



Corrected decision: The text of
    the original judgment was corrected on October 29, 2021 and the description of
    the correction is appended.

COURT OF APPEAL
    FOR ONTARIO

CITATION: R. v. Alekozai, 2021 ONCA 633

DATE: 20210920

DOCKET: C68292

Watt, Benotto and Jamal JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sakhi  Alekozai

Appellant

Andrew Burgess, for the appellant

Rebecca De Filippis, for the respondent

Heard: March 5, 2021 by videoconference

On
    appeal from the conviction entered on February 5, 2019 by Justice Victor
    Giourgas of the Ontario Court of Justice.

Watt J.A.:

[1]

An advertisement appeared in the Escorts section of Backpages.com. Its
    title: BACK only for the Afternoon  Tight Brand New girl in richmond hill
    today only  waiting  18.

[2]

A picture accompanied the advertisement. A woman in a bedroom. Her face
    not visible. And a text from Kathy. A telephone number and an email address.

[3]

The appellant sent a text to Kathy. He asked about rates and services.
    An exchange of messages followed. They made arrangements about all the
    essentials. Price. Services. Location.

[4]

The appellant knocked on the hotel room door. Kathy said she would be
    there, waiting. But Kathy was not there. A police officer answered the door.
    He arrested the appellant on charges of internet child luring and communicating
    with a person to obtain sexual services for consideration from a person under
    18.

[5]

The appellant was convicted of both charges after a trial before a judge
    of the Ontario Court of Justice. He appeals his convictions.

[6]

In these reasons, I explain why I conclude that the appeal fails.

The Background

[7]

Like many others, this case arises of Project Raphael, a York Region
    Police Services (YRPS) sting operation aimed at combatting internet child
    luring. The project involved placing an advertisement in the Escorts section of
    Backpages.com. A police officer, posing as an underage female, would exchange
    messages with those who responded to the advertisement. Arrangements for sexual
    services would be concluded. When the respondent arrived at the designated
    location, he would be arrested.

The Advertisement

[8]

The advertisement posted in the Escorts section of Backpages.com
    included a title, a picture, and some text. A disclaimer in this section of the
    website advises about its sexual content and that it is to be accessed only by
    those who are 18 or older and not considered minors in their state of
    residence. Anyone who agrees to the condition gets access to the website.

[9]

The title and accompanying text are composed in language designed to
    appeal to those interested in purchasing sex from underage girls. The specific
    age of the underage girl is not stated in the advertisement.

[10]

In
    this case, the posted title read:

BACK only for the Afternoon, Tight Brand-New girl in richmond
    hill today  waiting  18

followed by some symbols and 18. The accompanying
    photograph was of a female police officer in her 30s. Her face was not visible
    in the photograph.

[11]

In
    addition to the title and photograph, the advertisement contained some further
    text,

Sexy, new and hot. Hi guys, Im Kathy and Im a girl who is
    sexy and young with a tight body, looking for fun. Im only here today just
    visiting from out of town, in-calls only. Dont miss this, youll be sorry.
    Text or e-mails only.

Contact information was a telephone number and an email
    address of KathyBlunt16@gmail.com.

The Response

[12]

Within
    half an hour of its posting, the appellant responded to the advertisement. He
    proposed a specific type of sexual activity for one-half hour for which he
    would pay $80. He and Kathy exchanged messages for almost four hours.

The Discussion about Age

[13]

Early
    in their exchange of messages, Kathy asked the appellant his age. He
    responded and asked for her address to book an appointment. She asked him to
    text her when he arrived at Leslie and Highway 7. She then added:

but Im a little younger than 18 ok?

The appellant responded:

Thats ur business hun I wouldnt have id u. But Ill text when
    Im at Leslie and highway 7 thanks.

[14]

The
    appellant advised Kathy that he had arrived at the intersection. Kathy
    responded:

Im avail now but I just want to be honest so ur not mad when u
    see mei turn 17 soon but I look 18

The appellant answered twice in 20 seconds ok and
    thats fine babe but Kathy did not receive the second message.

[15]

The
    exchange of messages continued. The appellant asked why Kathy kept insisting
    ur age and added Im not into young girls. I would only look at u as an
    escort nothing personal. Later, the appellant sent a message:

Dont text back.

The Exchange Resumes

[16]

About
    four minutes later, Kathy sent two texts well u worry me and u want to see
    me or no. The appellant agreed sure just be serious plz. Kathy provided
    the name of the hotel, its address, and her room number.

The Arrest

[17]

The
    appellant knocked on the door of the room where he agreed to meet Kathy. A
    police officer answered and arrested the appellant.

The Positions of the Parties at Trial

[18]

The
    case for the Crown consisted of the text messages exchanged between the
    appellant and Kathy, print-outs of Backpages.com, including the advertisement
    posted by the undercover police officer and the testimony of the undercover
    police officer, and a civilian member of YRPS. The Crown contended that the
    evidence established that the appellant believed Kathy was underage. His
    interest was to purchase sex and he was indifferent about the age of his sexual
    partner. In addition, the Crown argued that the appellants evidence that he
    believed Kathy was over 18 was unworthy of belief, and at all events, the
    appellant took no reasonable steps to determine her true age.

[19]

The
    appellant testified as the only defence witness. He admitted exchanging text
    messages with Kathy to arrange sexual services for money. He always believed Kathy
    was over 18 and assumed her texts to the contrary were simply a ploy to get
    more money from him.

The Reasons of the Trial Judge

[20]

The
    trial judge identified two issues that required decision:

i.

whether
    Crown counsel had proven beyond a reasonable doubt that the appellant believed
    his collocutor was under 18; and

ii.

whether
    the Crown had proven beyond a reasonable doubt that the appellant had not taken
    the reasonable steps required to ascertain the collocutors true age.

[21]

The
    essence of the trial judges reasons concluding that the appellants guilt had
    been established beyond a reasonable doubt appears in three paragraphs of his
    written reasons:

The texts are powerful evidence that Mr. Alekozai was
    indifferent to the age of the undercover. The phrases Thats ur business hun I
    wouldnt have id u, Thats fine babe and Ok but why do you keep insisting
    ur age if u fucked older men before what different would I make and its a turn
    off Im not into young girls I would only look at u as an escort nothing
    personal clearly indicate along with all of the other evidence that Mr.
    Alekozai wished to purchase sex from this escort and did not mind that she was
    underaged. The fact that he became annoyed with her for repeatedly raising the
    issue of being underaged serves to reinforce his indifference. He was trying to
    tell her that he didnt care what her age was and that she shouldnt keep
    raising the issue.

Mr. Alekozais explanation that he said these things because he
    was trying to deflect her asking for more money does not make sense. The issue
    of increasing the price was never raised. Nothing in the texts suggests that it
    was even contemplated. I reject Mr. Alekozais explanation in this regard. His
    intent and belief was clear. I find that the Crown has established that Mr.
    Alekozai believed that he was dealing with an underaged escort and that he
    showed up at the hotel room in order to exchange money for sexual services from
    that escort.

Even if I had a reasonable doubt about Mr. Alekozais belief as
    to the age of the escort, the Crown has established beyond a reasonable doubt
    that Mr. Alekozai did not take reasonable steps to determine that she was an
    adult. Despite the factors at play in paragraph 20, more was required of Mr.
    Alekozai in circumstances where the undercover repeatedly stated that she was
    underaged and that she was trying to be honest and that she never wavered from
    that position. Faced with these assertions, Mr. Alekozai was required to take
    reasonable steps to satisfy himself that
this escorts
age was at 18
    years. [Emphasis in original.]

The Grounds of Appeal

[22]

The
    appellant advances two grounds of appeal. He says that the trial judge erred:

i.

in conflating
    the standards of recklessness and belief in determining the
mens rea
of the luring offence; and

ii.

in failing
    to consider whether the evidence as a whole raised a reasonable doubt about the
    appellants guilt.

Ground #1: Proof of the Fault Element in Child Luring

[23]

Although
    the appellant was convicted of offences under both sections 172.1(1)(a) and
    286.1(2) of the
Criminal Code
, the principal focus of this ground of
    appeal is the child luring conviction under s. 172.1(1)(a).

[24]

The
    circumstances of the offences, as well as the essence of the trial judges
    reasons for finding guilt established, appear in earlier paragraphs and require
    no repetition. A brief recapture of the arguments advanced will provide a
    suitable framework for the discussion that follows.

The Arguments on Appeal

[25]

The
    appellant contends that developments in the jurisprudence since the trial judge
    rendered his decision require a new trial.

[26]

At
    the time of trial, the appellant reminds us, the appellants indifference to
    his collocutors age was sufficient to establish his guilt in light of the
    presumptive belief for which s. 172.1(3) provided and the absence of reasonable
    steps. Two pathways to conviction existed. Proof of actual belief in the
    collocutors underage status. Or proof of unreasonable indifference to the
    possibility that the collocutor was underage as evidenced by the failure to
    take the necessary reasonable steps to determine that age.

[27]

But
    then the law changed in
R. v. Morrisson
, 2019 SCC 15. Indifference to
    the collocutors age was not enough. The Crown now must prove beyond a
    reasonable doubt that the accused believed the collocutor was underage. Proof
    that an accused did not take reasonable steps simply precludes the trier of fact
    from considering the defence that the accused honestly believed the collocutor
    was of legal age. It does
not

provide an alternative pathway to
    prove guilt.

[28]

In
    this case, the appellant acknowledges, the trial judge did find that the
    appellant believed that the collocutor was underage. But this conclusion was
    grounded on recklessness or indifference to the collocutors age neither of
    which is the equivalent of what is required  an actual belief. In addition,
    the trial judge concluded that the appellant had failed to take reasonable
    steps, thus under the then applicable law, the appellant was guilty
    irrespective of whether he was merely indifferent to Kathys age or actually believed
    her to be 18. As in
Morrison
, a new trial is required.

[29]

The
    respondent says that the appellant was not convicted because he was reckless as
    to Kathys age, or because he failed to take reasonable steps to determine
    her age. He was convicted because the trial judge was satisfied that the
    appellant subjectively believed Kathy was underage.

[30]

Read
    as a whole, the trial judges reasons demonstrate that he was satisfied beyond
    a reasonable doubt that the Crown had proven that the appellant believed
    Kathy was underage. The trial judge emphasized that the burden was on the
    Crown to prove that the appellant believed Kathy was underage and that he did
    not take such reasonable steps as required into consideration in forming his
    mistaken belief in her age. The trial judge found that the appellant believed
    that he was dealing with an underaged escort and that he showed up at the hotel
    room in order to exchange money for sexual services from that underaged escort.

[31]

In
    his oral ruling, the trial judge described the case for the Crown as
    overwhelming. The appellants evidence did not raise a reasonable doubt. But
    even if that evidence were to have raised a reasonable doubt, the appellant had
    failed to meet the evidentiary burden that he took reasonable steps in order to
    put the mistaken belief in age defence in play.

[32]

The
    respondent says that the trial judges statement that the appellant was
    indifferent to Kathys age does not amount to a finding that the appellant
    was reckless about whether she was underage. An accused who is reckless never
    turns their mind to the collocutors age. In other words, recklessness is about
    the absence of knowledge. Indifference, on the other hand, refers to a person
    who is marked by a lack of interest, enthusiasm, or concern for something, or
    by no special liking for or dislike of something. Indifference is about the
    absence of interest. Lack of interest in Kathys young age is not the
    equivalent of lack of awareness of that age.

[33]

The
    trial judges finding that the appellant was indifferent to Kathys underage
    status was responsive to the arguments advanced at trial. Trial counsel
    submitted that the appellants text that he was not into young girls
    demonstrated his belief that Kathy was over 18. The Crown did not contest
    that the appellant was not specifically interested in underaged partners, but
    argued that the appellant believed Kathy was not 18, a fact that did not
    matter to him since this was simply a business transaction  cash for sexual
    services. The finding of indifference was a rejection of the accuseds argument
    that his stated disinterest should raise a reasonable doubt about his belief in
    Kathys age.

[34]

In
    this case, the respondent concludes, the trial judge was well aware of the
    difference between subjective belief and recklessness. He specifically
    described belief and reasonable steps as distinct inquiries. He was satisfied
    that the appellant believed Kathy was underage and did not rely on the lack
    of reasonable steps to reach that conclusion.

The Governing Principles

[35]

As I
    have said, the principal focus of the appellants submissions has been on the
    conviction of child luring under s. 172.1(1)(a), not that under s. 286.1(2).
    Although the elements of each offence differ, each has a common requirement
    that an accused believe in the underage status of the escort and a reasonable
    steps (s. 172.1(4)) or all reasonable steps (s. 150.1(4)) requirement to
    engage a mistaken belief in age defence. The principles that follow are those
    that apply to the child luring offence under s. 172.1.

[36]

The
    essential elements of child luring under s. 172.1 may be briefly described as:

·

communication

·

age

·

purpose

The age element refers to the actual age of the person
    with whom the communication takes place or the accuseds belief in that
    persons age. See,
R. v. Levigne
, 2010 SCC 25, at para. 23;
Morrisson
,
    at para. 43;
R. v. Carbone
, 2020 ONCA 394, at para. 80.

[37]

When
    the constitutionality of ss. 172.1(3) and (4) had not been in issue or finally
    determined, two pathways were available to the Crown to establish guilt where,
    as here, there was no underage collocutor. The Crown could prove that the
    accused believed that the collocutor was underage, or that the accused had
    failed to take reasonable steps to ascertain the collocutors actual age:
R.
    v. Morrison
, 2019 SCC 15, at para. 49;
Carbone
, at para. 75.

[38]

In
Morrison
,
    also a case of child luring arising out of a police sting operation, the
    Supreme Court confirmed this courts decision that s. 172.1(3) was
    unconstitutional, but not s. 172.1(4):
Morrison
, at paras. 73, 92.
    However, the Supreme Court differed with the courts below about the reasonable
    steps requirement in s. 172.1(4). That provision does
not
, in the
    absence of the presumption under s. 172.1(3), provide a second pathway to
    conviction, rather it simply limits the availability of the mistaken belief in
    age defence:
Morrison
, at para. 80.

[39]

After
    the decision of the Supreme Court in
Morrison
, to prove the fault
    element in cases involving a police sting with no underage participant, the
    Crown must prove beyond a reasonable doubt that the accused:

i.

believed
the other person or collocutor was underage; or

ii.

was
wilfully
    blind
whether the other person was underage.

Recklessness as to the other persons age is not
    sufficient to prove the fault element:
Morrison
, at para. 102;
Carbone
,
    at para. 89.

[40]

After
Morrison
, an accused charged with communicating with a person believed
    to be under 18 must be acquitted, regardless of whether he took any reasonable
    steps to determine the age of his collocutor even if he suspected that person
    was under 18 but decided to proceed in any event, or if he never turned his
    mind to the collocutors age. Prior to
Morrison
, the reckless or
    negligent accused would be convicted so long as the Crown proved that the
    accused did not take the reasonable steps required to determine the
    collocutors true age:
Carbone
, at para. 91.

[41]

After
Morrison
, where the Crown proves beyond a reasonable doubt that an
    accused failed to take reasonable steps to ascertain the collocutors age, s.
    172.1(4) forecloses an accuseds reliance on the defence that they believed the
    collocutor was of legal age. But this falls short of what is necessary to
    establish guilt. This is so because the reasonable steps requirement under s.
    172.1(4) does not provide an independent pathway to conviction. Once the trier
    of fact is satisfied that the Crown has proven that the accused did not take
    reasonable steps, the trier of fact must consider the whole of the evidence,
    including evidence about the accuseds failure to take reasonable steps, to
    decide whether the Crown has discharged its legal burden of proving that the
    accused believed the other person was underage:
Morrison
, at para.
    129.

[42]

Recklessness
    is a state of mind. It is the state of mind of a person who is aware that their
    conduct might bring about the result prohibited by the criminal law, but who
    persists in the conduct despite the risk. Recklessness is subjective. It
    entails an appreciation of some level of risk and the decision to take that
    risk. In most cases, an accused who never turns their mind to the age of the
    other person is properly characterized as reckless. Reckless indifference also
    describes a subjective state of mind, a choice to treat age as irrelevant and
    to assume the risk associated with that choice:
Morrison
, at para. 100
    citing
R. v. Sansregret
,
[1985] 1 S.C.R. 570, at p. 582;
Carbone
, at paras. 125-127.

[43]

On
    the other hand, wilful blindness, sometimes referred to as deliberate
    ignorance, is established where a person who becomes aware of the need for some
    inquiry declines to make the inquiry because they do not wish to know the
    truth, rather prefer to remain ignorant:
Morrison
, at para. 100;
Sansregret
,
    at p. 584.

[44]

The
    mistaken belief in age defences for which ss. 172.1(4) and 150.1(4) impose an
    evidentiary burden on the accused to put the defence in play, and a persuasive
    burden on the Crown, once in play, to negate it:
R. v. W.G
.,
2021
    ONCA 578, at paras. 54-56. The Crown may negate these defences in either of two
    ways. The Crown may prove that the accused did not honestly believe that the
    other person was at least 18 years old at the time of the offence. Or the Crown
    may prove that, despite the accuseds claim that they honestly believed that
    the other person was at least 18, the accused did not take reasonable (s.
    172.1(4)) or all reasonable (s. 150.1(4)) steps to ascertain the other persons
    age:
Morrison
, at para. 88;
Carbone
, at para. 116;
W.G
.
,
    at para. 57.

[45]

The
    analysis of reasonable steps or all reasonable steps is highly contextual
    and fact-specific. Reasonable steps are steps that a reasonable person would
    take, in the same circumstances known to the accused at the time, to find out
    the other persons age. The reasonable steps requirement includes objective as
    well as subjective elements. Viewed objectively, the steps must be reasonable.
    The reasonableness of the steps must be assessed in the circumstances known to
    the accused:
W.G
.
, at para. 60, citing
Morrison
, at
    para. 105.

[46]

To
    be reasonable steps, the steps must be meaningful. They must be steps that
    provide information reasonably capable of supporting an accuseds belief that
    the other person is of legal age. Relevant factors include not only the nature
    of the steps themselves, but also the information those steps solicit:
W.G
.
,
    at para. 61.

The Principles Applied

[47]

I
    would not give effect to this ground of appeal. I reach this conclusion even
    though the trial judge did not have the benefit of the Supreme Courts decision
    in
Morrison
to guide him in his analysis.

[48]

The
    appellant was charged with offences under ss. 172.1(1)(a) and 286.1(2). No
    dispute arose about proof of many of the essential elements of each offence.
    Under s. 172.1(1)(a), there was no controversy about the fact or manner of the
    appellants communication or about his purpose in doing so. Likewise, under s.
    286.1(2), communication and purpose were unchallenged.

[49]

The
    contested ground had to do with the fault element and the availability of the
    mistaken belief in age defence in ss. 172.1(4) and 150.1(4). The trial judge
    identified these as the issues to be determined at the outset of his written
    reasons.

[50]

The
    trial judge considered first whether the Crown had proven beyond a reasonable
    doubt that the appellant believed Kathy was under 18. He reviewed the
    evidence on the issue, principally the text exchanges, and the appellants
    testimony about his state of belief. He rejected the appellants explanation
    that he did not believe Kathy was underaged. From previous experience, the
    appellant had generally found that escorts were always older than advertised.
    He considered that Kathy was trying to get more money for her services by
    portraying herself as a child. No such discussion ever occurred during their
    exchange.

[51]

The
    trial judge specifically found that the Crown had proven that the appellant
    believed that he was dealing with an underaged escort. He showed up at the
    designated hotel room with the agreed upon funds to exchange money for the sexual
    services from that underaged escort. This finding is firmly grounded in the
    evidence adduced at trial. It was not cumbered by any misapprehension of the
    evidence, impermissible use of the unconstitutional presumption in s. 172.1(3),
    or error about the state of mind required to establish the fault element of the
    offences charged.

[52]

Nor
    am I persuaded that the trial judges periodic reference to the appellants
    indifference to Kathys age tainted his finding that the appellant actually
    believed Kathy was underage, or amounted to finding guilt established on an
    impermissible standard of recklessness, rather than actual belief or wilful
    blindness as to underage status. Belief in underage status and indifference
    about its significance in pursuit of sexual services are not incompatible.

[53]

Once
    having found the fault element established, the trial judge then examined
    whether the mistaken belief in age defence was available to the appellant. He
    correctly identified the incidence of the evidentiary and persuasive burdens of
    proof on the defence and Crown respectively.

[54]

The
    trial judge concluded that the appellant had failed to meet the evidentiary
    burden necessary to put the defence of mistaken belief in age in play. This
    finding was available on the evidence adduced at trial. Whether the standard be
    reasonable steps (s. 172.1(4)) or all reasonable steps (s. 150.1(4)) is of
    no real moment here. The appellants invocation of the disclaimer on the
    Backpages.com website (restricted to those 18 and over), the stated age of 18
    in the advertisement (with the email address including a reference to 16), and
    the apparent age of the person depicted in the photo included in the
    advertisement, in combination, are insufficient to invoke the defence. The
    trial judge did not err in rejecting the mistaken belief in age defence, nor
    did he use its rejection as an independent pathway to find the appellants
    guilt established.

Ground #2: Failure to Consider the Totality of the Evidence

[55]

The
    second ground of appeal is related to the first. Once again, a brief review of
    the arguments advanced will provide an appropriate setting for the discussion
    that follows.

The Arguments on Appeal

[56]

The
    appellant submits that, as a general rule, a judge who has rejected the
    evidence of an accused must then consider whether the totality of the evidence
    satisfies them, as the trier of fact, of the guilt of the accused. This is the
    third step in the analysis under
R. v. W(D)
, [1991] 1 S.C.R. 742. This
    principle applies to the offences with which the appellant was charged.
    However, when the appellant was tried, this step was not necessary because an
    accuseds failure to take reasonable or all reasonable steps to ascertain the
    collocutors age afforded a second pathway to conviction.

[57]

In
    this case, in accordance with what was when the law, the trial judge did not
    engage in any real analysis of the totality of the evidence or assess whether
    the cumulative force of the evidence satisfied the standard of proof required.
    The trial judge failed to carefully analyze the messages exchanged between the
    appellant and Kathy, especially those showing skepticism about the
    collocutors report of her age.

[58]

In
    addition, the appellant says, the trial judge failed to engage with the
    undercover officers testimony about the type of person who might claim to be
    under 18 on the Internet. Rejection of the appellants testimony did not end
    the trial judges inquiry to determine whether the appellants guilt had been
    proven beyond a reasonable doubt. A further examination of the evidence was
    necessary, but not done. A new trial is required.

[59]

The
    focus of this ground of appeal, the respondent begins, is on the failure of the
    trial judge to properly apply the third step of the
W(D
)
analysis. No such failure occurred. The trial judge expressly found that the
    appellant subjectively believed Kathy was underage. This finding was recorded
    on the evidence as a whole and is untainted by any reference to the appellants
    failure to take reasonable steps.

[60]

As
    the respondent sees it, the appellants complaint is twofold. The first aspect
     that an analysis of the messages does not support the conclusion that the
    appellant actually believed that Kathy was underage  is neither more nor
    less than an invitation to redo the factual findings made by the trial judge.
    The appellant does not say that the finding of guilt is unreasonable, only that
    different findings of fact should have been made. The trial judge carefully
    scrutinized the evidence. His findings of fact are entitled to deference here.

[61]

The
    second prong of the appellants argument is that the trial judge failed to
    consider whether the undercover officers evidence could raise a reasonable
    doubt about the appellants guilt. The failure to mention this evidence does
    not amount to reversible error. This evidence had nothing to do with proof of
    the fault element or disproof of the honest but mistaken belief in age defence.
    This evidence formed no part of the defence submissions at trial. A trial judge
    is not required to consider every piece of evidence adduced at trial or to
    respond to arguments not put forward there.

The Governing Principles

[62]

The
    principles that assist in resolution of this claim of error are commonplace and
    in no need of painstaking recital.

[63]

The
    jury instructions suggested in
W(D)
, the familiar three steps, are
    well known. Equally well established is its purpose: to make it clear that the
    principle of reasonable doubt applies to credibility and to ensure that the
    verdict rendered at trial is not the product of a simple choice between the
    case for the Crown, on the one hand, and that of the defence, on the other:
R.
    v. Y. (C.L.)
, [2008] 1 S.C.R. 5, at para. 8.

[64]

Equally
    fundamental and stated first in
W(D
)
itself is the principle
    that the steps of
W(D)
need not be religiously followed or articulated
    as if a catechism. Substance matters, not form:
W(D)
, at p. 758;
Y.
    (C.L.)
, at para. 7. What matters is whether the correct burden and
    standard of proof were applied, not the language used in their application:
Y.
    (C.L.)
, at para. 7.

[65]

The
    final point concerns the obligation of a trial judge in their capacity as trier
    of fact to discuss the evidence and the arguments advanced by counsel. A trial
    judge is not required to discuss all the evidence related to a particular point
    or to answer each and every argument advanced by counsel:
R. v. Vuradin
,
    2013 SCC 38, at para. 17, citing
R. v. M. (R.E.),
[2008] 3 S.C.R. 3, at
    paras. 32, 64 and
R. v. Dinardo
, [2008] 1 S.C.R. 788, at para. 30.

The Principles Applied

[66]

In
    my respectful view, this ground lacks persuasive force.

[67]

The
    reasons of the trial judge demonstrate his awareness of the principles
    articulated in
W(D
)
which he included in their pristine form in
    his reasons. The only live issue at trial had to do with proof of the fault
    element. The other elements, communication and purpose, were not only not in
    dispute, but also plainly established on the evidence.

[68]

The
    appellant testified. He said he believed Kathy was over 18. The trial judge
    did not believe the appellants evidence. Nor did the appellants evidence
    raise a reasonable doubt about the only contested issue at trial, whether the
    appellant believed, as he said, that Kathy was over 18. A trial judge made it
    clear that the burden was on the Crown to prove beyond a reasonable doubt:

i.

that the
    appellant believed Kathy was underage; and

ii.

that the
    appellant did not take reasonable steps in reaching his belief that Kathy was
    over 18.

Further, the trial judge was satisfied that the Crown
    had proven the appellant actually believed that Kathy was under 18
and

that he had taken no reasonable steps to ascertain her true age. The
    complaint that the trial judge did not consider all the evidence in reaching
    his conclusion fails.

[69]

Nor
    can the submission that the trial judge erred in concluding, from his analysis
    of the message traffic, that the appellant believed that Kathy was under 18
    succeed. Absent a specific claim of misapprehension of evidence or unreasonable
    verdict, the argument is but a thinly-veneered invitation for a re-weighing of
    the evidence and re-calibration of where the balance settles. This exceeds the
    scope of our authority.

[70]

That
    the trial judge failed to rehearse the evidence of the undercover officer in
    deciding whether the appellants guilt had been established affords no basis
    for our intervention. Defence counsel did not advance this argument at trial.
    The evidence in issue consisted largely of generalities unmoored from the
    evidence at trial and, in some respects at least, of doubtful relevance and
    admissibility.

Disposition

[71]

For these reasons, I would dismiss the appeal.

Released:
       D.W.    September 20, 2021

David
    Watt J.A.

I
    agree. M.L. Benotto J.A.

I
    agree. M. Jamal J.A.

Erratum

Correction
    made October 29, 2021: The word is in the first sentence of paragraph 63 was
    replaced with the word are.


