R. v. Allen, 2020 ONCA 664
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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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. 15.
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Allen, 2020 ONCA 664
DATE: 20201022
DOCKET: C64892
Juriansz, Tulloch and Jamal JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Garry Phillip Allen
Appellant
Mark C. Halfyard and Breana Vandebeek, for the appellant
Dena Bonnet, for the respondent
Heard: September 4, 2020 by videoconference
On appeal from the convictions entered on June 23, 2017 by Justice Guy P. Di Tomaso of the Superior Court of Justice, with reasons reported at 2017 ONSC 3798.
Jamal J.A.:
[1] The appellant appeals from his convictions of four counts of child luring contrary to s. 172.1(1) of the Criminal Code, R.S.C., 1985, c. C-46, and one count of making sexually explicit images available to a child contrary to s. 171.1(1)(b) following a trial by judge alone. The charges arose from the appellant’s exchanges over the internet with someone who claimed to be a 14-year-old girl named “Jenny”, but who was really an undercover police officer.
[2] After the appellant’s conviction, the Supreme Court of Canada released its decision in R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3, significantly clarifying the legal framework for the offence of child luring.
[3] The appellant advances several grounds of appeal. His principal ground is that his convictions cannot stand in view of Morrison. He claims the trial judge erred — though understandably — by applying the pre-Morrison legal framework to the charges against him and, but for these errors, the Crown had not established beyond a reasonable doubt the appellant knew or believed his interlocutor, “Jenny”, was under 16. The Crown responds that the trial judge’s error in applying the pre-Morrison legal framework was harmless, and in any event, the convictions should be maintained because of the overwhelming evidence.
[4] I agree with the appellant. Based on the Morrisonground alone, I would allow the appeal, set aside the convictions, and order a new trial on all counts.
Background
[5] The charges against the appellant arose from an undercover police sting operation. The appellant, who was then 53 years old, posted an ad on the Casual Encounters section of Craigslist in April 2014 stating, “I would like to fuck a young woman doesn’t matter what nationality but would prefer under a 110 lbs.”
[6] A police officer responded to the ad, posing as a 14-year-old girl named “Jenny” weighing 90 lbs.
[7] Over the next two months, the appellant sent “Jenny” links to pornography websites, asked her whether she had had her period yet, requested nude photographs of her, commented on her “sexy” body, wanted to know whether she had masturbated, stated that he would like to put his tongue all over her body and make her “feel like a woman,” and said that “if we meet on Wednesday and im not to gross for you can I touch your little butt [sic].” The appellant sent a photo of himself to “Jenny” and offered to send her photos of his penis. “Jenny” sent the appellant clothed “selfies” that did not reveal her face, though these were actually photos of a 24-year-old police officer who weighed 120 lbs.
[8] The police identified the appellant’s IP address and used it to locate his home address. They attended at his residence with a search warrant and found him at home. They then questioned him without advising him of his right to counsel immediately, which the Crown conceded breached his rights under s. 10(b) of the Canadian Charter of Rights and Freedoms. After the appellant was cautioned and arrested, he made further statements to the police, some of which were inculpatory.
[9] At trial, the appellant testified that he had joined Craigslist to relate better to his coworkers, who frequented Craigslist’s Casual Encounters section for entertainment. He also testified he thought “Jenny” was a coworker playing a joke on him and that he believed she was really an adult male. The appellant claimed his exchanges with “Jenny” involved role-playing.
[10] The trial judge found the appellant’s evidence was “simply not credible”: at para. 230. He found the appellant’s evidence that he did not believe “Jenny” was younger than 18 was not to be believed and did not raise a reasonable doubt: at para. 235.
[11] Applying the law as it stood before Morrison, the trial judge held the Crown had proved beyond a reasonable doubt that the appellant believed the other party to the chats was under the age of 16: at paras. 236-49. This conclusion is the main target of this appeal.
[12] Lastly, the trial judge held the Crown had established beyond a reasonable doubt that the appellant had the specific subjective intent to facilitate the commission of sexual offences against a child: at paras. 250-57.
[13] The trial judge was therefore persuaded beyond a reasonable doubt that the appellant (1) communicated with a person whom he believed was a 14-year-old girl to facilitate the commission of a sexual offence, which established his guilt for the four counts of child luring contrary to s. 172.1(1); and (2) used his computer to communicate with “Jenny”, a person he believed to be 14 years old, to make available to her sexually explicit material, which established his guilt for making sexually explicit images available to a child contrary to s. 171.1(1)(b): at paras. 258-59.
The Relevant Legislation
Child luring – s. 172.1(1)(a) and (b)
[14] The offence of child luring under s. 172.1(1)(a) and (b) of the Criminal Code provide:
172.1 (1) Every person commits an offence who, by a means of telecommunication, communicates with
(a) a person who is, or who the accused believes is, under the age of 18 years, for the purpose of facilitating the commission of an offence with respect to that person under subsection 153(1), section 155, 163.1, 170, 171 or 279.011 or subsection 279.02(2), 279.03(2), 286.1(2), 286.2(2) or 286.3(2);
(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[.]
[15] Section 172.1(3) creates an evidentiary presumption based on a representation about the age of the person with whom the accused communicated:
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.
[16] Section 172.1(4) limits when the accused may invoke the defence of mistaken belief in age:
172.1 (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.
Making sexually explicit images available to a child – 171.1(1)(b)
[17] The offence of making sexually explicit images available to a child under s. 171.1(1)(b) provides:
171.1 (1) Every person commits an offence who transmits, makes available, distributes or sells sexually explicit material to
(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[.]
[18] Section 171.1(3) provides the same evidentiary presumption based on a representation about the age of the person with whom the accused communicated, and s. 171.1(4) provides the same limit on when the accused may invoke the defence of mistaken belief in age:
171.1 (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 18, 16 or 14 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.
(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 18, 16 or 14 years of age, as the case may be, unless the accused took reasonable steps to ascertain the age of the person.
The Legal Framework for Child Luring Before and After Morrison
[19] In Morrison, per Moldaver J., the Supreme Court clarified the legal framework for the offence of child luring. The essential elements of that framework as it stood before and after Morrison were recently distilled by Watt J.A. in R. v.Drury, 2020 ONCA 502, at paras. 49-60.
[20] Before Morrison, in prosecutions for child luring where the other person was represented to the accused as underage, the case law provided two independent pathways to conviction under s. 172.1(1): the Crown had to establish beyond a reasonable doubt that the accused either (1) believed the other person was under the age of 16, or (2) failed to take reasonable steps to ascertain the other person’s age: Morrison, at paras. 28, 49; Drury, at para. 55.
[21] In Morrison, the Court held that the presumption of belief in age under s. 172.1(3) of the Criminal Code unjustifiably infringes s. 11(d) of the Charter and is therefore of no force or effect: at paras. 11, 73. In the absence of the presumption, failing to take reasonable steps no longer provides an independent pathway to conviction. It merely limits when the accused may invoke as a defence that they believed the other person was of legal age: Morrison, at paras. 80, 82. As noted in Drury, “[t]he 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”: at para. 57.
[22] Thus, after Morrison, in a prosecution under s. 172.1(1) in the context of a police sting where there is no underage person, the Crown must prove beyond a reasonable doubt three essential elements: (i) an intentional communication by means of 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: Morrison, at para. 95; Drury, at para. 59. To establish the second element, the Crown must prove beyond a reasonable doubt that the accused either believed or was wilfully blind to whether the interlocutor was underage: Morrison, at paras. 96-97; Drury, at para. 60. Recklessness as to the interlocutor’s age does not suffice: Morrison, at paras. 100‑1; Drury, at para. 60.
Application to This Case
(a) The child luring convictions
[23] The trial judge did not have the benefit of Morrison at the appellant’s trial. The parties agree, however, that the trial judge’s reasons must be evaluated by asking whether he convicted the appellant of child luring in a manner consistent with the legal framework later enunciated in Morrison.
[24] The appellant claims the trial judge erred by applying the pre-Morrison legal framework. He claims the trial judge erroneously relied on the evidentiary presumption of belief in age under s. 172.1(3), and concluded that because the appellant had failed to rebut that presumption, the Crown had proved the appellant’s guilt beyond a reasonable doubt. The appellant thus asserts that the trial judge relied on the second independent pathway to conviction that Morrison eliminated. He says this case is just like Drury, where Watt J.A. concluded, at paras. 64-65, that the trial judge in that case erred by relying on the presumption of belief in the interlocutor’s age, based on a representation that they were underage, “to establish or even help establish” the accused’s belief that the interlocutor was underage. The appellant highlights para. 65 of Drury in particular:
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. [Emphasis added.]
[25] Here, the Crown accepts the trial judge relied on the evidentiary presumption of age to convict the appellant, but claims the presumption was superfluous to his reasoning because he also concluded, independently of the presumption, that the Crown had proved the appellant knew “Jenny” was underage. The Crown highlights para. 242 of the trial judge’s reasons:
[242] Regarding [the appellant’s knowledge or belief that his interlocutor was underage], I find the Crown has the benefit of the presumption under s. 172.1(3). In addition, I find the Crown has the benefit of the overwhelming evidence at this trial that Mr. Allen thought he was talking to a 14 year-old and the almost complete absence of anything credible to the contrary. [Emphasis added.]
[26] The Crown contends the underlined words “[i]n addition” confirm the evidentiary presumption in the previous sentence was superfluous, because there was an independent basis for the trial judge to convict the appellant: the overwhelming evidence that the appellant thought he was talking to a 14-year-old.
[27] If para. 242 were read in isolation, it would be arguable that the evidentiary presumption — which was invoked by the Crown and applied by the trial judge — was superfluous. But para. 242 cannot be read in isolation. It foreshadows the trial judge’s conclusion at para. 249 that the Crown had established the appellant’s belief that “Jenny” was underage. The trial judge’s reasons for this conclusion are explained in paras. 243-49, which rely on the lack of reasonable steps six times and confirm that the trial judge determined that the Crown proved the appellant’s belief about “Jenny’s” age through the appellant’s failure to rebut the evidentiary presumption by taking reasonable steps — the second pathway to conviction that Morrison foreclosed:
[243] Mr. Allen expressed doubts about the age of his sex chatting partner. However, there was never any follow up by Mr. Allen. …
[244] I find the most telling evidence that Mr. Allen believed “Jenny” was 14 was that he kept chatting. He was quite content to accept and be reassured that she was 14 without further enquiry.
[245] Although Mr. Allen expressed doubt about “Jenny’s” age, such doubt does not amount to disbelief or taking reasonable steps. …
[246] I find the existence of the photograph and Mr. Allen request for it do not constitute reasonable steps in all the circumstances. …
[247] … Mr. Allen was quite content to rely on “Jenny's” assurances that she was 14. Mr. Allen testified that the photographs could well be of a 14 year-old. … I find it is not enough to have asked for the photo in circumstances where he admits that the photo could have been of a 14 year old.
[249] For these reasons, I find the second element [i.e., the appellant’s knowledge or belief that his interlocutor was underage] has been satisfied and that the Crown has proven beyond a reasonable doubt that Mr. Allen believed the other party to the chats was under the age of 16. In this case, the age was 14. [Emphasis added]
[28] In my view, these passages show that the trial judge relied on the evidentiary presumption in s. 172.1(3), and the absence of reasonable steps under s. 172.1(4), to help establish the appellant believed “Jenny” was underage. He thus erroneously applied the pre-Morrison legal framework to the child luring charges.
[29] This case is unlike the two cases the Crown cites in support of its claim that the trial judge’s reliance on the presumption in s. 172.1(3) was superfluous.
[30] In R. v. Cowell, Trotter J.A. noted that the trial judge in that case expressly held that “the Crown did not need to rely on s. 172.1(3)” because he found the accused believed the interlocutor was underage “without reference to the presumption”: 2019 ONCA 972, at para. 20, leave to appeal refused, [2020] S.C.C.A. No. 54. Here, by contrast, the trial judge expressly relied on the presumption.
[31] Similarly, in R. v. Ghotra, the trial judge first found beyond a reasonable doubt that the accused believed he was communicating with an underage person, without relying on s. 172.1(3) and (4), and then applied the presumption of belief in represented age to reach the same conclusion: [2016] O.J. No. 7161 (Ont. S.C.), at paras. 150-57, aff’d 2020 ONCA 373, leave to appeal requested, [2020] S.C.C.A. No. 187. Here, by contrast, the trial judge’s reasons relied on the statutory presumption to find that the appellant believed his interlocutor was underage.
[32] I therefore conclude that the appellant has established that his conviction for child luring under s. 172.1(3) is tainted by legal error.
(b) The curative proviso
[33] The Crown asks the court to apply the curative proviso, s. 686(1)(b)(iii) of the Criminal Code, to sustain the conviction despite the legal error. The Crown says the error was harmless, and in any event the evidence of the appellant’s guilt was overwhelming.
[34] The appellant responds that Watt J.A. refused to apply the proviso in Drury. He ruled the trial judge’s error in applying the pre-Morrison legal framework to the conviction of child luring in that case was not harmless because “[i]t relates to the principal issue in controversy at trial” — proof of the accused’s belief in the age of the interlocutor — and in any event the evidence of guilt in that case was not overwhelming: at para. 67.
[35] I agree with the appellant. In my view, it cannot be said that the error in applying an unconstitutional evidentiary presumption to establish guilt was “so harmless or minor that it could not have had any impact on the verdict”: R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at para. 34. As in Drury, the appellant’s belief of his interlocutor’s age was the principal issue in controversy.
[36] Nor can it be said that the evidence of the appellant’s guilt was “so overwhelming that any other verdict would have been impossible to obtain”: Van, at para. 34. This high standard is met only “if the case against the accused was so overwhelming that a reasonable and properly instructed jury would inevitably have convicted”, and “any possible measure of doubt concerning the strength of the Crown’s case [must be afforded] to the benefit of the accused person”: Van, at para. 36.
[37] In this case, the appellant testified and the case turned on his credibility. He explained why he believed that “Jenny” was an adult, including his belief that the selfie “Jenny” sent him was of an adult — which turned out to be correct. A reasonable and properly instructed jury may have believed the appellant’s evidence that he believed he was engaged in role-play with an adult. In all the circumstances, a verdict other than guilt was not impossible. I therefore conclude that this is not an overwhelming case that justifies applying the proviso.
(c) The conviction for making sexually explicit images available to a child
[38] The trial judge’s reasons for conviction on the count of making sexually explicit images available to a child relied on the presumption of belief in age in s. 171.1(3) — which was not addressed in Morrison — and simply adopted the “evidence and findings” in relation to the child luring counts: at para. 259. Because the findings on the child luring counts were tainted with legal error, and given the close factual connection between these counts, in my view fairness requires a new trial on all counts in the indictment.
Disposition
[39] I would allow the appeal, set aside the convictions, and order a new trial.
Released: October 22, 2020 (“R.G.J.”)
“M. Jamal J.A.”
“I agree. R.G. Juriansz J.A.”
“I agree. M. Tulloch J.A.”