
(b) any written material, visual representation or audio recording that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act;
(c) any written material whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act; or
(d) any audio recording that has as its dominant characteristic the description, presentation or representation, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act.
163.1 (2) Every person who makes, prints, publishes or possesses for the purpose of publication any child pornography is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year.
163.1 (4.1) Every person who accesses any child pornography is guilty of
(a) 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) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.
163.1 (4.2) For the purposes of subsection (4.1), a person accesses child pornography who knowingly causes child pornography to be viewed by, or transmitted to, himself or herself.
Luring
9The charged offence criminalizes conduct that presages harm to a potential victim through the commission of an enumerated secondary offence. As noted by Justice Fish in R. v. Legare, 2009 SCC 56, [2009] 3 S.C.R. 551, it is a "preparatory" or "inchoate" offence. As artfully stated by His Honour, "This is in keeping with Parliament's objective to close the cyberspace door before the predator gets in to prey." It requires the Crown to prove beyond a reasonable doubt that the Defendant communicated with the Complainant by a telecommunication for the purpose of facilitating the commission of an offence under s. 163.1, and that he knew or believed the Complainant was under 18 when he did so.
10Justice Doherty, speaking for the Court of Appeal for Ontario in the case of R. v. Alicandro, 2009 ONCA 133, [2009] O.J. No. 571 echoed Justice Fish's comments:
The offences created by s. 172.1, like the inchoate crimes of conspiracy, attempt and counselling, are prophylactic in that they seek to prevent the commission of the designated crimes by criminalizing conduct that occurs on the way toward the commission of the designated crimes. Also like the inchoate offences, justification for criminalizing the conduct described in s. 172.1 is found in the required mens rea. It is the intention to facilitate the commission of one or more of the designated offences that makes the accused's otherwise lawful conduct, sufficiently harmful and potentially dangerous to warrant the imposition of criminal sanction.
11In his submissions, counsel for the Defendant said at one point that the communication needed to be "for the purpose of committing" an enumerated offence. That's not strictly correct. The communication must be for the purpose of facilitating the commission of an offence. The distinction is important. Any telecommunication that facilitates (i.e. makes easier or more probable) the commission of a secondary offence can violate this section. The concept of "facilitating" can include normalizing otherwise abnormal conduct, such as adult/child sexual relations (see: R. v. McSween, 2020 ONCA 415, [2020] O.J. No. 2460 at paragraph 107). Further, the idea that the telecommunication must be for a "sexual purpose" was specifically rejected in McSween at paragraphs 102-107. Any motive for facilitating the commission of a listed offence will do. As Justice Trotter stated in McSween:
Sexual gratification may well be the predominant goal of someone who attempts to facilitate the transmission of child pornography, but it is not the only potential motive. Others might include blackmail, extortion, bullying, or financial gain.
12To that non-exhaustive list of other motives, I would add, in the context of this case, an accused's desire to make the other party feel better about themselves or the online relationship with words of praise or the transmission of his own images.
13It is not enough for the telecommunication to fit the requirements of the section on solely an objective basis. The Crown must show subjectively that the telecommunications were meant to facilitate the commission of the secondary offence.
14The Crown must prove that the Defendant knew the Complainant was under the age of 18 at the time of their communications. It is not sufficient to obtain a conviction for the Crown to show a failure by the Defendant to take reasonable steps to ascertain her age. This point was established in Morrison, supra, and bears repeating.
15Morrison challenged s. 172.1(4) on the grounds that it violated s. 7 of the Charter. He argued that the subsection allowed for a conviction based only on negligence, that is, a failure to do what was reasonable in the circumstances. Given the high degree of social stigma and the potential for lengthy incarceration that follow a conviction for child luring, he argued that the mens rea for the offence needed to be subjective.
16Justice Moldaver dismissed Morrison's s. 7 argument. His Honour found that the subsection did not violate s. 7 as it did not provide a separate "pathway to conviction". All the subsection does is limit the availability of a possible defence.
17One of the elements of the child luring offence is that the accused person communicate with someone he knows, or believes, to be under the prescribed age. That is an element of the offence that must be proved by the Crown beyond a reasonable doubt. As with any element of a criminal offence, if the Crown desires a conviction, it must be proven. There is no shortcut or alternate route available. Prior to Morrison, there was the thought that if the Crown simply proved a lack of reasonable steps taken by the accused person, that would suffice. That approach created, in effect, two ways to satisfy the age requirement: knowledge or belief, on the one hand, or failure to investigate on the other. It is this second route that led to Morrison's argument. While that argument ultimately failed, it was useful in that it caused the Supreme Court to clarify this area of the law.
18The reason there is no longer (if, indeed, there ever was) a pathway to conviction based solely on a failure to take reasonable steps is because Morrison was successful in arguing that s. 172.1(3) was unconstitutional. That section read:
(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.
19Subsection 3 created an evidentiary presumption of an accused person's knowledge. It used evidence that showed an accused was told a person was under age as proof that he or she believed the person to be under age. It relieved the Crown of the burden of proving an accused person's subjective knowledge and put the burden on the accused to provide evidence to the contrary.
20As I mentioned earlier, the Supreme Court found that section violated s. 11(d) of the Charter. It was the interplay between subsections 3 and 4 that led to this second pathway based on a lack of reasonable steps. With the demise of subsection 3, that pathway vanishes. What remains is stated succinctly by Justice Moldaver at paragraph 83 of Morrison:
In short, there is but one pathway to conviction: proof beyond a reasonable doubt that the accused believed the other person was underage. Nothing less will suffice.
21So where does that leave the whole concept of reasonable steps? According to Justice Moldaver, right where it's always been: it's a defence that may or may not be available to an accused person to counter evidence of knowledge. But a lack of reasonable steps does not, on its own, lead to conviction.
22If the Crown leads evidence of knowledge, a court would then have to consider if the defence of reasonable steps is available to an accused. That is, is there an "air of reality" to the defence, according to the test espoused in cases like R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595; R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, and more recently by my colleague Justice Kelly in R. v. Montsion, 2020 ONCA 729, [2020] O.J. No. 4516. If there is an air of reality to the defence, it will be for the Crown to disprove it beyond a reasonable doubt. If the Crown cannot disprove the taking of reasonable steps, it will have fallen short of proving knowledge of age beyond a reasonable doubt. If the Crown can disprove the taking of reasonable steps, it must still prove knowledge beyond a reasonable doubt. Disproving the defence does not automatically lead to conviction. Disproval is the Crown fending off an attack on its evidence; it does not show the sufficiency of that evidence.
23What constitutes "reasonable steps" will depend on the context of each case. The use of the word "reasonable" connotes an objective standard, but what is reasonable will vary with the circumstances. As Justice Sharpe stated at paragraph 37 of R. v. Thain, 2009 ONCA 223, [2009] O.J. No. 1022: "While no doubt s. 172.1(4) introduces an objective element, the reasonableness of the steps taken to ascertain the age of the person must be assessed in context - here the unusual context of internet chat-rooms."
The Evidence
24The first issue to be determined is the result of an analysis pursuant to R. v. W.D., 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 (hereinafter "W.D."). In summary, the Defendant said the Complainant told him from the outset that she was 18 and that she never wavered from that assertion. The Complainant acknowledged that she may have told him at first that she was 18, but believed she told him she was 16. She said she later told him she was actually 14 years old.
25The often-quoted test from the Supreme Court of Canada in W.D. has three parts:
26First, if I believe the evidence of the Defendant, I must acquit him.
27Second, if I do not believe the evidence of the Defendant but am left with a reasonable doubt by it, I must acquit him.
28Third, if I do not believe nor am I left with a reasonable doubt by the evidence of the Defendant, I can only convict if, based on all the evidence I do accept, I find that the Crown has proved the offence beyond a reasonable doubt.
29At all times, the onus remains on the Crown. The Defendant is presumed innocent of these charges and retains that presumption unless the Crown proves his guilt beyond a reasonable doubt.
30In my view, there are two main decision points in this case. The first is the determination of whether the Crown has proved beyond a reasonable doubt that the Defendant knew the Complainant was under the age of 18 at the time of their interactions. The second, which will impact the first, is whether the defence of reasonable steps is available to the Defendant, and if it is, if it entitles him to an acquittal. While these are different questions, there is overlap between them.
The Evidence of the Defendant
31The Defendant testified that he was in Edmonton in May 2016. He was there as he'd been evacuated from Fort MacMurray, Alberta as a result of the wildfires that endangered the town. While I heard no corroborative evidence regarding the wildfires, the event was so notorious at the time that I can take judicial notice of it. He was first brought to a wilderness lodge, and from there went to Edmonton. He stayed with his cousin for a brief period, then with the mother of his best friend for about a month. It was during this period in Edmonton that he first made contact with the Complainant.
32I will note at the outset that I have no difficulty accepting the Defendant's evidence of his travels during this period.
33He testified that on Friday 20 May 2016 at around 2:00-3:00am, he was outside the residence looking at the Northern Lights. He wanted to get his camera to take a picture, but they faded away. He returned to the basement and went online to a chat website called Omegle at around 4:00am.
34Omegle is an anonymous chat site that allows users to be matched up with strangers. According to the Defendant, he entered certain keywords and was matched with the Complainant, who had entered the same keywords. In this case, those keywords were "bdsm" and "ddlg". The Defendant testified that these were acronyms meaning "bondage domination sadism masochism" and "dominant daddy's little girl" respectively. He testified that the reason he went on the website in the first place was to find someone who would watch him masturbate. He said that "performing" in this way was to him an act of dominance.
35After being matched with the Complainant, the two began communicating. This was through text and video. They began by exchanging their "asl", which is to say, their "age, sex, location" information. He said "25, m, Canada" while she said "18, f, Australia". While she had told him she was 18, and Omegle itself required users to click a box confirming they were at least that old, he also asked two questions specifically related to the Complainant's age. First, he asked what experiencing the events of September 11, 2001 was like in Australia. Second, he asked her to hold up some form of government-issued identification. As to the first question, he said she described being awakened by her mother the morning of September 12 and being told that something awful had happened in America. They then watched the news together as they ate breakfast. He asked why she didn't hear about it until the 12th and she said the time difference between Australia and the United States meant the events of September 11th did not take place until about 11:00pm in Australia. The majority of Australians heard about it the next morning. This answer satisfied the Defendant as it seemed like a difficult answer to fake on short notice.
36As to the second question, she declined to show him any identification. She told him that in prior online chats, an acquaintance had secretly saved photos she'd sent. She was reluctant to offer personal information like government identification to him. He accepted that answer and did not ask for it again.
37I pause to note that the Complainant being engaged in sexual chats with other men came out in evidence. I cautioned defence counsel about running afoul of s. 276 of the Criminal Code. I was assured, and it was indeed the case, that the issue was not mentioned for that purpose. It came out solely to show the Complainant's reluctance to provide personal identification to the Defendant. I take nothing else from that evidence.
38He acknowledged in cross-examination that it was possible for someone under 18 years old to be using the site.
39He testified that their conversation that day was 2 ½ - 3 hours long. Despite the whole reason he went on the Omegle site in the first place, and despite being matched with another person who had entered "bdsm" and "ddlg" as keywords, he said that nothing sexual transpired in that meeting. Instead, they got to talking about school, politics, and the environment. They did address how they had entered the same keywords, but in the Defendant's words, they got "side-tracked" talking about other things. In that initial conversation, between two random strangers on the internet, matched by this anonymous chat site for their shared interest in "bdsm" and "ddlg", he testified that they discussed school, how the Complainant got to school, his environmental sciences program and comparable programs in Australia, the number and ages of her siblings, and the fact that her father was a lawyer who specialized in superannuations and her mother was a psychiatrist who charged $1,000 an hour and was rated the #1 psychiatrist in Australia. He said that she also gave him her height and weight, which he had to convert from metric to imperial measurements.
40Following that initial conversation, they moved their contact to a different platform. The Defendant testified that they moved to a service called Kik at the Complainant's suggestion. Kik is a messaging service that allowed text, photo, and video messaging but no live video chat. They both already had accounts on that service, and she provided him with her account name.
41The account name aroused suspicion in the Defendant. The name, he said, was "Tyler Joseph". This made him wonder if the girl he'd met was actually a male. He professed this concern despite the earlier Omegle conversation where he'd seen her on video. He testified to being concerned in that conversation that he may have been watching a faked, looped video, so he asked her to raise her hand and wave. She did. Even so, it seems the name on her Kik account worried him. He asked about the name and she told him that Tyler Joseph was actually the name of the singer from a band she liked called 21 Pilots. That was good enough for him. I will return to this point in my analysis of the Defendant's evidence, but this whole portion of his testimony seemed curious to me. He was sufficiently dubious about what he was seeing, thinking that perhaps it was really a video loop rather than a live person, that he asked her to move her hand in a certain way. Even though she did as asked, he remained skeptical about the situation when he saw the male account name on Kik. But he then accepts her bald assertion that the name is just an homage to a favourite singer? Curious.
42He testified that they used Kik for about a week. Then, again at the Complainant's suggestion, they switched platforms. This time they moved to Skype because, he said, she wanted live video chat. They chatted on Skype for some time but owing to what the Defendant said were ongoing quality issues with Skype's messaging function, he recommended they move to a platform called Signal. I am told that Signal is very similar to Skype, though the Defendant felt that Signal's video capability was less advanced than Skype's. He said they'd use Signal for messaging but Skype for video calls. This was the arrangement until January 2019, when communication between them stopped.
43In addition to Skype and Signal, they would also use an email service called Proton Mail. Use of this service came about when the Complainant would send him nude pictures or long explicit posts on Signal but they would disappear before he saw them. She asked if she could email those things to him, and he gave her his Proton email address.
44Their discussions were frequent and far-ranging. They discussed each other's schooling. He said she seemed very interested in law, to the extent that he researched Canadian law schools for her. She told him about mooting competitions she was in. They discussed their families. He said she talked about her family hiring tutors for her, and about the expensive vacations her family took. She also talked about how strict her parents were regarding her dating or driving. He told her about his work and would send her pictures from work sites. He would tell her about harassment by police that he experienced. He complained about Donald Trump. In fact, he estimated that 90-95% of their conversations were non-sexual.
45The Defendant was asked if there were ever any plans to meet face-to-face, and he said no. There was, he said, an implied agreement to keep their relationship "kayfabe". He defined "kayfabe" as a concept from the world of professional wrestling where participants would not acknowledge that what they were doing was scripted. I take his use of the word to mean, in essence, staying in character. That said, it's difficult to understand exactly what the "characters" were. They discussed their education, their plans for the future, their families, politics, and the environment. He never said that anything he said to her was false or fictional. If they were staying in character, those characters would seem to be who they really were so I'm not sure I understand his use of the term kayfabe other than to make their entire interaction appear to me to be less authentic and more artificial than it really was.
46He testified to another point that in his mind further cemented the idea that she was at least 18 years old. In the course of their daily conversations, she mentioned attending a concert by the artist Pink. This surprised him as he believed Pink's target demographic to be older (i.e. mid-30s). But, he said, they discussed her songs, and the Complainant seemed to know them. This was another piece of information that led him to believe the Complainant was at least 18 years old.
47As to sexual communication, the Defendant testified that the Complainant sent him approximately 50 "explicit" pictures, of which fewer than 10 were of the Complainant in the nude. He said she never sent him any explicit videos. He sent her "10 or less" photos of himself, specifically his genitals. He said probably half those photos were of him with an erection and half were without. He denied ever sending photos of himself masturbating. The bulk of their sexual interactions, according to the Defendant, involved him masturbating for the Complainant on camera. This happened "maybe 50 times or less" over their entire correspondence. She generally wasn't on camera but would be communicating with written messages. He said incidents where they would both be on camera masturbating happened "probably less than 10 times".
48While he admitted to sending pictures of his genitals to her, he was adamant that it was always in response to a request from the Complainant. He never sent her such a picture without being asked or without having received a nude picture from the Complainant first. When that would happen, he would feel "obligated to respond in kind". As he said, "Most men would agree an unsolicited nude is in very poor taste". I will return to this claim in my analysis of his evidence.
49He said it was always the Complainant, not he, who would initiate sexual activity. He further testified to his general reaction to the Complainant's sexual advances. As I said he felt obligated to send nude photos of himself. He felt like he should tell her that her pictures were sexy so she wouldn't feel insecure. He clearly said that he really didn't want to respond in kind but felt like he had to. He did not find her sexual messages to be arousing and got nothing out of writing his obligatory responses. He testified that he didn't enjoy watching her masturbate. He was uncomfortable with her interest in anal sex and bondage, and with her desire to be called a slut by him. He actually went so far as to call her messages "irritating" when she would contact him and he was busy.
50Returning to his understanding of the Complainant's age, he was asked in cross-examination if she told him she was 14 years old. He said she didn't. He denied telling her that despite her age he would make an exception for her and continue their communication. He maintained that he did not discover her true age until August 2019 when police became involved.
The Evidence of the Complainant
51I cannot assess the evidence of the Defendant isolated from the rest of the evidence I've heard. A criminal trial is specifically not a credibility contest, where I simply choose the version of events that I prefer. The onus is always on the Crown to prove the Defendant's guilt beyond a reasonable doubt. He is presumed innocent and never needs to prove anything. But when deciding if I believe or have a doubt from the Defendant's evidence, it must be considered in the context of the case as a whole. For that reason, I will outline the evidence of the Complainant at this point.
52The Complainant testified to being 18 years old at the time of her testimony. Her birthdate is 10 December 2001. She resides in Australia. She recalled first meeting the Defendant on the Omegle chat platform in 2016. At first, she thought they met in January 2016, but later agreed that it could have been May of that year. She was asked about her age when they first met. She was 14. She testified to telling the Defendant her true age sometime prior to her 2016 birthday, but said she thought she gave him an inflated age at first as she was tired of other men on the site telling her she was too young. She agreed it was possible she told the Defendant initially that she was 18, but stated, "I have it in my head that I told him I was 16".
53She said that she went on the Omegle site looking for someone to communicate with. She was matched up with the Defendant. She testified that they went "straight to Skype" and had a video call. She said he asked her if she wanted to see "BBC", which she said meant "big black cock". She said yes. She said they engaged in "camming", which she defined as communicating over webcams by video. She said that the camming occurred that first time, and many times afterward. They would exchange explicit photos on a weekly basis. She confirmed that after he learned her true age (when he asked her about driving and she responded by saying she couldn't drive, she was only 14), the communication and exchange of explicit photos and sexual video calls continued. On learning her age, he told her that ordinarily he would stop talking to her but that she was a "special case" and he would continue.
54Sometime in 2018, she said he contacted her and told her to download Signal. She didn't know what Signal was at that point, but he said it was another way for them to communicate. He also told her it was encrypted, making it harder for people to hack into their messages. One feature of Signal messaging that Skype lacked was the ability to set deletion timers. That is, messages sent could be programmed to delete themselves automatically after a set period of time. She said they both used this feature, and that the time limits varied with the nature of their messages.
55The Complainant also testified that it was the Defendant who introduced her to Proton Mail. This is an email service that, like Signal, was encrypted and harder to compromise. She ended up getting her own Proton Mail account so the two of them could converse on that platform as well. The contact, she said, was both sexual and non-sexual in nature, but its primary use was for exchanging sexually explicit written messages.
56She denied ever communicating with the Defendant on the platform called Kik.
57In total, the Complainant testified to "over 100" explicit communications with the Defendant. This included video calls, emails, texts, and the exchange of photos. Over the entirety of their communication, from 2016 to 2019, she testified that he would make specific requests of her related to how she would position her body while masturbating. She said he preferred photos of her buttocks to photos of her breasts, and that at some point he began requesting photos of her mouth as well.
58While sexual communication was a large part of their interaction, it was not the only part. The Complainant testified that they also discussed their schooling and other aspects of their lives. She viewed him as a friend, and prioritized messaging him over speaking to her other friends.
59The communications came to an abrupt halt on 12 January 2019 when the Complainant's father took her phone and found their messages. The police were notified, and charges were ultimately laid. The Complainant and Defendant haven't communicated since.
60In cross-examination, the Complainant agreed she told the Defendant about her family and her schooling. She disputed, however, that these topics came up in their first communication on Omegle. In her evidence in chief, she said that first contact, initially on Omegle and then on Skype, was almost immediately sexual.
61It was suggested to her that in a voice call with the Defendant, she told him she was turning 21 in a few days. She denied that without hesitation. As I will mention in my analysis of her evidence, the Complainant was a careful witness who allowed for the possibility that things she didn't remember clearly may have happened or not happened. That was not the case when asked about turning 21. Her denial was clear.
62She was also recalled to respond to the suggestion that the Defendant had asked her about her memories of 9/11. The Complainant stated that they may have discussed 9/11 at some point, but that she wasn't yet born when the attacks occurred, and it wasn't something they learned about in school or that was a big topic of conversation. She was adamant that he'd never asked what 9/11 was like for someone in Australia in their first conversation, saying she'd remember such an unusual question if it had been asked.
Analysis
63The Defendant admits that sexual communications between him and the Complainant took place. That is not in issue. His evidence and the Complainant's, on that point at least, differ only in degree. This case turns on his knowledge of her age at the time of those communications. He testified that he believed she was 18 when they first met because that's what she told him and never moved off that contention. If I believe him, or if I have a reasonable doubt on that point as a result of his evidence, I must acquit him as the communication would not have been to facilitate the offence of accessing or possessing child pornography. That underlying offence would require him to know that she was under 18. To put it another way, if I believe him or have a doubt on the issue of age, their communication may have facilitated the accessing of pornography, but not child pornography. The former is not a crime; the latter is.
64To assess his claim that the Complainant told him from the outset that she was 18, I must consider his evidence as a whole. I am free to believe all, some, or none of his evidence. I cannot, and do not, treat his evidence as an "all or nothing" proposition.
65As I indicated earlier in these reasons, there are two main decision points I must consider. First, has the Crown proved beyond a reasonable doubt that the Defendant knew the Complainant was under the age of 18 when they were communicating? Second, is the defence of reasonable steps available to the Defendant, and if so, is it successful?
W.D. – Stage 1
66I find that I do not believe the evidence of the Defendant. His testimony was at times inconsistent and frequently seemed to be entirely self-serving. To my ear, it did not have the ring of truth. I will explain this conclusion in further detail.
67The Defendant testified that prior to that fateful night in May 2016, he'd never been on the Omegle chat platform before. He was not, he told me, particularly savvy in technological matters. That statement, however, was belied by his other testimony.
68For example, he knew enough about internet video to suspect that on Omegle he might be watching a looped or otherwise faked video. He had verification methods at the ready: ask the Complainant what three plus three is. Ask her to hold up a certain number of fingers. Ask to see her identification. This suspicion and his ways to combat it do not reflect a person inexperienced in the world of internet communication. When he saw that her username on the platform Kik was "tylerjoseph" he was concerned that she was actually a male because despite what he'd seen previously on Omegle, he said it was possible for people to take segments of video and broadcast them on Omegle. Similarly, it was the Defendant who suggested they use the platform Signal. This was, he said, because of technical issues he had with Skype. In his testimony, he stated that Signal was good for messaging, but they stayed on Skype for video calls because Skype's servers were more capable of handling high data volumes. None of this supports his claim to technological ignorance. His testimony did, however, paint him as one who was not in control of their contact. It placed nearly all the responsibility for maintaining their relationship on the shoulders of the Complainant.
69The Defendant was asked what he knew about the Complainant's age during their conversations. He testified that she told him on that first night that she was 18 by typing in "f,18,aus", which he took to mean "female, 18 years old, Australia". But he acknowledged there was nothing stopping users of the website from entering false age information.
70During that first conversation on Omegle, he also asked her what her memory of 9/11 was. He was referring to the terrorist attacks in the United States that took place on September 11, 2001. She answered by saying that her mother woke her up the next morning, and they watched what was happening on the news together. She also talked about receiving items in the mail with messages along the lines of "watch your neighbour", which she took to be thinly-veiled racism in the wake of the attacks. He decided this answer was sufficiently detailed and spontaneous that he believed her claimed age of 18.
71The 9/11 question is an odd piece of evidence. Why ask such a random question that requires the Defendant to assess the subjective quality of the answer when all he had to do was come out and ask her age? He could have, over the course of their long talks about schooling, asked what grade she was in or what year of university she was in. Any of those questions would have given him a concrete answer. Evaluating her knowledge of early-20th century history is needlessly vague and, in my view, not a reasonable step to take.
72It is an unnecessarily convoluted step to take, and even if he did ask the question, surely her answer should have raised more questions. He said she told him she was 18 and born, therefore, in 1997. That would have made her 3 years old at the time of the attacks. She tells him that at the age of 3, she remembered her mother waking her up to tell her what happened, then watching news coverage, and then seeing "thinly-veiled racism" show up in her mail? Even if I were to take his initial question as a reasonable step, his failure to ask anything further given her answer was entirely unreasonable.
73It was not, however, the only piece of information on which he relied to accept her professed age. She also mentioned attending a concert by the musical artist Pink. This struck him as unusual for two reasons: one, Pink was not (in his estimation) a particularly popular artist on this side of the world, and two, it didn't make sense to him that the "demographic" of someone who was "18, early 20s" would like Pink. He said he would imagine the average Pink fan to be someone in their 30s. He relied on this belief as further support that she was as old as she claimed.
74Respectfully, this is essentially meaningless information. I recognize that reasonable steps can be both active (asking questions) and passive (receiving relevant information without seeking it), but the information received must have some objective nexus to the issue itself. Not broaching the topic of age again, in part because surely no underage person would like a certain musical artist, is ridiculous. By no definition is receiving that information counted as a reasonable step.
75He also testified to her telling him once that her 21st birthday was coming up. While this evidence, if true, would be important, I simply cannot accept it. The rest of his evidence is too riddled with inconsistencies and implausibilities. For her part, the Complainant said she can "guarantee" she never said any such thing.
76Lastly, the Defendant testified to the quality of the Complainant's writing. By virtue of her using very little slang and very few emojis, and her ability to understand their discussions about the environment, he felt her maturity was beyond someone 18 years of age. Again, like her apparent esteem for Pink, this subjective and vague claim is essentially meaningless.
77The biggest issue I have with the Defendant's testimony is just how little gratification he said he got from their relationship. He testified that over the course of a 2 ½ year connection, they exchanged nude photos of each other. He masturbated dozens of times on camera for her. She masturbated with him several times. They would exchange sexually explicit written messages. But, he testified, he was never really that into it.
78He only ever sent nude photos of himself in response to photos sent by the Complainant. He only ever wrote to her in response to her writing. He never initiated sexual communication. He was indifferent to her request that she call him "daddy" and he call her "slut". In cross-examination, he was asked about his response to her photos. The following exchange took place:
Crown: You complimented her on her photos?
Defendant: Yes.
Crown: You told her they were sexy?
Defendant: Yeah, she often told me about various insecurities that she had so I kind of felt, you know, like I should maybe give her a compliment above and beyond.
Crown: You did not think they were sexy?
Defendant: I felt she was attractive, but at the same time though I'm not the type of person to say that kind of thing.
Crown: When you would say they were sexy, did that encapsulate how you felt about them, or no?
Defendant: Not particularly.
79In essence, the Defendant's evidence is that he was doing the Complainant a favour when he complimented her photos. This sense of obligation towards the Complainant permeated his testimony about their relationship.
80Much was made during the trial of the concept of "edging" and the role it played in their communications. The term relates to masturbating just short of orgasm, and the Defendant testified that the Complainant frequently engaged in the practice. She would contact him and seek his permission to have an orgasm. Once again, the Defendant would play along, however reluctantly. He testified to how that whole part of their communication was not only not arousing, but actually irritating:
Crown: Her engaging in it, though, was interacting with you?
Defendant: Yes.
Crown: Like, via text message, she would say I'm edging.
Defendant: Yes.
Crown: And part of that was her asking your permission for her to orgasm.
Defendant: Yes.
Crown: And you would give her that permission?
Defendant: Yes, but I found it kind of irritating.
Crown: Can you elaborate?
Defendant: Oftentimes I would be working when she would be sending me these messages and she would expect quick responses, or she wanted to prolong the conversation for hours and I just didn't have time.
81Also in his cross-examination:
Crown: And when is it that you found it to be irritating, or began to feel it was irritating?
Defendant: Almost immediately because it just required too much time.
Crown: And can you tell me what you mean by it required too much time?
Defendant: If it was on a weekend and I had to do cleaning or walk my dog or just anything really, like work, if I was field sampling, I just wouldn't have time. And again, I would sometimes get these messages in the early morning on a weekend, maybe in that case I didn't have time I just wanted to sleep but I think you understand what I mean.
82I can't speak for whether the Crown understood what he meant, but I understand him to mean that this part of their communication, which he said began the very first night and continued throughout their 2 ½ year relationship, was a hassle. She expected him to be available whenever she wanted him, regardless of the time or day. He testified that sometimes he would simply make up excuses to avoid being drawn into a prolonged edging discussion.
83In 2018, over Proton Mail, he told the Complainant that he enjoyed being in control of her orgasms. In his testimony, however, much like his comments to her that her photos were sexy, he said he only did this for her benefit.
84So what does he do, faced with this needy, pestering young woman from the other side of the globe? Does he explain to her just how irritating and time-consuming this relationship is becoming? Or send her one final text, "This isn't working for me, I'm done"? Or simply stop returning her messages? No.
85He tells her to switch messaging platforms to a better-quality service.
86That he would have these kind of problems with the Complainant's behaviour and not only continue communicating with her but actually take steps to improve the quality of that communication beggars belief. And it's not like she's someone he would see every day, where ending a relationship might be complicated. She was literally on the other side of the planet. There was absolutely nothing stopping him from ending this irritating, laborious (but entirely virtual) relationship. But he didn't. He continued it. And he sought to improve it.
87In fairness, sex wasn't all they ever talked about. As I said, he testified that they also discussed politics, the environment, and, each other's schooling and future plans. But surely if all he was looking for was a virtual pen pal there were easier options available. The only inference I can draw from his continuation of this relationship for 2 ½ years is that he got something out of it. Something beyond talking about current events. I reject his testimony that he got almost nothing out of their sexual relationship, and that she was simply a convenient viewer for him to masturbate before. The conclusion that both parties enjoyed and happily participated in the sexual side of their relationship is inescapable.
88I found the Defendant's evidence to be calculated to create the most blameless impression of himself that he could. By his account, he never really wanted to exchange photos or messages. He only wanted someone to watch him. And even that didn't really work out very well when the Complainant would start talking about bondage and anal sex. Edging was not his idea. He only ever sent photos of himself in response to her photos. (On that point, he further stated, incredibly considering the context of their relationship, that he never volunteered a nude photo of himself as "Most men would agree that sending an unsolicited nude is in very poor taste".) He only ever complimented her to make her feel better. She was, I take from his testimony, the driving force behind this relationship. And to top it off, she lied to him about her age.
89Aside from the uncontroversial aspects of the Defendant's testimony, like his travel through Alberta and Ontario at the relevant times, and the impact the Alberta wildfires had on his movements, I reject his evidence in its entirety. At the first stage of the W.D. analysis I do not believe his evidence, neither with respect to the nature of their relationship nor with respect to his claim that she never told him her true age.
W.D. – Stage 2
90The second stage of the W.D. analysis presents a much lower hurdle. Even if I don't believe the evidence of the Defendant, I must still acquit him if I am left with a reasonable doubt by it. As sexual contact between the two is admitted, the question here is whether his claim that she told him she was 18 years old at the outset of their relationship and never wavered from that position has left me with a reasonable doubt.
91It must be remembered that even at this stage, where evidence is evaluated to determine if a reasonable doubt remains, the burden continues to rest with the Crown to prove guilt beyond a reasonable doubt. The Defendant never has to prove anything or actively raise a doubt. I am mindful of the words of Justice Gillese of the Court of Appeal for Ontario in the case of R. v. Rattray, 2007 ONCA 164, [2007] O.J. No. 884 at paragraph 13 and onward:
13 This court has repeatedly held that the "might reasonably be true" test should be avoided when dealing with contradictory evidence in cases where the presumption of innocence, and none other, applies. Use of the "might reasonably be true" test amounts to imposing an affirmative obligation on the defence to either introduce evidence disproving guilt, or risk conviction, and undermines the presumption of innocence. The proper approach, in accordance with the second step of W.(D.), is for the trier of fact to determine whether the accused's evidence raises a reasonable doubt, and acquit if it does. See, for example, R. v. Phillips (2001), 2001 CanLII 24121 (ON CA), 154 C.C.C. (3d) 345 at paras. 35-36; R. v. G.H., 2002 CanLII 49363 (ON CA), [2002] O.J. No. 3635 at paras. 14-15; and, R. v. Phung, 2007 ONCA 352, [2007] O.J. No. 352 at paras. 4-6.
14 The problem with the "might reasonably be true" test was explained by Fish J.A. (as he then was) in R. v. Mathieu (1994), 1994 CanLII 5561 (QC CA), 90 C.C.C. (3d) 415 (Que. C.A.): inquiring whether the accused's evidence might reasonably be true reverses the onus of proof, and therefore does not accomplish the objective of the W.(D.) analysis. The "might reasonably be true" test emerges from the doctrine of recent possession which is based on the principle that "the accused risks conviction for certain theft-related offences unless he or she furnishes a plausible explanation." In theft cases, the absence of an explanation that might reasonably be true will usually lead the trier of fact to conclude that the fact of possession proves beyond a reasonable doubt that the accused is guilty.
15 But, applying the "might reasonably be true" test to cases in which the trier of fact is faced with contradictory evidence would risk undermining the presumption of innocence. The accused is obliged neither to testify nor to disprove his or her guilt. Rather, the Crown bears the onus of establishing guilt beyond a reasonable doubt. There is an unacceptably high risk that the trier of fact, if permitted to ask whether the accused's evidence might reasonably be true, will be drawn into choosing between conflicting versions of events. This would effectively impose an affirmative onus on the accused to disprove his or her guilt, which is obviously an error of law. Because of this danger, the "might reasonably be true" test should not be imported into the context of resolving credibility contests.
92The second stage of W.D. simply states that if I am left with a reasonable doubt by the evidence of the Defendant, I must find him not guilty. I only add to that the words of Justice Cory himself, at paragraph 27 of W.D.:
Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in the context of the evidence as a whole. (Emphasis added)
93Justice Cory affirmed the notion that no piece of evidence should be evaluated in a vacuum. When deciding if I am left with a reasonable doubt by the evidence of the Defendant I am permitted, if not directed, to consider it against the backdrop of all the evidence offered in the trial.
94The reasons I laid out for disbelieving the Defendant also form part of the reason I find I am not left with a reasonable doubt by his evidence. I did not find the Defendant to be a credible witness. His evidence was self-serving and inconsistent. Taken at face value, it does not leave me with a reasonable doubt.
95When I consider it in the context of the other evidence I heard, that finding is only strengthened. I will get into further detail about the Complainant's evidence at the third stage of the W.D. analysis, and my conclusion on the second stage should be read with that analysis in mind.
96Speaking for the Court of Appeal for Ontario in the case of R. v. J.J.R.D., 2006 CanLII 40088 (ON CA), [2006] O.J. No. 4749, Justice Doherty emphasized the role that other evidence can and should play in the evaluation of defence evidence at paragraph 53:
The trial judge's analysis of the evidence demonstrates the route he took to his verdict and permits effective appellate review. The trial judge rejected totally the appellant's denial because stacked beside A.D.'s evidence and the evidence concerning the diary, the appellant's evidence, despite the absence of any obvious flaws in it, did not leave the trial judge with a reasonable doubt. An outright rejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused's evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused's evidence. (Emphasis added)
97The present case does not present as stark a contrast as J.J.R.D. did. I have outlined in some detail the many flaws I found with the Defendant's testimony. I reference J.J.R.D. as further support that I can and should consider all evidence when determining if I am left with a reasonable doubt at the second stage of the W.D. analysis.
98The Complainant in this case gave her evidence in a largely credible manner. I found her testimony to be consistent and clear. When she disagreed with a suggestion put to her, she said so. When she needed clarification, she sought it. On the core points of her testimony, she was not shaken in cross-examination. I accept her account of her relationship with the Defendant. I will provide a more detailed assessment of her evidence below. With regard to the second stage of the W.D. analysis, I find that the Defendant's evidence, in the context of the credible evidence offered by the Complainant, does not leave me with a reasonable doubt.
W.D. – Stage 3
99Having found that I neither believe nor am left with a reasonable doubt by the evidence of the Defendant, I must now consider if, on all of the evidence I do accept, the Crown has proved the offence charged beyond a reasonable doubt.
100To obtain a conviction, the Crown must prove the following elements beyond a reasonable doubt:
(1) A communication by means of a "telecommunication";
(2) with a person who is, or who is believed to be, under 18 years old;
(3) for the purpose of facilitating the commission of an offence under s. 163.1.
101The Criminal Code lists several offences the facilitation of which would satisfy the last element, but in the present case the Crown has particularized its allegations to the making and accessing of child pornography.
102It is not controversial that the Defendant communicated with the Complainant by means of a telecommunication, in this case by mobile phone through various internet messaging platforms. The first element has been proved.
103The question in this case is the Defendant's knowledge of the Complainant's age. The Crown must prove beyond a reasonable doubt that he knew he was communicating with someone under the age of 18. Additionally, if there is an air of reality to the defence of taking reasonable steps to ascertain her age, the Crown must disprove that defence beyond a reasonable doubt.
104To meet its burden, the Crown called the Complainant as its only witness.
105I repeat that the function of a criminal trial is not to see which side is more believable. It's not a contest between the Defendant and Complainant to see who is more credible. The burden is always on the Crown to prove guilt beyond a reasonable doubt.
106I found the Complainant to be a thoughtful and candid witness. She had no difficulty admitting her role in their relationship. She took responsibility for her own actions. Given the lack of corroborative evidence from either side, it would have been easy to shade her evidence to inflict maximum damage on the Defendant without anyone being able to independently contradict her. But she did not. For example, she agreed with defence counsel that she may well have told the Defendant she was 18 when they first met. This is a very significant admission that could potentially lead to an acquittal. Rather than deny ever saying that to him, she testified that she may have said she was 18 but had it in her head that she told him she was 16. Her reason for giving him an inflated age in the first place was equally candid: she was tired of giving her real age to older males only to be told she was too young.
107When she couldn't remember something, she admitted it. She was asked, for example, when the Defendant first learned her real name. She had no firm memory of that event. Similarly, she was asked if she had to input an age 18 or greater to use the Omegle platform. Again, she wasn't sure. She was asked if she'd searched the internet for information about the wildfires in Alberta. Her response was "I can't say that I did not", but that owing to the fact that she had no memory either way saying she definitely did not would be inaccurate.
108Conversely, when she was sure, she was clear about it. She was asked if the Defendant had ever asked to see her identification. She said no. She was asked in cross-examination if she told the Defendant that her parents wanted to set her up with the 25-year old son of family friends. She was adamant that never happened. It was suggested she'd told the Defendant she attended a private prep school and was studying pre-law, and she was clear that was wrong. After denying the "prep school" suggestion, she was asked how she would have referred to her schooling in her message with the Defendant. Her answer was as clear as it was damning: "High school".
109It is with this assessment of her other evidence in mind that I consider her testimony on the crucial aspect of this case. Though she gave the Defendant an inflated age at the start of their communication, she testified that she told him her true age at some point before her birthday in 2016. She stated:
Complainant: He said something about driving or asked me how I found driving and I was confused, and I said I hadn't started driving, I'm 14. And he then made a joke about how that changes everything because he thought I was older and I got a bit concerned at that stage because by then we had been communicating regularly, we were also talking about non-sexual things, so I viewed him as a friend. I can't remember how I replied but he then in a conversation said under other circumstances he would stop, something along the lines of how under other circumstances he would stop talking to me, but this is a special case and he would continue.
110The Complainant turned 15 in December 2016. They began communicating in May 2016. If I accept her evidence, this conversation, therefore, must have taken place some time in the interim. In what was ultimately a 2 ½ year relationship, her true age became known no later than seven months after it began. The Defendant knew, for some two years, that the Complainant was under the age of 18.
111Taking all of the Complainant's evidence into account and weighing it against the backdrop of the rest of the evidence in the trial, I find I can accept the Complainant's testimony when she says she told the Defendant she was 14. She gave this evidence in the same clear and honest way she gave the rest of her evidence. When she says she told the Defendant her real age, I believe her.
112In my view, the Crown has proved beyond a reasonable doubt that the Defendant knew the Complainant was under the age of 18 when he communicated with her from 2016 – 2019. As stated in Morrison, supra, at paragraph 99, if a person knows something, they also believe it. Therefore, the Crown has proved that the Defendant believed the Complainant to be under the age of 18 at the relevant times. The second element noted above has been proved.
113The third element to be proved is that the communication was for the purpose of facilitating the commission of an offence under s. 163.1, specifically the making or accessing of child pornography.
114The Criminal Code defines child pornography as not only images or videos, but also written material that "advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this act". This definition encompasses the images, live videos, and text messages exchanged by the parties.
115As I stated earlier, facilitating is the act of making a particular outcome more likely or probable. Here, the Crown must prove that the conduct of the Defendant made the commission of the underlying offence more likely or probable.
116Did the messages, photos, and on-camera actions of the Defendant make it more likely or probable that he would access child pornography, or that it would be made? The answer is yes. By continuing the sexual discussions even after learning the Complainant's true age, he facilitated her sending him sexual images and messages. He normalized this abnormal conduct. He maintained the reciprocal nature of the relationship by complimenting her and by sending his own photos to her. This conclusion still stands even if I only consider the actions he said he took, i.e. that he only ever responded to her, and never initiated. He doesn't need to have initiated anything. By fueling this ongoing exchange, he facilitated its continuation. The third element has been proved.
Reasonable Steps
117I have already detailed the steps the Defendant claims to have taken to ascertain the true age of the Complainant. To review, they are:
(1) Seeing that she wrote "18" as her age on Omegle;
(2) Asking her what her memories of the 9/11 attacks were;
(3) Assessing the likelihood that someone in her teens would like the musical artist Pink;
(4) She told him she was going to turn 21 years old in a few days; and
(5) Her writing ability was above that of someone under the age of 18.
118Before I can consider the merits of this defence, I must first determine if there is an air of reality to it. Only if there is can I consider it as a potential defence to the charge.
119For a defence to have an air of reality, as noted in Cinous, supra, a judge must find that a properly instructed jury acting reasonably could acquit the accused on the basis of it. If the claimed defence has no evidentiary foundation it cannot form part of the trier of fact's analysis.
120At paragraph 119 of Morrison, supra, Justice Moldaver considered the air of reality test as related specifically to the reasonable steps defence. His Honour found that the evidence pointed to by the Defendant must be capable of supporting three findings:
(1) The Defendant took steps to ascertain the Complainant's age;
(2) Those steps were reasonable; and
(3) The Defendant honestly believed the Complainant was of legal age.
121I am not to weigh the merits of the defence at this first stage. As noted by Chief Justice McLachlin and Justice Bastarache at paragraph 53 of Cinous, supra:
In applying the air of reality test, a trial judge considers the totality of the evidence, and assumes the evidence relied upon by the accused to be true.
122I must assume that the steps the Defendant claims to have taken were actually taken. I must then assess if they are reasonably capable of supporting the findings noted above.
123In my view, only one of the five steps claimed by the Defendant is capable of supporting the necessary findings. I will address each in turn.
124The Defendant claimed to take some solace regarding the Complainant's age from the fact that she typed "18, f, aus" as her identifying information on Omegle. In his cross-examination, he admitted that people can pretend to be someone else on the internet, and that it was possible for underage persons to use that website by simply clicking on the right buttons. Based on his own testimony, he should have taken nothing from her statement of "18, f, aus". It was not a reasonable step.
125He said that during that first conversation he asked her about 9/11. I have already discussed the convoluted way in which this question can be related back to the age of the Complainant, and how her answer (which I must assume was given) cried out for further inquiry. He failed to undertake that inquiry. Taken at its highest, the evidence about his 9/11 question could support the finding that he took a step. But his failure to go further means it wasn't a reasonable one.
126His belief that the Complainant being a fan of Pink was somehow evidence of her advanced age is nonsense. I know of no age limit for liking or disliking any musical artist. Even suggesting that a person liking a certain artist is circumstantial evidence of their age is absurd. This evidence is incapable of supporting any of the findings required in Morrison.
127He testified that at one point near the end of their communication, she told him about her impending 21st birthday. Assuming this evidence is true, I find that it is capable of supporting the findings in Morrison. The evidence could support the finding that he took a step (albeit a passive one), that the step was reasonable, and that as a result he honestly believed her to be of legal age.
128Finally, his bald claim that her writing ability was too advanced for someone under the age of 18 is entirely too subjective to be of any use. Even if I accept that her writing was, in fact, beyond that age level, that doesn't prove or even reasonably point to the conclusion that she was actually over the legal age. It is entirely subjective, much like his claim regarding Pink. It is incapable of supporting any Morrison findings.
129What is left is the Defendant's claim that the Complainant told him she had her 21st birthday coming up. It is this piece of evidence alone that will be considered as his "reasonable steps" defence. The Crown must disprove beyond a reasonable doubt that the Defendant took reasonable steps to ascertain the Complainant's age. If I have a doubt on that point, I must acquit.
130I have no such doubt. As I have already said, I reject the evidence of the Defendant. Taking all the evidence into account, I find as a fact that the Complainant never said any such thing. Unlike the air of reality stage, where the merits of the defence are not considered, I must now determine if the effect of the evidence leaves me with a reasonable doubt. It does not.
Conclusion
131The Crown has proved the essential elements of the charged offence beyond a reasonable doubt. The Defendant communicated with the Complainant by telecommunication, knowing she was under 18 years of age, for the purpose of facilitating the commission of an offence under s. 163.1 of the Criminal Code.
132The Defendant will be found guilty.
Released: 7 December 2020
Signed: Justice S. Pratt