R. v. S. H., 2018 NLSC 218

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. S. H. , 2018 NLSC 218 Date : November 1, 2018 Docket : 201708G0070 Her Majesty The Queen v. S. H. Restriction on Publication: By court order made under subsection 486.4(1) of the Criminal Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published in any documents, broadcasted, or transmitted in any way. Before: Justice Frances J. Knickle Place of Hearing: Happy Valley-Goose Bay, Newfoundland and Labrador Date of Hearing: June 19, 2018 Appearances: Stephen A. Anstey Appearing on behalf of Her Majesty The Queen

Jonathan D. Regan Appearing on behalf of the Accused John D Brooks, QC Appearing as Amicus Curiae

Summary: The Respondent was acquitted of the offence of under

Section 172.1 of the Criminal Code ; commonly known as “internet luring.” The Appellant appealed the acquittal on the basis that the Trial Judge erred in his

interpretation of the elements of the offence, by requiring the Crown to prove that the Respondent had the intention to commit the underlying offence of which the alleged luring was intended to facilitate. The acquittal was set aside and the matter remitted to Provincial Court for a new trial. Authorities Cited: CASES CONSIDERED: R. v. Imona-Russel l, 2013 SCC 43 R. v . Hart , 2009 NLCA 10 ; R. v. Legare, 2009 SCC 56 ; R. v. Graveline , 2006 SCC 16 STATUTES CONSIDERED: Criminal Code , R.S.C. 1985, c.

C-46 REASONS FOR JUDGMENT : KNICKLE, J.: INTRODUCTION [ 1 ] S.H., the Respondent, was acquitted of the offence of communicating with a person under 18 for the purposes of facilitating the commission of an offence, under

Section 172.1 of the Criminal Code . The alleged offence as stated in the Information read: On or between the 1 st day of August A.D. 2013, and the 8 th day of April, 2014, at or near the Town of Nain, in the Province of Newfoundland and Labrador, S. H. did attempt to lure a child under the age of 18 years, for the purpose of facilitating the commission of an offence under

Section 163.1(3) of the Criminal Code , contrary to

Section 172.1(1) (

a) of the Criminal Code. [ 2 ] There was evidence that the Respondent communicated via computer with A.S. and A.B., who were both under the age of 18, and had requested pictures from A.S. of herself. There was evidence that the Appellant knew that A.S. was under 18 years of age. There was also some evidence that the pictures the Appellant requested from A.S. would qualify as “child pornography” as defined under

Section 163.1 of the Criminal Code . The Appellant himself had admitted to the investigators that the pictures he requested were “not normal” and “R-rated.” [ 3 ] However the Trial Judge acquitted the Respondent. The Trial Judge found that there was no evidence that the Respondent intended to or attempted to commit the underlying offence of the distribution of child pornography, the offence under

Section 163.1(3), as part of the commission of the offence of “luring.” The Crown submits this was an error in law. [ 4 ] Before addressing the issues, it should be noted that while the Respondent had been represented by counsel at trial, for several appearances he was unrepresented on this appeal. Given that this was an appeal from an acquittal and the nature of the legal argument advanced by the Appellant, the Court was concerned that the unrepresented Respondent be able to adequately respond to the appeal.

The Court ordered that an Amicus Curiae be appointed to ensure that there was a balance of argument before the Court as per R. v. Imona-Russell , 2013 SCC 43 at paragraph 46 and R. v. Hart , 2009 NLCA 10 . While the Respondent did retain counsel, Amicus also submitted briefs and made submissions at the hearing. The Court thanks Amicus for his contributions to the hearing. ANALYSIS [ 5 ] The parties agree that by requiring the Crown to prove the Respondent intended to commit the underlying offence of

Section 163.1(3), the Trial Judge erred in law. The elements of an offence under 172.1 do not include the intention to commit the offence for which the “luring” is intended to facilitate. The elements of an offence under

Section 172.1

[ 6 ]

Section 172.1(1)(

a) states: 172.1(1) Luring a child 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); [ 7 ] In R. v. Legare , 2009 SCC 56 , the Supreme Court of Canada established that there are three elements of the offence under

Section 172.1(1) (c): 1. An intentional communication by computer 2. With a person whom the accused knows or believes to be under 14 years of age, and 3. For the specific purpose of facilitating the commission of the a specified offence as mentioned in

Section 172.1(1) (c) [ 8 ] Although the offence at issue in these circumstances, is

Section 172. 1(1)(a), the elements as stated in Legare are equally applicable. The only difference between an offence under

Section 172.1 (

a) and (

c) are the age of the person with whom the communication is done, and the offences for which the purpose of the communication is to facilitate. Applying the Legare test to the offence charged in this case, the Trial Judge had to determine whether there was: 1. An intentional communication by computer; 2. With a person whom the accused knows or believes to be under 18 years of age; and 3. For the specific purpose of facilitating the commission of the specified offence as mentioned in

Section 172.1(1) (a) [ 9 ] The Supreme Court of Canada in Legare stated that proof of “facilitating” the commission of the underlying offence is not the same as the “intention” to commit the offence. Fish, J. stated at paragraph 25: It will immediately be seen that s. 172.1(1) (

c) creates an incipient or "inchoate" offence, that is, a preparatory crime that captures otherwise legal conduct meant to culminate in the commission of a completed crime. It criminalizes conduct that precedes the commission of the sexual offences to which it refers, and even an attempt to commit them. Nor, indeed, must the offender meet or intend to meet the victim with a view to committing any of the specified secondary offences. This is in keeping with Parliament's objective to close the cyberspace door before the predator gets in to prey. [emphasis added] [ 10 ] Because the offence under

Section 172.1 is directed at capturing conduct that precedes the offences referred to, the evidence need only establish that an accused communicated “for the purpose of facilitating the commission of the offence.” As stated in Legare at paragraph 28 : In this context, “facilitating” includes helping to bring about and making easier or more probable — for example, by "luring" or "grooming" young persons to commit or participate in the prohibited conduct; by reducing their inhibitions; or by prurient discourse that exploits a young person's curiosity, immaturity or precocious sexuality. [ 11 ] What the Trial Judge needed to decide, was not whether the Respondent intended to commit the underlying offence of the distribution of child pornography, but whether he intended to communicate by computer, with the person under 18 for the purposes of “facilitating” that offence, that is, to use the words, of Fish, J., for the purpose of “helping to bring about” the offence or making the commission of the offence “easier or more probable.” [ 12 ] While the Trial Judge properly stated the principles in Legare , he did not assess the evidence as to whether it “helped to bring about”, or “make easier” the commission of the underlying offence, but, whether the Respondent actually intended to commit the alleged underlying offence under the Criminal Code .

The Trial Judge stated: “When the Supreme Court of Canada states the accused must be shown and to have the specific intent to facilitate one of the designated offences, it clearly means that the Crown must prove the accused had the specific intent of facilitating the commission; in this case, of the crime of at least possession of child pornography. [ 13 ] That phrase standing alone, is not so problematic.

However, the Trial Judge continued: There is no evidence whatsoever of [the Respondent] engaging in or having any intention of engaging in the distribution , selling advertising, importing, exporting or possession – or possessing these images for any of these purposes as set out in s. 163.1(3) {sic}. At the very most, he had possession of a photographic image or attempted to get from a person under the age of 18 years in her underwear. [emphasis added] …and further on

…The critical element of the offence is missing. There is no evidence of an attempt to obtain a picture of a sexual organ or the anal region of a person under the age of 18 for a sexual purpose. [ 14 ] By requiring the Appellant to furnish evidence that the Respondent intended to or attempted to obtain pictures that might be child pornography, or intended to, or attempted to distribute child pornography, the Trial Judge required the Appellant to prove an element of the offence for which it was not required to prove to make out the offence of luring.

I am satisfied in so doing, the Trial Judge erred. [ 15 ] However, having said that the Trial Judge erred, there is sympathy for his apparent confusion; given the poorly worded Information as to the alleged offence. Firstly, the Information as worded, alleged an “attempted” luring.

As worded, the Trial Judge was asked to decide whether the evidence established an “attempt” of “communicating for the purpose of facilitating the commission” In looking at the charge as worded, the Trial Judge stated: So, the tentative approach is to a preventative crime because not—it’s not committing the crime of child luring, but attempting to commit the crime of child luring—attempting to commit a preventative crime.

Then further on, And here we are—not only have the instance of an alleged preparatory offence, but it is further qualified as an attempt to commit a preparatory offence and not the more direct unqualified commission of a preparatory offence.

That’s my comment on that section.” [ 16 ] This was problematic because it was clear from the evidence and argument the Crown was not alleging that the Respondent attempted to communicate, but actually did communicate with A.S. for the purpose of facilitating the underlying crime. [ 17 ] Similarly problematic was the underlying offence for which the communication was purported to facilitate: the offence of the distribution of child pornography under

Section 163.1 (3). By specifying the offence of the distribution of child pornography under

Section 163.1(3), the Appellant had confined itself to alleging that the communication was to facilitate that particular offence. The Trial Judge stated: “And another aspect of the commission of an offence under s. 163.1(3) of the Criminal Code , this

section has the heading “Distribution, etc. of child pornography” and covers persons who “transmit, make available, distribute, sell, advertise, import, export or possess for the purpose of transmission, making available, distribution, sale, advertising or exploitation any child pornography” [ 18 ] It was after making this statement that the Trial Judge went on to find there was no evidence of an intent or attempt of “engaging in the distribution of child pornography.” [ 19 ] If the Information had alleged that the underlying offence was under

Section 163.1 generally, the possibility of any number of the offences listed under

Section 163.1 , including the offence of simple “possession of child pornography” under

Section 163.1(4) and not just the particular offence of the distribution of child pornography could have been alleged to have been facilitated. [ 20 ] But it is clear from a review of the above the Trial Judge was struggling with whether the evidence established that the Respondent was trying to facilitate the alleged underlying offence of the “distribution of child pornography.” Had the Trial Judge acquitted the Respondent because he was not satisfied beyond a reasonable doubt that the Respondent communicated with A.S. for the purposes of “facilitating” that offence, (that is, making it easier or more probable to bring that offence about, as per Legare ), there would be no basis to disturb the acquittal. [ 21 ] Unfortunately, the Trial Judge did not determine whether the evidence established “facilitating” the commission of the offence of the distribution of child pornography as defined in Legare , but whether there was evidence that the Respondent intended to or attempted to commit that offence, which is not required.

By so requiring the offence of distributing child pornography, the Trial Judge erred. [ 22 ] I am also satisfied the error is serious enough to warrant a new trial. I am satisfied that this error had a material bearing on the Trial Judge’s decision to acquit and had the error not been committed, the resulting verdict could have been different. See R . v. Graveline , 2006 SCC 16 at paragraph 14 .

In other words had the Trial Judge properly turned his mind as to whether or not the evidence established that the Respondent’s purpose in communicating with A.S. was to “facilitate”, (something less than the intent or attempt to commit) the commission of the underlying offence, the verdict may have been different than an acquittal. [ 23 ] While the Appellant sought a conviction at this hearing, I agree with the Respondent and Amicus Curiae that because of the manner in which the Trial Judge assessed the evidence, it is unclear what he found as fact.

It is not for this Court, sitting as an appellate court to determine the facts. This is the role of the trial judge, to determine at a new trial; applying the proper test as established in Legare . For this reason, a new trial is warranted. [ 24 ] The appeal is allowed and a new trial is ordered. _____________________________ Frances J. Knickle

Justice