WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152,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 at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (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) 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. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

486.6(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. (2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Court of Appeal for Ontario

Date: 20230118 Docket: C69496

Huscroft, Trotter and Harvison Young JJ.A.

Between

His Majesty the King Respondent

and

S.R. Appellant

Counsel: Patrick J. Ducharme, for the appellant Brent Kettles, for the respondent

Heard and released orally: January 17, 2023

On appeal from the conviction entered on December 7, 2020 by Justice Scott G. Pratt of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant appeals from his conviction on a charge of child luring. The appellant argues that the trial judge erred in rejecting his evidence that he honestly believed the complainant was 18 years of age.

[2] We do not accept this argument.

[3] It was acknowledged that the appellant had engaged in sexual communications with the complainant when she was 14 years of age for a period of over two years. This involved explicit sexual messages, photos, videos, and video-chats. The Crown was required to prove that the appellant knew that the complainant was under 18. The appellant’s defence was that he honestly believed that the complainant was 18 years of age.

[4] The trial judge properly applied the three-step W.D. approach. He rejected the appellant’s evidence, and specifically his evidence as to the nature of his relationship with the complainant and his claim that the complainant never told him her true age. The trial judge found the complainant’s evidence to be credible and that the appellant’s evidence did not leave him with a reasonable doubt. Critically, the trial judge found that the complainant told the appellant that she was 14 years old, and that the Crown had proven beyond a reasonable doubt that the appellant knew she was under 18 years of age during the time he communicated with her.

[5] This finding precluded any possibility there was an air of reality that the appellant believed the complainant to be 18. The appellant invites this court to revisit the trial judge’s credibility findings, but that is not our role. The trial judge’s credibility findings were fully explained and are entitled to deference. The appellant has not established any basis for this court to interfere with them.

[6] The appeal is dismissed.

“Grant Huscroft J.A.” “Gary Trotter J.A.” “A. Harvison Young J.A.”