Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog


R. v. Alekozai, 2021 ONCA 633, September 20, 2021, at paragraphs 36 to 46:

The essential elements of child luring under s. 172.1 may be briefly described as:

· communication

· age

· purpose

The age element refers to the actual age of the person with whom the communication takes place or the accused’s belief in that person’s age. See, R. v. Levigne, 2010 SCC 25, at para. 23; Morrisson, at para. 43; R. v. Carbone, 2020 ONCA 394, at para. 80.

When the constitutionality of ss. 172.1(3) and (4) had not been in issue or finally determined, two pathways were available to the Crown to establish guilt where, as here, there was no underage collocutor. The Crown could prove that the accused believed that the collocutor was underage, or that the accused had failed to take reasonable steps to ascertain the collocutor’s actual age: R. v. Morrison, 2019 SCC 15, at para. 49; Carbone, at para. 75.

In Morrison, also a case of child luring arising out of a police sting operation, the Supreme Court confirmed this court’s decision that s. 172.1(3) was unconstitutional, but not s. 172.1(4): Morrison, at paras. 73, 92. However, the Supreme Court differed with the courts below about the reasonable steps requirement in s. 172.1(4). That provision does not, in the absence of the presumption under s. 172.1(3), provide a second pathway to conviction, rather it simply limits the availability of the mistaken belief in age defence: Morrison, at para. 80.

After the decision of the Supreme Court in Morrison, to prove the fault element in cases involving a police sting with no underage participant, the Crown must prove beyond a reasonable doubt that the accused:

i. believed the other person or collocutor was underage; or

ii. was wilfully blind whether the other person was underage. [Court of Appeal’s Emphasis]

Recklessness as to the other person’s age is not sufficient to prove the fault element: Morrison, at para. 102; Carbone, at para. 89.

After Morrison, an accused charged with communicating with a person believed to be under 18 must be acquitted, regardless of whether he took any reasonable steps to determine the age of his collocutor even if he suspected that person was under 18 but decided to proceed in any event, or if he never turned his mind to the collocutor’s age. Prior to Morrison, the reckless or negligent accused would be convicted so long as the Crown proved that the accused did not take the reasonable steps required to determine the collocutor’s true age: Carbone, at para. 91.

After Morrison, where the Crown proves beyond a reasonable doubt that an accused failed to take reasonable steps to ascertain the collocutor’s age, s. 172.1(4) forecloses an accused’s reliance on the defence that they believed the collocutor was of legal age. But this falls short of what is necessary to establish guilt. This is so because the reasonable steps requirement under s. 172.1(4) does not provide an independent pathway to conviction. Once the trier of fact is satisfied that the Crown has proven that the accused did not take reasonable steps, the trier of fact must consider the whole of the evidence, including evidence about the accused’s failure to take reasonable steps, to decide whether the Crown has discharged its legal burden of proving that the accused believed the other person was underage: Morrison, at para. 129.

Recklessness is a state of mind. It is the state of mind of a person who is aware that their conduct might bring about the result prohibited by the criminal law, but who persists in the conduct despite the risk. Recklessness is subjective. It entails an appreciation of some level of risk and the decision to take that risk. In most cases, an accused who never turns their mind to the age of the other person is properly characterized as reckless. Reckless indifference also describes a subjective state of mind, a choice to treat age as irrelevant and to assume the risk associated with that choice: Morrison, at para. 100 citing R. v. Sansregret, [1985] 1 S.C.R. 570, at p. 582; Carbone, at paras. 125-127.

On the other hand, wilful blindness, sometimes referred to as deliberate ignorance, is established where a person who becomes aware of the need for some inquiry declines to make the inquiry because they do not wish to know the truth, rather prefer to remain ignorant: Morrison, at para. 100; Sansregret, at p. 584.

The mistaken belief in age defences for which ss. 172.1(4) and 150.1(4) impose an evidentiary burden on the accused to put the defence in play, and a persuasive burden on the Crown, once in play, to negate it: R. v. W.G., 2021 ONCA 578, at paras. 54-56. The Crown may negate these defences in either of two ways. The Crown may prove that the accused did not honestly believe that the other person was at least 18 years old at the time of the offence. Or the Crown may prove that, despite the accused’s claim that they honestly believed that the other person was at least 18, the accused did not take reasonable (s. 172.1(4)) or all reasonable (s. 150.1(4)) steps to ascertain the other person’s age: Morrison, at para. 88; Carbone, at para. 116; W.G., at para. 57.

The analysis of “reasonable steps” or “all reasonable steps” is highly contextual and fact-specific. “Reasonable steps” are steps that a reasonable person would take, in the same circumstances known to the accused at the time, to find out the other person’s age. The reasonable steps requirement includes objective as well as subjective elements. Viewed objectively, the steps must be reasonable. The reasonableness of the steps must be assessed in the circumstances known to the accused: W.G., at para. 60, citing Morrison, at para. 105.

To be “reasonable steps”, the steps must be meaningful. They must be steps that provide information reasonably capable of supporting an accused’s belief that the other person is of legal age. Relevant factors include not only the nature of the steps themselves, but also the information those steps solicit: W.G., at para. 61.