Court of Appeal for Ontario

Date: 2025-05-07
Docket: COA-24-CR-0459
Coram: Trotter, Sossin and Rahman JJ.A.

Between:
His Majesty the King (Respondent)
and
Vernon Terwilligar (Appellant)

Appearances:
James Coulter, for the appellant
Molly Flanagan, for the respondent

Heard: April 24, 2025

On appeal from the convictions entered by Justice Matthew C. Webber of the Ontario Court of Justice on December 15, 2022, and from the sentence imposed on August 3, 2023.

Sossin J.A.:

Overview

[1] The appellant appeals his convictions for offences relating to child luring and making child pornography, and seeks leave to appeal a portion of his sentence relating to an ancillary order under s. 161 of the Criminal Code, R.S.C. 1985, c. C-46.

[2] During the period between May 4 to May 9, 2018, the appellant communicated online with an undercover officer posing as “Maurice”, the father of a 13-year-old girl. Thereafter, the appellant communicated with “Annie”, the same undercover officer who was also posing as the 13-year-old daughter. The communications between the appellant and Maurice developed into a discussion about the appellant travelling to Moncton, New Brunswick, so they could both sexually assault Annie in a hotel room. The appellant played an active role in initiating the discussion with Maurice about the two of them having sex with his daughter, with the appellant taking specific interest in Annie’s young age.

[3] Maurice suggested that the appellant introduce himself to Annie online. At his suggestion, the appellant communicated with Annie. The Crown alleged, and the appellant conceded, that the communication between the appellant and Annie amounted to grooming.

[4] The police established that the IP address associated with all the online communications matched the appellant’s residential address. The contents of the communications were not seriously challenged, and the appellant accepts most of what was said in the communications as being attributed to him.

[5] At trial, the appellant testified in his own defence. He testified that Maurice was a fantasy character to him. The trial judge rejected this testimony.

[6] The trial judge noted that the appellant’s credibility was diminished during cross-examination, as he was unable to explain why he would research into the logistics of the sexual meeting if he did not think Maurice and Annie were real people. Moreover, the discussions the appellant had with Annie were telling of his impression of Annie’s age, as they were never overtly explicit, but were an obvious attempt at an older man grooming a child. If the appellant truly thought this was an adult posing as a child, the trial judge posited that the communications would likely be more sexually explicit, like his conversations with Maurice. The trial judge ultimately rejected the appellant’s evidence that he believed that Maurice and Annie were not real people at all operable times.

[7] The appellant was convicted of two counts of agreeing to commit offences under ss. 151 and 271 of the Criminal Code with respect to another person who was believed to be under the ages of 18 or 16, contrary to s. 172.2(2); one count of making child pornography in the form of written material, contrary to s. 163.1(2); and one count of child luring, contrary to s. 172.1(1)(b).

[8] The appellant was sentenced to an 18-month custodial sentence, followed by 30 months of probation.

[9] The trial judge also imposed an 8-year order with conditions pursuant to ss. 161(1)(b), (c), and (d) of the Criminal Code.

[10] The appellant argues that the warrant leading to the search of his devices was overbroad and that the trial judge erred in dismissing his Canadian Charter of Rights and Freedoms application alleging a s. 8 violation.

[11] Initially, the appellant also argued that the trial judge erred in finding that the warrant could issue to search for offences of possession of child pornography in the form of digital images as this aspect of the search was based on impermissible propensity evidence. At the outset of the hearing, the appellant abandoned this ground of appeal.

[12] With respect to the sentence appeal, the appellant argues he should not have been subject to an order under s. 161.

[13] At the conclusion of the hearing, the appeal was dismissed with respect to the conviction, for reasons to follow. I set out those reasons below. Subsequently, I address the sentence appeal.

The trial judge did not err in dismissing the Charter application

[14] After a first unsuccessful Charter application, in which the appellant argued that the police failed to be full, fair and frank in the Information to Obtain (ITO) for the warrant to search the appellant’s residence, the appellant changed counsel and a new Charter application was brought claiming the warrant was overbroad because it allowed for examination of all data on any device found in the appellant’s residence.

[15] The appellant argues that the warrant lacked any limits or restrictions on the search. In the ITO, the affiant officer deposed that “I reasonably believe that an examination of these devices and any data reproduced from a computer system will afford evidence in relation to the offences being investigated.” According to the appellant, after defining the scope of the search, the categories of evidence constructively permitted the searching officers to search any file from any computer device found in the residence.

[16] On appeal, the findings of the reviewing judge’s assessment of the record are entitled to deference in a s. 8 Charter application. Absent an error of law, misapprehension of evidence, or failure to consider relevant evidence, an appellate court should decline to interfere with the reviewing judge’s decision: R. v. Sadikov, 2014 ONCA 72, para 89.

[17] In this case, the trial judge considered and rejected the argument that the warrant was overbroad.

[18] The trial judge found that, considering the totality of the circumstances, there were reasonable grounds to believe that evidence of the offences would be found within the accused’s residence on one or more of his digital devices. He added:

One can hardly take issue with the desire on the part of investigators to be able to establish, through evidence, that the accused was in fact the primary owner and user of the subject devices when the impugned communications took place. As in any criminal investigation, a central concern would have been the ability to identify the offender to the requisite standard. The police cannot be unnecessarily hamstrung in their efforts to prove this central and essential ingredient of a prosecution.

[19] In R. v. Vu, 2013 SCC 60, the Supreme Court confirmed that specific limiting language in a warrant is not required. The Supreme Court explained that while reasonable limits to a search are required, such limits do not require that the warrant prescribe a search protocol with conditions that limit the manner of search. Further, in R. v. Jones, 2011 ONCA 632, paras 34, 43-44, this court confirmed that limiting a search by setting out types of evidence sought and the crimes to which the evidence relates, will be sufficient to meet the s. 8 reasonableness standard.

[20] The trial judge found that the issuing justice understood that the scope of the examination would be limited to evidence specific to the substance of the offences as well as evidence of ownership, access and control and that this did not constitute a breach of s. 8. The trial judge’s reasoning was consistent with Vu and Jones and there is no basis to interfere with his conclusions.

[21] Accordingly, we rejected this ground of appeal and dismissed the conviction appeal.

A s. 161 order was available to the sentencing judge

[22] The sentence appeal is focused on the availability of an order under s. 161 of the Criminal Code. Section 161 provides:

161 (1) When an offender is convicted, or is discharged on the conditions prescribed in a probation order under section 730, of an offence referred to in subsection (1.1) in respect of a person who is under the age of 16 years, the court that sentences the offender or directs that the accused be discharged, as the case may be, in addition to any other punishment that may be imposed for that offence or any other condition prescribed in the order of discharge, shall consider making and may make, subject to the conditions or exemptions that the court directs, an order prohibiting the offender from [Listed prohibitions omitted. Emphasis added.]

[23] The appellant argues that the reference to “a person who is under the age of 16 years” limits the scope of s. 161 to situations where an actual child has been the subject of criminal conduct under one of the listed prohibitions. According to the appellant, as no child was the victim of his conduct (since his communications were with an undercover officer posing as a child), no order under s. 161 was available to the sentencing judge.

[24] The appellant contrasts the language of s. 161 with the description of the child luring offence under s. 172.2(1) which refers both to a person who is under 18 years of age, or a person who the offender believes is under 18. Section 172.2(1) states:

172.2 (1) Every person commits an offence who, by a means of telecommunication, agrees with a person, or makes an arrangement with a person, to commit an offence
(a) 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) with respect to another person who is, or who the accused believes is, under the age of 18 years;
(b) under section 151 or 152, subsection 160(3) or 173(2) or section 271, 272, 273 or 280 with respect to another person who is, or who the accused believes is, under the age of 16 years; or
(c) under section 281 with respect to another person who is, or who the accused believes is, under the age of 14 years. [Emphasis added.]

[25] According to the appellant, Parliament intended an order pursuant to s. 161 only to apply in situations where an actual child was present in the commission of the offence rather than an undercover officer. Had Parliament intended such orders to apply where undercover officers are involved, the appellant contends that it would have amended s. 161 to include “or who the offender believed” language.

[26] The Crown highlights that the Supreme Court in R. v. K.R.J., 2016 SCC 31, paras 44-48, and this Court in R. v. J.D., 2021 ONCA 376, para 58, leave to appeal refused, [2021] S.C.C.A. No. 297, affirmed that the objective of s. 161 orders is to protect children from individuals who have committed child sex offences and give courts tools to prevent those posing a risk to children from having access to them. The Crown argues that the appellant’s interpretation of s. 161 cannot be reconciled with the protective purpose of s. 161.

[27] The Crown further relies on the analysis undertaken by Stribopoulos J. (then of the Ontario Court of Justice) in R. v. Barnes, 2018 ONCJ 302, para 82, interpreting s. 161. In Barnes, Stribopoulos J. explained that interpreting "a person who is under the age of 16 years" as requiring an actual child would insert an arbitrary distinction into the legislative scheme governing the availability of s. 161 orders: although offenders who commit a listed offence involving an actual child could be subject to a prohibition order, other offenders who may pose a similar or even greater risk to children, would not be. Arbitrarily excluding some offenders would be at odds with the protective and preventative purpose of s. 161.

[28] The sentencing judge rejected the appellant’s argument in his reasons, explaining:

I agree with the Crown’s submission on this, and what some of the cases have found, that a purposive interpretation of the legislation is proper, and that contemporary statutory interpretation would invite extending the protective goal of Section 161 to cases involving police filling the place of young children. So, notwithstanding there not being a young child involved, that the Section is properly invoked. I am satisfied that the offending for which the Accused has been found guilty does support a finding that he poses some future risk to teenage and/or pubescent girls, and, therefore, the Order is properly put in place to minimize that risk. The Order will be for a period of eight years.

[29] I agree with the sentencing judge that s. 161, properly interpreted, was available to him.

[30] The sentencing judge adopted the interpretive approach Stribopoulos J. set out in the following passage in Barnes, at para. 82:

In summary, understood in isolation, the plain meaning of the words “a person who is under the age of 16 years” suggests an interpretation that does not reach situations where an offender commits an offence listed in subsection (1.1) by communicating with an undercover police officer posing as a child. But plain meaning alone is not decisive. Read as required by the modern approach, in context, remembering the purpose of section 161, supports an interpretation that makes a prohibition order available to a sentencing judge where an offender commits a listed offence believing that their interlocutor was “a person under the age of 16 years.” Importantly, this interpretation best achieves a harmonious reading of the whole of section 161. Accordingly, this is the correct interpretation.

[31] This interpretation of s. 161 also is consistent with s. 12 of the Interpretation Act, RSC 1985, c I-21, which provides: “Every enactment is deemed remedial, and shall be given such fair, large and liberation construction and interpretation as best ensures the attainment of its objects.” The object of s. 161 is to protect children, and the interpretation set out in Barnes best ensures the attainment of that object.

[32] In M.K. v. R., 2010 NBCA 71, para 28, Robertson J.A. made a similar point in rejecting a similar argument from the appellant in the case before him involving a conviction for possession of child pornography, at para. 28:

I find no justiciable reason to read down s. 161 so as to perpetuate the understanding that the section only applies if there is an actual victim. True, all of the offences listed in s. 161, other than s. 163.1, involve an actual victim. The fact remains that Parliament chose to make s. 161 apply also to the offence of possessing child pornography. Furthermore, Parliament decided that child pornography would include both photographic and digital images of actual children, and pornographic drawings or illustrations of children. It matters not how the images came into existence; what matters is that the images exist and that they come within the definition of child pornography set out in s. 163.1(1). With great respect, the appellant has not laid the foundation for an interpretative argument that warrants further consideration.

[33] While neither Robertson J.A. in M.K. or Stribopoulos J. in Barnes addressed the wording of the offences in s. 172.2 of the Criminal Code, I see no basis in the wording of the child luring offence that would lead to a different conclusion on the availability of s. 161 orders for those convicted of this offence (whether based on a victim who was a child or an undercover police officer who the offender believed to be a child). Indeed, the fact that the wording of s. 172.2 expressly includes a person who engages in the prohibited activity with someone they believe to be a child, and that this offence is listed as one of the offences to which a s. 161 order may apply, reinforces that s. 161 is available in these circumstances.

[34] Section 161 comes into play when someone is convicted of one of the listed offences and is found by a sentencing judge to pose an ongoing and/or future risk to children. This is a finding the sentencing judge clearly made in the context of the appellant.

[35] I see no error in the sentencing judge’s analysis of the availability of s. 161, or in the actual order made in relation to the appellant.

Disposition

[36] It is for these reasons that we dismissed the conviction appeal. I would grant leave to appeal sentence and dismiss the sentence appeal for the reasons set out above.

Released: May 7, 2025

“G.T.T.”
“L. Sossin J.A.”
“I agree. Gary Trotter J.A.”
“I agree. M. Rahman J.A.”

[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.