Publication Ban 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152,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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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.

486.6(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 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.

Court File and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20231016 DOCKET: C70979

Simmons, Miller and Harvison Young JJ.A.

BETWEEN

His Majesty the King Appellant

and

Joel Fox Respondent

Counsel: Kevin Rawluk and Raoof Zamanifar, for the appellant Lauren M. Wilhelm, for the respondent

Heard: March 21, 2023

On appeal from the acquittals entered by Justice Tory Colvin of the Ontario Court of Justice on July 18, 2022.

B.W. Miller J.A.:

[1] The respondent was acquitted of two counts of child luring contrary to s. 172.1(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46. He was 21 years old at the time of the charged offences when he solicited nude photos via the social media platform Snapchat from two complainants, each of whom was 13 years of age at the time.

[2] The trial judge acquitted the respondent because he was not persuaded that the respondent had the requisite mens rea for the offences. He concluded that although the respondent was reckless in not ascertaining the ages of the complainants before asking them for nude pictures, recklessness was insufficient mens rea to make out the offences under s. 172.1(1)(a). The Crown appeals on that issue and asks this court to substitute convictions under s. 686(4)(b)(ii) of the Criminal Code.

[3] As explained below, the trial judge erred in finding that recklessness as to age was insufficient mens rea for the offences. Recklessness as to age is sufficient where the Crown can prove the person with whom the accused was communicating was an actual child. However, as the trial judge did not make findings concerning whether the respondent subjectively intended to communicate with each victim for the purpose of facilitating a specified secondary offence under s. 163.1 (a child pornography offence), I would allow the appeal, set aside the acquittals, and remit the matter for a new trial.

Background

[4] The first complainant, H.J., posted a public and generic Christmas greeting on Snapchat. The respondent, who was unknown to her, replied “Sorry nudes?” H.J. replied, “wtf no?” The respondent followed up with “Why no tho?” and told her they were the same age. H.J. was confused by this, as she had not provided her age.

[5] When she pressed the respondent to tell her his age, he said 16. He then sent her an unsolicited photo of his crotch, clothed, with a caption asking if anyone wanted to send nudes. She told him that she was a child. H.J. was able to determine the respondent’s actual age and location from his Snapchat profile, and her older sister then contacted him through Facebook to caution him that H.J. was only 13 years old. The respondent’s conversation with H.J. ended when H.J. confronted him with “your 21 and im a child”. The respondent replied, “Hah nothing illegal, I didn’t know. Plus worst I get is account deleted.”

[6] While carrying on the Snapchat conversation with the respondent, H.J. was also on FaceTime with her friend I.S., the second complainant. I.S. informed H.J. that she was receiving the same messages from the respondent asking for nudes, with the same photo and caption.

[7] H.J. told her mother, who called the police. A police officer phoned the respondent, who told the officer that he worked for a pornography company, was paid for providing nude photos, and had no intention of stopping. The respondent was later arrested and charged with two counts under s. 172.1(1)(a) for the purpose of facilitating a child pornography offence under s. 163.1. [1]

[8] At trial, the respondent testified that the pornography company story was not true. The truth, he said, was that he solicited nude photos because of a pornography addiction. He testified that he did not ask the complainants about their ages because, “[p]eople with addiction, they don’t want to ask too many questions. They just want to get what they want in the moment.” He was not interested in knowing their ages. He just wanted nude photos.

[9] The respondent was indiscriminate in his attempts to acquire nude photos. The trial judge found that he made no attempt to filter out children in his requests and was reckless in his communications. The trial judge concluded, however, that recklessness was insufficient mens rea for convictions for child luring, relying on R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3. Further, the trial judge was unable to find beyond a reasonable doubt that the respondent knew that the persons from whom he was soliciting nude photographs were children. He therefore acquitted the respondent of the charges.

[10] The Crown appealed on the basis that the trial judge erred in law in interpreting the mental element of child luring where the offence involves an actual child. Further, the Crown contends that all necessary findings were made, or were not in issue, to support convictions.

Section 172.1 and the Elements of the Offence

[11] The relevant portions of s. 172.1 read as follows:

Luring a child

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; or (c) a person who is, or who the accused believes is, under the age of 14 years, for the purpose of facilitating the commission of an offence under section 281 with respect to that person.

Punishment

Presumption re age

(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.

No defence

(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.

[12] Section 172.1(2) details the punishment available for child luring and is not relevant to this analysis.

[13] The presumption as to age set out in s. 172.1(3) was struck down as unconstitutional in Morrison.

[14] At para. 43 of Morrison, the Supreme Court of Canada confirmed the three essential elements of child luring as previously set out at para. 23 of R. v. Levigne, 2010 SCC 25, [2010] 2 S.C.R. 3: (1) an intentional communication by means of telecommunication; (2) with a person who is, or who the accused believes is, under the requisite age; (3) for the purpose of facilitating the commission of a designated offence with respect to that person.

Analysis

(1) Morrison does not address mens rea as to age in the circumstances of an actual child complainant

[15] First, I will address the impact of Morrison on the mens rea applicable to the first mode of offence under s. 172.1(1)(a). In my view, Morrison does not rule out recklessness as to age as sufficient mens rea where the Crown can prove the complainant is an actual child and the trial judge erred in his interpretation of Morrison.

[16] Section 172.1(1)(a) is drafted in such a way that the second element of the offence of child luring can be established by proving either: (1) the accused communicated with a person who is under the age of 18 for the purpose of facilitating the commission of a specified offence; or (2) the accused communicated with a person the accused believes to be under the age of 18 years for the purpose of facilitating the commission of a specified offence: R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 93. The Crown typically proceeds under the latter specification where an accused has been engaged in a sting operation. In such an operation, the accused mistakenly believes himself to be communicating with a child but is actually communicating with an undercover police officer adopting a persona. However, a conviction under the “believes” mode of commission is also available in circumstances where the Crown is unable to prove the age of the victims – often because the identity is unknown and circumstantial evidence inadequate for that purpose – but can nevertheless prove that the accused believed the person to be under the age of 18: R. v. D.N., 2023 ONCA 561, at footnote 3. In this case, the Crown proved that the respondent communicated with actual children.

[17] In applying s. 172.1(1)(a), and in reading the case law interpreting it, it is important to keep these two modes of commission analytically distinct. Failure to do so can result in wrongly importing the mens rea requirement of the second mode into the first. For the second mode – typified by the police sting – Morrison makes it clear, at paras. 95-102, that the requisite mens rea is limited to belief or wilful blindness that the accused is communicating with a child. Recklessness in this scenario is insufficient mens rea.

[18] The trial judge generalized from this proposition to the conclusion that Morrison “ruled out recklessness and negligence as sufficient to ground a conviction dealing with [s.] 172.1.” But the holding from Morrison is narrower than that. The court in Morrison did not address whether recklessness could be sufficient mens rea where the Crown can prove that the accused communicated with an actual child. It specifically confined its holding to the context of a police sting, for example, at para. 55: “In the context of a sting operation where there is no underage person – which to be clear, is the specific context to which these reasons are restricted … the Crown must prove beyond a reasonable doubt that, among other things, the accused believed the other person was under the age of 16” (emphasis in original). See also paras. 81, 84, 85, 95, 101, 102. Mens rea as to age where the Crown can prove an accused to have communicated with an actual child is an open question this court is required to answer.

(2) Recklessness satisfies the mens rea with respect to age for s. 172.1(1)(a) where the Crown can prove there is an actual child complainant

[19] Determining the mens rea as to age applicable to s. 172.1(1)(a) of the Criminal Code is a matter of statutory interpretation. The orthodox method of statutory interpretation was summarized by the Supreme Court in R. v. Jarvis, [2002] 3 S.C.R. 757, 2002 SCC 73, at para. 77: “one is to seek the intent of Parliament by reading the words of the provision in context and according to their grammatical and ordinary sense, harmoniously with the scheme and object of the statute”. Distilled further, it is a matter of determining the intention of Parliament by reference to the “text, context, and purpose” of the statute: R. v. Basque, 2023 SCC 18, para. 63.

[20] In ascertaining the intention of Parliament, courts are assisted by reference to operative interpretive presumptions. One such presumption, applicable here, is that Parliament intends that true crimes have a subjective fault element, namely that criminal liability results only where an accused who committed a prohibited act did so intentionally or recklessly, with knowledge of the facts constituting the offence or with wilful blindness towards them. See R. v. A.D.H., 2013 SCC 28, [2013] S.C.R. 269, at para. 23, and the cases cited therein.

[21] R. v. Buzzanga and Durocher (1979), 25 O.R. (2d) 705 (C.A.), at p. 717, provides that “[t]he general mens rea which is required and which suffices for most crimes where no mental element is mentioned in the definition of the crime, is either the intentional or reckless bringing about of the result which the law, in creating the offence, seeks to prevent”. While that is most often the case, determining the level of mens rea intended for a particular offence always requires attention to the text of the particular provision, its context, and purpose.

[22] As explained below, consideration of the text, context, and purpose of s. 172.1(1)(a) establishes that recklessness as to age is sufficient mens rea for a conviction under the provision’s first mode of offence where the Crown can prove the accused communicated with an actual child. I would therefore allow the appeal. However, because the trial judge did not make the necessary findings as to whether the respondent subjectively intended to communicate with the complainants for the purpose of facilitating the commission of the secondary offences alleged, I would order a new trial.

i. The text of the child luring offence

[23] Recall that s. 172.1(1) provides the following: “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” various offences “with respect to that person”.

[24] On a plain reading of this text, it is evident that the second mode of commission requires belief that the person with whom the accused communicated was under the age of 18. Belief requires either actual knowledge of or wilful blindness as to age, which, as Morrison determined, excludes recklessness.

[25] Recklessness is a form of subjective fault distinct from both negligence and wilful blindness. It refers to the state of mind of a person who, “aware that there is danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk”: Sansregret v. The Queen, [1985] 1 S.C.R. 570, at p. 582; Morrison, at para. 100; R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, at para. 47. In contrast, wilful blindness is a higher standard that “arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant”: Sansregret, at p. 584; Morrison, at para. 100. Culpability through recklessness is justified by the accused proceeding despite consciousness of the risk, while culpability through wilful blindness is justified by the accused deliberately failing to inquire despite some knowledge that there is reason for inquiry.

[26] Is recklessness as to age sufficient mens rea when it comes to luring an actual child for the purpose of facilitating a sexual offence or any of the other offences incorporated by reference into s. 172.1(1)(a)? An important principle of statutory interpretation suggests that it is.

[27] There is a presumption against interpreting statutory language in a way that would create redundancy: R. v. Carbone, 2020 ONCA 733, 153 O.R. (3d) 145, at para. 85; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 28. To construe the first mode of offence under s. 172.1(1)(a) as requiring belief, as the respondent urges, would render the first mode of committing the offence redundant. The second mode of offence applies so long as “the accused believes” that the complainant is under the age of 18. Nothing about this clause restricts its application to situations where there is no actual child complainant. On its face, then, the second mode applies where the accused believes that they are communicating with a child, regardless of whether the person with whom they are communicating is an actual child. Under the respondent’s interpretation, the first mode of committing the offence would capture only a subset of the conduct already captured by the second mode. This cannot be right. To adopt the respondent’s reading of s. 172.1(1)(a) would sap the first mode of offence of any independent meaning.

[28] Conversely, construing the first mode as requiring the presumptive mens rea of recklessness avoids redundancy. On this reading, where the Crown proves there is an actual child complainant and the accused is reckless as to their age, the accused’s conduct will fall within the first mode of offence under s. 172.1(1)(a) but not the second, which requires full belief.

[29] The respondent argues that even though s. 172.1(1)(a) does not specify the mens rea required for the first mode of offence, the text of the provision necessarily excludes recklessness. The argument is that to communicate with a person under the age of 18 “for the purpose of committing an offence” means that the Crown must prove that the communication was specifically intended to facilitate the commission of the enumerated offence: R. v. N.S., 2022 ONCA 160, 169 O.R. (3d) 401, at para. 100. In the circumstances of this appeal, the “for the purpose” clause required the Crown to prove that in sending the messages “sorry nudes” or “anyone for nudes” with a photo of his crotch, the respondent’s intention was to facilitate a child pornography offence. That is, part of his purpose in sending the message was to obtain child pornography from any child with whom he was communicating.

[30] The respondent draws attention to the distinction between a person’s intention, which is the ultimate purpose for which an action is taken or a chosen means undertaken for some further purpose, and mere foreknowledge of a probable but unintended consequence of that action.

[31] In the child-luring context, the respondent argues that if the Crown were to prove that an accused knew a complainant’s age and the accused requested nude photos from the complainant, this would amount to persuasive evidence that the accused intended to facilitate a secondary offence under s. 172.1(1)(a), such as making child pornography. To the contrary, if an accused was merely reckless as to the identities and ages of a group of persons with whom the accused communicated and that group included a child, there could be inferences available other than that the accused intended to communicate with the child for the purpose of committing a secondary offence.

[32] The respondent further argues that the mens rea with respect to age in s. 172.1(1)(a) cannot be established on a standard of recklessness. This is because the specific intention needed to facilitate an age-based secondary offence is incompatible with recklessness as to ascertaining age. It would be inconsistent, the respondent argues, for an accused to be reckless about the age of the persons with whom he is communicating – to not know the age but to see the risk and take the chance – and at the same time subjectively intend to facilitate – to be communicating for the express purpose of facilitating – an offence with a child. The respondent says this would require holding in mind two inconsistent states of affairs – not knowing if one is actually communicating with a child while simultaneously communicating in order to commit an offence involving a child.

[33] I am unpersuaded that there is necessarily any inconsistency.

[34] To establish the offence of child luring, the Crown must prove a subjective intention to facilitate the commission of a secondary offence, for example, to access nude photos of children. That is the ultimate purpose for which the accused is said to be acting. The communication is the means by which the accused carries out that ultimate purpose. Obviously, if the accused knows the identities of the persons with whom they are communicating, and knows those persons’ ages, that is evidence – as the respondent suggests – that the accused is communicating for the purpose of facilitating the commission of the secondary offence. But it does not follow that just because an accused does not know the ages and identities of some members of a group of persons with whom they are communicating more or less at random and sees the risk that some might be children, that the inference is unavailable that one purpose of the communication is to facilitate the commission of an age-based offence. Reckless conduct can be a means chosen to achieve some further intended end, such as facilitating the commission of a child pornography offence.

[35] As the Supreme Court explained in R. v. Legare, 2009 SCC 56, [2009] 3 S.C.R. 551, child luring criminalizes conduct that precedes the commission of the secondary offences. For this reason, it is possible to do something for the purpose of facilitating a secondary offence without specifically intending each element of that offence. For example, an offender does not need to “meet or intend to meet the victim with a view to committing any of the specified offences” in order to commit the child luring offence, even though some of the specified secondary offences, such as sexual assault, would require meeting: Legare, at para. 25. In coming to this interpretation, the Supreme Court emphasizes the term “facilitating”, at para. 28:

Section 172.1(1) makes it a crime to communicate by computer with underage children or adolescents for the purpose of facilitating the commission of the offences mentioned in its constituent paragraphs. In this context, “facilitating” includes 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 original.]

[36] So there would be no inconsistency, for example, if an accused’s purpose in communicating was to facilitate accessing pornographic images from a broad class of persons that included, but was not restricted to, children. An accused may be reckless as to the ages of individual members of the group and, at the same time, one purpose of their communications may be to facilitate the commission of a child pornography offence.

[37] In sum, when the Crown can prove the accused was communicating with an actual child, the text of s. 172.1(1)(a) indicates that mens rea as to age includes recklessness.

ii. The statutory context

[38] To interpret the mens rea under s. 172.1(1)(a) where the Crown can prove the accused is communicating with an actual child as being satisfied by recklessness is also consistent with the provision’s statutory scheme. Typically, “recklessness will suffice to establish the mens rea with respect to age in offences involving sexual activity with underage persons”: Carbone, at para. 124. In particular, this court has held that recklessness as to age satisfies the mens rea requirement for certain secondary offences listed under s. 172.1, such as ss. 151 (sexual interference) and 152 (invitation to sexual touching): see Carbone, at para. 131; R. v. W.G., 2021 ONCA 578, 405 C.C.C. (3d) 162, leave to appeal refused, [2021] S.C.C.A. No. 381, at paras. 69-70. Like child luring, these offences involve children and are also silent on the required mens rea as to age.

iii. The legislative purpose

[39] The rationale for s. 172.1(1) was summarized by this court in Carbone, at paras. 95-96:

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 [R. v. Legare, 2009 SCC 56, [2009] 3 S.C.R. 551], at para. 26; R. v. Alicandro, 2009 ONCA 133, 95 O.R. (3d) 173, at para. 36; R. v. Levigne, 2010 SCC 25, [2010] 2 S.C.R. 3, at paras. 25-26; Morrison, at para. 39.

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.

[40] This legislative purpose supports the inclusion of recklessness as to age where the Crown can prove there is an actual child complainant in the interpretation of s. 172.1(1)(a). Where an offender communicates with a child for a child luring purpose, the offender intends to facilitate the commission of some further offence and that offender’s conduct could lead to the commission of that offence. This type of communication has been characterized as an “inchoate” or “preparatory” offence because it criminalizes conduct that well precedes the underlying offence, regardless of whether the accused ultimately acts to carry it out: Morrison, at para. 40; R. v. Legare, at para. 25.

[41] However, even where the initial communications to an actual child for a child luring purpose are seemingly benign, they create a risk of harm to the child because they are aimed at gaining the child’s trust and ultimately at reducing the child’s inhibitions or exploiting the child’s curiosity, immaturity or precocious sexuality to facilitate commission of a secondary offence. See Legare, at paras. 28-30. Patently, the risk and degree of potential harm increase as the communications become more prurient.

[42] Moreover as Carbone explains, at paras. 95‑96, 105, where there is an invitation or incitement to an actual child to engage in sexual activity, the communication is inherently harmful. Its prohibition is not merely a means of preventing the commission of further offences, such as sexual interference or the making of child pornography, but of proscribing communications which are themselves a form of harmful abuse.

[43] Where, as here, a child in an internet chatroom suddenly receives an invitation to send nude photographs of herself to an unknown party, the child is confronted with options that the child must process and either accept or reject. Reasoning through these options takes the child into the mental world of another person who is indifferent to their best interests. It is an invitation to see themselves the way some stranger sees them – as objects to be instrumentalized in the service of that person’s sexual appetites. This invitation to step into a world of instrumentalized and depersonalized sexuality, regardless of whether it culminates in the commission of other offences, is itself an assault on the child’s self‑understanding and an impediment to a developmental understanding of sexuality as premised in mutuality and dignity. These are among the harms that s. 172.1(1) seeks to prevent.

[44] In other words, it is not just the accused’s state of mind that makes the conduct blameworthy. This harm further distinguishes the luring of actual children from the situation in Morrison. Under s. 172.1(1)(a)’s second mode of offence, the justification for criminalization rested solely with the accused’s belief that they were communicating with a child, which in some cases is mistaken and in those cases could not actually give rise to the underlying offence involving a minor: see the discussion in Carbone, at paras. 99‑100. Here, in contrast, in all cases, the conduct itself causes harm or, at least, a significant risk of harm.

[45] The rationale for the recklessness standard provided by Doherty J.A. in Carbone, at para. 125, although dealing with invitation to sexual touching, applies with equal force to s. 172.1(1)(a):

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. [Emphasis added.]

[46] Put simply, belief is appropriate for the second mode of offence under s. 172.1(1)(a) where there may be no actual child or the identity of a child cannot be proven, because the accused’s criminal intent is itself the primary subject of proscription. In these circumstances, the criminal law principles of fault and restraint favour a stringent subjective standard of mens rea that excludes recklessness: Carbone, at para. 100. But under the first mode of offence, where there is a significant risk of, or actual, harm to a child a lesser threshold of culpability in the form of recklessness is justified.

iv. Conclusion: recklessness as to age suffices where there is an actual child complainant

[47] In summary, to establish the mens rea as to age for the first mode of offence under s. 172.1(1)(a) involving an actual child, the Crown must prove beyond a reasonable doubt that the accused either knew, was wilfully blind, or was reckless to the fact that the person was under the prescribed age. Accordingly, the trial judge erred in concluding that recklessness as to age was insufficient mens rea for luring an actual child.

[48] This interpretation is consistent with R. v. Bowers, 2022 ONCA 852, at paras. 18-20, and R. v. S.R., 2023 ONCA 35, at para. 3. In Bowers, although the appellant argued that he was improperly convicted of luring a 13‑year‑old child based on recklessness, both the court below and this court found that the accused had actual knowledge of the child’s age. Although the court commented that 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”, the court was not required to address whether recklessness could constitute sufficient mens rea on the facts and cannot be taken as having decided that issue. Likewise, in S.R., the appellant argued that the trial judge erred in rejecting his evidence that he honestly believed that the complainant was 18 years of age. The appellant did not argue that he was merely reckless as to the complainant’s age and that issue was not before the court.

(3) Application of the mens rea standard to this case

[49] The trial judge’s error in holding that recklessness as to age was insufficient mens rea was material to the respondent’s acquittal. The trial judge held: “[the respondent] made no secret of seeking nude pictures of women. While he was not necessarily seeking pictures of underage women, he made no attempt to filter out the underage in his initial requests. In my view, he is reckless in his conduct.” The trial judge acquitted the respondent specifically because he did not believe that this recklessness was sufficient mens rea.

[50] There is no basis on which to challenge the trial judge’s factual finding in this regard and the respondent does not do so on appeal. The respondent’s testimony was replete with statements showing that he was aware of the possibility that the girls could have been children. He did not “want to ask too many questions”, he was “ignoring anything else”, and he did not want to ask the girls their ages because he was driven by his porn addiction to just get nude photos. He testified that he thought that H.J. was around 16 years old. With respect to I.S., he stated that he was “indifferent” about her age.

[51] However, the respondent argues that because the trial judge acquitted on this basis, he did not consider the further requirement of whether the accused subjectively intended to communicate for the purpose of facilitating the commission of a child pornography offence: Legare, at para. 36; Morrison, at para. 153. In the circumstances, the appropriate remedy, the respondent argues, would be a new trial.

[52] I agree and would order a new trial. Although the Crown contends that all necessary factual findings were made, whether expressly or by implication, in order to substitute a conviction, the trial judge crucially did not advert to the central issue of whether the respondent had a subjective intention to facilitate the designated secondary offences with respect to each complainant. A new trial is therefore necessary.

DISPOSITION

[53] I would allow the appeal, set aside the acquittals, and remit the matter for a new trial.

Released: October 16, 2023 “J.S.” “B.W. Miller J.A.” “I agree. Janet Simmons J.A.” “I agree. A. Harvison Young J.A.”

Footnote:

[1] The information originally did not specify a secondary offence, but the trial judge amended the information in his reasons for judgment to clarify that the secondary offence for each count would be s. 163.1 on the Crown’s suggestion.