Her Majesty the Queen v. McSween

[Indexed as: R. v. McSween]

Ontario Reports
Court of Appeal for Ontario

Watt, Tulloch and Trotter JJ.A.

June 3, 2020

151 O.R. (3d) 38 | 2020 ONCA 343

Case Summary

Criminal law — Appeal — Crown appeal from acquittal — New trial — Accused acquitted of child luring and making and distributing child pornography — Trial judge erred in interpreting relevant Criminal Code provisions — Crown asking for new trial on child luring but seeking convictions on child pornography charges — Most fair remedy to both Crown and accused was new trial on all counts — Criminal Code, R.S.C. 1985, c. C-46, ss. 163.1, 172.1.

Criminal law — Child luring — Elements of offence — Accused exchanging text messages of a sexual nature with teenaged boy about teenager's friend — Accused claiming to have been joking — Accused acquitted — Trial judge erred by considering "luring" only in the literal sense and by holding that Crown had to prove luring for a sexual purpose — New trial ordered — Criminal Code, R.S.C. 1985, c. C-46, s. 172.1.

Criminal law — Child pornography — Accused exchanging text messages of a sexual nature with teenaged boy about teenager's friend — Accused claiming to have been joking — Accused acquitted — Private text communications fell within reach of child pornography provisions — Trial judge erred in evaluating fault requirements, assessing only accused's subjective intent, and employing quantitative approach in assessing dominant characteristic of communications — New trial ordered — Criminal Code, R.S.C. 1985, c. C-46, s. 163.1.

Over the course of about three weeks, the 46-year-old accused exchanged text messages with J, a teenaged boy. A number of the messages were of a sexual nature about J's teenaged friend, N. The accused was a friend of N's family. When J's mother discovered the messages she reported the matter to police. When interviewed by police, J said he thought the accused was joking in his messages. J painted a different picture at the accused's trial on charges of making child pornography, distributing child pornography, and child luring. N's initial statement to police emphatically insisted that the accused never acted inappropriately toward him. A second statement given about a year later contradicted the first. The accused told police that he was joking and that he had apologized to N's mother. He maintained that position at trial. The trial judge noted that J and N had changed their minds about the nature of the messages, and found that they were more credible in their initial recorded conversations with the police than they were in giving evidence at trial. The judge found that the messages did not pose an undue risk to persons under 18, that there was no attempt to lure [page39] anyone under 18 for a sexual purpose, and that there was a lack of dominant sexual characteristic in that only 36 of over 4,000 pages of text messages were sexual in nature. The accused was acquitted. The Crown appealed.

Held, the appeal should be allowed.

The trial judge erred in his interpretation of the child pornography provisions in s. 163.1 of the Criminal Code. Electronic communications were capable of being "written material" within the meaning of s. 163.1. In light of Parliament's objectives to protect children from harm, private text message communications fell within the reach of the section. The trial judge's evaluation of the fault requirements in the section was distorted by his application of the concept of "undue risk" from the statutory defence. However, "undue risk" was considered only in the context of a legitimate purpose and had no role to play in determining whether written material constituted child pornography. In considering whether the communications advocated or counseled sexual activity, the trial judge erred by adopting a purely subjective approach as to what the accused intended. The judge further erred by employing a quantitative approach to the "dominant characteristic" framework and should have focused on the characteristics of the impugned messages rather than the entirety of the correspondence. If what the accused created and then shared came within the definition of child pornography, his purpose, motivation or desire in doing what he did was irrelevant, and the trial judge erred in finding otherwise.

The trial judge also erred in his interpretation of the child luring provisions in s. 172.1. The judge considered whether there was "luring" in the literal sense, i.e. persuading a child to meet for the purpose of engaging in sexual activity. However, the section specifically applied to telecommunication with a child for the purpose of facilitating an offence under s. 163.1. The judge further erred by holding that the Crown had to prove that the luring was for a sexual purpose. The Crown only had to prove that the accused engaged in prohibited conduct with the specific intent of facilitating the commission of a designated offence. Extortion or bullying were other possible motives beyond sexual gratification. The accused's claim that he was joking was irrelevant in this context.

The remedy that was most fair to both the Crown and the accused was to order a new trial on all counts. The trial judge made legal errors in relation to both s. 163.1 and s. 172.1. The parties were entitled to factual determinations based on a proper legal approach to those provisions. The Crown had asked to substitute convictions on the child pornography charges, but limiting the scope of the new trial might unfairly disadvantage the accused and place unforeseen constraints on the trial judge's ability to properly adjudicate the accused's overall criminal responsibility.

R. v A.R., [2017] O.J. No. 6579, 2017 ONCJ 849 (C.J.); R. v. Beattie (2005), 2005 10273 (ON CA), 75 O.R. (3d) 117, [2005] O.J. No. 1302 (C.A.); R. v. Sharpe, [2001] 1 S.C.R. 45, [2001] S.C.J. No. 3, 2001 SCC 2, apld

R. c. Spencer, [2014] 2 S.C.R 212, [2014] S. C.J. No. 43, 2014 CSC 43 (S.C.C.); R. v. Tomasik, [2016] O.J. No. 3132, 2016 ONSC 3719 (S.C.J.), consd

Other cases referred to

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 SCR 76; Gagné c. R., [2011] J.Q. no. 17066, 2011 QCCA 2157, 2011EXP-3732, JE 2011-2053, EYB 2011-198519, 90 C.R. (6th) 270 (C.A.); Lewis v. The Queen, 1979 19 (SCC), [1979] 2 SCR 821; Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, [2000] 2 SCR 1120; R. v. A.D.H., 2013 SCC 28, [2013] 2 SCR 269l; R. [page40] v. A.R., 2017 ONCJ 849; R. v. Alicandro, 2009 ONCA 133; R. v. Beattie, 2005 10273 (ON CA); R. v. Chalk, 2007 ONCA 815; R. v. Chung, 2020 SCC 8; R. v. Graveline, 2006 SCC 16, [2006] 1 SCR 609; R. v. Hamilton, 2005 SCC 47, [2005] 2 SCR 432; R. v. Hape, 2007 SCC 26, [2007] 2 SCR 292; R. v. Hibbert, 1995 110 (SCC), [1995] 2 SCR 973; R. v. J.M.H., 2011 SCC 45, [2011] 3 SCR 197; R. v. Katigbak, 2011 SCC 48, [2011] 3 SCR 326; R. v. Kiefer, 2018 ONCA 925; R. v. Legare, 2009 SCC 56, [2009] 3 SCR 551; R. v. Levigne, 2010 SCC 25, [2010] 2 SCR 3; R. v. Lucas, 1998 815 (SCC), [1998] 1 SCR 439; R. v. Missions, 2005 NSCA 82; R. v. Morrison, 2019 SCC 15, [2019] 2 SCR 3; R. v. Pritchard, 2008 SCC 59, [2008] 3 SCR 195; R. v. Rodwell, [2016] OJ No 6842 (QL) (not available on ); R. v. Rudiger, 2011 BCSC 1397; R. v. Sault Ste. Marie, 1978 11 (SCC), [1978] 2 SCR 1299; R. v. Schacter, 2018 ONCJ 371; R. v. Sharpe, 2001 SCC 2, [2001] 1 SCR 45; R. v. Spencer, 2014 SCC 43, [2014] 2 SCR 212; R. v. Trachy, 2019 ONCA 622; R. v Tomasik, 2016 ONSC 3719; Regina v. Buzzanga and Durocher, 1979 1927 (ON CA); Parsley, [1970] AC 132, [1969] 2 WLR 470, [1969] 1 All ER 347, 53 Cr App R 221 (not available on ); United States of America v. Dynar, 1997 359 (SCC), [1997] 2 SCR 462

Statutes referred to

Criminal Code, R.S.C. 1985, c. C-46 [as am.], ss. 3, 4(3), 43, 163.1 [as am.], (1) [as am.], (a) [as am.], (i), (b) [as am.], (c), (2) [as am.], (3) [as am.], (4) [as am.], (4.1) [as am.], (6) [as am.], (a) [as am.], (7) [as am.], 172.1 [as am.], 231(5) (e), 279 [as am.], 676(1)(a), 686(4) (b)(ii)

Interpretation Act, R.S.C. 1985, c. I-21, s. 14

Authorities referred to

Stewart, Hamish, Sexual Offences in Canadian Law, looseleaf (Aurora, Ont.: Canada Law Book, 2004)

Stuart, Don, Canadian Criminal Law — A Treatise, 7th ed. (Toronto: Carswell, 2014)

Sullivan, Ruth, Sullivan on the Construction of Statutes, 6th ed. (Markham, Ont.: LexisNexis, 2014)

Tobin, John , "The Optional Protocol on the Sale of Children, Child Prostitution, and Child Pornography" in The UN Convention on the Rights of the Child: A Commentary (Oxford: Oxford University Press, 2019)

Treaties and conventions referred to

Convention on the Rights of the Child, 20 November 1989, U.N.T.S. vol. 1577

Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution, and Child Pornography, March 16, 2001, A/RES/54/263, Article 2(c)

APPEAL by Crown from acquittals on charges of child luring and making and distributing child pornography.

Lisa Joyal and Vallery Bayly, for appellant.

John Lefurgey, for respondent.

The judgment of the court was delivered by

TROTTER J.A.:

A. Introduction

[1] Richard McSween was charged with making child pornography, distributing child pornography, and child luring, contrary to ss. 163.1(2), (3) and 172.1 of the Criminal Code, R.S.C. 1985, c. C-46.

[2] The allegations relate to text message communications between the respondent, a 46-year-old man, and J.V., a 14-year-old boy. A number of the messages were of a sexual nature about J.V.'s 14/15-year-old friend,¹ N.B. Specifically, the respondent asked J.V. to send him photos of N.B.'s penis and repeatedly said he wanted to engage in sexual acts with N.B. At trial, the respondent admitted to authoring and sending inappropriate text messages to J.V. However, he claimed he was not serious when he made his sexualized comments about N.B. or when he requested photos of N.B.'s penis.

[3] The respondent was acquitted on all counts.

[4] The Crown appeals the respondent's acquittals. The Crown says the trial judge made legal errors in his interpretation of the child pornography and child luring provisions. I agree. The trial judge's errors stemmed from his attempt to give legal effect to the [page42] respondent's claim that he was joking in his explicitly sexualized messages. This caused him to err in his interpretation of the child pornography and child luring provisions.

[5] I would allow the appeal an order a new trial on all counts.

B. Factual Background

[6] J.V. and N.B. were best friends. The respondent was a friend of N.B.'s family, particularly N.B.'s older brother. J.V. and N.B. came to know the respondent better through his involvement with a local hockey team.

[7] In November of 2016, the respondent started to spend a lot of time with J.V. and N.B. They would frequently "hang out". The respondent took them bowling and to trampoline parks, restaurants and hockey games. It was usually just the three of them, but they were sometimes accompanied by other teenaged boys. The respondent often paid for these activities. He also bought gifts for N.B. -- clothing, food, and a gaming desk. He gave N.B. driving lessons. N.B. slept over at the respondent's apartment from time to time. J.V. also stayed over on one of these nights.

(1) The text messages

[8] The allegations arose from the text messages exchanged between the respondent and J.V., between April 23, 2017 and May 13, 2017.

[9] The first comments of a sexual nature occurred on April 24, 2017. The respondent discussed giving N.B. a "hand job": "[N.B.] said 200$ and I can give him hand Lol." J.V. responded, "Lol."

[10] The next sexualized exchange occurred on May 1, 2017. The respondent repeatedly asked J.V. to send him a photo of N.B.'s penis, referred to in their messages as a "dick pic". The respondent believed that J.V. was in possession of a photo of N.B.'s penis. J.V. testified that N.B. shared such a photo with him on SnapChat; N.B. testified that he did not. When the respondent asked J.V. to send the photo to him, J.V. took a photo of his own face and sent it to the respondent as a joke. The respondent insisted that he wanted the photo of N.B.'s penis because N.B. "bugs me for one so I was going to send him his dick pic lol". The respondent said, "It would b funny" and continued to probe J.V. on whether he had such a photo.

[11] The next exchange occurred on May 12, 2017, when the respondent informed J.V. that he loves N.B.:² [page43]

RM: I still love [N.B.]
JV: Lol
RM: U think he might have sex with me sometime ??
JV: Idk [I don't know]
RM: I will pay him
I just want to play with his cock
JV: Ok
RM: He will
JV: Lol
RM: I'm so happy now
JV: Lol
RM: I will be the happiest person around if he does
R U going to tell him
JV: No
RM: I want him to know that
JV: That's weird.
RM: He thinks I'm joking when I ask him
JV: Cuz u r
RM: No I'm not
JV: Yes u r
RM: I'm not
RM: He is cute eh
JV: Yes
RM: U like him
JV: As a best friend ya
RM: You want to have seen [sex] with him to[o]
JV: No
RM: It's [Is] his dick big
JV: Idk
RM: U seen it
U told me that
JV: Ya [page44]

(Emphasis added)

[12] A little while later that same day, the respondent sent J.V. an image of stick figures engaged in sexual intercourse, with one figure depicted as penetrating the other from behind. Referring to N.B., the respondent wrote, "I wish he would do that to me." J.V. responded with another "Lol".

[13] The respondent then referred to having paid for various things for N.B., including purchasing gifts:

RM: U know after all I do for him he should let me play with his dick eh
JV: No
RM: Desk phone[,] 2 times for the ice[,] the Gongshow stuff [clothing] and other things

(Emphasis added)

[14] Lastly, during this conversation, J.V. said that he was going to take a shower and the following exchange ensued:

RM: Can I go in there to[o] ??
JV: No
RM: Pls
JV: No
RM: Pls pls
JV: No no
RM: Fuck ok maybe next time
JV: Maybe
RM: Sick

(2) The discovery and arrest

[15] These text messages came to light as a result of a dispute between J.V. and his mother. J.V. allowed his phone to run out of power when he was out one night. His mother was frustrated because she was unable to be in touch with him. She confiscated J.V.'s phone, and upon examining it, discovered the text messages reproduced above. When she read them, she felt, "[a]nger, denial, sadness, betrayal".

[16] J.V.'s mother eventually reported the matter to the police, around May 17, 2017. The respondent was arrested a couple of weeks later, on June 1, 2017.

(3) Evidence at trial

[17] J.V., N.B. and the respondent each testified at trial. J.V. and N.B. also gave statements to the police that were introduced at trial. [page45]

J.V.'s Evidence

[18] J.V. was interviewed by the police on May 17, 2017. Throughout his statement J.V. said he thought the respondent was joking in his text messages. J.V. said the respondent told him that in person.

[19] J.V. painted a different picture at trial. He said his "stomach dropped" when he got the messages. At first, he thought the respondent was joking but, when the respondent said he wasn't, J.V. said he felt "scared" for N.B. and said, "I didn't know how to take these messages". He "didn't want it to be true". He characterized the respondent's texts as "pretty weird" and "absolutely disgusting" and said he was "creeped out"; "shocked"; and "awkward, nervous".

[20] J.V. described the respondent as someone who liked to joke around and who acted like a big brother or an overgrown teenager. J.V. acknowledged he joked around with his friends about sex. However, he said the messages he received from the respondent were unlike the jokes he made with his other friends. J.V. admitted that his "interpretation of the texts has changed tremendously in a year". He explained that he initially told the police the respondent was joking because he felt uncomfortable when he gave his statement. But the fact that the respondent referenced spending money on N.B. made him think that it was not a joke.

N.B.'s Evidence

[21] N.B. gave a statement to the police on May 18, 2017. He insisted emphatically that the respondent never acted inappropriately toward him. He gave another statement just prior to trial in July of 2018, contradicting his first statement.

[22] N.B. testified that, when the matter was first brought to the attention of the police, he was "torn because I was relieved but also scared". He was "terrified" and "nervous, very nervous" when he was speaking to the police. He had not yet told his mother everything that had happened, and he feared that it would "destroy her".

[23] N.B. was permitted to testify about incidents in which the respondent made sexual comments to him in person. On one occasion, when N.B. was at the respondent's apartment and talking to his girlfriend on the phone, the respondent took the phone and asked her, "Is it okay if I touch your boyfriend's penis?" This apparently made her cry. N.B. also testified that the respondent asked him for a photo, attempted to masturbate in front of him, and attempted to touch him in a sexual manner. The trial judge admitted this evidence for the purpose of rebutting the respondent's claim [page46] that he was joking. These incidents led N.B. to believe that the respondent was not joking.

[24] N.B. admitted that he continued to see and message the respondent between the time of the allegations and the respondent's subsequent arrest. He went to Canada's Wonderland with the respondent and others. In this time period, the respondent texted, "U know I would never do anything like that to you?" N.B. responded, "obviously". N.B. said that he carried on a cordial relationship with the respondent because he was afraid that the respondent might try to hurt him.

The Respondent's Evidence

[25] The respondent was unwavering in his position that he was not serious in his text messages. Upon his arrest, the respondent told the police: "I was just joking and I already said I was sorry to [N.B.'s] mom." He maintained this position at trial.

[26] The respondent worked as a tow-truck driver. He sent his messages to J.V. when he was between calls. He said was he "just killing time" and "joking around with [J.V.]". He denied deriving any sexual gratification from these exchanges, nor did he sense that they made J.V. uncomfortable. He would have stopped if he had known. He denied any inappropriate conduct with J.V. or N.B. in person.

[27] When the Crown asked the respondent, "what's funny about you playing with a 14 year old boy's cock?", the respondent said, "At the time I thought it was funny, killing time . . . I don't know, at the time I wasn't thinking about it. I was just bored and texting."

[28] When asked what he would have done had he been sent a photograph of N.B.'s penis (even though his request was a joke), the respondent answered, "Would have opened it and saw it and just left it as that."

[29] In relation to $200 being paid for a hand job, the following exchange occurred:

Q.: Would the boys in your presence talk about giving each other hand jobs for money?
A.: No.
Q.: No, because 15 year old kids don't joke about that?
A.: They don't have the money.
Q.: They don't want hand jobs from their buddies, right?
A: Right.
Q.: Screw the money, they don't want hand jobs from their buddies, right?
A.: Right. [page47]
Q.: They don't want hand jobs from 47 year old Rick McSween either, do they?
A.: No.
Q.: No. But that's a funny joke to you?
A.: At the time it was, yes.

[30] In cross-examination, the respondent acknowledged that his texts were inappropriate. He agreed that, as far as sexual content was concerned, the text message correspondence with J.V. was one-sided in the sense that it was always he who initiated discussions about sex and that J.V. appeared to "shut-down" these themes. He said that, when the three of them (i.e., the respondent, J.V., and N.B.) were together, all of them would make jokes of this type.

C. The Trial Judge's Reasons

[31] The trial judge reviewed the evidence in detail. He was unimpressed with J.V. and N.B's evidence:

I have grave doubts about accepting the evidence of either of the two youths. They have obviously changed their mind as to the nature of the texts in question. They do not support each other in the narration of the other events that have supposedly occurred during the driving episodes.

In the case of each youth, I find their first recorded conversations with the police sound unrehearsed and natural. Both seem unhesitating and relaxed, notwithstanding the surroundings. They both sound credible. They are more credible in these first videos than in their viva voce evidence.

[32] The trial judge accepted the respondent's evidence that the messages were sent in jest. He acknowledged that s. 163.1(6) of the Criminal Code, discussed below, does not include a defence of joking. However, he found that the Crown had failed to prove the requisite elements of the child pornography and luring offences. The following passage contains the trial judge's analysis:

Mr. McSween is most certainly inappropriate in his texts. It is quite understandable that a parent seeing these texts would be concerned. This is not a mature man in his forties talking, it is another teenage boy with all the angst and [immaturity] of young teenagers. It is teen locker room banter. It is not what any parent would want their teenage sons exposed to coming from another adult. Some might well object to it between young teenagers.

Mr. McSween gives the impression of being somewhat naïve and as having the immaturity of a young teenager. As an example, he indicates that he would have looked at a dick pic had one been sent. There is no suggestion of anything salacious. It was said just as an immature teenager in his early teen years would have said it. I accept Mr. McSween's testimony in this regard.

I am certainly left with a reasonable doubt as to Mr. McSween's intent. I cannot find beyond a reasonable doubt that the Crown's case has met the requisite level to show his intent for these offences. [page48]

I cannot find he was serious in his text messages. I cannot find these texts posed an undue risk [to] persons under 18 as set out in Section 161.3(6)(b). I use this only as a guide as Subsection (b) must be read as qualifying Subsection (a) which, as the Crown correctly points out, does not contain an exception for jokes.

This lack of risk and lack of dominant sexual characteristic is particularly evident when looked at in the light that only 36 of the total of over 4,000 pages of text messages are raised. I have a reasonable doubt that this would meet the definition of child pornography, there is any attempt to lure [anyone] under 18 years old for a sexual purpose, or that Mr. McSween was counselling or promoting sexual activity with people under 18. I do not find the written material to have the dominant characteristic of, or to represent such activity. The dominant purpose of the texts was not advocating or counselling sexual activity with [J.V.] and [N.B.] I do not find the dominant characteristic to be a description for a sexual purpose of sexual activity.

(Emphasis added)

F. Disposition

[113] I would allow the appeal, set aside the acquittals, and order a new trial on all counts.

Appeal allowed.

Notes

1 N.B. turned 15 within the time period that the text messages were sent.

2 In the following excerpts, emphasis has been added and typographical corrections, as clarified in the evidence, are inserted in square parentheses.

3 Although Spencer was concerned with the offence of making child pornography available under s. 163.1(3), the same approach should apply to the other offences under this subsection: see Stewart, at p. 5-34.

4 This heading is no more helpful than parenthetical references that are contained in certain sections of the Criminal Code, which are "inserted for convenience of reference only": s. 3. The Interpretation Act, R.S.C. 1985, c. I-21, s. 14, prescribes the same approach to marginal notes. See the discussion in R. v. Pritchard, 2008 SCC 59, [2008] 3 S.C.R. 195, which addresses the import of a parenthetical reference in s. 231(5)(e) of the Criminal Code to the offence of "forcible confinement" in s. 279. The offence under s. 279 is properly known as "unlawful confinement". As Binnie J. said, at para. 25, the parenthetical note is not an operative part of the enactment, but is inserted only for ease of reference.

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