R. v. West, 2023 ONSC 709

Warning

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue and an order under s. 648 is now in place. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

648 (1) After permission to separate is given to members of a jury under subsection 647(1), no information regarding any portion of the trial at which the jury is not present shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.

Offence

(2) Everyone who fails to comply with subsection (1) is guilty of an offence punishable on summary conviction.

(3) [Repealed, 2005, c. 32, s. 21]

COURT FILE NO.: CR-22-009-00AP

DATE: 20230127

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

Respondent

– and –

ADAM WEST

Appellant

Jennifer Armenise, for the Crown

Michelle Biddulph, for the Appellant

HEARD: December 19, 2022

JUDGMENT

VERNER j.

1On September 10, 2021, the Appellant was convicted of two counts of possession of child pornography and one count of child luring by Justice A.M. Nichols. He was sentenced to a total of 18 months in custody followed by 2 years probation. He now appeals his convictions.

The Facts

2The Appellant met the complainant S.H. on a website called Ashley Madison in 2018. He paid her to send him nude photos and videos of herself. In registering with Ashley Madison, an adults only website, S.H. indicated she was 18 years old. However, she was in fact 16 at the time she met the Appellant. After their initial encounter they communicated via text, Facebook Messenger, and Snapchat.

3The Appellant testified that based on the fact she had to be 18 to register with Ashley Madison, he assumed that she was at least 18. The Appellant knew that S.H. was in high school when they first met. However, S.H. explained that she already had her high school diploma, she was only going back to improve her grades.

4S.H.’s sister T.H. discovered that S.H. was sending inappropriate photos to the Appellant.

5In the summer of 2018, T.H. and T.H.’s friend B.V. confronted the Appellant and informed him that S.H. was underage. Immediately thereafter the Appellant asked S.H. why her sister T.H. would tell him that she was underage. S.H. told the Appellant that her sister was lying to him, and told him that she was indeed 18 years old.

6After this conversation, the communication between the Appellant and the complainant stopped. However, a few months later, they resumed their relationship, such that the Appellant sent S.H. more money in exchange for more photos and videos. There were no further efforts made in the fall to confirm S.H. was indeed 18.

7Police obtained a search warrant for the Appellant’s computers and his telephone. The search produced evidence of the communication the Appellant had with S.H. (count 3), evidence that the Appellant had images and videos of S.H. that met the definition for child pornography in his possession (count 2), as well as other images that amounted to child pornography, which involved children other than the complainant in this matter (count 1).

The Trial Proceedings

8At trial, the Appellant argued that the evidence on his devices was seized in violation of s.8 of the Charter of Rights and Freedoms and he sought to exclude the evidence pursuant to s. 24(2). The trial judge found there was no breach of s. 8 and therefore she did not consider whether the evidence should be excluded. The Appellant further sought a stay of proceedings pursuant to s. 11(b). The trial judge found that the delay in the case was not unreasonable.

9At trial, the Crown called four civilian witnesses and an officer. The Appellant testified on his own behalf. The trial judge identified parts of the Appellant’s evidence as “non-sensical”. She found other parts of his evidence were internally inconsistent (in particular, she found some parts of his evidence “belied” other assertions that he made). She explicitly noted that she did not believe him and that his evidence did not raise a reasonable doubt as to his guilt.

The Issues

10The Appellant raises four grounds of appeal in his factum:

(1) The warrant was insufficient to support a search of the home computers and therefore there was a breach of s. 8 of the Charter;

(2) The trial judge erred in dismissing the s. 11(b) application;

(3) The trial judge misapplied the test for reasonable steps; and,

(4) The trial judge applied the wrong test for the mens rea of the offences involving S.H..

(1) Was section 8 of the Charter violated?

11With respect to the s.8 issue, which is raised for the first time on appeal, the Appellant submits that although there was support in the warrant to search his phone, there was no support to search his home computers. Accordingly, the search of his computers violated his constitutional right against unreasonable search and seizure, as is protected by s. 8 of the Charter.

12Although courts may hear new issues raised at the first time on appeal, they are reluctant to do so where the respondent may have introduced evidence at trial to assist in assessing the issue. R. v. Roach, 2009 ONCA 156 at para 7; R. v. Brown, 1993 114 (SCC), [1993] 2 S.C.R. 918 (S.C.C.), at p. 923; R. v. G. (L.), 2007 ONCA 654at para. 43; and R. v. R. (R.)(1994), 1994 8728 (ON CA), 91 C.C.C. (3d) 193 (Ont. C.A.), at pp. 198-199.

13In the case at bar, the Appellant argued that since the modes of communication used by the Appellant and the complainant, namely text messages, Facebook Messenger and Snapchat, are mobile applications, there was only a basis to search his phone, not his computer.

14Significantly, the warrant itself is silent on why the communication may be found on the phone, rather than other devices. The Appellant’s counsel is the one who argues common sense dictates that people use their phone to send messages via text, Facebook Messenger and Snapchat, rather than their computers. Thus, according to the Appellant’s counsel, the warrant supported the search of his phone, but no other devices.

15In response, the Crown points out that at least Facebook is often used on a home computer, rather than a phone, and moreover, the warrant also sought online banking records, which are at least equally likely to be found on a home computer, as they would be on a cellular phone. Since this issue was raised for the first time on appeal, Crown counsel was not afforded the opportunity to cross-examine the affiant on whether there was a basis to search the computers. The Crown did not have the opportunity to ask the officer, for example, if she reasonably believed that the Facebook communications between the Appellant and the complainant, and the online banking records may be on the computer, and not on the phone.

16Given the possible questions that could have been put to the affiant at trial, I find it is not appropriate for this issue to be raised for the first time on appeal. Even if it was, the result would be the same. I accept the Crown’s position that there was reason to believe that at least some of the communications and at least some of the relevant banking records would be on his computer, but not on his telephone. There were sufficient grounds to search the home computers.

(2) Was the Appellant’s right to a trial within a reasonable time violated?

17The Appellant argued in his written material that the trial judge erred in dismissing the s. 11(b) argument. However, his counsel did not address this issue in oral submissions.

18In her ruling, the trial judge accepted that her unavailability (the trial judge’s unavailability), in the midst of COVID-19, was unforeseen and unavoidable. She accordingly attributed 28 days of the delay to this exceptional circumstance. She further found that Defence counsel’s unavailability to accept the dates for a JPT offered between October 8, 2019 and January 6, 2020, resulted in 63 days of defence delay. The trial judge ultimately accepted the Crown’s position that the net delay was just over 16 months. She accordingly found that the Jordan ceiling (R. v. Jordan, 2016 SCC 27) was not breached.

19At the initial motion, the Appellant submitted that the net delay was 18.8 months. He conceded in his factum on this appeal that “it may have been appropriate to attribute several weeks of [the 18.8 month] delay to the defence due to [defence counsel’s] unavailability”. In other words, the Appellant does not strenuously challenge the fact that the trial was heard within the Jordan ceiling of 18 months.

20Instead, the Appellant’s main argument seems to be that, although the Jordan ceiling may not have been breached, the delay was unreasonable. In response to this argument, the trial judge noted that although the Appellant had done some things to move the matter forward quickly, he did not accept the earliest available dates on every occasion. In other words, defence counsel did not move matters around to accept the earliest available dates. He had done some things to move the matter forward, but not everything he could have. More importantly, she found that, in the midst of the COVID-19 backlog, this case that involved four civilians, a police officer and the accused all called as witnesses, did not take markedly longer than it should have to get to verdict.

21When the length of the delay is considered in the context of the COVID-19 backlog, and considered in light of the actions of the parties, I agree with the trial judge that the Appellant’s constitutional right to a trial within a reasonable time was not violated.

(3) Did the Trial Judge misapply the reasonable steps threshold?

22The Appellant submits that the trial judge erred in applying the reasonable steps test for s. 172.1(4). The luring section reads:

172.1 (1) Every person commits an offence who, by means of a computer system within the meaning of subsection 342.1(2), communicates with

(a) a person who is, or who the accused believes is, under the age of eighteen years, for the purpose of facilitating the commission of an offence under subsection 153(1), section 155 or 163.1, subsection 212(1) or (4) or section 271, 272 or 273 with respect to that person;

(b) a person who is, or who the accused believes is, under the age of sixteen years, for the purpose of facilitating the commission of an offence under section 280 with respect to that person; or

(c) a person who is, or who the accused believes is, under the age of fourteen years, for the purpose of facilitating the commission of an offence under section 151 or 152, subsection 160(3) or 173(2) or section 281 with respect to that person.

(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.

23“Reasonable steps” are the steps that a reasonable person would have taken in the circumstances to ascertain the complainant’s age (R. v. George, 2017 SCC 38 at para. 9). As explicitly noted by the trial judge in this case in her section titled “THE LAW”:

…the reasonableness of those steps must be assessed in light of the circumstances known to the accused at the time. Regina v. Morrison, [2019] 2 S.C.R. 4 at para. 108 and 105

24The trial judge concluded that the Appellant did not take reasonable steps in the following passage:

In relation to [the complainant] Mr. West was clearly told that she was underage in the summer of 2018. The majority of the steps that he had taken to ascertain that she was 18 were prior to his communication with [B.V.] and [the complainant’s sister]. After he was told [the complainant] was underage he simply confirmed with her she was 18 and relied on his previous knowledge. I do not find that he complied with the reasonable steps requirement set out above. Clear red flags were raised yet he continued to communicate and accept pictures from her after being told she was underage. He could have easily asked her to send a photo of a piece of identification, given she was sending him a multitude of other images.

25Before me, the Appellant emphasizes there were a number of factors supporting a belief that the complainant was at least 18 years old and thus, after being told she was not 18, reasonable steps in the circumstances required no more than him asking her age.

26In R. v. George, supra the Supreme Court noted that since young people often lie about their age, asking the complainant her age is not always sufficient to meet the reasonable steps test:

[I]t would be an error to assert that a reasonable person would do no more than ask a partner's age in every case, given the commonly recognized motivation for young people to misrepresent their age (R. v. Dragos, 2012 ONCA 538, 111 O.R. (3d) 481, at paras. 17, 26, 45 and 51 ("Dragos"); L. Vandervort, "'Too Young to Sell Me Sex?!' Mens Rea, Mistake of Fact, Reckless Exploitation, and the Underage Sex Worker" (2012) 58 Crim. L.Q., 355 at pp. 360 and 375; J. Benedet, 2015 SKCA 61, 21 C.R. (7th) 166, at p. 168 ("Benedet"); Stewart, at p. 4-26.1).

27The question in the case at bar is, what constitutes reasonable steps in the context of these facts:

(i) The Appellant took minimal steps, if any to confirm she was 18 before he spoke to her sister (see para. 16);

(ii) The complainant’s sister made it clear for the Appellant that the complainant was underage; and,

(iii) The Appellant did no more than ask the complainant, who had an obvious motive to lie, how old she was.

28The trial judge made no error in finding that the Appellant had to do more than simply ask the complainant her age in these circumstances. As the trial judge pointed out, “clear red flags” had been raised and moreover, given the circumstances, he could have easily asked for identification or some sort of proof of age. I dismiss this ground of appeal.

(4) Did the trial judge err in finding that the Appellant had the mens rea for the offences before the court?

29Finally, the Appellant argues that the trial judge erred in her assessment of the mens rea both for child luring under s. 172.1 and for possession of child pornography under s. 163.1, in relation to the offences involving S.H (counts 2 and 3).

30The mens rea for the offence of child luring was considered by the Supreme Court in R. v. Morrison, 2019 SCC 15. The majority in Morrison concluded that when the complainant is not underage, nothing short of proving the accused believed the complainant is underage would support a conviction. Recklessness with respect to age is insufficient. The majority further clarified that even where the Crown negates the reasonable steps defence, the Crown still must prove the accused believes the complainant is underage, or was wilfully blind to that possibility.

31It was not clear from R. v. Morrison that where the complainant is indeed under 18, the Crown has to prove the accused believed the complainant was underage or was wilfully blind to that fact. In fact, Moldaver J. explicitly and repeatedly states in his judgment that he was only considering the situation where the Crown cannot prove that the complainant is underage (see paras. 55. 81, 84, 95, 101, 102). He also clarifies at para. 55 that he finds the Crown must prove the accused believes the complainant is underage, because the language in s.172.1 (1)(b) stipulates that belief in underage is an element of the offence. Section 172.1(1)(b) only stipulates that belief in underage is an element, where the Crown cannot prove the complainant is actually underage. It states:

172.1 (1) Every person commits an offence who, by means of a computer system within the meaning of subsection 342.1(2), communicates with

(b) a person who is, or who the accused believes is, under the age of sixteen years, for the purpose of facilitating the commission of an offence under section 280 with respect to that person [bold added]

32Following Morrison, Doherty J.A. emphasized in R. v. Carbone, 2020 ONCA 394 that Moldaver J.’s decision was restricted to situations where the complainant is underage (see paras. 92-93). He arguably implied that the mens rea for child luring would be different if the complainant was not underage. For example, Doherty J.A. stated:

The language used in s. 172.1(1) is consistent with the application of the criminal law principles of fault and restraint. If the person communicated with was not under 16, s. 172.1(1)(b) requires the Crown to prove the accused "believed the person to be under 16". On a plain reading, the accused's actual state of mind, that is his "belief the person was under 16", is an essential element of the offence. That element stands in place of the requirement that the Crown prove the person communicated with was actually under 16 in those situations in which the Crown alleges the accused was communicating with a person under 16. Just as the Crown must prove the complainant's age when the Crown alleges communication with a person under 16, it must prove the accused's belief when it alleges communication with a person the accused believed was under 16: Alicandro, at para. 30. [Bold added.]

33Following Carbone, Davies J. considered the issue in R. v. Mootoo, 2021 ONSC 5984 at para. 105-106 and found that recklessness may be sufficient for child luring when an actual child is involved. However, she did not need to decide the issue in that case.

34Very recently, the Court of Appeal stated in R. v. S.R., 2023 ONCA 35, without any analysis of the issue, that where the complainant is indeed under 18, the Crown is required to prove that the accused knows the complainant is underage. It is unclear if the court intended to restrict the offence to those who believed or knew the complainant was underage, and intentionally precluded the possibility that recklessness would be sufficient, since the court emphasized that the trial judge in that case found that the accused had knowledge that the complainant was under 18.

35I find that I need not decide the issue, since the trial judge in this case also found that the accused had knowledge, or at least wilful blindness which equates to knowledge, of the complainant’s age.

36To summarize the key facts as found by the trial judge:

(i) The Appellant knew the complainant was in high school and took at most minimal steps initially to ensure the complainant was 18 (see para. 16).

(ii) The Appellant was “clearly” told that the complainant was not 18 by the complainant’s sister in the summer of 2018 in a “heated” exchange.

(iii) The complainant ended his relationship with the complainant after that exchange with the complainant’s sister.

(iv) When his relationship with the complainant resumed a couple of months later at the complainant’s request, the Appellant never raised the issue of her age again.

(v) And when the complainant expressed fear that her sister, who did not want her to engage in the relationship due to her age, would find out, the Appellant said, “no one will know” (this text message was entered into evidence).

37Moreover, the trial judge found the Crown evidence to be “credible, reliable and compelling”, and “did not believe [the Appellant], nor did his evidence raise a reasonable doubt”. In fact, she found his evidence internally inconsistent and non-sensical.

38Based on these findings, the trial judge concluded that:

Mr. West was communicating with someone he knew, or at least did not take reasonable steps to ascertain was under the age of 18.

I acknowledge that it would have been an error for the trial judge to rely on a failure to take reasonable steps to convict. However, the courts in both Morrison (para. 88) and Carbone (para. 121), emphasized that practically speaking, where the complainant is indeed underage, there is little difference between negating the reasonable steps defence and proving willful blindness that the complainant is underage. Consistent with the observations in those two cases, when the trial judge’s conclusion that the Appellant “knew or at least did not take reasonable steps to ascertain” the complainant’s age, is read in the context of her findings as a whole, it is apparent that the trial judge found that the Appellant either knew or was wilfully blind as to the complainant’s age.

39The trial judge’s conclusions properly support a finding of guilt with respect to child luring.

40The Appellant further submits that the trial judge erred in applying the mens rea for possession of child pornography. It is unclear to me whether the Crown has to prove knowledge of the complainant being underage for possession of child pornography under s. 163.1(4) (R. v. Joseph, 2020 ONCA 733 at para. 42), or if the Crown only needs to prove the accused was aware of the contents of the images and videos (see R. v. Sinclair, 2022 MBCA 65 at para. 37). However, I do not need to answer this question, since the trial judge’s findings support a guilty verdict no matter what the mens rea may be. As I already noted, the trial judge found the Appellant knew or was wilfully blind as to the fact the complainant was underage.

41I therefore dismiss this ground of appeal.

42The appeal is dismissed.

The Honourable Madam Justice Catriona Verner