Her Majesty the Queen v. Dragos [Indexed as: R. v. Dragos]

111 O.R. (3d) 481

2012 ONCA 538

Court of Appeal for Ontario,

Laskin, Cronk and Pepall JJ.A.

August 13, 2012

Criminal law -- Internet luring -- Mistake of age -- Accused meeting complainant on Internet chat site -- Accused making single pro forma inquiry about her age and then relying on her claim that she was 14 -- Complainant's mother telling accused complainant "way underage" and threatening to advise police if he persisted -- Accused subsequently meeting complainant and engaging in sexual touching -- Accused's appeal from conviction for Internet luring dismissed -- Trial judge correctly finding that accused did not take any steps to ascertain complainant's age after she initially told him that she was 14 -- Section 172.1(4) requiring accused claiming mistake of age to have exercised degree of care in ascertaining complainant's age that reasonable person in circumstances would have exercised -- Accused failing to meet that standard -- Appeal from conviction dismissed -- Criminal Code, R.S.C. 1985, c. C-46, s. 172.1(4).

Criminal law -- Internet luring -- Sentence -- Accused with no criminal record meeting 13-year-old girl on Internet chat site -- Accused encouraging complainant to make and transmit child pornography that accused recorded and saved -- Accused meeting complainant and engaging in sexual touching after being told by her mother that complainant was "way underage" -- Accused convicted of Internet luring, sexual interference and indecent exposure and pleading guilty to possession of child pornography -- Sentence of 23 months' incarceration (including 18 months for Internet luring) followed by three years' probation affirmed on appeal -- Sentence fit notwithstanding four years on restrictive bail conditions -- Grooming of complainant and possession of child pornography were aggravating factors in context of Internet luring.

Criminal law -- Sentencing -- Bail -- Accused on bail for almost four years subject to curfew and requirement that he be accompanied by surety when he left his house -- Terms not amounting to house arrest -- Trial judge expressly taking accused's compliance with strict bail terms into account as mitigating factor in imposing sentence -- Trial judge not required to engage in precise mathematical calculation of credit to be given for pre-sentence bail -- Accused's sentence appeal dismissed.

The accused was convicted of Internet luring, sexual interference, sexual assault, invitation to sexual touching and indecent exposure, and pleaded guilty to possession of child pornography. His convictions on the charges of invitation to sexual touching and sexual assault were stayed. The accused met the 13-year-old complainant on an Internet chat room site and asked her how old she was. She told him that she was 14. He never again inquired about her age notwithstanding many comments she made which should have caused him to make additional inquiries about her age, including a statement that she was in grade 9. He repeatedly encouraged her to expose her naked breasts while he masturbated [page482] and exposed his genitals to her by webcam. He recorded and saved the images. When the complainant's mother discovered the accused's telephone number on her telephone bill and learned that the complainant had met the accused in a chat room, the mother called the accused, told him that the complainant was "way underage" and warned him that she would call the police if the contact persisted. The accused and the complainant continued to communicate over the Internet, and the accused arranged a clandestine meeting with the complainant at a hotel, where they engaged in various sexual acts, short of sexual intercourse. The accused was 24 years old at the time of the offences and had no criminal record. He was sentenced to a total of 23 months' incarceration (18 months for Internet luring, four months consecutive for sexual interference, one month consecutive for possession of child pornography and one month concurrent for indecent exposure), less two-for-one credit for 73 days of pre-sentence custody, followed by three years' probation. He appealed the convictions, arguing that the trial judge erred in rejecting the limited defence of mistake of age. He also appealed the sentence.

Held, the appeal should be dismissed.

The trial judge was fully alert to the fact that s. 172.1(4) of the Criminal Code required the accused to take "reasonable steps" to ascertain the complainant's age, while s. 150.1(4) required him to take "all reasonable steps". He correctly concluded that the accused's conduct in relation to ascertaining the complainant's age met neither of those standards. The trial judge also did not err in employing the equivalent of a due diligence test in assessing whether the accused took reasonable steps to ascertain the complainant's age. Section 172.1(4) requires an accused who claims mistake of age to have exercised a degree of care in ascertaining a complainant's age that a reasonable person in the circumstances would have exercised. To the extent that the trial judge's reasons could be read as requiring the accused to be highly sceptical of the complainant's assertion that she was 14 years old, there was no error in light of the many and varied red flags that the complainant may not have been 14 years old.

The trial judge expressly took the duration and conditions of the accused's restrictive bail into account as a mitigating factor in imposing sentence. He was not required to engage in a precise mathematical calculation of the credit to be given for pre-sentence bail. The mitigating weight to be assigned to pre- sentence bail, if any, is a discretionary matter for the sentencing judge. Nor was the overall sentence unfit. The accused was persistent and relentless in his pursuit of sexual gratification from the complainant, and his conduct was consistent with grooming her. Grooming and possession of the child pornography in the context of Internet luring constitutes an aggravating feature when determining a fit sentence for the offence of luring.

APPEAL by the accused from the conviction entered by R.J. Smith J., 2010 ONSC 3093 (S.C.J.) and from the sentence imposed, 2011 ONSC 183 (S.C.J.).

Cases referred toR. v. Downes (2006), 2006 3957 (ON CA), 79 O.R. (3d) 321, [2006] O.J. No. 555, 208 O.A.C. 324, 205 C.C.C. (3d) 488, 37 C.R. (6th) 46, 69 W.C.B. (2d) 12 (C.A.); R. v. Jarvis, 2006 27300 (ON CA), [2006] O.J. No. 3241, 214 O.A.C. 189, 211 C.C.C. (3d) 20, 41 C.R. (6th) 190 (C.A.); R. v. Thain, [2009] O.J. No. 1022, 2009 ONCA 223, 247 O.A.C. 55, 243 C.C.C. (3d) 230; R. v. Woodward (2011), 107 O.R. (3d) 81, [2011] O.J. No. 4216, 2011 ONCA 610, 284 O.A.C. 151, 276 C.C.C. (3d) 86, 97 W.C.B. (2d) 665, consd Other cases referred to R. v. A. (J.), [2011] 2 S.C.R. 440, [2011] S.C.J. No. 28, 2011 SCC 28, 417 N.R. 1, EYB 2011-191057, 2011EXP-1693, J.E. 2011-931, 84 C.R. (6th) 1, 271 C.C.C. (3d) 1, 335 D.L.R. (4th) 108, 95 W.C.B. (2d) 792; [page483] R. v. Cornejo (2003), 2003 26893 (ON CA), 68 O.R. (3d) 117, [2003] O.J. No. 4517, 179 O.A.C. 182, 181 C.C.C. (3d) 206, 18 C.R. (6th) 124, 61 W.C.B. (2d) 513 (C.A.) [Leave to appeal to S.C.C. refused [2004] S.C.C.A. No. 32]; R. v. Hayes, [1991] A.J. No. 1232, 12 W.C.B. (2d) 457 (Q.B.); R. v. Hess; R. v. Nguyen, 1990 89 (SCC), [1990] 2 S.C.R. 906, [1990] S.C.J. No. 91, 119 N.R. 353, [1990] 6 W.W.R. 289, J.E. 90-1424, 73 Man. R. (2d) 1, 46 O.A.C. 13, 59 C.C.C. (3d) 161, 79 C.R. (3d) 332, 50 C.R.R. 71, 11 W.C.B. (2d) 199; R. v. Hunjan, [2007] O.J. No. 520, 2007 ONCA 102; R. v. Ijam (2007), 87 O.R. (3d) 81, [2007] O.J. No. 3395, 2007 ONCA 597, 228 O.A.C. 296, 226 C.C.C. (3d) 376, 51 C.R. (6th) 150, 76 W.C.B. (2d) 147; R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729, [1974] S.C.J. No. 76, 44 D.L.R. (3d) 351, 1 N.R. 322, 15 C.C.C. (2d) 524, 26 C.R.N.S. 1; R. v. Lawes, [2007] O.J. No. 50, 2007 ONCA 10, 72 W.C.B. (2d) 487; R. v. Levigne, [2010] 2 S.C.R. 3, [2010] S.C.J. No. 25, 2010 SCC 25, 257 C.C.C. (3d) 1, 403 N.R. 275, EYB 2010-176692, 30 Alta. L.R. (5th) 85, 2010EXP-2277, J.E. 2010-1273, 321 D.L.R. (4th) 261, 482 A.R. 49, 77 C.R. (6th) 1; R. v. P. (L.T.), 1997 12464 (BC CA), [1997] B.C.J. No. 24, 86 B.C.A.C. 20, 113 C.C.C. (3d) 42, 33 W.C.B. (2d) 292 (C.A.) Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 150.1(4), 151 [as am], 152 [as am.], 172.1 [as am.], (1)(c) [as am.], (4), 173(2) [as am.], 273.2(b) Tackling Violent Crime Act, S.C. 2008, c. 6, s. 54

Howard L. Krongold, for appellant. Deborah Calderwood, for respondent.

The judgment of the court was delivered by

CRONK J.A.:-- I. Introduction

[1] The appellant, Bogdan Dragos, was convicted of Internet luring, sexual interference, indecent exposure, sexual assault, invitation to sexual touching and possession of child pornography. His convictions on the charges of invitation to sexual touching and sexual assault were stayed on the basis of R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729, [1974] S.C.J. No. 76. He was sentenced to a total of 23 months' imprisonment, less credit for 73 days of pre-sentence custody on a two-for-one basis, plus three years' probation. He appeals from his convictions on all [page484] counts, except for the possession of child pornography count to which he pleaded guilty, [See Note 1 below] and against sentence.

[2] For the reasons that follow, I would dismiss both the conviction and the sentence appeals. II. Facts

[3] The appellant met the complainant, "E.B.", on an Internet chat room site in late September or early October of 2006. During their first encounter on the chat room site, the appellant asked E.B. how old she was. She told him she was 14 years old. In fact, she was only 13 years of age. This was the only time that the appellant inquired of E.B. about her age.

[4] In their initial online conversation, the appellant told E.B. that he was 18 years old. He subsequently disclosed to her that he was actually 24 years of age.

[5] For the next three and one-half months, the appellant and E.B. communicated regularly over the Internet using the MSN chat service. At trial, approximately 1,000 pages of their electronic exchanges were admitted into evidence. These communications contain examples of explicit sexual language, and incidents in which the appellant repeatedly encouraged E.B. to expose her naked breasts to him while he masturbated and exposed his genitals to her by webcam. When E.B. did expose her breasts, the appellant recorded the images by webcam and saved them on his computer. There is no suggestion that he disseminated these images to anyone else.

[6] Throughout her contacts with the appellant, E.B. tried to present herself as older than she actually was. When registering on the chat room site, she indicated that she was 14 years old, one year older than her true age. Although she was in grade 8, she told the appellant that she was in grade 9. In her numerous MSN messages, she indicated that she had previously dated "older guys", used sexually explicit "street language", implied that she was sexually experienced and suggested -- notwithstanding her age -- that her weight was similar to that of an 11-year-old.

[7] In December 2006, E.B.'s mother discovered long-distance telephone calls to the appellant's telephone number on her phone bill. She called the number and spoke with the appellant. [page485] On discovering that the appellant had met E.B. in a chat room, E.B.'s mother told the appellant that E.B. was "way underage". She also told him that he was to have no further contact with E.B. and warned that if she saw his number on her phone bill again, she would call the police. At the time of this call, E.B.'s mother was unaware of the extent and sexual nature of the communications between E.B. and the appellant.

[8] Contrary to E.B.'s mother's clear directions to the appellant, the appellant and E.B. continued to communicate over the Internet and the appellant arranged to meet E.B. in January 2007 at a hotel near E.B.'s home for a sexual encounter. E.B. attended the rendezvous, as agreed.

[9] While alone together in a hotel room, the appellant and E.B. removed their clothes and participated in various sexual acts and sexual touching, but did not engage in sexual intercourse. The police arrived while the appellant and E.B. were still undressed and in the hotel room. They were taken to the police station, the appellant was arrested and both gave videotaped statements to the police. In his statement, the appellant said that he had stopped short of having intercourse with E.B. because they both "felt bad about it" but that they "did everything else". III. Limited Defence of Mistake of Age

[10] At trial, the defence theory was that the appellant at all times had an honest but mistaken belief that E.B. was 14 years of age. Relying on E.B.'s statement to him that she was 14 years old, the fact that they met on an Internet chat site for people 14 years old and older, E.B.'s claims that she was in grade 9 and that she had dated older guys, and her use of sexualized language in their communications, the appellant maintained that he had taken sufficient steps in the circumstances to ascertain E.B.'s actual age.

[11] The central issue, therefore, was whether the Crown had proved beyond a reasonable doubt that the appellant failed to take sufficient steps in all the circumstances to ascertain E.B.'s age.

[12] Under the relevant provisions of the Criminal Code, R.S.C. 1985, c. C-46, the requisite legal standards for the determination of the sufficiency of steps taken to ascertain a complainant's age arguably vary according to the offence alleged. Thus, at the relevant times, in respect of the offences of sexual interference (s. 151), invitation to sexual touching (s. 152) and indecent exposure (s. 173(2)), s. 150.1(4) of the Code stated:

150.1(4) It is not a defence to a charge under section 151 or 152 . . . or 173(2) . . . that the accused believed that the complainant was fourteen [page486] years of age or more at the time the offence is alleged to have been committed unless the accused took all reasonable steps to ascertain the age of the complainant. [See Note 2 below] (Emphasis added)

[13] In contrast, in respect of the offence of child Internet luring (s. 172.1(1)(c)), s. 172.1(4) of the Code provided in material part as follows:

172.1(4) It is not a defence to a charge [of Internet luring under s. 172.1(1)(c)] that the accused believed that the person . . . was at least . . . fourteen years of age . . . unless the accused took reasonable steps to ascertain the age of the person. (Emphasis added)

[14] Sections 150.1(4) and 172.1(4) of the Code thus establish a limited defence of mistaken belief in the age of a complainant. For the class of offences contemplated under that provision, s. 150.1(4) creates this limited defence where the accused took "all reasonable steps" (emphasis added) to ascertain the age of the complainant. In relation to the offence of child Internet luring, s. 172.1(4) contemplates a defence of mistake of age on proof that the accused took "reasonable steps" to ascertain the age of the recipient of the electronic communication.

[15] In this case, the appellant argued in his factum that the difference in the wording of ss. 150.1(4) and 172.1(4) of the Code indicates that different standards apply for the assessment of the sufficiency of steps taken to ascertain a complainant's age, depending on the nature of the offence charged. However, as I will explain, during oral argument the appellant resiled somewhat from this position, contending generally that the trial judge erred by applying the "all reasonable steps" standard, based on a due diligence approach, to the Internet luring charge. In contrast, the Crown maintained that the nature of the distinction between the standards in these provisions, if any, is irrelevant in this case. IV. Trial Judge's Decision

[16] The trial judge found that the Crown had established the actus reus of the sex offences charged to the requisite criminal standard of proof. In his view, expressed at para. 4 of his reasons [page487] 2010 ONSC 3093, [2010] O.J. No. 2764 (S.C.J.)], the sole issue was whether the Crown had also proven beyond a reasonable doubt that the appellant "failed to take all reasonable steps, or reasonable steps for Count #5 [the Internet luring charge], to ascertain the age of [E.B.]".

[17] The trial judge concluded, at para. 50 of his reasons, that the appellant "did not take any steps let alone reasonable steps" to ascertain E.B.'s age after she initially told him that she was 14 years of age. He found, at para. 50:

[R]elying [on] the complainant's language and statements indicating that she could be 14 years of age or older did not constitute taking reasonable steps or all reasonable steps to ascertain her true age in all the circumstances, especially after being warned by her mother to stop all contact or she would call the police and stating that the complainant was way too young for him.

[18] The trial judge summarized his conclusion on the Internet luring charge in this fashion, at para. 55:

The [appellant] made no further inquiries and sought no additional identification evidence other than an initial pro forma inquiry as to the complainant's age. I find that the Crown has proven beyond a reasonable doubt that the [appellant] did not take "reasonable steps" or "all reasonable steps" to ascertain the age of the person and reasonable steps would include more than an initial pro forma question and reliance on statements made on an MSN internet chat line that indicated [E.B.] could be 14 years of age.

V. Issues

[19] There are two main issues on the conviction appeal: (1) Did the trial judge err in law by using the wrong test for assessing the sufficiency of the appellant's steps to ascertain E.B.'s age (a) by applying the "all reasonable steps" rather than the "reasonable steps" standard in relation to the Internet luring charge; or (b) by applying a "due diligence", rather than a reasonable belief, requirement in assessing the appellant's conduct? (2) Did the trial judge further err in assessing the sufficiency of the appellant's steps to ascertain E.B.'s age (a) by failing to conduct the contextual analysis required under ss. 150.1(4) and 172.1(4) of the Code; [page488] (b) by holding, in effect, that the appellant should have approached E.B.'s assertion of her age with a high degree of scepticism; and (c) by requiring evidence of active conduct by the appellant to ascertain E.B.'s age?

[20] The sole issue on the sentence appeal is whether the trial judge erred by failing to reduce the appellant's overall sentence to take account of the strict terms and duration of the appellant's bail, contrary to R. v. Downes (2006), 2006 3957 (ON CA), 79 O.R. (3d) 321, [2006] O.J. No. 555 (C.A.). VI. Analysis (1) Conviction appeal (i) Trial judge did not apply the wrong legal tests under ss. 172.1(4) and 150.1(4) of the Code (a) "Reasonable steps" or "all reasonable steps"

[21] As I have said, the appellant initially argued that the trial judge erred in his assessment of the sufficiency of the appellant's steps to ascertain E.B.'s age by treating the standards of "all reasonable steps" under s. 150.1(4) and "reasonable steps" under s. 172.1(4) of the Code as interchangeable. During oral argument, he took no firm position on whether there is a meaningful distinction between these standards, arguing generally that the trial judge erred by applying the "all reasonable steps" standard, based on a due diligence approach, to the Internet luring charge.

[22] I would reject both arguments. The trial judge's reasons confirm that he was fully alert to the difference in language between the standards established under ss. 150.1(4) and 172.1(4) of the Code. At the beginning of his reasons, at para. 4 2010 ONSC 3093, [2010] O.J. No. 2764 (S.C.J.)], the trial judge set out the issue to be decided in the case, stating: "The issue to be decided is whether the Crown has proven beyond a reasonable doubt that [the appellant] failed to take all reasonable steps, or reasonable steps for count #5 [the Internet luring charge], to ascertain the age of the complainant."

[23] Then, at the outset of the analysis section of his reasons, at para. 40, the trial judge again indicated that the "reasonable steps" standard applied under s. 172.1(4) of the Code to the Internet luring charge (count 5). Further, at para. 41, he noted that the "all reasonable steps" standard applied under s. 150.1(4) of the Code to the offences of sexual assault (count 1), sexual [page489] interference (count 2), invitation to sexual touching (count 3) and indecent exposure (count 6).

[24] Thus, the trial judge was mindful of the differently expressed thresholds under ss. 150.1(4) and 172.1(4) of the Code for proof of the sufficiency of steps taken to ascertain a complainant's age.

[25] I accept that it might have been preferable if the trial judge had distinguished more clearly in his reasons between his consideration of s. 150.1(4), on the one hand, and s. 172.1(4) of the Code, on the other hand. That said, I agree with the Crown's submission that, in this case, any distinction between the applicable standards under ss. 150.1(4) and 172.1(4) of the Code is of no moment.

[26] I say this because, read as a whole, the trial judge's reasons reveal that he ultimately concluded that the appellant's conduct in relation to ascertaining E.B.'s age met neither of the standards under ss. 150.1(4) and 172.1(4) of the Code. Recall his holding, at para. 50, that the appellant's reliance on E.B.'s language and statements as confirmation that she was 14 years of age or older "did not constitute taking reasonable steps or all reasonable steps to ascertain her true age in the circumstances" (emphasis added).

[27] Moreover, the trial judge concluded, at para. 55 2010 ONSC 3093, [2010] O.J. No. 2764 (S.C.J.)], that "the Crown has proven beyond a reasonable doubt that the accused did not take 'reasonable steps' or 'all reasonable steps' to ascertain the age of the person" (emphasis added). He continued, at para. 57, that he was not satisfied that "the evidence introduced at trial raises a reasonable doubt that the accused took reasonable steps or all reasonable steps to ascertain the age of [E.B.]" (emphasis added).

[28] Thus, the trial judge found that the defence of mistake of age was not made out because the applicable "reasonable steps" threshold under s. 172.1(4) of the Code had not been met, just as the "all reasonable steps" standard under s. 150.1(4) of the Code equally had not been satisfied. In these circumstances, as the Crown submits, it was unnecessary for the trial judge to separately outline his interpretation and application of the standards established under s. 150.1(4) (in relation to counts 1, 2, 3 and 6) and s. 172.1(4) (in relation to count 5). This case did not require a detailed analysis of the distinction, if any, between the two standards. Nor is such an analysis required for the disposition of this appeal. On the trial judge's unchallenged factual findings, the appellant's conduct fell short of meeting either standard. [page490] (b) Due diligence or reasonable belief

[29] The appellant further argues that the trial judge erred by employing the equivalent of a due diligence test, instead of a reasonable belief test, in assessing whether the appellant took reasonable steps to ascertain E.B.'s age. More specifically, he contends that the trial judge erred by interpreting the phrases "reasonable steps" and "all reasonable steps" under ss. 172.1(4) and 150.1(4) of the Code as mandating an inquiry as to those steps that a reasonable person would have taken to ascertain E.B.'s age, rather than an evaluation of whether a reasonable person could have believed that E.B. was 14 years of age on the basis of the information available to the appellant.

[30] I would also reject this argument.

[31] In various parts of his reasons, the trial judge referred to the steps that a reasonable person would have taken in the circumstances to ascertain E.B.'s age, in contrast to the appellant's conduct. This approach did not reflect legal error.

[32] Relying on this court's decision in R. v. Thain, [2009] O.J. No. 1022, 2009 ONCA 223, the trial judge held 2010 ONSC 3093, [2010] O.J. No. 2764 (S.C.J.)], at para. 43, that the "reasonableness of the steps taken to ascertain the age of the person must be assessed in context". He further held, at paras. 46 and 47, that whether "reasonable steps" or "all reasonable steps" were taken must be assessed on an objective, reasonable person basis. These observations accord with the controlling legal principles. What constitutes "reasonable steps" in a given case is a fact-specific inquiry that turns on the circumstances of the case.

[33] The Supreme Court of Canada has described the s. 150.1(4) "all reasonable steps" requirement as a "due diligence defence": R. v. Hess; R. v. Nguyen, 1990 89 (SCC), [1990] 2 S.C.R. 906, [1990] S.C.J. No. 91. Similarly, the British Columbia Court of Appeal has interpreted the applicable test under s. 150.1(4) as asking what steps "a reasonable person would take in the circumstances" to ascertain a complainant's age: R. v. P. (L.T.), 1997 12464 (BC CA), [1997] B.C.J. No. 24, 113 C.C.C. (3d) 42 (C.A.), at para. 20. See, also, R. v. Hayes, [1991] A.J. No. 1232, 12 W.C.B. (2d) 457 (Q.B.).

[34] The appellant contends that the s. 172.1(4) "reasonable steps" requirement applicable to the Internet luring charge must mean something less strict. He points to the Supreme Court's statement in R. v. Levigne, [2010] 2 S.C.R. 3, [2010] S.C.J. No. 25, 2010 SCC 25, at para. 31, that the s. 172.1(4) reasonable steps requirement "was enacted by Parliament to foreclose exculpatory claims of ignorance or mistake that are entirely devoid of an objective evidentiary basis" (emphasis added). In the [page491] appellant's submission, this statement means that the reasonable steps requirement is met by proof of some objective basis on which a reasonable person could make the same mistake of age asserted by the accused.

[35] In my view, s. 172.1(4) requires an accused who claims mistake of age to have exercised a degree of care in ascertaining a complainant's age that a reasonable person in the circumstances would have exercised. I say this for the following reasons.

[36] I note, first, that in Levigne, the Supreme Court upheld convictions for child Internet luring, holding that the defence of mistake of age is not available when an accused has failed to take "the reasonable steps he was required by law to take": see paras. 36-38 (emphasis in original).

[37] Second, the plain language of s. 172.1(4) focuses on whether an accused "took reasonable steps" to ascertain the age of the complainant, not whether there was an objective basis for the accused's honest belief in the complainant's age. As Levigne confirms, at para. 41, s. 172.1(4) requires both that real steps be taken to ascertain the age of the person with whom an accused is communicating and that those steps be "reasonable" in the circumstances.

[38] Third, the statutory purpose of s. 172.1, the Internet luring provision of the Code, weighs in favour of a construction of "reasonable steps" that protects children by requiring an accused to take more, rather than fewer, precautions in ascertaining a complainant's age.

[39] Fourth, the "reasonable steps" language of s. 172.1(4) may be analogized to the requirement under s. 273.2(b) of the Code that an accused "take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting" in order to make out a defence of an honest but mistaken belief in consent against a charge of sexual assault. See R. v. A. (J.), [2011] 2 S.C.R. 440, [2011] S.C.J. No. 28, 2011 SCC 28. This court has held that this provision "requires the accused to act as a reasonable person would in the circumstances by taking reasonable steps to ascertain whether the complainant was consenting": R. v. Cornejo (2003), 2003 26893 (ON CA), 68 O.R. (3d) 117, [2003] O.J. No. 4517 (C.A.), at para. 22, leave to appeal to S.C.C. refused [2004] S.C.C.A. No. 32.

[40] The similarity in language between ss. 172.1(4) and 273.2(b) of the Code lends further support to the conclusion that a due diligence formulation of the "reasonable steps" requirement is appropriate in the s. 172.1(4) context, as it is under s. 273.2(b). [page492]

[41] Finally, contrary to the appellant's submission, I see nothing in this court's decision in Thain that is inconsistent with the application of a due diligence approach to the "reasonable steps" requirement of s. 172.1(4). As the trial judge noted, Thain holds, at para. 37, that "the reasonableness of the steps taken to ascertain the age of the person must be assessed in context". The contextual analysis mandated by Thain in no way conflicts with an assessment of the steps a reasonable person would take in the circumstances to ascertain the age of a complainant.

[42] Accordingly, this ground of appeal also fails. (ii) Trial judge did not err in his assessment of the sufficiency of the appellant's steps to ascertain E.B.'s age (a) Requisite contextual analysis

[43] The appellant attacks the trial judge's assessment of the sufficiency of his steps to ascertain E.B.'s age on several fronts. He submits, first, that the trial judge essentially failed to conduct the requisite contextual analysis to determine if the appellant took "all reasonable steps" (in relation to counts 1, 2, 3 and 6) and "reasonable steps" (in relation to count 5, the Internet luring charge) to ascertain E.B.'s age. I disagree.

[44] The trial judge recognized that the Crown bore the onus of proving that the appellant failed to take sufficient steps to determine E.B.'s actual age and, as I have mentioned, he expressly adverted to the objective and contextual nature of the sufficiency inquiry.

[45] The trial judge's reasons indicate that he carefully considered all the circumstances surrounding and the context in which the appellant's interactions with E.B. unfolded. For example, at para. 17 2010 ONSC 3093, [2010] O.J. No. 2764 (S.C.J.)], the trial judge described the evidence of E.B.'s consistent efforts to portray herself as older than she in fact was and, at paras. 23 and 36, the steps taken by the appellant to ascertain E.B.'s age.

[46] After doing so, the trial judge, at para. 39, set out 14 factors that, in his view, indicated that the appellant had failed to take "all reasonable steps" to ascertain E.B.'s age. He then specifically addressed the evidence establishing that the appellant failed to take "reasonable steps" to ascertain E.B.'s age. This included evidence that (a) there was a significant age difference between the appellant (24 years of age) and E.B. (ostensibly 14 years of age) (para. 39(e)); [page493] (b) the appellant failed to take further steps to ascertain E.B.'s age after he received a warning from E.B.'s mother that E.B. was "way too young" (paras. 39(i), 49, 50 and 52); (c) the appellant also failed to make further inquiries about E.B.'s age even after he was warned by E.B.'s mother that if he contacted E.B. again, she would contact the police (paras. 39(i), 49, 50 and 52); (d) the appellant's communications with E.B. were mostly by MSN chats on the computer (para. 49); (e) E.B. might be under age because she was very small and had the body weight of an 11-year-old (para. 49); and (f) the appellant's sole inquiry about E.B.'s age, when he first met E.B. on the Internet chat room, was a pro forma, rather than an earnest, inquiry (para. 51). On the facts of this case, these were proper considerations in the sufficiency inquiry.

[47] Further, in assessing whether the steps taken by the appellant to ascertain E.B.'s age were sufficient to constitute "reasonable steps" within the meaning of s. 172.1(4) of the Code, the trial judge held, at para. 53 2010 ONSC 3093, [2010] O.J. No. 2764 (S.C.J.)]:

The complainant looked young enough and small enough (she was the weight of an 11 year old) to raise a suspicion about whether or not she was 14 years old. Where in addition the accused has met the young person on an anonymous internet chat site, where children who are under 14 years of age may be participating, where there is a large age difference between them, where the accused was warned that the complainant was way too young and that she would call the police if he continued to contact the complainant, and he continued in secret. In these circumstances, I find that the Crown has proven beyond a reasonable doubt that the accused failed to take reasonable steps to ascertain the age of E.B. (Emphasis added)

[48] When the trial judge's reasons are carefully scrutinized, it is clear that he took account of the full context and circumstances in which the appellant's interactions with E.B. took place for the purpose of determining the sufficiency of the appellant's efforts to ascertain her age. This ground of appeal therefore also fails. (b) Requirement for scepticism concerning E.B.'s asserted age

[49] I reach a similar conclusion concerning the appellant's claim that the trial judge erred by holding, in effect, that the [page494] appellant should have approached E.B.'s assertion that she was 14 years old with a high degree of scepticism.

[50] The appellant submits that many of the circumstances of this case could have led a reasonable person to infer, as the appellant says he did, that E.B. was telling the truth when she said that she was 14 years old.

[51] Again, I disagree. In my opinion, on any objective standard, the circumstances surrounding the appellant's interactions with E.B. were replete with warning signs regarding the truthfulness of E.B.'s claim that she was 14 years of age.

[52] The appellant met E.B. on a website that, by its nature and context, was attractive to young people. Further, the website and the chat room were anonymous, containing no assurance of the accuracy of any postings. The appellant himself lied about his age on the chat room, in order to appear younger than he in fact was.

[53] Moreover, from the beginning of his interactions with E.B., the appellant knew that there was a significant difference in age between them: even if E.B. was 14 years of age, as she claimed, she would have been ten years younger than the appellant.

[54] And, again to the appellant's knowledge, E.B. was slight in build and young in appearance. The appellant viewed E.B. by webcam and, later, in person, when they met at a hotel room in January 2007. E.B. herself told the appellant that she had the body of an 11-year-old.

[55] In addition, the numerous chat records admitted at trial reveal that the appellant was fixated on E.B.'s diminutive size and appearance. They also reveal E.B.'s immaturity and the fact that she and the appellant discussed her friendships with persons in grades 6 and 7.

[56] Finally, this is a case where the accused was explicitly warned that he was associating with an underage girl. E.B.'s mother told the appellant that her daughter was underage, that, in effect, the appellant should have nothing further to do with her, and that, if she again discovered through her phone bills that the appellant and E.B. had been in contact, she would call the police.

[57] Although the appellant contends that these stark warnings from E.B.'s mother meant only that E.B. was under 18, rather than 14, years of age, the intended meaning of E.B.'s mother's remarks is irrelevant. The important point is that the appellant was clearly and bluntly told that E.B. was too young for him and continued contact between the appellant and E.B. would trigger police involvement. [page495]

[58] I recognize that E.B.'s mother did not tell the appellant E.B.'s precise age. Nonetheless, in my opinion, it is inconceivable that her warnings to the appellant, which directly called E.B.'s age into question, would not have given a reasonable person in the circumstances cause to doubt E.B.'s assertion of her age. Standing alone, these warnings were sufficient to put a reasonable person on further inquiry regarding E.B.'s actual age.

[59] Thus, there were many, and varied, "red flags" that E.B. may not have been 14 years of age, as she claimed. To the extent, therefore, that the trial judge's reasons may be read as requiring the appellant to be highly sceptical of E.B.'s assertion that she was 14 years of age, I see no error. Indeed, taken together, the factors that I have described overwhelmingly support the conclusion that, in this case, sufficient steps to determine E.B.'s age necessarily included heightened inquiry and scepticism regarding her professed age. (c) Requirement for active steps

[60] The appellant also asserts that the trial judge erred in his analysis of the sufficiency of the appellant's conduct by interpreting the requirement of "reasonable steps" under s. 172.1(4) of the Code as requiring active, rather than merely passive, steps to ascertain E.B.'s age. He relies on several passages from the trial judge's reasons in support of this assertion. For example, at para. 55 of the reasons 2010 ONSC 3093, [2010] O.J. No. 2764 (S.C.J.)], the trial judge found that the appellant "made no further inquiries and sought no additional identification evidence other than an initial pro forma inquiry as to the complainant's age". Further, at para. 56, the trial judge stated:

Where there is a substantial age difference between two persons, one of whom is a young person, who meet on an anonymous internet chat group site and where there is a possibility that one is less than the age of 14 then I find taking reasonable steps to ascertain the age of the younger person requires the accused to take steps beyond merely relying on a statement made on the internet by the young person that she is 14 years old.

[61] The appellant submits that these and similar comments in the reasons are tantamount to a finding that an accused must take active steps to ascertain a complainant's age as a prerequisite to mounting the threshold of "reasonable steps" under s. 172.1(4). This, the appellant says, constitutes an artificial distinction between things an accused actively does and information that he or she receives concerning a complainant's age. The appellant argues that for the purpose of the limited defence of mistaken belief as to a complainant's age, an accused [page496] is entitled to rely on information conveyed to him or her, whether or not it is actively sought out.

[62] I do not accept that the trial judge erred in the manner asserted by the appellant. Put simply, I do not read the trial judge's challenged comments as holding that, as a matter of law, proof of active steps by an accused to ascertain a complainant's age is a precondition to satisfying the "reasonable steps" standard set out in s. 172.1(4) of the Code. Rather, the trial judge determined the sufficiency of the steps taken by the appellant to ascertain E.B.'s age on an objective basis, in the light of the particular circumstances and context of this case. This is what he was required to do.

[63] I agree that the appellant was entitled to rely on E.B.'s representation of her age, when they first met on the Internet chat room, as one indicator of E.B.'s age. I did not understand the Crown to argue otherwise. Nor do the trial judge's reasons suggest to the contrary.

[64] I also agree that the appellant was entitled to rely on E.B.'s other actions in aid of her effort to appear 14 years of age (for example, her statement that she was in grade 9, her use of sexually explicit language in her communications with the appellant and her claim that she had dated "older guys").

[65] However, that does not end the matter. The question is whether, on the totality of the circumstances, the appellant's actions to determine E.B.'s age were sufficient to meet the "reasonable steps" standard established by s. 172.1(4) of the Code. The determination of this question required careful examination of all the circumstances surrounding the appellant's interactions with E.B. As I have already indicated, in my view, this is precisely the type of inquiry undertaken by the trial judge.

[66] The trial judge concluded that further steps by the appellant were required to meet the reasonableness standard under s. 172.1(4) of the Code. I see no basis for interference with this conclusion. The full circumstances of this case, examined objectively, mandated further inquiry by the appellant regarding E.B.'s age. I have already described the multiple "red flags" suggesting that E.B.'s representation of her age may be unreliable and that she may have been untruthful regarding her age.

[67] In particular, the warnings about E.B.'s age and potential police involvement received by the appellant from E.B.'s mother cried out for further steps by the appellant to ascertain E.B.'s true age. In the absence of those steps, on the facts here, the trial judge was fully justified in concluding that the appellant had failed to make out the defence of mistake of age regarding E.B. [page497] (2) Sentence appeal

[68] The appellant grew up in a large religious family in southern Ontario. He was the ninth of 17 children. The evidence before the trial judge on sentencing indicated that, by age 24, the appellant had never had a serious romantic relationship or engaged in sexual intercourse. He was described in his pre- sentence report as "quiet and reserved". He had no prior criminal record or history of anti-social behaviour.

[69] The appellant was arrested on January 19, 2007, detained in custody and released on bail on April 2, 2007. Under the terms of his pre-sentence bail, he could not be out of his home after 9:00 p.m. in the evening and at all other times had to be accompanied by a surety when he left his house. He remained under these strict bail terms for almost four years, until he was sentenced on February 8, 2011.

[70] The appellant says that his bail terms were akin to "house arrest" conditions. Relying on the decision of this court in Downes, he argues that the strict terms and the lengthy duration of his pre-sentence bail warranted a reduction of 12 months from his total sentence of 23 months' imprisonment. He submits that the trial judge erred in his sentencing analysis by failing to take account of the appellant's "house arrest"-type bail in mitigation of sentence.

[71] In Downes, this court held, at para. 33:

[T]ime spent under stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance. However, like any potential mitigating circumstance, there will be variations in its potential impact on the sentence and the circumstances may dictate that little or no credit should be given for pre- sentence house arrest . . . [I]t is incumbent on the sentencing judge to explain why he or she has decided not to take pre-sentence house arrest into account. The failure to do so will constitute an error in principle[.]

[72] Subsequently, in R. v. Lawes, [2007] O.J. No. 50, 2007 ONCA 10, at para. 10, and in R. v. Hunjan, [2007] O.J. No. 520, 2007 ONCA 102, this court clarified that a sentencing judge's failure to refer in his or her reasons to bail conditions does not automatically constitute an error in principle.

[73] And, in R. v. Ijam (2007), 87 O.R. (3d) 81, [2007] O.J. No. 3395, 2007 ONCA 597, at para. 36, this court held that bail, even with stringent conditions, and pre-trial custody are not to be regarded as equivalents in every case. MacPherson J.A., writing for a majority of a five-person panel of this court on this issue, stated, at para. 37:

[T]here will be cases -- Downes, with long-term house arrest bail conditions, is one -- where a sentencing judge should give mitigation effect to pre-trial [page498] bail. However, there will be many other cases -- Lawes and Hunjan are examples -- where this factor should attract little, if any weight.

[74] In this case, at trial, the Crown sought a total sentence of three years' imprisonment (two years' imprisonment on the Internet luring charge and a further 12 months' imprisonment on the remaining charges). The defence urged a sentence of 12 months' imprisonment, less two-for-one credit for pre-trial custody and less further credit of six or seven months for time spent on restrictive bail conditions. If this defence submission had prevailed, the appellant's overall sentence may well have been in the order of one or two months' imprisonment.

[75] The trial judge sentenced the appellant as follows: -- Internet luring -- 18 months' imprisonment, plus three years' probation; -- sexual interference -- four months' imprisonment, consecutive; -- possession of child pornography -- one month's imprisonment, consecutive; -- indecent exposure -- one month's imprisonment, concurrent to the sentence on the possession of child pornography. Total: 23 months' imprisonment, plus three years' probation.

[76] The appellant submits that, in crafting these sentences, the trial judge erred by declining, despite the defence request at trial, to give the appellant any credit for the time spent on stringent bail conditions and to explain why such credit was inappropriate. I would reject this submission.

[77] To begin, while I accept that the appellant's bail terms were strict, he was not subject to house arrest bail. Nonetheless, in accordance with Downes and its progeny, I agree with the appellant's submission that the terms and duration of his pre-sentence bail were relevant mitigating circumstances on sentencing. I did not understand the Crown to argue otherwise.

[78] That said, I do not agree that the trial judge failed to take account of and afford the appellant's restrictive bail any mitigation effect. In my opinion, the trial judge's sentencing reasons undercut this contention.

[79] When outlining the parties' positions on sentence, the trial judge expressly noted 2011 ONSC 183, [2011] O.J. No. 536 (S.C.J.), at para. [19]](https://www.canlii.org/en/on/onsc/doc/2011/2011onsc183/2011onsc183.html#par19): "The defence argues that a period of twelve months in jail would be appropriate with credit for the lengthy period that the accused has been subject to strict conditions while on bail." [page499] Thus, the trial judge was fully cognizant of the defence request for a reduction of the appellant's overall sentence based on his strict bail conditions.

[80] The trial judge next reviewed ten mitigating and nine aggravating factors relevant to sentencing. He described the second mitigating factor as follows [at para. 21]: "[The appellant] followed strict bail terms for a lengthy period without any breaches."

[81] Then, after addressing the applicable principles of sentencing and some of the authorities pertinent to the offence of Internet luring, the trial judge imposed a sentence of 18 months' imprisonment, plus three years' probation, on the Internet luring charge. He noted that this sentence reflected the mid-point of the range of 12 months' to two years' imprisonment mentioned by this court in R. v. Jarvis, 2006 27300 (ON CA), [2006] O.J. No. 3241, 211 C.C.C. (3d) 20 (C.A.), at para. 31, as applicable to the offence of child luring. As the parties acknowledged during oral argument, this court recently held in R. v. Woodward (2011), 107 O.R. (3d) 81, [2011] O.J. No. 4216, 2011 ONCA 610, at para. 58, that to the extent that Jarvis may be read as establishing an appropriate range of sentence for child luring -- a construction of Jarvis that this court did not accept in Woodward -- this range needs to be revised upwards given the 2007 amendments to the Code, doubling the maximum punishment for luring from five years to ten years.

[82] After referring to Jarvis, the trial judge stated, at para. 32 2011 ONSC 183, [2011] O.J. No. 536 (S.C.J.)]:

I have not given the maximum of the range due to the fact that the accused has no record and has taken active steps to obtain counselling and is at a low risk of reoffending. The accused has also been subject to strict bail conditions for three and a half years without any breach. (Emphasis added)

[83] The appellant argues that the above-quoted passage from the trial judge's sentencing reasons indicates that he took account of the appellant's compliance with his bail terms as a mitigating factor but that he failed to accord the restrictive nature and duration of the appellant's bail any mitigating effect.

[84] I disagree. In my opinion, this is an inaccurate characterization of the sentencing reasons. There is no set formulaic language or magic phraseology for taking cognizance of strict and lengthy bail terms as a mitigating factor on sentencing. Nor should there be. Downes and the cases that followed it contain no suggestion of such a rigid and unrealistic approach to this issue. They do not require a precise mathematical calculation of the credit to be given for pre-sentence bail. Nor do they mandate [page500] the manner in which a sentencing judge must consider restrictive bail conditions. They simply require that, in a proper case, mitigation effect should be given to pre-sentence bail. In the final analysis, the mitigating weight to be assigned to pre- sentence bail, if any, is a discretionary matter for the sentencing judge.

[85] In this case, the trial judge expressly adverted to the length of the appellant's pre-sentence bail (three times) and to the stringent nature of the terms of bail (also three times). Further, when explaining why he declined to impose a sentence at the high end of what he understood to be the applicable range for child luring, the trial judge specifically referenced the nature and duration of the appellant's bail, as well as his compliance with it, as warranting a reduction in sentence.

[86] The appellant essentially contends that the trial judge should have said more in his sentencing reasons about the appellant's bail or phrased his consideration of this factor differently. However, the trial judge was not required to do so. When the trial judge's sentencing reasons are read as a whole and in the context of the parties' positions on sentence, I think it indisputable that the appellant received mitigation credit for the restrictive nature and duration of his pre- sentence bail. The trial judge made no error in principle in his treatment of this issue.

[87] Nor is the overall sentence imposed unfit. The circumstances of the appellant's luring of E.B. were serious. They included the pursuit of a vulnerable child, for sexual purposes, over a sustained period (more than three and one-half months), repeated pleas by the appellant for E.B. to expose her breasts to him while he masturbated and exposed his genitals via webcam, the recording by the appellant of the images of E.B. exposing her breasts, and a clandestine encounter in a hotel room (despite warnings from E.B.'s mother), where various sexual acts short of intercourse were performed.

[88] On the trial judge's findings, the appellant was persistent and relentless in his pursuit of sexual gratification from E.B., and his conduct was consistent with grooming E.B. As this court held in Woodward, at para. 43, grooming constitutes an aggravating feature in the offence of luring. Woodward also holds, at para. 76, that in sentencing adult offenders for the exploitation of innocent children:

While the effects of a conviction on the offender and the offender's prospects for rehabilitation will always warrant consideration, the objectives of denunciation, deterrence, and the need to separate sexual predators from society for society's well-being and the well-being of our children must take precedence. [page501]

[89] Further, the appellant pleaded guilty to possession of child pornography, an aggravating feature in the context of luring based on Jarvis, and was also found guilty of the additional offences of sexual interference, indecent exposure, sexual assault and invitation to sexual touching. These offences, even without the luring charge, call for a substantial term of imprisonment.

[90] The overall sentence imposed here was well within the range of sentences imposed for similar offences and similar offenders. Indeed, in my opinion, it might well be viewed as lenient in all the circumstances.

[91] I therefore conclude that the sentencing judge made no error in principle and the overall sentence imposed was entirely fit. VII. Disposition

[92] For the reasons given, I would dismiss both the conviction and the sentence appeals.

Appeal dismissed.

Notes

Note 1: The appellant pleaded guilty to one count of possession of child pornography. Two other counts of possession of child pornography were withdrawn at the request of the Crown.

Note 2: In these reasons, I refer to those provisions of the Code in force at the time of the offences at issue in this case. Section 150.1(4) has since been amended to reflect the increased age of 16 years for consent: Tackling Violent Crime Act, S.C. 2008, c. 6, s. 54.