COURT FILE NO.: CR-0152 DATE: 20170117 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – GARY PHILLIP ALLEN Applicant

K. Hull, for the Respondent J. Sickinger, for the Applicant

HEARD: January 3, 2017

REASONS FOR DECISION ON CONSTITUTIONALITY OF SS. 171.1(3) and (4) and SS. 172.1(3) and (4) OF THE CRIMINAL CODE OF CANADA

DiTOMASO J.

THE APPLICATION

[1] The Applicant, Gary Phillip Allen has been charged with four counts under Section 172.1(1)(b), which contains three elements:

(1) he must have communicated over a computer (2) with a person who was, or who he believed to have been, under sixteen years of age (3) for the purpose of facilitating the commission of a designated s. 172.1(1)(b) offence.

[2] In the case at bar, the designated offences that Mr. Allen is alleged to have facilitated are making child pornography; invitation to sexual touching; sexual interference, and sexual assault.

[3] Mr. Allen has also been charged with one count of making explicit images available to a child pursuant to s. 171.1(1)(b). Like the luring provision set out in s. 172.1(1), this offence does not require that an actual child be victimized; the offence criminalizes the act when the accused believes that he or she is facilitating the offence with a child.

[4] Mr. Allen alleges that subsections (3) and (4) of both s. 171.1 and s. 172.1 breach his Constitutional Rights, based on s. 7 and s. 11(d) of the Canadian Charter of Rights and Freedoms (“The Charter ”).

[5] Subsections (3) and (4) in both s. 171.1 and s. 172.1 are identical and they function in the same way. The Crown and Defence submissions apply to both the luring and make explicit material available offence sections. Each section includes two procedural presumptions:

(i) the presumption of age: the accused believed the other person [^1] 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 [^2] unless he or she took ‘reasonable steps’ to ascertain the age of the other person: (s.(4)).

[6] Mr. Allen submits the following:

(1) The impugned provisions create a presumption regarding two essential elements of the “belief” offence, and effectively put the accused in a reverse onus situation by forcing him or her to adduce evidence in respect of those essential elements to prove his or her innocence without his or her guilt first having been proven. The operation of the impugned provisions allows the conviction of that accused even in a situation where there is a reasonable doubt as to his or her belief and therefore guilt. Therefore, the provisions are inconsistent with s. 11(d) of the Charter . (2) The provisions allow for the conviction of an individual who did not possess the constitutionally required mens rea for the offence and who also did not commit the defined actus reus of the offence. There is a one year mandatory minimum jail sentence for this highly stigmatizing offence. Therefore, the provisions are inconsistent with s. 7 of the Charter . (3) These violations cannot be justified by s. 1.

[7] Mr. Allen submits that in regard to subsection (3), the presumption substitutes a representation for proof of a guilty mind. In regard to subsection (4), he submits an 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. It is submitted that 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.

[8] The Crown submits these subsections allow police to conduct preventative operations by posing as children online and the Crown submits these subsections are constitutionally sound. Further, the Crown submits that appellate courts have upheld similarly worded procedural presumptions elsewhere in the Criminal Code. Should this court determine that either of the subsections are unconstitutional, the Crown submits that they meet a pressing and substantial objective subject to section 1 of the Charter.

The Facts

[9] On April 16, 2014, an O.P.P. detective constable assigned to the Internet Child Exploitation Unit, as part of his duties conducted a “sting” operation where he posed as a child on websites that, in his experience, were used by child predators. He browsed the sexual encounters area of Craigslist, Barrie, looking for advertisements that could be related to child exploitation. He noted an advertisement requesting “a young woman” and “prefer under 110 pounds”. He sent a private message to the person who posted this advertisement, posing as “Jenny”, a 14 year old girl from Innisfil. The O.P.P. officer sent a “selfie” picture to “Garry” as “Jenny”.

[10] Over approximately two months, “Garry’s” messages included sending “Jenny” links to two pornography websites, RedTube and Badjojo; asking whether “Jenny” had her period yet; requesting nude photographs though, ultimately, he instead asked for a picture in yoga pants; comments on her “sexy” body; asking whether “Jenny” masturbated and offering to direct her on how to do so; stating that he would like to have his tongue all over “Jenny’s” body and make her “feel like a woman”; and after talking about a meet-up, stating “if we meet on Wednesday and im not to gross for you can i touch your little butt [sic].”

[11] “Garry” sent a photo of himself in a Maple Leafs hooded shirt to “Jenny.” Like the photos sent by the O.P.P. officer, “Garry’s” photo did not show his face.

[12] Ultimately, “Garry” arranged to meet with “Jenny” on June 11, 2014, at a park in Innisfil. Prior to the meeting, “Garry” cancelled, saying that he had to cover for a colleague at work.

[13] By this point, the O.P.P. officer had obtained details about the I.P. address used by “Garry.” Craigslist’s servers are located in the United States, and a Homeland Security agent arranged for an American administrative subpoena to get this information. Upon receiving it, the O.P.P. Officer sent a request to Bell Canada, who provided the customer details associated with that particular I.P. address – Gary Phillip Allen of 101 Compton Crescent in Innisfil.

[14] Later that evening, after receiving judicial authorization, the O.P.P. officer and several O.P.P. and South Simcoe Police officers went to 101 Compton Crescent. There, they found Mr. Allen in the home. His wife and infant granddaughter were also present. Mr. Allen was arrested and transported to the South Simcoe police station, where he allegedly provided an inculpatory statement to the O.P.P. officer.

[15] Officers searched 101 Compton Crescent, and discovered a desktop computer with a user profile called “Garry.” Forensic examination retrieved photographs that were sent between “Jenny” and “Garry”, chats between them, and repeated use of the email address that “Garry” had provided to “Jenny.” Police also located a Maple Leafs sweater which appeared to match the one worn by “Garry” in a photo.

[16] For the following reasons, the Application is dismissed. I find ss. (3) and (4) of s. 171.1 and 172.1 of the Criminal Code are constitutionally valid.

The Legislation

Criminal Code

Making sexually explicit material available to child

171.1(1) Every person commits an offence who transmits, makes available, distributes or sells sexually explicit material to

(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.

Punishment (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 not more than two years and to a minimum punishment of imprisonment for a term of 90 days; or (b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than six months and to a minimum punishment of imprisonment for a term of 30 days.

Presumption (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 18, 16 or 14 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.

No defence (4) It is not a defence to charge under paragraph (1)(a), (b) or (c) that the accused believed that the person referred to in that paragraph was at least 18, 16 or 14 years of age, as the case may be, unless the accused took reasonable steps to ascertain the age of the person.

Definition of sexually explicit material (5) In subsection (1), sexually explicit material means material that is not child pornography, as defined in subsection 163.1(1), and that is

(a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means, (i) that shows a person who is engaged in or is depicted as engaged in explicit sexual activity, or (ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a person’s genital organs or anal region or, if the person is female, her breasts; (b) written material whose dominant characteristic is the description, for a sexual purpose, of explicit sexual activity with a person; or (c) an audio recording whose dominant characteristic is the description, presentation or representation, for a sexual purpose, of explicit sexual activity with a person.

2012, c.1, s.21 ; 2014, c. 25, s.8

Luring a child

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 under subsection 153(1), section 155, 163.1, 170 or 171 or subsection 212(1), (2), (2.1) or (4) with respect to that person; (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; (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.

Punishment (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 not more than 10 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 18 months and to a minimum punishment of imprisonment for a term of 90 days.

Presumption re age (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.

No defence (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.

2002, c. 13, s. 8 ; 2007, c. 20, s. 1; 2008, c. 6, s. 14 ; 2012, c. 1, s. 22 .

The Charter of Rights and Freedoms

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

1. …guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

2. 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.

3. 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.

[18] Section 171.1 is the make sexually explicit material available to a child offence. It is a recent addition to the Criminal Code and there is little reported jurisprudence with respect to this offence. Section 171.1 came into force in 2012 upon Bill C-10 receiving Royal Assent.

[19] Section 172.1 came into force in 2007. As such, there is a more fully developed body of jurisprudence interpreting this offence.

[20] Subsections (3) and (4) in both s. 171.1 and s. 172.1 are identical. They function in the same way. Both the Crown and Defence submit that these subsections apply to both the luring and make explicit material available offence sections, though the cases cited primarily relate to the more judicially-considered luring offence in s. 172.1 .

The Law

[21] A review of the relevant authorities and legal principles is set out by Durno J. in R. v. Ghotra, 2016 ONSC 1324, [2016] O.J. No. 957 in respect of the law. I adopt this review which can be found in Ghotra at paras. 9 to 36 . While this review relates primarily to internet luring, where applicable, I also adopt the analysis by Durno J. as it relates to subsection (3) and (4) of s. 171.1 (making explicit material available to a child).

The Charter Considerations

[22] Durno J. also provides a useful review of the relevant authorities and legal principles regarding s. 7 and s. 11 (d) of the Charter . I adopt the analysis of Durno J. which can be found at paras. 37 to 53 inclusive, in Ghotra .

Positions of Counsel

The Applicant’s Position

[23] The Applicant submits that ss. 171.1(3) and (4) and ss. 172.1(3) and (4) each make it essential that an accused call evidence in order to put the Crown to its burden of proof. The combined effect of the provisions impose a particularly heavy burden on the accused person to call evidence to rebut a finding that certain essential elements of the offence have been proven, even when in fact they have not been. It is submitted that these provisions violate the presumption of innocence and s. 11(d) of the Charter . Further, it is submitted that the cumulative effect of subsections (3) and (4) offends the presumption of innocence where the possibility exists that an accused might be convicted despite the existence of a reasonable doubt as to an essential element of the offence, namely, subjective belief in the age of the other person. It does not matter whether or not this results from the existence of a reverse onus provision [subsection (4)] or from the elimination of the need for the Crown to prove an essential element of the offence [subsection (3)]. If the trier of fact may have a reasonable doubt as to the essential element, notwithstanding proof beyond a reasonable doubt of the substituted element, then the substitution infringes section 7 and s. 11 (d) [^3] .

[24] It is submitted that evidence of the representation, without any critical analysis of the reliability of said representation, nor its likely effect on an individual, forces the accused to adduce contradictory evidence to prove his innocence. The Crown’s case is elevated to the level of a prima facie case without any critical analysis. This could thereby force an accused to demonstrate his or her innocence in a situation where the trier of fact already has reasonable doubt as to his or her guilt. It is submitted that an accused must actually meet a higher burden because his or her belief must be based on objectively reasonable steps. The quality of the evidence that would lead to a conviction is less than that which would be required for an acquittal.

[25] It is submitted that the combined effect of subsections (3) and (4) with regard to both impugned sections, in light of the clear essential elements of the offence set out by subsection (1), violates the presumption of innocence by relieving the Crown of its onus to prove the essential elements relating to belief and by removing the function of the impartial trier of fact from evaluating the cogency of the Crown’s evidence. The accused is forced to adduce evidence far beyond what should be necessary to raise a reasonable doubt about whether or not the offence has been committed. Further, even where the trier of fact has accepted evidence which would create a reasonable doubt, the accused would still be convicted if the actions of the accused did not amount to “reasonable steps”, which the accused bears the onus of demonstrating.

[26] In effect, it is submitted that the burden is reversed in a very real way on the accused and a conviction can result despite a reasonable doubt about numerous essential elements of the offence, resulting in a violation of s. 11(d) of the Charter .

[27] As for s. 7 of the Charter , taken together, ss. 171.1(3) and (4) and 172.1(3) and (4) band together to create a new form of fault element – “unreasonable innocent state of mind”. It is submitted that the practical effect of (3) and (4) is to reduce the offences defined under s. 171.1 and s. 172.1 in the case of “belief” offences, to offences which have less than the constitutionally mandated minimum fault element. It is submitted that to allow for the conviction of an accused person who did not possess the necessary mental state to be convicted via the combined effect of the presumptions and evidentiary provisions is to eliminate an assessment of actual guilty intention as a relevant consideration. It is submitted that a devastating and life-changing minimum jail sentence awaits the innocent person who never believed they were dealing with an underage person and never intended to facilitate any sexual offence resulting in a violation of s. 7 of the Charter.

The Crown’s Position

[28] The Crown submits that ss. 171.1 (3) and (4) and 172.1 (3) and (4) are constitutionally valid 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 he or she is communicating. It is submitted that the offence crystalizes before the contact with the other person. The offence of internet luring is complete at the point of communicating for the purpose of facilitation. What is criminalized is communication for the purpose of facilitating the commission of one of the designated offences.

[29] It is submitted that the presumption does no more than present a prima facie case to be met by an accused. The fact-finding function of the trial judge is not removed. The Crown is required to call evidence that the other person making the representation was under age.

[30] Where there is evidence to the contrary, the trial judge can decide the Crown does not have the benefit of the presumption. Reasonable doubt must be based on the evidence and is not a speculative doubt. It is submitted by the Crown that there cannot be a doubt founded on nothing.

[31] Further, the Supreme Court of Canada has held that the purpose of subsection (4) is to restrict “exculpatory claims of ignorance or mistake that are entirely devoid of an objective evidentiary basis.” See Levigne [^6], at para. 31 . A purely subjective belief is insufficient.

[32] Also, Parliament limited the availability of the “honest belief” offence to cases where the accused took “all reasonable steps” to ascertain the complainant’s age.

[33] The Crown notes that Levigne refers to the two provisions as procedural, that the Court of Appeal in Dragos [^7] 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 [^8], that the section mandates an inquiry into the basis for that belief.

[34] 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.

[35] 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’.

[36] The Crown relies upon R. v. Darrach, (1998), 38 O.R. (3d) 1, aff'd 2000 SCC 46, [2000] 2 S.C.R. 443 [^18]. In Darrach , 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.

[37] The Crown submits that the standard is not a civil standard or negligence standard. The impugned provisions do not create a new standard in respect of these offences. The Crown is still required to prove beyond a reasonable doubt that the accused did not take any reasonable steps to ascertain the other person was an adult.

[38] The Crown submits that the legislation is not overly broad. Parliament can criminalize individuals who were under the belief that the other person is a child. The fact that after the offence has crystalized it is learned that the other person is an adult is irrelevant because the offence crystalizes prior to the contact with the party with whom the accused is communicating. The offence is based on the accused’s belief at the time of communication.

[39] The Crown further submits that there is no rational basis for distinguishing “belief” offences and other offences where reasonable step provisions apply which courts have found consistent.

[40] The (4) standard ought to be read in light of jurisprudence on the reasonable step sections that say exactly the same thing. The (4) provision does not create a greater burden on the accused. It is submitted that it makes sense that the “belief” offences are treated the same as the other mistaken belief offences because the Crown is held to the higher standard of beyond a reasonable doubt. The reasonable steps requirement imposes no more than an evidentiary or tactical burden. The Crown still bears the burden of proving the offence beyond a reasonable doubt.

[41] The Crown also asserts that the prospect of wrongful conviction raised by the Defence is illusory. The Crown must prove the accused guilty beyond a reasonable doubt on the evidence. The (3) presumption is no more than a restatement of a prima facie case “in the absence of evidence to the contrary”. There is no conviction if there is reasonable doubt founded on the evidence. The Crown is required to prove that the other person is a child by the evidence. In absence of evidence to the contrary, the Crown has proved its prima facie case. If the accused calls no evidence or does not point to evidence that raises a reasonable doubt, the accused ought to be convicted. Where there is no evidence to the contrary and no evidence of reasonable steps, the accused cannot be acquitted. The Crown submits that the accused cannot sit in the dock and suppose that the impugned sections convicted him. It is the evidence that convicts him – when all of the evidence points to the accused’s belief that he was talking to a child and there is no evidence to the contrary and no evidence of the accused taking reasonable steps to ensure that he was not communicating with a person who was under age. In such circumstances, the Crown submits that the accused would be convicted because there would be no reasonable doubt and, accordingly, no wrongful conviction.

ANALYSIS

[42] It is common ground that protecting children from sexual abuse, online, is an important objective. To this end, Parliament responded by enacting s. 172.1 of the Criminal Code, commonly referred to as the “internet luring” offence. Section 172.1 criminalizes the facilitation, or attempted facilitation, of a child’s sexual exploitation over the internet. To root out and stop child luring, the police conduct sting operations.

[43] The Defence submits that the “belief” category of offences as set out in ss. 171.1(1) and 172.1(1) constitute a very different class of offence than those involving actual children. For the following reasons, I disagree:

I: The Internet Luring and Make Explicit Material Available Offences

[44] The make explicit material available offence [s. 171.1 (1)] prohibits communication over the internet for the purpose of facilitating the sexual exploitation of a child. It prohibits a type of “grooming” employed by child predators. The offence is inchoate and does not depend on the occurrence of actual exploitation.

[45] Much like the make explicit material offence, the internet luring offence [s. 172.1(1)] prohibits communication over the internet for the purpose of facilitating the sexual exploitation of a child. The offence is inchoate and does not depend on the occurrence of actual exploitation. As Justice Fish explained in Legare [^4], writing for the Court:

Section 172.1 criminalizes conduct that precedes the commission of the sexual offences to which it refers, and even an attempt to commit them. Nor, indeed, must the offender meet or intend to meet the victim with a view to committing any of the specified secondary offences. This is in keeping with Parliament’s objective to close the cyberspace door before the predator gets in to prey. [emphasis in original] [^5]

[46] I agree with the Crown submissions found at paragraphs 28-30 in the Crown’s factum:

The offence, then, crystallizes prior to contact with the party with whom the accused is communicating with. This aspect of internet luring erodes the distinction the Applicant seeks to draw in his factum between “belief” offences and offences involving actual children. There is no distinction; there is only one offence – internet luring – and that offence is complete at the point of facilitation. The fact that an accused may not have actually exploited a child is not an element of the offence.

The fact that the “child” interlocutor subsequently turns out to be an officer cannot ex post facto validate the accused’s belief. If anything, it proves the accused’s claim to be false as he obviously did not believe that he was communicating with a police officer. This absurd reasoning shows that, in the context of this offence, nothing is gained by describing ex post facto the accused’s belief as correct or mistaken because this plays no role in the determination of guilt. The offence is based on the accused’s belief at the time of the communication.

The possibility of exploitation is, however, the animating factor behind ss. 171.1 and 172.1 as a whole and the very evil the legislation seeks to contain. In keeping with constitutional norms about the presumption of innocence and the requirement of a minimum mens rea , subsections (3) and (4) leave intact the burden on the Crown to prove guilt beyond a reasonable doubt, while foreclosing exculpatory claims of ignorance that are entirely devoid of an objective evidentiary basis. Accordingly, the Respondent submits that both ss. 171.1(3) and (4) and 172.1(3) and (4) are constitutionally valid.

Upon this analysis which I accept, I find both ss. 171.1(3) and (4) and s. 172.1(3) and (4) are constitutionally valid.

II: Subsection 171.1(3)-(4) and 172.1(3)-(4): A Limited Defence of Mistake of Age

[47] Justice Fish wrote both Legare and Levigne [^6] for the Supreme Court of Canada. In Levigne , he described s. 172.1 as being “invested with a synergetic combination of four defining characteristics, two substantive and two procedural”. Section 172.1(1) defines the offence, while s. 172.1(2) prescribes punishment. The procedural provisions are ss. 172.1(3)-(4), which Fish J. summarized in Levigne as follows:

Read together and harmoniously with the overarching purpose of s. 172.1 , the combined effect of subs. (3) and (4) should be understood and applied in this way:

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

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.

The prosecutor 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.

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).

[48] Where the evidential burden of 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.

[49] In R. v. Dragos [^7], Justice Cronk wrote that “s. 172.1(4) 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”. In R. v. Saliba [^8], a 2013 judgment that addresses the proper interpretation of s. 150.4(1) of the Criminal Code, and which contains almost identical “reasonable steps” language, Justice Doherty described the proper analytical approach to a “reasonable steps” inquiry:

Section 150.1(4) is not concerned with the accused’s belief as to a complainant’s age. Indeed, the section assumes that the accused believes that the complainant is old enough to give legal consent and requires an inquiry into the basis for that belief. The trial judge did not make that inquiry.

Under generally applicable criminal law principles, a belief that a person is old enough to consent, or, more accurately, a reasonable doubt as to the existence of that belief, would be enough to lead to an acquittal, assuming the complainant had been a willing participant in the sexual activity. Parliament, however, by enacting s. 150.1(4) , has limited the availability of the “honest belief” defence to cases where the accused has taken “all reasonable steps” to ascertain the age of the complainant.

As explained in R. v. Dragos (2012), 2012 ONCA 538 , 291 C.C.C. (3d) 350, at paras. 29-33 (Ont. C.A.), s. 150.1(4) mandates an inquiry akin to a due diligence inquiry. The trier of fact must compare the steps, if any, taken by an accused to determine the true age of a complainant with the steps that a reasonable person would have taken in those circumstances. Of course, unlike the more familiar due diligence inquiry, the s. 150.1(4) analysis does not place any onus on the accused. The onus is on the Crown to prove beyond a reasonable doubt that all reasonable steps were taken: Duran, at para. 54. [^9]

[50] I find the onus remains on the Crown to prove beyond a reasonable doubt that all reasonable steps were not taken. The impugned provisions do not create a new standard of proof regarding these offences. There is no conviction if there is reasonable doubt founded on the evidence. The Crown, as in any prosecution, is still held to the criminal standard. Moreover, presumption as to belief in age is not a reverse onus provision requiring the accused to disprove an element of the offence, as argued by the Applicant. Nor does it compel evidence from the accused or require him to testify. Evidence to the contrary, namely evidence that tends to show that the accused believed the interlocutor to be an adult, can come from any source, including the Crown’s case, but most often from the internet communication itself. This has been made explicitly clear by the Ontario Court of Appeal.

[51] I find sections 171.1 (3)-(4) and 172.1(3)-(4) impose no persuasive burden on a defendant. What they do, however, is restrict the mistake of age defence to eliminate “exculpatory claims of ignorance or mistake that are entirely devoid of an objective evidentiary basis”. In order to properly protect a vulnerable segment of society, children, the provisions have been drafted and interpreted to require individuals communicating over the internet to exercise a degree of attention to not only what they are doing, but also who they may be doing it with. Such an approach fulfils the animating policy behind the internet luring provisions and accords with prior constitutional parameters set by provincial appellate courts and the Supreme Court of Canada. [^10]

III: Constitutional Mens Rea Requirements for Criminal Offences

[52] 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.

[53] It is a principle of fundamental justice that any offence punishable by imprisonment must have a mens rea component. At minimum, a due diligence defence must be available to a defendant; otherwise his liberty and security of the person rights will be infringed. While ss. 171.1(3)-(4) and 172.1(3)-(4) are relatively new, analogous “reasonable steps” provisions have existed in the Criminal Code for over 25 years. These requirements are found in ss. 150.1(4) and 273.2 (b) and have previously been found constitutional by several Canadian appellate courts.

(A) Section 150.1(4): R. v. Hess; R. v. Nguyen

[54] Section 150.1(4) was enacted in 1987 to replace s. 146(1) of the Criminal Code, which read as follows:

Every male person who has sexual intercourse with a female person who a) is not his wife, and b) is under the age of fourteen years, whether or not he believes that she is fourteen years of age or more, is guilty of an indictable offence and is liable to imprisonment for life.

[55] Section 146(1) was challenged as unconstitutional in R. v. Hess and R. v. Nguyen [^11], two appeals that were heard at the same time in 1990 by the Supreme Court of Canada. Justice Wilson, writing the majority decision in both appeals, found that s. 146(1) violated section 7 of the Charter by removing from consideration a bona fide mistaken belief of age. This violated an accused’s right to liberty by risking the imprisonment of a “mentally innocent” person. Wilson J. wrote:

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, the degree of attention which the law requires, and which he is capable of giving” . [emphasis added] [^12]

[56] At minimum, a due diligence defence must be available to a person accused of a criminal offence. Section 146(1) did not provide one and, as such, violated section 7 of the Charter . It was also not capable of being saved under section 1. Importantly, however, for present purposes, within Wilson J’s section 1 analysis specific reference was made to the current section 150.1(4) provisions, which had been proclaimed in force by the time of the Hess and Nguyen appeals:

Section 150.1(4) limits the range of defences available to an accused charged under these sections, removing the defence of consent by allowing a due diligence defence […] Parliament has concluded that it can effect its objective of protecting young females from the undesirable consequences of premature sexual intercourse in a manner that does not restrict an accused’s right as much as s. 146(1). [emphasis added] [^13] [^14] [^15]

[57] The constitutional validity of s. 150.1(4) has been further entrenched by two subsequent provincial appellate decisions. In R. v. R.S.M. [^16], the P.E.I. Court of Appeal heard a section 7 challenge to s. 150.1 of the Criminal Code. Justice Mitchell (as he then was) wrote for the panel and dismissed the specific complaint regarding s. 150.1(4) as follows:

This provision allows a defence to a morally innocent person who has taken reasonable steps to ascertain the child’s age. That meets the minimum standard to avoid offending s. 7 identified by Wilson J. in R. v. Stevens, [1988] 1 S.C.R. 1153 [^14] at p. 1177. What constitutes reasonable steps will of course depend on the circumstances of each case. Sometimes it will not take much. [emphasis added] [^16] [^17]

(B) Section 273.2(b): R. v. Darrach

[58] Section 273.2 of the Criminal Code currently reads as follows:

It is not a defence to charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where a) The accused’s belief arose from the accused’s (i) self-inducted intoxication, or (ii) recklessness or wilful blindness; or b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.

[59] R. v. Darrach [^18] was a challenge to the “rape shield” provisions heard before the Court of Appeal in 1998. As part of this appeal s. 273.2(b) was alleged to violate ss. 7 and 11(c) of the Charter . Associate Chief Justice Morden, writing for the panel, dismissed this aspect of the argument in clear and convincing terms:

With respect to the challenge to s. 273.2 (b) based on s. 11 (c), I say, quite simply, s. 11 (c) has no application. There is no testimonial compulsion. Neither does s. 273.2 (b) shift any onus onto the accused. It may be that this provision, and s. 265(4) of the Code (which is concerned with the “defence” of honest belief in consent in assault cases of any kind), will, in some cases, have the effect of placing a tactical or evidential burden on an accused person to adduce some evidence capable of raising a reasonable doubt. This does not involve any constitutional infringement. I refer to my reasons relating to s. 276.2(2). [emphasis added] [^18]

[60] I have also considered the decision of Durno J. in R. v. Ghotra, where Mr. Ghotra brought an application for a determination that ss. 172.1(3) and (4) of the Criminal Code violated his ss. 7 and 11(d) Charter Rights. He was charged with internet luring of a child. Allegedly, by means of a computer system, he communicated with a person whom he believed was under the age of 16 years for the purpose of committing the offence of sexual interference. Mr. Ghotra was communicating with an adult, a police officer who represented herself to be 13 years old. Section 172.1 included two procedural presumptions, the presumption of age and the due diligence requirement. Mr. Ghotra took the position that both provisions violated the Charter when the other person was an adult and the accused believed he or she was communicating with an adult. The Crown took the position that the provisions were constitutionally valid.

[61] Durno J. dismissed the application. He held that s. 172.1(3) of the Criminal Code did not create a reverse onus where the accused would be required to establish a fact. It also did not require an accused to disprove an element of the offence. The evidence to the contrary requirement did not offend the principle that a reasonable doubt could arise from the absence of evidence. Section 172.1(4) did not create a reverse onus or place the burden of proof on the accused regarding an element of the offence on a balance of probabilities. What it required was due diligence, and requiring an accused to show that he or she exercised due diligence was consistent with ss. 7 and 11(d) of the Charter . The provisions were therefore constitutionally valid. Durno J. was not satisfied that the impugned provisions violated ss. 7 or 11(d) of the Charter .

[62] The Crown submits that prior decisions respecting the constitutionality of near-identical provisions are a complete answer to the Applicant’s claim in the present case. I agree. The internet luring and make explicit material available offences place no persuasive burden on an accused party. At most, in some cases an evidential burden will be imposed. As Darrach explains, no constitutional infringement is occasioned in such circumstances.

[63] The Crown and Defence do not disagree that as a practical reality, online sexual exploitation is of pressing and substantial concern to the Canadian public. Parliament has responded to that concern by enacting legislation that permits the police to ferret out the exploiters in a manner that, to the greatest extent possible, prevents future harm to real children. I find the internet luring offence crystalizes at the point of facilitation, prior to the interlocutor’s true identity (either actual child or undercover officer) being revealed. Section 171.1(3)-(4) and 172.1(3)-(4) operate in a manner, as Justice Doherty said in Saliba, “akin to a due diligence inquiry”, but while still requiring the persuasive burden to remain on the Crown. Such an approach is constitutional.

[64] As I have found that ss. 171.1(3)-(4) and 172.1(3) - (4) are constitutional and do not violate ss. 7 or 11(d) of the Charter , it becomes unnecessary for me to conduct a section 1 analysis pursuant to the Charter.

DISPOSITION

[65] For these Reasons, the application is dismissed.

DiTOMASO J.

Released: January 17, 2017

[^1]: Throughout the reasons I will refer to the person with whom an accused was communicating as the “other person.” [^2]: Throughout the reasons, I will refer to persons who are over the specified age in the legislation as adults. [^3]: R. v. Vaillancourt, [1987] 2 S.C.R. 636 at paras. 31-32 [^4]: R. v. Legare, 2009 SCC 56, [2009] 3 S.C.R. 567 at para. 25 [^5]: This footnote was empty in the original HTML, but the text [emphasis in original] is part of the quote from Legare. I will keep it as an empty footnote to preserve the original numbering if it was intended to be a placeholder. [^6]: R. v. Levigne, 2010 SCC 25, [2010] 1 S.C.R. 608 at paras. 26, 32 [^7]: R. v. Dragos, (2012), 2012 ONCA 538, 291 C.C.C. (3d) 350 (Ont. C.A.) at paras. 14, 32-33 [^8]: R. v. Saliba (2013), 2013 ONCA 661, 304 C.C.C. (3d) 133 (Ont. C.A.) at paras. 26-28 [^9]: R. v. Dragos, supra, at para. 35 [^10]: R. v. Levigne, 2010 SCC 25, [2010] 1 S.C.R. 608 at para. 31 [^11]: R. v. Hess; R. v. Nguyen, [1990] 2 S.C.R. 906 [^12]: R. v. Hess; R. v. Nguyen, [1990] 2 S.C.R. 906 at para. 13 [^13]: R. v. Hess; R. v. Nguyen, [1990] 2 S.C.R. 906, at paras. 31-33 [^14]: R. v. Stevens, [1988] 1 S.C.R. 1153 at 1182-3 [^15]: R. v. Pengelley, (2010), 2010 ONSC 5488, 261 C.C.C. (3d) 93 (Ont. S.C.J.) para. 17 [^16]: R. v. R.S.M. [1991] P.E.I.J. No. 134 (P.E.I. C.A.) [^17]: R. v. Hann (1992), 75 CCC (3d) 355 (Nfld. C.A.) [^18]: R. v. Darrach, [1998] O.J. No. 397 (Ont. C.A.) at para. 94