



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. Allen, 2020 ONCA 664

DATE: 20201022

DOCKET: C64892

Juriansz, Tulloch and Jamal
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Garry Phillip Allen

Appellant

Mark C. Halfyard and Breana Vandebeek,
    for the appellant

Dena Bonnet, for the respondent

Heard: September 4, 2020 by
    videoconference

On appeal from the convictions entered
    on June 23, 2017 by Justice Guy P. Di Tomaso of the Superior Court of
    Justice, with reasons reported at 2017 ONSC 3798.

Jamal J.A.:

[1]

The appellant appeals from his convictions of
    four counts of child luring contrary to s. 172.1(1) of the
Criminal Code
,
    R.S.C., 1985, c. C-46, and one count of making sexually explicit images
    available to a child contrary to s. 171.1(1)(b) following a trial by judge
    alone. The charges arose from the appellants exchanges over the internet with someone
    who claimed to be a 14-year-old girl named Jenny, but who was really an
    undercover police officer.

[2]

After the appellants conviction, the Supreme
    Court of Canada released its decision in
R. v. Morrison
, 2019 SCC 15,
    [2019] 2 S.C.R. 3, significantly clarifying the legal framework for the offence
    of child luring.

[3]

The appellant advances several grounds of
    appeal. His principal ground is that his convictions cannot stand in view of
Morrison.
He claims the trial judge erred  though understandably  by applying the
    pre-
Morrison
legal framework to the charges against him and, but for
    these errors, the Crown had not established beyond a reasonable doubt the
    appellant knew or believed his interlocutor, Jenny, was under 16. The Crown responds
    that the trial judges error in applying the pre-
Morrison
legal
    framework was harmless, and in any event, the convictions should be maintained
    because of the overwhelming evidence.

[4]

I agree with the appellant. Based on the
Morrison
ground alone, I would allow the appeal, set aside the convictions, and
    order a new trial on all counts.

Background

[5]

The charges against the appellant arose from an
    undercover police sting operation. The appellant, who was then 53 years old, posted
    an ad on the Casual Encounters section of Craigslist in April 2014 stating, I
    would like to fuck a young woman doesnt matter what nationality but would
    prefer under a 110 lbs.

[6]

A police officer responded to the ad, posing as
    a 14-year-old girl named Jenny weighing 90 lbs.

[7]

Over the next two months, the appellant sent Jenny links to
    pornography websites, asked her whether she had had her period yet, requested nude
    photographs of her, commented on her sexy body, wanted to know whether she had
    masturbated, stated that he would like
to put
his
    tongue all over her body and make her feel like a woman, and said that if we
    meet on Wednesday and im not to gross for you can I touch your little butt
    [sic]. The appellant sent a photo of himself to Jenny and offered to send her
    photos of his penis. Jenny sent the appellant clothed selfies that did not
    reveal her face, though these were actually photos of a 24-year-old police
    officer who weighed 120 lbs.

[8]

The police identified the appellants IP address and used it to locate
    his home address. They attended at his residence with a search warrant and
    found him at home. They then questioned him without advising him of his right
    to counsel immediately, which the Crown conceded breached his rights under s.
    10(b) of the
Canadian

Charter

of
    Rights and Freedoms
. After the appellant was cautioned and arrested,
    he
made further statements to
the police, some
    of which were inculpatory.

[9]

At trial, the
appellant testified that
    he had joined Craigslist to relate better to his coworkers, who frequented
    Craigslists Casual Encounters section for entertainment. He also testified he
    thought Jenny was a coworker playing a joke on him and that he believed she was
    really an adult male. The appellant claimed his exchanges with Jenny involved
    role-playing.

[10]

The trial
    judge found the appellants evidence was simply not credible: at para. 230.
    He found the appellants evidence
that
he did
    not believe Jenny was younger than 18 was not to be believed and did not raise
    a reasonable doubt: at para. 235.

[11]

Applying
    the law as it stood before
Morrison
, the trial
    judge held the Crown had proved beyond a reasonable doubt that the appellant
    believed the other party to the chats was under the age of 16: at paras.
    236-49. This conclusion is the main target of this appeal.

[12]

Lastly,
the trial judge held the Crown had established
    beyond a reasonable doubt that the appellant had the specific subjective intent
    to facilitate the commission of sexual offences against a child: at paras. 250-57.

[13]

The
    trial judge was therefore persuaded beyond a reasonable doubt that the
    appellant (1) communicated with a person whom he believed was a 14-year-old
    girl to facilitate the commission of a sexual offence, which established his
    guilt for the four counts of child luring contrary to s. 172.1(1); and (2) used
    his computer to communicate with Jenny, a person he believed to be 14 years
    old, to
make available
to her sexually
    explicit material, which established his guilt for making sexually explicit
    images available to a child contrary to s. 171.1(1)(b): at paras. 258-59.

The Relevant Legislation

Child luring  s. 172.1(1)(a) and (b)

[14]

The offence of child luring under s. 172.1(1)(a)
    and (b) of the
Criminal Code
provide:

172.1 (1) Every person commits an offence who,
    by a means of telecommunication, communicates with

(a)  a person who is, or who the accused
    believes is, under the age of 18 years, for the purpose of facilitating the
    commission of an offence with respect to that person under subsection 153(1),
    section 155, 163.1, 170, 171 or 279.011 or subsection 279.02(2), 279.03(2),
    286.1(2), 286.2(2) or 286.3(2);

(b)  a person who is, or who the accused
    believes is, under the age of 16 years,
for the
    purpose of facilitating the commission
of an offence under section 151
    or 152, subsection 160(3) or 173(2) or section 271, 272, 273 or 280
with respect to
that person[.]

[15]

Section 172.1(3) creates an evidentiary
    presumption based on a representation about the age of the person with whom the
    accused communicated:

172.1 (3) Evidence that the person referred to
    in paragraph (1)(a), (b) or (c) was represented to the accused as
being
under the age of eighteen years, sixteen years
    or fourteen years
, as the case may be,
is,
in the absence of
evidence to the contrary, proof
    that the accused believed that the person was under that age.

[16]

Section 172.1(4) limits when the accused may invoke
    the defence of mistaken belief in age:

172.1 (4) It is not a defence to a charge
    under paragraph (1)(a), (b) or (c) that the accused believed that the person
    referred to in that paragraph was at least eighteen years of age, sixteen years
    or fourteen years of age
, as the case may be,
unless
    the accused took reasonable steps to ascertain the age of the person.

Making sexually explicit images available to a child  171.1(1)(b)

[17]

The offence of making sexually explicit images
    available to a child under s. 171.1(1)(b) provides:

171.1 (1) Every person commits an offence who
    transmits,
makes available
, distributes or
    sells sexually explicit material to



(b)  a person who is, or who the accused
    believes is, under the age of 16 years,
for the
    purpose of facilitating the commission
of an offence under section 151
    or 152, subsection 160(3) or 173(2) or section 271, 272, 273 or 280
with respect to
that person[.]

[18]

Section 171.1(3) provides the same evidentiary
    presumption based on a representation about the age of the person with whom the
    accused communicated, and s. 171.1(4) provides the same limit on when the accused
    may invoke the defence of mistaken belief in age:

171.1 (3) Evidence that the person referred to
    in paragraph (1)(a), (b) or (c) was represented to the accused as
being
under the age of 18, 16 or 14 years
, as the case may be,
is,
in
    the absence of
evidence to the contrary, proof that the accused believed
    that the person was under that age.

(4)  It is not a defence to a charge under
    paragraph (1)(a), (b) or (c) that the accused believed that the person referred
    to in that paragraph was at least 18, 16 or 14 years of age
, as the case may be,
unless the accused took reasonable
    steps to ascertain the age of the person.

The Legal Framework for Child Luring Before
    and After
Morrison

[19]

In
Morrison
,
per
Moldaver J., the
    Supreme Court clarified the legal framework for the offence of child luring. The
    essential elements of that framework as it stood before and after
Morrison
were recently distilled by Watt J.A. in
R. v.

Drury
, 2020 ONCA 502, at paras. 49-60.

[20]

Before
Morrison
, in prosecutions for
    child luring where the other person was represented to the accused as underage,
    the case law provided two independent pathways to conviction under s. 172.1(1):
    the Crown had to establish beyond a reasonable doubt that the accused either
    (1) believed the other person was under the age of 16, or (2) failed to take
    reasonable steps to ascertain the other persons age:
Morrison
, at
    paras. 28, 49;
Drury
, at para. 55.

[21]

In
Morrison
, the Court held that the presumption
    of belief in age under s. 172.1(3) of the
Criminal Code
unjustifiably infringes s. 11(d) of the
Charter
and is therefore of no
    force or effect: at paras. 11, 73. In the absence of the presumption, failing to
    take reasonable steps no longer provides an independent pathway to conviction.
    It merely limits when the accused may invoke as a defence
that
they believed the other person was of legal
    age:
Morrison
, at paras. 80, 82. As noted in
Drury
, [t]he
    accuseds belief must be affirmatively established without the assistance of
    the presumption  that is, by evidence adduced at trial establishing the
    requisite belief beyond a reasonable doubt: at para. 57.

[22]

Thus, after
Morrison
, in a prosecution
    under s. 172.1(1) in the context of a police sting where there is no underage
    person, the Crown must prove beyond a reasonable doubt three essential
    elements: (i) an intentional communication by means of telecommunication; (ii) with
    a person whom the accused believes is under the requisite age; and (iii)
for the purpose of facilitating the commission
of a
    designated offence
with respect to
that person:
Morrison
, at para. 95;
Drury
, at para. 59. To establish the
    second element, the Crown must prove beyond a reasonable doubt that the accused
    either believed or was wilfully blind to whether the interlocutor was underage:
Morrison
, at paras. 96-97;
Drury
, at para. 60. Recklessness
    as to the interlocutors age does not suffice:
Morrison
, at paras. 100‑1;
Drury
, at para. 60.

Application to This Case

(a)

The child luring convictions

[23]

The trial judge did not have the benefit of
Morrison
at the appellants trial. The parties agree, however, that the trial judges
    reasons must be evaluated by asking whether he convicted the appellant of child
    luring in a manner consistent with the legal framework later enunciated in
Morrison
.

[24]

The appellant claims the trial judge erred by
    applying the pre-
Morrison
legal framework. He claims the trial judge erroneously
    relied on the evidentiary presumption of belief in age under s. 172.1(3), and
    concluded that because the appellant had failed to rebut that presumption, the
    Crown had proved the appellants guilt beyond a reasonable doubt. The appellant
    thus asserts that the trial judge relied on the second independent pathway to
    conviction that
Morrison
eliminated. He says this case is just like
Drury
,
    where Watt J.A. concluded, at paras. 64-65, that the trial judge in that case erred
    by relying on the presumption of belief in the interlocutors age, based on a
    representation
that
they were underage, to
    establish or even help establish the accuseds belief that the interlocutor
    was underage. The appellant highlights para. 65 of
Drury
in particular:

Proof that the appellant believed or was
    wilfully
blind to the fact that Tiffany was
under
    16 was an essential element of the offence charged.
The Crown
was not entitled to invoke
the presumption of belief
    from the underage representation to establish or even help establish this
    essential element. Nor was it entitled to rely upon the absence of reasonable
    steps to negate any evidence to the contrary or to afford a discrete pathway to
    conviction
. The trial judge,
quite
understandably,
    adopted this
approach in light of
the existing
    jurisprudence. After
Morrison
, however, a finding of guilt recorded on these bases can no longer
    stand. [Emphasis added.]

[25]

Here, the Crown accepts the trial judge relied
    on the evidentiary presumption of age to convict the appellant, but claims the
    presumption was superfluous to his reasoning because he also concluded, independently
    of the presumption, that the Crown had proved the appellant knew Jenny was
    underage. The Crown highlights para. 242 of the trial judges reasons:

[242] Regarding [the appellants knowledge or
    belief that his interlocutor was underage], I find the Crown has the benefit of
    the presumption under s. 172.1(3).
In addition
, I find the Crown has the
    benefit of the overwhelming evidence at this trial that Mr. Allen thought he
    was talking to a 14 year-old and the almost complete absence of anything
    credible to the contrary. [Emphasis added.]

[26]

The Crown contends the underlined words [i]n
    addition confirm the evidentiary presumption in the previous sentence was
    superfluous, because there was an independent basis for the trial judge to
    convict the appellant: the overwhelming evidence that the appellant thought he
    was talking to a 14-year-old.

[27]

If para. 242 were read in isolation, it would be
    arguable that the evidentiary presumption  which was invoked by the Crown and applied
    by the trial judge  was superfluous. But para. 242 cannot be read in
    isolation. It foreshadows the trial judges conclusion at para. 249 that the
    Crown had established the appellants belief that Jenny was underage. The trial
    judges reasons for this conclusion are explained in paras. 243-49, which rely
    on the lack of reasonable steps six times and confirm that the trial judge
    determined that the Crown proved the appellants belief about Jennys age through
    the appellants failure to rebut the evidentiary presumption by taking reasonable
    steps  the second pathway to conviction that
Morrison
foreclosed:

[
243
]  Mr. Allen expressed
    doubts about the age of his sex chatting partner.
However, there was never
    any follow up by Mr. Allen
.

[
244
]  I find the most
    telling evidence that Mr. Allen believed Jenny was 14 was that he kept
    chatting.
He was
quite
content to accept
    and be reassured that she was 14 without further enquiry
.

[
245
]  Although Mr. Allen
    expressed doubt about Jennys age, such doubt does not amount to disbelief or
    taking reasonable steps.

[246]
I
find the existence of the
    photograph and Mr. Allen request for it do not constitute reasonable steps in
    all the circumstances.


[
247
]
Mr. Allen was
quite
content to rely on Jenny's assurances
that
she was 14
. Mr. Allen testified that the
    photographs could
well
be of a 14 year-old.
I
    find it is not enough to have asked for the photo
in
    circumstances where
he admits that the photo could have been of a 14
    year old
.



[249]
For these
    reasons,
I find the second element [i.e., the appellants knowledge or
    belief that his interlocutor was underage] has been satisfied and that the
    Crown has proven beyond a reasonable doubt that Mr. Allen believed the other
    party to the chats was under the age of 16
.
In
    this case,
the age was 14. [Emphasis added]

[28]

In my view, these passages show that the trial
    judge relied on the evidentiary presumption in s. 172.1(3), and the absence of
    reasonable steps under s. 172.1(4), to help establish the appellant believed Jenny
    was underage. He thus erroneously applied the pre-
Morrison
legal
    framework to the child luring charges.

[29]

This case is unlike the two cases the Crown
cites in support of
its claim that the trial judges
    reliance on the presumption in s. 172.1(3) was superfluous.

[30]

In
R. v. Cowell
, Trotter J.A. noted
    that the trial judge in that case
expressly
held
    that the Crown did not need to rely on s. 172.1(3) because he found the accused
    believed the interlocutor was underage without reference to the presumption:
    2019 ONCA 972, at para. 20, leave to appeal refused, [2020] S.C.C.A. No. 54. Here,
by contrast,
the trial judge
expressly
relied on the presumption.

[31]

Similarly, in
R. v. Ghotra
, the trial
    judge first found beyond a reasonable doubt that the accused believed he was
    communicating with an underage person, without relying on s. 172.1(3) and (4), and
    then applied the presumption of belief in represented age to reach the same
    conclusion: [2016] O.J. No. 7161 (Ont. S.C.), at paras. 150-57, affd 2020 ONCA
    373, leave to appeal requested, [2020] S.C.C.A. No. 187. Here,
by contrast,
the trial judges reasons relied on the
    statutory presumption to find that the appellant believed his interlocutor was
    underage.

[32]

I therefore conclude that the appellant has
    established that his conviction for child luring under s. 172.1(3) is tainted
    by legal error.

(b)

The curative proviso

[33]

The Crown asks the court to apply the curative
    proviso, s. 686(1)(b)(iii) of the
Criminal Code
, to sustain the
    conviction despite the legal error. The Crown says the error was harmless, and
in any event
the evidence of the appellants guilt
    was overwhelming.

[34]

The appellant responds that Watt J.A. refused to
    apply the proviso in
Drury
. He ruled the trial judges error in applying
    the pre-
Morrison
legal framework to the conviction of child luring in
    that case was not harmless because [i]t relates to the principal issue in
    controversy at trial  proof of the accuseds belief in the age of the
    interlocutor  and
in any event
the evidence
    of guilt in that case was not overwhelming: at para. 67.

[35]

I agree with the appellant. In my view, it cannot
    be said that the error in applying an unconstitutional evidentiary presumption
    to establish guilt was so harmless or minor that it could not have had any
    impact on the verdict:
R. v. Van
, 2009 SCC 22, [2009] 1 S.C.R. 716,
    at para. 34. As in
Drury
, the appellants belief of his interlocutors
    age was the principal issue in controversy.

[36]

Nor can it be said that the evidence of the
    appellants guilt was so overwhelming that any other verdict would have been
    impossible to obtain:
Van
, at para. 34. This high standard is met
    only if the case against the accused was so overwhelming that a reasonable and
    properly instructed jury would inevitably have convicted, and any possible
    measure of doubt concerning the strength of the Crowns case [must be afforded]
    to the benefit of the accused person:
Van
, at para. 36.

[37]

In this case, the appellant testified and the
    case turned on his credibility. He explained why he believed that Jenny was
    an adult, including his belief that the selfie Jenny sent him was of an adult
     which turned out to be correct. A reasonable and properly instructed jury may
    have believed the appellants evidence that he believed he was engaged in
    role-play with an adult. In all the circumstances, a verdict other than guilt
    was not impossible. I therefore conclude that this is not an overwhelming case
    that justifies applying the proviso.

(c)

The conviction for making sexually explicit
    images available to a child

[38]

The trial judges reasons for conviction on the
    count of making sexually explicit images available to a child relied on the
    presumption of belief in age in s. 171.1(3)  which was not addressed in
Morrison
 and simply adopted the evidence and findings in relation to the child
    luring counts: at para. 259. Because the findings on the child luring counts
    were tainted with legal error, and given the close factual connection between
    these counts, in my view fairness requires a new trial on all counts in the
    indictment.


Disposition

[39]

I would allow the appeal, set aside the
    convictions, and order a new trial.

Released: October 22, 2020 (R.G.J.)

M.
    Jamal J.A.

I
    agree. R.G. Juriansz J.A.

I
    agree. M. Tulloch J.A.


