R. v. Kavanagh, 2024 ONCA 521

Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20240627 DOCKET: COA-23-CR-0004

Miller, Paciocco and Copeland JJ.A.

BETWEEN

His Majesty the King Respondent

and

Steve Kavanagh Appellant

Counsel: Richard Litkowski, for the appellant Molly Flanagan, for the respondent

Heard: June 20, 2024

On appeal from the convictions entered by Justice James Stribopoulos of the Superior Court of Justice, sitting with a jury, on June 30, 2022, and from the sentence imposed on January 12, 2023, with reasons reported at 2023 ONSC 283.

Reasons for Decision

[1] Steve Kavanagh does not deny that he engaged in sexual conversations with two American police officers posing as a father and his 15-year-old daughter who were using the internet to sell sex with the daughter. Nor does he deny that he discussed meeting the daughter for sex with both the “father” and the “daughter”, or that he sent the “daughter” photographs of his penis. Instead, Mr. Kavanagh defended himself at his jury trial on charges of child luring and making sexual material available to a child by testifying that he believed he was communicating with a single adult who was engaged in fantasy role playing, as he himself was.

[2] The jury rejected Mr. Kavanagh’s testimony and found him guilty. The trial judge rejected Mr. Kavanagh’s request for a conditional sentence, finding that a conditional sentence would not be consistent with the principles of sentencing because it would not adequately address the objectives of denunciation and deterrence, as there were no exceptional circumstances in his case.

[3] Mr. Kavanagh appeals his conviction and seeks leave to appeal his sentence. At the end of his oral argument, we dismissed his conviction appeal, granted him leave to appeal his sentence, and dismissed his sentence appeal, for reasons to follow. These are our reasons.

[4] Mr. Kavanagh first argued on his conviction appeal that the trial judge erred in directing the jury on the reasonable steps requirements of the defence of mistaken belief in age, because the decisions in R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3, and R. v. Carbone, 2020 ONCA 394, 150 O.R. (3d) 758, have rendered the reasonable steps requirements “irrelevant”. [1] He argues that the irrelevance of the reasonable steps requirements follows from passages in Morrison, and its holding that to gain a conviction in a child luring case where an officer poses as a child, the Crown must ultimately prove either that the accused believed the subject was underage or was wilfully blind as to whether the subject was underage. Mr. Kavanagh’s theory appears to be that, since Morrison holds that the Crown must ultimately prove in the police sting context that the accused had an affirmative subjective mens rea relating to belief, the reasonable steps requirement has no real role to play.

[5] Respectfully, this submission reflects a misunderstanding of the law. Notwithstanding that the Crown must ultimately establish an affirmative mens rea relating to belief, the reasonable steps requirement in s. 172.1(4) of the Criminal Code, R.S.C. 1985, c. C-46, continues to operate in any child luring prosecution where the accused claims to have been acting on an innocent belief about age, [2] including when dealing with undercover officers posing as children. Its function is to prevent those who claim their state of mind to have been innocent from succeeding where they formed their belief without having taken reasonable steps before doing so. In effect, the risk-taking involved in sexual activity with a minor without taking reasonable steps to ensure that the subject is of legal age fails to qualify as morally innocent behavior.

[6] The effect of the authorities that Mr. Kavanagh relies upon is that, where an innocent belief defence is not available because it lacks an air of reality, whether it be because that defence is not supported by the evidence or because of the failure by the accused to have taken reasonable steps, that defence is to be taken off of the table when the mens rea issue is being considered: Morrison, at paras. 82-83, 120. Then, the remaining mens rea inquiry is to be conducted on the factual premise that the accused did not believe the object of their sexual activity to be of age. The question will be whether, given this premise, the Crown has established the requisite mens rea beyond a reasonable doubt: Morrison, at para. 121. In Carbone, Doherty J.A. said, in dealing with the analogous approach in invitation to sexual touching cases, that if the mistaken belief defence is not in play, including where it lacks an air of reality because of the failure by the accused to take reasonable steps, any claim of mistaken belief is “removed from the evidentiary mix” in deciding whether the Crown has proved the requisite affirmative mens rea: at para. 129; and see the analogous approach in sexual assault cases in R. v. H.W., 2022 ONCA 15, 160 O.R. (3d) 81, at paras. 65-67.

[7] Since Mr. Kavanagh attempted to rely on an innocent belief in age defence, the trial judge was obliged to give the charge he did relating to the defence of honest belief, and his charge was impeccable, conforming entirely with the directions in Morrison, at paras. 129, 130.

[8] Therefore, we dismissed this ground of appeal.

[9] Although he did not identify it as a distinct ground of appeal, Mr. Kavanagh argued that the charge was worded in a way that “may have left the jury with the mistaken impression that there was a persuasive onus on the Appellant to establish that he took reasonable steps”. We disagree. The trial judge repeatedly and clearly told the jury that the Crown had to disprove the honest belief defence and prove Mr. Kavanagh’s actual belief that the subject was not of legal age, both beyond a reasonable doubt.

[10] In support of his conviction appeal, Mr. Kavanagh argued that the trial judge erred in not allowing his “lost evidence” application, given the negligence of the American undercover officers in failing to preserve electronic communications that Mr. Kavanagh claims would show that he and one of them discussed at length that they were merely role-playing. Again, we disagree. The trial judge did not err in denying the motion. Lost evidence applications are brokered under the Charter, which does not generally apply to the conduct of foreign officers: R. v. Harrer, [1995] 3 S.C.R. 562, at para. 15; R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292, at paras. 94, 105. No exceptions to that restriction were invoked or apply in this case. The only basis upon which this application could have succeeded would be if the loss of the evidence undermined the fairness of the trial: Harrer, at para. 15.

[11] We disagree with Mr. Kavanagh’s submission that in deciding whether the trial was rendered unfair by lost evidence, the trial judge should have considered that the conduct by the American officers that resulted in the loss of that evidence was negligent. Trial fairness has to do with the conduct of the trial, not the investigative conduct that precedes it. If Mr. Kavanagh’s submission was to be accepted, it would enable the very inquiry that the above authorities reject to be reintroduced under the guise of assessing trial fairness.

[12] Ultimately, the trial judge held that Mr. Kavanagh failed to prove that his trial was rendered unfair because he failed to establish that there were other text messages, as Mr. Kavanagh’s testimony was not credible. That was a determination for the trial judge to make and we see no basis to interfere.

[13] Finally, Mr. Kavanagh argued that the trial judge’s jury charge was inadequate because it failed to direct the jury that they could consider the lost evidence in deciding whether the Crown had proved its case beyond a reasonable doubt. We do not accept this submission. The charge, read as a whole, was adequate. It instructed jurors to consider the absence of evidence in making that determination and directed their attention to Mr. Kavanagh’s claim that the missing messages would have confirmed his testimony that he was role playing.

[14] We therefore dismissed Mr. Kavanagh’s conviction appeal.

[15] We rejected the sentence appeal, as well, because we see no basis for interfering with the trial judge’s decision that a conditional sentence would be inconsistent with the fundamental purposes or principles of sentencing. He did not err in following the jurisprudence of this court in R. v. M.M., 2022 ONCA 441, at para. 16, and R. v. B.M., 2023 ONCA 224, at para. 2, that for sexual offences against children, conditional sentences “must be limited to exceptional circumstances that render incarceration inappropriate”. Nor do we accept Mr. Kavanagh’s oral submission that the trial judge proceeded on the erroneous basis that only medical circumstances relating to the health of the accused can constitute an exceptional circumstance rendering incarceration inappropriate. The trial judge considered all of the circumstances of the case, and concluded, as he was entitled to, that a conditional sentence would not satisfy the principles of denunciation and deterrence relating to the crimes Mr. Kavanagh committed.

[16] The conviction appeal is dismissed, leave to appeal sentence is granted, and the sentence appeal is dismissed.

“B.M. Miller J.A.” “David M. Paciocco J.A.” “J. Copeland J.A.”

Footnotes

[1] Carbone is not a child luring case, but rather an invitation to sexual touching case, where s. 150.1(4), a reasonable steps requirement not unlike s. 172.1(4), operates.

[2] We use the terms “innocent belief in age” or “innocent belief defence” instead of the more commonly employed phrase, “mistaken belief in age”, because this defence is available whether the accused is charged with engaging in child luring with a child, or with an undercover officer posing as a child, both of which are offences contrary to s. 172.1. Where the accused commits the actus reus of luring with a child believing they are engaging with someone of legal age the term “mistaken belief” makes sense. But where the accused engages with an undercover officer who is posing as a child, it does not, since the purported child is not real and has no actual age to be mistaken about. In both contexts, subject to s. 172.1(4) and other limits imposed by law, an honest belief by the accused that they are engaging with an adult is an “innocent belief in age”, hence the terminology.