Court File and Parties

Court File No.: CR-24-0062-0000
Date: 2025-05-30
Court: Ontario Superior Court of Justice
Location: Milton

Between:
His Majesty the King
H. Apel, for the Crown

-and-

S.
A. Marchetti, for the Accused

Restriction on Publication

Pursuant to s. 486.4 of the Criminal Code an order has been made restricting the publication in any document or broadcast or transmission in any way of certain information.

Bloom, J.

I. Introduction

[1] The Accused is charged with the following offenses:

THAT on or about the 23rd day of November in the year of 2021 at the Town of HALTON HILLS in the said Region, did publish make child pornography to wit: text messages contrary to Section 163.1(2) of the Criminal Code of Canada;

AND FURTHER THAT on or about the 23rd day of November in the year 2021 at the Town of HALTON HILLS in the said Region, did have in his possession child pornography to wit: text messages contrary to Section 163.1(4) of the Criminal Code of Canada.

[2] The trial of this matter took place after my ruling on the Accused’s motion for dismissal. My reasons on that motion defined, for purposes of the trial in this matter, legal principles which had been in dispute.

[3] Further, the evidentiary record at trial consisted of two exhibits, a short agreed statement of facts, and a set of text messages between the undercover police officer assuming the identity of another person and the Accused; these text messages were exchanged on November 23 and 24, of 2021.

[4] The Accused called no evidence.

[5] The issue in dispute was whether the Crown had proven beyond a reasonable doubt that the person with whom sexual activity was depicted in the text messages was under 18 years of age.

[6] These are my reasons for judgment at the trial.

II. Undisputed Facts

[7] On November 23 and 24, of 2021 an undercover police officer pretending to be another person exchanged text messages with the Accused.

[8] On November 24, 2021 the Accused was arrested, and the text messages were seized from his cellular phone.

[9] The text messages depicted sexual activity between the person portrayed by the officer and other persons, including the Accused.

[10] The Accused was addressing in the text messages a person, whom he believed to be the person with whom he had had earlier interactions; the officer was portraying that person in the text message communications.

[11] Particularly relevant to the issue before me is the following exchange of text messages on November 23, 2021:

• Officer 5:14:33: Maybe because I was 13 u were scared
• Officer 5:14:38: I was nervous
• Accused 5:14:38: Yes lol [“lol” is agreed by the parties to mean “laugh out loud”]
• Accused 5:14:53: It will be easier for us both
• Officer 5:15:24: Im 14 now [a happy face is also present at the end of the message]
• Accused 5:15:20: You are extremely exciting
• Accused 5:15:37: Should we celebrate

[12] The Accused on November 23, 2021 at 5:23:49 asked whether the person being portrayed had had sexual intercourse frequently “since me.”

III. Applicable Statutory Provisions

[13] To explain properly the arguments of the parties it is useful to set out the applicable statutory provisions from the Criminal Code:

Definition of child pornography

S.163.1 (1) In this section, child pornography means

(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 or is depicted as being under the age of eighteen years and 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 sexual organ or the anal region of a person under the age of eighteen years;

(b) any written material, visual representation or audio recording that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act;

(c) any written material whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act; or

(d) any audio recording that has as its dominant characteristic the description, presentation or representation, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act.

Making child pornography

(2) Every person who makes, prints, publishes or possesses for the purpose of publication any child pornography is guilty of an indictable offence and 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.

Possession of child pornography

(4) Every person who possesses any child pornography is guilty of

(a) an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or

(b) 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.

IV. Arguments of the Parties

A. Arguments of the Accused

[14] The Accused argues that the charges before the court have not been proven beyond a reasonable doubt.

[15] His argument specifically focuses on the definition of “child pornography.” He contends that the Crown has not proven beyond a reasonable doubt the element of “with a person under the age of eighteen years”. That element is present in both s. 163.1(1)(b) and (c) of the Criminal Code, on both of which the Crown is entitled to rely in respect of both counts before the court.

[16] The Accused argues that I must apply the principles in R. v. Villaroman, 2016 SCC 33 to the evidence on that issue; and that I must also be cognizant of the principles in R. v. Starr, 2000 SCC 40 in assessing whether proof beyond a reasonable doubt has been made.

[17] He contends that, in applying those principles, I must have regard to the lack of evidence of the relevant factual context, in particular the lack of evidence explaining the pre-existing interactions between the Accused and the person the officer was portraying.

[18] The Accused argues that the numbers 13 and 14, used in the text communications upon which the Crown relies to prove the element of an age less than eighteen years, have not been proven beyond a reasonable doubt to relate to the age of the person being portrayed by the officer. The Accused argues that other inferences open to me under the Villaroman principles prevent proof of age under eighteen years beyond a reasonable doubt.

[19] In support of his argument the Accused also relies upon the contention that his communication inquiring how frequently the person being portrayed by the officer had had sexual intercourse “since me” was inconsistent with the receiver of the communication being under eighteen years of age.

B. Arguments of the Crown

[20] The Crown argues that proof beyond a reasonable doubt of the age of the person portrayed by the officer being less than 18, has been made out.

[21] Specifically the Crown argues that the Accused’s statement, “Should we celebrate” only makes sense if the officer’s comments, “Maybe because I was 13 u were scared” and “Im 14 now”, refer to 13 years old and 14 years old respectively.

[22] The Crown submits that the inference of the age of the person portrayed as 14 years old is the only reasonable inference to be drawn in the case at bar; and that that inference satisfies the principles in Villaroman, supra and Starr, supra.

V. Governing Principles

A. The Statutory Test Relative to Age

[23] In my ruling on the motion for dismissal of March 12, 2025 I set out a test for the element of age in issue at trial. The parties have relied on that test in argument, having regard to my March 12 ruling. That test is whether the Crown has proven on an objective basis beyond a reasonable doubt that, in the communications in issue, the Accused depicted the person with whom the sexual activity in question was to take place, as a person under 18 years of age.

B. The Villaroman Principles

[24] I have assumed, without deciding the point, for the purposes of my analysis that, as argued by the Accused, the principles in Villaroman, supra apply to the issue of whether the Crown has proven the element of age as I have just defined it.

[25] Consequently, I will now review those principles.

[26] Justice Cromwell for the Court at paras. 25 to 42 set out important principles regarding the assessment of whether reasonable doubt exists in a case involving circumstantial evidence:

25 The Court has generally described the rule in Hodge's Case as an elaboration of the reasonable doubt standard: Mitchell; John v. The Queen, [1971] S.C.R. 781, per Ritchie J., at pp. 791-92; Cooper; Mezzo v. The Queen, [1986] 1 S.C.R. 802, at p. 843. If that is all that Hodge's Case was concerned with, then any special instruction relating to circumstantial evidence could be seen as an unnecessary and potentially confusing addition to the reasonable doubt instruction.

26 However, that is not all that Hodge's Case was concerned with. There is a special concern inherent in the inferential reasoning from circumstantial evidence. The concern is that the jury may unconsciously "fill in the blanks" or bridge gaps in the evidence to support the inference that the Crown invites it to draw. Baron Alderson referred to this risk in Hodge's Case. He noted the jury may "look for - and often slightly ... distort the facts" to make them fit the inference that they are invited to draw: p. 1137. Or, as his remarks are recorded in another report, the danger is that the mind may "take a pleasure in adapting circumstances to one another, and even straining them a little, if need be, to force them to form parts of one connected whole": W. Wills, Wills' Principles of Circumstantial Evidence (7th ed. 1937), at p. 45; cited by Laskin J. in John, dissenting but not on this point, at p. 813.

27 While this 19th century language is not suitable for a contemporary jury instruction, the basic concern that Baron Alderson described - the [page1016] danger of jumping to unwarranted conclusions in circumstantial cases - remains real. When the concern about circumstantial evidence is understood in this way, an instruction concerning the use of circumstantial evidence and the reasonable doubt instruction have different, although related, purposes: see B. L. Berger"The Rule in Hodge's Case: Rumours of its Death are Greatly Exaggerated" (2005), 84 Can. Bar Rev. 47, at pp. 60-61.

28 The reasonable doubt instruction describes a state of mind - the degree of persuasion that entitles and requires a juror to find an accused guilty: Berger, at p. 60. Reasonable doubt is not an inference or a finding of fact that needs support in the evidence presented at trial: see, e.g. Schuldt v. The Queen, [1985] 2 S.C.R. 592, at pp. 600-610. A reasonable doubt is a doubt based on "reason and common sense"; it is not "imaginary or frivolous"; it "does not involve proof to an absolute certainty"; and it is "logically connected to the evidence or absence of evidence": Lifchus, at para. 36. The reasonable doubt instructions are all directed to describing for the jurors how sure they must be of guilt in order to convict.

29 An instruction about circumstantial evidence, in contrast, alerts the jury to the dangers of the path of reasoning involved in drawing inferences from circumstantial evidence: Berger, at p. 60. This is the danger to which Baron Alderson directed his comments. And the danger he identified so long ago - the risk that the jury will "fill in the blanks" or "jump to conclusions" - has more recently been confirmed by social science research: see Berger, at pp. 52-53. This Court on occasion has noted this cautionary purpose of a circumstantial evidence instruction: see, e.g., Boucher v. The Queen, [1955] S.C.R. 16, per Rand J., at p. 22; John, per Laskin J., dissenting but not on this point, at p. 813.

[page1017]

30 It follows that in a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt. No particular language is required. Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of "filling in the blanks" by too quickly overlooking reasonable alternative inferences. It may be helpful to illustrate the concern about jumping to conclusions with an example. If we look out the window and see that the road is wet, we may jump to the conclusion that it has been raining. But we may then notice that the sidewalks are dry or that there is a loud noise coming from the distance that could be street-cleaning equipment, and re-evaluate our premature conclusion. The observation that the road is wet, on its own, does not exclude other reasonable explanations than that it has been raining. The inferences that may be drawn from this observation must be considered in light of all of the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.

31 I emphasize, however, that assistance to the jury about the risk of jumping to conclusions may be given in different ways and, as noted in Fleet, trial judges will provide this assistance in the manner they consider most appropriate in the circumstances: p. 549.

(iii) "Rational" v. "Reasonable" Inferences

32 I have suggested the use of the word "reasonable" to describe the potential inferences rather than the word "rational" used by Baron Alderson in Hodge's Case and in many other cases including Griffin. Which of these words should be used was one of the issues touched on by the Court of Appeal [page1018] (at para. 9) and I should explain why I think that the word "reasonable" is preferable. The following comments also apply to the adjective "logique", which has been frequently used in the French version of this Court's jurisprudence on this issue.

33 The words "rational" and "reasonable" are virtually synonyms: "rational" means "of or based on reasoning or reason"; "reasonable" means "in accordance with reason": Canadian Oxford Dictionary (2nd ed. 2004). While some have argued that there is a significant difference, I do not find that position convincing: see, e.g., E. Scott"Hodge's Case: A Reconsideration" (1965-66), 8 C.L.Q. 17, at p. 25; A. M. Gans"Hodge's Case Revisited" (1972-73), 15 C.L.Q. 127, at p. 132. It seems that our jurisprudence has used the words "rational" and "reasonable" interchangeably with respect to inferences: see McLean; Fraser v. The King, [1936] S.C.R. 1, at p. 2; Boucher, at pp. 18, 22 and 29; John, at p. 792; Cooper, at p. 881; Lizotte v. The King, [1951] S.C.R. 115, at p. 132; Mitchell, at p. 478; Griffin, at para. 33. This, in addition to the dictionary definitions, suggests that there is no difference in substance between them.

34 There is an advantage of using the word "reasonable". It avoids the risk of confusion that might arise from using the word "reasonable" in relation to "reasonable doubt" but referring to "rational" inferences or explanations when speaking about circumstantial evidence: see John, per Laskin J., dissenting but not on this point, at p. 815. In saying this, I do not suggest that using the traditional term "rational" is an error: the Court has said repeatedly and recently that the necessary message may be imparted in different ways: see, e.g., Griffin, at para. 33.

[page1019]

(iv) Whether the Inference Must Be Based on "Proven Facts"

35 At one time, it was said that in circumstantial cases"conclusions alternative to the guilt of the accused must be rational conclusions based on inferences drawn from proven facts": see R. v. McIver, [1965] 2 O.R. 475 (C.A.), at p. 479, aff'd without discussion of this point R. v. McIver, [1966] S.C.R. 254. However, that view is no longer accepted. In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 58; see also R. v. Defaveri, 2014 BCCA 370, 361 B.C.A.C. 301, at para. 10; R. v. Bui, 2014 ONCA 614, 14 C.R. (7th) 149, at para. 28. Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown's evidence does not meet the standard of proof beyond a reasonable doubt.

36 I agree with the respondent's position that a reasonable doubt, or theory alternative to guilt, is not rendered "speculative" by the mere fact that it arises from a lack of evidence. As stated by this Court in Lifchus, a reasonable doubt "is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence": para. 30 (emphasis added). A certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.

37 When assessing circumstantial evidence, the trier of fact should consider "other plausible [page1020] theor[ies]" and "other reasonable possibilities" which are inconsistent with guilt: R. v. Comba, [1938] O.R. 200 (C.A.), at pp. 205 and 211, per Middleton J.A., aff'd R. v. Comba, [1938] S.C.R. 396; R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11, at para. 20; R. v. Mitchell, [2008] QCA 394 (AustLII), at para. 35. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to "negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused": R. v. Bagshaw, [1972] S.C.R. 2, at p. 8. "Other plausible theories" or "other reasonable possibilities" must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.

38 Of course, the line between a "plausible theory" and "speculation" is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.

39 I have found two particularly useful statements of this principle.

40 The first is from an old Australian case, Martin v. Osborne (1936), 55 C.L.R. 367 (H.C.), at p. 375:

In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed. [Emphasis added.]

41 While this language is not appropriate for a jury instruction, I find the idea expressed in this passage - that to justify a conviction, the circumstantial evidence, assessed in light of human experience, should be such that it excludes any other reasonable alternative - a helpful way of [page1021] describing the line between plausible theories and speculation.

42 The second is from R. v. Dipnarine, 2014 ABCA 328, 584 A.R. 138, at paras. 22 and 24-25. The court stated that "[c]ircumstantial evidence does not have to totally exclude other conceivable inferences"; that the trier of fact should not act on alternative interpretations of the circumstances that it considers to be unreasonable; and that alternative inferences must be reasonable, not just possible.

C. The Starr Principles

[27] In Starr, supra Justice Iacobucci for the majority of the Supreme Court of Canada reviewed at paras. 230 to 242 the standard of reasonable doubt:

230 In its decisions in Lifchus, supra, and R. v. Bisson, [1998] 1 S.C.R. 306, this Court has recently addressed the appropriate manner of instructing a jury on the nature of the criminal standard of proof. Cory J., writing for the full Court in Lifchus, held that it is essential for jurors to be instructed that the term "beyond a reasonable doubt" has a special meaning in a criminal trial. He explained that an appropriate jury instruction on reasonable doubt is a fundamental component of a fair trial, because a jury might otherwise convict the innocent by finding guilt on the basis of mere probability, rather than on the basis of proof to a near certainty as is required in criminal proceedings. In his words, at para. 14:

No matter how exemplary the directions to the jury may be in every other respect if they are wanting in this aspect the trial must be lacking in fairness. It is true the term has come echoing down the centuries in words of deceptive simplicity. Yet jurors must appreciate their meaning and significance. They must be aware that the standard of proof is higher than the standard applied in civil actions of proof based upon a balance of probabilities yet less than proof to an absolute certainty. [Emphasis added.]

231 In Lifchus, Cory J. held that there are certain essential elements that should be included in any effective jury charge on reasonable doubt, as well as several instructions that would generally lessen or impair the effectiveness of such a charge. Cory J. summarized the essential elements in the following terms, at para. 36:

It should be explained that:

• the standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence;
• the burden of proof rests on the prosecution throughout the trial and never shifts to the accused;
• a reasonable doubt is not a doubt based upon sympathy or prejudice;
• rather, it is based upon reason and common sense;
• it is logically connected to the evidence or absence of evidence.
• it does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and
• more is required than proof that the accused is probably guilty -- a jury which concludes only that the accused is probably guilty must acquit. [Emphasis in original.]

232 Cory J. also summarized, at para. 37, certain references to the required standard of proof that should be avoided:

• describing the term "reasonable doubt" as an ordinary expression which has no special meaning in the criminal law context;
• inviting jurors to apply to the task before them the same standard of proof that they apply to important, or even the most important, decisions in their own lives;
• equating proof "beyond a reasonable doubt" to proof "to a moral certainty";
• qualifying the word "doubt" with adjectives other than "reasonable", such as "serious""substantial" or "haunting", which may mislead the jury; and
• instructing jurors that they may convict if they are "sure" that the accused is guilty, before providing them with a proper definition as to the meaning of the words "beyond a reasonable doubt".

233 Cory J. stressed that the precise wording of any given jury charge on reasonable doubt will not necessarily be determinative of its effectiveness at transmitting the meaning of the term, and so at securing the fairness of the accused's trial. A charge must be examined in its entirety to determine whether the essential elements of a fair and accurate instruction on reasonable doubt are present and have been properly explained. The question in every case in which a trial judge's instructions on reasonable doubt are impugned is whether there is a reasonable likelihood that the jury was under a misapprehension as to the correct standard of proof to apply. If the charge, when read as a whole, could not have placed the jury under a misapprehension as to the correct standard of proof, then the jury verdict should not be disturbed: R. v. W. (D.), [1991] 1 S.C.R. 742, at p. 758. However, in Cory J.'s words in Lifchus, at para. 41: "if the charge as a whole gives rise to the reasonable likelihood that the jury misapprehended the standard of proof, then as a general rule the verdict will have to be set aside and a new trial directed".

234 In both Lifchus, supra, and Bisson, supra, this Court held that the reasonable doubt instruction provided to the jury in the particular cases created a reasonable likelihood of a misapprehension of the standard of proof. In Lifchus, the trial judge instructed the jury on reasonable doubt by referring to the ordinary everyday meaning of the phrase.

235 In finding that the trial judge's instruction constituted an error in law justifying a new trial, Cory J. explained that the instruction contained two central flaws. First, it did not provide a definition of "reasonable doubt". Second, it described the words "reasonable doubt" as "ordinary, everyday words" with no specific meaning in the context of a criminal trial. Cory J. found that these errors were not cured when the jury charge was viewed as a whole, even though the charge was, in all other respects"a model of clarity and conciseness" (para. 44).

236 The trial judge in Bisson, supra, explained to the jury that proof to an absolute certainty was not required, and that a reasonable doubt was something more than simply a frivolous, capricious, or imaginary doubt. He then drew an analogy between the standard of proof beyond a reasonable doubt and the standard of proof used in everyday activities such as checking the oil in one's car, emphasizing at some length that there was no distinction between the two standards. Writing for the Court, Cory J. explained that a trial judge should avoid providing examples from daily life of what may constitute a reasonable doubt, for two key reasons. First, everyday examples are problematic because, almost invariably, they involve the application of a standard of probability rather than one of proof beyond a reasonable doubt. Second, examples tend to be applied subjectively, depending upon the degree of care taken by different jurors prior to making everyday decisions, whereas the reasonable doubt standard is a single, objective, and exacting standard of proof.

237 Before turning to examine the charge to the jury in the present appeal, I would like to emphasize that in Lifchus and Bisson, we set out to improve the existing standard for instructions on reasonable doubt. This was not intended to suggest that a new trial is warranted for all previous convictions obtained following jury charges that were not in strict compliance with every aspect of Lifchus and Bisson. To the contrary, as Cory J. made clear in Lifchus, supra, at para. 40, there is no "magic incantation". A court reviewing a pre-Lifchus jury charge must examine it to make sure that it was in substantial compliance with the principles set out in that case.

(2) Inadequacy of the Reasonable Doubt Charge in This Case

238 It should be pointed out that the trial judge in the present appeal, like the trial judge in Bisson, supra, gave his charge to the jury without the benefit of the decision of this Court in Lifchus. However, I agree with Twaddle J.A. that the reasonable doubt instruction given in this case falls prey to many of the same difficulties outlined in Lifchus, and likely misled the jury as to the content of the criminal standard of proof. For ease of reference, I will set out again the relevant portion of the charge in this case:

It is rarely possible to prove anything with absolute certainty and so the burden of proof on the Crown is only to prove the guilt of the accused beyond reasonable doubt. What, then, is proof beyond a reasonable doubt?

The words "reasonable doubt" are used in their everyday, ordinary sense and not as a legal term having some special connotation. The words have no magic meaning that is peculiar to the law. A reasonable doubt is an honest, fair doubt, based upon reason and common sense. It is a real doubt, not an imaginary or frivolous one resting on speculation or guess rather than upon the evidence you heard in this courtroom.

So you can see, the words "reasonable doubt" are ordinary words we use in our everyday language. So if you can say, I am satisfied beyond a reasonable doubt, the Crown has met the onus upon it. If you cannot say those words -- if you cannot say, I am satisfied beyond a reasonable doubt, the Crown has not met the onus on it, and the accused is entitled to have your doubt resolved in his favour.

239 The key difficulty with this instruction is that it was not made clear to the jury that the Crown was required to do more than prove the appellant's guilt on a balance of probabilities. The trial judge told the jury that they could convict on the basis of something less than absolute certainty of guilt, but did not explain, in essence, how much less. In addition, rather than telling the jury that the words "reasonable doubt" have a specific meaning in the legal context, the trial judge expressly instructed the jury that the words have no "special connotation" and "no magic meaning that is peculiar to the law". By asserting that absolute certainty was not required, and then linking the standard of proof to the "ordinary everyday" meaning of the words "reasonable doubt", the trial judge could easily have been understood by the jury as asserting a probability standard as the applicable standard of proof.

240 The trial judge did comply with some of the requirements discussed in Lifchus, supra. He explained that a reasonable doubt is not an imaginary or frivolous doubt resting on speculation or guess, and that a reasonable doubt is a real doubt based on reason and common sense upon a review of the evidence. He also explained, as mentioned, that the standard of proof beyond a reasonable doubt does not involve proof to an absolute certainty. However, the trial judge's adherence to these requirements would have benefited primarily the Crown, not the appellant.

241 In the present case, the trial judge did refer to the Crown's onus and to the presumption of innocence, and he stated that the appellant should receive the benefit of any reasonable doubt. The error in the charge is that the jury was not told how a reasonable doubt is to be defined. As was emphasized repeatedly in Lifchus and again in Bisson, a jury must be instructed that the standard of proof in a criminal trial is higher than the probability standard used in making everyday decisions and in civil trials. Indeed, it is this very requirement to go beyond probability that meshes the standard of proof in criminal cases with the presumption of innocence and the Crown's onus. However, as Cory J. explained in these earlier decisions, it is generally inappropriate to define the meaning of the term "reasonable doubt" through examples from daily life, through the use of synonyms, or through analogy to moral choices. The criminal standard of proof has a special significance unique to the legal process. It is an exacting standard of proof rarely encountered in everyday life, and there is no universally intelligible illustration of the concept, such as the scales of justice with respect to the balance of probabilities standard. Unlike absolute certainty or the balance of probabilities, reasonable doubt is not an easily quantifiable standard. It cannot be measured or described by analogy. It must be explained. However, precisely because it is not quantifiable, it is difficult to explain.

242 In my view, an effective way to define the reasonable doubt standard for a jury is to explain that it falls much closer to absolute certainty than to proof on a balance of probabilities. As stated in Lifchus, a trial judge is required to explain that something less than absolute certainty is required, and that something more than probable guilt is required, in order for the jury to convict. Both of these alternative standards are fairly and easily comprehensible. It will be of great assistance for a jury if the trial judge situates the reasonable doubt standard appropriately between these two standards. The additional instructions to the jury set out in Lifchus as to the meaning and appropriate manner of determining the existence of a reasonable doubt serve to define the space between absolute certainty and proof beyond a reasonable doubt. In this regard, I am in agreement with Twaddle J.A. in the court below, when he said, at p. 177:

If standards of proof were marked on a measure, proof "beyond reasonable doubt" would lie much closer to "absolute certainty" than to "a balance of probabilities". Just as a judge has a duty to instruct the jury that absolute certainty is not required, he or she has a duty, in my view, to instruct the jury that the criminal standard is more than a probability. The words he or she uses to convey this idea are of no significance, but the idea itself must be conveyed.

VI. Analysis

[28] I have considered the Agreed Statement of Facts and the text messages in evidence; and I have assessed both in accordance with the exacting standard described in Starr, supra and in accordance with the principles in Villaroman, supra. As I noted earlier, I have applied the Villaroman principles, as submitted by the Accused, without deciding whether the law required their application.

[29] I have considered case law provided to me by the parties, including R. v. Massey, 2020 ABQB 518, R. v. M.M., 2020 ONCJ 506, and R. v. McSween, 2020 ONCA 343.

[30] I have concluded that proof of the age of the person portrayed by the officer as below 18 has been established as the only reasonable inference from the evidentiary record before me.

[31] I shall now explain my conclusion, and my reasons for it.

[32] The Accused put forward in argument several possibilities as to what the assertions “I was 13” and “Im 14 now” by the officer, could mean. Without further context those possibilities might have been sufficient to generate a reasonable doubt.

[33] However, as the Crown argued, the Accused responded to the second assertion by stating “Should we celebrate”.

[34] The only reasonable inference open to me is that the numbers “13” and “14” referred to age. I have, therefore, concluded that the definitions of “child pornography” in s. 163.1(1)(b) and (c) have been proven beyond a reasonable doubt to apply to both counts before the court; and that, accordingly, the guilt of the Accused on both counts has been proven beyond a reasonable doubt.

Bloom, J.

Released: May 30, 2025