R. v. W.W.

Unanimous Judgment Read By — Kasirer J.

1Kasirer J. — W.W.’s appeal comes to us as of right. The appellant was acquitted on a charge of transmitting sexually explicit material to a 15-year-old child for the purpose of facilitating the commission of a sexual assault or of indecent exposure pursuant to s. 171.1(1)(b) of the Criminal Code, R.S.C. 1985, c. C-46. The Court of Appeal for Ontario set aside the acquittal and substituted a conviction (2025 ONCA 115, 175 O.R. (3d) 669). Writing for a unanimous court, Fairburn A.C.J.O. held that the trial judge wrongly labelled the appellant’s sexualized conduct as “flirtatious” and, further, that the judge erred in law when he concluded that the Crown had failed to prove the appellant had the specific intention to commit the offence. Based on the trial judge’s findings of fact, the Crown had proved all the elements of the offence. The Court of Appeal overturned the acquittal on this charge and entered a conviction.

2We would not disturb the conviction entered by the Court of Appeal.

3The Court of Appeal was correct in deciding that, in discounting the appellant’s conduct as “merely flirtatious”, the trial judge erred in law by assessing the evidence on a wrong legal principle. To obtain a conviction in respect of the inchoate offence under s. 171.1(1)(b) of the Criminal Code, the Crown had to prove that the appellant transmitted sexually explicit material “for the purpose of facilitating” one or more of the listed offences. It was not necessary to show that the appellant intended to commit one of the enumerated offences. This Court has held that “facilitating” means “helping to bring about” the child’s participation in prohibited conduct by “making [it] easier or more probable” that this will come about. It includes “grooming” the child by reducing their inhibitions or by exploiting their immaturity (see R. v. Legare, 2009 SCC 56, [2009] 3 S.C.R. 551, at para. 28).

4The Court of Appeal was also correct to substitute a conviction, and the court showed the appropriate caution before so doing. Based on the trial judge’s findings of fact, all the required elements of the offence of transmitting sexually explicit material to a child under s. 171.1(1)(b) of the Criminal Code were made out beyond a reasonable doubt. Against the evidentiary backdrop of the explicit sexual messages and materials sent by the appellant and his expressed desire to sexually assault the child, we agree with the Court of Appeal that “the only reasonable inference to be taken . . . is that the conduct referred to by the trial judge as ‘flirting’, whatever he meant by that term, is clear evidence of an intention to groom the child” (at para. 76). The requisite intent was made out on the findings of facts of the trial judge.

5We add the following. Depicting the appellant’s conduct and associated intention as “flirtatious” is a serious mischaracterization for describing the sexualized interaction between an adult — in this case a 52-year-old man — and a child. Insofar as it can serve to normalize an adult’s blameworthy conduct as simply playful, erotic or affectionate, instead of inherently criminal, it has no place in an account of a charge involving sexual violence towards children in our system of criminal justice. It bears recalling that a child can never consent to acts of a sexual nature committed by an adult. An adult’s conduct in this connection is not playful but inherently abusive and exploitative and should be properly described as such (see R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 147).

6The conviction therefore stands. We would dismiss the appeal.