Corrected decision: The text of the original judgment was corrected on October 29, 2021 and the description of the correction is appended.
COURT OF APPEAL FOR ONTARIO
DATE: 20210920
DOCKET: C68292
Watt, Benotto and Jamal JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
Sakhi Alekozai Appellant
Counsel: Andrew Burgess, for the appellant Rebecca De Filippis, for the respondent
Heard: March 5, 2021 by videoconference
On appeal from the conviction entered on February 5, 2019 by Justice Victor Giourgas of the Ontario Court of Justice.
Watt J.A.:
[1] An advertisement appeared in the Escorts section of Backpages.com. Its title: “BACK only for the Afternoon – Tight Brand New girl in richmond hill today only – waiting – 18”.
[2] A picture accompanied the advertisement. A woman in a bedroom. Her face not visible. And a text from “Kathy”. A telephone number and an email address.
[3] The appellant sent a text to “Kathy”. He asked about rates and services. An exchange of messages followed. They made arrangements about all the essentials. Price. Services. Location.
[4] The appellant knocked on the hotel room door. “Kathy” said she would be there, waiting. But “Kathy” was not there. A police officer answered the door. He arrested the appellant on charges of internet child luring and communicating with a person to obtain sexual services for consideration from a person under 18.
[5] The appellant was convicted of both charges after a trial before a judge of the Ontario Court of Justice. He appeals his convictions.
[6] In these reasons, I explain why I conclude that the appeal fails.
The Background
[7] Like many others, this case arises of Project Raphael, a York Region Police Services (YRPS) sting operation aimed at combatting internet child luring. The project involved placing an advertisement in the Escorts section of Backpages.com. A police officer, posing as an underage female, would exchange messages with those who responded to the advertisement. Arrangements for sexual services would be concluded. When the respondent arrived at the designated location, he would be arrested.
The Advertisement
[8] The advertisement posted in the Escorts section of Backpages.com included a title, a picture, and some text. A disclaimer in this section of the website advises about its sexual content and that it is to be accessed only by those who are 18 or older and not considered minors in their state of residence. Anyone who agrees to the condition gets access to the website.
[9] The title and accompanying text are composed in language designed to appeal to those interested in purchasing sex from underage girls. The specific age of the underage girl is not stated in the advertisement.
[10] In this case, the posted title read:
BACK only for the Afternoon, Tight Brand-New girl in richmond hill today – waiting – 18
followed by some symbols and “18”. The accompanying photograph was of a female police officer in her 30s. Her face was not visible in the photograph.
[11] In addition to the title and photograph, the advertisement contained some further text,
Sexy, new and hot. Hi guys, I’m Kathy and I’m a girl who is sexy and young with a tight body, looking for fun. I’m only here today just visiting from out of town, in-calls only. Don’t miss this, you’ll be sorry. Text or e-mails only.
Contact information was a telephone number and an email address of KathyBlunt16@gmail.com.
The Response
[12] Within half an hour of its posting, the appellant responded to the advertisement. He proposed a specific type of sexual activity for one-half hour for which he would pay $80. He and “Kathy” exchanged messages for almost four hours.
The Discussion about Age
[13] Early in their exchange of messages, “Kathy” asked the appellant his age. He responded and asked for her address to book an appointment. She asked him to text her when he arrived at Leslie and Highway 7. She then added:
but Im a little younger than 18 ok?
The appellant responded:
That’s ur business hun I wouldn’t have id u. But I’ll text when I’m at Leslie and highway 7 thanks.
[14] The appellant advised “Kathy” that he had arrived at the intersection. “Kathy” responded:
Im avail now but I just want to be honest so ur not mad when u see me…i turn 17 soon but I look 18
The appellant answered twice in 20 seconds “ok” and “that’s fine babe” but “Kathy” did not receive the second message.
[15] The exchange of messages continued. The appellant asked why “Kathy” kept “insisting ur age” and added “I’m not into young girls. I would only look at u as an escort nothing personal”. Later, the appellant sent a message:
Don’t text back.
The Exchange Resumes
[16] About four minutes later, “Kathy” sent two texts “well u worry me” and “u want to see me or no”. The appellant agreed “sure just be serious plz”. “Kathy” provided the name of the hotel, its address, and her room number.
The Arrest
[17] The appellant knocked on the door of the room where he agreed to meet “Kathy”. A police officer answered and arrested the appellant.
The Positions of the Parties at Trial
[18] The case for the Crown consisted of the text messages exchanged between the appellant and “Kathy”, print-outs of Backpages.com, including the advertisement posted by the undercover police officer and the testimony of the undercover police officer, and a civilian member of YRPS. The Crown contended that the evidence established that the appellant believed “Kathy” was underage. His interest was to purchase sex and he was indifferent about the age of his sexual partner. In addition, the Crown argued that the appellant’s evidence that he believed “Kathy” was over 18 was unworthy of belief, and at all events, the appellant took no reasonable steps to determine her true age.
[19] The appellant testified as the only defence witness. He admitted exchanging text messages with “Kathy” to arrange sexual services for money. He always believed “Kathy” was over 18 and assumed her texts to the contrary were simply a ploy to get more money from him.
The Reasons of the Trial Judge
[20] The trial judge identified two issues that required decision:
i. whether Crown counsel had proven beyond a reasonable doubt that the appellant believed his collocutor was under 18; and
ii. whether the Crown had proven beyond a reasonable doubt that the appellant had not taken the reasonable steps required to ascertain the collocutor’s true age.
[21] The essence of the trial judge’s reasons concluding that the appellant’s guilt had been established beyond a reasonable doubt appears in three paragraphs of his written reasons:
The texts are powerful evidence that Mr. Alekozai was indifferent to the age of the undercover. The phrases “That’s ur business hun I wouldn’t have id u”, “That’s fine babe” and “Ok but why do you keep insisting ur age if u fucked older men before what different would I make and it’s a turn off I’m not into young girls I would only look at u as an escort nothing personal” clearly indicate along with all of the other evidence that Mr. Alekozai wished to purchase sex from this escort and did not mind that she was underaged. The fact that he became annoyed with her for repeatedly raising the issue of being underaged serves to reinforce his indifference. He was trying to tell her that he didn’t care what her age was and that she shouldn’t keep raising the issue.
Mr. Alekozai’s explanation that he said these things because he was trying to deflect her asking for more money does not make sense. The issue of increasing the price was never raised. Nothing in the texts suggests that it was even contemplated. I reject Mr. Alekozai’s explanation in this regard. His intent and belief was clear. I find that the Crown has established that Mr. Alekozai believed that he was dealing with an underaged escort and that he showed up at the hotel room in order to exchange money for sexual services from that escort.
Even if I had a reasonable doubt about Mr. Alekozai’s belief as to the age of the escort, the Crown has established beyond a reasonable doubt that Mr. Alekozai did not take reasonable steps to determine that she was an adult. Despite the factors at play in paragraph 20, more was required of Mr. Alekozai in circumstances where the undercover repeatedly stated that she was underaged and that she was trying to be honest and that she never wavered from that position. Faced with these assertions, Mr. Alekozai was required to take reasonable steps to satisfy himself that this escort’s age was at 18 years. [Emphasis in original.]
The Grounds of Appeal
[22] The appellant advances two grounds of appeal. He says that the trial judge erred:
i. in conflating the standards of recklessness and belief in determining the mens rea of the luring offence; and
ii. in failing to consider whether the evidence as a whole raised a reasonable doubt about the appellant’s guilt.
Ground #1: Proof of the Fault Element in Child Luring
[23] Although the appellant was convicted of offences under both sections 172.1(1)(a) and 286.1(2) of the Criminal Code, the principal focus of this ground of appeal is the child luring conviction under s. 172.1(1)(a).
[24] The circumstances of the offences, as well as the essence of the trial judge’s reasons for finding guilt established, appear in earlier paragraphs and require no repetition. A brief recapture of the arguments advanced will provide a suitable framework for the discussion that follows.
The Arguments on Appeal
[25] The appellant contends that developments in the jurisprudence since the trial judge rendered his decision require a new trial.
[26] At the time of trial, the appellant reminds us, the appellant’s indifference to his collocutor’s age was sufficient to establish his guilt in light of the presumptive belief for which s. 172.1(3) provided and the absence of reasonable steps. Two pathways to conviction existed. Proof of actual belief in the collocutor’s underage status. Or proof of unreasonable indifference to the possibility that the collocutor was underage as evidenced by the failure to take the necessary reasonable steps to determine that age.
[27] But then the law changed in R. v. Morrisson, 2019 SCC 15. Indifference to the collocutor’s age was not enough. The Crown now must prove beyond a reasonable doubt that the accused believed the collocutor was underage. Proof that an accused did not take reasonable steps simply precludes the trier of fact from considering the defence that the accused honestly believed the collocutor was of legal age. It does not provide an alternative pathway to prove guilt.
[28] In this case, the appellant acknowledges, the trial judge did find that the appellant believed that the collocutor was underage. But this conclusion was grounded on recklessness or indifference to the collocutor’s age neither of which is the equivalent of what is required – an actual belief. In addition, the trial judge concluded that the appellant had failed to take reasonable steps, thus under the then applicable law, the appellant was guilty irrespective of whether he was merely indifferent to “Kathy’s” age or actually believed her to be 18. As in Morrison, a new trial is required.
[29] The respondent says that the appellant was not convicted because he was reckless as to “Kathy’s” age, or because he failed to take reasonable steps to determine her age. He was convicted because the trial judge was satisfied that the appellant subjectively believed “Kathy” was underage.
[30] Read as a whole, the trial judge’s reasons demonstrate that he was satisfied beyond a reasonable doubt that the Crown had proven that the appellant believed “Kathy” was underage. The trial judge emphasized that the burden was on the Crown to prove that the appellant believed “Kathy” was underage and that he did not take such reasonable steps as required into consideration in forming his mistaken belief in her age. The trial judge found that the appellant believed that he was dealing with an underaged escort and that he showed up at the hotel room in order to exchange money for sexual services from that underaged escort.
[31] In his oral ruling, the trial judge described the case for the Crown as overwhelming. The appellant’s evidence did not raise a reasonable doubt. But even if that evidence were to have raised a reasonable doubt, the appellant had failed to meet the evidentiary burden that he took reasonable steps in order to put the mistaken belief in age defence in play.
[32] The respondent says that the trial judge’s statement that the appellant was “indifferent” to “Kathy’s” age does not amount to a finding that the appellant was reckless about whether she was underage. An accused who is reckless never turns their mind to the collocutor’s age. In other words, recklessness is about the absence of knowledge. Indifference, on the other hand, refers to a person who is marked by a lack of interest, enthusiasm, or concern for something, or by no special liking for or dislike of something. Indifference is about the absence of interest. Lack of interest in “Kathy’s” young age is not the equivalent of lack of awareness of that age.
[33] The trial judge’s finding that the appellant was indifferent to “Kathy’s” underage status was responsive to the arguments advanced at trial. Trial counsel submitted that the appellant’s text that he was “not into young girls” demonstrated his belief that “Kathy” was over 18. The Crown did not contest that the appellant was not specifically interested in underaged partners, but argued that the appellant believed “Kathy” was not 18, a fact that did not matter to him since this was simply a business transaction – cash for sexual services. The finding of indifference was a rejection of the accused’s argument that his stated disinterest should raise a reasonable doubt about his belief in “Kathy’s” age.
[34] In this case, the respondent concludes, the trial judge was well aware of the difference between subjective belief and recklessness. He specifically described belief and reasonable steps as distinct inquiries. He was satisfied that the appellant believed “Kathy” was underage and did not rely on the lack of reasonable steps to reach that conclusion.
The Governing Principles
[35] As I have said, the principal focus of the appellant’s submissions has been on the conviction of child luring under s. 172.1(1)(a), not that under s. 286.1(2). Although the elements of each offence differ, each has a common requirement that an accused believe in the underage status of the escort and a “reasonable steps” (s. 172.1(4)) or “all reasonable steps” (s. 150.1(4)) requirement to engage a mistaken belief in age defence. The principles that follow are those that apply to the child luring offence under s. 172.1.
[36] The essential elements of child luring under s. 172.1 may be briefly described as:
- communication
- age
- purpose
The age element refers to the actual age of the person with whom the communication takes place or the accused’s belief in that person’s age. See, R. v. Levigne, 2010 SCC 25, at para. 23; Morrisson, at para. 43; R. v. Carbone, 2020 ONCA 394, at para. 80.
[37] When the constitutionality of ss. 172.1(3) and (4) had not been in issue or finally determined, two pathways were available to the Crown to establish guilt where, as here, there was no underage collocutor. The Crown could prove that the accused believed that the collocutor was underage, or that the accused had failed to take reasonable steps to ascertain the collocutor’s actual age: R. v. Morrison, 2019 SCC 15, at para. 49; Carbone, at para. 75.
[38] In Morrison, also a case of child luring arising out of a police sting operation, the Supreme Court confirmed this court’s decision that s. 172.1(3) was unconstitutional, but not s. 172.1(4): Morrison, at paras. 73, 92. However, the Supreme Court differed with the courts below about the reasonable steps requirement in s. 172.1(4). That provision does not, in the absence of the presumption under s. 172.1(3), provide a second pathway to conviction, rather it simply limits the availability of the mistaken belief in age defence: Morrison, at para. 80.
[39] After the decision of the Supreme Court in Morrison, to prove the fault element in cases involving a police sting with no underage participant, the Crown must prove beyond a reasonable doubt that the accused:
i. believed the other person or collocutor was underage; or
ii. was wilfully blind whether the other person was underage.
Recklessness as to the other person’s age is not sufficient to prove the fault element: Morrison, at para. 102; Carbone, at para. 89.
[40] After Morrison, an accused charged with communicating with a person believed to be under 18 must be acquitted, regardless of whether he took any reasonable steps to determine the age of his collocutor even if he suspected that person was under 18 but decided to proceed in any event, or if he never turned his mind to the collocutor’s age. Prior to Morrison, the reckless or negligent accused would be convicted so long as the Crown proved that the accused did not take the reasonable steps required to determine the collocutor’s true age: Carbone, at para. 91.
[41] After Morrison, where the Crown proves beyond a reasonable doubt that an accused failed to take reasonable steps to ascertain the collocutor’s age, s. 172.1(4) forecloses an accused’s reliance on the defence that they believed the collocutor was of legal age. But this falls short of what is necessary to establish guilt. This is so because the reasonable steps requirement under s. 172.1(4) does not provide an independent pathway to conviction. Once the trier of fact is satisfied that the Crown has proven that the accused did not take reasonable steps, the trier of fact must consider the whole of the evidence, including evidence about the accused’s failure to take reasonable steps, to decide whether the Crown has discharged its legal burden of proving that the accused believed the other person was underage: Morrison, at para. 129.
[42] Recklessness is a state of mind. It is the state of mind of a person who is aware that their conduct might bring about the result prohibited by the criminal law, but who persists in the conduct despite the risk. Recklessness is subjective. It entails an appreciation of some level of risk and the decision to take that risk. In most cases, an accused who never turns their mind to the age of the other person is properly characterized as reckless. Reckless indifference also describes a subjective state of mind, a choice to treat age as irrelevant and to assume the risk associated with that choice: Morrison, at para. 100 citing R. v. Sansregret, [1985] 1 S.C.R. 570, at p. 582; Carbone, at paras. 125-127.
[43] On the other hand, wilful blindness, sometimes referred to as deliberate ignorance, is established where a person who becomes aware of the need for some inquiry declines to make the inquiry because they do not wish to know the truth, rather prefer to remain ignorant: Morrison, at para. 100; Sansregret, at p. 584.
[44] The mistaken belief in age defences for which ss. 172.1(4) and 150.1(4) impose an evidentiary burden on the accused to put the defence in play, and a persuasive burden on the Crown, once in play, to negate it: R. v. W.G., 2021 ONCA 578, at paras. 54-56. The Crown may negate these defences in either of two ways. The Crown may prove that the accused did not honestly believe that the other person was at least 18 years old at the time of the offence. Or the Crown may prove that, despite the accused’s claim that they honestly believed that the other person was at least 18, the accused did not take reasonable (s. 172.1(4)) or all reasonable (s. 150.1(4)) steps to ascertain the other person’s age: Morrison, at para. 88; Carbone, at para. 116; W.G., at para. 57.
[45] The analysis of “reasonable steps” or “all reasonable steps” is highly contextual and fact-specific. “Reasonable steps” are steps that a reasonable person would take, in the same circumstances known to the accused at the time, to find out the other person’s age. The reasonable steps requirement includes objective as well as subjective elements. Viewed objectively, the steps must be reasonable. The reasonableness of the steps must be assessed in the circumstances known to the accused: W.G., at para. 60, citing Morrison, at para. 105.
[46] To be “reasonable steps”, the steps must be meaningful. They must be steps that provide information reasonably capable of supporting an accused’s belief that the other person is of legal age. Relevant factors include not only the nature of the steps themselves, but also the information those steps solicit: W.G., at para. 61.
The Principles Applied
[47] I would not give effect to this ground of appeal. I reach this conclusion even though the trial judge did not have the benefit of the Supreme Court’s decision in Morrison to guide him in his analysis.
[48] The appellant was charged with offences under ss. 172.1(1)(a) and 286.1(2). No dispute arose about proof of many of the essential elements of each offence. Under s. 172.1(1)(a), there was no controversy about the fact or manner of the appellant’s communication or about his purpose in doing so. Likewise, under s. 286.1(2), communication and purpose were unchallenged.
[49] The contested ground had to do with the fault element and the availability of the mistaken belief in age defence in ss. 172.1(4) and 150.1(4). The trial judge identified these as the issues to be determined at the outset of his written reasons.
[50] The trial judge considered first whether the Crown had proven beyond a reasonable doubt that the appellant believed “Kathy” was under 18. He reviewed the evidence on the issue, principally the text exchanges, and the appellant’s testimony about his state of belief. He rejected the appellant’s explanation that he did not believe “Kathy” was underaged. From previous experience, the appellant had generally found that escorts were always older than advertised. He considered that “Kathy” was trying to get more money for her services by portraying herself as a child. No such discussion ever occurred during their exchange.
[51] The trial judge specifically found that the Crown had proven that the appellant believed that he was dealing with an underaged escort. He showed up at the designated hotel room with the agreed upon funds to exchange money for the sexual services from that underaged escort. This finding is firmly grounded in the evidence adduced at trial. It was not cumbered by any misapprehension of the evidence, impermissible use of the unconstitutional presumption in s. 172.1(3), or error about the state of mind required to establish the fault element of the offences charged.
[52] Nor am I persuaded that the trial judge’s periodic reference to the appellant’s indifference to “Kathy’s” age tainted his finding that the appellant actually believed “Kathy” was underage, or amounted to finding guilt established on an impermissible standard of recklessness, rather than actual belief or wilful blindness as to underage status. Belief in underage status and indifference about its significance in pursuit of sexual services are not incompatible.
[53] Once having found the fault element established, the trial judge then examined whether the mistaken belief in age defence was available to the appellant. He correctly identified the incidence of the evidentiary and persuasive burdens of proof on the defence and Crown respectively.
[54] The trial judge concluded that the appellant had failed to meet the evidentiary burden necessary to put the defence of mistaken belief in age in play. This finding was available on the evidence adduced at trial. Whether the standard be “reasonable steps” (s. 172.1(4)) or “all reasonable steps” (s. 150.1(4)) is of no real moment here. The appellant’s invocation of the disclaimer on the Backpages.com website (restricted to those 18 and over), the stated age of 18 in the advertisement (with the email address including a reference to 16), and the apparent age of the person depicted in the photo included in the advertisement, in combination, are insufficient to invoke the defence. The trial judge did not err in rejecting the mistaken belief in age defence, nor did he use its rejection as an independent pathway to find the appellant’s guilt established.
Ground #2: Failure to Consider the Totality of the Evidence
[55] The second ground of appeal is related to the first. Once again, a brief review of the arguments advanced will provide an appropriate setting for the discussion that follows.
The Arguments on Appeal
[56] The appellant submits that, as a general rule, a judge who has rejected the evidence of an accused must then consider whether the totality of the evidence satisfies them, as the trier of fact, of the guilt of the accused. This is the third step in the analysis under R. v. W(D), [1991] 1 S.C.R. 742. This principle applies to the offences with which the appellant was charged. However, when the appellant was tried, this step was not necessary because an accused’s failure to take reasonable or all reasonable steps to ascertain the collocutor’s age afforded a second pathway to conviction.
[57] In this case, in accordance with what was when the law, the trial judge did not engage in any real analysis of the totality of the evidence or assess whether the cumulative force of the evidence satisfied the standard of proof required. The trial judge failed to carefully analyze the messages exchanged between the appellant and “Kathy”, especially those showing skepticism about the collocutor’s report of her age.
[58] In addition, the appellant says, the trial judge failed to engage with the undercover officer’s testimony about the type of person who might claim to be under 18 on the Internet. Rejection of the appellant’s testimony did not end the trial judge’s inquiry to determine whether the appellant’s guilt had been proven beyond a reasonable doubt. A further examination of the evidence was necessary, but not done. A new trial is required.
[59] The focus of this ground of appeal, the respondent begins, is on the failure of the trial judge to properly apply the third step of the W(D) analysis. No such failure occurred. The trial judge expressly found that the appellant subjectively believed “Kathy” was underage. This finding was recorded on the evidence as a whole and is untainted by any reference to the appellant’s failure to take reasonable steps.
[60] As the respondent sees it, the appellant’s complaint is twofold. The first aspect – that an analysis of the messages does not support the conclusion that the appellant actually believed that “Kathy” was underage – is neither more nor less than an invitation to redo the factual findings made by the trial judge. The appellant does not say that the finding of guilt is unreasonable, only that different findings of fact should have been made. The trial judge carefully scrutinized the evidence. His findings of fact are entitled to deference here.
[61] The second prong of the appellant’s argument is that the trial judge failed to consider whether the undercover officer’s evidence could raise a reasonable doubt about the appellant’s guilt. The failure to mention this evidence does not amount to reversible error. This evidence had nothing to do with proof of the fault element or disproof of the honest but mistaken belief in age defence. This evidence formed no part of the defence submissions at trial. A trial judge is not required to consider every piece of evidence adduced at trial or to respond to arguments not put forward there.
The Governing Principles
[62] The principles that assist in resolution of this claim of error are commonplace and in no need of painstaking recital.
[63] The jury instructions suggested in W(D), the familiar three steps, are well known. Equally well established is its purpose: to make it clear that the principle of reasonable doubt applies to credibility and to ensure that the verdict rendered at trial is not the product of a simple choice between the case for the Crown, on the one hand, and that of the defence, on the other: R. v. Y. (C.L.), [2008] 1 S.C.R. 5, at para. 8.
[64] Equally fundamental and stated first in W(D) itself is the principle that the steps of W(D) need not be religiously followed or articulated as if a catechism. Substance matters, not form: W(D), at p. 758; Y. (C.L.), at para. 7. What matters is whether the correct burden and standard of proof were applied, not the language used in their application: Y. (C.L.), at para. 7.
[65] The final point concerns the obligation of a trial judge in their capacity as trier of fact to discuss the evidence and the arguments advanced by counsel. A trial judge is not required to discuss all the evidence related to a particular point or to answer each and every argument advanced by counsel: R. v. Vuradin, 2013 SCC 38, at para. 17, citing R. v. M. (R.E.), [2008] 3 S.C.R. 3, at paras. 32, 64 and R. v. Dinardo, [2008] 1 S.C.R. 788, at para. 30.
The Principles Applied
[66] In my respectful view, this ground lacks persuasive force.
[67] The reasons of the trial judge demonstrate his awareness of the principles articulated in W(D) which he included in their pristine form in his reasons. The only live issue at trial had to do with proof of the fault element. The other elements, communication and purpose, were not only not in dispute, but also plainly established on the evidence.
[68] The appellant testified. He said he believed “Kathy” was over 18. The trial judge did not believe the appellant’s evidence. Nor did the appellant’s evidence raise a reasonable doubt about the only contested issue at trial, whether the appellant believed, as he said, that “Kathy” was over 18. A trial judge made it clear that the burden was on the Crown to prove beyond a reasonable doubt:
i. that the appellant believed “Kathy” was underage; and
ii. that the appellant did not take reasonable steps in reaching his belief that “Kathy” was over 18.
Further, the trial judge was satisfied that the Crown had proven the appellant actually believed that “Kathy” was under 18 and that he had taken no reasonable steps to ascertain her true age. The complaint that the trial judge did not consider all the evidence in reaching his conclusion fails.
[69] Nor can the submission that the trial judge erred in concluding, from his analysis of the message traffic, that the appellant believed that “Kathy” was under 18 succeed. Absent a specific claim of misapprehension of evidence or unreasonable verdict, the argument is but a thinly-veneered invitation for a re-weighing of the evidence and re-calibration of where the balance settles. This exceeds the scope of our authority.
[70] That the trial judge failed to rehearse the evidence of the undercover officer in deciding whether the appellant’s guilt had been established affords no basis for our intervention. Defence counsel did not advance this argument at trial. The evidence in issue consisted largely of generalities unmoored from the evidence at trial and, in some respects at least, of doubtful relevance and admissibility.
Disposition
[71] For these reasons, I would dismiss the appeal.
Released: “D.W.” September 20, 2021
“David Watt J.A.”
“I agree. M.L. Benotto J.A.”
“I agree. M. Jamal J.A.”
Erratum
Correction made October 29, 2021: The word “is” in the first sentence of paragraph 63 was replaced with the word “are”.
