



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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




C
OURT
    OF APPE
AL FOR ONTARIO

CITATION: R. v. McSween, 2020 ONCA 343

DATE: 20200603

DOCKET: C66531

Watt,
    Tulloch and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Richard McSween

Respondent

Lisa Joyal and Vallery Bayly, for the
    appellant

John Lefurgey, for the respondent

Heard: January 20, 2020

On appeal from the acquittals entered by
    Justice Tory Colvin of the Ontario Court of Justice on January 14, 2019.

Trotter
    J.A.:

A.

introduction

[1]

Richard McSween was charged with making child
    pornography, distributing child pornography, and child luring, contrary to ss.
    163.1(2), 163.1(3), and 172.1 of the
Criminal Code
, R.S.C. 1985, c. C-46.

[2]

The allegations relate to text message
    communications between the respondent, a 46-year-old man, and J.V., a 14-year-old
    boy. A number of the messages were of a sexual nature about J.V.s 14/15-year-old
    friend
[1]
,
    N.B. Specifically, the respondent asked J.V. to send him photos of N.B.s penis
    and repeatedly said he wanted to engage in sexual acts with N.B. At trial, the
    respondent admitted to authoring and sending inappropriate text messages to
    J.V. However, he claimed he was not serious when he made his sexualized
    comments about N.B. or when he requested photos of N.B.s penis.

[3]

The respondent was acquitted on all counts.

[4]

The Crown appeals the respondents acquittals.
    The Crown says the trial judge made legal errors in his interpretation of the
    child pornography and child luring provisions. I agree. The trial judges errors
    stemmed from his attempt to give legal effect to the respondents claim that he
    was joking in his explicitly sexualized messages. This caused him to err in his
    interpretation of the child pornography and child luring provisions

[5]

I would allow the appeal an order a new trial on
    all counts.

B.

factual background

[6]

J.V. and N.B. were best friends. The respondent
    was a friend of N.B.s family, particularly N.B.s older brother. J.V. and N.B.
    came to know the respondent better through his involvement with a local hockey
    team.

[7]

In November of 2016, the respondent started to
    spend a lot of time with J.V. and N.B. They would frequently hang out. The
    respondent took them bowling and to trampoline parks, restaurants, and hockey
    games. It was usually just the three of them, but they were sometimes
    accompanied by other teenaged boys. The respondent often paid for these
    activities. He also bought gifts for N.B.clothing, food, and a gaming desk. He
    gave N.B. driving lessons. N.B. slept over at the respondents apartment from
    time to time. J.V. also stayed over on one of these nights.

(1)

The Text Messages

[8]

The allegations arose from the text messages
    exchanged between the respondent and J.V., between April 23, 2017 and May 13,
    2017.

[9]

The first comments of a sexual nature occurred
    on April 24, 2017. The respondent discussed giving N.B. a hand job: [N.B.]
    said 200$ and I can give him hand Lol. J.V. responded, Lol.

[10]

The next sexualized exchange occurred on May 1,
    2017. The respondent repeatedly asked J.V. to send him a photo of N.B.s penis,
    referred to in their messages as a dick pic. The respondent believed that
    J.V. was in possession of a photo of N.B.s penis. J.V. testified that N.B. shared
    such a photo with him on SnapChat; N.B. testified that he did not. When the
    respondent asked J.V. to send the photo to him, J.V. took a photo of his own
    face and sent it to the respondent as a joke. The respondent insisted that he
    wanted the photo of N.B.s penis because N.B. bugs me for one so I was going
    to send him his dick pic lol. The respondent said, It would b funny and
    continued to probe J.V. on whether he had such a photo.

[11]

The next exchange occurred on May 12, 2017, when
    the respondent informed J.V. that he loves N.B.:
[2]

RM:   I still love [N.B.]

JV:     Lol

RM:
U think he might have sex with me
    sometime ??

JV:     Idk [I dont know]

RM:
I will pay him


I just want to play with his cock

JV:     Ok

RM:   He will

JV:     Lol

RM:   Im so happy now

JV:     Lol

RM:
I will be the happiest person around
    if he does

R U going to tell him

JV:     No

RM:   I want him to know that

JV:     Thats weird.

RM:
He thinks Im joking when I ask him

JV:
Cuz u r

RM:
No Im not

JV:
Yes u r


RM:
Im not



RM:   He is cute eh

JV:     Yes

RM:   U like him

JV:     As a best friend ya

RM:   You want to have seen [sex] with him to[o]

JV:
No

RM:   Its [Is] his dick big

JV:
Idk

RM:
U seen it


U told me that

JV:
Ya

[Emphasis added.]

[12]

A little while later that same day, the
    respondent sent J.V. an image of stick figures engaged in sexual intercourse,
    with one figure depicted as penetrating the other from behind. Referring to
    N.B., the respondent wrote, I wish he would do that to me. J.V. responded
    with another Lol.

[13]

The respondent then referred to having paid for
    various things for N.B., including purchasing gifts:

RM:   U
    know
after all I do for him he should let me play with his dick
eh

JV:     No

RM:   Desk
    phone[,] 2 times for the ice[,] the Gongshow stuff [clothing] and other things

[Emphasis added.]

[14]

Lastly, during this conversation, J.V. said that
    he was going to take a shower and the following exchange ensued:

RM:   Can I go in there to[o] ??

JV:     No

RM:   Pls

JV:     No

RM:   Pls pls

JV:     No no

RM:   Fuck ok maybe next time

JV:     Maybe

RM:   Sick

(2)

The Discovery and Arrest

[15]

These text messages came to light as a result of
    a dispute between J.V. and his mother. J.V. allowed his phone to run out of
    power when he was out one night. His mother was frustrated because she was unable
    to be in touch with him. She confiscated J.V.s phone and, upon examining it,
    discovered the text messages reproduced above. When she read them, she felt,
    [a]nger, denial, sadness, betrayal.

[16]

J.V.s mother eventually reported the matter to
    the police, around May 17, 2017. The respondent was arrested a couple of weeks
    later, on June 1, 2017.

(3)

Evidence at Trial

[17]

J.V., N.B., and the respondent each testified at
    trial. J.V. and N.B. also gave statements to the police that were introduced at
    trial.

J.V.s Evidence

[18]

J.V. was interviewed by the police on May 17,
    2017. Throughout his statement J.V. said he thought the respondent was joking
    in his text messages. J.V. said the respondent told him that in person.

[19]

J.V. painted a different picture at trial. He said
    his stomach dropped when he got the messages. At first, he thought the
    respondent was joking but, when the respondent said he wasnt, J.V. said he
    felt scared for N.B. and said, I didnt know how to take these messages. He
    didnt want it to be true. He characterized the respondents texts as pretty
    weird and absolutely disgusting and said he was creeped out; shocked;
    and awkward, nervous.

[20]

J.V. described the respondent as someone who
    liked to joke around and who acted like a big brother or an overgrown teenager.
    J.V. acknowledged he joked around with his friends about sex. However, he said
    the messages he received from the respondent were unlike the jokes he made with
    his other friends. J.V. admitted that his interpretation of the texts has
    changed tremendously in a year. He explained that he initially told the police
    the respondent was joking because he felt uncomfortable when he gave his statement.
    But the fact that the respondent referenced spending money on N.B. made him
    think that it was not a joke.

N.B.s Evidence

[21]

N.B. gave a statement to the police on May 18,
    2017. He insisted emphatically that the respondent never acted inappropriately
    toward him. He gave another statement just prior to trial in July of 2018,
    contradicting his first statement.

[22]

N.B. testified that, when the matter was first
    brought to the attention of the police, he was torn because I was relieved but
    also scared. He was terrified and nervous, very nervous when he was
    speaking to the police. He had not yet told his mother everything that had
    happened, and he feared that it would destroy her.

[23]

N.B. was permitted to testify about incidents in
    which the respondent made sexual comments to him in person. On one occasion,
    when N.B. was at the respondents apartment and talking to his girlfriend on
    the phone, the respondent took the phone and asked her, Is it okay if I touch
    your boyfriends penis? This apparently made her cry. N.B. also testified that
    the respondent asked him for a photo, attempted to masturbate in front of him,
    and attempted to touch him in a sexual manner. The trial judge admitted this
    evidence for the purpose of rebutting the respondents claim that he was
    joking. These incidents led N.B. to believe that the respondent was not joking.

[24]

N.B. admitted that he continued to see and
    message the respondent between the time of the allegations and the respondents
    subsequent arrest. He went to Canadas Wonderland with the respondent and
    others. In this time period, the respondent texted, U know I would never do
    anything like that to you? N.B. responded, obviously. N.B. said that he
    carried on a cordial relationship with the respondent because he was afraid
    that the respondent might try to hurt him.

The Respondents Evidence

[25]

The respondent was unwavering in his position
    that he was not serious in his text messages. Upon his arrest, the respondent told
    the police: I was just joking and I already said I was sorry to [N.B.s] mom.
    He maintained this position at trial.

[26]

The respondent worked as a tow truck driver. He
    sent his messages to J.V. when he was between calls. He said was he just
    killing time and joking around with [J.V.]. He denied deriving any sexual
    gratification from these exchanges, nor did he sense that they made J.V.
    uncomfortable. He would have stopped if he had known. He denied any
    inappropriate conduct with J.V. or N.B. in person.

[27]

When the Crown asked the respondent, whats
    funny about you playing with a 14 year old boys cock?, the respondent said,
    At the time I thought it was funny, killing timeI dont know, at the time I
    wasn't  thinking about it. I was just bored and texting.

[28]

When asked what he would have done had he been
    sent a photograph of N.B.s penis (even though his request was a joke), the
    respondent answered, Would have opened it and saw it and just left it as
    that.

[29]

In relation to $200 being paid for a hand job,
    the following exchange occurred:

Q.:     Would
    the boys in your presence talk about giving each other hand jobs for money?

A.:     No.

Q.:     No, because 15 year old kids dont
    joke about that?

A.:     They dont have the money.

Q.:
        They dont want hand jobs from their buddies, right?

A:      Right.

Q.:     Screw
    the money, they dont want hand jobs from their buddies, right?

A.:     Right.

Q.:     They
    dont want hand jobs from 47 year old Rick McSween either, do they?

A.:     No.

Q.:     No. But thats a funny joke to you?

A.:     At the time it was, yes.

[30]

In cross-examination, the respondent
    acknowledged that his texts were inappropriate. He agreed that, as far as
    sexual content was concerned, the text message correspondence with J.V. was
    one-sided in the sense that it was always he who initiated discussions about
    sex and that J.V. appeared to shut-down these themes. He said that, when the
    three of them (i.e., the respondent, J.V., and N.B.) were together, all of them
    would make jokes of this type.

C.

the trial judges reasons

[31]

The trial judge reviewed the evidence in detail.
    He was unimpressed with J.V. and N.B's evidence:

I have grave doubts about accepting the
    evidence of either of the two youths. They have obviously changed their mind as
    to the nature of the texts in question. They do not support each other in the
    narration of the other events that have supposedly occurred during the driving
    episodes.

. . .

In the case of each youth, I find their first
    recorded conversations with the police sound unrehearsed and natural. Both seem
    unhesitating and relaxed, notwithstanding the surroundings. They both sound
    credible. They are more credible in these first videos than in their
viva
    voce
evidence.

[32]

The trial judge accepted the respondents
    evidence that the messages were sent in jest. He acknowledged that s. 163.1(6)
    of the
Criminal Code
,
    discussed below, does not include a defence of joking. However, he found that
    the Crown had failed to prove the requisite elements of the child pornography
    and luring offences. The following passage contains the trial judges analysis:

Mr. McSween is most certainly inappropriate in
    his texts. It is quite understandable that a parent seeing these texts would be
    concerned. This is not a mature man in his forties talking, it is another
    teenage boy with all the angst and [immaturity] of young teenagers. It is teen
    locker room banter. It is not what any parent would want their teenage sons
    exposed to coming from another adult. Some might well object to it between
    young teenagers.

Mr. McSween gives the impression of being
    somewhat naïve and as having the immaturity of a young teenager. As an example,
    he indicates that he would have looked at a dick pic had one been sent. There
    is no suggestion of anything salacious. It was said just as an immature
    teenager in his early teen years would have said it. I accept Mr. McSweens
    testimony in this regard.

I am certainly left with a reasonable doubt as
    to Mr. McSweens intent. I cannot find beyond a reasonable doubt that the
    Crowns case has met the requisite level to show his intent for these offences.

I cannot find he was serious in his text
    messages. I cannot find these texts posed an undue risk [to] persons under 18
    as set out in Section 161.3(6)(b).
I use this only
    as a guide as Subsection (b) must be read as qualifying Subsection (a) which,
    as the Crown correctly points out, does not contain an exception for jokes.

This lack of risk and lack of dominant
    sexual characteristic is particularly evident when looked at in the light that
    only 36 of the total of over 4,000 pages of text messages are raised.
I have a reasonable doubt that this would meet the definition of
    child pornography, there
is any attempt to lure [anyone] under 18 years old
    for a sexual purpose
, or that Mr. McSween was counselling or promoting
    sexual activity with people under 18.
I do not find the written material to
    have the dominant characteristic of, or to represent such activity. The
    dominant purpose of the texts was not advocating or counselling sexual activity
    with [J.V.] and [N.B.] I do not find the dominant characteristic to be a
    description for a sexual purpose of sexual activity.
[Emphasis added.]

D.

the positions of the parties

[33]

The Crown submits the trial judge made several errors
    in his interpretation of s. 163.1 of the

Code
that resulted in the respondents unjustified acquittals. The Crown
    contends that the trial judge erred: (1) by finding that the respondent lacked
    the intent required under s. 163.1(2) and (3); (2) in his application of the
    definitions of child pornography in s. 163.1(1)(b) and (c); and (3) by conflating
    the fault requirements under s. 163.1 with elements of the statutory defence in
    s. 163.1(6), which had no application in this case.

[34]

The Crown also submits the trial judge erred in
    his appreciation of the fault requirements of s. 172.1. He failed to focus on
    the concept of facilitating in s. 172.1 and erred in requiring the Crown to
    prove a sexual purpose on the respondents part.

[35]

Counsel for the respondent submits the trial
    judge made no legal error. The respondent argues that the trial judge was
    correct to consider his lack of sincerity in sending the messages. To do
    otherwise, the respondent submits, would impose strict liability. Having accepted
    the respondents evidence that he was joking around with J.V., the trial judge
    was right to enter acquittals under ss. 163.1 and 172.1.

E.

analysis

[36]

The trial judge erred in his interpretation of both
    the child pornography and child luring provisions. These errors were driven by
    the trial judges attempts to give legal effect to the respondents claim that
    he was joking with J.V. and were instrumental in the respondents acquittals on
    all counts.

[37]

As an important preliminary matter, the Crowns
    appeal is based on alleged errors of law. This is a statutory requirement for
    an appeal by the Crown under s. 676(1)(a) of the
Criminal
    Code
: see
R. v. Chung
, 2020 SCC 8, at paras. 10-11.

[38]

The respondent does not dispute that the Crown
    has raised questions of law relating to the interpretation of ss. 163.1 and
    171.2 of the
Code
. Indeed, with respect to one of the critical issues
    raised on this appeal relating to the definition of child pornography  whether
    any written material, visual representation, or oral recording advocates
    sexual activity with anyone under the age of eighteen years (s. 163.1(1)(b)) 
    Parliament has deemed this to be a question of law: s. 163.1(7).

(1)

The Child Pornography Charges

[39]

Sections 163.1(2) to (4.1) of the
Criminal Code
create a number of
    different child pornography offences: see Hamish Stewart,
Sexual Offences in Canadian Law
(Toronto: Thomson Reuters, 2004) (loose-leaf updated 2019, release 36), at pp.
    5-30 to 5-39. This case concerns s. 163.1(2) (making child pornography) and s.
    163.1(3) (distributing child pornography), which provide as follows:

163.1(2) Every person who
makes
,
    prints, publishes or possesses for the purpose of publication any child
    pornography is guilty of an indictable offence and liable to imprisonment for a
    term of more than 14 years and to a minimum punishment of imprisonment for a
    term of one year.

163.1(3) Every person who transmits, makes
    available,
distributes
, sells, advertises, imports, exports or possesses
    for the purpose of transmission, making available, distribution, sale,
    advertising or exportation any child pornography is guilty of an indictable
    offence and liable to imprisonment for a term of not more than 14 years and to
    a minimum punishment for a term of one year.  [Emphasis added.]

[40]

The Crown alleges the respondents actions in
    composing his text messages to J.V. satisfied the requirements in ss. (2) in
    making child pornography; by sending them to J.V., he distributed child
    pornography, contrary to ss. (3).

[41]

The trial judge accepted the respondents
    evidence that he did not actually want to engage in sexual activity with N.B. The
    issue of the respondents sincerity arose more than once in the trial judges
    analysis and ultimately led to findings that the respondent lacked the
    requisite intent to commit the offences and the messages did not fall within the
    s. 163.1(1) definition of child pornography.

[42]

The appeal from acquittal on the child
    pornography charges requires this court to answer two questions:

1.

Can private text message communications
    constitute child pornography within the meaning of s. 163.1(1)?

2.

What is the required
mens rea
to prove
    the defendant guilty of a child pornography offence under s. 163.1?

These are questions about the permissible
    reach of the criminal law. They can only be answered by examining the text of
    the relevant provisions in light of Parliaments intention in enacting them.

[43]

For the reasons below, I would allow this appeal
    from the acquittals entered on the child pornography charges. In short, s. 163.1
    does not punish mere thoughts about sex with children. It punishes the creation
    of child pornography in tangible formats (i.e., visual representations, audio
    recordings, and written materials) and the various ways in which they may be
    accessed, handled, shared, and transmitted. These items do not gain or lose
    their child pornographic features based on the motive of person who creates or
    distributes them, whether they are driven by lasciviousness, curiosity,
    financial gain, extortion, humiliation, or otherwise. The respondents claim
    that he was joking is a red herring.

(a)

Private Text Message Communications as Child
    Pornography

[44]

Section 163.1(1) defines child pornography
    broadly, covering the wide range of human expression and embracing the various
    ways in which we communicate with each other. This appeal is concerned with the
    definitions in ss. 163.1(1)(b) and (c), which provide:

(b) any
written material
, visual
    representation or audio recording
that advocates or counsels sexual activity
with a person under the age of eighteen years that would be an offence
    under this Act;

(c) any
written material
whose
dominant
    characteristic is the description
, for a sexual purpose,
of sexual
    activity
with a person under the age of eighteen years that would be an
    offence under this Act. [Emphasis added.]

Text message communications falling
    within either definition are child pornography. Section 163.1 does not require
    the alleged child pornography to meet the definition under both s. 161.1(1)(b)
    and (c). One will suffice.

[45]

The facts of this case give rise to the
    threshold question  are electronic communications, whether by email, text
    message, or similar means, capable of being written material within the meaning
    of ss. 163.1(1)(b) and (c)?

[46]

In the Canadian child pornography jurisprudence,
    written material has largely involved fictional or narrative accounts,
    perhaps in a book or journal: see
R. v. Sharpe
, 2001 SCC 2, [2001] 1 S.C.R. 45;
R. v.
    Beattie
(2005), 75 O.R. (3d) 117 (Ont. C.A.). In
    this case, the material is comprised of first-person communications 
    conversation or dialogue  between an adult and a 14-year-old boy. In these
    exchanges, the respondent describes sexual acts he would like to perform on
    another 14-year-old.

[47]

The respondent argues that Parliament did not
    intend to criminalize this type of private communication between individuals. I
    disagree.

[48]

The wording of s. 163.1, against the backdrop of
    Parliaments goal in enacting this legislation, supports the inclusion of
    first-person electronic communications in the definition of any written
    material.

[49]

In
Sharpe
, McLachlin C.J.C. discussed the harm caused to children by child
    pornography that Parliament sought to address at para. 103:

Explicit sexual photographs and videotapes of
    children may promote cognitive distortions, fuel fantasies that incite
    offenders, enable grooming of victims, and may be produced using real children.
Written material that advocates or counsels sexual offences with children
    can pose many of the same risks.
Although we recently held in
Little
    Sisters Book and Art Emporium v. Canada (Minister of Justice)
, [2000] 2
    S.C.R. 1120, 2000 SCC 69, that it may be difficult to make the case of
    obscenity against written texts, materials that advocate or counsel sexual
    offences with children may quality. The Crown has also met the burden of
    showing that the law will benefit society by reducing the possibility of
    cognitive distortions, the use of pornography in grooming victims, and the
    abuse of children in the manufacture and continuing existence of this material.
Explicit sexual photographs of children, videotapes of pre-pubescent
    children, and written works advocating sexual offences against children  all
    of these and more pose a reasoned risk of harm to children
. Thus we may
    conclude that in its main impact, s. 161.1(4) is proportionate and
    constitutional. [Emphasis added.]

[50]

Interpreting any written material to include
    communicative speech by electronic means is consistent with Parliaments goal
    in protecting children from harm. The child pornography provisions do not
    distinguish between representations created by electronic or mechanical means.
    Both are captured:
Sharpe
, per LHeureux-Dubé, Gonthier and Bastarache JJ., at  para. 135
    (dissenting, but not on this point).

[51]

Since then, lower courts have found electronic
    communications capable of constituting child pornography. In
R. v. Gagné
, 2011 QCCA 2157, at para.
    14, the Court of Appeal of Quebec held that any writing, whether electronic
    or otherwise, is capable of constituting child pornography. In that case, the
    court held that chat room conversations fell within the definition of written
    material: at paras. 19-22. See also
R. v. Tomasik
, 2016 ONSC 3719, at para. 95 (text messages);
R. v. Rodwel
l
, [2016] O.J. No. 6842, at paras. 38-41 (Ont. Ct. J.) (chat room
    communications); and
R. v. A.R
.
, 2017 ONCJ 849, at paras. 24-25
    (email).

[52]

Beyond the issue of the mode of communication, a
    more contentious issue is whether the content of private communications between
    individuals is caught by s. 163.1.

A.R
.
provides a helpful discussion on this
    point.

[53]

The accused in
A.R.
engaged in email communications with an undercover police officer
    about having sex with children. After sending photos of two pre-pubescent girls
    to the undercover officer who commented that the girls looked amazing and
    very nice, the accused said: Ty [thank you]. Would love to have fun with
    them both or have them just rub my cock. Till I explode over their tiny hands.
    But I know it wont happen.

[54]

In his reasons for convicting the accused,
    Latimer J. acknowledged, at para. 22, that the materials before him were of a
    different kind not expressly contemplated in the Supreme Court of Canadas
    decision in
Sharpe
:
    It [the email conversation] is not a standalone document created by a single
    person; it is a narrative willingly created by two men communicating over a
    medium that recorded and transmitted their written words across the internet.
    Nonetheless, after alluding to the exploitive potential created by anonymous
    internet communications, Latimer J., at para. 24, held that the fact that the
    writings were communicative acts, rather than an individually prepared story
    or document, does not remove it from the ambit of s. 163.1(1)(b).

[55]

I agree with this approach
.
Although not
    contemplated in
Sharpe
,
    given the objectives of Parliament in enacting s. 163.1 of the
Criminal Code
, private text message
    communications fall within the reach of the section.

[56]

It is true that there may be some overlap
    between first-person communications under s. 163.1 and similar communications
    under other provisions of the
Criminal Code
, such s. 172.1 (child luring), which is discussed below. However,
    this does not shed those communications of their child pornographic properties.
    Importantly, not all communicative writings that come within the definition of
    child pornography will satisfy the requirements of child luring. It will depend
    on the circumstances.

[57]

Consequently, the Crown has established that
    electronic communications between individuals 
i.e.
, communicative acts  fall within the definition of any written
    material in ss. 163.1(1).

[58]

The question now becomes whether these
    communications come within either of the definitions of child pornography set
    out above (in para. 44): whether these communications advocate or counsel
    sexual activity with a person under 18 years (s. 163.1(1)(b));
or
whether the dominant characteristic of the communications is the description,
    for a sexual purpose, of sexual activity with a person under 18 years (s.
    163.1(1)(c)). I will consider both in turn.

[59]

Before doing so, it is important to briefly
    address the trial judges use of the defences set out in s. 163.1(6), which
    provides as follows:

No person shall be convicted of an offence
    under this section if the act that is alleged to constitute the offence

(a)
has a legitimate purpose related to the administration of
    justice or to science, medicine, education or art; and

(b)
does not pose an undue risk of harm to persons under the age
    of eighteen years.

[60]

Strictly speaking, the trial judge did not apply
    s. 163.1(6). In the passage reproduced in para. 32, he referred to it as a
    guide. However, s. 163.1(6) was not a valid guide. The trial judges
    evaluation of the fault requirements in s. 163.1 was distorted by his application
    of the concept of undue risk in s. 163.1(6).

[61]

The concept of undue risk has no role to play
    in determining whether written material amounts to child pornography. Section
    163.1(6) is comprised of conjunctive components, in paras. (a) and (b). Neither
    has a life of its own. Undue risk of harm to persons under the age of eighteen
    years in paragraph (b) may only be considered if it is tied to one of the four
    legitimate purposes identified in paragraph (a). In other words, as McLachlin
    C.J.C. and Charron J. wrote in
Katigbak
, 2011 SCC 48, [2011] 3 S.C.R. 326, at para. 64, the provision only
    comes into play
after
the court has held that the accused had a legitimate purpose related to the
    administration of justice or to science, medicine, education or art (emphasis
    in the original).

[62]

Any written material that comes within one of
    the statutory definitions of child pornography is inherently harmful:
R. v. Schacter
, 2018 ONCJ 371, at para.
    38. See also
Sharpe
,
    at para. 103. Absent one of the enumerated purposes in s. 163.1(6)(a), an
    accused person has no defence: see
R. v. Kiefer
, 2018 ONCA 925, 368 C.C.C. (3d) 129, at paras. 32-40.

(i)

Advocates or counsels sexual activity  s.
    163.1(1)(b)

[63]

A critical issue in this case is whether the
    respondents communications with J.V. advocated or counseled sexual activity
    with N.B.

[64]

Section 163.1(1)(b) requires courts to determine
    if the material, viewed objectively, advocates or counsels sexual activity with
    a person under the age of 18:

At stake is not whether the maker or possessor
    of the material intended to advocate or counsel the crime, but whether the
    material, viewed
objectively
, advocates or counsels the crime  The mere
    description of the criminal act is not caught. Rather, the prohibition is
    against material that,
viewed objectively
, sends the message that sex
    with children can and should be pursued. [Emphasis added.]

Sharpe
, at para. 56. See also paras. 57-58.

[65]

Beattie
reinforces this objective approach and takes
Sharpe
one step further. In assessing the objective nature of, in that
    case stories, Laskin J.A. held, at para. 23, that it is not necessary for the
    written material to contain words to the effect that sexual activity with
    children is a good thing and should be pursued: active inducement or
    encouragement may come from a message that is implicit in the stories
    themselves. See also
R. v. Missions
, 2005 NSCA 82, 196 C.C.C. (3d) 253, at para. 29.

[66]

In combination,
Sharpe
and
Beattie
require the Crown to prove that the written material in question,
    viewed objectively, actively induces or encourages sexual activity with
    children that is an offence under the
Criminal Code
, whether that message is conveyed explicitly or whether it is implicit
    in the communications.  That Parliament determined this inquiry to be a
    question of law in s 163.1(7) reinforces the objective nature of the inquiry.

[67]

In the passage reproduced in para. 32 above, the
    trial judge mentioned the respondents state of mind a number of times. He expressed
    a reasonable doubt about the respondents intent. The trial judge also entertained
    doubt that the respondent was counselling or promoting sexual activity with
    people under 18 and he was unable to find that [t]he dominant purpose of the
    texts was not advocating or counselling sexual activity with [J.V.] or [N.B.].
    This is the juncture at which the trial judge gave effect to the respondents
    claim that he was joking. In doing so, he erred in his interpretation of s.
    163.1(1)(b).

[68]

Absent from the trial judges reasons is any
    indication that he assessed the nature of the communications objectively. Instead
    of focusing on what the respondent intended, the trial judge should have
    focused on whether the messages themselves, when viewed objectively, advocated
    or encouraged sexual activity with persons under the age of eighteen.

[69]

By adopting a purely subjective approach, the
    trial judge committed an error of law as contemplated in s. 163.1(7). As is
    evident from the excerpt in para. 11 above, when the respondent seemed to
    misunderstand a response from J.V. as an indication that N.B. would allow him
    to play with his cock, he said, Im so happy now and I will be the
    happiest person around if he does. Shortly after that, the respondent was
    emphatic in his denial that he was joking. Later on, the respondent told J.V.,
    U know after all I do for him he should let me play with his  dick, eh. The
    trial judge was required to ask himself whether, when viewed objectively, these
    communications encouraged sexual activity between himself and N.B, within the
    meaning of s. 161.1(1)(b).

[70]

If the respondents communications fall within
    s. 161.1(1)(b), no analysis of s. 161.1(1)(c) is required. However, because the
    Crown also relied on s. 161.1(1)(c), it is necessary to consider the definition
    of child pornography under this provision.

(ii)

Dominant characteristic is the description, for
    a sexual purpose, of sexual activity  s. 163.1(1)(c)

[71]

Section 163.1(1)(c) requires the court to ask
    whether the respondents text messages described sexual activity with a person
    under 18 for a sexual purpose. Unlike the inquiry required by s. 163.1(1)(b),
    Parliament has not designated the issue under s. 163.1(1)(c) to be a question
    of law. Nevertheless, applying basic principles, the trial judge committed
    legal errors in his interpretation of this section: see
Chung
, at para. 11.

[72]

Section 163.1(1)(c) was enacted after
Sharpe
was decided:
An Act to amend the Criminal Code (protection of children and other
    vulnerable persons) and the Canada Evidence Act,
S.C. 2005, c. 32, s. 7(1) [
Child Pornography
    Amendment
]. However, Sharpe provides some guidance
    by its interpretation s. 163.1(1)(a):

163.1(1)(a)
a
    photographic, film, video or other visual representation, whether or not it was
    made by electronic or mechanical means, []

(ii)
the
dominant
    characteristic
of which is the depiction,
for a sexual purpose
, of a
    sexual organ or the anal region of a person under the age of eighteen years.
    [Emphasis added.]

[73]

As with the current version of s. 163.1(1)(b), discussed
    above,
Sharpe
prescribed an objective approach to this section, both with respect to the
    dominant characteristic and sexual purpose elements. As McLachlin C.J.C
    said, at para. 50:

The question is whether a reasonable viewer,
    looking at the depiction objectively in context, would see its dominant
    characteristic as the depiction of the childs sexual organ or anal region.
    The same applies to the phrase for a sexual purpose, which I would interpret
    in the sense of reasonably perceived as intended to cause sexual stimulation in
    some viewers.

[74]

This approach may be adapted to the current
    version of s. 163.1(1)(c). In this case, it requires the court to ask whether a
    reasonable viewer, looking at the text messages objectively, and in context,
    would see its dominate characteristic as the description of sexual activity
    with a person under 18 for a sexual purpose.

[75]

Unlike s. 161.1(1)(a)(i), section 163.1(1)(c)
    does not require that the dominant characteristic of written material be 
explicit
sexual activity; it only requires
    sexual activity:

(a) a photographic, film, video or other
    visual representation, whether or not it was made by electronic or mechanical
    means,

(i) that shows a
    person who is or is depicted as being under the age of eighteen years and is
    engaged in or is
depicted as engaged in explicit sexual activity
, or



(c) any written material whose
dominant characteristic
    is the description
, for a sexual purpose,
of sexual activity
with a
    person under the age of eighteen years that would be an offence under this Act.
    [Emphasis added.]

This distinction is important.

[76]

In
Sharpe
, the Supreme Court held, at para. 44, that Parliament intended to
    draw the line at the extreme end of the spectrum concerned with depictions of
    intimate sexual activity represented in a graphic and unambiguous manner. In
    arriving at this conclusion, McLachlin C.J.C. relied, at para. 45, on
    Parliaments decision to include the word explicit to describe the activity
    depicted:

The first indication is Parliaments use of
    the word explicit to describe the activity depicted.  Parliament could
    have simply referred to sexual activity.  Instead, it chose explicit
    sexual activity.  Explicit must be given meaning. According to
    the
Canadian Oxford Dictionary
(1998), explicit in the
    context of sexual acts means describing or representing nudity or intimate
    sexual activity.  Similarly, explicit according to the
New
    Oxford Dictionary of English
(1998) means describing or representing
    sexual activity in a graphic fashion.  This suggests that the law catches
    only depictions of sexual intercourse and other non-trivial sexual acts.

This restricted meaning is supported by the
    fact that in creating other offences, like sexual assault, Parliament uses the
    word sexual without any modifiers.  To constitute sexual assault, the
    sexual aspect of the contact must be clear.  The addition of the modifier
    explicit in s. 163.1 suggests that this at least is required.

[77]

Two principles of statutory interpretation 
    different words, different meaning and the presumption against tautology 
    instruct that Parliaments decision to use sexual activity in s. 163.1(1)(c)
    rather than explicit sexual activity in s. 163.1(1)(a)(i) gives sexual
    activity a broader meaning: Ruth Sullivan,
Sullivan
    on the Construction of Statutes
, 6th ed. (Markham:
    LexisNexis, 2014) at §
§ 8.23, 8.36.

[78]

What is more, s. 163.1(1)(c) was added to the
Criminal Code
by amendment in 2005,
    after the Supreme Courts decision in
Sharpe
. With this amendment, Parliament intended to broaden the definition
    of child pornography:
House of Commons Debates
, 38th Parl., 1st Sess., No. 7 (13 October 2004), at p. 323 (Hon.
    Paul Harold Maklin). This broad definition can be confirmed by looking to
    Canadas international obligations.

[79]

Canadian law is presumed to conform with
    Canadas international obligations:
R. v. Hape
, 2007 SCC 26, [2007] 2 S.C.R. 292 at paras. 53-54; Sullivan, at § 18.5.
    As such, international law can help define the scope of Canadian domestic law.
    This was the case in
Canadian Foundation for
    Children, Youth, and the Law v. Canada (Attorney General
)
, 2004 SCC 4, [2004] 1 S.C.R. 76, where,
    at paras. 31-33, McLachlin C.J.C. looked to Canadas international treaty
    obligations to determine with further precision the definition of what is reasonable
    in the circumstances under s. 43 of the
Criminal
    Code
.

[80]

The 2005
Child
    Pornography Amendment
that enacted s. 163.1(1)(c) cites,
    in its preamble, two of Canadas international treaty obligations: the
Convention on the Rights of the Child
, 20
    November 1989, U.N.T.S. vol. 1577, p. 3 (entered into force 2 September 1990)
    and the
Optional Protocol to the Convention on the
    Rights of the Child on the Sale of Children, Child Prostitution, and Child
    Pornography
, 16 March 2001, A/RES/54/263 (entered
    into force 18 January 2002). While the
Convention
does not define child pornography, s. 2(c) of the
Optional Protocol
does: any
    representation, by whatever means, of a child engaged in real or simulated
    explicit sexual activities or any representation of the sexual parts of a child
    for primarily sexual purposes. The Commentary to these treaties notes that the
    exact contours of child pornography is hard to define. But, at its core, child
    pornography captures the sexualization and objectification of an individual
    child, and by implication, children, the representation of which need not be
    solely for sexual purposes: John Tobin, The Optional Protocol on the Sale of
    Children, Child Prostitution, and Child Pornography in
The UN Convention on the Rights of the Child: A Commentary
(Oxford: Oxford University Press, 2019) at pp. 1738-39.

[81]

In this case, the trial judge erred by employing
    a quantitative approach to the dominant characteristic framework. The trial
    judge was convinced that, because only a fraction of the communications between
    the respondent and J.V. were sexual in nature (36 out of over 4,000 pages of
    text messages), it could not be said that messages of a sexual nature formed a
    dominant characteristic of their entire correspondence for the purposes of s.
    163.1(1)(c). The trial judge should have focused on the characteristics of the
    impugned messages, rather than the entirety of the correspondence between the
    respondent and J.V.

[82]

The error in this approach is demonstrated by
    reference to visual representations of child pornography. The trial judges
    reasoning would mean that an image that is explicitly child pornography may lose
    this characteristic if it were to be interspersed with non-pornographic images.
    That is, if a clearly sexualized photo of a child is found in an otherwise
    typical family photo album, the sexualized photo would somehow lose its
    attributes as child pornography because it forms such a small part of the
    collection. An interpretation of s. 163.1 that would so easily place child
    pornography beyond the reach of the section, through mere camouflage or
    disguise, would clearly frustrate Parliaments intent: see
R. v. Rudiger
, 2011 BCSC 1397, 278
    C.C.C. (3d) 524, at paras. 139-140.

[83]

The same reasoning applies to the written communications
    in this case. Merely because the explicit, sexualized messages that the
    respondent sent to J.V. formed only a small part of their entire correspondence,
    it would not necessarily denude those communications of any child pornographic
    characteristics that may be found to exist. Section 163.1(1)(c) addresses the
    dominant characteristic of the impugned written material, not the relative
    tenor of all written communications between correspondents.

(b)

The Required Mental Element to Commit a Child
    Pornography Offense

[84]

The trial judge also erred in his approach to
    the
mens rea
for
    offences under s. 163.1. The error lay in confusing motive and intent.

[85]

Intent and motive are two distinct concepts. The
    Supreme Court spoke of the interaction of motive with intention in
Lewis v. The Queen
, [1979] 2 S.C.R.
    821, at p. 831 noting that while often spoken of in the same breath, intent and
    motive are conceptually distinct. This was again reiterated in in
Dynar v. United States
, [1997] 2 S.C.R.
    462, where Cory and Iacobucci JJ. wrote, at para. 81:

It does not matter to society, in its efforts
    to secure social peace and order, what an accused's motive was, but only what
    the accused intended to do. It is no consolation to one whose car has been
    stolen that the thief stole the car intending to sell it to purchase food for a
    food bank.

See also
R. v. Hamilton
,
    2005 SCC 47, [2005] 2 S.C.R. 432, at paras. 38-45; Don Stuart,
Canadian
    Criminal Law  A Treatise
, 7th ed. (Toronto:  Carswell, 2014), at pp.
    244-249.

[86]

The respondents claim that he was joking in his
    text messages is not a denial of intent; it is an assertion of lack of motive.
    There is no presumption at common law that requires the Crown to prove a
    particular motive or ulterior purpose on the part of the accused. Parliament
    could define an offence in a manner that requires proof of a particular motive:
    see
R. v. Hibbert
,
    [1995] 2 S.C.R. 973, at para. 25. But it has not done so with respect to child
    pornography.

[87]

Sections 163.1(2) to (4.1) of the
Criminal Code

are silent on the intent required to prove child pornography
    offences. This is not an unusual state of affairs. In
Sweet v. Parsley
, [1969] 1 All. E.R.
    347 (H.L. U.K.) at p. 349, Lord Reid observed that while Parliament quite
    frequently does not specify the
mens rea
required for an offence, Parliament did not intend to punish the unblameworthy:

[W]herever a section is silent as to
mens
    rea
there is a presumption that, in order to give effect to the will of
    Parliament, we must read in the words appropriate to require
mens rea
. The
    appropriate
mens rea
words for subjective intent  knowledge,
    recklessness, or wilful blindness  ensure only the blameworthy are punished.

See also
R. v. Sault Ste. Marie
    (City)
, [1978] 2 S.C.R. 1299, at p. 1309;
R.
    v. Lucas
, [1998] 1 S.C.R. 439, at para. 64;
R. v. A.D.H
.
,
    2013 SCC 28, [2013] 2 S.C.R. 269, at paras. 20-29;
R. v. Buzzanga
(1979), 49 C.C.C. (2d) 369 (Ont. C.A.), at p. 381.

[88]

The Crown submits that the
mens rea
required in this case, for the
    offences of both making and distributing child pornography, is comprised of the
    following: (a) the accused
knew
of the nature or contents of the
    material; and (b) the accused
intentionally
made and distributed the
    material. Only a handful of cases have considered the
mens rea
for these child pornography
    offences.

[89]

In
R. v. Chalk
, 2007 ONCA 815, 88 O.R. (3d) 448, this court considered an appeal
    from conviction for possession of child pornography. In addressing the element
    of possession, Doherty J.A. referred to s. 4(3) of the
Criminal Code
and said, at para. 18:

Possession requires knowledge of the criminal
    character of the item in issue. In this case, the Crown had to prove that the
    appellant had knowledge of the contents of the videos in issue. It was, of
    course, irrelevant whether the appellant knew the contents constituted child
    pornography.

[90]

The
mens rea
for the child pornography offences was also addressed in
R. v. Spencer
, 2014 SCC 43, [2014] 2
    S.C.R. 212.
[3]
The accused in that case was charged with possession of child pornography, as
    well as making child pornography available through an internet file-sharing
    program called LimeWire. Cromwell J. held, at para. 83:

There is no dispute that the accused in a
    prosecution under s. 163.1(3) of the
Criminal Code
must be proved to
    have had knowledge that the pornographic material was being made available.
    This does not require, however, as the trial judge suggested, that the accused
    must knowingly, by some positive act, facilitate the availability of the
    material. I accept Caldwell J.A.'s conclusion that the offence is complete once
    the accused knowingly makes pornography available to others. As he put
    it,

[i]n the context of
    a file sharing program, the
mens rea
element of making
    available child pornography under s. 163.1(3) requires proof of the
intent
    to make computer files containing child pornography available to others using
    that program or actual knowledge that the file sharing program makes files
    available to others
. [Emphasis added.]

[91]

The Court also agreed that wilful blindness was
    a live issue that was not addressed by the trial judge. This warranted a new
    trial.

[92]

The
mens rea
for child pornography was recently addressed in
Tomasik
. There, Hennessy J. wrote, at
    para. 44:

The
mens rea
required for these
    offences that relate to Mr. Tomasiks communications with A require the Crown
    to prove beyond a reasonable doubt that Mr. Tomasik meant to type the words on
    the screen and that he meant to click the send button.

[93]

This approach finds a foundation in the general
    principles discussed above and is supported by the authorities that have
    considered the
mens rea

in this context. Far from transforming
    the offences in s. 163.1 into ones of strict liability, this formulation
    requires the interaction of two of the customary fault requirements in Canadian
    law. The Crown must prove the intention to compose, assemble, or create the
    written materials (in this case by text messages), knowledge of the nature of
    the written materials, and the intention to send them to someone else.

[94]

In his testimony, the respondent acknowledged
    that he wrote and sent the impugned messages. If the material that the
    respondent created and then shared came within the definition of child
    pornography, his purpose, motivation, or desire in doing what he did was
    irrelevant. The trial judge erred in finding otherwise.

(c)

Conclusion

[95]

The trial judge made a number of errors in
    applying s. 163.1 of the
Criminal Code
to the facts of this case. The verdicts would not necessarily have
    been the same, but for the trial judges errors:
R.
    v. Graveline
, 2006 SCC 16, [2006] 1 S.C.R. 609, at
    paras. 14-15.

[96]

I would set aside the acquittals on these two
    counts.

(2)

The Child Luring Charge

[97]

The respondent was also acquitted of a child
    luring charge under s. 172.1 of the
Criminal Code
. The Crown submits the trial judge erred by committing legal errors
    in his interpretation of the fault requirements in s. 172.1, and by failing to
    consider all of the evidence on the ultimate issue of the respondents guilt or
    innocence, as directed by the Supreme Court in
R.
    v. J.M.H
.
, 2011 SCC
    45, [2011] 3 S.C.R. 197, at paras. 31-32. This aspect of  the Crowns appeal
    may be decided on the basis of the trial judges interpretation of the fault
    requirements; in the circumstances, it is not necessary to consider the
    argument under
J.M.H
.
in any detail.

[98]

Respectfully, there is little in the trial
    judges reasons that addresses s. 172.1. In fact, the trial judge only made one
    reference child luring in his reasons:

I have a reasonable doubt that this would meet
    the definition of child pornography, there is any attempt to lure [anyone]
    under 18 years old for a sexual purpose, or that Mr. McSween was counselling or
    promoting sexual activity with people under 18.

There is no separate analysis of the
    respondents liability under s. 172.1.

[99]

In my view, the trial judge did consider all of
    the evidence. However, his analysis of that body of evidence was compromised by
    two errors in his interpretation of s. 172.1: he failed to consider that s.
    172.1 criminalizes communication for the purpose of facilitating the commission
    of an offence, and he erred by holding that the Crown must prove that the
    luring was for a sexual purpose.

(a)

Facilitating the Commission of an Offence

[100]

Section 172.1 makes it an offence to use a telecommunications device
    to communicate with a person under the age of 18 for the purpose of
    facilitating distribution of child pornography (s. 163.1):

s. 172.1(1) Every person commits an offence
    who, by means of a telecommunications device
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
s. 153(1),
    section 155,
163.1
, 170, 171, or 279.001 or subsection 279.02(2),
    279.03(2), 286.1(2),  286.2(2) or 286.3(2) [Emphasis added.]

[101]

It is perhaps understandable that the trial judge considered whether
    there was luring in the literal sense,
i.e.
, when an accused person persuades a child to meet for the purposes
    of engaging in sexual activity. After all, the legislative heading that
    precedes the section reads Luring a Child. However, any contextual
    significance that this heading might otherwise have in interpreting s. 172.1 (see
    Sullivan, at  §§ 14.50-14.58) is muted by the fact that the section specifically
    applies to telecommunication with a child for the purpose of facilitating an
    offence under s. 163.1.
[4]
This mode of committing an offence under s. 172.1 does not involve luring in
    the traditional sense. Nonetheless it is criminalized by this provision.

(b)

For a Sexual Purpose

[102]

The trial judge erred by holding that the Crown must prove that the
    luring was for a sexual purpose.

[103]

The Supreme Court of Canada has addressed the fault requirements for
    child luring on a number of occasions. In
R. v.
    Legare
, 2009 SCC 56, [2009] 3 S.C.R. 551, Fish J.
    held, at paras. 39-41 that, in interpreting s. 172.1, it is not helpful to
    compartmentalize fault requirements into the traditional
a
ctus reus/mens rea
categories. See also
R v. Levigne
, 2010 SCC
    25, [2010] 2 S.C.R. 3, at para. 34. Adjusting for changes in the wording of the
    provision since
Legare
was decided, the Crown must establish the following elements beyond a
    reasonable doubt:

1.

An intentional communication by means of telecommunication;

2.

With a person the accused person knows to be under the requisite
    age; and

3.

For the specific purpose of facilitating the commission of a
    designated offence.

See
Legare
, at para. 36.
See also paras. 37-38, 42;
Levigne
, at para. 23; and
R.
    v. Morrison
, 2019 SCC 15, [2019] 2 S.C.R. 3, at para. 43.

[104]

The words for the purpose of facilitating the commission an
    offence are critical. They go to the heart of the error committed by the trial
    judge in this case.

[105]

Section 172.1 extends the ambit of criminal liability to "close
    the cyberspace door before the predator gets in to prey:
Legare
, at paras. 25, 34. Parliaments
    inclusion of the term facilitating is, as Fish, J. explained, the key to
    achieving this objective:

Section 172.1(1) makes it a crime to
    communicate by computer with underage children or adolescents for the purpose
    of
facilitating
the commission of the offences mentioned in its
    constituent paragraphs. In this context, "facilitating"
    includes
helping to bring about
and
making easier or
    more probable
 for example, by "luring" or
    "grooming" young persons to commit or participate in the prohibited
    conduct; by reducing their inhibitions; or by prurient discourse that exploits
    a young person's curiosity, immaturity or precocious sexuality. [Emphasis in
    the original.]

Legare
, at para. 28.

[106]

Section 172.1 does not require proof of a sexual purpose. The
    Crown must only prove the accused engage[d] in the prohibited conduct with the
specific intent
of
    facilitating the commission of one of the designated offences (emphasis in
    original):
Legare
, at
    para. 32, citing Doherty J.A. in
R. v. Alicandro
, 2009 ONCA 133, 95 O.R. (3d) 173.  Sexual gratification may well be
    the predominant goal of someone who attempts to facilitate the transmission of
    child pornography, but it is not the only potential motive. Others might
    include blackmail, extortion, bullying, or financial gain.

[107]

The respondents claim that he was joking is irrelevant in this
    context. Joking may well be a method of normalizing adult-child sexual
    relations. It may be a tool of grooming, allowing an adult to test the waters
    with a child, by planting ideas with a joke. But no amount of joking can alter
    the blatant child pornographic nature of such an image.

(c)

Conclusion

[108]

The trial judges errors had a direct impact on the respondents
    acquittal on the charge under s. 172.1 of the
Code
. The acquittal must
    be set aside.

(3)

The Appropriate Remedy

[109]

The Crown asks this court to substitute convictions for acquittals on
    the child pornography charges and order a new trial on the child luring charge.

[110]

Section 686(4)(b)(ii) permits this court to enter a conviction on an
    appeal from a judge alone if, but for the trial judges errors, guilt was
    proven beyond a reasonable doubt:
R. v. Trachy
, 2019 ONCA 622, 147 O.R. (3d) 250, at paras. 86-87.

[111]

The Crown contends that, but for the errors, the respondents guilt on
    the child pornography charges was proven beyond a reasonable doubt. The Crown however
    acknowledges that it is less clear whether the respondents guilt on the child
    luring charge was established on the evidence at trial.

[112]

In my view, the remedy that is most fair to both the Crown and the
    respondent is to order a new trial on all counts. The trial judge made legal
    errors in relation to both s. 163.1 and s. 172.1. The parties were entitled to
    factual determinations based on a proper legal approach to these provisions. In
    this case, limiting the scope of the new trial may unfairly disadvantage the
    respondent and place unforeseen constraints on the trial judges ability to properly
    adjudicate the respondents overall criminal responsibility.

F.

disposition

[113]

I would allow the appeal, set aside the acquittals, and order a new
    trial on all counts.

Released: DW June 3, 2020

Gary Trotter J.A.

I agree. David Watt
    J.A.

I agree. M. Tulloch
    J.A.





[1]

N.B. turned 15 within the time period that the text messages
    were sent.



[2]
In the following excerpts, emphasis has been added and
    typographical corrections, as clarified in the evidence, are inserted in square
    parentheses.



[3]
Although
Spencer
was concerned with the offence of making
    child pornography available under s. 163.1(3), the same approach should apply
    to the other offences under this sub-section: see Stewart, at p. 5-34.



[4]
This heading is no more helpful than parenthetical references that
    are contained in certain sections of the
Criminal Code
, which are
    inserted for convenience of reference only: s. 3. The
Interpretation Act
,
    R.S.C. 1985, c. I-21, s. 14, prescribes the same approach to marginal notes.
    See the discussion in
R. v. Pritchard
, 2008 SCC 59, [2008] 3 S.C.R. 195,
    which addresses the import of a parenthetical reference in s. 231(5)(e) of the
Criminal
    Code
to the offence of forcible confinement  in s. 279. The offence under
    s. 279 is properly known as unlawful confinement. As Binnie J. said, at para.
    25, the parenthetical note is not an operative part of the enactment, but is
    inserted only for ease of reference.


