Court File and Parties
Court File No.: 23-11408054 Date: 2025-08-26 Superior Court of Justice – Ontario
Re: R. v. T.F.
Before: Anne London-Weinstein J.
Counsel:
- Sonia Beauchamp, for the Crown (Respondent)
- James Coulter, for T.F. (Applicant)
Heard: July 2, 2025
Endorsement
Motion for Direction on the Timing of Hearing a Constitutional Question
1The Applicant brings a motion to determine the timing of an application to declare section 172.1 of the Criminal Code, R.S.C. 1985, c. C-46, unconstitutional under section 7 of the Canadian Charter of Rights and Freedoms. The Applicant will seek relief under section 52(1) of the Constitution Act, 1982.
2For the reasons that follow I have determined that the motion should be heard after the conclusion of the trial if necessary.
Factual Background
3T.F. and the Complainant are first cousins. It is alleged that T.F., while in his early 20s, engaged in sexual acts with the Complainant, who was 14. He is also charged with child luring in relation to text messages which he is alleged to have sent to the Complainant.
4On July 2, 2025, this motion for directions was heard, along with step 1 of the application under sections 276 and 278.92 of the Criminal Code.
5On September 22, 2025, step 2 of the section 276/278.92 application will be heard. On October 1 and 2, 2025, dates have been reserved to hear an application to declare section 172.1 of the Criminal Code unconstitutional and of no force and effect. Trial dates are set from December 8 to 12, 2025, and January 14 to 15, 2026.
Position of the Parties
6The Applicant argues that it is not appropriate to adjourn the application on the constitutional question until the conclusion of the trial. The Respondent argues that the constitutional challenge should be heard at the end of the trial.
Legal Analysis
7The decision to rule on a motion or reserve until the end of the case is a discretionary one to be exercised having regard to two policy considerations: R. v. DeSousa, [1992] 2 S.C.R. 944, at pp. 954-55.
8In DeSousa, Sopinka J. wrote the following at pp. 954-55:
The first is that criminal proceedings should not be fragmented by interlocutory proceedings which take on a life of their own. This policy is the basis of the rule against interlocutory appeals in criminal matters. See Mills v. The Queen, [1986] 1 S.C.R. 863. The second, which relates to constitutional challenges, discourages adjudication of constitutional issues without a factual foundation. See, for instance, Moysa v. Alberta (Labour Relations Board), [1989] 1 S.C.R. 1572, and Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086. Both these policies favour disposition at the end of the case.
9Sopinka J. continued at pp. 954-55:
[T]rial judge[s] should not depart from these policies unless there is a strong reason for so doing. In some cases the interests of justice necessitate an immediate decision. Examples of such necessitous circumstances include cases in which the trial court itself is implicated in a constitutional violation as in R. v. Rahey, [1987] 1 S.C.R. 588, or where substantial on-going constitutional violations require immediate attention as in R. v. Gamble, [1988] 2 S.C.R. 595. Moreover, in some cases it will save time to decide constitutional questions before proceeding to trial on the evidence. An apparently meritorious Charter challenge of the law under which the accused is charged which is not dependent on facts to be elicited during the trial may come within this exception to the general rule. (See Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110, at p. 133.) This applies with added force when the trial is expected to be of considerable duration. See, for example, R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606.
Nature of the Overbreadth Motion
10I have not discussed the nature of the motion in depth since I have determined that it should be heard at the conclusion of the trial. Briefly, the Applicant will argue that Parliament has created an inchoate offence which attaches criminal liability to an individual who facilitates by telecommunication, which need not be sexual in nature, the commission of an offence which could be impossible and which they need not have any intention of committing: R. v. Legare, 2009 SCC 56, [2009] 3 S.C.R. 551, at para. 29.
11The Applicant will argue that section 172.1 is overbroad in that the offence captures essentially any person, regardless of their age, who communicates with someone under the age of 18 or 16 where that communication makes it more probable that an offence is committed.
12The Applicant will argue that there is a myriad of innocuous and therapeutic actions that are criminalized under this statute which were not originally targeted as criminal behavior by Parliament. In this sense, the offence will be argued to be in violation of section 7 of the Charter, as being "overbroad" and infringing on an individual's liberty. The Supreme Court has described the concept of overbreadth as applying where "the law goes too far and interferes with some conduct that bears no connection to its objective": Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at para. 101.
13Imposing penal liability for anything less than a full mens rea violates the principles of fundamental justice: Lévis (City) v. Tétreault, 2006 SCC 12, [2006] 1 S.C.R. 420, at para. 18.
14The Applicant argues that while the text messages in this case are admissible with respect to child luring, they will not be prima facie admissible in relation to the other charges on the indictment.
15The Applicant argues that if he chooses to testify in this case and deny any sexual activity, it could mean admitting the nature of the text messages and, based on the law with respect to child luring, essentially admitting that offence.
16If the Applicant will testify on some counts but not others, the remedy of severance may be sought. And while I agree that the evidence on the application does not require any trial evidence to be heard, I am not satisfied that the constitutional issues in this case, which are not necessary to the resolution of the matter before the court, necessitate hearing the challenge before trial. Constitutional challenges should be heard after trial to ensure that Charter analysis is only conducted when clearly material to the case: R. v. Kinnear, 198 C.C.C. (3d) 232 (C.A.), at para. 59; R. v. Banks, 2007 ONCA 19, 84 O.R. (3d) 1, at paras. 24-25.
17The application is therefore dismissed.
Anne London-Weinstein J.
Date: August 26, 2025