The appellant was acquitted at trial on a charge of transmitting sexually explicit material to a child for the purpose of facilitating sexual assault or indecent exposure under s. 171.1(1)(b) of the Criminal Code.
The Court of Appeal set aside the acquittal and substituted a conviction, finding the trial judge erred in law by characterizing the appellant's conduct as merely flirtatious and by conflating the mens rea of the enumerated offence with that of the charged offence.
The Supreme Court of Canada upheld the conviction, confirming that to establish the inchoate offence under s. 171.1(1)(b), the Crown need only prove the accused transmitted sexually explicit material for the purpose of facilitating a listed offence, not that the accused intended to commit that offence.
The Court affirmed that facilitating includes grooming a child by reducing inhibitions or exploiting immaturity.
The Court added that characterizing an adult's sexualized conduct toward a child as flirtatious is a serious mischaracterization with no place in criminal justice proceedings involving sexual violence against children.
