R. v. Drury, 2020 ONCA 502

WARNING

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

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

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Drury, 2020 ONCA 502

DATE: 20200811

DOCKET: C64344

Watt, Trotter and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jeffrey Drury

Appellant

Richard N. Stern, for the appellant

Andreea Baiasu, for the respondent

Heard: June 10, 2020 by videoconference

On appeal from the conviction entered on April 24, 2017 by Justice Douglas K. Gray of the Superior Court of Justice, with reasons reported at 2017 ONSC 2330.

Watt J.A.:

[1] Jeffrey Drury (“the appellant”) exchanged hundreds of messages with “Tiffany”. Jeffrey Drury was 52 years old. Tiffany said she was 15. The appellant’s messages were overtly sexual or had sexual overtones.

[2] The appellant agreed to meet Tiffany for what he hoped would be a sexual encounter. Or maybe not.

[3] The appellant arrived at the time and place of the meeting. But Tiffany was not there. Instead, the appellant was met and arrested by several police officers.

[4] After a judge-alone trial in the Superior Court of Justice, the appellant was found guilty of child luring under s. 172.1(1)(b) and two counts of transmitting sexually explicit material to a person believed to be under 16, contrary to s. 171.1(1)(b). The trial judge entered a conviction on the child luring count and conditional stays on the transmitting sexually explicit material counts.

[5] The appellant appeals his conviction.

[6] These reasons explain why I would allow the appeal, quash the conviction and order a new trial. I would also set aside the conditional stays on the counts of transmitting sexually explicit material so that the new trial will take place on the indictment as a whole.

The Background Facts

[7] The grounds of appeal advanced do not require a detailed examination of the nearly 1000 electronic communications between the appellant and his interlocutor, Tiffany. An overview of those communications and a brief sketch of the positions advanced by trial counsel (neither of whom are counsel on appeal) are sufficient to provide the background necessary to understand the nature of the errors alleged and my determination of their merits.

The Advertisement

[8] The appellant spent a significant amount of time on the Internet. He frequented various sites, including some with sexual subject-matter. From time to time, he advertised his interest in participating in sexual activities with his collocutors.

[9] The appellant posted one such advertisement on Craigslist, in the “casual encounters” section. The advertisement consisted of a header, a photograph of a male grasping an erect penis and text soliciting a sexual encounter with a female. The advertisement made no reference to the age of any putative respondent.

The Response

[10] The appellant’s advertisement soon caught the attention of a member of the Ontario Provincial Police (OPP) who was monitoring the site. The officer – a member of the OPP’s Child Exploitation Unit – decided to respond by Craigslist chat, posing as a 15-year-old girl named Tiffany.

[11] Within minutes, the appellant responded to Tiffany. He asked Tiffany to send him a picture. He indicated age did not matter and inquired about a meeting that same evening. No meeting occurred.

The Communications

[12] After the first two weeks when they communicated over Craigslist chat, Tiffany and the appellant switched to email. Over a period of about two months, they exchanged 117 Facebook messages and 878 emails. Three emails sent by the appellant included sexually explicit photographs.

[13] From time to time during his exchanges with Tiffany, the appellant pointed out that 15 was, as he put it, “illegal”. In response to repeated requests for a photograph, Tiffany sent a picture of a fully-clothed female police officer, posing as a teenager taking a selfie. The appellant researched the name Tiffany had provided. He found that a person by that name was a 24-year-old woman from the same city in which Tiffany claimed to live.

[14] In some communications, the appellant speculated that Tiffany might be a man, a much older person or even a police officer. Tiffany downplayed the suggestions in her responses, treating them in a joking manner.

[15] As noted, the appellant sent Tiffany numerous photographs during this exchange. From one of the photos, police were able to discern the licence plate number on a motorcycle. A vehicle registration check confirmed the appellant’s name and residential address.

The Meeting Arrangements

[16] The appellant arranged to meet Tiffany at a gas station in the city in which she claimed to live. The appellant drove to the meeting place from his home some considerable distance away.

[17] At the meeting place, there was no Tiffany, as there never had been. Only police officers who arrested the appellant.

The Appellant’s Version

[18] The appellant testified as the only defence witness at trial.

[19] The appellant, then a 55-year-old man who had been separated from his wife for over a decade, explained that he was unsure that Tiffany was 15 years old as she claimed. Just because Tiffany said so did not make it true since, in his experience, people lied about their age online. He tried to find out Tiffany’s true identity and age by asking questions and examining her emails for age-appropriate responses. He thought she could have been a police officer or an older person posing as a 15-year-old girl.

[20] The appellant was also suspicious of Tiffany’s reported age because the person in the photograph she sent appeared older than 15. And Tiffany seemed to know a lot about Jeeps and automotive repairs, albeit she claimed to have learned these things from her father who had these interests.

[21] In his testimony at trial, the appellant denied any interest or intention to have sexual intercourse with a 15-year-old girl at any time. As for the arranged meeting, the appellant just wanted to have a “fun day” with Tiffany, to “hang out” and “go Jeeping”.

[22] In cross-examination the appellant conceded that he was aware of the possibility that Tiffany was in fact 15 years old. However, he considered this unlikely, since the person in the photograph Tiffany sent was clearly older.

[23] The appellant also maintained a contemporary journal of his activities and thoughts – “Story 11” – that was filed as an exhibit at trial. Despite the similarity in some of its contents with those of his emails with Tiffany, the appellant characterized Story 11 as fantasy, only loosely based on real people and events.

The Positions of the Parties at Trial

[24] Trial counsel for the Crown contended that the evidence proved the appellant’s guilt on all three counts beyond a reasonable doubt. The Crown relied on the presumptions in ss. 171.1(3) and 172.1(3) to establish the appellant’s belief in the underage status of Tiffany from her representation of it, absent evidence to the contrary.

[25] And there was no evidence to the contrary, the Crown argued, because the appellant’s testimony was unworthy of belief. In addition, the appellant could not invoke any defence of mistaken belief in age because he had failed to take the reasonable steps required by ss. 171.1(4) and 172.1(4).

[26] At trial, the appellant acknowledged authorship of the electronic communications attributed to him, including the sexually explicit photographs. However, trial counsel contended, the evidence failed to establish beyond a reasonable doubt that the appellant believed that Tiffany was 15 years old. In particular, counsel pointed to the appellant’s emails and his Facebook inquiry about the person whose name Tiffany had adopted. What is more, the appellant took reasonable steps to ascertain Tiffany’s true age.

[27] In addition, trial counsel contended that the Crown had failed to prove beyond a reasonable doubt that the appellant’s purpose in his electronic communications and transmission of sexually explicit material was to facilitate the commission of the secondary offence of sexual interference.

The Grounds of Appeal

[28] The appellant advances a single ground of appeal which he says requires that both the conviction and the conditional stays be set aside and acquittals entered.

[29] The appellant argues that the trial judge erred in finding beyond a reasonable doubt the appellant believed Tiffany was 15 by applying the presumption of belief in ss. 171.1(3) and 172.1(3) and the failure to take reasonable steps disqualifier under ss. 171.1(4) and 172.1(4).

[30] The principal argument challenges the conviction of child luring, so I address that argument first.

The Conviction of Child Luring

[31] A brief reference to the reasons of the trial judge is sufficient to furnish the background necessary to appreciate the claims of error alleged.

The Reasons of the Trial Judge

[32] The trial judge delivered written reasons for his decision.

[33] After recounting the relevant background, summarizing the parties’ positions and setting out the relevant offence-creating provisions, the trial judge began his analysis by referring to “two presumptions” that assisted the Crown in proving both offences charged:

In both cases, the Crown is assisted by two presumptions:

a) where it was represented to the accused that the person with whom he or she communicated was under the age of 16 years, then, in the absence of evidence to the contrary, that is proof that the accused believed that the person was under that age;

b) it is not a defence that the accused believed that the person was at least 16 years of age, unless he or she took reasonable steps to ascertain the age of the person.

[34] After referring to the decisions of the Supreme Court of Canada in R. v. Legare, 2009 SCC 56, [2009] 3 S.C.R. 551, and R. v. Levigne, 2010 SCC 25, [2010] 2 S.C.R. 3, the trial judge turned to ss. 171.1(4) and 172.1(4) of the Criminal Code, R.S.C. 1985, c. C-46. Each of these sections limits the defence of honest but mistaken belief in the age of the interlocutor to cases in which an accused has taken reasonable steps to ascertain the interlocutor’s age. He then rejected the appellant’s claim that he had taken “reasonable steps”:

Mr. Drury testified that the following circumstances convinced him that in all likelihood the person with whom he was communicating was over age 16:

a) He received no clear responses to his suggestions that the person was an adult or a police officer;

b) The person with whom he was communicating seemed to know a lot about automobiles and Jeeps;

c) The person’s Facebook page had very little detail about the person;

d) The picture sent by the person appeared to be of someone older than 16;

e) Mr. Drury Googled the person and discovered a person named Tiffany Creechan aged 24 (Officer Rees denied he was this person).

In my view, this does not constitute the taking of reasonable steps in the circumstances of this case. At the very least, Mr. Drury was still in doubt as to whether the person was really 15 years of age. None of the steps he took gave him any real information as to the person’s age. What he did was simply not reasonable.

As I noted earlier, the communications between Mr. Drury and Officer Rees disclose some inconsistency as to the purpose of the communications, and Mr. Drury’s ultimate purpose. His recordings as reflected in Story 11 also show some equivocation. However, at the end of the day, based on my assessment of all of the communications and reflections and Mr. Drury’s evidence, I am convinced beyond a reasonable doubt that Mr. Drury engaged in the communications and sent sexually explicit material, in order to facilitate a sexual encounter with a person whom he believed was a 15-year-old girl.

[35] The trial judge also rejected defence counsel’s argument that the contemporaneous journal – Story 11 – was reflective of the appellant’s fantasies, rather than his thoughts, intentions and purposes. The trial judge concluded that, viewed as a whole, Story 11 demonstrated the appellant’s underlying hope and intention to have sex with Tiffany.

[36] In the penultimate paragraph of his reasons, the trial judge explained his conclusion in these terms:

Based on all the evidence, I am satisfied beyond a reasonable doubt that Mr. Drury did not take reasonable steps to ascertain the true age of the person with whom he was communicating. Accordingly, he cannot rely on the defence that he believed the person with whom he was communicating was over 16 years of age. He was advised that that person was aged 15. For the purpose of the relevant provisions of the Code, that constitutes proof that Mr. Drury believed that the person was under age 16, in the absence of evidence to the contrary. There is no evidence to the contrary as contemplated in the relevant statutory provisions. Indeed, it is clear from Story 11 that Mr. Drury either believed the person was under age 16, or at best was not sure. If he was not sure, it was because he had not taken reasonable steps to ascertain the interlocutor’s true age.

The Arguments on Appeal

[37] The appellant challenges the trial judge’s finding that the Crown had proven beyond a reasonable doubt that he believed that his interlocutor – Tiffany – was under 16 years old. In reaching that conclusion, the appellant says the trial judge erred:

i. in relying on the presumption (since declared unconstitutional) in s. 172.1(3) of the Code; and

ii. in grounding his conclusion on the appellant’s failure to take reasonable steps, thus depriving him of the mistaken belief defence in s. 172.1(4).

[38] The appellant acknowledged at trial that he was the author of the telecommunications sent to Tiffany. On appeal, he does not challenge the trial judge’s finding that the purpose of these telecommunications was to facilitate commission of the secondary offence of sexual interference, contrary to s. 151 of the Code.

[39] At trial, the appellant continues, the Crown advanced two discrete but related bases to establish the appellant’s belief that Tiffany was under 16. First, the Crown relied on evidence that Tiffany represented herself to the appellant as 15 years of age as proof that the appellant believed her to be that age. At the time of trial, this method of proof was available to the Crown under s. 172.1(3), absent evidence to the contrary. And there was no evidence to the contrary because the appellant failed to take reasonable steps to ascertain Tiffany’s real age, as contemplated in s. 172.1(4).

[40] However, that was then and this is now. Things have changed with respect to how the Crown may prove this aspect of the fault element in s. 172.1(1)(b). The presumption of belief based on evidence of a representation of age is no longer available. And the alternative path, based on an absence of reasonable steps, is equally unavailable. The role of s. 172.1(4) is to limit the defence of mistaken belief in age, not to establish (in combination with the presumption) the essential element at issue here: the appellant’s belief that Tiffany was under 16.

[41] In this case, the appellant says, the Crown had to prove beyond a reasonable doubt either that the appellant believed or that he was wilfully blind to the fact that his interlocutor – Tiffany – was under 16 years of age. Near recklessness as to her age was not sufficient. It was incumbent on the Crown to establish this essential element without the assistance of either s. 172.1(3) or s. 172.1(4). A fair reading of the trial judge’s reasons reveals that, but for the combined operation of those two provisions, he had a reasonable doubt that the appellant believed Tiffany was underage.

[42] The respondent contends that a fair reading of the reasons for conviction, together with the reasons for sentence, demonstrates that the trial judge was satisfied beyond a reasonable doubt that the appellant believed Tiffany was under 16.

[43] The respondent accepts that at the time the trial judge rendered his decision, the Crown was permitted to rely on the combined operation of ss. 172.1(3) and (4) to establish the appellant’s belief that Tiffany was underage. In this case, however, the trial judge rejected the appellant’s evidence not because he failed to take reasonable steps to ascertain Tiffany’s age, but because the appellant was not credible and his evidence not reliable when stacked up against his communications with Tiffany and his recorded recollections in Story 11.

[44] The trial judge acknowledged that certain evidence suggested the appellant was suspicious that Tiffany was older than she claimed to be. But he rejected this evidence as not raising a reasonable doubt that the appellant believed Tiffany was underage. This finding was not made by recourse to the presumption or the reasonable steps requirement. The appellant’s defence was not that he honestly believed Tiffany was overage, but rather that he did not believe she was underage. This was the trial judge’s core finding. Anything said about the failure to take reasonable steps as a separate pathway to a finding of guilt was superfluous and does not undermine the judge’s central conclusion.

The Governing Principles

[45] The principles that govern our decision on this ground of appeal are those that explain the role of ss. 172.1(3) and (4) in proof of an offence under s. 172.1(1)(b) of the Code. Unfortunately, the most recent and authoritative exposition of these principles – R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3 – had not been released when the trial judge decided this case.

The Statutory Provisions

[46] The appellant was charged with child luring under s. 172.1(1)(b) of the Criminal Code. That section provides:

172.1 (1) Every person commits an offence who, by a means of telecommunication, communicates with

(b) a person who is, or who the accused believes is, under the age of 16 years, for the purpose of facilitating the commission of an offence under section 151 or 152, subsection 160(3) or 173(2) or section 271, 272, 273 or 280 with respect to that person.

[47] In addition to the offence-creating provisions in s. 172.1(1), the section contains an evidentiary presumption grounded on a representation about the age of the recipient. Section 172.1(3) provides:

(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.

[48] Section 172.1(4) limits the availability of the defence of mistaken belief in age. The subsection provides:

(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.

The Authorities

[49] The offences in s. 172.1(1), including s. 172.1(1)(b), are incipient or inchoate crimes that capture otherwise legal conduct meant to culminate in the commission of a crime – the secondary offence alleged in the count charged. The criminalized conduct precedes not only the commission of the secondary offence, but even an attempt to commit that offence: Legare, at para. 25; Levigne, at para. 27.

[50] The essential elements of the preparatory offence of s. 172.1(1)(b) may be briefly characterized as:

i. communication;

ii. recipient; and

iii. purpose.

The means of communication must be by telecommunication. The recipient must be a person who is (or the accused believes is) under 16. And the purpose of the communication must be to facilitate the commission of a listed offence (the secondary offence) with the recipient: Legare, at para. 36; Levigne, at para. 23.

[51] The issue in this case concerns the recipient. In this case, the recipient – Tiffany – was a fiction, thus not actually a person under 16. Accordingly, the Crown was required to prove beyond a reasonable doubt that the appellant believed Tiffany was under 16: Morrison, at paras. 95-96. It was not enough for the Crown to prove that the appellant hoped or even suspected that Tiffany was underage.

[52] The term “belief” refers to the mental acceptance of a statement, fact, doctrine or thing as true or existing. The term “hope” denotes the expectation of something desired, a feeling of expectation and desire combined: Oxford Dictionary of English, 3rd ed. (Oxford University Press, 2010).

[53] To assist in proving that the appellant believed Tiffany was under 16, Crown counsel invoked the presumption of belief in s. 172.1(3). Under that provision, the mere representation by Tiffany that she was 15 was sufficient to prove that the appellant believed she was 15, absent evidence to the contrary: Levigne, at para. 30.

[54] An accused may provide evidence to the contrary – i.e., that he believed his collocutor or interlocutor was at least 16 – only if he took reasonable steps to ascertain her age: Criminal Code, s. 172.1(4); Levigne, at para. 31.

[55] At the time of trial, the governing authorities permitted the Crown to establish the appellant’s belief in Tiffany’s underage status by proving beyond a reasonable doubt either that the appellant believed Tiffany was under 16 or that he failed to take reasonable steps to ascertain Tiffany’s true age: Morrison, at para. 28.

[56] But these two independent pathways to establish this essential element of the offence are now closed to traffic.

[57] In Morrison, the Supreme Court declared the presumption of belief in s. 172.1(3) to be of no force or effect because it breached s. 11(d) of the Canadian Charter of Rights and Freedoms and was not saved by s. 1: Morrison, at paras. 11, 73. In the result, a mere representation that the recipient of a telecommunication was under 16 cannot establish an accused’s belief that the recipient was under 16, even in the absence of evidence to the contrary. The accused’s belief must be affirmatively established without the assistance of the presumption – that is, by evidence adduced at trial establishing the requisite belief beyond a reasonable doubt.

[58] The Morrison court also concluded that s. 172.1(4) did not, in the absence of the presumption under s. 172.1(3), provide an independent pathway to conviction: Morrison, at paras. 80, 82. Rather, what s. 172.1(4) does is to limit a defence of honest but mistaken belief in the age of the interlocutor. If the Crown proves beyond a reasonable doubt that an accused did not take reasonable steps to ascertain the interlocutor’s age, this precludes the trier of fact from considering the defence that the accused honestly believed the interlocutor was of legal age: Morrison, at para. 83. But it remains for the Crown to prove beyond a reasonable doubt, without the assistance of the presumption in s. 172.1(3), that the accused believed the interlocutor was underage: Morrison, at para. 83.

[59] Where a prosecution under s. 172.1(1)(b) originates in a police sting and no underage person exists, the Crown must prove beyond a reasonable doubt three essential elements:

i. an intentional telecommunication;

ii. with a person whom the accused believes is under the requisite age; and

iii. for the purpose of facilitating the commission of a designated offence with respect to that person.

See Morrison, at para. 95.

[60] The second element requires the Crown to prove beyond a reasonable doubt that the accused believed the interlocutor was underage. Since the presumption of belief in s. 172.1(3) is no longer of any force or effect, the Crown cannot establish this element simply by proving that the interlocutor represented her age and that the accused failed to take reasonable steps to ascertain the interlocutor’s true age. What the Crown must prove beyond a reasonable doubt is that the accused either:

i. believed; or

ii. was wilfully blind whether

the interlocutor was underage: Morrison, at paras. 96-97. Recklessness as to the interlocutor’s age is not sufficient: Morrison, at paras. 100-101.

The Principles Applied

[61] As I will explain, I would give effect to this ground of appeal, set aside the conviction of child luring under s. 172.1(1)(b) and order a new trial.

[62] The principal contested ground at trial related to what I have characterized as the “recipient” element in s. 172.1(1)(b). To prove this element when there was no underage person, the Crown was required to establish beyond a reasonable doubt that the appellant actually believed or was wilfully blind whether Tiffany was under 16. Proof that the appellant was reckless – i.e., that he was aware there was a danger that Tiffany was underage, but proceeded notwithstanding – was not good enough.

[63] To prove the appellant’s belief, the Crown, in accordance with the applicable law as it stood at the time of trial, relied on the fact that Tiffany had represented herself as 15. This representation, absent evidence to the contrary, triggered the presumption in s. 172.1(3) and established the appellant’s belief that Tiffany was underage. There was no evidence to the contrary because the appellant’s testimony revealed that he had taken no reasonable steps to ascertain Tiffany’s real age. The presumption of belief was not rebutted because of the failure to take reasonable steps and that failure afforded a second pathway to establish guilt.

[64] The critical passage appears at para. 83 of the trial judge’s reasons, which I repeat here for the sake of convenience:

Based on all the evidence, I am satisfied beyond a reasonable doubt that Mr. Drury did not take reasonable steps to ascertain the true age of the person with whom he was communicating. Accordingly, he cannot rely on the defence that he believed the person with whom he was communicating was over 16 years of age. He was advised that that person was aged 15. For the purpose of the relevant provisions of the Code, that constitutes proof that Mr. Drury believed that the person was under age 16, in the absence of evidence to the contrary. There is no evidence to the contrary as contemplated in the relevant statutory provisions. Indeed, it is clear from Story 11 that Mr. Drury either believed the person was under age 16, or at best was not sure. If he was not sure, it was because he had not taken reasonable steps to ascertain the interlocutor’s true age.

[65] Proof that the appellant believed or was wilfully blind to the fact that Tiffany was under 16 was an essential element of the offence charged. The Crown was not entitled to invoke the presumption of belief from the underage representation to establish or even help establish this essential element. Nor was it entitled to rely upon the absence of reasonable steps to negate any evidence to the contrary or to afford a discrete pathway to conviction. The trial judge, quite understandably, adopted this approach in light of the existing jurisprudence. After Morrison, however, a finding of guilt recorded on these bases can no longer stand.

[66] The respondent, invoking s. 686(1)(b)(iii) of the Code, asks this court to sustain the conviction despite the errors I have identified.

[67] In my respectful view, the provision is not up to the task the respondent has assigned to it. The error in this case is not harmless. It relates to the principal issue in controversy at trial. Nor is this a case in which the evidence of guilt is overwhelming.

The Conditional Stays

[68] At the conclusion of trial, the trial judge entered conditional stays of proceedings on the counts alleging offences under s. 171.1(1)(b). Trial counsel were in agreement that this result followed from the principles established in Kienapple v. R., 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.

[69] In this court, the appellant asks us to set aside the conditional stays and enter verdicts of acquittal on these counts. He says that result should follow because, like the presumption in s. 172.1(3) declared of no force or effect in Morrison, the presumption in s. 171.1(3), which is in the same terms, is also of no force or effect. He invokes the same argument he made in connection with the conviction of child luring and seeks the same result.

[70] At trial, the appellant did not challenge the constitutionality of s. 171.1(3). In this court, however, he gave the notice required for a constitutional challenge and asks that we declare s. 171.1(3) of no force or effect.

[71] The respondent resists both claims on a principled basis.

[72] To settle this controversy, it is sufficient to briefly canvass the positions of the parties and the principles that govern the issues raised.

The Arguments on Appeal

[73] On the critical issue of whether he believed Tiffany was underage, the appellant says the trial judge’s findings of guilt are flawed by the same process of reasoning that vitiated the conviction of child luring. The presumption of belief in s. 171.1(3) is just as constitutionally deficient as its sibling in s. 172.1(3) and should be declared of no force or effect. And the pathway to a finding of guilt based on the failure to take reasonable steps, which Morrison deemed impassable, is equally inaccessible in prosecutions under s. 171.1. As a result, the appellant asks that he be acquitted on both counts under s. 171.1(1)(b).

[74] The respondent contends that what the appellant seeks is not available to him. In one instance, as a matter of law. In the other, as an exercise of discretion.

[75] Rights of appeal, the respondent says, are entirely statutory. In proceedings on indictment, an accused has a right of appeal against conviction under s. 675(1) of the Criminal Code. But an accused has no right of appeal from a conditional stay of proceedings. Thus, his only right of appeal to this court is against the conviction of child luring. Finis litium.

[76] In addition, the respondent continues, the determination of the appeal from the appellant’s conviction of child luring is dispositive of the conditionally stayed charges. A favourable result means that the conditional stay is lifted and a new trial ordered on the indictment as a whole. An unfavourable result renders the stay permanent, the equivalent of an acquittal.

[77] The respondent concedes that appellate courts retain discretion to permit arguments to be advanced for the first time on appeal. But there is no reason to exercise that discretion in the appellant’s favour here. A pronouncement on the constitutionality of s. 171.1(3) is not necessary to decide this case. The record in this court is immature and better developed in the trial court where s. 1 evidence may be tendered if considered advisable.

The Governing Principles

[78] It is beyond controversy that rights of appeal are entirely creatures of statute: see e.g. R. v. Thomas, 1998 CanLII 774 (SCC), [1998] 3 S.C.R. 535, at p. 549; R. v. Herritt, 2019 NSCA 92, 384 C.C.C. (3d) 25, at paras. 56, 57. This means there is no right of appeal unless one is granted in an enabling statute: see e.g. Alberta (Attorney General) v. Malin, 2016 ABCA 396, 344 C.C.C. (3d) 420, at para. 25.

[79] Section 674 of the Criminal Code makes it clear that for indictable offences, only appeals authorized by Part XXI and, to a much lesser extent, Part XXVI, may be taken: Malin, at para. 26.

[80] A person convicted by a trial court in proceedings by indictment may appeal against that conviction under s. 675(1)(a) of the Criminal Code. But neither s. 675 nor any other provision in Part XXI or Part XXVI affords an accused a right of appeal against a stay of proceedings whether entered conditionally under the principles of Kienapple or otherwise.

[81] A stay entered in accordance with the principles in Kienapple is conditional on the final disposition of the charge on which the accused has been convicted: R. v. Provo, 1989 CanLII 71 (SCC), [1989] 2 S.C.R. 3, at p. 16. Where the conviction has not been appealed, or, if appealed, the appeal has been eventually dismissed, then the conditional stay becomes permanent and the functional equivalent of a judgment or a verdict of acquittal for appeal or special plea purposes. On the other hand, if the accused’s appeal against conviction has been allowed, the conditional stay is dissolved and an appellate court may remit the matter to the trial court for future disposition: Provo, at p. 16.

[82] A final point concerns the constitutional issue raised for the first time in this court.

[83] As a general rule, appellate courts will not permit an issue to be raised for the first time on appeal. The principle is grounded on concerns for:

i. prejudice to the opposing party who lacks the opportunity to respond and adduce evidence at trial;

ii. absence of a sufficient record from which to make findings of fact essential to a proper determination of the issue;

iii. societal interest in finality and the expectation that criminal cases will be disposed of fairly and fully at first instance; and

iv. the important responsibility of defence counsel to make decisions that represent an accused’s best interests and to advance all appropriate arguments during the trial.

See R. v. M.C., 2019 ONCA 502, 376 C.C.C. (3d) 81, at para. 61.

[84] A related principle is also important. It has been held repeatedly that courts should not decide issues of law, especially constitutional issues, that are not necessary to the resolution of the case before the court: Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), 1995 CanLII 86 (SCC), [1995] 2 S.C.R. 97, at paras. 5-11.

The Principles Applied

[85] As I will explain, I would not give effect to the appellant’s submissions in connection with the conditional stay entered on the counts of transmitting sexually explicit materials.

[86] First, contrary to the appellant’s apparent position, he has no statutory right of appeal against a conditional stay of proceedings. Neither Part XXI nor Part XXVI of the Criminal Code provides any such right. Without such a statutory provision, s. 674 makes it clear that no appeal is available.

[87] Second, the disposition of the conditionally stayed charges is governed by the disposition of the appeal against conviction of the child luring offence. Since I would allow that appeal and order a new trial on that count, the conditional stays on the counts of transmitting sexually explicit materials dissolve and those counts are remitted to the trial court for a new trial on the indictment as a whole.

[88] Third, it is not necessary to the resolution of this appeal to decide the constitutional issue with respect to the stayed charges under s. 171.1(1)(b). We lack a sufficient record to make the determination requested and to decide the issue at first instance here would be to deny the respondent the opportunity to adduce evidence under s. 1 if so advised.

Disposition

[89] For these reasons, I would allow the appeal, set aside the conviction and conditional stays and order a new trial on all counts in the indictment.

Released: “DW” August 11, 2020

“David Watt J.A.”

“I agree. Gary Trotter J.A.”

“I agree. Harvison Young J.A.”