2022 QCCQ 5867, 2022 QCCQ 5867

R. c. Ghosh 2022 QCCQ 5867 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF SAINT-FRANÇOIS LOCALITY OF SHERBROOKE « Criminal and Penal Division » No: 450-01-114379-196 DATE: April 21, 2022 ______________________________________________________________________ BY THE HONOURABLE RICHARD MARLEAU, J.C.Q., PRESIDING ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecution v.

ARGHYADIP GHOSH Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The accused stands trial on the two following counts : 1. On or about June 11, 2019, in Sherbrooke, district of Saint-François, did, by means of telecommunication, communicate with a person who was, or who the accused believed was under the age of eighteen years, for the purpose of facilitating the commission of an offence 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), committing thereby the indictable offence provided by

section 172.l(l)a)(2)

a) of the Criminal Code . 2. On or about June 11, 2019, in Sherbrooke, district of Saint-François, did communicate with a person for the purpose of obtaining for consideration, the sexual services of a person under the age of eighteen years, committing thereby the indictable offence provided by

section 286.1(2) of the Criminal Code . CONTEXT AND THE EVIDENCE OF S/D FONTAINE [ 2 ] On June 11th and 12th 2019, the Sherbrooke Police Service (SPS), in collaboration with the Équipe intégrée de lutte contre le proxénétisme ( EILP ) and the Sûreté du Québec (SQ), conducted an operation to curb the sexual exploitation of minors. The operation targeted clients seeking sexual services in exchange for payment. [ 3 ] Made-up advertisements for sexual services were published under the heading escortes by the police on three Internet sites associated with this type of advertising and activity.

The clients had to come forward through text messages to reach the escort, which the accused did. The deployed police team occupied three rooms in a local hotel, the Jardins de Ville. One team was busy in a room responding to incoming messages from potential clients. These officers impersonated virtually the person offering the sexual service. Once the nature of the sexual service was determined and the price agreed upon, the client was directed to room 264 of the hotel where an infiltrated officer (AI), coded AI61236, was present. She was the one who received the client.

Another AI was hidden in the bathroom to ensure her safety. Opposite, in the third room, were the arrest teams who intervened in due course. [ 4 ] The particularity of this operation was the following. During the negotiation with the client and before he or she was invited to the hotel, the officer posing as the escort would mention that she was 16 years of age.

The AI, previously informed of what had been agreed as a sexual service and the price would once again, upon arrival of the client at the hotel room, re-establish the agreement, ask the client to deposit the money on a shelf and mention again that she was 16 years old. She would then go to the bathroom. This was the signal for the arrest team to enter and arrest the client. [ 5 ] Only the clients who reached the hotel room were arrested. Even then, if the client balked when the age was brought up again and wanted to leave, they were free to go and would not be arrested. [ 6 ] This would be the

summary of the testimony of Vincent Fontaine, a detective sergeant with the SPS. He had been put in charge of the operation in the spring of 2019, once it has already begun. [ 7 ] Another part of his testimony concerned his knowledge of the community and the fact that a problem related to the sexual exploitation of minors was present in Sherbrooke. In the course of his work, he had already consulted the sites on which the fictitious ads were published. This decision, as well as the content of the ads, was not his responsibility. He nevertheless agreed that the three sites

chosen were commonly used in the region and that the content reflected what is normally found for this type of ads in the region. The same was true for the prices already established before the operation started and later proposed by those exchanging with the potential clients. [ 8 ] Other parts of his testimony dealt with his specific role before and during the operation, the operation itself in general, and the way it was set up and implemented once it had begun. This

part concerns more some of the other defendants. It should be understood that five accused are on trial, three of whom are jointly bringing a motion for abuse of process. The accused is not part of this motion. It was agreed in case management hearings before trial that for practical purpose, S/D Fontaine would testify only once in the presence of the five accused to explain his full role in the operation. The above

summary will therefore suffice for the purposes of this case. [ 9 ] Cross examination of the witness revealed the following highlights : − his perception was that the ad tried to put across that the escort was young, both with the use of the filter( nose and ear in the photos posted) and the wording of the ad; − Lolita is a known word in pedophile circle, but might not be a word known as such in mainstream society; − the prices offered were reasonable and could apply as well to adult escorts than underage ones; − he was not responsible for the AI in the room and it was never brought up that a camera or sound recording device could be installed in the room.

TESTIMONY OF AI 61236 [ 10 ] She had to personify a 16 years old escort in room 264 of the hotel for the two days of the operation. [ 11 ] Once an agreement had been reached with the client through text-messages and that he showed up at the room, she had to re- establish with him the service and the price and mention again that she was 16 years of age. [ 12 ] The accused showed up on June 11 th at 12 h 13. [ 13 ] She let him in and closed the door. He put down his umbrella on a table and came back to her near the entrance. [ 14 ] He asked if she was really 16 years old.

She answered ʺ yes ʺ and asked ʺ si c’était correct ʺ. [ 15 ] He answered ʺ Han ʺ. [ 16 ] She then asked him ʺ si mon âge le dérangeait ʺ. He answered no and smiled. He then reached over to put his face near her. She backed up to continue the conversation and establish if he still wanted a ʺ complet 15 minutes ʺ at $60.

He answered yes and took out three $20 bills that he deposited on a shelf on top of the fridge. [ 17 ] She asked if he wanted other services and he answered wanting a blowjob, plus a massage that he would give her and ʺ de jouer avec moi ʺ. [ 18 ] By then, service, price and age had been established. She retreated to the bathroom. The arrest team then entered the room and arrested the accused. [ 19 ] The AI relates that he was talking with an accent but was understanding the conversation. If that was not the case, she repeated.

She spoke French with him. [ 20 ] She is shown a picture showing what she was wearing that day (P-5) and validates it. [ 21 ] Once in direction of the bathroom and the subsequent arrest process in motion, she did not have any other contacts with the accused. [ 22 ] Cross examination of the witness establish that the arrest took place at 12 h 15 and that the officers left the room with the accused at 12 h 39. [ 23 ] As for her notes, she tried to the best of her recollection to put down what was said and happened.

What appears between quotation marks is the verbatim. [ 24 ] She can’t comment if the accused was skeptical or not when he asked if she was really 16 years old, but her clothes, her make-up, her hairstyle, her tone of voice and her vocabulary was all tailored to make her look the part. She had done some research prior to the operation on social media by listening to videos of girls that age and tried to look as much as possible as a 16 years old. [ 25 ] Consequently, when she mentioned her age and only ʺ Han ʺ came as an answer and that he stayed, she concluded that he was willing to continue regardless of age.

But she nevertheless saw fit to reformulate the question and ask if it was bothering him. He said ʺ no ʺ and smiled. [ 26 ] She was 24 years old at the time. She used mascara, lipstick and blush (fond de teint) for the part. It was not exaggerated and done by herself, once again based on her research as to how 16 years old apply make-up.

NADINE WILSON’S TESTIMONY [ 27 ] An officer at the Sûreté du Québec since 2005, she joined in 2012 the cybercrime unit until 2018. She is since loaned to the EILP. She is specialized in virtual infiltration to personify minor children. [ 28 ] For this specific operation, she had to assist SPS with the creation and publication of ads. [ 29 ] Based on her knowledge in the field with previous victims of sexual exploitation, Annonce 123, Humpchies and Annonce Intime were targeted as the most popular Internet sites used by escorts and clients.

We can establish immediately for what will follow that it is not in dispute that Humpchies is at play here. [ 30 ] Once your access the Humpchies site, a pop-up appears. It asks if you are of legal age. You simply click that you are of age to enter the site without further verifications. All the ads are then available. You can refine your search with keywords or with the city or region if you wish. [ 31 ] You can also post ads once on the site. No real age verification is asked apart from simply attesting again that you are of legal age. [ 32 ] She composed the ad copy and chose which pictures were to be posted.

She had received a few weeks before pictures of the person who was to be acting as the escort. She kept a few ones, the ones that were published, and destroyed the others for security reasons. [ 33 ] She wanted an ad that was similar to what other escorts were posting, but promoting or sustaining that the person was young. It read as follows: Nouvelle en ville 100% real pics Salut les gars, c’est Malo. Je suis nouvelle en ville! Je suis nouvelle tout cour donc fraîche!! Je suis une petite lolita très propre, j’espère que tu le saura! J’ai la peau douce, 5’6, 34B Viens jouer avec moi teddy bear!!

Viens me montrer comment ça se passe à Sherbrooke!! Texto seulement 819-415-[...] [ 34 ] Lolita and teddy bear are well known sexual keyword in pedophile circle. She reckons however that these two keywords are not necessarily known in mainstream society for their sexual connotation. [ 35 ] Once the ad published and the operation in place, a team of officers were able to access via an app all the text messages entering the telephone number appearing in the ad.

These officers basically had to establish price and service first, then to introduce in the exchange that the escort was 16 years old and trigger an answer or reaction to that fact. [ 36 ] Prices were established with what was advertised in the other ads and from information brought up real by escorts over past investigations. It was then agreed that $100 for half an hour and $180 the hour were fair prices to be used. [ 37 ] As for the filters used on all the face pictures posted (a nose and ears), they were the trend at the time with young girls and they were also preserving the anonymity of the AI.

She states that once in front of the AI in real world, she looked like the person in the ad. DEFENSE [ 38 ] The accused testified. He arrived in Canada in February 2019 on a student visa to pursue his education at the local Université de Sherbrooke. [ 39 ] His studies were time consuming. He did not have much of a social life with women on campus. He tried meeting women through an application called Tinder, but he rarely had replies to his messages. [ 40 ] From there, when he was in need of intimacy with women, he relied on two escort internet sites: Annonce Intime and Humpchies.

He started using both sites in March 2019. [ 41 ] He used Humpchies this time. He would normally start his research with the key-word ʺ Sherbrooke ʺ. He had by then seen a warning that the site was only for adult persons, that it had to respect the local laws and that no underage posting was allowed. By clicking ʺ ENTER ʺ to these conditions, he could see the local ads. [ 42 ] He had obtained, using these two sites, sexual services with an escort between 8 to 10 times before his arrest. Most of the time, the meetings were in a hotel, sometimes at their apartment.

He had met escorts at Jardins de Ville 3-4 times previously. [ 43 ] A few ads that he had seen before were giving age or measurements. All the women that he had met were adults, aged between 19 and 26 years old. [ 44 ] Coming back to the day of his arrest, he had sent messages to probably 5 or 6 escorts on Humpchies that morning. He recognizes the ad produced as exhibit P-1, which is the one posted by the police, and that it reflects what he had seen that day. [ 45 ] He was looking for a GFE service (Girl Friend Experience).

It is a scenario where an escort plays the role of a girlfriend and allows more intimacy during the sexual service, such as being kissed. This is what he asked when initiating his messages [1] . Most of the escorts replied. He elected to pursue with the escort that was in fact the sting operation set up by the police and already described.

[ 46 ] Once the initial contact made and the service and price agreed, the following exchange takes place : − Escort : j’ai 16 ans c ok pour toi (followed by a smiling emoji) − Accused : Oui!

Pas de soucis :) [ 47 ] He explains his answer as follows : − Humpchies does not tolerate minor to access the site or post ads on the site; − he had never seen an ad on the site stating that the escort was less than 18 years old; − it was singular; − it didn’t add up; − it was the first time that he had this situation happens; − the prices were low, which was important to him; − if something illegal was at play, the prices would have been much higher; − he was sure that the police would have banned the site or closed it if it was true that the escort was 16 years old; − she was also asking payment in cash, when most require prior payment with internet gift card, and then give the location; − all considered, he believed that the escort was initiating some role-play which was a trend at that time; − also, on one of the pictures in the ad, namely the first one that one could see when accessing the ad, it showed neck muscle that protrudes, not a characteristic of a 16 years old.

She had more the look of a 24-25 years old person. The filter used was also enlarging her eyes. It was all putting across an older person playing a role. [ 48 ] He was nevertheless aware that this type of activity, namely sexual services with an underage escort, existed. [ 49 ] He then explains that he decided to go to the location nevertheless.

He had by then been present in his room at the University’s residence until almost noon. [ 50 ] His thought process on his way to the location was : − it did not fit with his previous experiences; − he had never been told in his previous experiences by an escort that she was 16; − a 16 years old escort must be controlled by someone; − if an escort has no interest to show her real face, her activity should be in the Dark Web; − he would not be stupid enough to use the most known escort website to get minors and neither would the website let minors use it. [ 51 ] By 12 h 13, he is at the door of the hotel room.

He knocks, she opens. A kiss on the cheek follows with some small talk. [ 52 ] His initial reaction is that she is not looking like the one in the pictures, the eyes particularly. She does not look 16 years old. He feels a sense of accomplishment that what he had thought concerning her age was indeed the case. [ 53 ] However, she looked serious, she did not flirt and she was not role playing. Was it a joke? What was her ulterior motive? That is why he then asked: ʺ tu as vraiment 16 ans? ʺ. She answered: ʺ Oui, j’ai vraiment 16 ans ʺ. He then replied ʺ Han ʺ.

She replied back by asking if it was ok and he smirked with a sarcastic smile. He felt then that there was no point pursuing the age subject even though he was not understanding why she was saying that. [ 54 ] She then brought up the services already discussed in the text messages and to bring out the money agreed, which he did. She then mentioned that before starting the sexual service, she had to go to the bathroom and to make himself comfortable in the meantime. Left alone,he had started pulling down his pants when the police entered and arrested him.

ARGUMENTS [ 55 ] The Court will elect to resume at its core both parties’ arguments. They both agree that the credibility of the accused is at play. [ 56 ] For defense, the accused should be believed when he explains the reasonable measures taken to ascertain that the person was not underage and that he should be acquitted accordingly. [ 57 ] For Crown, the accused is not to be believed. And even if he was to be believed, his testimony demonstrates that willful blindness applies. [ 58 ] This could summarizes both parties arguments [2] .

LEGAL FRAMEWORK [ 59 ] The Court is bound by the three steps analysis of the Supreme Court of Canada in R. v.

W(D) , 1991 1RCS 7 , in regard of assessing the evidence : − first, if you believe the evidence of the accused, obviously you must acquit; − second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit; − third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, based on the evidence that you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [ 60 ] Furthermore, the judge must factor in all of the evidence tendered in order to determine if the accusation has been proven without a reasonable doubt or if it still subsist a reasonable doubt in favor of the accused [3] . [ 61 ] We also have to factor in these above principles the particulars of

section 172.1, notably the reasonable steps taken by the accused to ascertain the age of the person as codified at s. 172.1(4). [ 62 ] This said, the Court does not have to address in detail each and every one of the pieces of evidence presented. Neither does it have to systematically position itself in regard of each argument proposed [4] . [ 63 ] Therefore, only the relevant evidence useful for the resolution of the issues will be discussed.

The parties have to assume that for every other evidence or argument not present in the judgment, they were nevertheless considered. [ 64 ] We can also evacuate immediately two items for what will follow in the analysis. [ 65 ] First, it is not an issue that the escort team used French in the text messages and that it was used again in the hotel room by the AI. Even though neither French nor English are the native tongues of the accused (he is Hindu), it was never brought up or argued that his comprehension of French was at play.

We can also add on the subject that in his introduction to his testimony, the accused testified having resided in France since 2012 for his studies before arriving in Sherbrooke. Therefore, the potential misunderstanding of what was written or spoken in French is not an issue. [ 66 ] Second, the accused also brought up briefly in introduction to his testimony that he suffered from depression in France.

His initial difficulties with his studies here (he should have arrived in January for the start of the semester, but visa problem occurred and he had one month to catch up when he finally arrived in February) did not help with his mental state of mind. However, this condition was never argued as a factor to consider. LEGAL FRAMEWORK OF THE ACCUSATION OF LURING [ 67 ] The relevant parts in the code read as follows : Luring a child 172.1

(1) 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); (

b) a person who is, or who the accused believes is, under the age of 16 years, for the purpose of facilitating the commission of an offence under

section 151 or 152, subsection 160(3) or 173(2) or

section 271, 272, 273 or 280 with respect to that person; or (

c) a person who is, or who the accused believes is, under the age of 14 years, for the purpose of facilitating the commission of an offence under

section 281 with respect to that person. (…) No defence

(4) It is not a defence to a charge under paragraph (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 the person. 2002, c. 13, s. 8 ; 2007, c. 20, s. 1 ; 2008, c. 6, s. 14 ; 2012, c. 1, s. 22 ; 2014, c. 25, s. 9; 2015, c. 23, s. 11 . [ 68 ] The Court adopts the reasoning expressed by the Ontario Court of Appeal by Justice Watt in the recent case of Alekozai [5] as the governing principles in our situation : [35] As I have said, the principal focus of the appellant’s submissions has been on the conviction of child luring under s. 172.1(1) (a), not that under s. 286.1(2) .

Although the elements of each offence differ, each has a common requirement that an accused believe in the underage status of the escort and a “reasonable steps” (s. 172.1(4)) or “all reasonable steps” (s. 150.1(4)) requirement to engage a mistaken belief in age defence. The principles that follow are those that apply to the child luring offence under s. 172.1. [36] 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’sage. See, R. v. Levigne, 2010 SCC 25, at para. 23; Morrisson, at para. 43; R. v. Carbone, 2020 ONCA 394, at para. 80. [37] When the constitutionality of ss. 172.1(3) and (4) had not been in issue or finally determined, two pathways were available tothe Crown to establish guilt where, as here, there was no underage collocutor.

The Crown could prove that the accused believed that thecollocutor 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. [38] In Morrison, also a case of child luring arising out of a police sting operation, the Supreme Court confirmed this court’sdecision that s. 172.1(3) was unconstitutional, but not s. 172.1(4): Morrison, at paras. 73, 92. However, the Supreme Court differed withthe courts below about the reasonable steps requirement in s. 172.1(4).

That provision does not, in the absence of the presumption unders. 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. [39] After the decision of the Supreme Court in Morrison, to prove the fault element in cases involving a police sting with nounderage 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.

Recklessness as to the other person’s age is not sufficient to prove the fault element: Morrison, at para. 102; Carbone, at para. 89. [40] After Morrison, an accused charged with communicating with a person believed to be under 18 must be acquitted, regardless ofwhether he took any reasonable steps to determine the age of his collocutor even if he suspected that person was under 18 but decided toproceed in any event, or if he never turned his mind to the collocutor’s age.

Prior to Morrison, the reckless or negligent accused would beconvicted 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. [41] After Morrison, where the Crown proves beyond a reasonable doubt that an accused failed to take reasonable steps toascertain the collocutor’s age, s. 172.1(4) forecloses an accused’s reliance on the defence that they believed the collocutor was of legalage. But this falls short of what is necessary to establish guilt.

This is so because the reasonable steps requirement under s. 172.1(4) doesnot provide an independent pathway to conviction. Once the trier of fact is satisfied that the Crown has proven that the accused did nottake reasonable steps, the trier of fact must consider the whole of the evidence, including evidence about the accused’s failure to takereasonable steps, to decide whether the Crown has discharged its legal burden of proving that the accused believed the other person wasunderage: Morrison, at para. 129. [42] 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 resultprohibited by the criminal law, but who persists in the conduct despite the risk. Recklessness is subjective. It entails an appreciation ofsome 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 personis properly characterized as reckless. Reckless indifference also describes a subjective state of mind, a choice to treat age as irrelevant andto assume the risk associated with that choice: Morrison, at para. 100 citing R. v.

Sansregret, (SCC), [1985] 1 S.C.R.570, at p. 582; Carbone, at paras. 125-127. [43] On the other hand, wilful blindness, sometimes referred to as deliberate ignorance, is established where a person whobecomes aware of the need for some inquiry declines to make the inquiry because they do not wish to know the truth, rather prefer toremain ignorant: Morrison, at para. 100; Sansregret, at p. 584. [44] The mistaken belief in age defences for which ss. 172.1(4) and 150.1(4) impose an evidentiary burden on the accused to putthe 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. TheCrown may negate these defences in either of two ways. The Crown may prove that the accused did not honestly believe that the otherperson 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 honestlybelieved 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 toascertain the other person’s age: Morrison, at para. 88; Carbone, at para. 116; W.G., at para. 57. [45] The analysis of “reasonable steps” or “all reasonable steps” is highly contextual and fact-specific. “Reasonable steps” aresteps 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. [46] To be “reasonable steps”, the steps must be meaningful. They must be steps that provide information reasonably capable ofsupporting 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.

ANALYSIS AND APPLICATION [69] Firstly, we have to understand that the count of luring concerns only the evidence tendered before the accused reached the hotelroom. We also have to factor in that at no time a real 16 years old person was present during the operation. [70] This said, and it goes for both infractions, some general facts are agreed by all and can be summarized as follows :

− the three sites used by the operation to publish the ads, and obviously including our specific one, were showing, when accessing the site, a warning that the sites were for adults and were prompting visitors to click the warning or pop-up that appeared attesting that they were adults before accessing further the site; − no other verifications were made to assess the statement of age; − the same process was at play, once on the site, if someone wanted to place an ad; − once again, no further verification were made to assess this statement; − the sites are considered for adults, both for visitors or someone posting ads; − even though from time to time police investigations revealed that minors, often runaways girls victims of sexual exploitation by pimps, were advertising on these sites, the evidence does not establish that these sites, or Humpchies for us, were notorious for minors swarming the ads or that the sites were known in some circles as an easy place to find a minor escort; − most of the ads were not advertising the age of the escort; − the sites used were not obscure sites or hidden in the Dark Web and were accessible to the general public. [ 71 ] This cannot however legitimize this type of activity.

These ads are still offers of sexual services for consideration, which is illegal for the person obtaining the service or communicating with the person for the same purpose even if the person is an adult. [ 72 ] Also, with no real safeguards in place to ascertain the age of visitors or users, it remains

an act of blind faith to believe that indeed all involved are of legal age. The experience of the accused is the same as to all the others: all are just one click away from accessing the sites regardless of their real ages. [ 73 ] Since the debate relies on the reasonable measures taken by the accused, paragraphs 44 to 46 of Alekozai are of specific interest.

They basically summarize what the Supreme Court in Morrison stated at par. 105 and following. [ 74 ] It is opportune to reproduce the following extracts from Morrison : [112] Without purporting to offer an exhaustive list, reasonable steps may, depending on the circumstances, include: asking for the other person’s age and receiving a response that supports that accused’s asserted belief; noting the other person’s representation, whether solicited or unsolicited, that he or she is of legal age; asking for and receiving proof of identification indicating that the other person is of legal age; asking for and receiving a photograph or reviewing profile pictures suggesting the other person is of legal age; observing conduct or behaviour suggesting the other person is of legal age; choosing to communicate through a website that enforces age restrictions; and, in the case of a personal ad, including language indicating that the accused is looking to speak only with adults.

The ultimate question is whether, in the totality of the circumstances, the accused’s steps to ascertain the other person’s age were sufficient to constitute “reasonable steps” — namely, those that provide information that is reasonably capable of supporting the accused’s belief that the other person was of legal age. [113] In sum, the approach to assessing reasonable steps is a highly contextual one that accounts for the setting in which the communications take place: the Internet. [ 75 ] This being said, we can see in the initial text messages that they are discussing prices, services, location.

The accused is not asking for a minor. [ 76 ] Once mentioned that the escort is 16 years old and if it was bothering him, he answers ʺ oui! Pas de soucis:) ʺ with the last character being the equivalent of an ʺ emoji smileyʺ [ 77 ] This answer is 30 seconds after the question. It is not in evidence if during that delay the accused was still texting with the other 5 or 6 escorts that he had communicated with, along with this one, that morning.

We have to assume that it was not the case and that the whole 30 seconds were dedicated to the present file. [ 78 ] His thought process at that moment was as outlined above at paragraph 47. [ 79 ] It was followed on his way to the hotel by his understanding that a 16 years old must be controlled by someone, would have no interest to show her face in the ad and that it should be found in the Dark Web. [ 80 ] He concludes by saying that he would not be stupid to use the must used known website for escorts to get minors or for them to use it. [ 81 ] In regard of this last statement, we can infer from the evidence that the accused was not looking at first for a minor escort.

The problem is not there. It is if he took reasonable steps to ascertain the age of the person once he was made aware of the age. [ 82 ] The accused, as we saw, never brought up the age in his text messages after his reply. And his reply is not one of clarification, inquiry, doubt or incredulity. There is no other way to interpret his reply other that indeed, it was of no concern (soucis) to him.

Here is why. [ 83 ] To start, a few of his reasoning raise issues : − he certainly knows how to use the website as a visitor/customer but how can he pretend to know the process required to certify or not the age of someone who is posting an ad?

− he is sure that a 16 years old would be controlled by a pimp and that an ad would be found in the Dark Web if she was advertising as such. First, the ad was not advertising as such. Second, where in that thought process is the foundation that it was not the case? That indeed a 16 years old was real with a pimp behind? And on what ground such a situation should be found in the Dark Web when he admits that a minor escort could very well be active or present on Humpchies? [ 84 ] Those are statements that are hard to retain in the circumstances to justify his answer, since they all lead to caution or danger.

Neither are they reasonable measures. There is more. [ 85 ] The argument that police would have banned or closed the site if something illegal was taking place is lame at its best. It totally occults that the site, at least the escort category, is already tantamount to an illegal activity for the client the moment that he communicates for or obtain sexual services for consideration. [ 86 ] There is also his belief that prices would have been higher if a minor was at play. The Court fails to see where the accused saw foundation to such a claim.

He himself states that he had no previous experiences with minor escorts. [ 87 ] On the same subject of prices, he claims that the prices agreed here were underpriced, as if it would render impossible that a minor would charge that. The

part concerning the underpriced services, which was attractive to him, became quite difficult to follow once the accused was cross-examined by Crown on the subject. [ 88 ] Even though they are not on record, Crown used previous text-messages [6] between the accused and other escorts exchanged in the weeks prior to his arrest to demonstrate that his statements on prices were highly questionable. It is not necessary to reproduce word by word the exchanges.

Suffice to say that the Court finds that the accused clearly tried to adapt his answers when cross-examined on the subject once confronted with his own previous messages which were at time simply contradicting his testimony in chief or rendering difficult, if not impossible, to reconcile both. [ 89 ] It is also hard to follow his reasoning concerning role playing. He had never been faced with role playing before. Why believe that it is the case when she mentioned that she was 16? And on what grounds? Simply because she was not charging as he imagined she would if indeed she was 16?

These beliefs seem to originate solely from the accused with no real ties or foundation with reality [7] . [ 90 ] His statement that minors would not be stupid enough to use the Humpchies site while previously stating that he was aware that minors could indeed be present on the site makes it hard, if not impossible, to reconcile both statement. [ 91 ] Lastly, we must not forget that by his own admission, we are lead to believe that all the reasoning listed at paragraph 47 took place in 30 seconds [8] , which was the delay between the text message making him aware that the escort was 16 years old and his reply that it did not bother him. [ 92 ] The Court finds it hard to believe that all this thought process took place in such a short span.

But it is not the decisive factor in itself, since the reasoning presented as reasonable measures taken are dubious, mostly based on assumption lacking foundation and also, for some, poorly presented, the prices being the best example. His evidence lacks both credibility and reliability. This conclusion would have been the same if the accused would have taken 1, 3 or 5 minutes before answering instead of 30 seconds.

The same lack of reasonableness applies with his subsequent thought process on his way to the hotel. [ 93 ] Contrary to other sections of the Criminal Code [9] , the accused does not have to take all reasonable measures, only reasonable measures. [ 94 ] As recognized by jurisprudence, the assessment process is contextual and tributary of each case’s circumstances. We also have to bear in mind that the list of measures suggested at par. 112 of Morrison is neither mandatory nor exhaustive. [ 95 ] Nevertheless, the issue to resolve remains fairly focused: did the accused take reasonable steps.

Not what he could have done better or what else he could have done. [ 96 ] This brings us at this stage of the analysis that the Court must factor in that even if « reasonable steps requirement should be applied with a healthy dose of common sense », we still have to bear in mind its overarching purpose which is « to bar an accused from raising a defense based on an asserted belief that is “entirely devoid of an objective evidentiary basis” » ( Levigne , par. 31 ) [10] .

That last part definitely applies here. [ 97 ] For the reasons above, the Court concludes that the steps taken were not reasonable in the circumstances. [ 98 ] It does not completely settle the issue however. [ 99 ] Justice Watt, in a judgment preceding Alekozai said as follow [11] : [58] The Morrison court also concluded that s. 172.1(4) did not, in the absence of the presumption under s. 172.1(3), provide an independent pathway to conviction: Morrison , at paras. 80, 82 . Rather, what s. 172.1(4) does is to limit a defence of honest but mistaken belief in the age of the interlocutor.

If the Crown proves beyond a reasonable doubt that an accused did not take reasonable steps to ascertain the interlocutor’s age, this precludes the trier of fact from considering the defence that the accused honestly believed the interlocutor was of legal age: Morrison , at para. 83 . But it remains for the Crown to prove beyond a reasonable doubt, without the assistance of the presumption in s. 172.1(3), that the accused believed the interlocutor was underage: Morrison , at para. 83 . [59] Where a prosecution under s. 172.1(1)(

b) originates in a police sting and no underage person exists, the Crown must prove beyond a reasonable doubt three essential elements: i. an intentional telecommunication;

ii. with a person whom the accused believes is under the requisite age; and iii. for the purpose of facilitating the commission of a designated offence with respect to that person. See Morrison, at para. 95. [60] The second element requires the Crown to prove beyond a reasonable doubt that the accused believed the interlocutor wasunderage. Since the presumption of belief in s. 172.1(3) is no longer of any force or effect, the Crown cannot establish this elementsimply by proving that the interlocutor represented her age and that the accused failed to take reasonable steps to ascertain theinterlocutor’s true age.

What the Crown must prove beyond a reasonable doubt is that the accused either: i. believed; or ii. was wilfully blind whether the interlocutor was underage: Morrison, at paras. 96-97. Recklessness as to the interlocutor’s age is not sufficient: Morrison, at paras.100-101. [100] The accused, as already said, has failed to establish that he took reasonable steps to ascertain the age of her interlocutor.

Hisconduct, in the circumstances, goes beyond recklessness (see Morrison, par. 100-101). [101] However, as stated above at par.60 in Drury, the evidence that the escort presented her age as 16 and the following failure to takereasonable steps to ascertain it does not end the analysis.

Crown still has to establish beyond reasonable doubt that either the accusedbelieved it or was willfully blind whether the interlocutor was underage. [102] The Quebec Court of appeal expressed itself as follows concerning willful blindness[12] : [89] Le professeur Stuart avance l’idée que les éléments constitutifs de l’aveuglement volontaire doivent être appréciés subjectivement, c’est-à-dire selon le comportement du prévenu[54].

Les auteurs Côté-Harper, Rainville et Turgeon partagent cet avis : En effet, pour que l’aveuglement volontaire puisse vraiment remplir sa fonction d’élargissement de la connaissance réelle de l’acte, on ne peut lui appliquer un critère objectif.[55] [90] La jurisprudence va dans le même sens[56].

De ce qui précède, on peut donc retenir que l’étude de la faute du prévenu doit sefaire de façon subjective, c’est-à-dire au regard de son comportement apprécié sous l’éclairage de l‘ensemble de la preuvecirconstancielle : Une autre personne dite raisonnable aurait peut-être agi autrement, mais on ne peut faire abstraction de l’état d’esprit de l’inculpé ensituation : l’on doit se demander s’il a préféré se fermer les yeux et ne pas s’informer alors qu’il savait qu’il y avait des motifs de le faire.[57] [91] J’ajoute cependant que si le test applicable se veut centrer sur le fonctionnement de l’esprit du prévenu, ce dernier ne peuttoutefois imposer son propre schème de valeur pour conclure que ce qui est alarmant aux yeux de tous ne le serait pas pour lui.

Jedistingue donc le raisonnement du prévenu apprécié subjectivement d’avec les circonstances proprement dites auxquelles ce dernier estconfronté. Voir les choses autrement aurait pour effet d’assujettir la rationalité de la justice à celle du prévenu. [92] Cela m’amène à discuter du niveau de suspicion requis chez le prévenu qui se ferme les yeux sur une situation douteuse.

Dans les arrêts Sansregret[58], Jorgensen[59] et Briscoe[60], la Cour suprême accepte la proposition du professeur Glanville Williams,selon laquelle l’ignorance volontaire repose sur une probabilité : [TRADUCTION] Avant d'appliquer la théorie de l'ignorance volontaire, il faut prendre conscience que le fait en question est probableou est, du moins, « d'une possibilité supérieure à la moyenne ». Un tribunal ne peut à bon droit conclure qu'il y a ignorance volontaire que si l'on peut presque dire que le défendeur était réellement aucourant.

Il soupçonnait l'existence du fait; il était conscient qu'il pouvait se produire; mais il s'est abstenu d'obtenir la confirmation finale parce qu'il voulait, le cas échéant, pouvoir dire qu'il n'était pas au courant. Seule cette situation constitue de l'ignorance volontaire.[61] [93] Selon le professeur Sherrin, la position majoritaire au Canada suggère qu’un niveau élevé de suspicion n’est pas requis pour faire la preuve de l’ignorance délibérée[62]. La jurisprudence relative aux infractions reliées aux stupéfiants exemplifie à mon avis ce niveau de suspicion[63]. [94] Dans R. c.

Lagace, la Cour d’appel de l’Ontario a refusé de quantifier le niveau de suspicion requis pour l’application de ladoctrine de l’ignorance volontaire en mentionnant simplement qu’il devait s’agir d’une « vraie suspicion ». La Cour écrit : [26] […] I see no need to quantify the level of suspicion beyond the recognition that it must be a real suspicion in the mind of theaccused that causes the accused to see the need for inquiry: R. v. Sansregret (1985), 18 C.C.C. (3d) at 235 (S.C.C.); R. v.Jorgensen (1995), (SCC), 102 C.C.C. (3d) 97 at 135 (S.C.C.); R. v. Duong (1998), (ON CA), 124C.C.C. (3d) 392 at 401-402 (Ont.

C.A.). The appellant on his own evidence was sufficiently suspicious that the vehicles were stolen thathe immediately made an inquiry of the owner of the vehicles. In my view, the potential application of the wilful blindness doctrine didnot require that the trial judge describe the level of suspicion beyond the finding that it was sufficient in the appellant’s mind to call for an inquiry.[64] [Soulignement ajouté]

[95] Il doit donc s’agir d’un doute réel, véritable ou si on aime mieux, d’un doute sérieux, toutes ces expressions étant équivalentes en ce qu’elles rejettent l’idée d’autrement quantifier l’existence du doute envisagé par la doctrine de l’ignorance volontaire [65] . [ 103 ] In short, the accused was presented with a statement by the escort that she was 16 years old. Within 30 seconds, he answered that it did not bother him. No reasonable steps were taken to dissipate this information, save for the ones presented as such at trial and rejected.

Said otherwise, in the most favourable scenario for the accused, he might not have believed the age, but he did not take the appropriate reasonable measures to ascertain it. From there, it was still very much open that, indeed, the interlocutor was only 16 years old. It was a possibility supérieure à la moyenne as expressed above.

His answer is clear and simple: It did not cause him any worries ( soucis) with an added smiley character to boot for what followed in the exchange and eventually his presence at the hotel. [ 104 ] In common parlance, the accused checks all the boxes listed above in McClelland when describing what is required of a conduct that will constitute willful blindness.

It flows therefore that once these principles are applied, Crown has proved beyond reasonable doubt that the accused was willfully blind whether the interlocutor was underage. [ 105 ] It was not in dispute that there was an intentional telecommunication and that it was for the purpose of facilitating the commission of a designated offence with respect to that person. Therefore, all the essentials elements of the infraction of luring are present and proved. [ 106 ] The accused, therefore, is declared guilty of the first count of luring. OBTAINING SEXUEL SERVICES FOR CONSIDERATION [ 107 ] The relevant

section reads as follow : Obtaining sexual services for consideration from person under 18 years 286.1(2) Everyone who, in any place, obtains for consideration, or communicates with anyone for the purpose of obtaining for consideration, the sexual services of a person under the age of 18 years is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of (

a) for a first offence, six months; and (

b) for each subsequent offence, one year. [ 108 ] There is no doubt that the hotel Jardins de Ville fits the definition of ʺ any place ʺ. It is also established that the accused communicated with ʺ anyone ʺ for the purpose of obtaining for consideration the sexual services of a person.

This was not in dispute or argued at trial. [ 109 ] The element of dispute by the parties is if the person was under 18 years or not. [ 110 ] In Beaumont [13] , Justice Tremblay of our Court wrote the following : [100] Sur le deuxième chef dans chacun des dossiers, le Projet de loi C-36, dont l’adoption a introduit les articles 286.1(1) et 286.1(2) C.cr ., avait clairement pour but de prohiber toute communication par un client avec quiconque en vue d’obtenir des services sexuels contre rétribution. [101] Les éléments essentiels de l’accusation en vertu de l’

article 286.1(2) C.cr . sont 1) une communication 2) dans le but d’obtenir un service sexuel donc une entente et 3) d’une personne âgée de moins de 18 ans. Les mots « ou qu’il croyait telle » ne se retrouvent pas dans le texte de l’infraction. L’élément intentionnel est rattaché au but de la démarche. [102] Le Tribunal voit une distinction entre cet

article et l’

article 172.1 C.cr . en ce qui a trait à la connaissance de l’âge. D’abord, toute communication initiée et conduite par les accusés qui avait pour objectif d’obtenir des services sexuels d’une personne majeure ou mineure est illégale. [103] Dans le cours de cette communication, la « personne » déclare qu’elle est âgée de moins de 18 ans. Les accusés ont néanmoins poursuivi leurs échanges et convenu d’une entente pour des services sexuels contre rétribution.

Aux yeux du Tribunal et selon les communications échangées, la preuve révèle que l’infraction était complète avant même qu’ils ne se présentent à la chambre d’hôtel. [104] D’une part, même si le Tribunal acceptait leurs témoignages à l’effet qu’ils ne croyaient pas la personne avec laquelle ils communiquaient quand elle affirmait être mineure, les échanges de messages révèlent qu’ils ont discuté avec elle de leurs préoccupations et ont quand même conclu volontairement cette entente. [105] Il n’y a aucun élément pour soutenir la croyance raisonnable d’une erreur honnête quant à l’âge ou un doute raisonnable qui serait fondé sur une erreur honnête quant à l’âge.

Les accusés ne proposent que leurs convictions personnelles fondées sur des éléments que le Tribunal a appréciés et rejetés. [ 111 ] We are in a similar, if not identical, situation and the Court adopts Justice Tremblay reasoning. [ 112 ] Obviously, the whole of the evidence when looking at this infraction contains what has been already discussed concerning the evidence on the count of luring and the conclusion of the Court in regard of it. [ 113 ] What seems here to blur the issue to decide is the presence of the AI in the room when the accused showed up.

It is not up to the Court to speculate as to why the police operation saw fit to use the AI in the manner already described. But this part of the evidence is irrelevant to the issue at hand on the second count, as with the first one: both infractions had already been committed before the accused reached the hotel [14] .

[ 114 ] The alternate mode of committing the second infraction, namely of communicating with anyone for the purpose of obtaining for consideration the sexual services of a person, cannot be in dispute. It started with the accused reaching the number appearing in the ad and the subsequent exchange with the person that established services, prices, location and eventually his arrival shortly after at the hotel. [ 115 ] It has already been determined that the accused was willfully blind to the fact that the escort was 16.

This state of mind still continued for this infraction. [ 116 ] Consequently, all the essential elements of the infraction are proven. [ 117 ] Coming back now to the non-relevancy of what took place in the hotel room, and said otherwise, the accused could have been arrested on both counts by any officer who would have opened the door to room 264 upon his arrival. [ 118 ] Even factoring in, for the sake of argument, the short exchange that took place in the hotel room, namely the question of the accused as-tu vraiment 16 ans and the answer that, yes she was 16, both would have been conclusive that it was the continuity of his willful blindness: the accused simply continued with the business at hand with no further concern regarding the age.

Let it be clear that this additional comment played no

part in the analysis and conclusions of the judgment. [ 119 ] For all these reasons, the accused is declared guilty of the second count. FOR THE REASONS ABOVE, THE COURT: DECLARES the accused guilty on both counts. __________________________________ RICHARD MARLEAU, J.C.Q Me Véronique Gingras-Gauthier Director of Criminal and Penal Prosecutions For the Prosecutor Me Patrick Fréchette For the accused Dates of hearing: January 17, 18, 27, 28, 2022