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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

Date: 20221205 Docket: C70153

MacPherson, Miller and Copeland JJ.A.

BETWEEN

His Majesty the King Respondent

and

Anthony Bowers Appellant

Counsel: James Coulter, for the appellant Nicolas de Montigny, for the respondent

Heard: November 30, 2022

On appeal from the convictions entered on March 24, 2021 by Justice Richard T. Knott of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant appeals from convictions for two counts of communicating by means of telecommunication with 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 of sexual assault, and one count of making child pornography, contrary to ss. 172.1(1) (b) and 163.1(2) of the Criminal Code , R.S.C. 1985, c. C-46. He abandoned his sentence appeal.

[2] At the hearing of the appeal, we did not call on the Crown. Despite the able submissions of Mr. Coulter, we were not persuaded that the trial judge erred. We dismissed the appeal, with reasons to follow. These are our reasons.

Background

[3] The substance of the communications at issue is not in dispute. Between May 30, 2019 and June 10, 2019, the appellant, who was in his early 30s, engaged in private online communication with the complainant, who was 13 years old. The communications took place on the online apps Instagram private messenger and KIK messenger. The complainant and the appellant “met” online in the context of “Daddy Dom Little Girl” (“DDLG”) subject hashtags on the online apps. According to the trial evidence, these types of postings and communications involve one person as the dominant person or “daddy”, and the other as the innocent or “little”, with the latter person being subservient and doing what they are told.

[4] The appellant sent the complainant photos of his penis and videos of himself masturbating. He also sent her links to pornography. He asked the complainant for, and received, photos and videos of her in various stages of nudity and performing sexual acts on herself. The appellant gave the complainant specific direction about the types of sexual photos and videos he wanted her to take of herself and send to him.

[5] The complainant testified that the appellant never asked how old she was, nor did he ever ask about meeting or a date. However, he asked her about a mall near where she lived, and told her that, if they ever were to meet, it would be there.

[6] On June 10, 2019, the complainant’s mother contacted police after finding sexually explicit pictures on the complainant’s cell phone. From June 10 until August 20, 2019, the police pretended to be the complainant in online communications with the appellant. During this time, the sexual communications continued. While the police were communicating with the appellant online, the communications included statements (as the complainant) that she was 13 years old and in grade 8. The communications also included statements (as the complainant) where she repeatedly suggested an in-person meeting. The appellant did not stop the discussions about meeting in person, but he never agreed to meet.

[7] Many of the Instagram communications between the appellant and the complainant (and police posing as the complainant) were tendered as exhibits at trial. These items were obtained from the complainant’s phone and from the appellant’s cell phone and computer, and were tendered in evidence through an officer who was qualified as an expert in digital forensic investigation. This evidence included the photos alleged to constitute child pornography.

[8] The appellant testified in his defence. He admitted that he engaged in the sexual communications at issue. He also admitted that he sent sexual photos and videos of himself to the complainant, and asked for and received sexual photos and videos of the complainant.

[9] The appellant testified that the communications with the complainant were in the context of DDLG. He testified that he believed it was all role-playing and that he was communicating with an adult. He testified that he believed that the complainant’s statements in the communications about being in school, speaking about the boys at school, and PA days at school were role-playing and part of a narrative. In relation to the express statements from the person with whom the appellant was communicating that she was 13 years old and in grade 8 (when the police were posing as the complainant), he testified that he believed that this was also part of the role-playing.

[10] The trial judge did not believe the appellant’s evidence that he thought he was communicating with an adult woman. Nor was the trial judge left in a reasonable doubt by the appellant’s evidence regarding his knowledge about the complainant’s age. The trial judge found the appellant’s evidence to be “contrived and implausible”, and that his testimony could not be “reconciled with what he did and said at the time of the offence.” Considering all of the evidence, the trial judge was satisfied beyond a reasonable doubt that the appellant knew that the complainant was under 16 years of age at the time of the communications. The trial judge found that this was an “inescapable inference” based on the content of the online communications and based on the photos and videos that the complainant sent to the appellant. In particular, the trial judge found that the appearance of the complainant in the photos she sent to the appellant depicted “the body of a prepubescent child.” He found that it was “inescapable” that in the photos the complainant was not, and did not look close to 16 years old.

[11] The trial judge also found that the appellant took no steps to ascertain the complainant’s age. Thus, the appellant had led no evidence of reasonable steps taken to ascertain the complainant’s age. The trial judge found that the complainant made multiple statements to the appellant which suggested that she was a teenager, and not yet even in high school, but that the appellant ignored those statements. When the police, posing as the complainant, told the appellant he was speaking to a 13-year-old girl in grade 8, he took no steps to ascertain her age.

[12] With respect to the element that the online communications must be made for the purpose of facilitating the commission of a sexual assault, the trial judge found as follows. Despite some references in the online communications to the possibility of meeting in person, the trial judge found that the appellant had raised a reasonable doubt whether, at the time of the online communications, he had an intention to meet with the complainant. The trial judge found that the appellant may have ultimately arranged to meet with the complainant, if the communications had continued. Based on R. v. Legare, 2009 SCC 56, [2009] 3 S.C.R. 551, the trial judge held that an intention to meet in person is not a necessary element of finding that online communications were for the purpose of facilitating a sexual offence listed in s. 172.1(1) (b). Rather, what is required is knowingly engaging in conduct that makes it easier or more probable that a sexual offence will occur. Considering all of the evidence, and placing particular emphasis on the fact that the appellant directed the complainant to make and send to him sexually explicit videos of herself, the trial judge was satisfied beyond a reasonable doubt that the appellant’s purpose in engaging in the online communications was to facilitate a sexual assault.

Analysis

[13] The appellant raised three grounds of appeal. We were not persuaded by any of them.

(1) The trial judge did not err in relation to the “purpose of facilitating” element

[14] The appellant argued that the trial judge erred in finding that the online communications were made for the purpose of facilitating the commission of a sexual assault.

[15] The appellant accepts that an intention to meet in person is not a necessary element of having a purpose of “facilitating” one of the listed offences in s. 172.1(1)(b). He argued that in this case, the counts under s. 172.1(1) (b) were particularized that the communications were “for the purpose of facilitating the commission of an offence of sexual assault.” An offence of sexual assault requires physical touching, and thus, meeting in person would be required in order to commit a sexual assault. In his written submissions the appellant argued that the finding of the trial judge that the appellant did not have an intention to meet with the complainant at the time of the communications was “logically inconsistent” with a finding that the appellant’s purpose in making the online communications was to facilitate the commission of a sexual assault. In oral submissions the appellant made a somewhat more nuanced argument, that the absence of an intention to meet at the time of the communications was a factor that the trial judge was required to consider in assessing whether the purpose of facilitating the commission of a sexual assault was proven beyond a reasonable doubt.

[16] We were not persuaded by either of these arguments. The finding that the appellant lacked a present intention to meet with the complainant at the time of the online communications was not logically inconsistent with the communications being for the “purpose of facilitating” the commission of a listed offence, as that element was interpreted in Legare. Further, the trial judge did consider the absence of a present intention to meet in his assessment of whether the Crown had proven the required mens rea beyond a reasonable doubt; having considered it, he was satisfied that the Crown had met its burden.

In Legare, the Supreme Court held that s. 172.1(1) (c) creates an inchoate offence – a preparatory crime. It criminalizes conduct that precedes the (potential) commission of one or more of the listed offences, and that precedes even the attempted commission of one of the listed offences. The court held that to satisfy the requirement of communications being for the “purpose of facilitating” one of the listed offences in s. 172.1(1) (c), it is not necessary that an accused have the intent to commit one of the listed offences or the intent to meet the person they are communicating with in person. Rather, the “purpose of facilitating” requirement would be satisfied by a purpose of: “ helping to bring about and making easier or more probable – for example, by ‘luring’ or ‘grooming’ young persons to commit or participate in the prohibited conduct; by reducing their inhibitions; or by prurient discourse that exploits a young person’s curiosity, immaturity or precocious sexuality” (emphasis in the original): Legare, at paras. 25-35; see also R. v. Wheeler, 2022 ONCA 824, at paras. 71-72. This analysis is equally applicable to the offence created by s. 172.1(1) (b) – the only differences being the relevant age limit and the listed secondary offences.

[17] In his analysis of whether the Crown had proven beyond a reasonable doubt that the communications were made for the purpose of facilitating a sexual assault, the trial judge considered the fact that he had a reasonable doubt whether the appellant had an intention to meet with the complainant at the time of the communications. Despite finding that the appellant had no present intention to meet the complainant at the time of the online communications, the trial judge found that the appellant’s purpose in engaging in the communications was to facilitate the commission of a sexual assault – in the sense set out in Legare of making the commission of such an offence easier or more probable. The trial judge found, in particular, that the fact that the appellant directed the complainant to make sexually explicit videos and send them to him was a “cogent factor” in his finding that the appellant’s purpose in engaging in the online communications was to facilitate the commission of an offence of sexual assault. These findings were open to the trial judge on the evidence at trial, and his reasons do not reveal error.

(2) The trial judge did not err in relation to the element of appellant’s knowledge of the complainant’s age

[18] The appellant argued that the trial judge applied a mens rea of recklessness with respect to the appellant’s knowledge that the complainant was under 16 years of age, rather than the legally required standard of knowledge or wilful blindness.

[19] We were not persuaded that the trial judge applied a standard of recklessness, rather than knowledge or wilful blindness. The trial judge expressly instructed himself on the correct standard for the appellant’s knowledge of the complainant being under 16 years old – knowledge or wilful blindness – in accordance with R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3, at paras. 96-101. He also correctly instructed himself that the reasonable steps requirement in s. 172.1(4) places only an evidentiary burden on the defence, and that the burden to prove an accused’s knowledge or wilful blindness that the complainant is under 16 years of age beyond a reasonable doubt remains with the Crown: Morrison at paras. 84 and 116.

[20] The trial judge’s analysis of the evidence regarding the appellant’s knowledge that the complainant was under 16 years old does not reveal any error in his application of the required mens rea. Nor does it suggest that he applied a standard of recklessness. Indeed, based on all of the evidence, the trial judge drew the inference that the appellant knew that the complainant was under 16 years old – i.e., a finding that the appellant had actual subjective knowledge that the complainant was under 16 years of age. The comments of the trial judge in the reasons regarding the appellant’s failure to make inquiries about the complainant’s age addressed the evidentiary burden on the appellant in relation to the reasonable steps to ascertain age requirement in s. 172.1(4), not to the appellant’s subjective knowledge of the complainant being under 16 years old.

(3) The trial judge did not err in relation to the element of “making” child pornography

[21] Finally, the appellant argued that the trial judge erred in finding the appellant guilty of making child pornography based on a finding that he “possessed” child pornography.

[22] This argument is based primarily on the fact that in the reasons for sentence, delivered nine months after the reasons for judgment, the trial judge repeatedly referred to count #3 as being a conviction for “possession” of child pornography.

[23] While this slip by the trial judge in the sentencing reasons of referring to count #3 as a “possession” offence is unfortunate, we were not persuaded that there was error in the reasons for judgment finding the appellant guilty of making child pornography.

[24] There was substantial evidence at trial, which the trial judge accepted, that the appellant directed the 13-year-old complainant to take nude and sexual photos of herself and send them to him. Indeed, the appellant’s own evidence did not contest that fact. On appeal, the appellant concedes that, subject to knowledge of the person’s age being proven, an adult directing a child online to take sexual photos or videos of themselves – that is, to make new sexual images – and send them to the adult would satisfy the element of “making” child pornography. No argument to the contrary was made in closing submissions by the appellant’s trial counsel. [1] The finding by the trial judge that the appellant gave specific direction to the complainant to make new sexual images of herself, together with the finding that the appellant knew the complainant was under 16 years of age, satisfies the “making” element of count #3.

[25] As we indicated at the hearing, the appeal is dismissed.

“J.C. MacPherson J.A.”

“B.W. Miller J.A.”

“J. Copeland J.A.”

[1] Mr. Coulter was not counsel at the time of the trial evidence or submissions.