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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. Carbone, 2020 ONCA 394

DATE: 20200618

DOCKET:
    C64304

Doherty,
    Watt and Hourigan JJ.A.

BETWEEN

Her
    Majesty the Queen

Respondent

and

Braydon Anthony Martin Carbone

Appellant

Michael Lacy and Deepa Negandhi, for the appellant

Jerry Brienza, for the respondent

Heard: January 30, 2020

On appeal from the conviction entered by Justice R. Villeneuve
    of the Ontario Court of Justice on December 14, 2016.

Doherty J.A.:

I

[1]

The appellant was convicted of one count of invitation to sexual
    touching, contrary to s. 152 of the
Criminal Code
, R.S.C. 1985, c. C-46
after a trial by
    judge alone. He appeals his conviction only.

[2]

The appellant raises several grounds of appeal. I accept his contention that
    the trial judge failed to properly apply the burden of proof when evaluating
    the conflicting versions of events presented in the evidence. That error
    requires a new trial.

[3]

I will also consider three of the other arguments advanced by the
    appellant, although I am not satisfied any should succeed. One argument seeks a
    stay, based on an alleged breach of s. 11(b) of the
Charter
. The other
    arguments address the elements of the offence created by s. 152 of the
Criminal
    Code
. They raise issues that could arise on a retrial. One of those
    arguments also engages an important jurisprudential question arising out of the
    Supreme Court of Canadas decision in
R. v.

Morrison
, 2019 SCC
    15, [2019] 2 S.C.R. 3 and its impact on this courts jurisprudence relating to
    the
mens rea
requirement in s. 152.

II

the evidence

[4]

The trial judge heard two very different stories. The Crowns case, based
    on the evidence of the complainant, H.J., and her friend, A.G.,
[1]
described an arrangement reached through Facebook messaging by which H.J and a
    third friend, K.M., would provide sexual services to the appellant in exchange for
    tattoos. The three girls went to the appellants home, which also served as his
    tattoo parlour. H.J., and perhaps K.M., provided sexual services to the
    appellant. He gave each girl a tattoo as agreed upon. All three girls were 14
    years old.

[5]

The appellant testified. On his version of events, he rejected H.J.s
    offer to exchange sexual services for tattoos and told the girls each tattoo
    would cost $35.00. The girls came to his home, he applied the tattoos, and
    requested payment. They told him their mother would come by later to pay for
    the tattoos. She never came. The appellant called H.J. and threatened to go to
    her parents and the police if he was not paid by the following Friday. On
    Friday morning, the police arrived at the appellants door and arrested him.
    The appellant insisted he was never alone with any of the three girls and never
    requested, solicited, or permitted any sexual activity with any of the girls.

(i)

The Crowns evidence

[6]

H.J., A.G., and K.M. wanted to get tattoos. A.G. contacted the
    appellant through Facebook to inquire about getting tattoos. After A.G.s initial
    contact, H.J. also contacted the appellant on Facebook. She suggested the
    appellant provide each girl with a tattoo in exchange for sexual services. After
    some negotiation, H.J. and the appellant reached an agreement. H.J. would give the
    appellant a blowjob before he did any tattoos. K.M. would have sex with him
    after he had finished all of the tattoos. H.J. testified she destroyed the
    Facebook messages containing these negotiations, fearing her parents would find
    them.

[7]

The three girls went to the appellants home to get their tattoos a day
    or so later. The appellant met them at the door, clad only in a towel. The
    girls went into the house, the appellant put on some clothes, and the four sat
    downstairs talking and smoking marihuana.

[8]

A short time later, the appellant and H.J. went upstairs to his bedroom.
    The appellant confirmed H.J. was still prepared to provide sexual services in
    exchange for the tattoos. The appellant undressed and H.J. performed oral sex
    on the appellant. Afterwards, she and the appellant returned downstairs where A.G.
    and K.M. were waiting. The appellant took each girl upstairs in turn for a
    tattoo, starting with H.J., then A.G., and finally K.M.

[9]

H.J. testified that when she was performing oral sex, she saw many tattoos
    on the appellants body, including one on his penis. She could not describe the
    tattoo. Pictures taken of the appellant after his arrest confirmed he had a tattoo
    on his penis.

[10]

After
    the appellant had applied the tattoos, he spent some time alone with K.M. According
    to the arrangement described by H.J., K.M. was to have sex with the appellant
    after all three girls received their tattoos. K.M. was subpoenaed, but did not
    appear at trial to testify.

[11]

H.J.
    and her friends left the appellants home about an hour and a half after
    arriving. Later that afternoon, H.J. received a Facebook message:

H. that was amazing. Best I ever had. Gold medal.

[12]

The
    sender of the message was identified only as Facebook user. H.J. indicated in
    her prior messaging with the appellant that he had identified himself by name.
    She testified, however, the above-quoted Facebook message was part of the same
    conversation stream as the earlier messages between her and the appellant. H.J.
    was confident the message came from the appellant and referred to the oral sex
    she had performed earlier that day.

[13]

According
    to H.J., the appellant did not ask her about her age or if she had permission
    from her parents to get the tattoo. She had not told her parents about her
    plans to get a tattoo.

[14]

A.G.s
    evidence
[2]
was consistent in many respects with H.J.s testimony. When A.G. went to the
    appellants home to get her tattoo, she understood from H.J. that arrangements had
    been made whereby H.J. and K.M. would provide sexual services to the appellant in
    exchange for the tattoos. Shortly after the three girls arrived at the
    appellants home, H.J. and the appellant went upstairs. They returned about 20
    minutes later. According to A.G., H.J. told her the appellant had a tattoo on
    his penis. H.J. did not recall that conversation. A.G. also recalled H.J. telling
    her that she had told the appellant the true age of the girls. H.J. did not
    give evidence to that effect.

[15]

Neither
    H.J. nor A.G. saw anyone other than the appellant in the appellants home.

(ii)

The defence evidence

[16]

The
    appellant, who was 31 years old, operated a licenced tattoo parlour out of his
    home where he lived with his fiancée. The appellant had operated the business
    for several months and was aware of health board rules, including the rule
    requiring parental consent before any persons 16 years of age or younger could
    be tattooed.

[17]

The
    appellant testified that A.G. contacted him over Facebook to inquire about tattoos
    for herself and her friends. The appellant asked A.G. how old she was and she said
    she was 16 years old. He told her he charged $35.00 per tattoo.

[18]

Later
    the same day, H.J. contacted the appellant. She suggested the appellant provide
    tattoos for each of the girls in exchange for sexual services. The appellant
    rejected this offer, telling H.J. he did not do tattooing for sexual favours. He
    had a fiancée and he needed the money. The appellant testified he never
    seriously contemplated the exchange proposed by H.J. He agreed there were
    references to the sex for tattoos proposal in subsequent Facebook messages
    exchanged with H.J. before she and her friends arrived at his home. The
    appellant insisted, however, that he never said anything in those messages suggesting
    he would exchange tattoos for sexual favours. The appellant could not produce
    the Facebook messages because his fiancée had destroyed them after he was
    arrested. According to the appellant, he was angry when his fiancée told him
    she had destroyed the messages because he believed they would exonerate him.

[19]

The
    appellant testified the three girls came to his residence a day or so later. A
    friend was staying with the appellant. The three girls visited with the friend
    and smoked some marihuana while the appellant went upstairs to prepare the
    tattoo patterns. To the appellants knowledge, the three girls stayed together
    the entire time they were in his home. He was never alone with any one of them.
    All three girls were together when each received their tattoos from the
    appellant.

[20]

The
    appellants fiancée arrived home after two of the girls had been tattooed but before
    the third had received her tattoo. She spoke briefly with the girls.

[21]

The
    appellant indicated that he usually applied a tattoo first and then requested payment
    from the customer. He followed his usual practice with H.J. and her friends.
    When he asked for his money, the girls told him they did not have it, but their
    mother would be by later that day to pay for the tattoos. The appellant found
    it strange that three girls, who were all the same age, had the same mother,
    but he did not ask any questions. One of the girls had produced a permission
    slip signed by somebody, who the appellant presumed to be the girls mother. The
    appellant did not request the mothers contact information.

[22]

H.J.
    had given the appellant her cell phone number. After the mother did not appear
    with the money, the appellant called H.J. and told her that if she did not pay
    him, he would speak with her parents and, failing payment, would go to the
    police. H.J. assured him she would pay by the upcoming Friday. When Friday
    morning came, the police arrived at the appellants home and arrested him. He
    initially thought he was arrested for tattooing underage girls. He eventually,
    however, understood he was being arrested on criminal charges alleging sexual
    activity with H.J. and her friends.

[23]

The
    appellant testified he was concerned about the age of the three girls because it
    was against the health board rules to give persons 16 years of age or younger a
    tattoo without their parents permission. He could lose his licence if he ran
    afoul of those rules. When asked what steps he took to determine the girls
    ages, the appellant indicated one of them had told him in the Facebook conversations
    the girls were 16. The appellant also testified the girls looked 16.

[24]

The
    appellant did not ask for any identification. No parent contacted him about the
    tattoos, although, according to him, he indicated in the Facebook conversations
    that, because the girls were 16, one of their parents had to contact him before
    he could give them tattoos. Although the appellant said he saw a permission
    slip, he did not keep that slip or make a copy of it.

[25]

The
    appellants fiancée testified after the appellant. When her evidence was
    complete, the defence asked to recall the appellant to testify to one matter
    counsel had inadvertently failed to bring out in his evidence. The trial judge
    allowed counsel to recall the appellant.

[26]

When
    recalled, the appellant, for the first time, offered an explanation for how H.J.
    would know that he had a tattoo on his penis. The appellant testified the third
    girl to be tattooed (K.M.) was afraid of needles and very nervous about getting
    a tattoo. In an attempt to calm her down, the appellant assured her that he was
    putting her tattoo on a part of her body that would not cause much pain. To
    make the point, he told her that applying tattoos to some parts of the body
    could be extremely painful. As an example of a painful location for a tattoo,
    he told K.M. he had a tattoo on his crotch. A.G. and H.J. were present during
    this conversation.

III

The Reasons of the Trial Judge

[27]

The
    trial judge identified two central issues:

1.

Was H.J. invited by the
    appellant to touch his penis, and did she provide oral sex (Reasons, at para.
    49)?

2.

Did the appellant believe
    H.J. was 16 years or older at the relevant time and, if so, did the appellant
    take all reasonable steps to determine her age (Reasons, at para. 50)?

[28]

On
    the first issue, the trial judge accepted H.J.s description of her
    negotiations with the appellant before going to his home and the sexual activity
    that occurred at his home. On the second issue, the trial judge found, based on
    the appellants own evidence, he took no reasonable steps to ascertain H.J.s
    age.

[29]

The
    essential findings of the trial judge are set out below (Reasons, at paras. 81,
    83):

In conclusion, I am satisfied beyond a reasonable doubt that
    the complainant did negotiate with the defendant to give him a blowjob in
    return for a tattoo and that she performed the act of fellatio in his bedroom
    prior to his tattooing her and her two friends. I conclude that, for the
    reasons which I have set out, in particular the complainants observations of
    certain tattoos on the defendants body, which she otherwise would not have had
    occasion to see.

Having concluded the complainant performed oral sex on the
    defendant in his bedroom and upon having further testified that he never took
    the necessary reasonable steps referred to in s. 150.1(4) to ascertain the
    complainants true age of 14 years old on the offence date, I am satisfied of
    the defendants guilt beyond a reasonable doubt.

IV

the grounds of appeal

A:

Did
    the trial judge err in his application of the burden of proof?

[30]

The
    outcome at trial turned largely on the trial judges assessment of the conflicting
    evidence. He reminded himself that he had to make that assessment having regard
    to the burden of proof placed on the Crown. The trial judge believed H.J. He
    did not believe the appellant.

[31]

The
    appellant submits the trial judge erred in his application of the burden of
    proof to the conflicting evidence. In making this submission, the appellant
    relies on four passages from the reasons:

·

the
    trial judge was not convinced by the appellants evidence that any financial
    arrangement for payment for the tattoos was ever made (Reasons, at para. 60);

·

the
    trial judge was not persuaded the Facebook message, which H.J. said she
    received shortly after she provided oral sex to the appellant, had not come
    from the appellant (Reasons, at para. 62);

·

the
    trial judge was not satisfied beyond a reasonable doubt that he [the
    appellant] ever saw a permission slip (Reasons, at para. 78); and

·

the
    trial judge was not persuaded by the evidence of the appellants fiancée that
    the appellant had not negotiated with H.J. to exchange tattoos for sexual
    services (Reasons, at para. 82).

[32]

Reasons
    for judgment must be read as a whole. An isolated use of an inappropriate word
    is not enough to demonstrate an error in law, particularly one involving a
    fundamental legal principle like the burden of proof. The passages relied on by
    the appellant must also be placed in the context of the trial judges correct
    self-instruction early in his analysis on the burden of proof and his accurate
    articulation of the principles set down in
R. v. W.(D.)
, [1991] 1
    S.C.R. 742 (Reasons, at paras. 46-47).

[33]

The
    passages from the reasons highlighted by the appellant do, however, raise
    concerns. The repeated use of the words convince and persuade in reference
    to the defence evidence suggests that the trial judge looked to the defence to
    satisfy him that he should not accept H.J.s version of events.

[34]

In
    considering whether he was satisfied beyond a reasonable doubt the sexual
    encounter described by H.J. in fact occurred (Reasons, at para. 51), the trial
    judge reviewed the evidence of H.J. and A.G. (Reasons, at paras. 52-58). He
    then turned to the appellants evidence, indicating, at para. 60:

The defendants attempt in his video statement and his evidence
    in-chief and under cross-examination to explain the financial arrangement made
    for payment or the lack thereof does not convince me that any such arrangements
    were ever made.

[35]

The
    appellant was not required to convince the trial judge of anything. The trial
    judge should have assessed the appellants evidence about the financial
    arrangements from the perspective of the Crowns obligation to establish beyond
    a reasonable doubt the arrangement involved sex for tattoos. A doubt may exist,
    based on an accuseds evidence, even if the trial judge is not convinced the
    evidence is true: see
W.(D.)
, at p. 757.

[36]

The
    trial judges indication that the defence was required to convince him the
    financial arrangements existed was a potentially material error. The financial
    arrangements described by the appellant were at the heart of the defence
    position advanced at trial. If the trial judge dismissed the appellants
    evidence about the financial arrangement because it did not convince him the
    arrangements existed, the path to conviction for the Crown was short and
    downhill.

[37]

The
    trial judges analysis of the evidence about the Facebook message H.J. said the
    appellant sent her after the alleged sexual activity reveals a similar
    analytical flaw. H.J. testified that the message came from the appellant and
    referred to the oral sex she had provided earlier that day. The appellant
    denied sending the message. The message itself was not produced at trial.

[38]

In
    accepting H.J.s evidence, the trial judge indicated he was not persuaded
    that the author of the message was anyone other than the appellant. The
    appellant was not obliged to persuade the trial judge he was not the author.
    Rather, the trial judge had to decide whether, on the totality of the evidence,
    he could find as a fact the message was sent and was sent by the appellant. It
    was not for the appellant to persuade the trial judge that either fact had not been
    established.

[39]

The
    trial judges treatment of the evidence concerning the Facebook message was
    significant. If the trial judge found as a fact that the appellant authored the
    message, the appellants conviction was virtually ensured. It was crucial that
    the conflicting evidence be tested against the proper burden of proof.

[40]

The
    trial judges approach to the appellants evidence that he saw a permission
    slip also misapplies the burden of proof. The trial judge said, at para. 78:

I am not satisfied beyond a reasonable doubt that he ever saw a
    permission slip.

[41]

There
    was no burden on the appellant, much less a burden of proof beyond a reasonable
    doubt, to establish he had seen a permission slip. This evidence went to the
    appellants claim that he took reasonable steps to determine the girls ages.
    The Crown had the burden to prove the absence of those reasonable steps. The
    trial judge improperly rejected the appellants evidence about the permission
    slip based on the appellants failure to meet a burden of proof wrongly imposed
    on him by the trial judge.

[42]

Were
    this the only problematic reference in the reasons, one might conclude the
    error was immaterial. The evidence the appellant saw a permission slip was
    weak. The relevance of the permission slip to the appellants belief the girls
    were 16 or over is also not clear. There seems little likelihood that the
    evidence concerning the permission slip figured prominently in the trial
    judges assessment.

[43]

Considered
    with the other incorrect references to the burden of proof, however, I cannot
    dismiss this reference as immaterial. The existence of a permission slip was
    part of the reasonable steps defence advanced by the appellant. The rejection
    of the existence of a permission slip, based upon an improper application of
    the burden of proof, not only undermined the reasonable steps defence, but was
    consistent with the other passages in the reasons which looked to the defence
    to convince or satisfy the judge of the facts relied on by the defence.

[44]

The
    reference by the trial judge to not being persuaded by the evidence of the
    appellants fiancée also suggests a misapplication of the burden of proof. I
    need not consider the impact of this passage, as the evidence of the appellants
    fiancée had very little, if anything, to do with the central issues at trial.

[45]

As
    required, I have examined the reasons as a whole. I am satisfied the trial
    judge did not follow his initial correct self-instruction on the burden of
    proof. Instead, he looked to the defence to convince or persuade him the
    defence evidence on certain key issues established exculpatory facts. That
    error is fatal. There must be a new trial.

B:

Did
    the trial judge err in finding that the appellants right to trial within a reasonable
    time was not breached?

[46]

The
    court did not call on the Crown on this ground of appeal.

[47]

The
    charge was before the court from June 6, 2014 to August 26, 2016, a total delay
    of 26½ months. The defence conceded that 49 days was attributable to the defence,
    yielding what the defence argued was a net delay of 25 months.

[48]

Under
R. v. Jordan
, 2016 SCC 27, [2016] 1 S.C.R. 631 a delay of more than 18
    months in the completion of the appellants trial puts the onus on the Crown to
    demonstrate the delay is not unreasonable. If the delay is under 18 months, the
    onus rests on the accused to show that the delay is unreasonable. The
    appellants s. 11(b) argument depends on a finding that the relevant delay for the
    purposes of s. 11(b) was over 18 months. The appellant does not argue if the
    delay was under 18 months, he can discharge the onus to demonstrate the delay
    was nonetheless unreasonable.

[49]

The
    trial judge made two findings reducing the delay from 25 months to just under
    18 months. The first finding involved a delay of 3 months caused by defence
    requests to adjourn the non-judicial pre-trial. The second related to a delay
    of 4½ months caused when the assigned trial judge realized, as the trial was
    about to commence, she had a conflict and could not preside. The trial was
    rescheduled to a date 4½ months later.

[50]

The
    two time periods deducted by the trial judge totalled 7½ months, leaving a
    remaining delay of 17½ months, just under the
Jordan
ceiling of 18
    months.

[51]

The
    appellant challenges the trial judges factual findings underlying his
    characterization of the two time periods described above. The appellant submits
    the delays in the non-judicial pre-trial were necessary because the Crown had
    not provided disclosure of the video statements given by H.J. and A.G. The
    appellant argues, without disclosure of those videos, a non-judicial pre-trial
    would have been pointless. Consequently, the 3 month-delay attributable to the
    adjournments of the non-judicial pre-trial should not have been characterized
    as defence delay.

[52]

The
    same argument was made at trial. The trial judge correctly noted there was nothing
    in the record connecting the absence of disclosure of the video statements to the
    defence requests for delay in the non-judicial pre-trial. I understand counsel
    on appeal to submit the connection is self-evident.

[53]

The
    trial judge was not prepared to make that connection. As a judge of the Ontario
    Court of Justice, the trial judge would be very familiar with the pre-trial
    process in that court. He would know whether the disclosure provided by the
    Crown was sufficient, absent disclosure of the video, to permit a meaningful
    non-judicial pre-trial. In the absence of anything in the record to suggest
    defence counsel at the time of the adjournments viewed the disclosure as
    essential, I see no error in the trial judge drawing his own conclusions about
    the need for the videos. Certainly, those conclusions rest on much firmer
    ground than would any speculative second-guessing by this court. I would not
    interfere with the trial judges finding that the delay attributable to the adjournments
    of the non-judicial pre-trial should count as defence delay.

[54]

Turning
    to the second time period deducted from the overall delay, the appellant
    accepts the adjournment necessitated when the trial judge realized she had a
    conflict of interest, qualifies as an exceptional circumstance under
Jordan
.
    The appellant submits, however, it should not have taken 4½ months to
    reschedule the trial. He argues something less than the entire 4½ months should
    have been deducted as attributable to the exceptional circumstance. The
    appellant contends, even a generous deduction of 2 or 3 months for the
    adjournment would have left a net delay of more than 18 months.

[55]

The
    same argument was made at trial. The trial judge concluded that the entire 4½
    months should be deducted. The appellants arguments in this court rest
    primarily on the absence of evidence in the record. For example, the appellant
    points out there was no evidence another judge could not have been available at
    an earlier date.

[56]

I
    do not find those arguments helpful. No one suggested when the trial was being
    rescheduled an earlier trial date could or should be made available. Indeed,
    the Crown had asked for the earliest available date. The defence said nothing.

[57]

There
    are situations in which the length of a delay following an exceptional
    circumstance will speak for itself insofar as the attribution of the entire
    delay to the exceptional event is concerned. In those circumstances, the court
    may properly decide, based exclusively on the length of the delay, that the entire
    delay cannot, absent some explanation in the evidence, be attributed to the
    exceptional circumstance. Here, the delay was 4½ months. A delay of that
    length, to find a date when a judge, a courtroom, counsel, and the witnesses
    are all available is not ideal. Nor, however, is it sufficiently long to render
    unreasonable the trial judges conclusion the entire 4½ months needed to
    reschedule the trial should be attributed to the delay caused by the last-minute
    adjournment of the trial. In the absence of any evidence directed at this
    specific adjournment, the trial judge was entitled to look to his own
    experiences in the jurisdiction in deciding how to properly characterize the
    delay of 4½ months.

[58]

I
    see no error in the trial judges s. 11(b) analysis.

C:

Did
    the trial judge incorrectly identify the
actus reus
of the offence?

[59]

The
    appellant was charged under s. 152 of the
Criminal Code
:

Every person who, for a sexual purpose, invites, counsels or
    incites a person under the age of 16 years to touch, directly or indirectly,
    with a part of the body or with an object, the body of any person, including
    the body of the person who so invites, counsels or incites and the body of the
    person under the age of 16 years,

(a) is guilty of an indictable offence  or

(b) is guilty of an offence
    punishable on summary conviction.

[60]

To
    establish the offence in the context of this case, the Crown had to prove:

·

H.J.
    was under 16;

·

the
    appellant invited, counselled, or incited H.J. to touch him; and,

·

the
    proposed touching was for a sexual purpose.

[61]

The
    Crown did not have to prove that H.J. actually touched the appellant for a
    sexual purpose. An invitation to touch includes acts and/or words by which an
    accused requests, suggests, or otherwise incites or encourages the complainant
    to touch him for a sexual purpose. The invitation may be express or implied:
R.
    v. Legare
, 2008 ABCA 138, 236 C.C.C. (3d) 380, at paras. 32-38, affd on
    other grounds, 2009 SCC 56, [2009] 3 S.C.R. 551; see also Hamish Stewart,
    Sexual Offences in Canadian Law, (Aurora, Ont.: Can. Law Book, 2004) (loose-leaf
    updated 2018) at 4-3 to 4-5.

[62]

The
    offence of invitation to sexual touching does not require the appellant to initiate
    the communication or activity alleged. It is enough that the appellant did and/or
    said something in the course of his interaction with H.J. that amounted to an
    invitation to H.J. to touch the appellant for a sexual purpose: see Stewart, at
    4-7 to 4-9. The invitation, incitement, or counselling may come in the form of
    an agreement to exchange something for sexual services to be provided by the
    complainant: see
R. v. D. (R.C.)
, [1991] O.J. No. 1995 (Ont. C.A.).

[63]

The
    appellant submits the trial judge wrongly held the Crown had to prove H.J.
    performed oral sex to establish the offence. I think this is a fair reading of
    the trial judges reasons: see Reasons, at paras. 49, 81. The error did not,
    however, prejudice the appellant. Instead, it required the Crown to prove an
    additional element, actual touching, not required by the offence.

[64]

The
    trial judge was satisfied the appellant and H.J. negotiated the exchange of
    sexual services for tattoos. On the trial judges findings, the appellant and
    H.J. agreed that H.J. would provide oral sex. The negotiations leading to this
    agreement constituted an invitation by the appellant to H.J. to touch him for a
    sexual purpose. The invitation was reinforced when the appellant took H.J.
    upstairs to his bedroom, confirmed the deal was still on, and removed his
    clothing. In doing so, he again invited H.J. to touch him for a sexual purpose.

[65]

The
    trial judges finding that H.J. immediately performed oral sex on the appellant
    provided strong evidence that an invitation to do so had been made in the
    Facebook negotiations and confirmed by the appellant when he and H.J. were
    together in his bedroom immediately before she performed oral sex.

[66]

On
    the trial judges findings, what the trial judge referred to as the sexual
    encounter between the appellant and H.J. included conduct constituting an invitation
    by the appellant to H.J. to touch him for a sexual purpose.

D:

Was
    the Crown required to prove the appellant believed H.J. was under 16, even if he
    took no reasonable steps to determine her age?

(i)

Introduction

[67]

The
    offence of invitation to sexual touching requires the Crown to prove the
    complainant was under 16. There is nothing in the language of the section that
    speaks expressly to the
mens rea
requirement as it relates to the
    accuseds belief concerning the complainants age. Section 150.1(4), however,
    applies to charges under s. 152. That section creates a defence based on a
    mistaken belief that the complainant was 16 or older if, and only if, an
    accused took all reasonable steps to ascertain the complainants age:

It is not a defence to a charge under section 151 or 152,
    subsection 160(3) or 173(2), or section 271, 272 or 273 that the accused
    believed that the complainant was 16 years of age or more at the time the
    offence is alleged to have been committed unless the accused took all
    reasonable steps to ascertain the age of the complainant.

[68]

The
    appellant claimed he believed H.J. was 16. Her age was important to him, not
    because of any sexual activity, which he denied, but because the applicable
    health rules required him to have parental consent before he applied a tattoo
    to a person 16 or younger. The trial judge found the appellant did not take
    any, much less all, reasonable steps to ascertain H.J.s age. He convicted the
    appellant on the basis the Crown had proven beyond a reasonable doubt that the
    appellant failed to take all reasonable steps to determine H.J.s age. The
    trial judge did not consider whether, apart from his finding of a failure to
    take reasonable steps, the Crown had proven the appellant believed H.J. was
    under 16.

(ii)

The appellants submissions

[69]

The
    appellant begins with the fundamental principle that the Crown must prove all
    essential elements of a criminal offence beyond a reasonable doubt to obtain a
    conviction. The appellant argues the accuseds belief the complainant was under
    16, or wilful blindness with respect to her age, is an essential component of
    the
mens rea
required for the offence created by s. 152. As with all other
    essential elements of that offence, the Crown must prove the
mens rea
beyond a reasonable doubt.

[70]

The
    appellant characterizes s. 150.1(4) as providing a limited defence to a charge
    under s. 152, based on the accuseds belief the complainant was 16 or older.
    The appellant submits the Crown can rebut the defence by proving, beyond a
    reasonable doubt, either the accused did not believe the complainant was 16 or
    older, or even if he held that belief, he had not taken all reasonable steps to
    determine the complainants age.

[71]

The
    appellant contends, however, the failure of the s. 150.1(4) defence does not lead
    inevitably to a conviction and does not relieve the Crown of its obligation to
    prove the essential elements of the offence, including the accuseds belief the
    complainant was under 16. The appellant submits an accuseds defence under s.
    150.1(4) may fail for want of reasonable steps, but the accused must be
    acquitted unless the Crown can prove he knew or was wilfully blind to the fact
    the complainant was under 16. On the appellants argument, if an accused knew
    there was a chance the complainant was underage, or simply never turned his
    mind to the complainants age, the accused would be entitled to an acquittal
    because the Crown had failed to prove the accused believed the complainant was
    under 16 or was wilfully blind to that fact. The appellant submits the trial
    judge never considered the
mens rea
requirement after he rejected the
    appellants s. 150.1(4) defence.

[72]

This
    argument relies entirely on the analysis in
R. v. Morrison
, 2019 SCC
    15, which reversed this Courts decision in
R. v. Morrison
, 2017 ONCA
    582, 136 O.R. (3d) 545.
Morrison
involved an internet luring charge
    under s. 172.1(1)(b). That section prohibits certain internet communications
    with persons who are either under 16 or are believed by the person making the
    communication to be under 16.

[73]

The
    appellant submits the analysis in
Morrison
is equally applicable to other
    offences, including s. 152, for which the age of the complainant is an element
    of the offence. He points out that the mistaken belief in consent defence in s.
    172.1(4), which figured prominently in the
Morrison
analysis, is very
    similar to the defence created by s. 150.1(4). The appellant also relies on
    passages in
Morrison
, referencing
R.
    v. George
, 2017 SCC 38, [2017] 1
    S.C.R. 1021, a case involving a charge of sexual interference under s. 151 and
    a defence of mistaken belief in age:
Morrison
, at paras.
    86-88. He contends the analysis of
George
in
Morrison
compels
    the conclusion that the approach taken in
Morrison
has equal
    application to other sexual offences in which the age of the complainant is an
    element of the offence.

(iii)

The law before
Morrison

[74]

By
    overruling this court in
Morrison
, the Supreme Court of Canada has
    changed the law in this province as it relates to the elements of the offence
    of child internet luring, at least in cases where the allegation is based on
    the accuseds belief that he is communicating with a person under the required
    age. Additionally, if
Morrison
applies to other offences involving
    sexual activity with underage children and adolescents,
Morrison
has
    changed the law concerning the
mens rea
requirement relating to the
    age of the complainant for those offences.
[3]

[75]

Prior
    to
Morrison
, courts described the fault element as it related to the
    complainants age for offences like s. 152 by reference to the reasonable
    steps requirement in s. 150.1(4). The Crown could establish the requisite
mens
    rea
by proving either the accused did not believe the complainant was the
    required age or older or, despite any belief the accused may have had, he had
    not taken all reasonable steps to ascertain the age of the complainant. The
    accuseds belief with respect to the age of the complainant was irrelevant if
    the Crown proved beyond a reasonable doubt the accused had not made the
    inquiries mandated by s. 150.1(4). In essence, the
mens rea
,
as it related to the age of the
    complainant, required the Crown to prove beyond a reasonable doubt the absence
    of a belief founded on reasonable inquiries that the complainant was the
    required age or older: see
R. v. Duran
, 2013 ONCA 343, 306 O.A.C. 301,
    at para. 51;
R. v. Saliba
, 2013 ONCA 661, 311 O.A.C. 196, at paras.
    26-28. See also
R. v. Tannas
, 2015 SKCA 61, 324 C.C.C. (3d) 93, at
    paras. 21-24;
R. v. Nguyen
, 2017 SKCA 30, 348 C.C.C.(3d) 238, at para.
    4.

[76]

Not
    only have provincial appellate courts treated an accuseds belief about the
    complainants age as irrelevant to liability for offences identified in s. 150.1(4),
    absent an appropriate reasonable steps inquiry, the Supreme Court of Canada seemed
    to adopt the same interpretation in
George
. In
that case
, the Crown had to prove the
    complainant was under 16. He was 14. The accused testified she assumed the complainant
    was 16 or older, based on his behaviour and demeanour. Her evidence put s.
    150.1(4) in play.

[77]

The
    five-person unanimous court described the
mens rea
related to the
    complainants age as requiring either proof of the absence of an honest belief
    that the complainant was 16 or older or proof the accused failed to take all
    reasonable steps to determine the complainants age. Gascon J. explained the
mens
    rea
in these terms, at paras. 7-8:

For  both offences, the
Criminal Code
barred Ms.
    George from relying on C.D.s consent as a defence because C.D. was younger
    than 16 (s. 150.1(1)) and Ms. George was more than five years his senior (s.
    150.1(2.1)).
Accordingly, her only available defence  or
    more accurately, her only available means of negating her criminal intent (
mens
    rea
) to have sex with a minor was mistake of age: i.e. Ms. George
    believing that C.D. was at least 16. However, the Criminal Code limits the
    availability of the mistake of age defence by requiring that all reasonable
    steps be taken to ascertain the complainants age
. [Citation omitted.]

As a result, to convict an accused person who demonstrates an
    air of reality to the mistake of age defence,
the Crown
    must prove beyond a reasonable doubt either that the accused person (1) did not
    honestly believe the complainant was at least 16 (the subjective element); or
    (2) did not take all reasonable steps to ascertain the complainants age
.
    [Emphasis added.]

[78]

The
    court returned to the essential elements of the offence when addressing the
    reasons of the dissenting judge in the court below. That judge had opined the
    offence required proof of grooming or exploitation. Gascon J. found neither
    were required stating, at para. 26:

It is a criminal offence to sexually touch a child who is 14
    years of age or more but younger than 16 when you are five or more years their
    senior,
even if you honestly believed they are older than
    16, unless you have taken all reasonable steps to ascertain their age;
    nothing more is required
. [Emphasis added.]

[79]

Morrison
was decided after the trial judge gave judgment in this case. The trial judges
    analysis of the
mens rea
requirement in s. 152, as it relates to the
    complainants age, was correct on the law as it stood at the time. The
    appellant claims that the analysis is wrong in light of
Morrison
.

(iv)

The holding in
Morrison

[80]

Section
    172.1(1), the offence in issue in
Morrison
, requires the Crown to
    prove three things:

·

the
    accused communicated by way of telecommunication with another person;

·

the
    person the accused communicated with was under 16, or the accused believed that
    person to be under 16; and

·

the
    communication was made for the purpose of facilitating the commission of one of
    the enumerated offences with respect to the person the accused communicated
    with. The enumerated offences all involve sexual activity with young persons
    under specified ages. Section 152 is one of the enumerated offences.

See
R. v. Legare
, 2009 SCC 56, [2009] 3
    S.C.R. 551, at para. 36;
Morrison
, at para. 43.

[81]

Mr.
    Morrison communicated over the internet with a police officer pretending to be
    a 14-year-old girl named Mia. The conversations became overtly sexual over
    many months. At some point in the conversations, Mr. Morrison invited Mia to
    touch herself sexually. He proposed they meet and engage in sexual activity.
    Instead, the police arrested Mr. Morrison and charged him with communicating by
    way of telecommunication with a person he believed to be under 16 for the
    purpose of facilitating the offence of invitation to touching for a sexual
    purpose, contrary to s. 152.

[82]

At
    trial, the verdict turned exclusively on whether Mr. Morrison believed he was
    speaking with a 14-year-old girl when he was communicating with the police
    officer. Mr. Morrison testified that despite Mia telling him she was 14, he
    believed he was communicating with an adult woman playing the role of a 14-year-old
    girl.

[83]

Sections
    172.1(3) and (4) are germane to the analysis in
Morrison
:

(3) Evidence that the person referred to in paras. 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.

(4) It is not a defence to a charge under paras (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
    that person.

[84]

Section
    172.1(3) creates a presumption that the accused believed the complainant was
    underage if a representation to that effect was made to the accused. Section
    172.1(4) creates a mistaken belief in age defence in terms similar, but not
    identical, to those found in s. 150.1(4).

[85]

The
    trial judge in
Morrison
struck down the presumption in s. 172.1(3) as
    unconstitutional. He upheld the constitutionality of s. 172.1(4).

[86]

On
    the merits of the allegation, the trial judge had a doubt about whether Mr.
    Morrison believed Mia was under 16. He described Mr. Morrison as at least
    indifferent to the age of the person he was communicating with on the internet.
    The trial judge went on, however, to convict as the Crown had proven Mr.
    Morrison had failed to take reasonable steps to ascertain Mias age. Absent
    those steps, Mr. Morrisons state of mind about Mias age was irrelevant to
    his liability.

[87]

This
    court agreed with the trial judge that s. 172.1(3) was unconstitutional and s.
    172.1(4) was constitutional. This court also accepted the Crown could prove its
    case either by proving Mr. Morrison did not believe Mia was 16 or older or by
    proving he did not take all reasonable steps to determine her age: see
Morrison
Ont. C.A., at para. 79. In so holding, this court took the same approach to
mens
    rea
as it related to the complainants age on a charge under s. 172.1(1)
    as it had taken in
Duran
and
Saliba
to charges involving sexual
    offences against children identified in s. 150.1(4)
.

[88]

At
    the Supreme Court of Canada, the entire court found s. 172.1(3)
    unconstitutional. The eight-person majority upheld the constitutionality of s.
    172.1(4).
[4]
The majority, however, rejected this courts holding that proof beyond a
    reasonable doubt Mr. Morrison did not take all reasonable steps to determine
    Mias age provided a stand-alone basis for conviction, regardless of whether
    the Crown proved he believed she was under 16. Moldaver J. said, at para. 129:

The reasonable steps requirement under subs. (4) does not
    provide an independent pathway to conviction. Therefore, the inquiry does not
    end if and when the Crown establishes that the accused did not take reasonable
    steps. Instead, the trier of fact would then be required to consider the whole
    of the evidence, including the evidence relating to the accuseds failure to
    take reasonable steps, not to reintroduce the defence of honest belief in legal
    age, but in determining whether the Crown had discharged its legal burden of
    establishing that the accused believed the other person was under age. Only if
    that element is proven can a conviction be entered.

[89]

Significantly, Moldaver J. held that the requirement the accused
    believed he was speaking to a person under 16 could only be established by
    proof of an actual belief the person was under 16 or its very near equivalent, wilful
    blindness to the age of that person. Neither recklessness, nor negligence would
    suffice:
Morrison
, at paras. 96-102.

[90]

In
    excluding recklessness from the required
mens rea
, Moldaver J.
    acknowledged recklessness would suffice to establish the required
mens rea
in respect of consent in sexual assault charges: see e.g.,
R. v. J.A.
,
    2011 SCC 28, [2011] 2 S.C.R. 440, at para. 24. He distinguished those cases, at
    least in cases where the accused was not communicating with someone under 16,
    by reference to the specific language in s. 172.1(1). He said, at para. 101:

In the child luring context, however, proving that the accused
    had a mere awareness of a risk that the other person was underage does not
    establish that the accused
believed
the person was underage, which is
    what s. 172.1(1) requires in the context of a police sting where there is no
    underage person.
[5]

[91]

After
Morrison
, an accused charged with communicating with a person believed
    to be under 16, contrary to s. 172.1(1)(b), must be acquitted regardless of
    whether he took any reasonable steps to determine the age of the person he was
    speaking with even if he suspected the person was under 16 but decided to proceed
    in any event or if he simply never turned his mind to the complainants age.
    Prior to
Morrison
, the reckless or negligent accused would have been
    convicted when the Crown proved the accused did not take all reasonable steps
    to ascertain the complainants true age.
[6]

(v)

Does
Morrison
have application to this case?

(a)

Introduction

[92]

The
    majority in
Morrison
is careful to focus on the specific charge before
    the court. Moldaver J. repeatedly indicates his reasons are restricted, not
    just to the crime of child internet luring, but to charges which specifically allege
    the accused communicated with a person he believed to be under 16, as opposed
    to with a person who was actually under 16:
Morrison
, at paras. 55,
    81, 84, 95, 101, 102. Mr. Morrison was communicating with a police officer
    pretending to be a child. There was no possibility the communication could ever
    bring about the offence Mr. Morrison was trying to facilitate by means of the communication.

[93]

In light of the majoritys repeated indication its reasons were limited
    to charges of child internet luring involving communication with persons who
    were not in fact underage, it cannot be said that
Morrison
stands as
    direct and binding authority on the
mens rea
for offences like s. 152, involving sexual activity
    with underage persons
. That is not to say, however, the analysis in
Morrison
does not inform the interpretative process required here. Clearly,
    it does. The appellant argues the reasoning requires this court to depart from its
    prior jurisprudence relating to the
mens rea
with respect to the
    complainants age in offences like s. 152.

[94]

The
    appellant contends that two aspects of the analysis in
Morrison
require this court to abandon its earlier case law. First, the statutory scheme
    governing the
mens rea
component
    in s. 172.1(1), as it relates to the age of the complainant, is sufficiently
    similar to the statutory scheme governing other offences involving sexual
    activity with underage persons to make the courts analysis of the
mens
    rea
in s.
172.1(1)
    directly applicable to offences like s. 152. Second, the majoritys treatment
    of its prior decision in
George
signals the analysis in
Morrison
had direct application to other offences involving sexual activity with
    underage persons. For reasons I will explain, a comparison of the relevant
    statutory provisions does not convince me that the analysis in
Morrison
has application to s. 152. However, the majoritys explanation of its earlier
    judgment in
George
does require some revision of this courts earlier
    description of the
mens rea
in s. 152.

(b)

The statutory provisions are different

(1)
    Section 172.1

[95]

Sections
    172.1 and 152 are among a group of
Criminal Code
offences designed to protect
    young persons from sexual exploitation and abuse. Section 172.1 aims specifically
    at exploitation and abuse via the internet, a pernicious and notoriously difficult
    to detect form of that exploitation and abuse: see
Legare
, at para. 26;
R. v. Alicandro
, 2009 ONCA 133, 95 O.R. (3d) 173, at para. 36;
R. v.
    Levigne
, 2010 SCC 25, [2010] 2 S.C.R. 3, at paras. 25-26;
Morrison
,
    at para. 39.

[96]

The
    apprehension of persons who take to the internet to exploit and abuse children
    presents difficult and unique problems. Sexual predators have easy, anonymous,
    and repeated access to a very deep pool of potential victims. The abuse and
    exploitation of children over the internet is often a process rather than a
    single event. Children are groomed to be victimized over a period of time
    through many contacts. In the initial stages of this grooming process, the
    contacts intended to ultimately facilitate sexual abuse of the person being
    communicated with may seem benign.

[97]

Parliament
    addressed these concerns in at least two ways in structuring the offence
    created by s. 172.1(1). First, Parliament criminalized conduct that can occur
    at a very early stage in the course of conduct engaged in by predators for the
    purpose of facilitating one of the crimes enumerated in s. 172.1(1). As noted
    in
Morrison
, at para. 40, the conduct prohibited by s. 172.1(1) may
    occur very early in the continuum of an ongoing course of conduct, even before
    the conduct could constitute an attempt to commit one of the enumerated crimes:
    see also
Levigne
, at para. 27;
Legare
, at paras. 25-28. For
    example, an accused could engage in communications with an underage person
    designed to gain the trust of that person, intending to eventually exploit that
    trust by encouraging the underage person to engage in sexual activity
    prohibited by s. 152. The conduct of the accused would not amount to an offence
    under s. 152, or even an attempt to commit an offence under s. 152. It could,
    however, constitute the offence of child internet luring under s. 172.1(1). By
    defining the conduct component of the offence to include conduct that occurs
    well before the ultimate criminal object, Parliament allows law enforcement to
    intercede at an early stage of the grooming process, hopefully before any real
    damage is done to the target of the conduct.

[98]

Second, s. 172.1(1), unlike s. 152 and other offences mentioned
    in s. 150.1(4), criminalizes conduct not just based on the age of the complainant,
    but also based on the accuseds mistaken belief about the complainants age. By
    extending the offence of child internet luring to accused who wrongly believe
    they are speaking with persons under 16, Parliament permits the police to
    engage in pro-active
sting operations to identify
    and remove predators from the internet before they can make contact with their young
    prey and do serious harm:
Hamish
    Stewart, Fault and Reasonable Steps: The Troubling Implications of
Morrison
and
Barton
, (2019) 24 C.C.L.R. 379, at p. 388;

Isabel Grant & Janine Benedet, Unreasonable Steps: Trying to Make
    Sense of
R. v. Morrison
, (2019) 67 Crim. L. Q. 14, at s. 1.

[99]

In cases in which the
    accused is speaking with someone who is not under 16, the justification for the
    criminalization of the actions lies
almost entirely in the accuseds
    mistaken belief he is speaking with someone under 16. The actual conduct, speaking
    with an adult for the purpose of facilitating sexual activity, would not
    attract criminal sanction. Nor does the criminalized conduct pose any risk the
    accused could actually facilitate the commission of the crime he seeks to promote
    through the communication. The accuseds belief he is speaking to a person
    under 16 is what makes the conduct sufficiently harmful and blameworthy to
    warrant criminalization: see
Alicandro
paras. 30-31;
Legare
,
    at paras. 32-34.

[100]

Criminal law
    principles favour fault requirements based on the accuseds state of mind: see
R.
    v. A.D.H.
, 2013 SCC 28, [2013] 2 S.C.R. 269. Those same principles favour
    restraint in setting the reach of the criminal law sanction. Parliament will
    not be assumed to have imposed a criminal liability for conduct which poses no
    meaningful harm or risk of harm. In circumstances in which the state of mind of
    the accused is the central justification for criminalization, in that the act
    alone would not be considered harmful, the principles of fault and restraint
    combine to favour the application of a stringent subjective standard to the
    determination of the requisite
mens rea
. Depending on the language of the offence creating provision and the
    nature of the offence, that standard may require proof of intent, knowledge,
    belief, or some combination of the three.

[101]

The language used in
    s. 172.1(1) is consistent with the application of the criminal law principles
    of fault and restraint. If the person communicated with was not under 16, s.
    172.1(1)(b) requires the Crown to prove the accused believed the person to be
    under 16. On a plain reading, the accuseds actual state of mind, that is his belief
    the person was under 16, is an essential element of the offence. That element stands
    in place of the requirement that the Crown prove the person communicated with
    was actually under 16 in those situations in which the Crown alleges the
    accused was communicating with a person under 16. Just as the Crown must prove
    the complainants age when the Crown alleges communication with a person under
    16, it must prove the accuseds belief when it alleges communication with a
    person the accused believed was under 16:
Alicandro
, at para. 30.

[102]

The now inoperative
    evidentiary presumption in s. 172.1(3) was also pointed to in
Morrison
as providing a strong indication that the Crown must prove the accused believed
    the complainant was under 16 in those situations in which the accused is actually
    communicating with an adult. That section presumes, absent evidence to the
    contrary, the existence of a belief the person was under 16 if a representation
    to that effect was made to the accused. That presumption serves no purpose
    unless the Crown is required to prove the accused believed the complainant was
    under 16: see
Morrison
, at para. 89. There is no such evidentiary
    presumption in s. 152 or any of the other offences involving sexual activity
    with underage persons.

[103]

It was also crucial
    when considering the majoritys treatment of the mistaken belief in age defence
    in s. 172.1(4) to bear in mind the court determined, based on the language of
    s. 172.1(1), the Crown was required to prove the accused believed the
    complainant was under 16. Recklessness would not suffice. In the context of a
mens
    rea
requirement limited to a belief or
    wilful blindness as to the complainants age, the distinction between a
    reasonable belief the person was not underage and a belief the person was
    underage becomes tenable. An accused who has no defence under s. 172.1(4) may
    still be acquitted on the basis that, while he may have been reckless or
    unconcerned about the complainants age, he did not actually believe she was
    under 16. Indeed, in
Morrison
, the trial judge described the accused as indifferent to the age of
    the person he was speaking to. A finding of indifference dooms both the
    accuseds ability to advance a defence under s. 172.1(4) and the Crowns
    ability to prove the accused believed the person was under 16.

[104]

In cases in which the
    Crown alleges the accused believed he was speaking with an underaged person,
    the language, structure, and scope of s. 172.1 warrant the interpretation which
    requires the Crown to prove that belief beyond a reasonable doubt. Not only is
    that conclusion consistent with the section, it reflects the criminal law
    principles of fault and restraint, intended to guide the interpretation of the
mens
    rea
component of criminal offences.

(2) Sections
    152 and 150.1(4)

[105]

An examination of s.
    152 and its relationship to s. 150.1(4) reveals none of the features driving
    the interpretation of s. 172.1(1) in cases in which it is alleged the accused
    was speaking with someone he believed to be underage. Section 152, unlike s.
    172.1(1), does not criminalize conduct well preliminary to the achievement of any
    ultimate harmful criminal object. Section 152 prohibits conduct of an overtly
    sexual nature directed at persons under 16. An invitation or incitement to engage
    in sexual activity, which the person who is the subject of the invitation is
    incapable of consenting to on account of their age, is inherently harmful
    conduct.

[106]

The criminalization of
    the conduct described in s. 152, while preliminary to other forms of physical
    sexual abuse, does not rest exclusively on the accuseds state of mind, but rather
    finds justification in the manifestation of the criminal object through conduct
    that constitutes an invitation, counselling, or incitement to sexual touching.
    Nor does the fact that some conduct will be captured by both s. 172.1(1) and s.
    152 detract from the distinction I draw here. Many criminal offences overlap.
    For present purposes, the crucial question is the point at which the conduct
    becomes criminal. Section 172.1(1) criminalizes conduct that is preliminary to
    the conduct prohibited by s. 152.

[107]

Section 152, distinct
    from s. 172.1(1), criminalizes only conduct aimed at underaged persons. The
    accuseds mistaken belief his target is under 16 will not justify a conviction on
    the substantive offence created by s. 152.

[108]

Furthermore, again,
    unlike s. 172.1(1), nothing in the language of s. 152 speaks to any
mens
    rea
requirement as it relates to the complainants age. The only reference
    to the accuseds belief about the complainants age is found in s. 150.1(4).
    That provision does not criminalize conduct based on a mistaken belief as to
    the complainants age, but to the contrary exculpates based on a mistaken
    reasonable belief about the complainants age.

[109]

The
    legislative history also assists in understanding the interaction of s. 152 and
    s. 150.1(4). Both sections were introduced in the same amendments to the
Criminal
    Code
: see
An Act to Amend the Criminal Code and the Canada Evidence Act
,
    S.C. 1987, c. 24. Section 152, along with several other sections, criminalized various
    kinds of sexual activity with persons under the prescribed age. Prior to these
    amendments, apart from a provision criminalizing sexual intercourse with
    females under 14 (s. 146), there were very few offences specifically targeting
    sexual activity with children. Section 146 was repealed in the same legislation
    that enacted s. 152.

[110]

Section 150.1
    introduced a mistaken belief in age defence, applicable to the newly created
    offences involving sexual activity with underaged persons. Section 150.1(4) can
    only be understood by bearing in mind the legislative context in which it was
    enacted. Before s. 150.1(4) came into force, the offence of sexual intercourse
    with a female under 14 (s. 146) was punishable by life imprisonment. The
    section specifically made the accuseds belief about the females age
    irrelevant to culpability:
Criminal Code
,

R.S.C. 1970, c. C-34,
    s. 146(1).

[111]

Section 150.1(4) was introduced
    to remove the absolute liability imposed in the former legislation. That
    liability was in all likelihood inconsistent with s. 7 of the
Charter
:
    see
Re B.C. Motor Vehicle Act
, [1985] 2 S.C.R. 486. Section 150.1(4)
    replaced absolute liability with liability based on a failure to take reasonable
    steps to inform ones self about the complainants age. This same fault component
    was made applicable to the new offences introduced into the
Criminal Code
involving sexual activity with children, including s. 152.

[112]

Wilson J., in
R.
    v. Hess
;
R. v. Nguyen
, [1990] 2 S.C.R. 906, at 925, explained the
    operation of s. 150.1(4):

In 1987, Parliament repealed s. 146(1) and put in place a
    series of measures that include a provision that allows a person who has been
    previously charged under s. 146(1) the defence of due diligence. Sections 151
    and 152 of the current
Code
create new substantive offences of sexual
    interference and invitation to sexual touching. Both of these provisions apply
    to sexual conduct with a person under the age of fourteen. Section 150.1(4)
    limits the range of defences available to an accused charged under these
    sections, removing the defence of consent but allowing a due diligence defence.

[113]

Read in its historical
    context, s. 150.1(4) did not overlay a discrete mistaken belief defence on top
    of a
mens rea
requirement with respect to the age of the complainant. Instead,
    s. 150.1(4) created a
mens rea
component for offences involving sexual
    activity with children. It did so by requiring the Crown to prove the absence
    of a reasonable mistaken belief with respect to the complainants age. Parliament
    made the accuseds belief about the complainants age relevant to culpability,
    but only to the extent of requiring the Crown to prove the absence of due
    diligence.

[114]

Section 172.1(4) has
    an entirely different history. The section was enacted with s. 172.1(1) and the
    two must be read together: see
Criminal Law Amendment Act
,

S.C.
    2002, c. 13, s. 8. When the person communicated with is not underage, s.
    172.1(1) explicitly requires proof the accused believed the person was
    underage. It would seem unusual if s. 172.1(4), which purported to create a
    defence, in fact negated the Crowns obligation to prove an element of the
    offence expressly set out in the offence creating provision in s. 172.1(1).

[115]

For the reasons set
    out above, I am satisfied the courts interpretation in
Morrison
of s.
    172.1(1), as it applies to charges when it is alleged the accused believed the
    complainant was under 16, does not mandate a departure by this court from its earlier
    case law dealing with the
mens rea
,
as applied to the complainants age in cases involving prosecutions to which s.
    150.1(4) applies. The relevant statutory language, especially when read in its historical
    context, supports different interpretations of the
mens rea
as it relates to the complainants age.

(c)

The majoritys analysis of
George

[116]

I come to the
    appellants second, and in my view, more persuasive argument. Do the majoritys
    comments about the analysis in
George
compel the conclusion that, on
    charges which involve proof the complainant was under a certain age, the Crown
    must also prove the accused believed the complainant was underage, regardless
    of what steps, if any, the accused took to determine the complainants age?

[117]

In
Morrison
,
    the majority addressed
George
in the course of responding to part of
    the analysis favoured by Abella J. in dissent:
Morrison
, at paras. 86-91.
    While the majority did not expressly overrule
George
, it did take issue with the description of the
mens
    rea
, as it relates to the
    complainants age for offences enumerated in s. 150.1(4): see
Morrison
, at paras. 88, 91.
[7]

[118]

In its reference to
George
,
    the majority in
Morrison
reiterated the difference between the defence
    of mistaken belief the complainant was over the prescribed age and a belief the
    complainant was under the prescribed age. The majority accepted that the Crown
    could negate the defence by proving either the absence of an honest belief the
    complainant was the required age or the failure to take all reasonable steps
    to ascertain the complainants age. That approach is consistent with case law
    from this court: see
Duran
at para. 51;
Saliba
, at paras.
    26-28
.

[119]

The majority in
Morrison
went on, however, at para. 88, to state:

While the Crown had to prove at least one of these propositions
    to negate the defence of mistaken belief, doing so would not, from a legal
    perspective, inevitably lead to a conviction.
As a legal
    matter to obtain a conviction for sexual interference or sexual assault of a
    person under the age of 16, the Crown had to go further and prove beyond a
    reasonable doubt that the accused believed the complainant was under 16
. As a practical matter,
    once Ms. Georges sole defence was negated, her conviction was a virtual
    certainty
. [Emphasis added.]

(d)

Section 150.1(4) offences post-
Morrison

[120]

As I read the
    above-quoted passage, it is no longer, strictly speaking, correct to define the
    required
mens rea
with respect to the complainants age by reference,
    only to the absence of reasonable steps to determine the complainants age. There
    is a
mens rea
requirement that focuses exclusively on the accuseds
    state of mind. The Crown is required to prove the accused believed the
    complainant was underage. The requisite proof is not provided by the Crowns negation
    of the defence created by s. 150.1(4).

[121]

The majority in
Morrison

does not go on to identify the required
mens rea
with respect to the complainants age for offences like s. 152. The language in
    para. 88, however, provides valuable insight. The court observes the rejection
    of the mistaken belief defence would not, from a legal perspective, inevitably
    lead to a conviction. The court further observes if Ms. Georges mistaken
    belief defence had been negated, her conviction was a virtual certainty. These
    comments tell me that, for practical purposes in the vast majority of cases,
    there will be little, if any, distance between the rejection of a reasonable
    belief defence under s. 150.1(4) and a finding of the requisite
mens rea
. This close association is a reflection of the nature
    of the
mens rea
required in respect of the age of the complainant for offences like s. 152. In
    my view, the
mens rea
includes recklessness.

[122]

Assuming the defence
    of mistaken belief the complainant was 16 or over has been rejected, three possible
    states of mind remain:

·

the
    accused may have believed or been wilfully blind to the fact that the
    complainant was under 16;

·

the
    accused may have appreciated the risk the complainant was under 16 and decided
    to proceed with the activity; and

·

the accused may never have adverted to the complainants age and
    chose to proceed with the activity.

[123]

If
    the accused believed the complainant was under 16, or was wilfully blind to
    that fact, the requisite
mens rea
was clearly made out. If the accused
    believed there was a risk the complainant was under 16 and chose to take that
    risk, he was reckless as to her true age. Unlike the
mens rea
required
    under s. 172.1(1), where depending on the wording of the charge, it may require
    proof of a belief the complainant was under 16 (or wilful blindness), nothing
    in s. 152, or in the nature of the conduct criminalized by s. 152, excludes recklessness
    as to the complainants age as a form of
mens rea
.

[124]

Age can be seen as a
    proxy for the absence of consent when the allegation involves sexual activity
    with underage persons. Just as recklessness is sufficient to establish
mens
    rea
with respect to the absence of consent in sexual assault charges, recklessness
    will suffice to establish the
mens rea
with respect to age in offences
    involving sexual activity with underage persons. Appellate authority supports
    this position: see
R. v. Westman
(1995), 65 B.C.A.C. 285, at para. 18;
Nguyen
, at paras. 10-14;
R. v. Angel
, 2019 BCCA 449, 382
    C.C.C. (3d) 149, at para. 45.

[125]

Recklessness
    is subjective. It entails the appreciation of some level of risk and the
    decision to take that risk. In the context of sexual activity with young
    persons, an accused who chooses to proceed with that activity, having adverted
    to the possibility the complainant was underage, will inevitably be found to
    have been reckless with respect to the complainants age, even if the risk the
    complainant was underage is low. The potential harm associated with proceeding
    in the face of a risk is significant. There is no social value to offset the
    taking of any risk. It is therefore appropriate to characterize that risk
    taking, even if the risk is seen as low, as blameworthy for the purposes of imposing
    criminal liability.

[126]

An accused who never
    turns his mind to the complainants age can properly be described as reckless with
    respect to the complainants age in most circumstances. Indifference to the age
    of the person targeted by sexual activity is a choice by an accused to treat
    the complainants age as irrelevant to his decision to engage in the sexual
    activity. In most circumstances, the age of the young person will have obvious
    relevance, bearing in mind the clear responsibility which the law places upon
    adults who choose to engage in sexual activity with young persons: see
George
,
    at para. 2.

[127]

Reckless indifference
    describes a subjective state of mind. It reflects a choice to treat age as
    irrelevant and to assume the risk associated with that choice. While this may
    describe a relatively low level of recklessness, there is nothing in the nature
    of the conduct engaged in which would warrant any level of risk taking or preclude
    the imposition of criminal liability based on a reckless indifference to the
    complainants age: see Andrew Ashworth,
Principles of Criminal Law
, 5th
    ed. (Oxford: Oxford University Press, 2006) at pp. 181-86, 190-91.

[128]

The treatment of
George
by the majority in
Morrison
makes it clear that the Crown cannot prove
    the requisite
mens rea
for offences set out in s. 150.1(4) by
    disproving the defence created by that section. To convict, the Crown must
    prove the accused had the requisite state of mind with respect to the complainants
    underage status. For the reasons set out above, I am satisfied it includes
    recklessness as to the age of the complainant.

[129]

The reshaping of the
mens rea
analysis effected by
Morrison
makes the job of the trial judge (or the jury)
    somewhat more complicated. I suggest the trial judge will proceed along the
    following lines:

Step 1: The trial judge will first determine whether
    there is an air of reality to the s. 150.1(4) defence, that is, is there a
    basis in the evidence to support the claim the accused believed the complainant
    was the required age and took all reasonable steps to determine the
    complainants age.

Step 2: If the answer
    to step 1 is no, the s. 150.1(4) defence is not in play, and any claim the
    accused believed the complainant was the required age is removed from the
    evidentiary mix. If the answer at step1 is yes, the trial judge will decide
    whether the Crown has negated the defence by proving beyond a reasonable doubt,
    either that the accused did not believe the complainant was the required age,
    or did not take all reasonable steps to determine her age. If the Crown fails
    to negate the defence, the accused will be acquitted. If the Crown negates the
    defence, the judge will go on to step 3.

Step 3: The trial judge will consider, having determined there is no basis for the claim the accused believed the complainant was the required age, whether the Crown has proved the accused believed (or was wilfully blind) the complainant was underage, or was reckless as to her underage status. If the answer is yes, the trial judge will convict. If the answer is no, the trial judge will acquit.

[130]

Although, the
    additional step in the
mens rea
inquiry adds some complexity, it will,
    as I think the court in
Morrison
acknowledges, have little practical
    effect on verdicts. If the accused fails to take reasonable steps to determine
    the complainants age, he cannot advance the claim that he believed the
    complainant was the required age. The removal of a positive belief that the
    complainant was the required age, combined with recklessness as a basis for a
    finding of the required
mens rea
, will, I think, leave few situations
    in which a person who engages in sexual activity with an underaged person and
    does not take reasonable steps to determine the age of that person, will not be
    found to have been at least reckless as to the true age of the complainant.

[131]

In summary, to convict
    on a charge under s. 152, the Crown must prove the accused believed (or was wilfully
    blind) the complainant was under 16, or was reckless as to her age.
    Recklessness includes a failure to advert to the age of the complainant, save
    in those cases in which the circumstances did not permit the inference that in
    proceeding without regard to the complainants age, the accused decided to
    treat her age as irrelevant to his conduct. While one can imagine circumstances
    in which the failure to advert to the age of the complainant should not be
    characterized as a decision to treat the age of the complainant as irrelevant
    and take the risk, those circumstances will seldom occur in the real world. For
    practical purposes, those rare circumstances, in which the failure to turn
    ones mind to the age of the complainant does not reflect the decision to take
    a risk about the complainants age, will be the same rare circumstances in
    which the reasonable steps inquiry in s. 150.1(4) will be satisfied even though
    the accused took no active steps to determine the complainants age.

[132]

In the present case, the appellant testified he did turn his mind
    to the age of H.J. and believed she was 16. The trial judge rejected that
    evidence because the appellant had taken no reasonable steps to determine H.J.s
    age. Post-
Morrison
, the rejection of the s. 150.1(4) defence advanced
    by the appellant removed his
claim
    he believed the complainant was 16 from the evidentiary mix.
[8]
It remained, however, for the Crown to prove he believed H.J. was under 16.

[133]

On the evidence
    in this case, the rejection of the appellants s. 150.1(4) defence left only
    two possibilities as to his state of mind. Either, he believed (or was wilfully
    blind) H.J. was under 16, or he was reckless, as I have described that term,
    about her true age. Either state of mind establishes the requisite
mens rea
under s. 152.

V

conclusion

[134]

For the reasons
    set out above, I would allow the appeal and order a new trial.

Released:
DD
JUNE 18
    2020

Doherty J.A.

I agree David Watt
    J.A.

I agree C.W. Hourigan
    J.A.

[1]
The evidence of H.J.
and A.G. consisted of their video
    statement given to the police and entered into evidence pursuant to s. 715.1 of
    the
Criminal Code
and their in-court
    testimony.

[2]

For reasons that need not be detailed here, A.G. testified
    during the defence evidence. Her evidence, however, largely supported the Crowns
    case, and she was treated as a Crown witness.

[3]

Morrison
has come under academic fire.
Commentators
    suggest that
Morrison
has significantly
    changed the law as it relates to child internet luring under s. 172.1(1). They
    also suggest that if
Morrison
applies to other
    offences involving sexual activity with children or adolescents, it has
    significantly changed the law for the worse: see Isabel Grant & Janine
    Benedet, Unreasonable Steps: Trying to Make Sense of
R. v. Morrison
, (2019) 67 Crim. L. Q. 14; Hamish Stewart, Fault and
    Reasonable Steps: The Troubling Implications of
Morrison
and
Barton
, (2019) 24 C.C.L.R.
    379.

[4]

The majority considered only the constitutional challenge
    based on s. 7 of the
Charter
and left open the question of whether the
    section infringed s. 11(d) of the
Charter
:
Morrison
, at para. 80.

[5]

Moldaver J.s emphasis on the word believed, in excluding
    recklessness as a form of
mens rea
,
may indicate recklessness would suffice
    in cases in which the accused was charged with communicating with a person who
    was actually under 16.

[6]

Professors Grant and Benedet in Unreasonable Steps: Trying to
    Make Sense of
R. v. Morrison
,
supra
, go
    even further. They contend that the reasonable steps requirement becomes a dead
    letter after
Morrison
. They argue that, if the
    trier of fact accepts or has a doubt that the accused believed the complainant
    was 16 or older, no matter how unreasonable that belief, the Crown cannot
    possibly prove that the accused believed the complainant was under 16.

[7]

In
R. v.

Gagnon
,
    2018 SCC 41, [2018] 3 S.C.R. 3 the court also cautioned against reliance on
George
in cases in which the accused asserts a mistaken belief in consent.

[8]

In cases in which there is no air of reality to a s. 150.1(4)
    defence, as is perhaps most likely to occur when the accused does not testify,
    the accused will be in exactly the same position as this appellant found
    himself when the trial judge rejected his s. 150.1(4) defence.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Cudmore, 2020 ONCA 389

DATE: 20200617

DOCKET:C64053

Hoy, MacPherson and Tulloch
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Brandon Cudmore

Appellant

Brandon
    Cudmore, acting in person

Lindsay
    Daviau, appearing as duty counsel

Jessica
    Smith Joy, for the respondent

Heard:
    June 3, 2020 by Videoconference

On appeal
    from the conviction entered on March 14, 2017 by Justice Michael P. ODea of
    the Ontario Court of Justice, and from the sentence imposed on June 7, 2017.

REASONS FOR DECISION

[1]

The appellant pled guilty to five charges:
    robbery, possession of a firearm contrary to a prohibition order, use of a
    firearm while committing an offence, failure to comply with a probation order,
    and failure to comply with an undertaking, contrary to ss. 344(1)(a.1),
    117.01(1), 85(1)(a), 733.1(1), and 145(3) of the
Criminal Code
, R.S.C.
    1985, c. C-46.

[2]

On the basis of a joint submission, he was
    sentenced to five years imprisonment for the robbery, one year concurrent for
    possession contrary to a prohibition order, one year consecutive for use of a
    firearm, and six months concurrent for both breaches. He thus received a global
    sentence of six years imprisonment, less eight months credit for presentence
    custody. A victim fine surcharge was also imposed.

[3]

On appeal, the appellant raises two issues: 1) the
    s. 85(1)(a) conviction for possession of a firearm while committing an offence should
    be quashed; and 2) the victim fine surcharge should also be quashed per
R. v.
    Boudreault
, 2018 SCC 58, [2018] 3 S.C.R. 599. At the outset
    of her submissions on behalf of the appellant, duty counsel noted that the
    appellant is abandoning his argument, raised in his notice of appeal, that he
    received ineffective assistance from trial counsel.

[4]

On the first issue, the appellant submits that the
    trial judge erred in imposing a sentence of one year, to be served
    consecutively, for use of a firearm while committing an offence. As an
    essential element of the robbery for which the appellant was convicted is the
    use of a firearm, the s. 85(1)(a) conviction is redundant and should be
    vacated. The current sentence of five years imprisonment for robbery is fit
    and the sentences for the other offences should be served concurrently as
    determined by the trial judge. There is no indication in the sentencing submissions
    that, if the s. 85(1)(a) conviction is vacated, a global sentence of six years
    imprisonment would be fit.

[5]

We agree with the submissions of the appellant.
    Section 85(1) of the
Criminal Code
reads:

Every person commits an offence who uses a
    firearm, whether or not the person causes or means to cause bodily harm to any
    person as a result of using the firearm,

(a) while committing
    an indictable offence, other than an offence under section  344(robbery).

[6]

In reading this section, it is clear that where
    an accused is convicted of an offence under s. 344, s. 85(1) is not applicable,
    as the use of a firearm is already an essential element under s. 344. As such,
    this ground of appeal is allowed and the conviction for the s. 85(1)(a) offence
    is quashed.

[7]

We also agree that, with the elimination of the s.
    85(1)(a) conviction, the accompanying sentence of one year consecutive must also
    be vacated. Accordingly, the sentence appeal with respect to the use of a firearm
    charge is allowed. The sentence is hereby varied for a total sentence of five
    years imprisonment, less eight months credit for presentence custody.

[8]

On consent, we would also allow the sentence
    appeal with respect to the victim fine surcharge. The victim fine surcharge is
    hereby set aside pursuant to
Boudreault
and
R. v. Stockton
,
    2019 ONCA 300.

[9]

Finally, we take note that the appellant, Mr.
    Cudmore, apologized for his actions and expressed a desire to change his life.
    He stated that he has been involved in programming, is taking medication, and
    is seeing counselors. He claims that he is no longer the person who he was when
    he committed the relevant offences. We wish him luck on his way to
    rehabilitation.

Alexandra
    Hoy J.A.

J.C.
    MacPherson J.A.

M.
    Tulloch J.A.