CRIMINAL CODE OFFENCES - Communication with a child by computer in order to commit an offence (luring)

Appeal by the accused from conviction for luring. The conviction on transmitting sexually explicit materials was conditionally stayed. The appellant posted an advertisement on Craigslist soliciting a sexual encounter with a female. The advertisement made no reference to age. An undercover officer responded posing as 15-year-old T. The appellant, then 52, exchanged hundreds of messages with T. The appellant’s messages were overtly sexual or had sexual overtones. The appellant agreed to meet T. At the agreed upon location, the appellant was met by police officers and arrested. The appellant testified that he was suspicious that T was older than 15. He tried to find out T’s true identity and age by asking questions and examining her e-mails for age-appropriate responses. The appellant was also suspicious of T’s reported age because the person in the photograph she sent appeared older than 15. The appellant denied any interest or intention to have sexual intercourse with a 15-year-old girl at any time. The appellant argued that the trial judge erred in finding beyond a reasonable doubt the appellant believed T was 15 by applying the presumption of belief in ss. 171.1(3) and 172.1(3) of the Criminal Code and the failure to take reasonable steps disqualifier under ss. 171.1(4) and 172.1(4).

HELD: Appeal allowed. New trial ordered. The conditional stays dissolved, and those counts were also remitted for a new trial. The Crown was required to establish beyond a reasonable doubt that the appellant believed or was wilfully blind whether T was under 16. Proof that the appellant believed or was wilfully blind to the fact that T 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 presumption of belief based on evidence of a representation of age was no longer available. The alternative path, based on an absence of reasonable steps, was equally unavailable.

R. v. Drury, [2020] O.J. No. 3373, Ontario Court of Appeal, D. Watt, G.T. Trotter and A.L. Harvison Young JJ.A., August 11, 2020. Digest No. TLD-September212020009