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Criminal - Child Luring (2). R. v. Khan
In R. v. Khan (Ont CA, 2024) the Ontario Court of Appeal dismissed a criminal appeal, here on issues of mens rea respecting the "defence of honest belief in legal age" in a child sex offence:(1) Issue One: The trial judge did not err in her mens rea analysis
[23] Morrison [SS: R. v. Morrison, 2019 SCC 15,] teaches that, where the Crown establishes that an accused failed to take reasonable steps to ascertain age and is therefore barred from relying on a defence of honest belief in legal age, the trier of fact must still consider the whole of the evidence, “including the evidence relating to the accused’s failure to take reasonable steps”, to determine whether the Crown has proven beyond a reasonable doubt that the accused believed the other person was underage, or was wilfully blind as to whether the other person was underage: at paras. 129, 97. The Court further explained, in the context of a police sting operation, that there are circumstances in which, despite the accused having failed to take reasonable steps to ascertain age, the Crown may fail to prove beyond a reasonable doubt that the accused believed, or was wilfully blind to the fact, that the other person was underage: “for example, the trier of fact may determine that the accused was merely aware of a risk that the other person was underage (i.e. was reckless) or was merely negligent”: Morrison, at paras. 131, 83 and 101.
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[26] I agree with the Crown that the trial judge’s oral reasons, when read as a whole, in the context of the evidence and the submissions of trial counsel, make it clear that she articulated the correct test, and she applied it properly. The trial judge made factual findings that led her to reject the affirmative defence, but she did not conclude that because she rejected the defence, it therefore followed that the Crown had proven its case.
[27] First, the trial judge’s analysis was structured according to the three-step framework set out in Morrison: (1) does the defence of honest belief in legal age have an air of reality?; (2) if so, has the Crown disproven the defence beyond a reasonable doubt?; and (3) has the Crown proven beyond a reasonable doubt that the accused believed the other person was underage?: Morrison, at paras. 118‑33.
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[30] While striking down the s. 172.1(3) presumption of belief in age, the Supreme Court in Morrison pointed out that the normal process of inferential reasoning that judges and juries engage in routinely is available to prove the accused’s belief in the age represented to him, without the need for a statutory presumption of belief. As stated by Moldaver J., “[w]here the other person is represented to the accused as being underage, the trier of fact can, on the basis of evidence (including the record generated by the police), draw a logical, common sense inference that the accused believed that representation”: Morrison, at para. 69. This is what the trial judge did in the present case.
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The trial judge did not err in not considering whether the appellant was reckless
[35] At the hearing of the appeal the appellant’s counsel submitted that the appellant might have been reckless, by never turning his mind to the age of the person with whom he was communicating, and that the trial judge erred by not explicitly considering recklessness. He pointed to a passage in the trial judge’s reasons where she said that there was a complete failure on the part of the appellant to take reasonable steps, and “at the very least, he was wilfully blind to the fact he was communicating with a 14-year-old”. Counsel submitted that one interpretation of this passage is that the trial judge did not believe the appellant had taken any steps to verify age. If the appellant did not turn his mind at all to the question of age, then he was reckless, but not wilfully blind.
[36] I would not give effect to this argument.
[37] As a starting point, I observe that the impugned passage appears at step two of the trial judge’s Morrison framework analysis, where she considered whether the Crown disproved the appellant’s honest belief in legal age defence, in the alternative, in the event she was wrong in her step one findings. It was in rejecting the reasonableness of the steps the appellant said he had taken to verify the age of the person he was communicating with, that the trial judge observed that he was at the very least wilfully blind to the fact that he was communicating with a 14-year-old. However, by this point in her analysis, the trial judge had already made findings that supported her conclusion that the Crown had proved beyond a reasonable doubt that the appellant believed he was communicating with someone who was underage. Absent error in the trial judge’s findings at step one, of which I have found none, the question of recklessness was not a live issue.
[38] Second, and in any event, recklessness in the sense of not turning one’s mind to the question of age was not argued at trial. In fact, it is inconsistent with the defence closing submissions in which trial counsel argued that “[the appellant’s] behaviour overall, obviously he turned his mind to the issue [of age] based on the evidence that he gave in direct and cross-examination” (emphasis added). Defence counsel asserted that, if the steps taken were not reasonable, then his client was reckless or negligent, but he was not wilfully blind, because he at least took a step to ascertain age. The trial judge’s reasons were responsive to this argument. The trial judge rejected the argument that the appellant’s steps were reasonable, and she disagreed with defence counsel that the appellant’s conduct – that is, the steps he said that he had taken – did not constitute at least wilful blindness. The appellant had been told on two occasions he was communicating with a 14-year-old. In that context, it was open to the trial judge to accept the Crown’s submission that the appellant’s failure to take reasonable steps was indicative, at the very least, of wilful blindness.
[39] Third, there is no evidentiary support on this record for the recklessness scenario proposed by the appellant’s counsel. The appellant’s exculpatory explanation for his part in the text dialogue was that he did not believe the text message that the person he was communicating with was a 14-year-old, but believed instead that she was an adult woman role-playing as a 14-year-old and lying to him about her age. His position at trial was that he took reasonable steps to ascertain the person was an adult, by reviewing the information in the ad and the photos several times. Indeed, his counsel had urged the trial judge to accept that the appellant re-checked the ad and photos, and that this constituted a reasonable step. There was nothing on this record to suggest that the appellant was indifferent to the question of age.
[40] Nor would I accept the argument that the trial judge’s finding that it was not credible that the appellant “relied on” the ad and photos to ascertain age, meant that she rejected the appellant’s evidence that he went back to the ad and photos and reviewed them when he got the text messages about the other person being 14 years old. She acknowledged that “it was a step” but found that it was “not a reasonable one”. What the trial judge clearly rejected was that the appellant relied on the ad and photos to honestly believe that the person telling him she was 14 years old was actually an adult.
[41] Moreover, even if the trial judge did reject the appellant’s evidence that the appellant went back to the ad and photos, as I have said, given that the appellant had been told twice that he was communicating with a person who was underage, it was open to the trial judge to accept the Crown’s submission that the appellant’s failure to take reasonable steps was indicative, at the very least, of wilful blindness.
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