Ontario Court of Justice
Date: October 24, 2025
Court File No.: 24-82300969
Publication Ban: Section 486.4
Parties
Between:
His Majesty the King
— And —
M.L.
Before
Justice Angela L. McLeod
Trial Dates: September 23, 2025, and October 20, 2025
Counsel
For the Crown: Katherine Cinerai
For the Accused: Lenny Hochberg
Judgment
McLeod J.:
Overview
[1] M.L. and E.L. (unrelated and not the same last names) were neighbours whose families lived across the street from one another. At the time in question, May 2022 – October 2023, he was 30-31 years old and she was 13-14 years of age.
[2] She had lived there since she was 2 years of age and M.L. had watched her grow up. She lived with her parents and two younger sisters, until her parents divorced, and her father moved away in June 2022. She did not remember a time when M.L. was not her neighbour.
[3] M.L. had some puppies and the three sisters had gone across the street to play with the dogs at some point shortly before the incidents in question.
[4] On May 22, 2022, M.L. commenced a series of messages to E.L. via Facebook Messenger.
[5] The parties agree that while it may be inappropriate for a 30-year-old male to message a young teenage girl, it is nonetheless not illegal.
The Offence of Child Luring – The Law
[6] The Criminal Code categorizes the offence as one which tends to corrupt morals. The section reads as follows:
172.1(1) Luring a child
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.
[7] It is conceded that E.L. was at the requisite times under the age of 16 years; and, that M.L. communicated with her by a means of telecommunication. The act of messaging the child is not the legal concern; the content and purpose of the messaging is.
[8] The Crown asks this court to find the accused guilty of the offence of child luring based on a finding that the accused communicated with a child under the age of 16 years for the purpose of facilitating an offence under either/both ss. 271 (sexual assault) and 280 (abduction).
The Messages
[9] The entirety of the message exchange is replicated below. Left column contains the messages sent by M.L.; the right by E.L.
May 22, 2022 at 21:30
| M.L. | E.L. |
|---|---|
| Heyy! If you ever want to come over and play with the puppies (puppy emoji, smiling face emoji). You are more than welcome!! |
June 7, 2022 at 18:54
| M.L. | E.L. |
|---|---|
| Hey | Hello |
| How's it going | Good how about you |
| That's good. I'm great thanks. Just out with the pups in the backyard atm. Then going to eat some dinner lol | Cool |
June 8, 2022 at 12:55
| M.L. | E.L. |
|---|---|
| M.L. unsent a message |
June 8, 2022 at 13:55
| M.L. | E.L. |
|---|---|
June 8, 2022 at 18:27
| M.L. | E.L. |
|---|---|
| Hey (smiling face emoji) | Hello |
| How's your night going? | |
| And I apologize for the random messages lol. Hope you don't mind (tongue sticking out face emoji) | It's going fine don't worry about the message |
| Right on. And okay cool (thumbs up emoji) |
June 12, 2022 at 13:37
| M.L. | E.L. |
|---|---|
| Heyy :) | Hello!! |
| How's it going beautiful :) ! | Good how about you |
| Nice. Yeah I'm good. Just painting atm | Cool what are you painting |
| My bedroom (Smiling face emoji) | |
| Cool | |
| Yeah it's almost done. So that's good | Yea |
| What are you up to today? | Nothing much just a movie day |
June 12, 2022 at 14:09
| M.L. | E.L. |
|---|---|
| Oh nice! | Yea |
| You don't seem very interested in talking (tongue sticking out emoji) I'll let you enjoy your day. Sorry for bothering you if I did. | |
| If you ever wanna chat. Msg me anytime (Smiling face emoji) |
June 12, 2022 at 20:39
| M.L. | E.L. |
|---|---|
| Ok (smiling face emoji) | |
| Let's hangout sometime (tongue sticking out face emoji) | |
| (enlarged shush emoji face and enlarged tongue sticking out, squinty eyes emoji) | |
| If you'd like too | I don't know |
| It's cool if you don't want to | |
| I just don't know | |
| Okay. No worries, if you decide you'd like too. Let me know :): | |
| (enlarged thumbs up emoji) | |
| Ok | |
| (enlarged smiley face emoji) | |
| (enlarged thumbs up emoji) |
January 31, 2023 at 12:27
| M.L. | E.L. |
|---|---|
| (you unsent a message (see review of evidence for explanation) ) |
February 1, 2023 at 00:01
| M.L. | E.L. |
|---|---|
| Hey : ) Did you message me lol? |
February 1, 2023 at 07:11
| M.L. | E.L. |
|---|---|
| No |
February 2, 2023 at 10:48
| M.L. | E.L. |
|---|---|
| Okay! | |
| (screen shot of their messages showing that she unsent a message) | |
| That's the only reason I ask lol | |
| But I didn't so | |
| Well it said you did. Hence why I asked…. | |
| Anyways. Ttyl | |
| (enlarged thumbs up) | |
| No we won't talk later | |
| Then don't message me | |
| Bye |
October 20, 2023 at 01:01
| M.L. | E.L. |
|---|---|
| Sorry for the random message. I just wanted to apologize for the misunderstanding a while back. | |
| Anyways have a good night! |
The Evidence of E.L.
[10] I will not refer to all of her evidence, but summarize the salient points as follows:
(1) M.L. initiated the messaging.
(2) She thought it was casual.
(3) Her bedtime was close to 10pm.
(4) She, her sisters and occasionally her mom had visited the puppies now and then.
(5) He called her beautiful for the first time in the messages.
(6) It was not normal for him to ask her to chat.
(7) He was not someone that she confided in.
(8) The tongue sticking out emoji and shush emoji made her feel uncomfortable and she thought it was weird. She interpreted it to mean not to tell anyone. She knew that she needed to tell her mom.
(9) When she messaged that she didn't know about hanging out, she meant that it was not a good idea, that the age gap between them was wrong and that "everything about the whole idea is disgusting".
(10) They had never hung out and had never been alone together.
(11) She unsent an automated birthday notification message to him.
(12) Her mom had gone to speak to him about the messages in February 2023 (confirmed by the evidence of her mom). After that the only communication between them was if they happened to both be outside at the same time and would smile or nod their heads.
(13) She blocked him between February and October 2023. She unblocked him when her mom told her it "was all cool and it wasn't going to happen again".
[11] M.L. did not testify nor call any evidence that requires review.
Child Luring – Case Law
[12] I adopt and replicate below the very thorough, written submissions of Crown counsel:
• Bill C-15A c. 13 s. 8 created the offence of child luring; it was assented to on June 4, 2002. Parliament criminalized child exploitation via the internet. Further, the new offence modernized and expanded the Criminal Code to keep in line with the new and expanding forms of communication over the internet. Its aim is to prevent nefarious activities that exploit children and combat the very real threat posed by adult predators who attempt to groom or lure children. Of particular concern was the predatory nature of would-be assailants to lure children off the internet to engage in either sexually exploitive behaviours or other criminal behaviours. Parliament was alive to the role that the internet played in child exploitation and swiftly criminalized this sort of conduct. It criminalized the mere act of communicating with a child for the purpose of committing an offence, regardless of the intention to commit the predicate offence.
See House of Commons Debates, 37th Parl., 1st Sess., Vol 137, No 097 (Oct. 18, 2001), pp 6312-6317;
See also Debates of Senate, 37th Parl., 1st Sess., Vol 139, No. 66 (Nov 1, 2001), p 1609.
R. v. Bertrand-Marchand, 2023 SCC 26, at para 8.
R. v. Morrison, 2019 SCC 15, at para 39.
• Since the enactment of the offence, various appellate and trial courts have defined child luring offences in an age of technology that opens the doors to accessing vulnerable children as an offence that is intended to close the "cyberspace door before the predator gets in to prey". Accordingly, s. 172.1(1) casts, and in fact was intended to cast, a wide net of potential liability for those who lure children in a virtual environment.
R. v. Legare, 2009 SCC 56, [2009] 3 SCR 551.
R. v. Bertrand-Marchand, supra, at para 10.
• Children are particularly vulnerable in online settings, and the world of online communications between adults and children warrants special regulation. Therefore, child luring helps to keep children safe from online predators. Its very purpose is remedial and preventative.
R. v. Bertrand-Marchand, supra, at paras 7-8.
• It is an inchoate preparatory offence, designed to catch sexual predators before they act, not after. It protects potential child victims by allowing the criminal law to intervene before the harm caused by the commission of the secondary offences occur. Therefore, there is no requirement that the accused meet or even intend to meet with the other person with a view to committing any of the designated offences. Criminal liability "crystallizes" before any actions that form the predicate offences are taken.
R. v. Legare, supra, at paras 25 and 34.
R. v. Morrison, supra, at para 40.
R. v. Cooper, 2016 ONSC 6384, at para. 39.
R. v. Bertrand-Marchand, supra, at para 11.
• Section 172.1(1)(b) makes it illegal to engage in communications with a person under the age of 18 for the purpose of facilitating the commission of an offence. In R. v. Legare, supra, at para 28, the SCC defined "facilitating" in the following way: "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.
• This offence produces its own distinct form of wrongfulness and harm. Parliament, by creating luring to be its own offence, signaled that the communications themselves constitute and generate their own distinct harm, separate and apart from those caught in the predicate offences. This is because courts have recognized that the communications can constitute a form of psychological sexual violence that has the potential to cause serious harm on their own. This harm also can extend beyond the victim and destroy trust in friends, family, social institutions and can cause children to shut their parents out.
R. v. Bertrand-Marchand, supra, at paras 12, 37-39, and 41.
• In R. v. Bertrand-Marchand, the Court distinguished the harm in a standalone luring case between contact-driven and entirely online sexual abuse.
R. v. Bertrand-Marchand, supra, at para 43.
• The elements of the offence must be determined using a purposive rather than a compartmentalized approach. In R. v. Legare, supra, the SCC articulated that the intention of Parliament is to "shut that door on predatory adults who, generally, for a sexual purpose, troll the internet for vulnerable children and adolescents". They further cited that strict adherence to the essential elements of the offence is undesirable as it "may well introduce an element of confusion in respect of both concepts". Instead, [w]hat matters, I repeat, is whether the evidence as a whole establishes beyond a reasonable doubt that the accused communicated by computer with an underage victim for the purpose of facilitating the commission of a specified secondary offence with respect to that victim.
R. v. Legare, supra, at para 2, 29, and 42.
• While many cases may involve multiple communications over a period of time, the offence of luring does not require sustained or continuous contact, often described as grooming. In fact, a single message can constitute the offence if the other elements of the offence are satisfied. Further, where initial communications to an actual child are seemingly benign, they still create a risk of harm to the child as they are aimed at gaining the child's trust while reducing their inhibitions, exploiting their curiosity, immaturity, or precocious sexuality. It is this conduct that causes the harm, or the significant risk of harm.
R. v. Bertrand-Marchand, supra, at para 13.
R. v. Fox, 2023 ONCA 674, at paras 41 and 44.
• Sexually explicit language is not an essential element. While sexually explicit comments may suffice to establish the criminal purpose of the accused, the content of the communication is not necessarily determinative; it is the evidence as a whole. In R. v. Legare, supra, the SCC recognized that "those who use their computers to lure children for sexual purposes often groom them online by first gaining their trust through conversations about their home life, their personal interests or other innocuous topics".
R. v. Legare, supra, at paras 29 and 32.
• With respect to the mens rea element of this offence, in R. v. Fox, supra, the court clarified that the ruling in R. v. Morrison, supra, only applies with respect to the mens rea relating to fictitious children (or children of an unknown or unprovable age). Where the Crown can prove that the accused communicated with a real child, recklessness also satisfies the mens rea for age. However, the mens rea is one of subjective intent.
R. v. Fox, supra, at paras 15-18, and para 47.
• In the context of determining whether a section 161 order was appropriate for an attempt abduction offence, the Court in R. v. Balasooriyan, 2025 ONCJ 68 held at para 25 that The offence of abduction, s. 281, is captured as an enumerated offence under section 161(1.1)(a). The offence does not require a sexual element. Parliament intended to extend the punishment to more than sexual offences, distinguishing categories of offences into sections a, b, c and d. The punishment is anchored in the protection of children and the mitigation of risk thereto. Section 281 is specific to the abduction of someone under the age of 16 years; a child.
• Given the "inchoate" nature of the offence of child luring, the Crown is not required to prove that an accused, at the time of the telecommunication, intended to commit or even attempted or were attempting to commit an enumerated offence (or that the accused was even capable of bringing such a purpose to fruition). Furthermore, it is not necessary that an accused believed a child would immediately respond positively to the accused's invitation or request at the time of the telecommunication. Rather, the Crown must prove that the accused possessed the intention to make easier the potential future commission of an enumerated offence.
R. v. Bowers, 2022 ONCA 852, at para 17.
• The term "luring" is often viewed as too restrictive and unduly narrows the scope of the language used by Parliament. It was more broadly intended to protect children from all persons who use telecommunications in any manner for the purpose of "making easier" an enumerated offence in the future – however far off or unlikely.
R. v. Legare, 2008 ABCA 138 at para 63; R. v. Legare, 2009 SCC 56 at para 29.
• One such way of helping bring about or make easier or more probably an enumerated offence is via "grooming". "Grooming" is also inherent in a child luring offence. This is the process of trust building that forges a relationship with a child to gain trust, compliance, and secrecy. Grooming involves rapport building, incentivization, and disinhibition. It is a slow and gradual process but need not result in the sexual act to be considered harmful.
R. v. Bertrand-Marchand, supra, at paras 51-53.
R. v. McSween, 2020 ONCA 343, at para 104-107.
R. v. W.W., 2025 ONCA 115, at para 46.
• Joking is irrelevant and may very well be a method of normalizing adult-child sexual relationships. It may be a tool of grooming, allowing a testing of the waters. Further, flirting or engaging in a flirtatious conduct between an adult-child relationship can be considering part of the arsenal of tools used to groom children. Simply put, adults do not flirt with children innocently.
R. v. McSween, supra, at para 104-107.
R. v. W.W., supra, at para. 76.
Interpreting Emojis
[13] Mr. Hochberg submits that the court cannot take judicial notice of what the emojis mean and instead would need expert evidence to make a factual finding.
[14] The messages included the following emojis:
(1) Smiley face
(2) Smiley face, tongue sticking out
(3) Smiley face, tongue sticking out squinting eyes
(4) Smiley face, squinting eyes
(5) Smiley face, eyes closed
(6) Smiley face, shush finger to mouth
(7) Thumbs up
(8) Dog face
[15] Words, phrases and emojis can have different meanings and uses depending upon the speaker, listener, writer and reader. Context informs meaning.
[16] As noted in R. v. Heywood, 1994 3 S.C.R. 761:
31 When a statutory provision is to be interpreted the word or words in question should be considered in the context in which they are used and read in a manner which is consistent with the purpose of the provision and the intention of the legislature: Elmer A. Driedger, Construction of Statutes, 2nd ed., at p. 87; R. v. Hasselwander, [1993] 2 S.C.R. 398. If the ordinary meaning of the words is consistent with the context in which the words are used and with the object of the Act, then that is the interpretation which should govern.
93 My suggestion that the meaning of loiter will vary according to the specific statutory context is merely an illustration of a caveat to the general rule that words be given their ordinary meaning. Pierre-André Côté expressed this caveat in The Interpretation of Legislation in Canada, 2nd ed., at p. 221, citing Laskin C.J.C., in Peel (Regional Municipality) v. Viking Houses, [1979] 2 S.C.R. 1134, at p. 1145, in the following terms:
The need to determine the word's meaning within the context of the statute remains. Dictionaries provide meanings for a number of standard and recurring situations. Even the best of them will only tersely indicate the context in which a particular meaning is used. The range of meanings in a dictionary is necessarily limited. It cannot be sufficiently repeated "how much context and purpose relate to meaning".
[17] As noted in R. v. 2747-3174 Quebec Inc. c. Quebec (Regis des permis d'alcool), 1996 Carswell Que 965 SCC:
153 … It should not be forgotten that research in semantics has shown that words only take on their real meaning when placed in context. The meaning of words and sentences is crystallized by the context, and in particular by the purpose of the message. Any interpretation that divorces legal expression from the context of its enactment may produce absurd results. [Emphasis added.]
[18] As noted in R. v. Manrique c. R., 2020 QCCA 1170:
19… As a result, it is also clear that these words and concepts do not bear one consistent and coherent meaning but many meanings that vary with the context in which they are relevant.
[19] As noted in Kane v. Church of Jesus Christ Christian-Aryan Nations, 1992 Carswell Alta 928, Alberta Board of Inquiry:
65 Of course, the meaning of any sign or symbol is affected by the context in which it is found. Therefore, we also reviewed the events surrounding the display of the various symbols and sign. We considered the extensive evidence presented to us under four main headings: the Aryan Fest itself; the display of symbols and sign at the Aryan Fest; the reaction to the symbols and sign by the townspeople and Complainants; and the assessment of the symbols and sign by the expert witnesses.
285 The meaning of a particular sign or symbol may change through time and is partly determined by the context in which it is found.
[20] As noted in Brampton (City) v. Robinson, 2017 ONCJ 567:
80 … Moreover, Justice Keyser had reasoned that the term "U-turn" is itself a figurative expression and that the meaning of any symbol on a traffic sign, whether verbal or other, cannot be ascertained in isolation from the context of its use
[21] As noted in Irwin Toy, 1 S.C.R. 927 at p. 968:
'Expression' has both a content and a form, and the two can be inextricably connected. Activity is expressive if it attempts to convey meaning. That meaning is its content.
[22] I conclude that the meaning of words, symbols and thus emojis, can be ascertained by the context in which they are utilized.
Judicial Notice
[23] In R. v. Spence, 2005 SCC 71, the Supreme Court of Canada reviewed judicial notice:
53 Still less can it be said that such favouritism satisfies the more stringent test of judicial notice adopted by this Court in Find, at para. 48, per McLachlin C.J.:
Judicial notice dispenses with the need for proof of facts that are clearly uncontroversial or beyond reasonable dispute. Facts judicially noticed are not proved by evidence under oath. Nor are they tested by cross-examination. Therefore, the threshold for judicial notice is strict: a court may properly take judicial notice of facts that are either: (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy.
56 It could be argued that the requirements of judicial notice accepted in Find should be relaxed in relation to such matters as laying a factual basis for the exercise of a discretion to permit challenges for cause. These are matters difficult to prove, and they do not strictly relate to the adjudication of guilt or innocence, but rather to the framework within which that adjudication is to take place. Such non-adjudicative facts are now generally called "social facts" when they relate to the fact-finding process and "legislative facts" in relation to legislation or judicial policy. Juror partiality is a question of fact, and what the African Canadian Legal Clinic invites us to do is to take judicial notice of the "social facts" of different aspects of racism.
57 "Social fact" evidence has been defined as social science research that is used to construct a frame of reference or background context for deciding factual issues crucial to the resolution of a particular case: see, e.g., C. L'Heureux-Dubé "Re-examining the Doctrine of Judicial Notice in the Family Law Context" (1994), 26 Ottawa L. Rev. 551, at p. 556. As with their better known "legislative fact" cousins, "social facts" are general. They are not specific to the circumstances of a particular case, but if properly linked to the adjudicative facts, they help to explain aspects of the evidence. Examples are the Court's acceptance of the "battered wife syndrome" to explain the wife's conduct in R. v. Lavallee, [1990] 1 S.C.R. 852 (S.C.C.), or the effect of the "feminization of poverty" judicially noticed in Moge v. Moge, [1992] 3 S.C.R. 813 (S.C.C.), at p. 853, and of the systemic or background factors that have contributed to the difficulties faced by aboriginal people in both the criminal justice system and throughout society at large in R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207 (S.C.C.), at para. 53, and in R. v. Gladue, [1999] 1 S.C.R. 688 (S.C.C.), at para. 83.
58 No doubt there is a useful distinction between adjudicative facts (the where, when and why of what the accused is alleged to have done) and "social facts" and "legislative facts" which have relevance to the reasoning process and may involve broad considerations of policy: Paciocco and Stuesser, at p. 286. However, simply categorizing an issue as "social fact" or "legislative fact" does not license the court to put aside the need to examine the trustworthiness of the "facts" sought to be judicially noticed. Nor are counsel encouraged to bootleg "evidence in the guise of authorities": Public School Boards' Assn. (Alberta) v. Alberta (Attorney General), [1999] 3 S.C.R. 845 (S.C.C.), at para. 3.
61 To put it another way, the closer the fact approaches the dispositive issue, the more the court ought to insist on compliance with the stricter Morgan criteria. Thus in Find, the Court's consideration of alleged juror bias arising out of the repellant nature of the offences against the accused did not relate to the issue of guilt or innocence, and was not "adjudicative" fact in that sense, but nevertheless the Court insisted on compliance with the Morgan criteria because of the centrality of the issue, which was hotly disputed, to the disposition of the appeal. While some learned commentators seek to limit the Morgan criteria to adjudicative fact (see, e.g., Paciocco and Stuesser, at p. 286; McCormick, at p. 316), I believe the Court's decision in Find takes a firmer line. I believe a review of our jurisprudence suggests that the Court will start with the Morgan criteria, whatever may be the type of "fact" that is sought to be judicially noticed. The Morgan criteria represent the gold standard and, if satisfied, the "fact" will be judicially noticed, and that is the end of the matter.
62 If the Morgan criteria are not satisfied, and the fact is "adjudicative" in nature, the fact will not be judicially recognized, and that too is the end of the matter.
65 When asked to take judicial notice of matters falling between the high end already discussed where the Morgan criteria will be insisted upon, and the low end of background facts where the court will likely proceed (consciously or unconsciously) on the basis that the matter is beyond serious controversy, I believe a court ought to ask itself whether such "fact" would be accepted by reasonable people who have taken the trouble to inform themselves on the topic as not being the subject of reasonable dispute for the particular purpose for which it is to be used, keeping in mind that the need for reliability and trustworthiness increases directly with the centrality of the "fact" to the disposition of the controversy…
69 I accept that, as Finlayson J.A. pointed out in Koh, sometimes expert testimony is hard to come by and may in any event be beyond the resources of the particular litigants. As will be seen, I think such considerations in the context of challenges for cause are better addressed as part of the court's concern for trial fairness and the necessary perception of fairness, rather than being allowed to dilute the principled exercise of judicial notice.
[24] Emojis are sometimes used to emphasize written language, sometimes to replace written language and indeed in today's online communication have in fact become a language. Entire 'sentences' can be written, and understood, with the usage of emojis alone. This is a social fact. One that this court takes judicial notice of.
[25] Emoji usage is pervasive, cross cultural and multi-generational. Some replicate established universal symbols and their meaning for which judicial notice is applicable. For example, giving a 'thumbs up' whether physically or via an emoji is commonly understood to mean 'ok', or to give approval.
[26] The question in the matter before this court is whether or not the shush emoji and the tongue sticking out emoji are universal symbols or whether they meet the Morgan criteria, such that judicial notice can be taken as to their meaning.
[27] I find that the shush emoji, a face with an index finger placed over the mouth, is so notorious or generally accepted as not to be the subject of debate among reasonable persons. It is a universal symbol to be quiet or to not tell. I take judicial notice of this fact.
[28] I find that the tongue stuck out emoji, a face with the tongue extended beyond the lips is a universal symbol for playfulness, silliness, joking around and or alternatively used for flirtation or sexual inuendo. I take judicial notice of this fact.
Contextual Analysis of the Messages and Determination of Their Meaning
[29] The messages take place over an approximate 17-month period. There is a lengthy gap of 8 ½ months between the second last and last message from M.L., thus the bulk of the messages are exchanged over approximately 8 ½ months.
[30] The initial message is seemingly innocuous, inviting E.L. to play with the puppies, building upon the existing neighbour relationship and past activity. E.L. does not respond.
[31] A few weeks pass and M.L. again initiates contact. Again, the puppies are the subject of the exchange, again building upon the existing neighbour relationship and past activity.
[32] A day later M.L. initiates contact. I find that he is testing the waters, so to speak, checking to see whether he can continue in the contact by writing "and I apologize for the random message lol. I hope you don't mind". The first tongue sticking out emoji is presented. As noted above, the emoji is used to express playfulness, joking around or for flirtation or sexual inuendo. I find, in the context of the messages, that M.L. is ramping up the tone of the exchanges, using the tongue sticking out emoji for playfulness, but also testing the waters for flirtation.
[33] Four days later M.L. again initiates contact. I find that he is testing the waters again, asking "How's it going beautiful!" I find that his is ramping up the tone of the exchanges and is now flirting. Once E.L. responds and doesn't repute his compliment /flirtation, he pushes forward telling E.L. that he is painting his bedroom and adds a smiley face. I find that this is intended to flirt, to open the conversation, to entice E.L., perhaps hoping that she will want to see the painting, to come to his bedroom. At the very least, I find that he was attempting to lower her inhibitions.
[34] When she responds simply "cool", he writes later in the same day, "you don't seem very interested in talking (tongue sticking out emoji) I'll let you enjoy your day. Sorry for bothering you if I did. If you ever wanna chat. Msg me anytime (smiley face emoji)". I find that he is again testing the waters, playing if you will, 'cat and mouse' game with E.L.
[35] When E.L. responds later by simply saying "ok", M.L. immediately ramps up the conversation writing "Let's hangout sometime (tongue sticking out emoji)", followed by enlarged shush emoji and tongue sticking out emoji. E.L. responds with "I don't know" and testified that this message was weird, uncomfortable and caused her to tell her mom.
[36] The game of 'cat and mouse' continues. E.L.'s mom talks to M.L. about the messages and the 8 ½ month gap in the messages occurs.
[37] M.L., despite the mom's conversation with him, attempts to reconnect and initiates the contact with one final and unanswered message in October 2023.
[38] When read as a whole, and in taking judicial notice of the use of the emojis, the only reasonable conclusion is that M.L. is grooming E.L. His communication was founded on an innocuous subject – the puppies, then ramped up to flattery, then mentioning the bedroom, flirtation via the tongue sticking out emoji, and most telling the suggestion that the two hang out and she keep that quiet.
[39] As noted in R. v. PES, 2018 MBCA 124:
Grooming and Predatory Behaviour
36 If proven, it is an aggravating factor that an offender groomed a person under the age of 18 for sexual at para 36; and R v. SJB, 2018 MBCA 62 (Man. C.A.) at para 26). The terms "grooming" or "predatory behaviour" are often used by courts in sexual exploitation cases. They are used as a description of conduct where "the perpetrator attempts to prepare the child victim for increasingly more intrusive sexual abuse" (R. v. G. (A.), 190 C.C.C. (3d) 508 (Ont. C.A.) at para 11). See also R. v. Storheim, 2014 MBQB 141 (Man. Q.B.) at paras 46-47, leave to appeal to Man CA refused, 2015 MBCA 14 (Man. C.A.).
[40] In Bertrand-Marchand, supra, the court notes that grooming can be seemingly innocuous, fleeting or may involve much more:
13 Many cases of luring involve multiple communications over a period of time, or what is sometimes described as "grooming". However, luring does not require sustained contact. When the other elements of the offence are satisfied, the offence can be committed even by sending one message.
51 Evidence of grooming may be present where child luring is made out. Grooming is a process which allows the offender to forge a close relationship with a victim to gain trust, compliance and secrecy for the purpose of eventually engaging in sexualization and abuse (Rayo, at para. 149). The jurisprudence has yet to identify a universal definition of grooming. Understandably, this is in large part due to the difficulties in determining where the process begins and ends, as well as the variety of behaviours that may be involved depending on the offender, the victim, and the context. Indeed, grooming can involve, but is not limited to "rapport building, incentivization, disinhibition, and security management" (I. A. Elliott, "A Self-Regulation Model of Sexual Grooming" (2017), 18 Trauma, Violence, & Abuse 83, at p. 88). It is "a slow and gradual process of active engagement and a desensitization of the child's inhibitions — with an increasing gain in power and control over the young person" (Rayo, at para. 139, quoting M. Ospina, C. Harstall and L. Dennett, Sexual Exploitation of Children and Youth Over the Internet: A Rapid Review of the Scientific Literature (2010), at p. 7).
52 Grooming often goes hand in hand with the common features of luring, namely a "prolonged, deliberate and careful cultivation of a young person with a view to engendering trust and intimacy, all designed to promote sexual conduct between the two parties" (Paradee, at para. 20). While often a preparatory process, grooming need not culminate in a sexual act to be harmful. Grooming allows an offender to gain power and control over the young person, which in turn may lead to distinct psychological harm. This harm exemplifies the vulnerability and exploitation of children facilitated by the internet that Parliament sought to protect against in enacting the luring offence (Rayo, at paras. 138-39; Reynard, at paras. 19-20; Alicandro, at para. 36; Legare, at para. 25).
53 The identification of grooming should be left to the fact-finder in each case. In assessing whether grooming is present, judges should focus on the character, content, and consequences of the messages, as well as whether the communication resulted in psychological manipulation of the child.
[41] E.L., despite her young age and inexperience in life, knew that the messages and the meaning behind those messages from M.L. were weird, uncomfortable and something that needed to be reported to her mother. It is not lost on this court that M.L. initiated contact and messaging with E.L. during an unsettled time in her household in the days and weeks when her parents were separating, and her father left the family home.
Conclusion
[42] It is conceded by the defence that:
(1) There was intentional communication via telecommunication;
(2) With a person that the accused knew to be under the age of 16 years.
[43] The only live issue in this trial was whether that communication was for a specific purpose to facilitate one of the designated offences listed in s. 172.1(1).
[44] I am satisfied, beyond a reasonable doubt, that it was. As such, a conviction will register against M.L.
Released: October 24, 2025
Signed: Justice Angela L. McLeod