R. v. Levigne, 2010 SCC 25, [2010] 2 SCR 3

                                                 SUPREME COURT OF CANADA

Between:

Michell Rayal Levigne

Appellant

and

Her Majesty The Queen

Respondent

Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.

______________________________

R. v. Levigne, 2010 SCC 25, [2010] 2 S.C.R. 3

Michell Rayal Levigne                                                                                                      Appellant

v.

Her Majesty The Queen                                                                                                 Respondent

Indexed as:  R. v. Levigne

2010 SCC 25

File No.:  33450.

2010:  May 17; 2010:  July 15.

Present:  McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.

on appeal from the court of appeal for alberta

Criminal law — Sexual offences — Luring a child — Presumption that accused believed interlocutor is underage — Reasonable steps requirement to determine if interlocutor underage — Accused communicating by computer with police officer posing as 13‑year‑old boy — Communication indicating accused’s desire to engage in explicit sexual activity — “Boy” insisting he was 13 notwithstanding profile stating his age to be 18 — Accused taking no steps to ascertain interlocutor’s real age — Arrangements made to meet for anticipated sexual encounter — Accused arrested and charged with “luring a child” — Accused’s acquittals overturned on appeal — Whether trial judge bound by combined effect of presumption of belief in s. 172.1(3)  of Criminal Code  and reasonable steps requirement in s. 172.1(4) to find that accused believed he was communicating by computer with an underage interlocutor — Criminal Code, R.S.C. 1985, c. C‑46, s. 172.1 .

The accused communicated by computer for a sexual purpose with an undercover police officer posting as a 13‑year‑old boy, “JG”.  Throughout their online chat sessions, the accused reiterated his wish to perform oral sex on JG.  The accused eventually arranged to meet JG at a local restaurant where the accused, upon his arrival, was arrested and charged with “luring a child” under s. 172.1(1) (a) and (c) of the Criminal Code .  By virtue of s. 172.1(3) of the Code, an accused is presumed by law, in the absence of evidence to the contrary, to have believed that he was communicating with an underage sexual target and, under subs. (4), it is not a defence to a charge that the accused believed that the person was not underage, unless he took reasonable steps to ascertain the age of the person.  At trial, the accused acknowledged that he took no steps to ascertain JG’s real age and testified that he did not believe him  to be 13 because his online profile indicated that he was 18, even though, at the very beginning of their chat, JG had informed the accused that the age on his profile was wrong.  The trial judge acquitted the accused.  He did not apply s. 172.1(4) because the accused’s belief was not put forward as a defence and, with respect to subs. (3), concluded that it was reasonably possible that the accused, despite all indications, believed he was dealing with an adult who was representing himself as a 13‑year‑old. The Court of Appeal overturned the acquittals and substituted convictions, finding that the trial judge had misapprehended the combined effect of s. 172.1(3) and (4) of the Code, notably in failing to apply the requirement in subs. (4) to take reasonable steps to ascertain JG’s age.

Held:  The appeal should be dismissed.

Read together and harmoniously with the overarching purpose of s. 172.1, the combined effect of subss. (3) and (4) should be understood and applied this way.  Where it has been represented to the accused that the person with whom he or she is communicating by computer is underage, the accused is presumed to have believed that the interlocutor was in fact underage.  This presumption is rebuttable:  It will be displaced by evidence to the contrary, which must include evidence that the accused took steps to ascertain the real age of the interlocutor.  Objectively considered, the steps taken must be reasonable in the circumstances.  The prosecution will fail where the accused took reasonable steps to ascertain the age of his or her interlocutor and believed that the interlocutor was not underage.  In this regard, the evidential burden is on the accused but the persuasive burden is on the Crown.  Such evidence will at once constitute “evidence to the contrary” under s. 172.1(3) and satisfy the “reasonable steps” requirement of s. 172.1(4).  Where the evidential burden of the accused has been discharged, he or she must be acquitted if the trier of fact is left with a reasonable doubt whether the accused in fact believed that his or her interlocutor was not underage.

In this case, the accused’s convictions must be upheld.  The “reasonable steps” invoked by the accused were in fact neither “reasonable” nor “steps to ascertain the age of the person” with whom he was communicating by computer for the avowed purpose of his own sexual gratification.  Rather, they were circumstances which explain why he in fact took no steps to ascertain the actual age of JG.  And this despite the latter’s repeated assertion that he was only 13.

Cases Cited

Referred to:  R. v. Dubois (1990), 62 C.C.C. (3d) 90; R. v. Gibson, 2008 SCC 16, [2008] 1 S.C.R. 397; R. v. Legare, 2009 SCC 56, [2009] 3 S.C.R. 551.

Statutes and Regulations Cited

Criminal Code , R.S.C. 1985, c. C‑46 , ss. 172.1 , 686(4) (b)(ii).

APPEAL from a judgment of the Alberta Court of Appeal (McFadyen, Berger and Slatter JJ.A.), 2009 ABCA 359, 14 Alta. L.R. (5th) 248, 464 A.R. 200, 467 W.A.C. 200, 248 C.C.C. (3d) 337, 69 C.R. (6th) 282, [2009] A.J. No. 1192 (QL), 2009 CarswellAlta 1743, setting aside the accused’s acquittals entered by  Clackson J., 2008 CarswellAlta 2292, and substituting convictions.  Appeal dismissed.

F. Kirk MacDonald, for the appellant.

James C. Robb, Q.C., and Troy Couillard, for the respondent.

The judgment of the Court was delivered by

Fish J. —

I

[1]     This appeal concerns an Internet lurer who himself took the bait.   

[2]     The appellant communicated by computer for a sexual purpose with an undercover police officer posing as a 13-year-old.  In virtue of s. 172.1(3)  of the Criminal Code , R.S.C. 1985, c. C-46 , he is presumed by law to have believed that he was communicating with an underage sexual target.

[3]     The constitutional validity of that presumption is not in issue.  Rather, the outcome of the appeal turns on the combined effect of the presumption of belief and its close companion, the “reasonable steps” requirement set out in s. 172.1(4) of the Code.

[4]     More particularly, the decisive question is whether the trial judge was bound by the combined effect of the two provisions to find that the appellant believed he was communicating by computer with an underage interlocutor.  Like the Alberta Court of Appeal, I would answer that question in the affirmative.

[5]     Accordingly, I would dismiss this appeal.

II

[6]     Briefly stated, these are the relevant facts.

[7]     Over a period of weeks, from May to June 30, 2006, the appellant, Michell Rayal Levigne, then 46 years old, engaged in a series of sex‑infused Internet chats with “etownjessy13” (or “Jessy G”, as he appears in the chat logs). “Jessy G” was in fact Detective Randy Wickins, an undercover officer who represented himself to the appellant, repeatedly and in the clearest of terms, as a 13-year-old student in Grade 7.

[8]     During one sexually explicit exchange, for example, “Jessy G” asked:

[A]nd ur sure im 13 is not a prob . . .?

And Mr. Levigne replied:

[I]t’ll be ok.^[1]

[9]     At trial, Mr. Levigne acknowledged under cross-examination that he took no steps to ascertain the real age of “Jessy G”:

Q.   . . . can you try again to answer my question that you never said anything  to Jesse to confirm his age, right?

A.   Not that I remember.

Q.   And he never contradicted his age of 13, except for the profile?

A.   Other than, I can’t remember for sure, but other than what’s on here.

[10] Mr. Levigne testified that he did not believe “Jessy G” was 13 because his online profile indicated that he was 18.  But “Jessy G”, at the very beginning of their chat, had informed Mr. Levigne that the age on his profile was wrong:

Jessy G: im 13 u freak

bicuradv69:  yr p[rofile] . . . says 18

Jessy G: yahoo wony let me make a profile if i say im 13 . . . suks

Jessy G: wont

bicuradv69: ya i here ya . . .

[11] Throughout their online chat sessions, Mr. Levigne reiterated his wish to perform oral sex on “Jessy G”.  Hoping to make that wish come true, he eventually arranged to meet “Jessy G” at a local restaurant.  Upon his arrival for the anticipated sexual encounter, Mr. Levigne was instead promptly arrested and charged with three offences.  Only two are relevant here, one count each under s. 172.1(1) (a) and (c)^[2] of the Criminal Code .  Essentially, both counts alleged that Mr. Levigne communicated by computer with an underage person, or person whom he believed to be underage, for the purpose of facilitating the commission, with respect to that person, of an offence mentioned in the relevant subsection.

[12] The sole issue at trial, as the appellant puts it in his factum, “was whether or not the Appellant reasonably believed he was corresponding with someone who was over 18 years of age” (para. 5).

[13] Understandably, the trial judge thus began his reasons, delivered orally, by noting that “it is the belief of the accused which is at issue” (2008 CarswellAlta 2292, at para. 4), and not the real age of the person with whom he was communicating by computer.

[14] The judge then turned his attention, in reverse order, to the presumption of belief created by s. 172.1(3) and the “reasonable steps” requirement imposed by 172.1(4).  These provisions read as follows:

(3) 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.

(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.

[15] In the judge’s view, subs. (4) had no application “because [Mr. Levigne’s] belief is not put forward as a defence, but rather is an essential element of the offence . . . which must be proved by the Crown beyond a reasonable doubt” (para. 6).  As I shall later explain, this analytical framework overlooks the peculiar nature of s. 172.1 of the Code.  And, quite properly, appellant’s counsel expressly acknowledges in this Court that “the trial judge erred in law by failing to consider the requirement for reasonable steps as mandated by s. 172.1(4)” (Appellant’s Factum, at para. 33).

[16] Having held that s. 172.1(4) was inapplicable, the trial judge next turned his attention to the presumption of belief created by s.172.1(3).  In virtue of that provision, as we have just seen, evidence that the person with whom the accused communicated was represented to the accused as being underage — which was plainly the case here — is, in the absence of evidence to the contrary, proof that the accused believed that the person was underage.

[17] It is undisputed that, in a statutory provision of this sort, “evidence to the contrary”

does not impose an “ultimate” or “persuasive” burden of proof on the accused. The “evidence to the contrary” to which it refers must tend to show — but it need not prove — [the contested fact]. The exculpatory evidence, in other words, must have probative value, but it need not be so cogent as to persuade the court.  [Emphasis deleted.]

(R. v. Dubois (1990), 62 C.C.C. (3d) 90 (Que. C.A.), at p. 92; cited with approval in R. v. Gibson, 2008 SCC 16, [2008] 1 S.C.R. 397, by LeBel J., at para. 51, and Deschamps J., at para. 86.)

[18] The trial judge applied this understanding of “evidence to the contrary” in s. 172.1(3) to the facts of this case.  He summarized Mr. Levigne’s evidence and concluded as follows:

. . . I do not believe that the accused [Mr. Levigne] was not at least alert to the possibility that he was actually talking to a 13‑year‑old.  However, his evidence leaves me in doubt as to whether he actually believed that to be the case.  His explanations, while not convincing, were not established to be lies.  It is reasonably possible that the accused, despite all indications, believed he was dealing with an adult who was representing himself as a 13‑year‑old.  In those circumstances, I cannot say that he proceeded recklessly or that he blinded himself to the truth.  The Crown has not succeeded in overcoming reasonable doubt, and therefore the prosecution fails. [para. 13]

And, for this reason, the judge acquitted Mr. Levigne on both counts.

[19] On an appeal by the Crown, the Alberta Court of Appeal set aside Mr. Levigne’s acquittals, entered convictions in their stead and, pursuant to s. 686(4) (b)(ii) of the Criminal Code , returned the matter to the trial court for sentencing: 2009 ABCA 359, 14 Alta. L.R. (5th) 248.

[20] Speaking for a unanimous court, Berger J.A. found that the trial judge had misapprehended the combined effect of s. 172.1(3) and (4), notably in failing to apply the “reasonable steps” requirement of s. 172.1(4).  Justice Berger felt bound to substitute convictions instead of ordering a new trial because “[t]he uncontradicted evidence is that [Mr. Levigne] took no steps to confirm Jesse’s age” (para. 9).

[21] Mr. Levigne now asks this Court to reverse the decision of the Court of Appeal and to restore his acquittals or, in the alternative, to order a new trial.

[22] For the reasons that follow, I would decline to do so.

III

[23] Section 172.1 prohibits the use of computers to communicate with an underage person or a person whom the accused believes to be underage for the purpose of facilitating the commission, with respect to that person, of the specified sexual offences.  As mentioned earlier, our concern here is with s. 172.1(1)(a) and (c), which both consist of three elements: (1) an intentional communication by computer; (2) with “a person who is, or who the accused believes is” underage; (3) for the specific purpose of facilitating the commission of an enumerated secondary offence with respect to that person.

[24] Section_172.1 was adopted by Parliament to identify and apprehend predatory adults who, generally for illicit sexual purposes, troll the Internet to attract and entice vulnerable children and adolescents.

[25] In structuring the provision as it did, Parliament recognized that the anonymity of an assumed online profile acts as both a shield for the predator and a sword for the police.  As a shield, because it permits predators to mask their true identities as they pursue their nefarious intentions; as a sword (or, perhaps more accurately, as a barbed weapon of law enforcement), because it permits investigators, posing as children, to cast their lines in Internet chat rooms, where lurking predators can be expected to take the bait — as the appellant did here. 

[26] To enhance its effectiveness, s. 172.1 was invested with a synergetic combination of four defining characteristics, two substantive and two procedural.

[27] First, as explained in R. v. Legare, 2009 SCC 56, [2009] 3 S.C.R. 551, at para. 25:

. . . 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 deleted.]

[28] This is true as well of s. 172.1(1)(a) and (b).

[29] Second, s. 172.1 makes it an offence to communicate by computer for a prohibited purpose with a person who is underage, or who the accused believes is underage.  Were it otherwise, “sting” operations of the kind that occurred here could not be mounted.

[30] 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 that the person was under that age”.  This rebuttable presumption facilitates the prosecution of child luring offences while leaving intact the burden on the Crown to prove guilt beyond a reasonable doubt.  Put differently, s. 172.1(3) assists the Crown in discharging its evidential burden on the element of culpable belief, but preserves for accused persons the benefit of any reasonable doubt where the record discloses “evidence to the contrary”.

[31] 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”.  This provision was enacted by Parliament to foreclose exculpatory claims of ignorance or mistake that are entirely devoid of an objective evidentiary basis.

[32] Read together and harmoniously with the overarching purpose of s. 172.1, the combined effect of subss. (3) and (4) should be understood and applied this way:

1.                Where it has been represented to the accused that the person with whom he or she is communicating by computer (the “interlocutor”) is underage, the accused is presumed to have believed that the interlocutor was in fact underage.

2.                This presumption is rebuttable: It will be displaced by evidence to the contrary, which must include evidence that the accused took steps to ascertain the real age of the interlocutor. Objectively considered, the steps taken must be reasonable in the circumstances.

3.                The prosecution will fail where the accused took reasonable steps to ascertain the age of his or her interlocutor and believed that the interlocutor was not underage.  In this regard, the evidential burden is on the accused but the persuasive burden is on the Crown.

4.                Such evidence will at once constitute “evidence to the contrary” under s. 172.1(3) and satisfy the “reasonable steps” requirement of s. 172.1(4). 

5.                Where the evidential burden of the accused has been discharged, he or she must be acquitted if the trier of fact is left with a reasonable doubt whether the accused in fact believed that his or her interlocutor was not underage.

[33] As mentioned earlier, the trial judge in this case found that s.172.1(4) had no application “because [Mr. Levigne’s] belief is not put forward as a defence, but rather is an essential element of the offence . . . which must be proved by the Crown beyond a reasonable doubt” (para. 6).

[34] With respect, I agree with the Court of Appeal that the trial judge erred in this regard. As explained in Legare, at paras. 38-41:

In determining whether the Crown has discharged its burden under s. 172.1, it is neither necessary nor particularly helpful for trial judges to recast every element of the offence in terms of its actus reus, or “act” component, and its mens rea, or requisite mental element. As in the case of attempt, s. 172.1 criminalizes otherwise lawful conduct when its specific purpose is to facilitate the commission of a specified secondary offence with respect to an underage person. Separately considered, neither the conduct itself nor the purpose alone is sufficient to establish guilt: It is not an offence under s. 172.1 to communicate by computer with an underage person, nor is it an offence under s. 172.1 to facilitate the commission of a specified secondary offence in respect of that person without communicating by computer.

In this unusual context, determining whether each of the essential elements I have set out constitutes all or part of the actus reus or mens rea of s. 172.1(1)(c) is of no assistance in reaching the appropriate verdict on a charge under that provision. More specifically, forcibly compartmentalizing the underage requirement of s. 172.1(1)(c) — “a person who is, or who the accused believes is, under the age of fourteen years” — as either part of the actus reus or part of the mens rea, may well introduce an element of confusion in respect of both concepts.

Is it part of the actus reus that the accused communicated with a person of any age whom the accused believed to be under 14? Is it part of the mens rea that the person was in fact under 14? I see no conceptual or practical advantage in attempting to resolve these questions. It seems to me preferable, in setting out the elements of s. 172.1, to adopt “language which accurately conveys the effect of the law without in itself imposing an unnecessary burden of translation and explanation”: Howard’s Criminal Law (5th ed. 1990), at p. 11.

I believe that the elements of the offence, as I have set them out, achieve that objective: They satisfy the principle of legality by affording the required degree of certainty, respecting the will of Parliament, and reflecting “the overall need to use the criminal law with restraint”: see D. Stuart, Canadian Criminal Law: A Treatise (5th ed. 2007), at p. 86. [Emphasis deleted.]

[35] The trial judge in this case did not have the benefit of Legare when he declined to apply s. 172.1(4) for the reasons he gave.  I am satisfied that he would otherwise have recognized that the “reasonable steps” requirement imposed by that subsection was meant by Parliament to foreclose successful claims of mistaken belief, absent an objective evidentiary basis.

[36] Characterizing such claims as a “mistake of fact” defence rather than an absence of proof of an essential element is of no analytical assistance in the context of a prosecution for child luring under s. 172.1.  Parliament has deliberately proscribed in that section communications for the prohibited purpose with a person who is or who the accused believes is underage and cannot have intended to impose a “reasonable step” requirement on one but not the other.  In either instance, the accused’s belief that the person was not underage will afford a defence — but only if the accused took reasonable steps to ascertain the age of his or her interlocutor, as required by s. 172.1(4).

[37] I recognize, of course, that it seems incongruous to convict the appellant on the ground that he failed to take reasonable steps to determine the real age of “Jessy G” when “Jessy G” was in fact an adult pretending to be a child and not a child pretending to be an adult.

[38] But s. 172.1, I repeat, makes it an offence to communicate for the purpose prohibited by that section with a person whom the accused believes to be underage.  That is in itself conduct deemed undesirable and criminalized by Parliament.  It thus seems more incongruous still to acquit an accused who communicated for a prohibited sexual purpose with a person whom he believed to be underage — the evil aimed at — on the ground that he would not have made that mistake had he taken the reasonable steps he was required by law to take.

                                                                       IV

[39] The appellant concedes that the trial judge erred in declining to apply s. 172.1(4)  of the Criminal Code  to the evidence before him, but urges us nonetheless to restore the appellant’s acquittals or, in the alternative, to set aside the convictions substituted by the Court of Appeal and to order a new trial instead.

[40] What is put against the appellant is that, on the uncontested evidence, the trial judge was bound by s. 172.1(3) and (4) to find that the appellant was guilty as charged.  Convictions on both counts were inevitable, says the Crown, because the only issue was whether the appellant believed that he was communicating with an underage interlocutor. It was plainly and repeatedly represented to him that “Jessy G” was only 13 and he took no reasonable steps to ascertain that “Jessy G” was in fact 18, as he claims to have believed.  He is precluded from relying on that belief because it was neither reasonable in the circumstances nor available to him as a defence because it was unsupported by the reasonable steps mandated by s. 172.1(4).

[41] The “reasonable steps” invoked by the appellant were in fact neither “reasonable” nor “steps to ascertain the age of the person” with whom he was communicating by computer for the avowed purpose of his own sexual gratification.  Rather, they were circumstances which in the appellant’s submission explain why, as he admitted in cross-examination, he in fact took no steps to ascertain the actual age of “Jessy G”.  And this despite the latter’s repeated assertion that he was only 13.

[42] Thus, for example, Mr. Levigne maintained at trial that there were moderators in the public chat rooms who would remove children.  But this is of little comfort to him, since his relevant communications with “Jessy G” occurred in a private chat room.

[43] Likewise, Mr. Levigne’s purported reliance on the fact that the profile of “Jessy G” listed his age as 18.  But as we have already seen (at para.10), “Jessy G” explained to Mr. Levigne that he was in fact only 13, and had indicated on his profile that he was 18 only because he would not otherwise have been permitted to post a profile.

[44] In short, I agree with Berger J.A. (at para. 17) that Mr. Levigne

relies upon indicia of adulthood . . . [that] support neither the reasonableness of [his] belief nor satisfy the requirements of subsec. (4) that for such a defence to carry the day [Mr. Levigne] must have taken reasonable steps to ascertain the age of the person with whom he was communicating. The record here is silent in that regard.

V

[45] For all of these reasons, as stated at the outset, I would dismiss the appeal.

Appeal dismissed.

Solicitors for the appellant:  Pringle & Associates, Edmonton.

Solicitor for the respondent:  Attorney General of Alberta, Edmonton.