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 or 486.6 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order;

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

(c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.

(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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;

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

(c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.

(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.

(3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall

(a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order;

(b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and

(c) in any event, advise the prosecutor of their duty under subsection (3.2).

(3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have

(a) informed the witnesses and the victim who are the subject of the order of its existence;

(b) determined whether they wish to be the subject of the order; and

(4) An order made under this section does not apply in either of the following circumstances:

(a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or

(b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.

(5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness.

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.

(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor,

(a) the person knowingly failed to comply with the order;

(b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and

(c) a warning to the individual is not appropriate.

(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 OF APPEAL FOR ONTARIO

DATE: 20240508 DOCKET: C69102

Gillese, Thorburn and Gomery JJ.A.

BETWEEN

His Majesty the King Respondent

and

Adam Collier Appellant

Counsel: Breana Vandebeek, for the appellant Michael S. Dunn, for the respondent

Heard: February 28, 2024

On appeal from the conviction entered on December 5, 2019, with reasons reported at 2019 ONSC 7021, and from the sentence imposed on October 15, 2021, with reasons reported at 2021 ONSC 6827, by Justice Heather McArthur of the Superior Court of Justice.

Gillese J.A.:

I. OVERVIEW

[1] Following a judge-alone trial, the appellant was convicted of: five counts of communicating with a person he believed to be underage for the purpose of facilitating a designated sexual offence; five counts of making sexually explicit material available to a person he believed to be underage for the purpose of facilitating a designated sexual offence; and, one count each of possessing, accessing, attempting to make, and making child pornography. After conditionally staying some of the counts, the trial judge sentenced the then 39-year-old first‑time offender to a custodial sentence of two years less a day, followed by a two-year period of probation. He appeals conviction and seeks leave to appeal sentence.

[2] On his conviction appeal, the appellant submits the trial judge erred in: (1) failing to give proper effect to the affiant’s failure to include exculpatory evidence in the Information to Obtain; (2) improperly relying on omissions in the appellant’s pre-trial statement to the police and his pre-trial demeanour during that interview, as factors to reject his evidence; and, (3) unfairly devaluing the evidence of the defence expert because of the procedure followed.

[3] If leave to appeal against sentence is granted, the appellant would submit that a non-custodial sentence ought to have been imposed. He also sought to introduce fresh evidence that updated his circumstances since he was sentenced.

[4] At the oral hearing of the appeal, the court found it necessary to call on the Crown in respect of only the second issue raised on the conviction appeal. Hence, these reasons address only that issue.

[5] For the reasons that follow, I would dismiss the appeal against conviction. While I would grant leave to appeal against sentence, I would dismiss the sentence appeal and the fresh evidence motion as well.

II. BACKGROUND

[6] The appellant posted an advertisement on the “Casual Encounters” section of the Craigslist website entitled “Big cock for high school girl m4w (west end)”. An undercover police officer responded to the ad, posing as a 14-year-old girl named Addy. Over the following month, the appellant had sexualized email conversations with the Addy persona in which he sent her photographs of his erect penis and two pornographic videos, one entitled “Rookie Teen Sucking Dick” and the other “sexy teen giving 1 hell of a BJ”. He asked her for photographs of her naked breasts and to touch herself sexually. He described what he wanted to do to her sexually and talked about meeting with her to have sex.

[7] These emails formed the basis for an Information to Obtain (“ITO”) a search warrant for the appellant’s residence and electronic devices. The search of the appellant’s electronic devices revealed additional emails in which the appellant was exchanging similar sexualized emails with six other unidentified individuals, all of whom held themselves out as underage girls. The police also found the appellant possessed 46 child pornography images, of which 19 were unique.

[8] At trial, the defence conceded that the Crown established the elements of the child pornography counts. Thus, the only real issue was whether the appellant believed Addy and the other six girls were underage.

[9] The appellant testified that he has Autism Spectrum Disorder (“ASD”) and, because of it, he feels the need to inflexibly obey and follow rules, and believes that others follow the rules as well. He testified that he honestly believed the Addy persona and the six others with whom he was exchanging emails were over the age of 18 for two reasons: (1) to access the Casual Encounters section of Craigslist, users were required to click on a link attesting to the fact that they were over the age of 18; and (2) the girls sometimes emailed him when students would be in school. The appellant is a playwright and testified that he viewed the email exchanges as scripts or screenplays, not reality. He also relied on the evidence of Dr. Graham Glancy, the defence expert who confirmed the appellant’s ASD diagnosis and testified that the need to rigidly adhere to rules is a symptom consistent with some individuals with ASD.

[10] The defence moved to exclude the evidence found on the appellant’s computer. He argued that the police failed to include two pieces of information that, if included, would have caused the warrant not to issue. In the alternative, he argued that even if the warrant could have issued, the application judge should set aside the warrant because the police “deliberately withheld” information.

[11] The trial judge dismissed the application because she was not persuaded that either piece of information would have caused the warrant to not issue. She noted that the warrant was presumed to be valid, and the issuing justice’s decision was entitled to deference. The guiding question is not whether the reviewing justice would have issued the warrant; it is whether the issuing justice could have done so: R. v. Garofoli, [1990] 2 S.C.R. 1421, at p. 1452. The issuing justice had ample evidence that the appellant was engaging in sexualized communications with the Addy persona over a sustained period. The omissions pointed to by the defence were not sufficient to displace the body of evidence that supported the issuing justice’s determination that the warrant should issue.

[12] The trial judge found there was ample information before the issuing justice to establish reasonable and probable grounds and to issue the warrant. She did not exercise her residual discretion to set aside the warrant because she did not accept that the police had deliberately withheld information.

[13] The trial judge correctly set out the applicable legal framework for the offence of child luring. She also correctly described the affirmative defence that the accused believed they were communicating with a person over the required age. Further, she summarized the reasonable steps requirement.

[14] The trial judge then considered whether the appellant could rely on the defence that he honestly believed the Addy persona and the other six individuals with whom he was exchanging emails were over the age of 18. She explained that before the appellant could rely on his professed belief, there had to be an air of reality to his assertion that he took reasonable steps to ascertain their ages. She noted the defence concession that, but for the ASD diagnosis, there would be no air of reality to the defence of reasonable steps in this case.

[15] The trial judge referred to R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, for the proposition that, when determining if there is an air of reality, the trial judge must assume that the evidence relied on by the defendant is true. She found that the combined effect of the appellant’s evidence and that of Dr. Glancy gave an air of reality to the appellant’s assertion that he took reasonable steps to ascertain the ages of Addy and the other six individuals. However, she stated, in the vast majority of cases, the steps the appellant took would not suffice to meet the reasonable steps requirement.

[16] The trial judge found on the evidence, including that of Dr. Glancy, that the appellant has a mild form of ASD. She accepted that for some people with ASD, rigid adherence to rules is a symptom. The trial judge then explored a number of inconsistencies in the appellant’s testimony, noting that his testimony tended to change and evolve when he was confronted with evidence that conflicted with his stated position. The numerous inconsistencies identified by the trial judge include the following. After testifying that he was interested in human contact rather than sexual matters with others, the appellant was unable to explain why he saved the pornographic photos he had received from the email recipients, sent at his request. The appellant testified that he asked the Addy persona to send him naked photos because he was uncomfortable with the discussions he and Addy were having about meeting in person; he said he thought the request might dissuade her from wanting to meet. However, the appellant made the request for the naked photos before there had been any discussion about them meeting in person. Other inconsistencies were revealed in the appellant’s testimony about why he had done internet research on whether it was illegal to talk to teens on the internet, the age of consent in Ontario, and how often Ontario prosecutes age of consent offences. Moreover, as the trial judge observed, despite his professed rigid adherence to rules, the appellant lied to the police.

[17] The trial judge rejected the appellant’s assertion that he thought Addy was of age because she would email during school hours. As the appellant acknowledged, Addy emailed during school hours as well as at other times and he admitted that he knew teenagers might have spare classes or skip school. The trial judge also rejected the appellant’s reliance on the 18+ checkbox on the Casual Encounters website, the primary reason the appellant gave for believing Addy and the other individuals were adults. While the appellant said he believed that everyone follows the rules, he admitted in cross-examination that he knows some people do not follow rules, and that some people under the age of 18 access adult‑only pornographic sites. The trial judge found that acknowledgment hard to reconcile with the appellant’s claimed belief that only adults would access the Casual Encounters site. Further, the appellant lied about his age in his emails, claiming to be in his early 20’s when he was actually in his 30’s, and he lied to the police when giving his statement. Lying was not consistent with the appellant’s evidence that because he has ASD, he inflexibly follows rules.

[18] In assessing his credibility, the trial judge also relied on the appellant’s statement to the police after his arrest, in which he said nothing about users of the Casual Encounters site having to click on a link confirming they were over 18. Her reasons on this are discussed more fully below.

[19] After setting out numerous concerns the trial judge had with the appellant’s evidence, she stated that her concerns were not ameliorated by a consideration of Dr. Glancy’s evidence because (1) much of Dr. Glancy’s opinion was based on the appellant’s self-reported and untested assertions; and (2) Dr. Glancy did not see the appellant’s cross-examination so did not consider the numerous inconsistencies in his evidence that had been exposed through cross-examination.

[20] The trial judge concluded that she did not believe the appellant, nor did his evidence leave her with a reasonable doubt.

[21] The trial judge went on to find that the Crown had established that the appellant believed the Addy persona was underage and communicated with her, or made sexually explicit material available to her, to facilitate the specified designated offences. Thereafter, she determined that the Crown had proved beyond a reasonable doubt that the appellant also committed offences in relation to the other six individuals with whom he was exchanging emails.

[22] At sentencing, the trial judge undertook a thorough analysis of the gravity of the offences, and of the aggravating and mitigating factors impacting the appellant’s moral blameworthiness. Despite the mitigating factors, she found that this was a case in which a conditional sentence was not appropriate. The appellant had communicated with seven individuals, whom he believed to be underage, for the purpose of facilitating designated sexual offences. In her view, the seriousness of the offences required that a term of incarceration be imposed, particularly in light of jurisprudence from this court and the Supreme Court of Canada emphasizing that sentences for sexual offences against children must reflect the profound harmfulness of these crimes.

III. ANALYSIS

[23] It will be recalled that the Crown was called on to respond only to the second ground of appeal against conviction. On this ground, the appellant submits that the trial judge erred in relying on, as factors for rejecting his evidence: (1) his failure to mention the age 18 requirement for users of the Close Encounters site in his pre‑trial statement to the police; and (2) his demeanor in the police interview. The appellant points to paras. 51 and 52 of the trial judge’s reasons for this submission. Those paragraphs read as follows.

In addition, when speaking with the police after his arrest, [the appellant] failed to say anything about the need for users to click on a link confirming that they were over 18. [The appellant], of course, was not obliged to say anything to the police. He had the right to remain silent and was told so. But [the appellant] ultimately chose to speak with the police about his interactions with the Addy persona. Yet he neglected to say anything about the age 18 requirement of the site.

In my view, [the appellant’s] failure to mention anything to the police about the age requirement on the Casual Encounters site is particularly odd in light of Dr. Glancy’s evidence. Dr. Glancy confirmed that a rigid adherence to rules is a symptom consistent with ASD, but he also said that those with this symptom will often become highly emotional if they believe that a rule that should be followed has been broken. Yet in [the appellant’s] case, he did not express any anger when the police used a ruse and told him that the Addy persona was actually a young girl. He did not protest that it was unfair for him to be in this predicament because ‘Addy’ had not followed the rules as she was supposed to. He did not fixate on the age rule and his belief that rules are to be followed. This causes me some concern about the credibility of [the appellant’s] evidence. [Emphasis added.]

[24] I do not accept the appellant’s submission. In my view, the trial judge made no error in her consideration of either matter.

[25] In R. v. Hill, 2015 ONCA 616, 330 C.C.C. (3d) 1 and R. v. Kiss, 2018 ONCA 184, this court affirmed that, in assessing credibility, a trial judge can consider material inconsistencies between a voluntary pre-trial statement and the accused’s trial evidence: Hill, at paras. 44-45; Kiss, at para. 40. The adverse inference comes from the inconsistency, not from the accused’s pre-trial silence.

Omissions can be integral to the existence of material inconsistencies between two versions of events. An account of an event which leaves out important details may be viewed as inconsistent with a subsequent account that includes those details: Hill, at para. 45.

[26] If what the accused voluntarily said before trial is materially inconsistent with the testimony they give at trial, no objection can be taken to using that inconsistency to discount their testimony: Kiss, at para. 40.

[27] When speaking with the police after his arrest, the appellant made no mention of the 18+ checkbox. Even after the police told him that Addy was a 14‑year-old girl, the appellant made no mention of the checkbox. Instead, he insisted that he did not really intend to meet her and had no interest in sex with underage girls. However, at trial, the lynchpin of the appellant’s testimony was that he believed Addy and the other individuals were adults because of the checkbox on the Casual Encounters site.

[28] The appellant took no steps to confirm Addy’s age or that of the other individuals. When he asked, they told him they were underage. As well as their direct evidence they were underage, there were a multitude of indications in the exchanged communications that showed that Addy and the other individuals were underage. The trial judge had to assess the appellant’s claim that it was reasonable he never questioned the ages of the individuals with whom he was chatting. His only explanation for failing to take any steps was that he was convinced people would not dishonestly click a link indicating they were at least 18 years old. As the trial judge found, the only way that could amount to reasonable steps was if his ASD made him adhere to rules rigidly and believe that others would as well.

[29] In sum, the appellant’s omission of any reference to the age-disclaimer checkbox when making his police statement was materially inconsistent with the appellant’s subsequent account given at trial. It was open to the trial judge to discount his testimony on that basis.

[30] The appellant’s submission regarding the appellant’s demeanor during the police interview must be considered in light of Dr. Glancy’s evidence. Dr. Glancy testified that a person with ASD might be more rigid about following rules and, if so, they would “tend to overreact characteristically if they feel that these rules have not been followed by another person”. The trial judge observed that the appellant did not react in that way when the police told him that Addy was underage. That was not an improper focus on the appellant’s demeanor on the part of the trial judge. Rather, it was part of her evaluation of the appellant’s claim that he took no steps to ascertain whether the individuals with whom he was dealing were adults because of his ASD and rigid adherence to rules.

[31] Finally, I note that the trial judge did not use the appellant’s omission in his pre-trial statement for an improper purpose. She reminded herself that the appellant had the right to remain silent and properly used his omission as part of her evaluation of credibility, not as affirmative evidence of his guilt: Hill, at para. 43, and Kiss, at paras. 37-40.

IV. DISPOSITION

[32] For these reasons, I would dismiss the conviction appeal. I would grant leave to appeal against sentence but would dismiss the sentence appeal and the fresh evidence motion.

Released: May 8, 2024 “E.E.G.”

“E.E. Gillese J.A.”

“I agree. Thorburn J.A.”

“I agree. S. Gomery J.A.”