CITATION: R v. Ghotra, 2016 ONSC 1324

COURT FILE NO.: CR 13/497

DATE: 20160224

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

GREGORY HENDRY, for the Respondent/Crown

Respondent

• and -

AKASH GHOTRA

ALAN D. GOLD and MELANIE WEBB, for the Applicant

Applicant

REASONS FOR JUDGMENT

ON CONSTITUTIONALITY OF SS. 172.1(3) and (4) of the

CRIMINAL CODE OF CANADA

DURNO J.

[1] The applicant is charged with internet luring of a child: that he, by means of a computer system, communicated with a person whom he believed was under the age of sixteen years for the purpose of committing[^1] the offence of sexual interference, contrary to s. 172.1 of the Criminal Code. As occurs in the majority of s. 172.1 prosecutions, Mr. Ghotra was communicating with an adult, Constable Hutchinson of the Peel Regional Police who represented herself to be 13 years old. If convicted, Mr. Ghotra faces a mandatory minimum sentence of one year in jail.

[2] Section 172.1, enacted in 2002, includes two procedural presumptions:

i) the presumption of age: the accused believed the other person[^2] was under the specified age, if it was represented to the accused that the other person was underage, in the absence of ‘evidence to the contrary’ (s. (3)); and

ii) the due diligence requirement: it is not a defence that the accused believed the other person was an adult[^3] unless he or she took ‘reasonable steps’ to ascertain the age of the other person: (s. (4)).

[3] The applicant submits both provisions violate ss. 7 and 11(d) of the Charter of Rights and Freedoms when the other person is an adult and the accused believes he or she was communicating with an adult. In regards to s. (3), the presumption substitutes a representation for proof of a guilty mind. In regards to s. (4), the accused could be convicted despite there being a reasonable doubt with respect to his or her belief about the other person’s age if the Crown establishes beyond a reasonable doubt that the accused did not take ‘reasonable steps’ to conclude the other person was an adult. Parliament cannot impose criminal liability with a one-year minimum sentence on a person who has an accurate exculpatory belief in the other person’s age.

[4] The Crown submits that appellate courts have upheld similarly worded procedural presumptions elsewhere in the Criminal Code. Mr. Hendry contends the offence is communicating to facilitate the underlying offence and is completed with that communication. Neither a meeting nor physical contact is required. Accordingly, the actual age of the other person is irrelevant.

[5] For the following reasons, the application is dismissed. Subsections (3) and (4) are constitutionally valid.

The Legislation

Criminal Code:

[6] Section 172.1 of the Criminal Code provides as follows:

172.1 (1) 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.

(2) Every person who commits an offence under subsection (1)

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or

(b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.

(3) Evidence that the person referred to in paragraph (1)(a), (b) or (c) was represented to the accused as being under the age of eighteen years, sixteen years or fourteen years, as the case may be, is, in the absence of ‘evidence to the contrary’, proof that the accused believed that the person was under that age.

(4) It is not a defence to a charge under paragraph (1)(a), (b) or (c) that the accused believed that the person referred to in that paragraph was at least eighteen years of age, sixteen years or fourteen years of age, as the case may be, unless the accused took ‘reasonable steps’ to ascertain the age of the person. [Emphasis added]

[7] The secondary offences are: s. 151 (sexual interference), s. 152 (invitation to sexual touching), s. 153(1) (sexual exploitation), s. 155 (incest), 160(3) (bestiality in the presence of a child), s. 163.1 (making, distributing, possessing or accessing child pornography), s. 170 (parent or guardian procuring sexual activity), s. 171 (householder permitting sexual activity), s. 173(2) (indecent exposure), s. 271 (sexual assault), s. 272 (sexual assault with a weapon), s. 273 (aggravated sexual assault), 279.011 (trafficking of a person under the age of eighteen), s. 279.02(2) (receiving a material benefit from trafficking), s. 279.03(2) (withholding or destroying documentation regarding human trafficking), s. 280 (abduction of a person under the age of sixteen), s. 281 (abduction of a person under fourteen), s. 286.1(2) (obtaining sexual services for consideration), s. 286.2(2) (receiving a material benefit from sexual services), and s. 286.3(2) (procuring).

The Charter of Rights and Freedoms

[8] The relevant sections of the Charter provide as follows:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

8. Any person charged with an offence has the right

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

The Law

Internet Luring

[9] The context of internet luring and the purpose of the legislation are an important first step in the constitutional analysis. As Fish J. noted in R. v. Levigne, 2010 SCC 25, [2010] 2 S.C.R. 3, s. 172.1 was enacted “to identify and apprehend predatory adults who, generally for illicit sexual purposes troll the Internet to attract and entice vulnerable children and adolescents”: at para. 24. The judgement continued:

25 In structuring the provision as it did, Parliament recognized that the anonymity of an assumed online profile acts as both a shield for the predator and a sword for the police. As a shield, because it permits predators to mask their true identities as they pursue their nefarious intentions; as a sword (or, perhaps more accurately, as a barbed weapon of law enforcement), because it permits investigators, posing as children, to cast their lines in Internet chat rooms, where lurking predators can be expected to take the bait - as the appellant did here.

[10] It must be kept in mind that “Our children are at once our most valued and most vulnerable assets”: R. v. D.D., (2002), 58 O.R. (3d) 788 (C.A.), at para. 35.

[11] The elements of internet luring are:

i. an intentional communication by computer,

ii. with a person who is underage or whom the accused believes to be underage, and

iii. for the purpose of facilitating the commission of a specified secondary offence with respect to an underage person.

See R. v. Legare, 2009 SCC 56, [2009] 3 S.C.R. 551, at para. 36.

[12] Section 172.1 focuses on the subjective intention of the accused at the time of the communication by computer: Legare, at para. 29 The Crown must establish beyond a reasonable doubt that the accused engaged in the prohibited communication with the specific intention of facilitating the commission of a designated offence with the underage person: Legare, at para. 32.

[13] “Facilitating” includes helping to bring about and making easier or more probable; for example, by luring or grooming the young person to commit or participate in the prohibited conduct by reducing their inhibitions, or by prurient discourse that exploits the young person’s curiosity, immaturity or precocious sexuality: Legare, at para. 28.

[14] In R. v. Alicandro (2009), 2009 ONCA 133, 95 O.R. (3d) 173, a case in which there was no Charter challenge to the legislation, the appellant was convicted of internet luring by communicating with a person he believed was underage for the purpose of facilitating the exposure of his genitals to the other person. He was communicating with an undercover police officer. On appeal, he contended that he could not be found guilty of the secondary offence because he could never expose his genitals to an under-aged person when the other person was an adult. The appeal was dismissed.

[15] Doherty J.A. found the luring sections targeted a specific kind of conduct, the communication by computer with a person who is or who is believed to be underage. While that conduct in itself was not criminal, it became criminal if accompanied by the intention to facilitate the commission of one of the designated offences - all crimes against young persons and all potentially involving the sexual exploitation of young people: Alicandro, at para. 19. The legislation criminalizes conduct that occurs on the way towards the commission of the designated offences. The justification for criminalizing the conduct is found in the required mens rea - the intention to facilitate the commission of one or more of the designated offences. That mens rea warrants the imposition of criminal sanctions: Alicandro, at para. 19-21.

[16] Alicandro’s submission was anchored in the defence of impossibility. Doherty J.A. found that reasoning had been rejected by the Supreme Court of Canada in United States of America v. Dynar, [1997] 2 S.C.R. 462 where the Court held that an accused could be convicted of conspiracy to launder money and laundering money when the funds were provided by the state in a sting operation. The majority held that on a charge of attempt or conspiracy, whether the offence was established had to be determined on the basis of the accused’s mens rea at the material time based on what he or she knew at that time. Doherty J.A. continued, at para. 26:

After Dynar, it can safely be said that liability for inchoate offences turns on what the accused believed the material facts to be and not what those facts actually were.⁵ Indeed, in response to a question from my colleague, Rosenberg J.A., counsel for the appellant acknowledged that the appellant could have been convicted of attempting to expose himself contrary to s. 173(2) had he been so charged.

[17] Given the nature of s. 172.1 and Dynar, that the accused’s inability to complete the offence he sought to facilitate should not provide a defence: Alicandro, at para. 27. There was a distinction between the elements of the completed offence of indecent exposure and the mental element the Crown must establish for internet luring. The former looked to what happened while the latter to what the accused believed could happen: Alicandro, at para. 32. No doubt the criminal purpose must be in relation to the other person but there was no requirement that the accused would be able to bring about his or her purpose. Purpose is a state of mind. Alicandro believed he was communicating with a person under the age of 14. It is that belief, not the actual age of the person that is relevant: Alicandro, at para. 33.

[18] In Levigne, where there was no constitutional challenge, the accused communicated by computer for a sexual purpose with an undercover officer posing as a 13-year-old boy. Levigne admitted at his trial that he had taken no steps to ascertain the other person’s real age and had been told that the other person was underage. The only issue at his trial and on appeals was whether Levigne believed the other person was underage

[19] The question on appeal was whether the trial judge was required to convict Levigne as a result of the combined effect of ss. (3) and (4) notwithstanding that he was left in a state of reasonable doubt as to whether Levigne knew the other person was under the age of 14. The Supreme Court of Canada held that he was.

[20] The Court held that to “enhance its effectiveness s. 172.1 was invested with a synergetic combination of four defining characteristics, two substantive and two procedural.” The first substantive component was the creation of an “incipient” or “inchoate” offence. Conduct preceding the sexual offence was criminalized. It was a preparatory crime capturing otherwise legal conduct meant to culminate in the commission of a completed sexual offence. The offender was not required to have met with, nor intended to meet with the other person intending to commit the specified secondary offence. Parliament intended to “close the cyberspace door before the predator gets in to prey” and to “foreclose successful claims of mistaken belief, absent an objective evidentiary basis:” at para. 35.

[21] Second, s. 172.1 made it an offence to communicate for a prohibited purpose with a person who was underage or who the accused believed was underage. Otherwise, sting operations like the ones that occurred in Levigne and in this case could not occur.

[22] Third, the first procedural characteristic is the s. (3) presumption of age and the second, the s. (4) requirement to take ‘reasonable steps’. Subsection (3) assisted the prosecution while leaving the burden on the Crown to establish guilt beyond a reasonable doubt. It helped the Crown establish the culpable belief while preserving the benefit of any reasonable doubt for the accused where the record includes “‘evidence to the contrary’.”

[23] ‘Evidence to the contrary’ is evidence that tends to show, but need not prove, that the accused believed the other person was over the proscribed age, notwithstanding the statutory presumption: Levigne, at para. 20.

[24] The combined effect of the two subsections results in the following, at para. 32:

1. Where it has been represented to the accused that the person with whom he or she is communicating by computer (the "interlocutor") is underage, the accused is presumed to have believed that the interlocutor was in fact underage;

2. This presumption is rebuttable: It will be displaced by ‘evidence to the contrary’, which must include evidence that the accused took steps to ascertain the real age of the interlocutor. Objectively considered, the steps taken must be reasonable in the circumstances;

3. The prosecution will fail where the accused took ‘reasonable steps’ to ascertain the age of his or her interlocutor and believed that the interlocutor was not underage. In this regard, the evidential burden is on the accused but the persuasive burden is on the Crown;

4. Such evidence will at once constitute "‘evidence to the contrary’" under s. 172.1(3) and satisfy the "‘reasonable steps’" requirement of s. 172.1(4); and

5. Where the evidential burden on the accused has been discharged, he or she must be acquitted if the trier of fact is left with a reasonable doubt whether the accused in fact believed that his or her interlocutor was not underage.

[25] Fish J. wrote that an “‘evidence to the contrary’” component did not impose an “ultimate” or “persuasive” burden of proof on the accused. The ‘evidence to the contrary’ must tend to show, but need not prove the contested fact. The explanatory evidence must have probative value but need not be so cogent as to persuade the court at (para. 85).

[26] The Court held that s. 172.1 criminalized otherwise lawful conduct when its specific purpose was to facilitate the commission of a specified secondary offence with respect to an underage person.

[27] Fish J. acknowledged that it seemed incongruous to convict on the basis that an offender failed to take ‘reasonable steps’ to determine the real age of the other person when the other person was an adult pretending to be a child and not a child pretending to be an adult but continued at para. 38:

But s. 172.1, I repeat, makes it an offence to communicate for the purpose prohibited by that section with a person whom the accused believes to be underage. That is in itself conduct deemed undesirable and criminalized by Parliament. It thus seems more incongruous still to acquit an accused who communicated for a prohibited sexual purpose with a person whom he believed to be underage -- the evil aimed at -- on the ground that he would not have made that mistake had he taken the ‘reasonable steps’ he was required by law to take. [Emphasis in original]

[28] In R. v. Dragos, 2012 ONCA 538, 110 O.R. (3d) 481, Cronk, J.A. found that s. (4) required an accused who claims mistake of age to have exercised a degree of care in ascertaining a complainant’s age that a reasonable person in the circumstances would have exercised: at para. 35.

[29] In R. v. Pengelley 2010 ONSC 5488, 261 C.C.C. (3d) 93, Dawson J. examined what would constitute ‘reasonable steps,’ finding the reasonableness of the steps had to be examined in context, relying on R. v. Thain 2009 ONCA 223, 243 C.C.C. (3d) 230, at para. 37. While the wording of s. 150.1 requires an accused to take all ‘reasonable steps’ to determine the age of the complainant in specific sexual offences, His Honour looked to the authorities under that section for assistance in determining what ‘reasonable steps’ meant in s. 172.1(4). However, he found the absence of the word “all” in s. 172.1(4) was significant. The requirement of ‘reasonable steps’ will be somewhat more easily satisfied than the all ‘reasonable steps’ requirement (at para. 11).

[30] Considering s. 150.1, Dawson J. concluded that the following “analogous factors” should be examined while keeping in mind the unusual context of the internet: the complainant’s appearance, what she or he said and did that reflected his or her age, the ages of the people he or she said that she associated with, the nature of the physical setting, such as a bar or nightclub that checks for identification, and the age difference between the complainant and the accused.

[31] From His Honour’s review of the case law, there appeared to be conflicting views as to whether ‘reasonable steps’ must include inquiries to be made or whether the accused can rely upon observations, comments or conduct without making any inquiries. For example, in R. v. Osborne (1992), 17 C.R. (4th) 350 (Nfld. C.A.), at para. 62 the Newfoundland Court of Appeal found “there must be some earnest inquiry or some other compelling factor that obviates the need for an inquiry.” In R. v. P.(L.T.) (1997), 113 C.C.C. (3d) 42 (B.C.C.A.), the British Columbia Court of Appeal found that it was not necessarily unreasonable to rely on a visual observation alone. The reasonableness of a failure to take further steps depends on all the circumstances known to the accused. Dawson J. found that generally speaking s. 150.1 jurisprudence required an accused to make something more than a casual inquiry.

[32] The Supreme Court of Canada, while not defining what would constitute ‘reasonable steps,’ found that Levigne’s efforts were neither reasonable, nor steps to ascertain the age of the other person. For example, his reliance on moderators who removed children from chat rooms did not address that his conversations occurred in a private chat room. That on the other person’s profile she was 18 when she repeatedly told him she was 13 was not reasonable steps. Both were circumstances which explained why he took no steps.[^4]

[33] From Levigne, it could be inferred that the accused must have taken active steps as opposed to relying on what amount to ‘evidence to the contrary’, evidence which would tend to show the other person was over the specified age but evidence that was not obtained by steps taken by the accused. The accused would not overcome the s. (4) presumption by taking no active steps. What steps need to be taken depends on the context, including what the accused knew at the time.

[34] However, in Dragos, the Court of Appeal for Ontario, in an internet luring case addressed the appellant’s submission that the trial judge had erroneously required active steps be taken. Cronk J.A. found:

63 I agree that the appellant was entitled to rely on E.B.'s representation of her age, when they first met on the internet chat room, as one indicator of E.B.'s age. I did not understand the Crown to argue otherwise. Nor do the trial judge's reasons suggest to the contrary.

64 I also agree that the appellant was entitled to rely on E.B.'s other actions in aid of her effort to appear 14 years of age (for example, her statement that she was in Grade Nine; her use of sexually explicit language in her communications with the appellant; and her claim that she had dated "older guys").

65 However, that does not end the matter. The question is whether, on the totality of the circumstances, the appellant's actions to determine E.B.'s age were sufficient to meet the "‘reasonable steps’" standard established by s. 172.1(4) of the Code. The determination of this question required careful examination of all the circumstances surrounding the appellant's interactions with E.B. As I have already indicated, in my view, this is precisely the type of inquiry undertaken by the trial judge.

66 The trial judge concluded that further steps by the appellant were required to meet the reasonableness standard under s. 172.1(4) of the Code. I see no basis for interference with this conclusion. The full circumstances of this case, examined objectively, mandated further inquiry by the appellant regarding E.B.'s age. I have already described the multiple "red flags" suggesting that E.B.'s representation of her age may be unreliable and that she may have been untruthful regarding her age.

67 In particular, the warnings about E.B.'s age and potential police involvement received by the appellant from E.B.'s mother cried out for further steps by the appellant to ascertain E.B.'s true age. In the absence of those steps, on the facts here, the trial judge was fully justified in concluding that the appellant had failed to make out the defence of mistake of age regarding E.B. [page497]

[35] In R. v. Saliba, 2013 ONCA 660, at para. 2, the Court held in a s. 150.1 case:

There are circumstances in which a reasonable person would engage in sexual activity based exclusively on the appearance of the complainant without taking further steps to ascertain the complainant's age. The circumstances of this case are, however, far from that hypothetical. As the trial judge noted, Mr. Saliba was 38 years of age. On his evidence, he believed H. was eighteen. This belief was based exclusively on her profile on the website and on her appearance. Mr. Saliba engaged in sexual intercourse with H. on the very first time he met her without taking any further steps to determine her age.

[36] In Pengelley, Dawson J. found that the accused asking for a view of the officer on a web cam was a reasonable step. However, since it did not yield any reassurance as to the other person’s age, he did not rely on it in finding Pengelley had discharged his evidentiary onus. His Honour found Pengelley had taken ‘reasonable steps’ by asking for a photograph and being given one that showed an adult. He then asked for another photograph and was assured that the first photograph was true and accurate. That was enough to satisfy his evidentiary burden.

The Charter Considerations

[37] In R. v. Downey, [1992] 2 S.C.R. 10, the Court examined a presumption that where a person lived with or was habitually in the company of a prostitute was proof that they lived on the avails of prostitution in the absence of ‘evidence to the contrary.’ The Supreme Court of Canada summarized the law in relation to s. 7 and 11(d) as follows:

I. The presumption of innocence is infringed whenever the accused is liable to be convicted despite the existence of a reasonable doubt.

II. If by the provisions of a statutory presumption, an accused is required to establish, that is to say to prove or disprove, on a balance of probabilities either an element of an offence or an excuse, then it contravenes s. 11(d). Such a provision would permit a conviction in spite of a reasonable doubt.

III. Even if a rational connection exists between the established fact and the fact to be presumed, this would be insufficient to make valid a presumption requiring the accused to disprove an element of the offence.

IV. Legislation which substitutes proof of one element for proof of an essential element will not infringe the presumption of innocence if as a result of the proof of the substituted element, it would be unreasonable for the trier of fact not to be satisfied beyond a reasonable doubt of the existence of the other element. To put it another way, the statutory presumption will be valid if the proof of the substituted fact leads inexorably to the proof of the other. However, the statutory presumption will infringe s. 11(d) if it requires the trier of fact to convict in spite of a reasonable doubt.

V. A permissive assumption from which a trier of fact may but not must draw an inference of guilt will not infringe s. 11(d).

VI. A provision that might have been intended to play a minor role in providing relief from conviction will nonetheless contravene the Charter if the provision (such as the truth of a statement) must be established by the accused (see Keegstra, supra).

VII. It must of course be remembered that statutory presumptions which infringe s. 11(d) may still be justified pursuant to s. 1 of the Charter. (As for example in Keegstra, supra.)

[38] An enactment that removes the mens rea component of an offence or precludes the accused from reliance on the defence of mistake of fact violates the Charter. Section 146(1) of the Criminal Code prohibited sexual intercourse with a female person who was under the age of fourteen whether or not he believes that she is fourteen years of age or more. In R. v. Hess; R. v. Nguyen, [1990] 2 S.C.R. 906, [1990] S.C.J. No. 91 the Supreme Court found the section infringed s. 7 of the Charter because the presumption of statutory interpretation that a criminal offence punishable by imprisonment must have a mens rea component was elevated to a constitutionally mandated element of a criminal offence (at para. 9).

[39] The majority held at para. 13-14:

13 … The doctrine of mens rea reflects the conviction that a person should not be punished unless that person knew that he was committing the prohibited act or would have known that he was committing the prohibited act if, as Stroud put it, "he had given to his conduct, and to the circumstances, that degree of attention which the law requires, and which he is capable of giving".

14 Our commitment to the principle that those who did not intend to commit harm and who took all reasonable precautions to ensure that they did not commit an offence should not be imprisoned stems from an acute awareness that to imprison a "mentally innocent" person is to inflict a grave injury on that person's dignity and sense of worth. Where that person's beliefs and his actions leading up to the commission of the prohibited act are treated as completely irrelevant in the face of the state's pronouncement that he must automatically be incarcerated for having done the prohibited act, that person is treated as little more than a means to an end. That person is in essence told that because of an overriding social or moral objective he must lose his freedom even although he took all reasonable precautions to ensure that no offence was committed.

[40] In R. v. Morrison, 2014 ONCJ 673, the accused challenged the constitutionality of the two subsections at issue here. With respect to s. (3), Gage J. found the subsection “of no force and effect in this prosecution.” His Honour noted one peculiar feature of the presumption was that in the context of a sting operation, the legislation required that a deliberately false statement will constitute proof that an accused believed the statement to be true.

[41] While proof beyond a reasonable doubt of the accused’s belief was an element of the offence, an essential element cannot be established by statutory presumption unless there exists an “inexorable connection” between the fact that engages the presumption – the representation as to age – and the existence of the accused’s belief as to the other persons’ age.

[42] His Honour continued:

26 The idea that a representation as to age will necessarily be believed by the recipient strikes me as tenuous. In the context of the Internet, that notion is rendered even frailer. In the online world, the anonymity furnished by the Internet virtually ensures that much is not as it seems. Rightly or wrongly, pseudonyms and falsehoods are a pervasive part of online communication. Given this, it does not follow, in my view, that an online representation as to age would necessarily be believed by the person to whom it is made. It is therefore far from certain that even a rational or logical connection is established between the representation and the presumption of belief as to age, much less an inexorable connection.

27 A statutory presumption will be constitutionally objectionable if it requires the accused to disprove an element of the offence. While the insertion of the words "in the absence of ‘evidence to the contrary’" would seem to allow the evidence to dispel the presumption to come from any source, since the vital element in question is the state of mind of the accused, it is difficult to envision how the presumption can be dispelled without effectively compelling evidence from the accused. This objectionable aspect is compounded when the presumption is coupled with the "‘reasonable steps’" provision in subsection (4).

[43] With regards to s. 1 of the Charter His Honour wrote at para. 34:

The question of whether the provisions could be justified under section 1 was not argued. For purposes of this ruling I make the observation that in my view the inclusion of subsection (3) will not survive a "proportionality" analysis. The operation of subsection (4) on its own is sufficient to eliminate specious claims of innocent belief or ignorance. A representation as to age in the course of the communications in issue will impact the analysis of honest belief whether it is statutorily presumed to establish belief or not.

[44] With respect to s. (4), His Honour noted that in Levigne, the trial judge had a reasonable doubt whether Levigne knew the other person was underage and whether he was willfully blind or reckless in that regard. Notwithstanding those findings, the Supreme Court of Canada found that by virtue of the combined operation of ss. (3) and (4), the trial judge was bound to convict.

[45] Gage J. noted that the wording of that subsection mirrored “to a large extent the language used in s. 273.2(b) which provided that an honest belief in consent is not a defence to sexual assault where the accused did not take ‘reasonable steps’, in the circumstances known to him or her at the time, to ascertain that the complainant was consenting.” That ‘reasonable steps’ provision was found to be constitutionally valid.

[46] His Honour held:

19 The internet is a wide open, unrestricted and largely unregulated communications frontier. The offence of child luring, as described and enacted in section 172.1 does not seek to criminalize any communication with minors nor does it criminalize communication of a sexual nature. It does however proscribe communication with children that has as its purpose the facilitation of one of the enumerated criminal offences.

20 The effect of the insertion of the words "or who the accused believes is" in conjunction with provisions contained in subsection (4) is that communications that otherwise meet the definition will not be excused by a bald and unsupported assertion that the accused believed he was communicating with a person above the specified age⁷. In other words, the defence of innocent belief in legal age will not prevail unless such belief is "honest" in the sense that it is not shown to be willfully blind or reckless.

21 The effect of the provision does not reverse the burden of proof. Nor does it criminalize innocent behaviour. To the extent that it may impose a tactical burden on the accused it does so in relation to matters within his exclusive knowledge and control. I therefore conclude that the ‘reasonable steps’ provision found in subsection (4) of section 172.1 is not constitutionally offensive.

[47] After the trial judge found Morrison guilty, his counsel renewed their s. (4) application submitting the path by which Morrison was convicted demonstrated the constitutional infirmity of applying the ‘reasonable steps’ analysis in a context where the other person was an adult: see: R. v. Morrison, 2015 ONCJ 598.

[48] Morrison argued that there was no constitutional difficulty where the other person was underage but the offender believed otherwise, this applicant’s third scenario. The ‘reasonable steps’ requirement was properly used to “foreclose exculpatory claims of ignorance or mistake that are entirely devoid of an objective evidentiary basis.”

[49] Morrison argued that where the other person was an adult, as in all sting operations, and the Crown does not prove the impugned belief was present, there is no claim of ignorance or mistake to which the taking of ‘reasonable steps’ can be applied. Using the analogy of honest but mistaken belief in consent in sexual assault cases, the Crown must first prove the absence of consent. If the prosecution fails in doing so, whether the accused’s belief in consent was reasonably sustainable does not arise. Accordingly, for this offence, unless the Crown first proves the accused believed the other person was underage; s. (4) had no function.

[50] His Honour further outlined the applicant’s position as follows:

21 Put another way, the Applicant's argument is that where the operation of the presumption contained in subsection (3) is eliminated on constitutional grounds in the prosecution of a pure belief offence - actual interlocutor is of legal age - the interplay described by the Supreme Court of Canada in Levigne between subsection (3) and subsection (4) in the assessment of the "‘evidence to the contrary’" relied upon by the accused to rebut the presumption² does not occur and thereafter subsection (4) has no function in the pure belief context.

22 The Applicant submits this is so because if the Crown proves that the accused believed the interlocutor was underage the question of whether he or she took ‘reasonable steps’ to ascertain otherwise is irrelevant. On the other hand, if the Crown fails to prove that the accused held the requisite belief - as was the case here - the element of mistaken belief is absent and there is nothing left for the Court to assess against a reasonableness standard.

[51] His Honour clarified that he did not find Morrison believed he was dealing with an underage person. Rather, he concluded the Crown had failed to establish beyond a reasonable doubt Morrison believed he was dealing with someone underage. However, the Crown had established beyond a reasonable doubt that he had not taken reasonable steps to ascertain the other person’s age. Accordingly, the age based defence was not available pursuant to s. (4).

[52] It was wrong to characterize the conviction as holding that Morrison was guilty of negligently holding a correct belief. His Honour found the offender indifferent to whether he was dealing with an underage or legal age person, including telling the police that he did not know if she was underage or not. Throughout the many computer interactions he never appeared to care much one way or the other.

[53] His Honour continued:

29 The evil that Parliament sought to address with this section is the risk that vulnerable children would become the target of unrestrained and largely anonymous sexualized online communications with the pernicious goal of facilitating the commission of one of the enumerated sexual offences against them. Those who prey on children for their own sexual gratification find easy and ready access to their targets on the internet. The impugned provision (subsection (4)) aims to reduce the risk of children being victimized in this way by foreclosing exculpatory claims of ignorance or mistake that are entirely devoid of an objective evidentiary basis.

30 Notwithstanding the elimination of the presumption contained in subsection (3), the question raised by subsection (4) that must be addressed once the interlocutor presents as underage is whether the assertion by the accused that he believed he was dealing with someone above the prescribed age is reasonably held.

31 To the extent that the wording of the section needs to be understood in terms of a distinction between actus reus and mens rea I agree with the submission of the Crown that the actus reus crystallizes at the moment that there is a sexualized communication that facilitates one of the enumerated offences and the communicant (interlocutor) presents as underage. The mens rea is complete when the accused either forms the belief that the communicant is underage or continues the communication without taking ‘reasonable steps’ to ensure that he is not in fact communicating with a person who is underage. In my view, construed in this way, section 172.1(4) is constitutional.

32 The imposition of criminal liability for the failure to take ‘reasonable steps’ in circumstances where the accused has entered into a sexualized conversation by computer with an interlocutor whose age is unknown to him and not otherwise represented or confirmed to be above the prescribed minimum is a logical measure justified by the nature and context of internet communication and the social harm being addressed.

33 Where, as here, the conversation is continued in the face of clear assertions by the interlocutor that she is under the minimum age the argument that Parliament can impose criminal responsibility for the failure to exercise reasonable care in filtering the targets of sexual communication in a constitutionally palatable manner is clearer still.

34 While the inferential connection between an internet representation of age and a corresponding belief on the part of the recipient of the representation is not inexorable and therefore not sufficient to sustain the statutory presumption, where such representations exist and no steps are taken to reasonably assess the accuracy of the representation the justification to impose a statutory requirement to take reasonable care is obvious.

35 In this instance, although it was not ultimately proven that the Applicant had an affirmative belief he was dealing with a child I was satisfied beyond a reasonable doubt that taking account of all of the circumstances he should have been concerned that his interlocutor was a child and taken ‘reasonable steps’ to ensure that was not the case. In my view, presented with the information he had, his failure to take such steps was culpable within the meaning of the section.

36 In these circumstances I am not persuaded that subsection (4) has been applied in a manner that is constitutionally objectionable or that the Applicant has been convicted in a manner that offends either section 7 or section 11(d) of the Charter.

The Positions of Counsel

The Applicant’s Position

[54] In internet luring prosecutions, Mr. Gold contends there are four possible factual scenarios:

i. the accused was communicating with a child and believed the other person was a child;

ii. the accused was communicating with an adult and believed the other person was a child;

iii. the accused was communicating with a child and believed the other person was an adult;

iv. the accused was communicating with an adult and believed the other person was an adult.

[55] The applicant does not submit that there are any ss. 7 or 11(d) Charter concerns with the first three scenarios. It is the fourth scenario where the constitutional problems arise. In the result, ss. (3) and (4) should only apply where the other party is under age.

[56] Subsection (3) substitutes a simple “representation” for proof of a guilty mind, the mens rea. In the alternative, assuming the provision is constitutionally permissible when the other party is an underage individual, s. (3) substitutes simple “representation” for proof of a guilty mind even in cases where the other party is an adult and the accused’s mental state is in fact exculpatory based upon accurate knowledge, not just a mistaken belief in the age. Where a presumption substitutes proof of another element for proof of an essential element, it will only be valid where the existence of the substituted fact (here, the representation as to age) leads inexorably to the conclusion the essential element has been established (here, the accused’s belief the other person was underage), with no other reasonable possibilities.

[57] Subsection (3) says, in effect, there has to be ‘evidence to the contrary’ when a reasonable doubt can arise from the absence of evidence. By requiring ‘evidence to the contrary’, the subsection violates the principle that a reasonable doubt can arise from the absence of evidence.

[58] As regards s. (4), the applicant contends that to require an accused to take ‘reasonable steps’ in regards to his or her belief that he or she is communicating with an adult, when the accused is communicating with an adult, is to create a crime with no actus reus, where the accused has a true innocent belief, although “negligently formed,” as the mens rea. The accused is condemned for negligently knowing or believing the truth, that he or she was communicating with an adult, without having made any inquiries or taken any steps. Because they already believe the other person is an adult, an accused would see no need to take ‘reasonable steps’ to ascertain what he or she already believed. In the result, the presumption becomes a trap as a person would see no practical rationale to take ‘reasonable steps’ and be unaware of the legal requirement to do so. It is not a legal loophole to let accused persons escape criminal liability. If their claim of accurate belief is not credible and does not raise a reasonable doubt, they will be convicted. In the result, s. (4) over criminalizes, creating a crime of unreasonable true belief, a concept unheard of in criminal law.

[59] Further, the applicant submits that consideration must be given to the amount of bogus child-posing on the internet and chat rooms as a common form of sexual fantasizing and role playing. It is widely understood that deception is ubiquitous on the internet.

[60] Further, ss. (4) violates the Charter because it adds something called ‘reasonable steps’ to the equation that is not an element of the offence. An accused who has an honest and correct exculpatory belief is going to be convicted unless he or she has done the “required dance” - taken the required steps. If an accused has a burden of proof regarding an element of the offence on the balance of probabilities to avoid conviction, the presumption or provision violates the presumption of innocence.

[61] With respect to Levigne, the applicant contends there is a distinction between ‘belief:’ a mental state regarding something that is factually not so, and ‘knowledge:’ a belief that is in fact objectively accurate, citing Dynar. In the usual course, a full offence requires knowledge with respect to each element of the actus reus. An accused who mistakenly believed the entire actus reus was present, when it was not, is guilty of only an attempt and not a full offence. For some offences, Parliament has amended the full offence to include “knowing or believing,” thereby creating a full offence that includes its own attempt. This is what happened with s. 172.1. However, where an accused does not accept the age the police want him or her to accept, he or she is innocent. There is no culpable actus reus; an essential element is missing.

[62] Mr. Gold submits that ss. 171.1(4) and 172.1(4) are intended to ensure that a mistaken belief must be reasonable, that the mistaken belief must be informed to be exculpatory as a denial of the mens rea. The subsection should not be interpreted as if it read, “…the accused believed or knew that ….”

[63] It is one thing to require an exculpatory mistake of fact to be reasonable when the actus reus is committed: the other person is under the legal age. When the culpable conduct or actus reus is absent because there is no underage child and the mens rea is absent because there is no mistaken belief that an underage child is communicating, there is no justification for creating criminality because the lack of mens rea was not based on reasonable grounds. It is unheard of to require a true exculpatory belief to be based on reasonable grounds. The effect is the creation of a crime based solely on a new form of mens rea: negligent lack of criminal belief. The effect of the current legislation is to create a new mens rea of an “unreasonable innocent state of mind.”

[64] The applicant contends “the logical error” in Levigne is revealed in paras. 37-38 because para. 38 does not answer the incongruity Justice Fish identified in para. 37. Those paragraphs state:

37 I recognize, of course, that it seems incongruous to convict the appellant on the ground that he failed to take ‘reasonable steps’ to determine the real age of "Jessy G" when "Jessy G" was in fact an adult pretending to be a child and not a child pretending to be an adult.

38 But s. 172.1, I repeat, makes it an offence to communicate for the purpose prohibited by that section with a person whom the accused believes to be underage. That is in itself conduct deemed undesirable and criminalized by Parliament. It thus seems more incongruous still to acquit an accused who communicated for a prohibited sexual purpose with a person whom he believed to be underage -- the evil aimed at -- on the ground that he would not have made that mistake had he taken the ‘reasonable steps’ he was required by law to take. (Emphasis added)

[65] In Levigne, the accused believed he was dealing with an adult. He was guilty because that true belief was not supported by reasonable grounds. The applicant contends that to be accurate para. 38 should be read:

It thus seems more incongruous still to acquit an accused who communicated for a prohibited sexual purpose with a person whom he failed to believe to be underage without reasonable grounds … [Emphasis in original.]

[66] Mr. Gold submits that this would be neither incongruous nor lacking respect for the evil targeted by the offence. Rather, it is mandated by fundamental principles of criminal law. In such a case, the ‘reasonable steps’ would only have confirmed the accused’s innocent belief and in a sense would be superfluous. In addition, neither paragraph addresses the fourth scenario. Both are based on accused who believed they were communicating with an underage person.

[67] ‘Reasonable grounds’ are appropriate to limit the acquittals of persons communicating with underage other persons by restraining the claim of mistaken belief in a higher age. It is inappropriate and unprecedented to limit the acquittals of persons who are communicating with adults and who believe they are communicating with adults.

[68] The applicant contends Morrison is rightly decided in relation to s. (3) and wrongly decided in relation to s. (4). In the alternative, if only one subsection is to be struck down it should be s. (4). Mr. Gold contends that in relation to s. (4), the trial judge in Morrison went wrong in failing to appreciate logically what is wrong with s. (4). The combined results of ss. (3) and (4) is the guilt of the one group that is “most innocent,” those in the fourth scenario.

[69] The problem with the Morrison s. (4) analysis is that it relies on similar wording in sexual offences despite the fact it is impossible to have an analogous situation in internet luring. You cannot have a situation where the complainant consents and the accused gets charged and convicted for believing the complainant consented but took no ‘reasonable steps’. The sexual assault legislation and cases do not assist in this analysis because they are not analogous to the fourth scenario.

[70] With respect to the second Morrison ruling, the applicant submits that it is incorrect and should not be followed because “it is not clear whether the holding is that subsection (4) does not violate section 11(d) or 7 of the Charter in either purpose or effect, or whether it satisfies the Charter’s s. 1 requirements of rational connection and proportionality. It seems difficult to conclude that there is no section 7 or 11(d) violation, given its presumptive effects on criminal liability. But the decision contains very little if any discussion of s. 1 requirements.”

[71] The applicant contends that the following paragraph contains Gage J.’s crucial analysis:

31 To the extent that the wording of the section needs to be understood in terms of a distinction between actus reus and mens rea I agree with the submission of the Crown that the actus reus crystallizes at the moment that there is a sexualized communication that facilitates one of the enumerated offences and the communicant (interlocutor) presents as underage. The mens rea is complete when the accused either forms the belief that the communicant is underage or continues the communication without taking ‘reasonable steps’ to ensure that he is not in fact communicating with a person who is underage. In my view, construed in this way, section 172.1(4) is constitutional.

[72] The applicant submits:

The opening portion of subsection 172.1(4) of the Criminal Code provides: “It is not a defence ... that the accused believed that the person referred to ... was at least [the lawful age].” In other words, ex hypothesi the accused is defending on the basis of a certain belief that is in fact true. But if the court had no reasonable doubt on that issue then the accused would in the ordinary course be convicted. And what steps the accused neither did, nor did not take would be considered by the court in deciding that question in the ordinary course. So this provision operates only in the context where the accused would otherwise have raised a reasonable doubt regarding belief and been acquitted.

(The provision of course saves a trial court from struggling with the issue at all where no steps are taken and where the steps are taken it substitutes a struggle with whether the steps taken were reasonable.) But the essential point is that the provision convicts a group of accused who otherwise were entitled to acquittals, simply because their innocent belief existed “negligently”. Negligence is rarely a basis for criminal liability. It is submitted that such sacrifice of the innocent in order to ensure judges do not mistakenly acquit is not an acceptable section 1 limitation under the Charter. It is irrational in its fear of unjust acquittals and is disproportionate in its effect. It is still better that 10 guilty people go free rather than 1 innocent person be convicted. Even in this emotional context surely the Charter does not allow 10 innocent people to be convicted to ensure not 1 guilty person goes free.

The offence created has already been cut loose from any actual underage involvement. It is the ultimate inchoate offence. It penalizes any person communicating in fantasy even if the communicants are elderly so long as neither takes steps regarding any representations of age. In fact, both parties could be guilty if they both misrepresented their ages and were happy to go along with the fantasy. An arbitrary and over inclusive presumption in the context of accused who would otherwise be found not guilty by a judicial trier of fact should not be countenanced.

Furthermore, as the above hypothetical might make the reader realize, the description of mens rea is inaccurate. It omits the crucial and significant purpose of element: the communication must be for the purpose of facilitating the commission of an enumerated...

[73] Finally, the applicant submits the Crown misstates the elements of the offence. The s. 172.1 offence is not facilitating. It is communicating. Facilitating requires looking at the target offence, here, s. 152, invitation to sexual touching with an underage person. Generally, facilitation only appears in relation to the accused’s purpose. Here, the Crown has specified the communication was for the “purpose of committing” an underlying offence.

The Crown’s Position

[74] The Crown submits that ss. 172.1(3) and (4) in limiting the type of evidence capable of raising a reasonable doubt regarding the accused’s belief in the age of the other person with whom they are communicating are constitutionally valid.

[75] Mr. Hendry counters the applicant’s distinction between ‘belief’ and ‘knowledge,’ noting the offence crystalizes before the contact with the other party. Conduct that precedes the commission of a sexual offence is criminalized. It is this aspect of internet luring that erodes the applicant’s distinction. There is no distinction and there is only one offence, internet luring, an offence that is complete at the point of communicating for the purpose of facilitation. That an accused actually exploited a child is not an element of the offence.

[76] As regards s. (3), Mr. Hendry argues the “fallacy” of Gage J.’s analysis with regards to there being no inexorable connection between the representation made to the accused and his or her belief is shown by the concluding paragraph of the judgment where His Honour wrote, at para. 35:

This of course does not exclude the evidence of the representations made in the course of the communications alleged to be between the applicant and the Peel Region police officer nor the common sense inferences that may be drawn therefrom. at para. 35 (Emphasis added)

[77] While the presumption was unconstitutional, the trier of fact could draw common sense inferences from the other person’s representation as to his or her age. The Crown submits that “there is no difference because facts not supporting the common sense inference would be evidence that could rebut the presumption. Those facts would be in the evidence and would not be unreasonable facts or inferences.”

[78] The Crown further submits that Gage J. erred in proceeding on the misapprehension that the s. (3) presumption is some sort of general presumption that where a person holds her or himself out to be 14, the recipient of that information believes that person is 14. That is not what s. (3) is about. Rather, it is restricted to internet luring prosecutions. What is criminalized is communication for the purpose of facilitating the commission of one of the designated offences. When viewed in that context, there is nothing unconstitutional about the subsection. If His Honour had viewed the legislation in the right context, he would have found the legislation constitutional.

[79] The Supreme Court of Canada has held that the purpose of s. (4) is to restrict “exculpatory claims of ignorance or mistake that are entirely devoid of an objective evidentiary basis”: Levigne, at para. 31. This is all s. (4) eliminates as a defence. A purely subjective belief is insufficient.

[80] The Crown notes that Levigne refers to the two provisions as procedural, that the Court of Appeal in Dragos found s. (4) required an accused who claims mistake of age to have exercised a degree of care in ascertaining the other person’s age that a reasonable person in the circumstances would have exercised and in addressing almost identical language in s. 150.1(4) in Saliba, that the section mandates an inquiry into the basis for that belief.

[81] In addition, Parliament limited the availability of the “honest belief” defence to cases where the accused took “all ‘reasonable steps’” to ascertain the complainant’s age. The necessary inquiry is akin to a due diligence investigation with the trier of fact comparing the steps, if any, taken by an accused to determine the true age with steps that a reasonable person would have taken. However, there is no onus on the accused. It remains for the Crown to prove beyond a reasonable doubt that all ‘reasonable steps’ were not taken.

[82] The Crown submits that a due diligence defence is constitutionally valid noting that similar “‘reasonable steps’” provisions under ss. 150.1(4) and 273.2(b) of the Criminal Code have been upheld. For sexual assault provisions, a more restrictive due diligence defence, the requirement to take all ‘reasonable steps’, has been found to be constitutionally valid. Here, what is required is “‘reasonable steps’” not all ‘reasonable steps’.

[83] Mr. Hendry relies upon R. v. Hess; R. v. Nguyen, [1990] 2 S.C.R. 906, [1990] S.C.J. No. 91, where the Supreme Court of Canada held that at a minimum, a due diligence defence must be available to a person accused of a criminal offence. While the provision found to be constitutionally invalid in R. v. Hess and Nguyen made it an offence to have sexual intercourse with a female person who was under the age of fourteen whether or not he believes that she is fourteen years of age or more, Wilson J. noted that s. 150.1(4), enacted before the s. 146 challenge was heard, provided for a due diligence defence. Since that time, the Prince Edward Island and Newfoundland Courts of Appeal have upheld the constitutionality of s. 150.1(4): R. v. R.S.M. (1991), 69 C.C.C. (3d) 223 (P.E.I. C.A.), at p. 225, and R. v. Hann (1992), 75 C.C.C. (3d) 355 (Nfld. C.A).

[84] In R. v. Darrach (1998), 38 O.R. (3d) 1, aff’d 2000 SCC 46, 2 S.C.R. 443, the “Rape Shield” provisions were challenged, including s. 273.2(b) that provides it is not a defence to sexual assault where the accused did not take ‘reasonable steps’, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting. Morden A.C.J.O., found the provision did not shift any onus onto the accused although in some circumstances it would place the tactical or evidential burden on the accused to adduce some evidence capable of raising a reasonable doubt. There was no constitutional infringement.

[85] The Crown submits the internet luring offence crystalizes at the point of facilitation, before the other person’s true identity is revealed, whether that person is a child or an undercover officer. What Parliament is addressing is the situation where an accused communicates with another person, whether that person is underage or an adult, who is representing him or herself to be a child in a manner that is used to facilitate a sexual offence. Only then will the accused be presumed to have believed that the other person is a child because of the purpose of facilitating the offence. Only then is the accused required to have taken ‘reasonable steps’ to determine that the other person is an adult.

[86] The Crown contends that the legislation is not overly broad. Parliament can criminalize individuals who are under the belief the other person is a child. The fact that after the offence has crystalized, it is learned the other person is an adult is irrelevant because Parliament is criminalizing what is happening in the chat and what the purpose of that chat is in relation to the two individuals who are communicating.

[87] In its supplementary written submissions, the Crown contends that the effect of the Morrison judgements was to create a new luring offence with the mens rea of “[continuing] the communication without taking ‘reasonable steps’ to ensure that he is not in fact with a person who is underage.”[^5]

[88] Finally, the Crown submits that His Honour failed to conduct a proper analysis in convicting Mr. Morrison. He erred in applying a two stage analysis to ‘reasonable steps’. Whether the accused took ‘reasonable steps’ is an integral part of the analysis, not a separate determination. Morrison’s bald assertion the other person was an adult was not a defence. Accordingly, there was no basis upon which to examine whether he had taken ‘reasonable steps’.

Analysis

The Relationship between ss. (3) and (4) and ‘reasonable steps’

[89] Before examining the constitutional validity of the subsections, addressing several issues will place the analysis in context. First, what is the relationship between the two presumptions? Second, do they apply in every s. 172.1 prosecution? Third, what does ‘reasonable steps’ mean in s. (4)? Fourth, are ‘reasonable steps’ an essential element of ‘evidence to the contrary?’ Fifth, do the presumptions apply to the “for the purpose of facilitating” elements of s. 172.1?

[90] Counsel provided further helpful submissions on these issues. Mr. Gold submitted that the sections were independent with s. (3) only applying where it was represented to the accused that the other person was underage. Subsection (4) applies in every case, whether the accused does or does not testify. The applicant submitted that ‘reasonable steps’ to ascertain the other person’s age’ means information received from any source and does not require the accused to have taken active steps to ascertain the age of the other person.

[91] Mr. Gold contended Fish J. was not defining ‘evidence to the contrary’ so that it was no longer evidence from any source and anywhere in the evidence and now required ‘reasonable steps.’ What Fish J. was saying was in the context of a case where it was represented to the accused that the other person was underage and the accused relied on the defence of his or her belief the other person was an adult, in order to avoid the s. (3) presumption there would have to be ‘evidence to the contrary.’ Even if there was, that would not result in an acquittal. The accused would still have to show ‘reasonable steps’ were taken to avoid having the belief the other person was an adult defence removed from consideration. The Crown would have to establish beyond a reasonable doubt that the accused took no reasonable steps. Fish J. was not importing the s. (4) reasonable steps into s. (3). He was ellipsing the two sections.

[92] Mr. Hendry submitted that the sections were independent. Where the accused does not testify, s. (3) does the “heavy lifting” to establish his or her belief the other person was underage. Initially, he argued that it was only where the accused testified that s. (4) applied and ‘reasonable steps’ are required. ‘Reasonable steps’ must be active steps taken by the accused to determine the age of the other person. In reply submissions, he argued that if ‘reasonable steps’ can be information received by the accused without him or her taking active steps, then s. (4) applied in all cases and applied to the s. (3) ‘evidence to the contrary.’

[93] First, I agree with both counsel that the subsections are independent. One can apply without the other.

[94] Second, s. (3) only applies where it has been represented to the accused that the other person was underage. This is usually, but not always the case in sting operations where the other person is an adult.

[95] Third, s. (4) does not apply to every s. 171.2 prosecution. It is only where the accused relies upon the defence that he or she believed the other person was an adult that the subsection applies. If there is no ‘air of reality’ to that defence, the subsection does not apply.

[96] Fourth, as a result of Levigne, two issues arose: Did ‘reasonable steps’ require the accused to have taken active steps to ascertain the age of the other person or would information received from by the accused without him or her taking active steps permit the belief in age defence to apply?

[97] For ease of reference the paragraph states that the combined effect of s. (3) and (4) is:

1. Where it has been represented to the accused that the person with whom he or she is communicating by computer (the "interlocutor") is underage, the accused is presumed to have believed that the interlocutor was in fact underage;

2. This presumption is rebuttable: It will be displaced by ‘evidence to the contrary’, which must include evidence that the accused took steps to ascertain the real age of the interlocutor. Objectively considered, the steps taken must be reasonable in the circumstances; (Emphasis added)

3. The prosecution will fail where the accused took ‘reasonable steps’ to ascertain the age of his or her interlocutor and believed that the interlocutor was not underage. In this regard, the evidential burden is on the accused but the persuasive burden is on the Crown;

4. Such evidence will at once constitute "‘evidence to the contrary’" under s. 172.1(3) and satisfy the "‘reasonable steps’" requirement of s. 172.1(4); and

5. Where the evidential burden on the accused has been discharged, he or she must be acquitted if the trier of fact is left with a reasonable doubt whether the accused in fact believed that his or her interlocutor was not underage.

[98] First, with respect to whether active steps are required, there are judgments that appear to conflict as to the meaning of “‘reasonable steps’.” In Levigne, Fish J. held:

41 The "‘reasonable steps’" invoked by the appellant were in fact neither "reasonable" nor "steps to ascertain the age of the person" with whom he was communicating by computer for the avowed purpose of his own sexual gratification. Rather, they were circumstances which in the appellant’s submission explain why, as he admitted in cross-examination, he in fact took no steps to ascertain the actual age of "Jessy G". And this despite the latter's repeated assertion that he was only 13.

42 Thus, for example, Mr. Levigne maintained at trial that there were moderators in the public chat rooms who would remove children. But this is of little comfort to him, since his relevant communications with "Jessy G" occurred in a private chat room.

43 Likewise, Mr. Levigne's purported reliance on the fact that the profile of "Jessy G" listed his age as 18. But as we have already seen (at para.10), "Jessy G" explained to Mr. Levigne that he was in fact only 13, and had indicated on his profile that he was 18 only because he would not otherwise have been permitted to post a profile.

[99] While it might be possible to conclude that Fish J. required active steps, I am not persuaded that is so for the following reasons. First, as noted earlier, in the Court of Appeal judgment in Dragos, the appellant argued the trial judge erred in instructing the jury that the accused had to take active steps to fulfil the ‘reasonable steps’ criteria.

[100] The Court of Appeal held that is not what the trial judge had done. He had examined the appellant’s basis for concluding that he believed he was communicating with a 14 year old (under 14 years of age being the age for offending in that case) including that she told him the only time that he asked that she was 14 years old, she tried to present herself as older than she actually was, she registered on the chat site as being 14 when she was 13 years old, she said she was in grade 9 when she was in grade 8, she said she had previously dated “older guys,” used sexually explicit “street language,” implied that she was sexually experienced, and suggested that notwithstanding her age, her weight was similar to that of an 11 year old.

[101] While the appellant argued that the trial judge required the accused to have taken active steps to ascertain the other person’s age, the Court of Appeal disagreed. Cronk J.A. held:

[62] I do not accept that the trial judge erred in the manner asserted by the appellant. Put simply, I do not read the trial judge's challenged comments as holding that, as a matter of law, proof of active steps by an accused to ascertain a complainant's age is a precondition to satisfying the "reasonable steps" standard set out in s. 172.1(4) of the Code. Rather, the trial judge determined the sufficiency of the steps taken by the appellant to ascertain E.B.'s age on an objective basis, in the light of the particular circumstances and context of this case. This is what he was required to do.

[63] I agree that the appellant was entitled to rely on E.B.'s representation of her age, when they first met on the Internet chat room, as one indicator of E.B.'s age. I did not understand the Crown to argue otherwise. Nor do the trial judge's reasons suggest to the contrary.

[64] I also agree that the appellant was entitled to rely on E.B.'s other actions in aid of her effort to appear 14 years of age (for example, her statement that she was in grade 9, her use of sexually explicit language in her communications with the appellant and her claim that she had dated "older guys").

[65] However, that does not end the matter. The question is whether, on the totality of the circumstances, the appellant's actions to determine E.B.'s age were sufficient to meet the "reasonable steps" standard established by s. 172.1(4) of the Code. The determination of this question required careful examination of all the circumstances surrounding the appellant's interactions with E.B. As I have already indicated, in my view, this is precisely the type of inquiry undertaken by the trial judge.

[66] The trial judge concluded that further steps by the appellant were required to meet the reasonableness standard under s. 172.1(4) of the Code. I see no basis for interference with this conclusion. The full circumstances of this case, examined objectively, mandated further inquiry by the appellant regarding E.B.'s age. I have already described the multiple "red flags" suggesting that E.B.'s representation of her age may be unreliable and that she may have been untruthful regarding her age.

[67] In particular, the warnings about E.B.'s age and potential police involvement received by the appellant from E.B.'s mother cried out for further steps by the appellant to ascertain E.B.'s true age. In the absence of those steps, on the facts here, the trial judge was fully justified in concluding that the appellant had failed to make out the defence of mistake of age regarding E.B.

[102] Had the accused been required to take active steps, there would have been no need to address the reasonableness of the steps.

[103] Second, looking at the similarly worded s. 150.1(4) which requires “all ‘reasonable steps’” be taken in ascertaining if the complainant was consenting, in Osbourne, the Court found “there must be some earnest inquiry or some other compelling factor that obviates the need for an inquiry.” [Emphasis added] In Saliba, the Court of Appeal held that in some situations the appearance of the person would be sufficient without taking further steps.

[104] Similar comments appear in P.(L.T.), where the Court found that visual observations alone could suffice. The reasonableness of the failure to take further steps would be determined in all the circumstances known to the accused. P.(L.T.) was approved by the Saskatchewan Court of Appeal in R. v. Slater, 2005 SKCA 87, 201 C.C.C. (3d) 85, at para. 15. The New Brunswick Court of Appeal had reservations with the notion that visual observations alone would suffice although appearance may be a factor when age is at issue and rejected the Crown’s position that the accused had to at least ask the complainant’s age: R. v. K.(R.A.), (1996), 106 C.C.C. (3d) 93 (N.B.C.A) The New Brunswick Court of Appeal approved the following comments from R. v. M.(M.S.) (1991), 10 C.R. (4th) 121 (P.E.I. C.A.) at p. 124: “What constitutes reasonable steps will of course depend on the circumstances of each case. Sometimes it will not take much.”

[105] On these authorities, I am persuaded that the accused is not required to take active steps to ascertain the other person is an adult in every case. ‘Reasonable steps’ to ascertain the other person’s age can include information received from any source whether elicited by active steps by the accused or otherwise. The determination as to what will constitute ‘reasonable steps’ is made in the context of all the evidence in the case, including information known to the accused. There will be cases where active steps are required, in others there may be no such requirement. When steps are taken, the issue becomes whether they were reasonable in those circumstances.

[106] I agree with counsel that asking a question or questions is not itself a ‘reasonable step.’ It is the answers received or information otherwise in the accused’s possession that is determinative. The key is the information received from any source, regardless of whether it was precipitated by active steps or no steps at all. The next issue is whether that information was sufficient or whether further steps are required: Dragos. For example, if the accused asked the other person their age and were told the other person was 12, that is not reasonable steps. It is akin to wilful blindness where just asking the question does not remove wilful blindness from consideration. That can only occur depending on the answer received.

[107] Third, where there was what Mr. Hendry referred to as “police negligence” and without the accused asking for a picture when attempting to show the accused a silhouetted view of the other person, the police accidentally showed that the other person was an adult, the accused would have important evidence that the other person was an adult without asking a question or otherwise taking active steps. If the accused saw the image, he or she would not be required to take any other steps in those circumstances.

[108] Where questions are asked it is not the number of questions that it determinative. Rather, it is the information received by the accused. For example, in Pengelley, the accused asked for a picture and was shown one that His Honour found depicted a twenty-year-old woman. That constituted ‘reasonable steps.’ The question in each case to which s. (4) applies is what steps would a reasonable person affixed with the information the accused had have taken.

[109] Next, I agree with Mr. Gold that the comments in Levigne, dealt with the requirements where both sections were at issue and Fish J. did not re-write the meaning of ‘evidence to the contrary.’

[110] The final issue was whether the presumptions apply to the third element of the offence - that the communication was for the specific purpose of facilitating the commission of a specified secondary offence with respect to the underage person. More particularly, do the presumptions apply to role play, acting a fantasy with the comments and representations only advanced in furtherance of the fantasy with no intention of facilitating (or here, committing) an underlying offence?

[111] Counsel agree that they do not. While the secondary offences involve underage persons, in relation to the “for the purpose of facilitating” or here “committing,” the presumptions do not apply. If the accused is participating in role playing with no intention of facilitating any sexual contact with the other person, it is all a fantasy, the presumptions do not apply.

Section 172.1(3): The Presumption of Age

[112] For ease of reference, s. (3) provides

Evidence that the person referred to in paragraph (1)(a), (b) or (c) was represented to the accused as being under the age of eighteen years, sixteen years or fourteen years, as the case may be, is, in the absence of ‘evidence to the contrary’, proof that the accused believed that the person was under that age.

[113] First, addressing the nature of internet luring and the arguments presented in relation to s. (3), in enacting s. 172.1 Parliament created an inchoate offence in which liability depends upon what the accused believed the material facts to be, not what they actually were: Dynar. While the age of the other persons is not an element of the offence, that the accused believed the other person to be underage is.

[114] Second, in limited circumstances, Parliament can substitute facts to be taken as proof of essential elements of an offence. To assist the prosecution in establishing what the accused believed, s. (3), creates a rebuttable, mandatory and fact-based presumption. It is more than a permissive inference and more than simply a factor that the trier of fact should or must take into consideration. Only if it was represented to the accused that the other person was underage, must the trier of fact find the accused believed the other person was underage in the absence of ‘evidence to the contrary.’ The representations upon which the presumption is based in the vast majority of cases, if not all, are not controversial or subject to credibility or reliability concerns as they are recorded and introduced into evidence.

[115] The provision does not create a reverse onus where the accused would be required to establish a fact. Nor does it require an accused to disprove an element of the offence. It does not impose an “ultimate” or “persuasive” burden of proof on the accused.

[116] The effect of the subsection does not require the accused to testify or call other evidence to avoid a conviction. No doubt it will in some cases. The presumption only applies if there is no ‘evidence to the contrary’- evidence that tends to show but need not prove the accused believed the other person was an adult. The ‘evidence to the contrary’ must have probative value but need not be so cogent as to persuade the court.

[117] Fourth, there is no requirement where the ‘evidence to the contrary’ arises. It can be in Crown evidence including statements by the accused to the police or in the internet communications themselves. As the Supreme Court of Canada held in The Queen v. Proudlock, [1979] 1 S.C.R. 525, when examining the presumption of intent to commit an indictable offence once the Crown established the accused broke and entered a place, ‘evidence to the contrary’ imposed an evidentiary burden on the accused to call evidence “unless there is already ‘evidence to the contrary’ in the Crown’s case.”

[118] Fifth, the ‘evidence to the contrary’ requirement does not offend the principle that a reasonable doubt can arise from the absence of evidence. Where the presumption applies, there is no absence of evidence from which a reasonable doubt could arise. There is evidence. The only evidence is it that it was represented to the accused that the other person was underage.

[119] Sixth, in Morrison, the trial judge found that it was difficult to envision how the presumption can be dispelled without effectively compelling evidence from the accused. This objectionable aspect was compounded when coupled with the ‘reasonable steps’ required in s. (4). With respect, it is inappropriate to find that s. (3) is constitutionally invalid because of the existence of s. (4). Whether a provision withstands Charter scrutiny is determined by examining the provision itself. Whether both sections are needed in light of the Supreme Court of Canada’s characterization of the subsections as “close companions” is a different issue - one to be determined if s. 1 of the Charter is examined.

[120] Seventh, as regards the Crown’s submission that the last lines of Morrison show the fallacy with its reasoning, I disagree. His Honour says that the presumption the other person said he or she was underage on the internet was unjustified. There is a significant difference between a mandatory presumption and a permissible inference. The distinction is similar to the inference that a person intends the natural consequences of his or her actions. It is neither a proposition of law nor a presumption. Rather, it is a proposition of ordinary good sense. It is an inference which may be drawn, it is not one that must be drawn: R. v. Giannotti (1956), 115 C.C.C. 203 (Ont. C.A.), at p. 213; Mulligan v. The Queen, [1977] 1 S.C.R. 612.

[121] What Gage J., held was that it would still be open to the trier of fact to draw an inference in the particular circumstances of a case based on the representation as to the age of the other person. The inference was available but not mandatory in the absence of ‘evidence to the contrary’.

[122] Ninth, with respect to Morrison, from para. 29 of the first Morrison, ruling when considering s. (3) His Honour noted that “the operation of the reasonable steps requirement unreasonably restricts the ability of the accused to overcome the presumption.” It appears Gage J. found that active steps were required and that ‘reasonable steps’ were required in ‘evidence to the contrary.’

[123] Apart from the just noted factors, two contextual considerations lead me to a different conclusion from Morrison in regards to s. (3)’s constitutional validity. I agree that nothing may be as it appears on the internet where deception is rampant: Pengelley, at para. 17. If it was simply a representation as to age on the internet, the s. (3) presumption could be on shaky grounds although there is no presumption or inference that everything said on the internet is false. However, context is important, the context in which the representation is made, the context in which the presumption applies and where it does not apply.

[124] I agree with the Crown that the communication must not be viewed in isolation.[^6] The question is not whether any internet communication that a person is underage leads to a presumption the recipient believed the other person was underage. Rather, it is whether there is an “inexorable connection” between an age representation in a communication for the purpose of facilitating the commission of an underlying offence.

[125] The second contextual consideration is that the presumption only applies if there is no ‘evidence to the contrary’. It only operates in cases where at the end of the evidence there is no evidence that tends to show the accused believed the other person was older than the specified age. What the trier of fact is left with is a representation made to the accused in the context of a communication for the purpose of facilitating the commissions of an underlying offence and there is no other evidence on the issue, no direct or indirect representations that the other person was an adult, no direct or circumstantial evidence of the accused’s belief, and no evidence of ‘reasonable steps’ he or she took. In those circumstances, I am satisfied that it would be unreasonable for the trier of fact to conclude she or he had a reasonable doubt whether the accused believed the other person was underage. What Parliament was directing judges to do was to draw the only inference that is available to be drawn on the record. There would be an inexorable connection in those circumstances.

[126] I am not persuaded s. (3) is constitutionally invalid.

Section 172.1(4): The Due Diligence Requirement: The Accused must take ‘Reasonable Steps’

[127] Subsection (4) provides:

It is not a defence to a charge under paragraph (1)(a), (b) or (c) that the accused believed that the person referred to in that paragraph was at least eighteen years of age, sixteen years or fourteen years of age, as the case may be, unless the accused took ‘reasonable steps’ to ascertain the age of the person.

[128] First, the offence is communicating by means of a telecommunication with a person who is, or who the accused believes is, underage. When the “who the accused believes is underage” route applies, the age of the other person is not an element of the offence. In Levigne in the Alberta Court of Appeal, the Court found the age of the other person was irrelevant: 2009 ABCA 359, at para. 12. That it is impossible for the underlying offence to occur when the other person is an adult is irrelevant: Dynar and Alicandro.

[129] Second, s. (4) only applies where the accused relies on the defence that he or she believed the other person was an adult. It does not apply where the other person is underage, when the defence relies upon the Crown’s inability to establish beyond a reasonable doubt that the accused was the person communicating with an underage person, nor when the defence is that the communications were not for the purpose of facilitating (or here, committing)[^7] the underlying offence.

[130] Third, s. (4) creates a mandatory, rebuttable presumption that unless the accused took ‘reasonable steps’ to ascertain the other person’s age, he or she cannot be acquitted relying on their belief that the other person was an adult. As a mandatory presumption, it is more than a permissive inference and more than simply a factor that the trier of fact should or must take into consideration.

[131] However, the subsection does not create a reverse onus or place a burden of proof on the accused regarding an element of the offence on a balance of probabilities. Nor does it require the accused to call evidence although there will be cases in which it may result in a tactical or evidentiary burden with respect to matters within his or her knowledge. The burden of establishing the accused was the person communicating, that he or she believed the other person was underage and the purpose of the communication never shifts from the Crown. In addition, where there is an air of reality to the defence that the accused believed the other person was an adult, s. (4) applies and the Crown bears the onus of proving that the accused did not take reasonable steps beyond a reasonable doubt.

[132] Fourth, I agree with both counsel that the ‘inexorable link’ analysis does not apply in determining whether s. (4) is constitutionally valid. Section (4) does not directly substitute proof of one fact that is not an element of the offence for proof of an element. The Crown establishing beyond a reasonable doubt the accused did not take reasonable steps does not directly establish the accused believed the other person was underage. It simply removes the age-based defence.

[133] Fifth, there is no dispute that Parliament can require an objective component to defences. For example, in self-defence, a person is not guilty of an offence if, inter alia, they believed on reasonable grounds that force was being used against them or another person or that a threat of force was being made against them or another person: Criminal Code, s. 34. Similarly, there is an objective component to provocation that is defined as conduct that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control: Criminal Code, s. 232.

[134] With respect to self-defence, the applicant submits that in self-defence, the accused can believe he or she is being assaulted but if objectively they are not, it is an unreasonable belief and not a defence. I agree.

[135] Mr. Gold also submits that if they are actually being assaulted, it does not matter what the accused believes, they are acting in self-defence under s. 34. That is the purpose of the reasonableness component. It expands the scope of self-defence for an accused. The same rationale does not apply for internet luring in the fourth scenario where the offender’s belief is accurate.

[136] I do not agree that s. 34 expands the scope of self-defence to situations where the accused who does not subjectively believe force is being used against him or her. I am not persuaded that a purpose of the reasonableness component in s. 34 is to extend self-defence to situations where force is being used against an accused but she or he does not feel they acted in self-defence. The accused must still have the subjective belief he or she is acting in self-defence and that belief must be reasonable. The true exculpatory belief must still be reasonable. Proof that the accused was actually being attacked is not a pre-requisite to the application of s. 34. The objective criterion restricts the availability of self-defence from situations where it would be if the test was purely subjective. Similarly, the objective component of s. (4) removes the “belief the other person was an adult’ defence from a purely subjective determination.

[137] Sixth, s. (4) introduces an objective component to one of the defences to a charge of internet luring - that the accused’s belief the other person was an adult is only a defence where he or she took ‘reasonable steps’ to ascertain the other person’s age.[^8] If ‘reasonable steps’ were taken they would almost inevitably occur in the communications relied upon by the Crown.

[138] The reasonableness of the steps taken must be ascertained in context: Thain. It is what the accused knew at the time that informs the requirement to take ‘reasonable steps’ - steps that are assessed from an objective point of view. He or she is not under a positive obligation to determine all of the relevant circumstances. Instead, the assessment is based on those circumstances actually known to the accused.

[139] Seventh, an important component of the analysis is what is meant by ‘reasonable steps’ in s. (4). As noted earlier, it does not require active steps on the part of the accused to ascertain the other person’s age. It requires the accused have information upon which it would be reasonable to conclude the other person was an adult. It does not require that all reasonable steps be taken. As Dawson J. noted in Pengelley, the accused is required to take ‘reasonable steps’,[^9] not all ‘reasonable steps’.

[140] Albeit in relation to other offences, ‘all reasonable steps’ (s. 150.1) and ‘reasonable steps’ (s. 273.2(b)) have been found to be constitutionally valid. The s. 150.1 provisions (ss. 4-6) require all reasonable steps to be taken to ascertain the age of the complainant. Subsection 273.2(b) requires an accused to take ‘reasonable steps’ to determine if the complainant was consenting. The provision was found constitutionally valid in the context of honest but mistaken belief in consent defences in sexual assault prosecutions: Darrach.

[141] However, that the same or similar wording has been found to be constitutionally valid for other offences does not resolve whether s. (4) is valid for internet luring sting operations or otherwise where the other person is an adult. I agree with the applicant that those provisions deal with very different situations. Parliament’s objective was to curtail mistaken beliefs in consent or in the age of the complainant. The offences are different and there could never be a fourth scenario for sexual assault. There would be no offence if the complainant did in fact consent, the accused could never mistakenly believe the complainant consented. In order for s. 273.2(b) to come into play, the Crown first has to establish the complainant did not consent. Similarly, with regards to the s. 150.1 provisions, there would never be an offence where the complainant was an adult. Those provisions address mistaken beliefs, not correct beliefs.

[142] Eighth, the applicant contends in effect that s. (4) adds nothing to the determination of guilt or innocence because any accused who testified that he or she believed the other person was an adult without providing their reasons or sufficient reasons would be convicted. The accused who cannot or does not explain why he or she believed the other person was an adult, will always be convicted because no judge is going to accept their evidence or find it raises a reasonable doubt. Accordingly, the subsection adds nothing to the analysis. If that submission is correct, it is difficult to see how the provision is constitutionally invalid if the result of the prosecution will be the same.

[143] In addition, the submission conflates the accused’s belief and his or her reasons for the belief. An accused can testify that he or she believed the other person was an adult and give no reasons why he or she came to that belief other than intuition. The trial judge still has to make a credibility assessment on that evidence and could take into account that the accused took no steps to determine the age of the other person. If none were taken, it would not necessarily result in a rejection of the accused’s evidence. A witness can honestly believe something even though there are no reasonable grounds upon which they could reach that conclusion without the presumption. It is the accused’s belief that is an essential element, not that the belief be reasonable. What s. (4) does is require the accused to make a reasonable informed decision the other person was an adult based on information obtained from the communications or elsewhere.

[144] Ninth, Parliament can require a due diligence defence without offending s. 7 or 11(d) of the Charter. Section 172.1(4)’s requirement that the accused take reasonable steps to ascertain the age of the other person is a due diligence defence. In R. v. Hess; R. v. Nguyen, Wilson J. found that s. 7 prohibited the existence of offences that are punishable by imprisonment that do not allow the accused as a minimum a due diligence defence (at paras. 9-10). Further, Wilson J. held:

13 … The doctrine of mens rea reflects the conviction that a person should not be punished unless that person knew that he was committing the prohibited act or would have known that he was committing the prohibited act if, as Stroud put it, "he had given to his conduct, and to the circumstances, that degree of attention which the law requires, and which he is capable of giving".

[145] Tenth, in Morrison, there was an over-reliance on the fact Levigne was upheld to the Supreme Court of Canada when it was not a Charter case. Fish J. made it clear that there was no Charter challenge in paragraph 3. Accordingly, the judgment has no direct input on Charter issues.

[146] The only issue at Levigne’s trial and on appeal was whether the Crown had established beyond a reasonable doubt that he believed he was communicating with an underage person, the second element of internet luring (at paras. 4 and 12). The third element was not contested. Apart from examining how the various subsections operated, the judgment does not address Charter considerations. With respect to the comments at paras. 37 and 38 of Levigne, Fish J. was considering only accused persons who believed they were communicating with an underage child, not those who believed they were communicating with an adult.

[147] Further, in relation to Morrison, I am not persuaded that the following analysis is correct. Referencing para. 35 of Levigne, Gage J. concluded at para. 20:

The effect of the insertion of the words "or who the accused believes is" in conjunction with provisions contained in subsection (4) is that communications that otherwise meet the definition will not be excused by a bald and unsupported assertion that the accused believed he was communicating with a person above the specified age⁷. In other words, the defence of innocent belief in legal age will not prevail unless such belief is "honest" in the sense that it is not shown to be willfully blind or reckless.

[148] Paragraph 35 of Levigne states:

The trial judge in this case did not have the benefit of Legare when he declined to apply s. 172.1(4) for the reasons he gave. I am satisfied that he would otherwise have recognized that the "reasonable steps" requirement imposed by that subsection was meant by Parliament to foreclose successful claims of mistaken belief, absent an objective evidentiary basis.

[149] The insertion of the provisions was to address unreasonable beliefs, not to ensure the beliefs were honest. An accused can honestly hold an unreasonable belief.

[150] Against those findings is s. (4) constitutionally valid? Does the requirement that an accused must have taken ‘reasonable steps’ to ascertain the other person’s age when he or she correctly believes the other person was an adult result in the morally innocent being convicted in the face of a reasonable doubt as to their guilt or otherwise violate the principles of fundamental justice? It does not. While I reach the same conclusion with respect to s. (4) as Morrison, I respectfully reach that conclusion using a somewhat different route.

[151] I am not persuaded that requiring the accused to have undertaken the “required dance” offends either s. 7 or 11(d) of the Charter. The age of the other person is not an element of the offence when the other person is an adult. In the context of internet communications, s. (4) requires an accused to have taken ‘reasonable steps’ to ascertain the age of the other person. That information can come from any source. The Supreme Court of Canada has held that in order to comply with s. 7 of the Charter the mens rea for an offence must contain a due diligence provision at a minimum. That is what s. (4) requires – due diligence.

[152] Requiring an accused to show he or she exercised due diligence is consistent with s. 7 and 11(d) of the Charter. It permits an accused to be convicted only if he or she knew their conduct contravened the law or “would have known that fact if he had given to his conduct and to the circumstances, that degree of attention which the law requires, and which he is capable of giving:” Stroud, Mens Rea (1914), at pp. 10-11, cited with approval in R. v. Hess; R. v. Nguyen, at para. 12.

[153] ‘Reasonable steps’ does not require the accused to have taken active steps nor to have asked questions. It requires him or her to take the steps reasonable people possessed of the same information as the accused would to ascertain the other person’s age. As Cronk J.A. put it in Dragos, s. 172.1 “requires an accused who claims mistake of age to have exercised a degree of care in ascertaining a complainant’s age that a reasonable person in the circumstances would have exercised” (at para. 35). In some cases, it will not take much. I am unable to see why those defending on the basis he or she believed the other person was an adult should not be required to exercise a degree of care in reaching their belief.

[154] That the other person is an adult is not determinative because it is not an element of the offence. To be sure, while other ‘reasonable steps’ or ‘all reasonable steps’ provisions have been enacted and found to be constitutionally valid in response to mistaken belief defences, in internet luring sting operations, there is no mistaken belief when the accused believes the other person is an adult or the trial judge is left in a reasonable doubt about whether the Crown has established the accused did not take reasonable steps. This legislation was also introduced to address exculpatory claims of ignorance – i.e. “I did not know the other person was underage” without any basis upon which that conclusion was founded¨ Levigne, at para. 31.

[155] I am not persuaded that there is any constitutional violation of the presumption of innocence or the principles of fundamental justice in requiring an accused who has engaged in “sex-infused”[^10] internet chats with another person who either represents themselves to be underage or there is other evidence the other person is underage, to justify how and why he or she concluded that the other person was an adult even if that person was an adult. Nor is there a constitutional violation to require him or her to have taken reasonable steps to ascertain the other person’s age. It requires due diligence on the accused’s part and an objective component to the belief as occurs with other defences.

[156] In addition, I am not persuaded that s. (4) necessarily results in the morally innocent or “negligently correct” being convicted and sent to jail for at least one year. It must be kept in mind that there are three elements to the offence from Legare, at para. 3:

[3] Our concern, more particularly, is with s, 172.1 of the Criminal Code, R.S.C. 1985, c. C-46 which prohibits the use of computers to communicate with underage persons “for the purpose of facilitating the commission” of a specified (or secondary) offence. And, more particularly still, our concern is with s. 172.1(1)(c), which consists of three elements: (1) an intentional communication by computer; (2) with a person whom the accused knows or believes to be under 14 years of age; (3) for the specific purpose of facilitating the commission of a specified secondary offence …

[157] The applicant’s argument appears to be premised on the assumption that a finding the Crown had established beyond a reasonable doubt that the accused did not take ‘reasonable steps’ to ascertain the age of the other person automatically results in a conviction, and that the presumption says that if the accused did not take reasonable steps to ascertain the other person’s age that it is presumed he or she communicated for the purpose of facilitating an underlying offence. There is no presumption to that effect. The argument fails to take into account the first and in particular the third element of s. 172.1.

[158] The Crown has to establish each of the three elements beyond a reasonable doubt: Legare, at para. 37. Both counsel submitted that s. (4) does not apply to the “for the specific purpose” element. I agree. While s. (4) assists the Crown to establish the second element, there is no presumption that assists the Crown in establishing the “for the specific purpose of facilitating the commission of a specified secondary offence” element.

[159] While the age of the complainant would be an element of the underlying offences and the accused’s belief the other person was an adult would not afford a defence to that portion of the third element, there still remains the accused’s purpose in communicating with the other person. Without proof beyond a reasonable doubt that the accused’s purpose was to facilitate the commission of an underlying offence, the accused cannot be convicted. Fish J. emphasized in Legare that the intention of the accused must be determined subjectively. The Crown had to establish he or she engaged in the “prohibited communication with the specific intent of facilitating the commission of one of the designated offences” with respect to the underage person …” at para. 32.

[160] Whether the accused believed he or she was communicating with an underage person or believed that they were communicating with an adult, the judge still has to be satisfied beyond a reasonable doubt that the accused had the specific purpose in communicating before he or she could be convicted without the use of any presumption. In those circumstances, if a judge were to find the Crown had established that fact beyond a reasonable doubt, it is difficult to see how a person with that purpose in communicating in either scenario is one of the “most innocent” or morally innocent, or how the result is a violation of either s. 7 or s. 11(d) of the Charter.

[161] In Legare, Fish J. stressed the significance of the third element as follows:

[35] The application of a subjective standard of fault is appropriate as well in light of the broad nature of the act component of s. 172.1. Requiring the Crown to prove that the accused communicated by computer with the specific intent mandated by the plain language of the provision helps to ensure that innocent communication will not be unintentionally captured by the Code.

[38] … As in the case of attempt, s. 172.1 criminalizes otherwise lawful conduct when its specific purpose is to facilitate the commission of a specified secondary offence with respect to an underage person. Separately considered, neither the conduct itself nor the purpose alone is sufficient to establish guilt: It is not an offence under s. 172.1 to communicate by computer with an underage person, nor is it an offence under s. 172.1 to facilitate the commission of a specified secondary offence in respect of that person without communicating by computer.

[162] Looking at Mr. Gold’s analogies, the only way two senior citizens who represent themselves to be underage and took no reasonable steps would get convicted was if the trial judge was satisfied beyond a reasonable doubt that one or both had the specific intention of facilitating the commission of an underlying offence. Absent that finding, there could be no finding of guilt.

[163] Similarly, there is no presumption to assist the Crown in disproving the fantasy/role playing defence. Unless the Crown, unassisted by any presumption, establishes beyond a reasonable doubt the accused had the requisite specific purpose in communicating there can be no conviction.

[164] I am not satisfied that s. (4) violates ss. 7 or 11(d) of the Charter, where the other person is an adult.

Conclusion

[165] Subsections (3) and (4) of s. 172.1 are constitutionally valid.

DURNO J.

Released: February 24, 2016

CITATION: R v. Ghotra, 2016 ONSC 1324

COURT FILE NO.: CR 13/497

DATE: 20160224

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

• and –

AKASH GHOTRA

Applicant

REASONS FOR JUDGMENT ON CONSTITUTIONALITY OF SS. 172.1(3) and (4) OF THE

CRIMINAL CODE OF CANADA

Durno J.

Released: February 24, 2016

[^1]: Section 172.1 refers to “... communicating for the purpose of facilitating ...” The indictment in this case specifies “... communicating for the purpose of committing ...”

[^2]: Throughout the reasons I will refer to the person with whom an accused was communicating as the “other person.”

[^3]: Throughout the reasons, I will refer to persons who are over the specified age in the legislation as adults.

[^4]: While not referenced in the Supreme Court of Canada judgment in Levigne, the Alberta Court of Appeal judgment noted that Levigne relied upon “indicia of adulthood such as the false profile, the person’s typing speed and the fact that people lie about their age on line” and sought “refuge in his own experience that a chat room moderator will screen for and exclude underage participants. The Court found the “proffered indicia of adulthood, premised as they are upon assumptions and beliefs, support neither the reasonableness of the Respondent’s belief nor satisfy the requirements of subsec. (4).”

[^5]: In Morrison, the Crown submitted that continuing the communication without taking ‘reasonable steps’ was a means by which the offence could be committed, not that it created a new offence.

[^6]: Gage J. did address the distinction between communications with minors, communications of a sexual nature and the subject of s. 172.1, communications with children for the purpose of facilitating one of the enumerated sexual offences.

[^7]: See footnote 1 above

[^8]: In Levigne, Fish J. noted that the reasonable steps requirement applies where the other person is under age or an adult (at para. 36).

[^9]: There are other Criminal Code provisions requiring “all reasonable steps:” s. 69 in relation to a police officer suppressing a riot; s. 83.08 dealing with terrorist organizations; s. 163.1 in relation to child pornography and “reasonable steps” s. 153.1 dealing with sexual exploitation and consent; s. 217.1 dealing with persons directing work and s. 273.2 dealing with consent in sexual assault prosecutions.

[^10]: Levigne, at para. 7.