Court Information

COURT OF APPEAL FOR ONTARIO DATE: 20241115 DOCKET: COA-24-CR-0438

Pepall, Copeland and Dawe JJ.A.

BETWEEN

His Majesty the King Respondent

and

Adam West Appellant

Counsel: Michael Lacy and Marcela Ahumada, for the appellant Eunwoo Lee and Jennifer Gibson, for the respondent

Heard: October 25, 2024

On appeal from the decision of Justice Catriona Verner of the Superior Court of Justice, dated January 27, 2023 with reasons reported at 2023 ONSC 709, dismissing an appeal from the conviction entered on September 10, 2021, by Justice Anastasia M. Nichols of the Ontario Court of Justice.

REASONS FOR DECISION

[1] The appellant appeals with leave [2] from the judgment of the Summary Conviction Appeal Court upholding his convictions for one count of possession of child pornography and one count of internet luring. The offences arise out of the appellant’s online relationship with the 17-year-old complainant, during which she sent him sexual photos of herself in exchange for e-transfers of money. The sexual images of the complainant were found on the appellant’s phone when a search warrant was executed. The appellant was also convicted of a second count of possession of child pornography related to child pornography images not involving the complainant found on his laptop computer. That count is not the subject of appeal.

(1) The child luring count

[2] At the time leave to appeal was sought, the appellant raised issues with respect to the mens rea for both the child luring conviction and the possession of child pornography conviction. In particular, the appellant argued that both offences require subjective mens rea of either actual knowledge or wilful blindness as to the complainant’s age, and that recklessness is insufficient. The Crown argues that recklessness as to the complainant’s age satisfies the mens rea requirement for both offences.

[3] With respect to the child luring count, although the appellant does not concede the issue, he accepts that this court’s decision in R. v. Fox, 2023 ONCA 674, determines the mens rea issue adversely to his position. In Fox, this court held that as a matter of statutory interpretation, recklessness as to age can satisfy the mens rea for internet luring under s. 172.1(1)(a) of the Criminal Code in cases where an actual child under age 18 is involved.

[4] In light of the court’s holding in Fox and the trial judge’s findings, we see no basis to interfere with the conviction for child luring.

(2) The possession of child pornography count

[5] With respect to the possession of child pornography count, in order to decide this appeal, it is not necessary to delve into the legal issue the appellant raises regarding the mens rea of this offence. We agree with the Summary Conviction Appeal Court that the findings of fact made by the trial judge are clear that that the appellant was at least wilfully blind to the complainant’s age.

[6] The appellant argues that this court should not accept that the trial judge made a finding that the appellant was wilfully blind to the complainant’s age. He argues that on the trial judge’s understanding of the mens rea for possession of child pornography, she was not required to make a finding about wilful blindness, and notes that she never used the words “wilful blindness” in her reasons. The appellant argues that the trial judge’s language about failure to inquire is, at its highest, a finding of subjective (advertent) recklessness.

[7] In our view, the findings made by the trial judge amount to a finding of wilful blindness. The appellant and the complainant met on Ashley Madison, a website for adults 18 years or older. They never met in person or spoke on the phone, but communicated on the Ashley Madison website and through text and Facebook messages. The trial judge noted that the appellant took minimal steps from the start of the relationship to inquire about the complainant’s age, particularly given that she told him she was in high school. But whatever the situation at the start of the relationship, the trial judge found that in August 2018, when the complainant was still 17, the complainant’s sister and a friend clearly told the appellant, in a heated text exchange, that the complainant was 17, that what he was doing was illegal, and that they would contact police if it continued. The appellant admitted that the friend told him the complainant was 17 years old and that the sister and her friend would contact police if the relationship continued.

[8] The appellant broke off the relationship with the complainant as a result of these communications with the complainant’s sister and her friend. But then, when the complainant contacted him a few months later, while she was still underage, the appellant resumed the online relationship in which the complainant sent him sexual photos in exchange for money. He did so despite the earlier warnings from the complainant’s sister and friend that the complainant was underage. During a message exchange on social media, the complainant raised a concern about her sister “finding out”, to which the appellant responded, “no one will know”.

[9] The appellant testified that he did not believe the complainant’s sister and friend when they told him the complainant was 17. He testified that at the time the sister and friend communicated with him, he asked about the complainant her age and she said she was 18. However, the trial judge rejected the appellant’s evidence as not believable and not raising a reasonable doubt. Further, the appellant did not dispute that when his relationship with the complainant later resumed, he did not ask her about her age again.

[10] The trial judge accepted the complainant’s evidence as forthright and described her testimony as “straight forward and consistent”. She described the Crown’s case as a whole as “credible, reliable and compelling.” The complainant testified that the appellant never asked her how old she was, and she did not recall ever telling him either that she was 18 or her true age, 17.

[11] The trial judge summed up her assessment of the appellant’s state of mind as follows:

Clear red flags were raised yet he continued to communicate and accept pictures from her after being told she was underage. He could easily have asked her to send a photo of a piece of identification, given she was sending him a multitude of other images.

Mr. West was communicating with someone he knew, or at least did not take reasonable steps to ascertain was under the age of 18 for the purpose of acquiring these items [the sexual photos of the complainant].

[12] Although in her ultimate conclusion, the trial judge described her finding as knowledge or a failure to take reasonable steps, reading her reasons as a whole, we are satisfied that the trial judge found that the appellant was either subjectively aware that the complainant was under 18, or at least knew there was a need for further inquiry about her age and deliberately chose not to inquire. In the circumstances here, the latter finding amounted to a finding that the appellant was wilfully blind about the complainant’s age, which is the legal equivalent of actual knowledge: Sansregret v. The Queen, [1985] 1 S.C.R. 570, at pp. 584-86; R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at paras. 21-24. On the trial judge’s findings of fact, the appellant was specifically told by the complainant’s sister and her friend that the complainant was only 17 years old. The trial judge rejected the appellant’s testimony that he had previously asked the complainant about her age and that she had said she was 18, and accepted the complainant’s evidence that the appellant never asked her about her age, either before or after his communications with her sister and the friend.

[13] Further, even if one were to read the trial judge’s reasons as not making a finding one way or the other on the issue of wilful blindness as to the complainant’s age after the appellant was told that she was under 18, and assuming for the sake of argument that her failure to do so was an error, we would apply the curative proviso. We acknowledge that appellate courts should exercise caution in applying the curative proviso in cases where there are issues of credibility. This is a case where it is appropriate to do so.

[14] It is inevitable on the record before the court that the appellant would be found to be wilfully blind to the complainant’s age in the time period after her sister and friend told the appellant she was under 18 years old. This is not a case where there were merely circumstances that might reasonably cause a person concern about whether the complainant was under 18, but where a trier of fact might still be left with a reasonable doubt about whether these concerns occurred to the appellant.

[15] Rather, the undisputed evidence was that the appellant was expressly told by the complainant’s sister and friend that the complainant was 17, that what he was doing was illegal because she was under 18, and that they would contact police if the relationship continued. He admitted he was told this, and that he broke off the relationship as a result of those communications. Nevertheless, fixed with that knowledge, a few months later he resumed his online relationship with the complainant in which he received sexual photos of her in exchange for money. When the relationship resumed, in a text conversation where the complainant raised concerns about her sister finding out that the relationship had resumed, he messaged the complainant that “no one will know”. The trial judge found that he made no inquiries about her age either before or after the relationship resumed.

[16] In these circumstances, the appellant’s failure to inquire about the complainant’s age cannot be understood as anything other than wilful blindness. The appellant was not merely proceeding in the face of a risk that the complainant was underage. Rather, the inference is irresistible that his actions show deliberate ignorance: Briscoe, at para. 24; R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3, at para. 98.

[17] The appeal is dismissed.

“S.E. Pepall J.A.” “J. Copeland J.A.” “J. Dawe J.A.”

Footnotes:

[1] This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.

[2] Leave to appeal was previously granted by another panel of this court.