This week’s top three summaries: R v Verhaeghe, 2023 ABCJ 134: #defence of self & property, R v Bonick, 2023 ABCJ 146: #duress, and R v DN, 2023 ONCA 561: 171.1(3)/172.2(3) #unconstitutional.
R v Verhaeghe, 2023 ABCJ 134
[June 13, 2023] Co-Existing Defence of Property and Defence of Self [B.C. Stevenson J.]
AUTHOR’S NOTE: A person defending their property and being attacked for it does not have to pick between the defence of self and property. Both can co-exist at the same time. This case provides an excellent short example of how that can occur. The accused, a homeless person, was about to have his backpack (all of his worldly possessions) stolen by a larger man. He acted to protect his property and a fight resulted. He then protected himself with a knife on his person when their fight took them out into traffic. The Crown could not disprove self-defence and defence of property in the circumstances.
CHARGE
[1] Joseph Russell Verhaeghe is charged with unlawfully causing the death of Gil Scott, thereby committing Manslaughter, contrary to s. 236(B) of the Criminal Code.
THE MAIN ISSUE
[7] Do the circumstances of this matter permit the accused to rely on the self-defence s. 34 of the Criminal Code?
BACKGROUND
[8] Both the accused and the deceased were homeless individuals, often referred to as “street people”.
[9] It is an unfortunate fact, and one of which I take judicial notice, that in our present society we have an abundance of persons who are homeless. The homeless are often described as “street people” and are often the cause of, or become involved in, incidents of social disorder.
[10] Many have issues relating to mental health and addiction to illegal substances.
[11] A sad fact is that most, if not all, of these people carry lethal weapons, and in particular knives, for a purpose that is dangerous to the public peace.
[12] Many of these individuals always carry with them their entire worldly possessions.
[13] Such was the case of the accused in this case.
[14] On October 27, 2021, Alex Christofferson, while driving north on 36th Street in Northeast Calgary, and passing a stationary bus on his right, had to stop when two men stepped in front of him from the front of the bus.
[15] He sounded his horn and the two men stepped back.
[16] The two men were involved in an altercation, and appeared to be struggling over a bag.
[17] Mr. Christofferson further testified that the smaller of the two men (who was later identified as the accused), had a skateboard, and he swung it toward and struck the larger man, who fell back.
[18] Mr. Christofferson then pulled his vehicle around the corner and returned on foot to where the larger man had fallen.
[21] Mr. Christofferson stated that while the fallen man had a pulse, he was non-responsive. He applied pressure to a wound on the larger man’s torso to stop its bleeding.
[22] Andin Skobey, a passenger on the bus, saw the fight going on between the two men in the middle of the street. He saw the larger man falling and saw the man with the skateboard running away.
[23] He attended where CPR was being performed and heard one gasp. He called 911, and noted a stab wound on the right side of the fallen man’s body.
[24] Allan McNaughten, the bus river, saw the two in front of his bus. He saw the accused swing a skateboard at the face of the larger man.
[25] McNaughton testified that he saw the accused reach into his pocket and pull out a black knife. He testified that the accused gave two thrusts of the knife toward the larger man, and then ran away toward the Marlborough Mall.
[27] Shortly thereafter the accused was arrested, and he appeared to be distraught and had bruises on his face. He stated that he had been attacked and was defending himself.
[29] Following his arrest for Aggravated Assault, contrary to s. 268 of the Criminal Code, the accused gave a warned interview with Detective Bekkering of the Calgary Police Service on the evening of the day of the incident.
[30] In the interview, the accused stated that the deceased had picked up his duffle bag and was leaving with it. He asked the deceased to give it back. The deceased refused, stating that it was his, and the two kept arguing and struggling over the property for about two blocks.
[31] The following excerpt from the transcript of the interview describes what the accused remembers leading up to his altercation with the deceased:
Page 7, lines 7-18: “I was standing with my—with a gentleman by a garbage can, and he was going through grabbing some stuff, and I had my bag and a skateboard out front of the garbage bin, and when I went around the side and come back, they had taken the bag and the skateboard, and were taking it away, and I said, Well, where are you taking my stuff? You know, why are you stealing my stuff? And he’s like, it’s my stuff. And I said, No, it’s not your stuff. And then he just kept taking my stuff”.1
Page 7, line 25 – page 8, line 1: “For some reason. So, he was robbing my belongings”.2
Detective Bekkering: Page 8, line 10-13: “It was? Okay. Okay. So, what happened after you came back and this male told you that the skateboard and this duffle bag was his?”3
Accused: Page 8, line 14-page 10, line 22: “I—I tried—like, I grabbed the—my duffle bag and skateboard, and I tried to – fighting for it. So, I took it, and he was fighting back for it, and then we fought like two blocks for it, or something like that, or a block, and I poked him with the skateboard to try to get him to stop too, and he wouldn’t. He just kept fighting, and saying it was his bag, and his stuff too, and –yeah. And I’m like, no, this is—wow, this is—please don’t steal my stuff. I need my stuff. And he just kept fighting me to take it. And it just got a little ridiculous. You know what I mean? It’s like, No. Please don’t take my stuff. Leave me alone. Right? And that’s –that’s—the idea. That’s it”.
Detective Bickering: “Okay. Anything else happen up to that point—up—after that point?”
Accused: “Well, we were—just that ugliness of—like, I was really scared, you know, that – ‘cause he’s bigger than me. He’s quite big – larger than me, right?”
Detective Bekkering: “Mm-hmm”.
Accused: “And he was – you know, that he was gonna take my stuff, and not just that, but he’s gonna take all my other belongings, like my shoes, or my wallet, or my clothes, or whichever, right?
And so – yeah. I was worried. Didn’t know how – what else to do, how else to stop him, thought he was gonna hurt me, and was scared for myself, and my life, and my belongings, and it just got out of hand. And now I’m sitting in here. I felt robbed and attacked, and – and now I’m sitting here feeling like that I did something – ‘cause I was defending myself, or protecting myself, now I feel like I did something wrong. It’s not right.”
The accused repeated in the interview his position that he was simply defending himself in the altercation with the deceased.
Detective: “Okay. And that fear, what did that make you do? Did you have a weapon on you?”
Accused: ‘Well, I had closed my eyes, and I have a little pocketknife.”
Detective: “Like a pocketknife, was it in your right pocket, left pocket?” Accused: “It was in my left pocket.”10
Transcript, page 24, line 14:
Accused: “……..and I keep it for protection”.11Accused: “No. There was no blood or anything. So, I figured I didn’t even cut him. I figured I just scared him, and I let him go.”13
Transcript, page 30, line 17-22:
Accused: “And I was just – and I was just. defending myself. And he – I didn’t mean to cut him open, or hurt him, or put him in the hospital. And like I said, I didn’t feel the knife if it went –if something did happen, it was just a little poke”.14
Transcript, page 40, line 7 – 18:
Accused: “I was so scared and concentrated on him. I just (inaudible) into traffic. And that was when I got really scared and I closed my eyes, right? ‘Cause you could get run over. You don’t know what’s going on. Now we’re in traffic. This guy’s wrestling me into traffic. I got a knife out, and he’s not letting go. You know what I mean? It’s just a big mess. It was just a fiasco, right? And I – and I got my stuff back, and I couldn’t believe it.15
And later:
Transcript, Page 42, line 1-2:
Accused: “I was just trying to intimidate him to get – let go of my stuff”.16
[33] Dr. Akmal Coetzee-Khan, of the office of the Chief Medical Examiner’s Office in Calgary, conducted an autopsy on that same day, and determined that the manner of death was homicide.
[34] Evidence of fentanyl, methamphetamine, and cannabis use prior to death was shown from toxicology analysis.
[38] Mr. Kelly refers to the New Brunswick Court of Appeal decision of R v Cormier, 2017 NBCA 10.
[39] At paragraph 40, the Court states:
“Section 34(1) enumerates three criteria, all of which must be present for the defence to be available. In other words, self- defence is not applicable if the prosecution proves beyond a reasonable doubt that one of these criteria has not been met. They are:
1) Reasonable belief: the accused must reasonably believe that force or threat of force is being used against him or someone else (the subjective perception is objectively verified);
2) Defensive purpose: the subjective purpose of responding to the threat must be to protect oneself of others (this is a subjective state of mind); and
3) Reasonable response: the act committed must be reasonable in the circumstances (this is objectively assessed).
[40] In relation to the issue of proportionality, and the Court’s statement, quoting Professor
Kent Roach, at paras. 49-51:
… result in an acquittal”.
50. “Frankly, it is difficult to conceive how the killing of an individual solely to defends one’s property could ever be found to be a reasonable response in the circumstances. What usually occurs is that the force used to prevent interference with one’s property is resisted, and the aggression of the trespasser turns the situation into one of self-defence. Professor Roach makes this point:
[43] Mr. Kelly submits that the fact situation here was only about protecting property, and that self-defence is not available to the accused.
[44] He submits that the accused is guilty of manslaughter.
[45] Mr. Edgett, counsel for the accused, submits that the only issue is self-defence, and that the circumstances it is available and appropriate.
[46] In his summary of the facts, he agrees that the law as set out in Khill,but submits that the role of the accused in the incident is determinative with respect to the availability of self-defence.
[51] Mr Edgett submits that the circumstances here are such that the accused was a victim throughout the incident. Throughout the incident he was being robbed by a larger person.
[52] Toward the end of the incident he was being wrestled into traffic by the deceased.
[53] Mr. Edgett references the Ontario Court of Appeal decision of R.v. Budhoo 2015 343 O.A.C. 269 (CA), and quotes paragraph 5:
“The appellant stated that he brandished the knife to protect his friend and then continued to hold it to protect himself. He said that he never intended to stab the man; rather, he claimed it was an accident”.
[54] The trial Judge in the case did not leave self-defence with the jury, holding that there was no air of reality to the self-defence submissions. He found that “self-defence” and “accident” were incompatible defences.
[55] On the issue of compatibility, Mr. Edgett quotes the Court from paragraphs 50:
“By determining that self-defence and accident could not co-exist, the trial judge misapprehended the defence position. The appellant testified that he held out the knife at first to protect Bishop and then kept it out to protect himself. The subsequent stabbing was an accident. This sequence of events allowed the two defences to co-exist”.
[56] And further, at paragraph 52:
“Likewise, in this case, the defences were closely related and compatible. The appellant had a two-pronged defence – he acted in self-defence by brandishing the knife and continuing to hold it out. He then accidentally stabbed Burns”.
[57] Mr. Edgett also referred to the Supreme Court adopting (2006 2 S.C.R. 347) Justice Wittman’s dissent in the Alberta Court of Appeal’s decision of R.v. Kong (2005) ABCA 371 A.R. 90.
[58] That decision addressed the “air of reality” standard.
“The evidential standard a judge must apply in determining whether a defence possesses an air of reality was reviewed in Cinous. The two-pronged question for determining whether there is an evidential foundation warranting thatbe put to a jury is whether there is 1) evidence, upon which a properly instructed jury, acting reasonably, could acquit if it believed the evidence to be true. The second part requires asking whether the evidence put forth is reasonably capable of supporting the inferences required to acquit the accused’.
FINDINGS
– The accused stabbed the deceased;
– I accept the version of the incident provided by the accused to Detective Bekkering;
– I accept the accused’s description of his state of mind as the incident developed;
– The accused has reasonable grounds to believe that the deceased was using significant force against both himself and his property;
– The force being used against him and his property by the deceased was imminent and ongoing, and life-threatening;
– The accused was the victim throughout, and the deceased was the aggressor;
– The deceased was much larger than the accused;
– The deceased had no prior relationship with the accused;
– The stabbing was accidental, and the knife produced by the accused was meant by the accused to intimidate the deceased to release the property to the accused;
– The accused’s response was to an unlawful act by the deceased.
CONCLUSION
[62] In the circumstances that I have found to have existed at the time of the incident, I am satisfied that the response by the accused to the life-threatening violence he was facing by the conduct of the deceased was proportionate.
VERDICT
[63] The accused is Not Guilty.
R v Bonick, 2023 ABCJ 146
[July 5, 2023] Defence of Duress: Break and Enter, Theft, PSP for Threat to Self [R.C. Shaigec J.]
AUTHOR’S NOTE: The defence of duress is set out in R v Ryan, 2013 SCC 3 summarized below at para 16. However, this defence is rarely applicable or successful. The narrow opportunity for the defence to work rarely presents itself in facts. This case is one of the rare circumstances where it worked.
Introduction
[1] Dyson Bonick is charged with break and enter, theft, and possession of stolen property. He entered a locked compound to steal tires that he then intended to sell, trying to raise money to pay-off members of a criminal gang who had threatened him.
[2] Was Dyson Bonick acting under duress?
Facts
[3] The Crown’s case proceeded by Agreed Statement of Fact.
[4] The accused was the only person to testify. I accept his evidence.
[5] In November of 2022, Dyson Bonick was staying with an acquaintance who had ties to a criminal street gang from Onion Lake. When a gun and money went missing from this home, Mr. Bonick was wrongly accused of stealing the same. The next morning, he woke up to four gang members standing over him with guns pointed at his head.
[6] He was tied up and beaten. $1500 cash was demanded. Hours later he was released to retrieve the money. Instead, he ran to a friend’s home, who then rushed him to the hospital.
[7] Mr. Bonick suffered serious injuries. He remained in hospital for several days.
[8] When the RCMP came to see him, he cooperated. He provided a statement, “named names,” and is now scheduled to appear in Court to testify about these events.
[9] In the months that followed, Mr. Bonick struggled to get his life back on track. Eventually, he found employment and a new place to live in Lloydminster.
[10] Then on March 16, 2023, as he was walking through town, a truck pulled up. Members of the same gang that had assaulted him in November were inside. They pointed guns and forced him into the vehicle.
[11] He was told to find a way to pay the $1500 that he owed, or they would kill him.
[12] Mr. Bonick has not always been law-abiding. He has sold stolen property in the past, and his immediate reaction to being threatened was to hatch a plan to steal and then sell some tires. He knew where he could get the tires, and to whom he could likely sell them.
[13] He explained this scheme to his captors. They agreed. But one of the armed assailants demanded to go with him. The two traveled to the accused’s workplace where they stole a truck. They then drove to Fountain Tire. While his accomplice stayed in the stolen vehicle, Mr. Bonick jumped the fence, entered the compound, and started gathering tires. But the owner of the tire shop was unexpectedly present. He yelled at the accused and called the police.
[14] They fled. Some blocks later the gang member exited the vehicle and told the accused to leave town. Mr. Bonick drove away, stopping eventually at an unoccupied farm outside of Lloydminster. He abandoned the vehicle and ran. Hours later he was apprehended by police.
Test
[15] Duress is an excuse-based defence. What would “otherwise be criminal conduct” is excused if the acts were committed in response to a threat of death or bodily harm: R v Hibbert, [1995] 2 SCR 973 at para 47 (Hibbert). Courts have read elements into (and out of) s 17 of the Criminal Code, making the statutory and common law versions of the defence largely the same.
[16] The elements of the defence are: (1) a threat of death or serious bodily harm; (2) reasonable belief that the threat will be carried out; (3) no safe avenue of escape; (4) a close temporal connection; (5) proportionality between the harm threatened and the crime committed; and (6) that the accused is not a party to a conspiracy or association whereby he knew that coercion to commit the offence was a possible result: R v Ryan 2013 SCC 3 at para 81 (Ryan). [PJM Emphasis]
[17] The air of reality test is met. Accordingly, the Crown must disprove at least one of the above elements beyond a reasonable doubt: R v Ruzic, 2001 SCC 24 at para 100 (Ruzic).
[18] Given that I accept the accused’s evidence, counsel agree that only one issue remains: has the Crown disproven that Dyson Bonick had no safe avenue of escape?
No Safe Avenue of Escape
[19] The Crown argues that duress is negatived because it was Mr. Bonick’s idea to steal tires, and he was alone while inside the fenced compound, and then ultimately ran from police.
[20] I disagree.
[21] First, necessity and duress are not the same. While necessity applies to “a victim of circumstance,” duress “finds its origin in man’s wrongful acts”: Ruzic at para 64. Serving as a “concession to human frailty …the law [of duress] is designed for the common man, not for a community of saints or heroes”: Ruzic at para 40. The fact that Dyson Bonick’s moral compass pointed him directly to committing property crimes in response to threats, does not disentitle him to the protection of our law. He was threatened, he perceived the threat to be real, it was closely connected in time, and the crimes committed were much less serious than the harm he sought to avoid. The defence of duress is available, even though the accused chose what crime to commit.
[22] Second, a modified objective test is employed. Mr. Bonick’s “personal circumstances … are … important” in measuring the reasonable person: Hibbert at para 62. My assessment must therefore include both “the circumstances of the act,” and the accused’s “personal capacity to avoid it”: Ryan at para 40. It is difficult to conceptualize what a reasonable person’s expected resistance would be to committing property crime in the face of a pointed gun. Then add that Mr. Bonick was previously confined, beaten, and hospitalized by the same threatening group.
[23] Third, the elements of close temporal connection and no safe avenue of escape are “linked”: Ryan at para 48. The facts are clear. The threat was ongoing. The link is strong.
[24] Fourth, the law does not require that the accused seek police protection before the defence of duress can succeed: Ruzic at para 98. And running from police is not inconsistent with having committing crimes in response to threats of bodily harm or death.
Conclusion
[25] Dyson Bonick is not guilty.
R v DN, 2023 ONCA 561
[August 25, 2023] Onus of Proof: Belief in Age s.171.1(3), 172.2(3) Unconstitutional [Reasons by Janet Simmons J.A. with David M. Paciocco and B. Garnett J.A. concurring]
AUTHOR’S NOTE: This case applies the reasons in R v Morrison to other sexual offending legislation with the same Onus of Proof provisions and finds them unconstitutional. In summary they state that: “evidence that the person … was represented to the accused as being under the age of …. is, in the absence of evidence to the contrary, proof that the accused believed that the person was under that age.”
A. INTRODUCTION
[1] In September 2016, following a judge-alone trial, the appellant was convicted of 53 internet-based offences including making, accessing, possessing, and distributing child pornography; making sexually explicit material available to a child to facilitate commission of an offence; child luring; arranging a sexual offence against a child; uttering threats; and extortion.
[3] The appellant appeals 20 of his 53 convictions and the length of the determinate sentence of imprisonment. He does not challenge the dangerous offender designation or the LTSO.
[4] The appellant’s 53 convictions arise from internet chats1 with over 20 internet chat partners. Only two of these chat partners testified at trial. However, the contents of all the chats were extracted from the appellant’s electronic devices and the relevant chat logs were filed as exhibits at trial (the “chat evidence”).
[5] The 20 convictions forming the subject matter of this appeal relate to 14 purported chat partners2, none of whom were identified by the police.
[7] Nineteen of the 20 convictions the appellant is appealing are for child exploitation offences contrary to three sections of the Criminal Code, R.S.C., 1985, c. C-46 (the “child exploitation provisions”):
- 171.1 (making sexually explicit material available to a child to facilitate commission of an offence) – the appellant appeals two convictions for this offence;
- 172.1 (child luring – communicating with a child by means of telecommunication, for the purpose of facilitating certain designated offences against that person) – the appellant appeals 15 convictions for this offence; and
- 172.2 (arranging a sexual offence against a child) – the appellant appeals two convictions for this offence.
[8] The child exploitation provisions all require that the Crown prove, as an element of the offence, either that the alleged victim was under a specified age (18, 16 or 14 years of age, depending on the relevant subsection) when the offence was committed or that the accused believed that the alleged victim was under the specified age.
[9] The child exploitation provisions also each contain an identical presumption provision (the “Presumption” or the “Presumptions” or the “Presumption provisions”), which provides that “[e]vidence that [the alleged victim] was represented to the accused as being under [the specified age], is, in the absence of evidence to the contrary, proof that the accused believed that [the alleged victim] was under that age.”
[10] Finally, the child exploitation provisions also each contain a “no defence” subsection that states it is not a defence that the accused believed that the alleged victim was at least the specified age “unless the accused took reasonable steps to ascertain the age of the person.”
[11] Following the appellant’s conviction and sentencing, the Supreme Court of Canada declared the Presumption in s. 172.1(3) of the Criminal Code, relating to child luring, unconstitutional: R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R 3.
[12] The appellant relies on that declaration and also seeks declarations for the first time on appeal that the identically worded Presumptions contained in ss. 171.1(3) and 172.2(3) are unconstitutional.
[13] In the unique circumstances of this case, the Crown is not opposed to the appellant raising these constitutional issues for the first time on appeal and to this court holding ss. 171.1(3) and 172.2(3) unconstitutional.
[15] Rather, says the Crown, the trial judge relied on the large body of circumstantial evidence found in the chat evidence to conclude that, with respect to each count alleging a child exploitation offence in relation to an alleged victim who did not testify, the only reasonable inference was that the appellant believed that the alleged victims were underage. In the alternative, if the trial judge did rely on the Presumptions, the Crown submits this court should rely on the proviso contained in s. 686(1)(b)(iii) of the Criminal Code to uphold the convictions.
B. BACKGROUND
[20] In June 2014, a computer technician contacted the police after seeing child pornography on a computer he was repairing for the appellant.
[21] The police obtained warrants to search the appellant’s home and electronic devices. They found numerous child pornography videos and images on the appellant’s electronic devices – 41 videos (32 of which were unique), and 1726 child pornography images (397 of which were unique) – together with evidence of the appellant making sexually explicit material available to apparently underage individuals and frequently accessing teen dating sites.
[22] In addition, the police found evidence of chats between the appellant and numerous chat partners scattered around the world. Examination of the chats revealed that many of the chat partners represented themselves as being underage and that the content of the chats was explicitly sexual.
[23] I use the term “chats” for convenience only. Some of the chats were not necessarily text message exchanges or limited to text message exchanges. Rather, some involved audio and video calls, text and video messaging, conference calls, and file transmissions. In some of the chats, the appellant invited the chat partners to engage in sexual touching of themselves or others. He often sought explicitly sexual photographs of the chat partners or others with whom they were associated and exchanged photographs that were admittedly pornographic. In many of the chats, the appellant threatened the chat partners that he would expose their behaviour if they did not comply with his demands for photographs, either by posting photographs online, contacting a parent or making other threats that would resonate with children/young teenagers.
[26] As I have said, the Crown called two of the appellant’s chat partners to testify at trial. The appellant was convicted of seven offences relating to them, none of which form the subject matter of the conviction appeal.
[29] In addition to CP1 and CP2, the Crown called 14 other witnesses, including two police officers who played primary roles in extracting, organizing and analyzing the chat evidence. Some of the Crown evidence indicated there was reason to believe that some of the appellant’s chat partners were adults, including offenders seeking to exchange pornographic materials. Further, near the end of one of the chats, the chat partner identified themselves as part of an organization aimed at trapping pedophiles.
C. ANALYSIS – THE CONVICTION APPEAL
(1) Are the Presumptions contained in ss. 171.1(3) and 172.2(3) of the Criminal Code unconstitutional?
[33] As I have said, the child exploitation offences of which the appellant was convicted each contain an identical element requiring either that the victim be under a specified age or that the accused believes the victim is under the specified age. For example, s. 172.1(1)(a), one of the child luring subsections, reads as follows:
Every person commits an offence who, by a means of telecommunication, communicates with
(a) a person who is, or who the accused believes is, under the age of 18 years, for the purpose of facilitating the commission of an offence with respect to that person under subsection 153(1), section 155, 163.1, 170, 171 or 279.011 or subsection 279.02(2), 279.03(2), 286.1(2), 286.2(2) or 286.3(2). [Emphasis added.]
[34] Similarly, each of the child exploitation offence provisions contains an identical presumption designed to assist the Crown with proof of the accused’s belief in the age of the victim, where the Crown is not in a position to prove the victim’s actual age. Section 172.1(3), the Presumption in relation to child luring, which the Supreme Court of Canada ruled unconstitutional, reads as follows:
Evidence that the person referred to in paragraph 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. [Emphasis added.]
[35] Sections 171.1(3) and 172.2(3) contain identical language to s. 172.1(3) save that the specified ages are set out in numeric form.
[36] As indicated above, the Crown does not oppose the appellant raising this issue for the first time on appeal and this court concluding that the Presumptions in ss. 171.1(3) and 172.2(3) violate s. 11(d) of the Charter. Further, the Crown does not contend that these Presumptions can be saved under s. 1 of the Charter.
[37] I see no principled basis to distinguish s. 172.1(3), the provision struck down in Morrison, from the Presumptions at issue in this case. The language in the Presumptions at issue in this case is identical to s. 172.1(3). Moreover, the Presumptions all have the same effect. They allow the Crown to obtain a conviction despite the existence of a reasonable doubt because the fact that a representation of age was made to an accused does not inexorably lead to the conclusion that the accused believed that conclusion: Morrison, at paras. 51, 56.
[38] Accordingly, I find that ss. 171.1(3) and 172.2(3) infringe s. 11(d) of the Charter and cannot be saved under s. 1.
(2) Did the trial judge err by relying on the Presumptions to convict the appellant of 19 child exploitation offences under ss. 171.1, 172.1 and 172.2 involving victims who did not testify?
(d) Discussion
[58] Although the trial judge did not refer explicitly to the Presumptions when making findings concerning each of the impugned convictions, when read as a whole, I am satisfied that his reasons make it clear that he relied on the Presumptions to make findings of guilt and ultimately enter convictions in relation to the child exploitation offences involving victims who did not testify. I reach this conclusion for several reasons.
[59] First, when considering the trial judge’s reasons, it is important to recall that the Presumptions were part of the law as it stood when this case was litigated, and when the trial judge wrote his reasons. For that reason, factors such as the trial judge’s failure to refer to all of the Presumptions and failure to refer to any of them in his complainant-by-complainant, count-by-count analysis of the charges are of limited, if any, significance.
[60] Trial judges are presumed to know the law. This trial judge was faced with an 83 count indictment involving multiple charges. It was not necessary that he specifically review the law relating to each charge, particularly where, in the case of the child exploitation offences, the presence and operation of the Presumptions was identical.
[61] Further, having reviewed the law concerning the child luring Presumption, unless the circumstance of a particular count required it, it was unnecessary that the trial judge do more than refer to a representation of age in any particular chat to resort to a Presumption or make it applicable. The Presumptions were part of the law.
[62] Second, I would not accept the Crown’s submissions that it is implicit in the extortion convictions that the trial judge did not require the Presumptions to find belief in age. Given that the Presumptions were part of the law relating to the child exploitation offences, the suggestion that the trial judge would consider the extortion offences separately and then decide if it was necessary to resort to the Presumptions in relation to the child exploitation offences seems fanciful.
[65] Finally, as I read the trial judge’s reasons, they signify clearly that he was relying on the Presumptions.
[66] As noted above, while reviewing the law relating to child luring the trial judge quoted from Levigne. The quotations included the following paraphrases of the child luring Presumption and the “no defence” provision:
Third, pursuant to s. 172.1(3), evidence that the target of the communication was represented to the accused to be under the specified age, “is, in the absence of evidence to the contrary, proof that the accused believed the person was under that age”.
…
Finally, in virtue of s. 172.1(4), that the accused believed the person with whom he or she communicated was not underage will afford no defence to the charge “unless the accused took reasonable steps to ascertain the age of the person”.
[67] Immediately after quoting these passages, at para. 92 of his reasons, the trial judge said the following:
In this prosecution, there is no evidence that the [appellant] did anything more to establish age than ask and then move forward with the conversation. There appeared to be no youthful boundary for his sexualized discussions. His interests often turned to whether they had had a “period” and could become pregnant. [Emphasis added.]
[69] The trial judge found that the chat evidence captured entire conversations and revealed no gaps. Further, he said the following at para. 99 of his reasons:
There is not one piece of evidence that does not point to the fact that the [appellant] thought he was conducting a conversation with a youthful female complainant. Far from taking diligent steps to ascertain age, it seems he was getting the exact conversation he sought. While I accept that as true, each allegation still needs to be examined to ascertain if the elements of the offence are present. [Emphasis added.]
[70] As noted in Levigne, at para. 32, and confirmed in Morrison, at para. 48, evidence to the contrary capable of rebutting a Presumption had to include evidence that the accused took reasonable steps to ascertain the other person’s age. Accordingly, as I read these portions of the trial judge’s reasons, they demonstrate that in his preliminary review of the law relating to child luring, he considered the child luring Presumption and the no defence provision applicable to it. He then determined that there was no evidence to the contrary and that no reasonable steps were taken by the appellant to determine his chat partner’s ages that could overcome the no defence provision. Thus, there was no evidence to the contrary. These same factual conclusions would, of course, apply to each of the presumptions that operated according to the law as it was understood at the time.
[71] I am therefore satisfied that before turning to his complainant-by-complainant, count-by-count consideration of the elements of each offence, the trial judge considered the Presumptions and rejected any applicable defences.
[79] Based on the foregoing reasons, I would accept the appellant’s submission that the trial judge erred by relying on the Presumptions to convict him of offences under ss. 171.2, 172.1 and 172.2 in relation to the victims who did not testify.
E. DISPOSITION
[125] Based on the foregoing reasons, I would declare ss. 171.1(3) and 172.2(3) of the Criminal Code to be of no force or effect pursuant to s. 52(1) of the Constitution Act, 1982, allow the appellant’s conviction appeal, set aside his convictions on counts 11, 32, 35, 38, 39, 43, 47, 48, 51, 57, 60, 66, 69, 70, 71, 74, 76, 80, 82 and 89, and order a new trial on those counts. As count 14 was stayed in relation to count 11 and count 58 was stayed in relation to count 57, those stays dissolve and are remitted to the trial court for a new trial.
[127] Given that I would not interfere with the global sentence imposed by the trial judge, I would urge the Crown to exercise its discretion not to proceed with a new trial on the counts with respect to which a new trial has been ordered.
