Her Majesty the Queen v. Carbone

[Indexed as: R. v. Carbone]

Ontario Reports

Court of Appel for Ontario

Doherty, Watt and Hourigan JJ.A.

June 18, 2020

150 O.R. (3d) 758 | 2020 ONCA 394

Case Summary

Criminal law — Criminal Code offense — Sexual offences, public morals, disorderly conduct and nuisances — Sexual offences — Invitation to sexual touching — Appeal by accused from conviction for invitation to sexual touching allowed — New trial ordered — Complainant alleged she and a friend, aged 14, provided sexual services to appellant in exchange for tattoos — Appellant denied arrangement and any sexual activity — Trial judge failed to properly apply burden of proof when evaluating conflicting evidence but looked to defence to convince or persuade him defence evidence on certain key issues established exculpatory facts — Mens rea of the offence was established.

Criminal law — Evidence — Burden and standard of proof — Burden of proof — Appeal by accused from conviction for invitation to sexual touching allowed — New trial ordered — Complainant alleged she and a friend, aged 14, provided sexual services to appellant in exchange for tattoos — Appellant denied arrangement and any sexual activity — Trial judge failed to properly apply burden of proof when evaluating conflicting evidence — Trial judge did not follow his initial correct self-instruction on burden of [page759] proof but looked to defence to convince or persuade him the defence evidence on certain key issues established exculpatory facts.

Appeal by the accused from conviction for invitation to sexual touching. The complainant and her friend alleged that they had an agreement reached through Facebook messaging by which the complainant and a third friend would provide sexual services to the appellant in exchange for tattoos at the appellant's home, which also served as his tattoo parlour. All three girls were 14. The appellant testified that he rejected the complainant's offer to exchange sexual services for tattoos and told the girls each tattoo would cost $35.00. After he applied the tattoos and requested payment, they told him their mother would come by later to pay. He was, however, never paid. The appellant insisted he was never alone with any of the three girls and never requested, solicited, or permitted any sexual activity with any of the girls. The trial judge accepted the complainant's description of her negotiations with the appellant and found, based on the appellant's own evidence, that he took no reasonable steps to ascertain the complainant's age. The appellant argued the trial judge erred in his application of the burden of proof to the conflicting evidence, erred in not granting a stay due to delay and erred in finding the mens rea of the offence was established.

Held, the appeal should be allowed.

New trial ordered. The trial judge failed to properly apply the burden of proof when evaluating the conflicting versions of events presented in the evidence. The repeated use of the words "convince" and "persuade" in reference to the defence evidence suggested that the trial judge looked to the defence to satisfy him that he should not accept the complainant's version of events. The trial judge should have assessed the appellant's evidence about the financial arrangements from the perspective of the Crown's obligation to establish beyond a reasonable doubt the arrangement involved sex for tattoos. It was crucial that the conflicting evidence be tested against the proper burden of proof. The trial judge did not follow his initial correct self-instruction on the burden of proof but looked to the defence to convince or persuade him the defence evidence on certain key issues established exculpatory facts. That error was fatal and required a new trial. The trial judge did not err in not granting a stay due to delay. The trial judge did not err in deducting the delay of three months caused by defence requests to adjourn the non-judicial pre-trial or the a delay of fur and one-half months caused when the assigned trial judge realized, as the trial was about to commence, she had a conflict and could not preside. Section 152 criminalized only conduct aimed at underaged persons. To convict on a charge under s. 152, the Crown must prove the accused believed, or was wilfully blind, the complainant was under 16, or was reckless as to her age. On the evidence in this case, the rejection of the appellant's s. 150.1(4) defence left only two possibilities as to his state of mind. He either believed, or was wilfully blind, the complainant was under 16, or he was reckless about her true age. Either state of mind established the requisite mens rea under s. 152.

Cases referred to

Motor Vehicle Act (British Columbia) S 94(2) (Re), [1985] 2 S.C.R .486, 1985 81 (SCC), [1985] S.C.J. No. 73 (S.C.C.); R. v. A.D.H., [2013] 2 S.C.R. 269, [2013] S.C.J. No. 28, 2013 SCC 28; R. v. A. (J.), [2011] 2 S.C.R. 440, [2011] S.C.J. No. 28, 2011 SCC 28; R. v. Alicandro (2009), 2009 ONCA 133, 95 O.R. (3d) 173 (C.A.); R. v. Angel, [2019] B.C.J. No. 2399, 2019 BCCA 449, 382 C.C.C. (3d) 149, 59 C.R. (7th) 243 (C.A.); R. v. D. (R.C.), [1991] O.J. No. 1995 (C.A.); R. v. Duran, [2013] O.J. No. 2388, 2013 ONCA 343, 306 O.A.C. 301, 3 C.R. (7th) 274, 107 W.C.B. (2d) 420; R. v. George, [2017] 1 S.C.R. 1021, [2017] S.C.J. No. 100, 2017 SCC 38; R. v. Gagnon, [2018] 3 S.C.R. 3, 2018 SCC 41, [2018] S.C.J. No 41; [page760] R. v. Jordan, [2016] 1 S.C.R. 631, [2016] S.C.J. No. 27, 2016 SCC 27; R. v. Legare, [2008] A.J. No. 373, 2008 ABCA 138, 429 A.R. 271, 89 Alta. L.R. (4th) 1, [2008] 10 W.W.R. 90, 236 C.C.C. (3d) 380, 58 C.R. (6th) 155, 79 W.C.B. (2d) 887 (C.A.), aff'd by S.C.C. on other grounds, [2009] 3 S.C.R. 551, [2009] S.C.J. No. 56, 2009 SCC 56; R. v. Levigne, [2010] 2 S.C.R. 3, [2010] S.C.J. No. 25, 2010 SCC 25; R. v. Morrison (2017), 136 O.R. (3d) 545, 2017 ONCA 582; R. v. Morrison, [2019] 2 S.C.R. 3, [2019] S.C.J. No. 15, 2019 SCC 15 (S.C.C.); R. v. Nguyen, [2017] S.J. No. 148, 2017 SKCA 30, 138 W.C.B. (2d) 509, 348 C.C.C. (3d) 238 (C.A.); R. v. Hess; R. v. Nguyen, 1990 89 (SCC), [1990] 2 S.C.R. 906, [1990] S.C.J. No. 91 (S.C.C.); R. v. Saliba, [2013] O.J. No. 5887, 2013 ONCA 661, 311 O.A.C. 196, 304 C.C.C. (3d) 133, 111 W.C.B. (2d) 121; R. v. Tannas, [2015] S.J. No. 284, 2015 SKCA 61, 123 W.C.B. (2d) 402, 21 C.R. (7th) 166, 460 Sask.R. 161, 324 C.C.C. (3d) 93, [2015] 8 W.W.R. 701 (C.A.); R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26 (S.C.C.); R. v. Westman, 1995 1811 (BC CA), [1995] B.C.J. No. 2124, 65 BCAC 285, 28 W.C.B. (2d) 440 (C.A.)

Statutes referred to

An Act to Amend the Criminal Code and the Canada Evidence Act, S.C. 1987, c. 24

Canadian Charter of Rights and Freedoms, ss. 7, 11(b)

Criminal Code,R.S.C. 1970, c. C-34 [rep.], s. 146, (1)

Criminal Code, R.S.C. 1985, c. C-46, ss. 150.1 [as am.], (4) [as am.], 151 [as am.], 152 [as am.], 172.1 [as am.], (1) [as am.], (b) [as am.], (3), (4), 715.1 [as am.]

Criminal Law Amendment Act, 2001, S.C. 2002, c. 13, s. 8

Authorities referred to

Ashworth, Andrew, Principles of Criminal Law, 5th ed. (Oxford: Oxford University Press, 2006)

Grant, Isabel, and Janine Benedet, "Unreasonable Steps: Trying to Make Sense of R. v. Morrison" (2019), 67 Crim. L. Q. 14

Stewart, Hamish, "'Fault' and 'Reasonable Steps': The Troubling Implications of Morrison and Barton" (2019), 24 C.C.L.R. 379

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

APPEAL from the conviction entered by Villeneuve J. of the Ontario Court of Justice on December 14, 2016.

Michael Lacy and Deepa Negandhi, for appellant.

Jerry Brienza, for respondent.

The judgment of the court was delivered by

DOHERTY J.A.: —

I

[1] The appellant was convicted of one count of invitation to sexual touching, contrary to s. 152 of the Criminal Code, R.S.C. 1985, c. C-46 after a trial by judge alone. He appeals his conviction only.

[2] The appellant raises several grounds of appeal. I accept his contention that the trial judge failed to properly apply the burden of proof when evaluating the conflicting versions of events presented in the evidence. That error requires a new trial. [page761]

[3] I will also consider three of the other arguments advanced by the appellant, although I am not satisfied any should succeed. One argument seeks a stay, based on an alleged breach of s. 11(b) of the Canadian Charter of Rights and Freedoms. The other arguments address the elements of the offence created by s. 152 of the Criminal Code. They raise issues that could arise on a retrial. One of those arguments also engages an important jurisprudential question arising out of the Supreme Court of Canada's decision in R. v. Morrison, [2019] 2 S.C.R. 3, [2019] SCJ No 15, 2019 SCC 15 and its impact on this court's jurisprudence relating to the mens rea requirement in s. 152.

II

The Evidence

[4] The trial judge heard two very different stories. The Crown's case, based on the evidence of the complainant, H.J., and her friend, A.G.,[^1] described an arrangement reached through Facebook messaging by which H.J and a third friend, K.M., would provide sexual services to the appellant in exchange for tattoos. The three girls went to the appellant's home, which also served as his tattoo parlour. H.J., and perhaps K.M., provided sexual services to the appellant. He gave each girl a tattoo as agreed upon. All three girls were 14 years old.

[5] The appellant testified. On his version of events, he rejected H.J.'s offer to exchange sexual services for tattoos and told the girls each tattoo would cost $35.00. The girls came to his home, he applied the tattoos, and requested payment. They told him their mother would come by later to pay for the tattoos. She never came. The appellant called H.J. and threatened to go to her parents and the police if he was not paid by the following Friday. On Friday morning, the police arrived at the appellant's door and arrested him. The appellant insisted he was never alone with any of the three girls and never requested, solicited, or permitted any sexual activity with any of the girls.

(i) The Crown's evidence

[6] H.J., A.G., and K.M. wanted to get tattoos. A.G. contacted the appellant through Facebook to inquire about getting tattoos. After A.G.'s initial contact, H.J. also contacted the appellant on [page762] Facebook. She suggested the appellant provide each girl with a tattoo in exchange for sexual services. After some negotiation, H.J. and the appellant reached an agreement. H.J. would give the appellant "a blowjob" before he did any tattoos. K.M. would have sex with him after he had finished all of the tattoos. H.J. testified she destroyed the Facebook messages containing these negotiations, fearing her parents would find them.

[7] The three girls went to the appellant's home to get their tattoos a day or so later. The appellant met them at the door, clad only in a towel. The girls went into the house, the appellant put on some clothes, and the four sat downstairs talking and smoking marijuana.

[8] A short time later, the appellant and H.J. went upstairs to his bedroom. The appellant confirmed H.J. was still prepared to provide sexual services in exchange for the tattoos. The appellant undressed and H.J. performed oral sex on the appellant. Afterwards, she and the appellant returned downstairs where A.G. and K.M. were waiting. The appellant took each girl upstairs in turn for a tattoo, starting with H.J., then A.G., and finally K.M.

[9] H.J. testified that when she was performing oral sex, she saw many tattoos on the appellant's body, including one on his penis. She could not describe the tattoo. Pictures taken of the appellant after his arrest confirmed he had a tattoo on his penis.

[10] After the appellant had applied the tattoos, he spent some time alone with K.M. According to the arrangement described by H.J., K.M. was to have sex with the appellant after all three girls received their tattoos. K.M. was subpoenaed, but did not appear at trial to testify.

[11] H.J. and her friends left the appellant's home about an hour and a half after arriving. Later that afternoon, H.J. received a Facebook message:

H. that was amazing. Best I ever had. Gold medal.

[12] The sender of the message was identified only as "Facebook user". H.J. indicated in her prior messaging with the appellant that he had identified himself by name. She testified, however, the above-quoted Facebook message was part of the same conversation stream as the earlier messages between her and the appellant. H.J. was confident the message came from the appellant and referred to the oral sex she had performed earlier that day.

[13] According to H.J., the appellant did not ask her about her age or if she had permission from her parents to get the tattoo. She had not told her parents about her plans to get a tattoo. [page763]

[14] A.G.'s evidence[^2] was consistent in many respects with H.J.'s testimony. When A.G. went to the appellant's home to get her tattoo, she understood from H.J. that arrangements had been made whereby H.J. and K.M. would provide sexual services to the appellant in exchange for the tattoos. Shortly after the three girls arrived at the appellant's home, H.J. and the appellant went upstairs. They returned about 20 minutes later. According to A.G., H.J. told her the appellant had a tattoo on his penis. H.J. did not recall that conversation. A.G. also recalled H.J. telling her that she had told the appellant the true age of the girls. H.J. did not give evidence to that effect.

[15] Neither H.J. nor A.G. saw anyone other than the appellant in the appellant's home.

(ii) The defence evidence

[16] The appellant, who was 31 years old, operated a licenced tattoo parlour out of his home where he lived with his fiancée. The appellant had operated the business for several months and was aware of health board rules, including the rule requiring parental consent before any persons 16 years of age or younger could be tattooed.

[17] The appellant testified that A.G. contacted him over Facebook to inquire about tattoos for herself and her friends. The appellant asked A.G. how old she was and she said she was 16 years old. He told her he charged $35.00 per tattoo.

[18] Later the same day, H.J. contacted the appellant. She suggested the appellant provide tattoos for each of the girls in exchange for sexual services. The appellant rejected this offer, telling H.J. he did not do tattooing for sexual favours. He had a fiancée and he needed the money. The appellant testified he never seriously contemplated the exchange proposed by H.J. He agreed there were references to the sex for tattoos proposal in subsequent Facebook messages exchanged with H.J. before she and her friends arrived at his home. The appellant insisted, however, that he never said anything in those messages suggesting he would exchange tattoos for sexual favours. The appellant could not produce the Facebook messages because his fiancée had destroyed them after he was arrested. According to the appellant, he was angry when his fiancée told him she had destroyed the messages because he believed they would exonerate him. [page764]

[19] The appellant testified the three girls came to his residence a day or so later. A friend was staying with the appellant. The three girls visited with the friend and smoked some marijuana while the appellant went upstairs to prepare the tattoo patterns. To the appellant's knowledge, the three girls stayed together the entire time they were in his home. He was never alone with any one of them. All three girls were together when each received their tattoos from the appellant.

[20] The appellant's fiancée arrived home after two of the girls had been tattooed but before the third had received her tattoo. She spoke briefly with the girls.

[21] The appellant indicated that he usually applied a tattoo first and then requested payment from the customer. He followed his usual practice with H.J. and her friends. When he asked for his money, the girls told him they did not have it, but their mother would be by later that day to pay for the tattoos. The appellant found it strange that three girls, who were all the same age, had the same mother, but he did not ask any questions. One of the girls had produced a permission slip signed by somebody, who the appellant presumed to be the girls' mother. The appellant did not request the mother's contact information.

[22] H.J. had given the appellant her cellphone number. After the mother did not appear with the money, the appellant called H.J. and told her that if she did not pay him, he would speak with her parents and, failing payment, would go to the police. H.J. assured him she would pay by the upcoming Friday. When Friday morning came, the police arrived at the appellant's home and arrested him. He initially thought he was arrested for tattooing underage girls. He eventually, however, understood he was being arrested on criminal charges alleging sexual activity with H.J. and her friends.

[23] The appellant testified he was concerned about the age of the three girls because it was against the health board rules to give persons 16 years of age or younger a tattoo without their parents' permission. He could lose his licence if he ran afoul of those rules. When asked what steps he took to determine the girls' ages, the appellant indicated one of them had told him in the Facebook conversations the girls were 16. The appellant also testified the girls looked 16.

[24] The appellant did not ask for any identification. No parent contacted him about the tattoos, although, according to him, he indicated in the Facebook conversations that, because the girls were 16, one of their parents had to contact him before he could give them tattoos. Although the appellant said he saw a permission slip, he did not keep that slip or make a copy of it. [page765]

[25] The appellant's fiancée testified after the appellant. When her evidence was complete, the defence asked to recall the appellant to testify to one matter counsel had inadvertently failed to bring out in his evidence. The trial judge allowed counsel to recall the appellant.

[26] When recalled, the appellant, for the first time, offered an explanation for how H.J. would know that he had a tattoo on his penis. The appellant testified the third girl to be tattooed (K.M.) was afraid of needles and very nervous about getting a tattoo. In an attempt to calm her down, the appellant assured her that he was putting her tattoo on a part of her body that would not cause much pain. To make the point, he told her that applying tattoos to some parts of the body could be extremely painful. As an example of a painful location for a tattoo, he told K.M. he had a tattoo on his "crotch". A.G. and H.J. were present during this conversation.

III

The Reasons of the Trial Judge

[27] The trial judge identified two central issues:

(1) Was H.J. "invited" by the appellant to touch his penis, and did she provide oral sex (Reasons, at para. 49)?

(2) Did the appellant believe H.J. was 16 years or older at the relevant time and, if so, did the appellant take all reasonable steps to determine her age (Reasons, at para. 50)?

[28] On the first issue, the trial judge accepted H.J.'s description of her negotiations with the appellant before going to his home and the sexual activity that occurred at his home. On the second issue, the trial judge found, based on the appellant's own evidence, he took no reasonable steps to ascertain H.J.'s age.

[29] The essential findings of the trial judge are set out below (Reasons, at paras. 81, 83):

In conclusion, I am satisfied beyond a reasonable doubt that the complainant did negotiate with the defendant to give him a blowjob in return for a tattoo and that she performed the act of fellatio in his bedroom prior to his tattooing her and her two friends. I conclude that, for the reasons which I have set out, in particular the complainant's observations of certain tattoos on the defendant's body, which she otherwise would not have had occasion to see.

Having concluded the complainant performed oral sex on the defendant in his bedroom and upon having further testified that he never took the necessary reasonable steps referred to in s. 150.1(4) to ascertain the complainant's true age of 14 years old on the offence date, I am satisfied of the defendant's guilt beyond a reasonable doubt. [page766]

IV

The Grounds of Appeal

A:

Did the trial judge err in his application of the burden

of proof?

[30] The outcome at trial turned largely on the trial judge's assessment of the conflicting evidence. He reminded himself that he had to make that assessment having regard to the burden of proof placed on the Crown. The trial judge believed H.J. He did not believe the appellant.

[31] The appellant submits the trial judge erred in his application of the burden of proof to the conflicting evidence. In making this submission, the appellant relies on four passages from the reasons:

-- the trial judge was "not convinced" by the appellant's evidence that any financial arrangement for payment for the tattoos was ever made (Reasons, at para. 60);

-- the trial judge was "not persuaded" the Facebook message, which H.J. said she received shortly after she provided oral sex to the appellant, had not come from the appellant (Reasons, at para. 62);

-- the trial judge was "not satisfied beyond a reasonable doubt that he [the appellant] ever saw a permission slip" (Reasons, at para. 78); and

-- the trial judge was not "persuaded" by the evidence of the appellant's fiancée that the appellant had not negotiated with H.J. to exchange tattoos for sexual services (Reasons, at para. 82).

[32] Reasons for judgment must be read as a whole. An isolated use of an inappropriate word is not enough to demonstrate an error in law, particularly one involving a fundamental legal principle like the burden of proof. The passages relied on by the appellant must also be placed in the context of the trial judge's correct self-instruction early in his analysis on the burden of proof and his accurate articulation of the principles set down in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26 (Reasons, at paras. 46-47).

[33] The passages from the reasons highlighted by the appellant do, however, raise concerns. The repeated use of the words "convince" and "persuade" in reference to the defence evidence suggests that the trial judge looked to the defence to satisfy him that he should not accept H.J.'s version of events. [page767]

[34] In considering whether he was satisfied beyond a reasonable doubt the sexual encounter described by H.J. "in fact occurred" (Reasons, at para. 51), the trial judge reviewed the evidence of H.J. and A.G. (Reasons, at paras. 52-58). He then turned to the appellant's evidence, indicating, at para. 60:

The defendant's attempt in his video statement and his evidence in-chief and under cross-examination to explain the financial arrangement made for payment or the lack thereof does not convince me that any such arrangements were ever made.

[35] The appellant was not required to "convince" the trial judge of anything. The trial judge should have assessed the appellant's evidence about the financial arrangements from the perspective of the Crown's obligation to establish beyond a reasonable doubt the arrangement involved sex for tattoos. A doubt may exist, based on an accused's evidence, even if the trial judge is not convinced the evidence is true: see W. (D.), at p. 757.

[36] The trial judge's indication that the defence was required to "convince" him the financial arrangements existed was a potentially material error. The financial arrangements described by the appellant were at the heart of the defence position advanced at trial. If the trial judge dismissed the appellant's evidence about the financial arrangement because it did not "convince" him the arrangements existed, the path to conviction for the Crown was short and downhill.

[37] The trial judge's analysis of the evidence about the Facebook message H.J. said the appellant sent her after the alleged sexual activity reveals a similar analytical flaw. H.J. testified that the message came from the appellant and referred to the oral sex she had provided earlier that day. The appellant denied sending the message. The message itself was not produced at trial.

[38] In accepting H.J.'s evidence, the trial judge indicated he was not "persuaded" that the author of the message was anyone other than the appellant. The appellant was not obliged to "persuade" the trial judge he was not the author. Rather, the trial judge had to decide whether, on the totality of the evidence, he could find as a fact the message was sent and was sent by the appellant. It was not for the appellant to persuade the trial judge that either fact had not been established.

[39] The trial judge's treatment of the evidence concerning the Facebook message was significant. If the trial judge found as a fact that the appellant authored the message, the appellant's conviction was virtually ensured. It was crucial that the conflicting evidence be tested against the proper burden of proof. [page768]

[40] The trial judge's approach to the appellant's evidence that he saw a permission slip also misapplies the burden of proof. The trial judge said, at para. 78:

I am not satisfied beyond a reasonable doubt that he ever saw a permission slip.

[41] There was no burden on the appellant, much less a burden of proof beyond a reasonable doubt, to establish he had seen a permission slip. This evidence went to the appellant's claim that he took reasonable steps to determine the girls' ages. The Crown had the burden to prove the absence of those reasonable steps. The trial judge improperly rejected the appellant's evidence about the permission slip based on the appellant's failure to meet a burden of proof wrongly imposed on him by the trial judge.

[42] Were this the only problematic reference in the reasons, one might conclude the error was immaterial. The evidence the appellant saw a permission slip was weak. The relevance of the permission slip to the appellant's belief the girls were 16 or over is also not clear. There seems little likelihood that the evidence concerning the permission slip figured prominently in the trial judge's assessment.

[43] Considered with the other incorrect references to the burden of proof, however, I cannot dismiss this reference as immaterial. The existence of a permission slip was part of the reasonable steps defence advanced by the appellant. The rejection of the existence of a permission slip, based upon an improper application of the burden of proof, not only undermined the reasonable steps defence, but was consistent with the other passages in the reasons which looked to the defence to convince or satisfy the judge of the facts relied on by the defence.

[44] The reference by the trial judge to not being "persuaded" by the evidence of the appellant's fiancée also suggests a misapplication of the burden of proof. I need not consider the impact of this passage, as the evidence of the appellant's fiancée had very little, if anything, to do with the central issues at trial.

[45] As required, I have examined the reasons as a whole. I am satisfied the trial judge did not follow his initial correct self-instruction on the burden of proof. Instead, he looked to the defence to convince or persuade him the defence evidence on certain key issues established exculpatory facts. That error is fatal. There must be a new trial.

B:

Did the trial judge err in finding that the appellant's

right to trial within a reasonable time was not

breached?

[46] The court did not call on the Crown on this ground of appeal. [page769]

[47] The charge was before the court from June 6, 2014 to August 26, 2016, a total delay of 26 1/2 months. The defence conceded that 49 days was attributable to the defence, yielding what the defence argued was a net delay of 25 months.

[48] Under R. v. Jordan, [2016] 1 S.C.R. 631, [2016] S.C.J. No. 27, 2016 SCC 27, a delay of more than 18 months in the completion of the appellant's trial puts the onus on the Crown to demonstrate the delay is not unreasonable. If the delay is under 18 months, the onus rests on the accused to show that the delay is unreasonable. The appellant's s. 11(b) argument depends on a finding that the relevant delay for the purposes of s. 11(b) was over 18 months. The appellant does not argue if the delay was under 18 months, he can discharge the onus to demonstrate the delay was nonetheless unreasonable.

[49] The trial judge made two findings reducing the delay from 25 months to just under 18 months. The first finding involved a delay of three months caused by defence requests to adjourn the non-judicial pre-trial. The second related to a delay of 4 1/2 months caused when the assigned trial judge realized, as the trial was about to commence, she had a conflict and could not preside. The trial was rescheduled to a date 4 1/2 months later.

[50] The two time periods deducted by the trial judge totalled 7 1/2 months, leaving a remaining delay of 17 1/2 months, just under the Jordan ceiling of 18 months.

[51] The appellant challenges the trial judge's factual findings underlying his characterization of the two time periods described above. The appellant submits the delays in the non-judicial pre-trial were necessary because the Crown had not provided disclosure of the video statements given by H.J. and A.G. The appellant argues, without disclosure of those videos, a non-judicial pre-trial would have been pointless. Consequently, the three month delay attributable to the adjournments of the non-judicial pre-trial should not have been characterized as defence delay.

[52] The same argument was made at trial. The trial judge correctly noted there was nothing in the record connecting the absence of disclosure of the video statements to the defence requests for delay in the non-judicial pre-trial. I understand counsel on appeal to submit the connection is self-evident.

[53] The trial judge was not prepared to make that connection. As a judge of the Ontario Court of Justice, the trial judge would be very familiar with the pre-trial process in that court. He would know whether the disclosure provided by the Crown was sufficient, absent disclosure of the video, to permit a meaningful non-judicial pre-trial. In the absence of anything in the record to suggest defence counsel at the time of the adjournments viewed the [page770] disclosure as essential, I see no error in the trial judge drawing his own conclusions about the need for the videos. Certainly, those conclusions rest on much firmer ground than would any speculative second-guessing by this court. I would not interfere with the trial judge's finding that the delay attributable to the adjournments of the non-judicial pre-trial should count as defence delay.

[54] Turning to the second time period deducted from the overall delay, the appellant accepts the adjournment necessitated when the trial judge realized she had a conflict of interest, qualifies as an exceptional circumstance under Jordan. The appellant submits, however, it should not have taken 4 1/2 months to reschedule the trial. He argues something less than the entire 4 1/2 months should have been deducted as attributable to the exceptional circumstance. The appellant contends, even a generous deduction of two or three months for the adjournment would have left a net delay of more than 18 months.

[55] The same argument was made at trial. The trial judge concluded that the entire 4 1/2 months should be deducted. The appellant's arguments in this court rest primarily on the absence of evidence in the record. For example, the appellant points out there was no evidence another judge could not have been available at an earlier date.

[56] I do not find those arguments helpful. No one suggested when the trial was being rescheduled an earlier trial date could or should be made available. Indeed, the Crown had asked for the earliest available date. The defence said nothing.

[57] There are situations in which the length of a delay following an exceptional circumstance will speak for itself insofar as the attribution of the entire delay to the exceptional event is concerned. In those circumstances, the court may properly decide, based exclusively on the length of the delay, that the entire delay cannot, absent some explanation in the evidence, be attributed to the exceptional circumstance. Here, the delay was 4 1/2 months. A delay of that length, to find a date when a judge, a courtroom, counsel, and the witnesses are all available is not ideal. Nor, however, is it sufficiently long to render unreasonable the trial judge's conclusion the entire 4 1/2 months needed to reschedule the trial should be attributed to the delay caused by the last-minute adjournment of the trial. In the absence of any evidence directed at this specific adjournment, the trial judge was entitled to look to his own experiences in the jurisdiction in deciding how to properly characterize the delay of 4 1/2 months.

[58] I see no error in the trial judge's s. 11(b) analysis. [page771]

C:

Did the trial judge incorrectly identify the actus

reus of the offence?

[59] The appellant was charged under s. 152 of the Criminal Code:

152. Every person who, for a sexual purpose, invites, counsels or incites a person under the age of 16 years to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the person under the age of 16 years,

(a) is guilty of an indictable offence . . . or

(b) is guilty of an offence punishable on summary conviction.

[60] To establish the offence in the context of this case, the Crown had to prove:

-- H.J. was under 16;

-- the appellant invited, counselled, or incited H.J. to touch him; and

-- the proposed touching was for a sexual purpose.

[61] The Crown did not have to prove that H.J. actually touched the appellant for a sexual purpose. An invitation to touch includes acts and/or words by which an accused requests, suggests, or otherwise incites or encourages the complainant to touch him for a sexual purpose. The invitation may be express or implied: R. v. Legare, [2008] A.J. No. 373, 2008 ABCA 138, 236 C.C.C. (3d) 380, at paras. 32-38, aff'd on other grounds, [2009] 3 S.C.R. 551, [2009] S.C.J. No. 56, 2009 SCC 56; see, also, Hamish Stewart, "Sexual Offences in Canadian Law", looseleaf (Aurora, Ont.: Canada Law Book, 2004) (updated 2018), at 4-3 to 4-5.

[62] The offence of invitation to sexual touching does not require the appellant to initiate the communication or activity alleged. It is enough that the appellant did and/or said something in the course of his interaction with H.J. that amounted to an invitation to H.J. to touch the appellant for a sexual purpose: see Stewart, at 4-7 to 4-9. The invitation, incitement, or counselling may come in the form of an agreement to exchange something for sexual services to be provided by the complainant: see R. v. D. (R.C.), [1991] O.J. No. 1995 (C.A.).

[63] The appellant submits the trial judge wrongly held the Crown had to prove H.J. performed oral sex to establish the offence. I think this is a fair reading of the trial judge's reasons: see Reasons, at paras. 49, 81. The error did not, however, prejudice the [page772] appellant. Instead, it required the Crown to prove an additional element, actual touching, not required by the offence.

[64] The trial judge was satisfied the appellant and H.J. negotiated the exchange of sexual services for tattoos. On the trial judge's findings, the appellant and H.J. agreed that H.J. would provide oral sex. The negotiations leading to this agreement constituted an invitation by the appellant to H.J. to touch him for a sexual purpose. The invitation was reinforced when the appellant took H.J. upstairs to his bedroom, confirmed the "deal" was still on, and removed his clothing. In doing so, he again invited H.J. to touch him for a sexual purpose.

[65] The trial judge's finding that H.J. immediately performed oral sex on the appellant provided strong evidence that an invitation to do so had been made in the Facebook negotiations and confirmed by the appellant when he and H.J. were together in his bedroom immediately before she performed oral sex.

[66] On the trial judge's findings, what the trial judge referred to as the "sexual encounter" between the appellant and H.J. included conduct constituting an invitation by the appellant to H.J. to touch him for a sexual purpose.

D:

Was the Crown required to prove the appellant believed

H.J. was under 16, even if he took no reasonable steps to

determine her age?

(i)Introduction

[67] The offence of invitation to sexual touching requires the Crown to prove the complainant was under 16. There is nothing in the language of the section that speaks expressly to the mens rea requirement as it relates to the accused's belief concerning the complainant's age. Section 150.1(4), however, applies to charges under s. 152. That section creates a "defence" based on a mistaken belief that the complainant was 16 or older if, and only if, an accused took "all reasonable steps" to ascertain the complainant's age:

(4) It is not a defence to a charge under section 151 or 152, subsection 160(3) or 173(2), or section 271, 272 or 273 that the accused believed that the complainant was 16 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.

[68] The appellant claimed he believed H.J. was 16. Her age was important to him, not because of any sexual activity, which he denied, but because the applicable health rules required him to have parental consent before he applied a tattoo to a person 16 or younger. The trial judge found the appellant did not take any, much less all, [page773] reasonable steps to ascertain H.J.'s age. He convicted the appellant on the basis the Crown had proven beyond a reasonable doubt that the appellant failed to take all reasonable steps to determine H.J.'s age. The trial judge did not consider whether, apart from his finding of a failure to take reasonable steps, the Crown had proven the appellant believed H.J. was under 16.

(ii)The appellant's submissions

[69] The appellant begins with the fundamental principle that the Crown must prove all essential elements of a criminal offence beyond a reasonable doubt to obtain a conviction. The appellant argues the accused's belief the complainant was under 16, or wilful blindness with respect to her age, is an essential component of the mens rea required for the offence created by s. 152. As with all other essential elements of that offence, the Crown must prove the mens rea beyond a reasonable doubt.

[70] The appellant characterizes s. 150.1(4) as providing a limited defence to a charge under s. 152, based on the accused's belief the complainant was 16 or older. The appellant submits the Crown can rebut the defence by proving, beyond a reasonable doubt, either the accused did not believe the complainant was 16 or older, or even if he held that belief, he had not taken all reasonable steps to determine the complainant's age.

[71] The appellant contends, however, the failure of the s. 150.1(4) defence does not lead inevitably to a conviction and does not relieve the Crown of its obligation to prove the essential elements of the offence, including the accused's belief the complainant was under 16. The appellant submits an accused's defence under s. 150.1(4) may fail for want of reasonable steps, but the accused must be acquitted unless the Crown can prove he knew or was wilfully blind to the fact the complainant was under 16. On the appellant's argument, if an accused knew there was a chance the complainant was underage, or simply never turned his mind to the complainant's age, the accused would be entitled to an acquittal because the Crown had failed to prove the accused believed the complainant was under 16 or was wilfully blind to that fact. The appellant submits the trial judge never considered the mens rea requirement after he rejected the appellant's s. 150.1(4) defence.

[72] This argument relies entirely on the analysis in R. v. Morrison, 2019 SCC 15, which reversed this Court's decision in R. v. Morrison (2017), 136 O.R. (3d) 545, 2017 ONCA 582. Morrison involved an internet luring charge under s. 172.1(1)(b). That section prohibits certain internet communications with persons who are either under 16 or are believed by the person making the communication to be under 16. [page774]

[73] The appellant submits the analysis in Morrison is equally applicable to other offences, including s. 152, for which the age of the complainant is an element of the offence. He points out that the mistaken belief in consent defence in s. 172.1(4), which figured prominently in the Morrison analysis, is very similar to the defence created by s. 150.1(4). The appellant also relies on passages in Morrison, referencing R. v. George,[2017] 1 S.C.R. 1021, [2017] S.C.J. No. 100, 2017 SCC 38, a case involving a charge of sexual interference under s. 151 and a defence of mistaken belief in age: Morrison, at paras. 86-88. He contends the analysis of George in Morrison compels the conclusion that the approach taken in Morrison has equal application to other sexual offences in which the age of the complainant is an element of the offence.

(iii) The law before Morrison

[74] By overruling this court in Morrison, the Supreme Court of Canada has changed the law in this province as it relates to the elements of the offence of child internet luring, at least in cases where the allegation is based on the accused's belief that he is communicating with a person under the required age. Additionally, if Morrison applies to other offences involving sexual activity with underage children and adolescents, Morrison has changed the law concerning the mens rea requirement relating to the age of the complainant for those offences.[^3]

[75] Prior to Morrison, courts described the fault element as it related to the complainant's age for offences like s. 152 by reference to the "reasonable steps" requirement in s. 150.1(4). The Crown could establish the requisite mens rea by proving either the accused did not believe the complainant was the required age or older or, despite any belief the accused may have had, he had not taken "all reasonable steps" to ascertain the age of the complainant. The accused's belief with respect to the age of the complainant was irrelevant if the Crown proved beyond a reasonable doubt the accused had not made the inquiries mandated by s. 150.1(4). In essence, the mens rea, as it related to the age of the complainant, required the Crown to prove beyond a reasonable doubt the [page775] absence of a belief founded on reasonable inquiries that the complainant was the required age or older: see R. v. Duran, [2013] O.J. No. 2388, 2013 ONCA 343, 306 O.A.C. 301, at para. 51; R. v. Saliba, [2013] O.J. No. 5887, 2013 ONCA 661, 311 O.A.C. 196, at paras. 26-28. See, also, R. v. Tannas, [2015] S.J. No. 284, 2015 SKCA 61, 324 C.C.C. (3d) 93, at paras. 21-24; R. v. Nguyen, [2017] S.J. No. 148, 2017 SKCA 30, 348 C.C.C. (3d) 238, at para. 4.

[76] Not only have provincial appellate courts treated an accused's belief about the complainant's age as irrelevant to liability for offences identified in s. 150.1(4), absent an appropriate reasonable steps inquiry, the Supreme Court of Canada seemed to adopt the same interpretation in George. In that case, the Crown had to prove the complainant was under 16. He was 14. The accused testified she assumed the complainant was 16 or older, based on his behaviour and demeanour. Her evidence put s. 150.1(4) in play.

[77] The five-person unanimous court described the mens rea related to the complainant's age as requiring either proof of the absence of an honest belief that the complainant was 16 or older or proof the accused failed to take all reasonable steps to determine the complainant's age. Gascon J. explained the mens rea in these terms, at paras. 7-8:

For both offences, the Criminal Code barred Ms. George from relying on C.D.'s consent as a defence because C.D. was younger than 16 (s. 150.1(1)) and Ms. George was more than five years his senior (s. 150.1(2.1)). Accordingly, her only available defence -- or more accurately, her only available means of negating her criminal intent (mens rea) to have sex with a minor was 'mistake of age': i.e. Ms. George believing that C.D. was at least 16. However, the Criminal Code limits the availability of the mistake of age defence by requiring that 'all reasonable steps' be taken to ascertain the complainant's age.

As a result, to convict an accused person who demonstrates an 'air of reality' to the mistake of age defence, the Crown must prove beyond a reasonable doubt either that the accused person (1) did not honestly believe the complainant was at least 16 (the subjective element); or (2) did not take 'all reasonable steps' to ascertain the complainant's age.

(Emphasis added; citation omitted)

[78] The court returned to the essential elements of the offence when addressing the reasons of the dissenting judge in the court below. That judge had opined the offence required proof of grooming or exploitation. Gascon J. found neither were required stating, at para. 26:

It is a criminal offence to sexually touch a child who is 14 years of age or more but younger than 16 when you are five or more years their senior, even if you honestly believed they are older than 16, unless you have taken "all reasonable steps" to ascertain their age; nothing more is required. [page776]

(Emphasis added)

[79] Morrison was decided after the trial judge gave judgment in this case. The trial judge's analysis of the mens rea requirement in s. 152, as it relates to the complainant's age, was correct on the law as it stood at the time. The appellant claims that the analysis is wrong in light of Morrison.

(iv) The holding in Morrison

[80] Section 172.1(1), the offence in issue in Morrison, requires the Crown to prove three things:

-- the accused communicated by way of telecommunication with another person;

-- the person the accused communicated with was under 16, or the accused believed that person to be under 16; and

-- the communication was made for the purpose of facilitating the commission of one of the enumerated offences "with respect to" the person the accused communicated with. The enumerated offences all involve sexual activity with young persons under specified ages. Section 152 is one of the enumerated offences.

See R. v. Legare, 2009 SCC 56, [2009] 3 S.C.R. 551, at para. 36; Morrison, at para. 43.

[81] Mr. Morrison communicated over the internet with a police officer pretending to be a 14-year-old girl named "Mia". The conversations became overtly sexual over many months. At some point in the conversations, Mr. Morrison invited "Mia" to touch herself sexually. He proposed they meet and engage in sexual activity. Instead, the police arrested Mr. Morrison and charged him with communicating by way of telecommunication with a person he believed to be under 16 for the purpose of facilitating the offence of invitation to touching for a sexual purpose, contrary to s. 152.

[82] At trial, the verdict turned exclusively on whether Mr. Morrison believed he was speaking with a 14-year-old girl when he was communicating with the police officer. Mr. Morrison testified that despite "Mia" telling him she was 14, he believed he was communicating with an adult woman playing the role of a 14-year-old girl.

[83] Section 172.1(3) and (4) are germane to the analysis in Morrison:

172.1(3) Evidence that the person referred to in paragraph 1(a), (b) or (c) was represented to the accused as being under the age of eighteen years, sixteen years or fourteen years, as the case may be, is, in the absence of evidence to the contrary, proof that the accused believed that the person was under that age. [page777]

(4) It is not a defence to a charge under paragraph (1) (a), (b) or (c) that the accused believed that the person referred to in that paragraph was at least eighteen years of age, sixteen years or fourteen years of age, as the case may be, unless the accused took reasonable steps to ascertain the age of the person.

[84] Section 172.1(3) creates a presumption that the accused believed the complainant was underage if a representation to that effect was made to the accused. Section 172.1(4) creates a mistaken belief in age defence in terms similar, but not identical, to those found in s. 150.1(4).

[85] The trial judge in Morrison struck down the presumption in s. 172.1(3) as unconstitutional. He upheld the constitutionality of s. 172.1(4).

[86] On the merits of the allegation, the trial judge had a doubt about whether Mr. Morrison believed "Mia" was under 16. He described Mr. Morrison as "at least indifferent to the age of the person he was communicating with on the internet." The trial judge went on, however, to convict as the Crown had proven Mr. Morrison had failed to take reasonable steps to ascertain "Mia's" age. Absent those steps, Mr. Morrison's state of mind about "Mia's" age was irrelevant to his liability.

[87] This court agreed with the trial judge that s. 172.1(3) was unconstitutional and s. 172.1(4) was constitutional. This court also accepted the Crown could prove its case either by proving Mr. Morrison did not believe "Mia" was 16 or older or by proving he did not take all reasonable steps to determine her age: see Morrison Ont. C.A., at para. 79. In so holding, this court took the same approach to mens rea as it related to the complainant's age on a charge under s. 172.1(1) as it had taken in Duran and Saliba to charges involving sexual offences against children identified in s. 150.1(4).

[88] At the Supreme Court of Canada, the entire court found s. 172.1(3) unconstitutional. The eight-person majority upheld the constitutionality of s. 172.1(4).[^4] The majority, however, rejected this court's holding that proof beyond a reasonable doubt Mr. Morrison did not take all reasonable steps to determine "Mia's" age provided a stand-alone basis for conviction, regardless of whether the Crown proved he believed she was under 16. Moldaver J. said, at para. 129:

The reasonable steps requirement under subs. (4) does not provide an independent pathway to conviction. Therefore, the inquiry does not end if and [page778] when the Crown establishes that the accused did not take reasonable steps. Instead, the trier of fact would then be required to consider the whole of the evidence, including the evidence relating to the accused's failure to take reasonable steps, not to reintroduce the defence of honest belief in legal age, but in determining whether the Crown had discharged its legal burden of establishing that the accused believed the other person was under age. Only if that element is proven can a conviction be entered.

[89] Significantly, Moldaver J. held that the requirement the accused "believed" he was speaking to a person under 16 could only be established by proof of an actual belief the person was under 16 or its very near equivalent, wilful blindness to the age of that person. Neither recklessness, nor negligence would suffice: Morrison, at paras. 96-102.

[90] In excluding recklessness from the required mens rea, Moldaver J. acknowledged recklessness would suffice to establish the required mens rea in respect of consent in sexual assault charges: see, e.g., R. v. J.A., [2011] 2 S.C.R. 440, [2011] S.C.J. No. 28, 2011 SCC 28, at para. 24. He distinguished those cases, at least in cases where the accused was not communicating with someone under 16, by reference to the specific language in s. 172.1(1). He said, at para. 101:

In the child luring context, however, proving that the accused had a mere awareness of a risk that the other person was underage does not establish that the accused believed the person was underage, which is what s. 172.1(1) requires in the context of a police sting where there is no underage person.[^5]

[91] After Morrison, an accused charged with communicating with a person believed to be under 16, contrary to s. 172.1(1)(b), must be acquitted regardless of whether he took any reasonable steps to determine the age of the person he was speaking with even if he suspected the person was under 16 but decided to proceed in any event or if he simply never turned his mind to the complainant's age. Prior to Morrison, the reckless or negligent accused would have been convicted when the Crown proved the accused did not take all reasonable steps to ascertain the complainant's true age.[^6] [page779]

(v) Does Morrison have application to this case?

(a) Introduction

[92] The majority in Morrison is careful to focus on the specific charge before the court. Moldaver J. repeatedly indicates his reasons are restricted, not just to the crime of child internet luring, but to charges which specifically allege the accused communicated with a person he "believed" to be under 16, as opposed to with a person who was actually under 16: Morrison, at paras. 55, 81, 84, 95, 101, 102. Mr. Morrison was communicating with a police officer pretending to be a child. There was no possibility the communication could ever bring about the offence Mr. Morrison was trying to facilitate by means of the communication.

[93] In light of the majority's repeated indication its reasons were limited to charges of child internet luring involving communication with persons who were not in fact underage, it cannot be said that Morrison stands as direct and binding authority on the mens rea for offences like s. 152, involving sexual activity with underage persons. That is not to say, however, the analysis in Morrison does not inform the interpretative process required here. Clearly, it does. The appellant argues the reasoning requires this court to depart from its prior jurisprudence relating to the mens rea with respect to the complainant's age in offences like s. 152.

[94] The appellant contends that two aspects of the analysis in Morrison require this court to abandon its earlier case law. First, the statutory scheme governing the mens rea component in s. 172.1(1), as it relates to the age of the complainant, is sufficiently similar to the statutory scheme governing other offences involving sexual activity with underage persons to make the court's analysis of the mens rea in s. 172.1(1) directly applicable to offences like s. 152. Second, the majority's treatment of its prior decision in George signals the analysis in Morrison had direct application to other offences involving sexual activity with underage persons. For reasons I will explain, a comparison of the relevant statutory provisions does not convince me that the analysis in Morrison has application to s. 152. However, the majority's explanation of its earlier judgment in George does require some revision of this court's earlier description of the mens rea in s. 152. [page780]

(b) The statutory provisions are different

(1) Section 172.1

[95] Sections 172.1 and 152 are among a group of Criminal Code offences designed to protect young persons from sexual exploitation and abuse. Section 172.1 aims specifically at exploitation and abuse via the Internet, a pernicious and notoriously difficult to detect form of that exploitation and abuse: see Legare, at para. 26; R. v. Alicandro (2009), 95 O.R. (3d) 173, 2009 ONCA 133, at para. 36; R. v. Levigne, [2010] 2 S.C.R. 3, [2010] S.C.J. No. 25, 2010 SCC 25, at paras. 25-26; Morrison, at para. 39.

[96] The apprehension of persons who take to the Internet to exploit and abuse children presents difficult and unique problems. Sexual predators have easy, anonymous, and repeated access to a very deep pool of potential victims. The abuse and exploitation of children over the internet is often a process rather than a single event. Children are groomed to be victimized over a period of time through many contacts. In the initial stages of this grooming process, the contacts intended to ultimately facilitate sexual abuse of the person being communicated with may seem benign.

[97] Parliament addressed these concerns in at least two ways in structuring the offence created by s. 172.1(1). First, Parliament criminalized conduct that can occur at a very early stage in the course of conduct engaged in by predators for the purpose of facilitating one of the crimes enumerated in s. 172.1(1). As noted in Morrison, at para. 40, the conduct prohibited by s. 172.1(1) may occur very early in the continuum of an ongoing course of conduct, even before the conduct could constitute an attempt to commit one of the enumerated crimes: see, also, Levigne, at para. 27; Legare, at paras. 25-28. For example, an accused could engage in communications with an underage person designed to gain the trust of that person, intending to eventually exploit that trust by encouraging the underage person to engage in sexual activity prohibited by s. 152. The conduct of the accused would not amount to an offence under s. 152, or even an attempt to commit an offence under s. 152. It could, however, constitute the offence of child internet luring under s. 172.1(1). By defining the conduct component of the offence to include conduct that occurs well before the ultimate criminal object, Parliament allows law enforcement to intercede at an early stage of the grooming process, hopefully before any real damage is done to the target of the conduct.

[98] Second, s. 172.1(1), unlike s. 152 and other offences mentioned in s. 150.1(4), criminalizes conduct not just based on the age of the complainant, but also based on the accused's mistaken belief [page781] about the complainant's age. By extending the offence of child internet luring to accused who wrongly believe they are speaking with persons under 16, Parliament permits the police to engage in pro-active sting operations to identify and remove predators from the Internet before they can make contact with their young prey and do serious harm: Hamish Stewart, "'Fault' and 'Reasonable Steps': The Troubling Implications of Morrison and Barton", (2019), 24 C.C.L.R. 379, at p. 388; Isabel Grant and Janine Benedet, "Unreasonable Steps: Trying to Make Sense of R. v. Morrison", (2019), 67 Crim. L. Q. 14, at s. 1.

[99] In cases in which the accused is speaking with someone who is not under 16, the justification for the criminalization of the actions lies almost entirely in the accused's mistaken belief he is speaking with someone under 16. The actual conduct, speaking with an adult for the purpose of facilitating sexual activity, would not attract criminal sanction. Nor does the criminalized conduct pose any risk the accused could actually facilitate the commission of the crime he seeks to promote through the communication. The accused's belief he is speaking to a person under 16 is what makes the conduct sufficiently harmful and blameworthy to warrant criminalization: see Alicandro, paras. 30-31; Legare, at paras. 32-34.

[100] Criminal law principles favour fault requirements based on the accused's state of mind: see R. v. A.D.H., [2013] 2 S.C.R. 269, [2013] S.C.J. No. 28, 2013 SCC 28. Those same principles favour restraint in setting the reach of the criminal law sanction. Parliament will not be assumed to have imposed a criminal liability for conduct which poses no meaningful harm or risk of harm. In circumstances in which the state of mind of the accused is the central justification for criminalization, in that the act alone would not be considered harmful, the principles of fault and restraint combine to favour the application of a stringent subjective standard to the determination of the requisite mens rea. Depending on the language of the offence creating provision and the nature of the offence, that standard may require proof of intent, knowledge, belief, or some combination of the three.

[101] The language used in s. 172.1(1) is consistent with the application of the criminal law principles of fault and restraint. If the person communicated with was not under 16, s. 172.1(1)(b) requires the Crown to prove the accused "believed the person to be under 16". On a plain reading, the accused's actual state of mind, that is his "belief the person was under 16", is an essential element of the offence. That element stands in place of the requirement that the Crown prove the person communicated with was actually under 16 in those situations in which the Crown alleges the accused was communicating with a person under 16. Just as the [page782] Crown must prove the complainant's age when the Crown alleges communication with a person under 16, it must prove the accused's belief when it alleges communication with a person the accused believed was under 16: Alicandro, at para. 30.

[102] The now inoperative evidentiary presumption in s. 172.1(3) was also pointed to in Morrison as providing a strong indication that the Crown must prove the accused believed the complainant was under 16 in those situations in which the accused is actually communicating with an adult. That section presumes, absent evidence to the contrary, the existence of a belief the person was under 16 if a representation to that effect was made to the accused. That presumption serves no purpose unless the Crown is required to prove the accused believed the complainant was under 16: see Morrison, at para. 89. There is no such evidentiary presumption in s. 152 or any of the other offences involving sexual activity with underage persons.

[103] It was also crucial when considering the majority's treatment of the mistaken belief in age defence in s. 172.1(4) to bear in mind the court determined, based on the language of s. 172.1(1), the Crown was required to prove the accused believed the complainant was under 16. Recklessness would not suffice. In the context of a mens rea requirement limited to a belief or wilful blindness as to the complainant's age, the distinction between a reasonable belief the person was not underage and a belief the person was underage becomes tenable. An accused who has no defence under s. 172.1(4) may still be acquitted on the basis that, while he may have been reckless or unconcerned about the complainant's age, he did not actually believe she was under 16. Indeed, in Morrison, the trial judge described the accused as "indifferent" to the age of the person he was speaking to. A finding of indifference dooms both the accused's ability to advance a defence under s. 172.1(4) and the Crown's ability to prove the accused believed the person was under 16.

[104] In cases in which the Crown alleges the accused believed he was speaking with an underaged person, the language, structure, and scope of s. 172.1 warrant the interpretation which requires the Crown to prove that belief beyond a reasonable doubt. Not only is that conclusion consistent with the section, it reflects the criminal law principles of fault and restraint, intended to guide the interpretation of the mens rea component of criminal offences.

(2) Sections 152 and 150.1(4)

[105] An examination of s. 152 and its relationship to s. 150.1(4) reveals none of the features driving the interpretation of [page783] s. 172.1(1) in cases in which it is alleged the accused was speaking with someone he believed to be underage. Section 152, unlike s. 172.1(1), does not criminalize conduct well preliminary to the achievement of any ultimate harmful criminal object. Section 152 prohibits conduct of an overtly sexual nature directed at persons under 16. An invitation or incitement to engage in sexual activity, which the person who is the subject of the invitation is incapable of consenting to on account of their age, is inherently harmful conduct.

[106] The criminalization of the conduct described in s. 152, while preliminary to other forms of physical sexual abuse, does not rest exclusively on the accused's state of mind, but rather finds justification in the manifestation of the criminal object through conduct that constitutes an invitation, counselling, or incitement to sexual touching. Nor does the fact that some conduct will be captured by both s. 172.1(1) and s. 152 detract from the distinction I draw here. Many criminal offences overlap. For present purposes, the crucial question is the point at which the conduct becomes criminal. Section 172.1(1) criminalizes conduct that is preliminary to the conduct prohibited by s. 152.

[107] Section 152, distinct from s. 172.1(1), criminalizes only conduct aimed at underaged persons. The accused's mistaken belief his target is under 16 will not justify a conviction on the substantive offence created by s. 152.

[108] Furthermore, again, unlike s. 172.1(1), nothing in the language of s. 152 speaks to any mens rea requirement as it relates to the complainant's age. The only reference to the accused's belief about the complainant's age is found in s. 150.1(4). That provision does not criminalize conduct based on a mistaken belief as to the complainant's age, but to the contrary exculpates based on a mistaken reasonable belief about the complainant's age.

[109] The legislative history also assists in understanding the interaction of s. 152 and s. 150.1(4). Both sections were introduced in the same amendments to the Criminal Code: see An Act to Amend the Criminal Code and the Canada Evidence Act, S.C. 1987, c. 24. Section 152, along with several other sections, criminalized various kinds of sexual activity with persons under the prescribed age. Prior to these amendments, apart from a provision criminalizing sexual intercourse with females under 14 (s. 146), there were very few offences specifically targeting sexual activity with children. Section 146 was repealed in the same legislation that enacted s. 152.

[110] Section 150.1 introduced a mistaken belief in age defence, applicable to the newly created offences involving sexual activity [page784] with underaged persons. Section 150.1(4) can only be understood by bearing in mind the legislative context in which it was enacted. Before s. 150.1(4) came into force, the offence of sexual intercourse with a female under 14 (s. 146) was punishable by life imprisonment. The section specifically made the accused's belief about the female's age irrelevant to culpability: Criminal Code,R.S.C. 1970, c. C-34, s. 146(1).

[111] Section 150.1(4) was introduced to remove the absolute liability imposed in the former legislation. That liability was in all likelihood inconsistent with s. 7 of the Charter: see Re B.C. Motor Vehicle Act, 1985 81 (SCC), [1985] 2 S.C.R. 486, [1985] S.C.J. No. 73 (S.C.C.). Section 150.1(4) replaced absolute liability with liability based on a failure to take reasonable steps to inform one's self about the complainant's age. This same fault component was made applicable to the new offences introduced into the Criminal Code involving sexual activity with children, including s. 152.

[112] Wilson J., in R. v. Hess; R. v. Nguyen, 1990 89 (SCC), [1990] 2 S.C.R. 906, [1990] S.C.J. No. 91 (S.C.C.), at 925 S.C.R., explained the operation of s. 150.1(4):

In 1987, Parliament repealed s. 146(1) and put in place a series of measures that include a provision that allows a person who has been previously charged under s. 146(1) the defence of due diligence. Sections 151 and 152 of the current Code create new substantive offences of sexual interference and invitation to sexual touching. Both of these provisions apply to sexual conduct with a person under the age of fourteen. Section 150.1(4) limits the range of defences available to an accused charged under these sections, removing the defence of consent but allowing a due diligence defence.

[113] Read in its historical context, s. 150.1(4) did not overlay a discrete mistaken belief defence on top of a mens rea requirement with respect to the age of the complainant. Instead, s. 150.1(4) created a mens rea component for offences involving sexual activity with children. It did so by requiring the Crown to prove the absence of a reasonable mistaken belief with respect to the complainant's age. Parliament made the accused's belief about the complainant's age relevant to culpability, but only to the extent of requiring the Crown to prove the absence of due diligence.

[114] Section 172.1(4) has an entirely different history. The section was enacted with s. 172.1(1) and the two must be read together: see Criminal Law Amendment Act, 2001,S.C. 2002, c. 13, s. 8. When the person communicated with is not underage, s. 172.1(1) explicitly requires proof the accused believed the person was underage. It would seem unusual if s. 172.1(4), which purported to create a defence, in fact negated the Crown's obligation to prove an element of the offence expressly set out in the offence creating provision in s. 172.1(1). [page785]

[115] For the reasons set out above, I am satisfied the court's interpretation in Morrison of s. 172.1(1), as it applies to charges when it is alleged the accused believed the complainant was under 16, does not mandate a departure by this court from its earlier case law dealing with the mens rea, as applied to the complainant's age in cases involving prosecutions to which s. 150.1(4) applies. The relevant statutory language, especially when read in its historical context, supports different interpretations of the mens rea as it relates to the complainant's age.

(c) The majority's analysis of George

[116] I come to the appellant's second, and in my view, more persuasive argument. Do the majority's comments about the analysis in George compel the conclusion that, on charges which involve proof the complainant was under a certain age, the Crown must also prove the accused believed the complainant was underage, regardless of what steps, if any, the accused took to determine the complainant's age?

[117] In Morrison, the majority addressed George in the course of responding to part of the analysis favoured by Abella J. in dissent: Morrison, at paras. 86-91. While the majority did not expressly overrule George, it did take issue with the description of the mens rea, as it relates to the complainant's age for offences enumerated in s. 150.1(4): see Morrison, at paras. 88, 91.[^7]

[118] In its reference to George, the majority in Morrison reiterated the difference between the defence of mistaken belief the complainant was over the prescribed age and a belief the complainant was under the prescribed age. The majority accepted that the Crown could negate the defence by proving either the absence of an honest belief the complainant was the required age or the failure to take "all reasonable steps" to ascertain the complainant's age. That approach is consistent with case law from this court: see Duran at para. 51; Saliba, at paras. 26-28.

[119] The majority in Morrison went on, however, at para. 88, to state:

While the Crown had to prove at least one of these propositions to negate the defence of mistaken belief, doing so would not, from a legal perspective, inevitably lead to a conviction. As a legal matter to obtain a conviction for sexual interference or sexual assault of a person under the age of 16, the Crown had to [page786] go further and prove beyond a reasonable doubt that the accused believed the complainant was under 16. As a practical matter, once Ms. George's sole defence was negated, her conviction was a virtual certainty.

(Emphasis added)

(d) Section 150.1(4) offences post-Morrison

[120] As I read the above-quoted passage, it is no longer, strictly speaking, correct to define the required mens rea with respect to the complainant's age by reference, only to the absence of reasonable steps to determine the complainant's age. There is a mens rea requirement that focuses exclusively on the accused's state of mind. The Crown is required to prove the accused believed the complainant was underage. The requisite proof is not provided by the Crown's negation of the defence created by s. 150.1(4).

[121] The majority in Morrison does not go on to identify the required mens rea with respect to the complainant's age for offences like s. 152. The language in para. 88, however, provides valuable insight. The court observes the rejection of the mistaken belief defence "would not, from a legal perspective, inevitably lead to a conviction". The court further observes if Ms. George's mistaken belief defence had been negated, "her conviction was a virtual certainty". These comments tell me that, for practical purposes in the vast majority of cases, there will be little, if any, distance between the rejection of a reasonable belief defence under s. 150.1(4) and a finding of the requisite mens rea. This close association is a reflection of the nature of the mens rea required in respect of the age of the complainant for offences like s. 152. In my view, the mens rea includes recklessness.

[122] Assuming the defence of mistaken belief the complainant was 16 or over has been rejected, three possible states of mind remain:

-- the accused may have believed or been wilfully blind to the fact that the complainant was under 16;

-- the accused may have appreciated the risk the complainant

was under 16 and decided to proceed with the activity; and

-- the accused may never have adverted to the complainant's age and chose to proceed with the activity.

[123] If the accused believed the complainant was under 16, or was wilfully blind to that fact, the requisite mens rea was clearly made out. If the accused believed there was a risk the complainant was under 16 and chose to take that risk, he was reckless as to her true age. Unlike the mens rea required under s. 172.1(1), where depending on the wording of the charge, it may require proof of a [page787] belief the complainant was under 16 (or wilful blindness), nothing in s. 152, or in the nature of the conduct criminalized by s. 152, excludes recklessness as to the complainant's age as a form of mens rea.

[124] Age can be seen as a proxy for the absence of consent when the allegation involves sexual activity with underage persons. Just as recklessness is sufficient to establish mens rea with respect to the absence of consent in sexual assault charges, recklessness will suffice to establish the mens rea with respect to age in offences involving sexual activity with underage persons. Appellate authority supports this position: see R. v. Westman, 1995 1811 (BC CA), [1995] B.C.J. No. 2124, 65 BCAC 285, 28 W.C.B. (2d) 440 (C.A.), at para. 18; Nguyen, at paras. 10-14; R. v. Angel, [2019] B.C.J. No. 2399, 2019 BCCA 449, 382 C.C.C. (3d) 149, at para. 45.

[125] Recklessness is subjective. It entails the appreciation of some level of risk and the decision to take that risk. In the context of sexual activity with young persons, an accused who chooses to proceed with that activity, having adverted to the possibility the complainant was underage, will inevitably be found to have been reckless with respect to the complainant's age, even if the risk the complainant was underage is low. The potential harm associated with proceeding in the face of a risk is significant. There is no social value to offset the taking of any risk. It is therefore appropriate to characterize that risk taking, even if the risk is seen as low, as blameworthy for the purposes of imposing criminal liability.

[126] An accused who never turns his mind to the complainant's age can properly be described as reckless with respect to the complainant's age in most circumstances. Indifference to the age of the person targeted by sexual activity is a choice by an accused to treat the complainant's age as irrelevant to his decision to engage in the sexual activity. In most circumstances, the age of the young person will have obvious relevance, bearing in mind the clear responsibility which the law places upon adults who choose to engage in sexual activity with young persons: see George, at para. 2.

[127] Reckless indifference describes a subjective state of mind. It reflects a choice to treat age as irrelevant and to assume the risk associated with that choice. While this may describe a relatively low level of recklessness, there is nothing in the nature of the conduct engaged in which would warrant any level of risk taking or preclude the imposition of criminal liability based on a reckless indifference to the complainant's age: see Andrew Ashworth, Principles of Criminal Law, 5th ed. (Oxford: Oxford University Press, 2006), at pp. 181-86, 190-91.

[128] The treatment of George by the majority in Morrison makes it clear that the Crown cannot prove the requisite mens rea [page788] for offences set out in s. 150.1(4) by disproving the defence created by that section. To convict, the Crown must prove the accused had the requisite state of mind with respect to the complainant's underage status. For the reasons set out above, I am satisfied it includes recklessness as to the age of the complainant.

[129]The reshaping of the mens rea analysis effected by Morrison makes the job of the trial judge (or the jury) somewhat more complicated. I suggest the trial judge will proceed along the following lines:

Step 1: The trial judge will first determine whether there is an air of reality to the s. 150.1(4) defence, that is, is there a basis in the evidence to support the claim the accused believed the complainant was the required age and took all reasonable steps to determine the complainant's age.

Step 2: If the answer to step 1 is no, the s. 150.1(4) defence is not in play, and any claim the accused believed the complainant was the required age is removed from the evidentiary mix. If the answer at step1 is yes, the trial judge will decide whether the Crown has negated the defence by proving beyond a reasonable doubt, either that the accused did not believe the complainant was the required age, or did not take all reasonable steps to determine her age. If the Crown fails to negate the defence, the accused will be acquitted. If the Crown negates the defence, the judge will go on to step 3.

Step 3: The trial juge will consider, having determined there is no basis for the claim the accused believed the complainant was the required age, whether the Crown has proved the accused believed (or was wilfully blind) the complainant was underage, or was reckless as to her underage status. If the answer is yes, the trial judge will convict. If the answer is no, the trial judge will acquit.

[130] Although, the additional step in the mens rea inquiry adds some complexity, it will, as I think the court in Morrison acknowledges, have little practical effect on verdicts. If the accused fails to take reasonable steps to determine the complainant's age, he cannot advance the claim that he believed the complainant was the required age. The removal of a positive belief that the complainant was the required age, combined with recklessness as a basis for a finding of the required mens rea, will, I think, leave few situations in which a person who engages in sexual activity with an underaged person and does not take reasonable steps to determine the age of that person, will not be found to have been at least reckless as to the true age of the complainant. [page789]

[131] In summary, to convict on a charge under s. 152, the Crown must prove the accused believed (or was wilfully blind) the complainant was under 16, or was reckless as to her age. Recklessness includes a failure to advert to the age of the complainant, save in those cases in which the circumstances did not permit the inference that in proceeding without regard to the complainant's age, the accused decided to treat her age as irrelevant to his conduct. While one can imagine circumstances in which the failure to advert to the age of the complainant should not be characterized as a decision to treat the age of the complainant as irrelevant and take the risk, those circumstances will seldom occur in the real world. For practical purposes, those rare circumstances, in which the failure to turn one's mind to the age of the complainant does not reflect the decision to take a risk about the complainant's age, will be the same rare circumstances in which the reasonable steps inquiry in s. 150.1(4) will be satisfied even though the accused took no active steps to determine the complainant's age.

[132] In the present case, the appellant testified he did turn his mind to the age of H.J. and believed she was 16. The trial judge rejected that evidence because the appellant had taken no reasonable steps to determine H.J.'s age. Post- Morrison, the rejection of the s. 150.1(4) defence advanced by the appellant removed his claim he believed the complainant was 16 from the evidentiary mix.[^8] It remained, however, for the Crown to prove he believed H.J. was under 16.

[133] On the evidence in this case, the rejection of the appellant's s. 150.1(4) defence left only two possibilities as to his state of mind. Either, he believed (or was wilfully blind) H.J. was under 16, or he was reckless, as I have described that term, about her true age. Either state of mind establishes the requisite mens rea under s. 152.

V

Conclusion

[134] For the reasons set out above, I would allow the appeal and order a new trial.

Appeal allowed.

Notes

[^1]: The evidence of H.J. and A.G. consisted of their video statement given to the police and entered into evidence pursuant to s. 715.1 of the Criminal Code and their in-court testimony.

[^2]: For reasons that need not be detailed here, A.G. testified during the defence evidence. Her evidence, however, largely supported the Crown's case, and she was treated as a Crown witness.

[^3]: Morrison has come under academic fire. Commentators suggest that Morrison has significantly changed the law as it relates to child internet luring under s. 172.1(1). They also suggest that if Morrison applies to other offences involving sexual activity with children or adolescents, it has significantly changed the law for the worse: see Isabel Grant and Janine Benedet, "Unreasonable Steps: Trying to Make Sense of R. v. Morrison" (2019), 67 Crim. L. Q. 14; Hamish Stewart, "'Fault' and 'Reasonable Steps': The Troubling Implications of Morrison and Barton" (2019), 24 C.C.L.R. 379.

[^4]: The majority considered only the constitutional challenge based on s. 7 of the Charter and left open the question of whether the section infringed s. 11(d) of the Charter: Morrison, at para. 80.

[^5]: Moldaver J.'s emphasis on the word "believed", in excluding recklessness as a form of mens rea, may indicate recklessness would suffice in cases in which the accused was charged with communicating with a person who was actually under 16.

[^6]: Professors Grant and Benedet in "Unreasonable Steps: Trying to Make Sense of R. v. Morrison", supra, go even further. They contend that the reasonable steps requirement becomes a dead letter after Morrison. They argue that, if the trier of fact accepts or has a doubt that the accused believed the complainant was 16 or older, no matter how unreasonable that belief, the Crown cannot possibly prove that the accused believed the complainant was under 16.

[^7]: In R. v. Gagnon, 2018 SCC 41, [2018] S.C.J. No 41 the court also cautioned against reliance on George in cases in which the accused asserts a mistaken belief in consent.

[^8]: In cases in which there is no air of reality to a s. 150.1(4) defence, as is perhaps most likely to occur when the accused does not testify, the accused will be in exactly the same position as this appellant found himself when the trial judge rejected his s. 150.1(4) defence.

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