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| John L. Hill |
Because of the COVID-19 pandemic, a criminal trial for the charges resulting from such lewd behaviour was not completed until the summer of 2022. The key issues were credibility and reliability. Ontario Superior Court Justice Michael D. McArthur found the Crown had not proved its case beyond a reasonable doubt and dismissed the charges for invitation to sexual touching, exposing genital organs to a minor and sexual assault (ss. 152, 171.1 and 271, Criminal Code). His written decision dated Jan. 9, 2023, with graphic details of the allegations, is reported at R. v. W.W., 2023 ONSC 200.
The Crown appealed the acquittal on the one charge of transmitting sexually explicit material.
It was uncontested that the complainant was 15 and W.W. knew her age. The complainant’s father was a coworker of the accused, W.W. The complainant and W.W. communicated through text messages and by Snapchat, a social media platform that allows users to send videos and text. Many of the
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One of the videos sent to the complainant depicted a man whom the complainant thought was W.W. masturbating. That video was not preserved, but the trial judge accepted that the complainant thought it was W.W. He also sent videos depicting W.W. having intercourse with a woman with a tattoo like the one worn by W.W.’s ex-girlfriend. W.W. denied at trial that he had any memory of sending such material to the complainant.
The Court of Appeal found that the trial judge’s reasons showed that he believed W.W. had intentionally transmitted sexually explicit material and that he knew the recipient was under 16 (R. v. W.W., [2025] O.J. No. 683). That left the mens rea of the offence to be determined: did he intend to facilitate sexual assault or exposure of genitalia to an underage person?
The trial judge had looked to the wording of s. 173(2) of the Code that specifies it is illegal to expose “their genital organs.” Since the man depicted as masturbating could not be identified as W.W., the trial judge had reasonable doubt that the Crown had proven a violation of the Code. The subsection refers to a particular person’s genitals, not any depiction of them. The depiction of intercourse, though disturbing to the youthful viewer, does not necessarily imply W.W.’s intention to assault the complainant sexually. Since only 10 per cent of the transmissions were saved, the judge concluded most were on the spectrum from “casual to flirtatious.” W.W. had refrained from pressuring, controlling or manipulating the complainant sexually. The videos were simply flirtatious. Without a mens rea established, W.W.’s acquittal was proper.
The Court of Appeal, however, cited R. v. Alicandro, 2009 ONCA 133, where Justice David Doherty described an inchoate crime as Parliament’s intention to intervene and protect children from actual enumerated sexual offences. Children targeted by adult predators are often harmed through the grooming process. Grooming involves gaining a child’s trust and lowering their inhibitions regarding sexual interactions (R. v. Bertrand Marchand, 2023 SCC 26).
An accused must have a specific intention to facilitate carrying out one of the enumerated offences (here, sexual assault or indecent exposure), the enumerated offences need not be objectively possible, and the accused need not commit one of the enumerated offences or even have an intention to commit one of them: R. v. Bowers, 2022 ONCA 852; Alicandro; R. v. McSween, 2020 ONCA 343, leave to appeal refused, [2020] S.C.C.A. No. 285; and R. v. Legare, 2009 SCC 56.
In his consideration of what constituted the mens rea of the offence, the trial judge conflated the elements of the enumerated offences under s. 173(2) into the mens rea for transmitting sexually explicit material and by becoming distracted by seeing an intention to flirt as necessarily precluding an intention to facilitate the commission of an offence.
The trial judge’s use of the word “flirt” is problematic. It could have the unintended effect of normalizing terms used between adults with different meanings in an adult-child context (R. v. Dew, 2024 MBCA 55). It should not be used as a benign term in the adult-child context. By not recognizing that an intention to flirt in this situation was the equivalent of an intention to facilitate the commission of an enumerated offence, mens rea had been established.
This is a case where the trial judge’s finding of fact supported a conviction (R. v. Katigbak, 2011 SCC 48). Thus, the Court of Appeal set aside the acquittal and entered a conviction with a sentencing hearing to be scheduled later.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the [True Crime] Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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