



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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.
    Harris, 2019 ONCA 193

DATE: 20190312

DOCKET: C63613

Rouleau, Trotter and
    Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Harris

Appellant

Amy J. Ohler, for the appellant

Manasvin Goswami, for the respondent

Heard: February 19, 2019

On appeal from the conviction entered by Justice Renee M.
    Pomerance of the Superior Court of Justice on November 7, 2016, with reasons
    reported at 2016 ONSC 6283, and from the sentence imposed on February 14, 2017,
    with reasons reported at 2017 ONSC 940.

REASONS FOR DECISION

[1]

The appellant was convicted of internet luring of a person he believed
    to be under the age of 16 years, contrary to s. 172.1(1)(b) of the
Criminal
    Code
, R.S.C. 1985, c. C-46, and transmitting sexually explicit material to
    a person he believed to be under the age of 16 years, contrary to s.
    171.1(1)(b). The latter count was conditionally stayed on the basis of
R.
    v. Kienapple
, [1975] 1 S.C.R. 729. The appellant was sentenced to 18
    months imprisonment, three years probation, and was made subject to other
    ancillary orders, discussed below. He appeals both his conviction and sentence.

Background

[2]

In November of 2014, the appellant placed two ads on Craigslist, one
    entitled Any Young girls???  m4w (Chatham) and the other Daddys Dirty Slut
     m4w  55 (Chatham). In late November, an undercover police officer, posing
    as a 14-year-old girl named Katie, made contact with the appellant. They
    exchanged many messages. In his exchanges with Katie, the appellant often
    steered the direction of the conversation to sexually explicit matters.

[3]

After exchanging messages over the course of a couple of months, a
    meeting was arranged for March 10, 2015. The appellant suggested meeting at his
    house. They eventually settled on a public library as the meeting spot. As they
    were working out the details of their meeting, Katie said that she was hungry
    and asked the appellant to bring her some food. The appellant offered a bologna
    or peanut butter and jelly sandwich. Katie said that either was fine.

[4]

Shortly afterwards, the appellant left his home and walked to the
    library to meet Katie. In the meantime, a young-looking female officer was
    recruited to play the role of Katie. She wore a black coat, with grey and
    pink shoes, as Katie said she would. As the appellant walked towards the
    officer, he was arrested. In his bag, the police found a peanut butter and
    jelly sandwich, a juice box, a marijuana cigarette, and other items.

[5]

In his testimony, the appellant said that, by posting his ads on
    Craigslist, he was not actually seeking young girls the age of Katie.
    Moreover, when he was contacted by Katie, he knew that he was dealing with a
    middle-aged man. He said that he played along, indulging this mans fantasy of
    pretending to be a young girl engaged in a sexualized chat with an older man.
    The appellant said that his exchanges with Katie were unimportant to him,
    forming a low percentage of the considerable time he spent online. He gave many
    reasons in support of his stated belief that he was dealing with a middle-aged
    man and offered explanations for the numerous pieces of incriminatory evidence
    against him. By way of example, he said he went to the library on March 10,
    2015 to meet Katie because he was going to return a library book in any
    event. The appellant said that the sandwich in his bag was for himself; he
    planned to eat it in a nearby park, after he had returned his book.

[6]

The trial judge gave extensive reasons for judgment, finding the
    appellant guilty on both counts. She rejected the appellants evidence as being
    unworthy of belief and provided detailed reasons for doing so. The trial judge
    instructed herself on the burden of proof and reasonable doubt, citing
R.
    v. W.(D.),
[1991] 1 S.C.R. 742. At para. 6 of her reasons, she made the
    following finding:

I find that the accuseds testimony is neither worthy of
    belief, nor capable of raising a reasonable doubt. It appears to me that the
    accused set out to reconstruct history in an effort to escape criminal
    liability. His account was contrived and implausible. His explanations defy
    credulity. His testimony cannot be reconciled with what he did and said at the
    time of the offence.

The Conviction Appeal

[7]

The appellant argues that the trial judge erred in the manner in which
    she dealt with his evidence. The trial judge analyzed the appellants evidence
    concerning the sincerity of his belief in Katies age under 11 separate
    headings, each corresponding to an aspect of the appellants evidence. The
    appellant argues that the trial judge erred by analyzing these items in a
    piecemeal fashion, and by not considering whether, as a whole, his evidence
    raised a reasonable doubt.

[8]

We disagree. The trial judges analysis was responsive to the evidence.
    It was probing of the appellants account. Her decision to reject the
    appellants evidence enveloped a consideration of his evidence as a whole. As
    the trial judge said, at para. 74:

For all of the above reasons, I find that the accused believed
    Katie to be under the age of 16 years. The inference is inescapable on the
    whole of the evidence, even absent operation of the statutory presumption.
    Nothing in the accuseds testimony, or any other evidence, raises a reasonable
    doubt on that issue. It has been proven by the crown on the criminal standard
    of proof.

[9]

The trial judge gave fair consideration
    to the appellants evidence. She was entitled to conclude that his evidence was
    unworthy of belief (especially given his willingness to attend the meeting on
    March 10, 2015) and could not raise a reasonable doubt.

[10]

The appellant submits that the trial
    judge improperly took judicial notice of certain factors to rebut some of the
    assertions made by the appellant in his evidence. This included the workings of
    computer spellcheck software, the grammatical habits of young people, their
    preference for metric over imperial forms of measure, and the common usage of
    the term girl.

[11]

We are not persuaded that the trial
    judge erred in this manner. There was an evidentiary foundation for the
    conclusions that the trial judge reached on the important aspects of these
    items, rendering her references to personal experience superfluous. Moreover, her
    conclusions were otherwise based on common sense.

[12]

Lastly, the appellant takes issue with
    the trial judges reference to the word concocted when considering the
    appellants evidence. This occurred once in a 38 page judgment. The trial judge
    used this term in sizing up the appellants credibility. By deploying this
    descriptor, she did not engage in any forbidden reasoning. She did not
    improperly transform her rejection of the appellants evidence into positive
    proof of guilt. There is no merit to this ground of appeal.

[13]

The appeal from conviction is
    dismissed.

The Sentence Appeal

[14]

The appellant has served the custodial
    portion of his sentence. He submits that his 3 year probation order should be
    shortened because his prison term was unfit. Without commenting on the fitness
    of the custodial portion of the appellants sentence, we have not been provided
    with any compelling reason for reducing the length of the probation order.

[15]

The appellant requests that, in light
    of the Supreme Court of Canadas decision in
R. v. Boudreault
, 2018 SCC 58, 50 C.R. (7th) 207, the mandatory $200 victim
    surcharge imposed by the trial judge should be set aside. The respondent does
    not oppose this request. Accordingly, we set aside the victim surcharge.

[16]

Lastly, the appellant argues that the
    trial judge erred by holding that the imposition of a weapons prohibition under
    s. 109 of the
Criminal Code
was
    mandatory in this case. Section 109(1)(a) provides for such a prohibition
    where, among other things, a person is convicted of an indictable offence in
    the commission of which violence against a person was used, threatened or
    attempted.

[17]

At the sentencing hearing, defence
    counsel (not Ms. Ohler) did not oppose this order. Ms. Ohler contends that
    defence counsel was taken by surprise when the trial judge said, during
    submissions, that such an order is mandatory. It is not apparent from the
    transcript that defence counsel was surprised; he simply agreed with the trial
    judge.

[18]

On the facts of this case, the order
    was mandatory. The appellant was found guilty of two offences, both of which
    involved conduct for the purpose of facilitating the commission of an offence
    under Sections 151, 152 or 271 of the
Criminal Code
. In
R. v. Alicandro
, 2009 ONCA 133, 95 O.R. (3d) 173, leave to appeal refused,
    [2009] S.C.C.A. No. 395, Doherty J.A. discussed the nature of s. 172.1 of the
Criminal
    Code
in the following way, at paras. 19-20:

Before examining the specific
    language of s. 172.1(1)(c), it is helpful to consider s. 172.1 on a more
    general level. The crimes created by that section target a specific kind of
    conduct, the communication by means of a computer with a person who is, or is
    believed to be, below a certain age. That conduct is not in and of itself
    criminal, illegal, or necessarily inappropriate.
The section criminalizes that
    conduct only if it is accompanied by the intention to facilitate the commission
    of one of the crimes designated in s. 172.1. All those designated crimes are
    crimes against young persons and all potentially involve the sexual
    exploitation of young people.

By criminalizing conduct that is
    preparatory to the commission of the designated offences, Parliament has sought
    to protect the potential child victims of those designated crimes by allowing
    the criminal law to intervene before the actual harm caused by the commission,
    or even the attempted commission, of one of the designated offences occurs
.
    Section 172.1 creates what Professor Ashworth refers to as essentially inchoate
    crimes, described in substantive offence terms: Andrew Ashworth,
Principles
    of Criminal Law
, 5th ed. (Oxford: Oxford University Press, 2006), at pp.
    468-470. [Emphasis added.] [Footnote omitted.]

[19]

The manner in which the appellant
    committed the offence under s. 172.1  by going to the library to meet with
    someone he believed to be under 16  satisfies the requirement of attempted
    violence in s. 109(1)(a). Whether s. 109(1)(a) applies to all scenarios caught
    by s. 172.1 is an issue we leave for another day.

[20]

We decline to set aside the order.

Disposition

[21]

The appeal from conviction is dismissed.
    Leave to appeal sentence is granted and the sentence is varied only to the
    extent of setting aside the victim surcharge. All other aspects of the sentence
    remain unaltered.

Paul Rouleau
    J.A.

Gary Trotter
    J.A.

B. Zarnett
    J.A.


