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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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).

486.4(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.

486.4(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(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.

486.4(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.

486.4(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.

486.6(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 Information

Court of Appeal for Ontario

Date: 2019-03-12

Docket: C63613

Panel: Rouleau, Trotter and Zarnett JJ.A.

Between:

Her Majesty the Queen Respondent

and

Michael Harris Appellant

Counsel:

• Amy J. Ohler, for the appellant
• Manasvin Goswami, for the respondent

Heard: February 19, 2019

On appeal from: The conviction entered by Justice Renee M. Pomerance of the Superior Court of Justice on November 7, 2016, with reasons reported at 2016 ONSC 6283, and from the sentence imposed on February 14, 2017, with reasons reported at 2017 ONSC 940.

Reasons for Decision

Introduction

[1] The appellant was convicted of internet luring of a person he believed to be under the age of 16 years, contrary to s. 172.1(1)(b) of the Criminal Code, R.S.C. 1985, c. C-46, and transmitting sexually explicit material to a person he believed to be under the age of 16 years, contrary to s. 171.1(1)(b). The latter count was conditionally stayed on the basis of R. v. Kienapple, [1975] 1 S.C.R. 729. The appellant was sentenced to 18 months' imprisonment, three years' probation, and was made subject to other ancillary orders, discussed below. He appeals both his conviction and sentence.

Background

[2] In November of 2014, the appellant placed two ads on Craigslist, one entitled "Any Young girls??? – m4w (Chatham)" and the other "Daddy's Dirty Slut – m4w – 55 (Chatham)". In late November, an undercover police officer, posing as a 14-year-old girl named "Katie", made contact with the appellant. They exchanged many messages. In his exchanges with "Katie", the appellant often steered the direction of the conversation to sexually explicit matters.

[3] After exchanging messages over the course of a couple of months, a meeting was arranged for March 10, 2015. The appellant suggested meeting at his house. They eventually settled on a public library as the meeting spot. As they were working out the details of their meeting, "Katie" said that she was hungry and asked the appellant to bring her some food. The appellant offered a bologna or peanut butter and jelly sandwich. "Katie" said that either was fine.

[4] Shortly afterwards, the appellant left his home and walked to the library to meet "Katie". In the meantime, a young-looking female officer was recruited to play the role of "Katie". She wore a black coat, with grey and pink shoes, as "Katie" said she would. As the appellant walked towards the officer, he was arrested. In his bag, the police found a peanut butter and jelly sandwich, a juice box, a marijuana cigarette, and other items.

[5] In his testimony, the appellant said that, by posting his ads on Craigslist, he was not actually seeking young girls the age of "Katie". Moreover, when he was contacted by "Katie", he knew that he was dealing with a middle-aged man. He said that he played along, indulging this man's fantasy of pretending to be a young girl engaged in a sexualized chat with an older man. The appellant said that his exchanges with "Katie" were unimportant to him, forming a low percentage of the considerable time he spent online. He gave many reasons in support of his stated belief that he was dealing with a middle-aged man and offered explanations for the numerous pieces of incriminatory evidence against him. By way of example, he said he went to the library on March 10, 2015 to meet "Katie" because he was going to return a library book in any event. The appellant said that the sandwich in his bag was for himself; he planned to eat it in a nearby park, after he had returned his book.

[6] The trial judge gave extensive reasons for judgment, finding the appellant guilty on both counts. She rejected the appellant's evidence as being unworthy of belief and provided detailed reasons for doing so. The trial judge instructed herself on the burden of proof and reasonable doubt, citing R. v. W.(D.), [1991] 1 S.C.R. 742. At para. 6 of her reasons, she made the following finding:

I find that the accused's testimony is neither worthy of belief, nor capable of raising a reasonable doubt. It appears to me that the accused set out to reconstruct history in an effort to escape criminal liability. His account was contrived and implausible. His explanations defy credulity. His testimony cannot be reconciled with what he did and said at the time of the offence.

The Conviction Appeal

[7] The appellant argues that the trial judge erred in the manner in which she dealt with his evidence. The trial judge analyzed the appellant's evidence concerning the sincerity of his belief in "Katie's" age under 11 separate headings, each corresponding to an aspect of the appellant's evidence. The appellant argues that the trial judge erred by analyzing these items in a piecemeal fashion, and by not considering whether, as a whole, his evidence raised a reasonable doubt.

[8] We disagree. The trial judge's analysis was responsive to the evidence. It was probing of the appellant's account. Her decision to reject the appellant's evidence enveloped a consideration of his evidence as a whole. As the trial judge said, at para. 74:

For all of the above reasons, I find that the accused believed Katie to be under the age of 16 years. The inference is inescapable on the whole of the evidence, even absent operation of the statutory presumption. Nothing in the accused's testimony, or any other evidence, raises a reasonable doubt on that issue. It has been proven by the crown on the criminal standard of proof.

[9] The trial judge gave fair consideration to the appellant's evidence. She was entitled to conclude that his evidence was unworthy of belief (especially given his willingness to attend the meeting on March 10, 2015) and could not raise a reasonable doubt.

[10] The appellant submits that the trial judge improperly took judicial notice of certain factors to rebut some of the assertions made by the appellant in his evidence. This included the workings of computer spellcheck software, the grammatical habits of young people, their preference for metric over imperial forms of measure, and the common usage of the term "girl".

[11] We are not persuaded that the trial judge erred in this manner. There was an evidentiary foundation for the conclusions that the trial judge reached on the important aspects of these items, rendering her references to personal experience superfluous. Moreover, her conclusions were otherwise based on common sense.

[12] Lastly, the appellant takes issue with the trial judge's reference to the word "concocted" when considering the appellant's evidence. This occurred once in a 38 page judgment. The trial judge used this term in sizing up the appellant's credibility. By deploying this descriptor, she did not engage in any forbidden reasoning. She did not improperly transform her rejection of the appellant's evidence into positive proof of guilt. There is no merit to this ground of appeal.

[13] The appeal from conviction is dismissed.

The Sentence Appeal

[14] The appellant has served the custodial portion of his sentence. He submits that his 3 year probation order should be shortened because his prison term was unfit. Without commenting on the fitness of the custodial portion of the appellant's sentence, we have not been provided with any compelling reason for reducing the length of the probation order.

[15] The appellant requests that, in light of the Supreme Court of Canada's decision in R. v. Boudreault, 2018 SCC 58, 50 C.R. (7th) 207, the mandatory $200 victim surcharge imposed by the trial judge should be set aside. The respondent does not oppose this request. Accordingly, we set aside the victim surcharge.

[16] Lastly, the appellant argues that the trial judge erred by holding that the imposition of a weapons prohibition under s. 109 of the Criminal Code was mandatory in this case. Section 109(1)(a) provides for such a prohibition where, among other things, "a person is convicted of an indictable offence in the commission of which violence against a person was used, threatened or attempted."

[17] At the sentencing hearing, defence counsel (not Ms. Ohler) did not oppose this order. Ms. Ohler contends that defence counsel was taken by surprise when the trial judge said, during submissions, that such an order is mandatory. It is not apparent from the transcript that defence counsel was surprised; he simply agreed with the trial judge.

[18] On the facts of this case, the order was mandatory. The appellant was found guilty of two offences, both of which involved conduct "for the purpose of facilitating the commission of an offence under Sections 151, 152 or 271" of the Criminal Code. In R. v. Alicandro, 2009 ONCA 133, 95 O.R. (3d) 173, leave to appeal refused, [2009] S.C.C.A. No. 395, Doherty J.A. discussed the nature of s. 172.1 of the Criminal Code in the following way, at paras. 19-20:

Before examining the specific language of s. 172.1(1)(c), it is helpful to consider s. 172.1 on a more general level. The crimes created by that section target a specific kind of conduct, the communication by means of a computer with a person who is, or is believed to be, below a certain age. That conduct is not in and of itself criminal, illegal, or necessarily inappropriate. The section criminalizes that conduct only if it is accompanied by the intention to facilitate the commission of one of the crimes designated in s. 172.1. All those designated crimes are crimes against young persons and all potentially involve the sexual exploitation of young people.

By criminalizing conduct that is preparatory to the commission of the designated offences, Parliament has sought to protect the potential child victims of those designated crimes by allowing the criminal law to intervene before the actual harm caused by the commission, or even the attempted commission, of one of the designated offences occurs. Section 172.1 creates what Professor Ashworth refers to as essentially inchoate crimes, described in substantive offence terms: Andrew Ashworth, Principles of Criminal Law, 5th ed. (Oxford: Oxford University Press, 2006), at pp. 468-470. [Emphasis added.] [Footnote omitted.]

[19] The manner in which the appellant committed the offence under s. 172.1 – by going to the library to meet with someone he believed to be under 16 – satisfies the requirement of attempted violence in s. 109(1)(a). Whether s. 109(1)(a) applies to all scenarios caught by s. 172.1 is an issue we leave for another day.

[20] We decline to set aside the order.

Disposition

[21] The appeal from conviction is dismissed. Leave to appeal sentence is granted and the sentence is varied only to the extent of setting aside the victim surcharge. All other aspects of the sentence remain unaltered.

Paul Rouleau J.A.

Gary Trotter J.A.

B. Zarnett J.A.