



WARNING

The President of the panel hearing this
    appeal directs that the following should be attached to the file:

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.  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    information that could identify the victim or a witness shall not be published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 complainants 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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mould, 2020 ONCA 78

DATE: 20200131

DOCKET: C65581

Watt, Tulloch and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Russell Craig Mould

Appellant

Peter Lindsay and Hamna Anwar, for the appellants

Vallery Bayly, for the respondent

Heard and released orally: January 23, 2020

On appeal from the conviction entered on April 28, 2017
    and the sentence imposed on July 4, 2018 by Justice Esther Rosenberg of the Ontario
    Court of Justice.

REASONS FOR DECISION

[1]

After a trial before a judge of the Ontario Court of Justice conducted
    substantially on the basis of an Agreed Statement of Facts, the appellant was
    convicted of a single count of child luring under s. 172.1(1)(b) of the
Criminal
    Code
. He was sentenced to a term of imprisonment of 168 days to be followed
    by probation for a period of 1 year. He appeals both conviction and sentence.

The Background Facts

[2]

Using the name craig, the appellant, who was then about 53 year old,
    posted an advertisement on the Casual Encounters section of Craigslist. He sought
    someone under age 28 or 22, a male. The content of the ad left no doubt about
    what craig sought.

[3]

A police officer browsing this section of Craigslist began an
    investigation by responding to the ad as austin and providing a cell phone
    number where text messages could be received. An exchange of texts began.
    Within about two weeks of the response by craig, police determined that the
    initial ad and response had originated from an internet protocol address
    registered to the appellant and to his business.

[4]

After several further electronic conversations, craig and austin
    agreed to meet at a coffee shop. When the appellant attended, he was arrested.
    A cell phone in his possession contained a text message exchange about the
    meeting.

[5]

The appellant testified at his trial. He denied any interest in sexual
    encounters with minors, preferring instead men between the ages of 20 and 30.
    He claimed that the content of his collocutors communications caused him to
    realize that he was not, in fact, communicating, as austin insisted, with a
    14 year old. He concluded that he was being deceived or played by someone
    with an agenda. Annoyed, he agreed to the coffee shop meeting so that he could
    enjoy a gotcha moment.

The Appeal from Conviction

[6]

On the appeal from conviction, the appellant contends that the trial
    judge erred:

i.

by reaching her conclusion that guilt had been proven beyond a
    reasonable doubt by illogical reasoning;

ii.

by reversing the burden of proof; and

iii.

by misapprehending aspects of the evidence.

[7]

Whether these grounds are considered individually or cumulatively, we
    are satisfied that the appeal from conviction fails.

[8]

First, we are not persuaded that the finding of guilt, in whole or in
    part, is grounded on illogical reasoning.

[9]

The trial judge drew a logical inference that was within the field of
    inferences open to her on the whole of the evidence adduced at trial. She was
    satisfied, as was her entitlement, that the context and contents of the text
    messages were inconsistent with the appellants claim of annoyance and desire
    for a gotcha moment. Further, the context and content of these messages also
    put the lie to the appellants claim that he did not actually believe that his
    collocutor was 14 years old, and that he was not interested in having sexual
    contact with someone of that age, in particular, his collocutor.

[10]

Second, when the Reasons for Judgment are taken as a whole, we are not
    persuaded that the trial judges words I would simply have to take Mr. Moulds
    word for it amounted to an impermissible reversal of the burden of proof. We
    take it to be neither more nor less than an observation that the appellants
    claim stood on its own and was directly contradicted by other evidence, in
    particular, the context, content and prolonged nature of the appellants
    communications with austin. The trial judge expressly articulated the
W.(D.)
framework; examined the appellants evidence in the context of the rest of
    the evidence; rejected it and found that it did not raise a reasonable doubt
    about his guilt.

[11]

The final point concerns what is said to be a misapprehension of two
    aspects of the evidence:

i.

that, in another text exchange with another person, the appellant
    claimed no interest in sexual activity with persons under 18 years old; and

ii.

that on search of the appellants home and computers, police found no
    evidence of child pornography or other sexual conversations with minors.

[12]

In our view, the trial judge was entitled to give this evidence no
    weight in her analysis. In this respect, we observe that the preliminary crime
    of which the appellant was convicted was complete in advance of the exchange
    with the other collocutor. That other indicia which may have assisted in proof
    of the prosecutions case were not found was assigned no weight was a
    conclusion reasonably open to the trial judge on this record.

[13]

For these reasons, the appeal from conviction is dismissed.

The Appeal from Sentence

[14]

The appeal from sentence was not pursued in oral argument. The appellant
    relied on his written submissions in support of that appeal. We are satisfied
    that the sentence imposed was fit.

Disposition

[15]

The appeal from conviction is dismissed. Leave to appeal sentence is
    granted, but the appeal from sentence is dismissed, except that the victim
    surcharge imposed by the trial judge is set aside.

David Watt J.A.

M. Tulloch J.A.

Gary Trotter J.A.


