Case information
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41730
W.W. v. His Majesty the King
(Ontario) (Criminal) (As of Right)
(Publication ban in case)
Docket
Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.
| Date | Proceeding | Filed By (if applicable) |
|---|---|---|
| 2025-11-21 | Appeal closed | |
| 2025-11-19 | Transcript received, 37 pages | |
| 2025-11-19 | Formal judgment sent to the registrar of the court of appeal and all parties | |
| 2025-11-19 | Judgment on appeal and notice of deposit of judgment sent to all parties | |
| 2025-11-14 | General proceeding, (Letter Form), Questionnaire | His Majesty the King |
| 2025-11-14 | General proceeding, (Letter Form), Questionnaire | W.W. |
| 2025-11-14 |
Judgment on the appeal rendered, CJ Ka Côt Row Mar Kas Mor, The appeal from the judgment of the Court of Appeal for Ontario, Number COA-23-CR-0124, 2025 ONCA 115, dated February 19, 2025, was heard on November 14, 2025, and the Court on that day delivered the following judgment orally: KASIRER 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. 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. We would not disturb the conviction entered by the Court of Appeal. The 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). The 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” (para. 76). The requisite intent was made out on the findings of facts of the trial judge. We 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). The conviction therefore stands. We would dismiss the appeal. Dismissed |
|
| 2025-11-14 |
Hearing of the appeal, 2025-11-14, CJ Ka Côt Row Mar Kas Mor Decision rendered |
|
| 2025-11-10 | Certificate (on limitations to public access), (Letter Form), 23B, (Printed version due on 2025-11-18) | W.W. |
| 2025-11-10 | Respondent's condensed book, (Book Form), (Printed version filed on 2025-11-12) | His Majesty the King |
| 2025-11-10 | Appellant's condensed book, (Book Form), PUB_BAN, (Electronic version filed on 2025-11-10) | W.W. |
| 2025-10-28 | Correspondence received from, (Letter Form), (Printed version due on 2025-11-04) | Attorney General of Alberta |
| 2025-10-21 | Correspondence (sent by the Court) to, Letter of appearance by zoom | |
| 2025-10-21 | Correspondence (sent by the Court) to, Letter of appearance in person | |
| 2025-10-16 | Correspondence received from, (Letter Form), Detention Status , (Printed version due on 2025-10-23) | W.W. |
| 2025-10-15 |
Notice of appearance, (Letter Form), Joanne Dartana will appear before the Court and will present oral argument. , (Printed version due on 2025-10-22) |
Attorney General of Alberta |
| 2025-10-15 | Correspondence (sent by the Court) to, Letter of direction | |
| 2025-10-14 | Notice of appearance, (Letter Form), Vallery Bayly will appear before the Court and Vallery Bayly will present oral argument., (Printed version due on 2025-10-21) | His Majesty the King |
| 2025-10-14 | Notice of appearance, (Letter Form), Jeffery Couse and Linnea Kornhauser will appear before the Court. Jeffery Couse and Linnea Kornhauser will present oral argument., (Printed version due on 2025-10-21) | W.W. |
| 2025-09-08 | Intervener's factum, (Book Form), Cover Page (Rec'd 2025-09-10), Completed on: 2025-09-08, (Printed version filed on 2025-09-09) | Attorney General of Alberta |
| 2025-08-06 | Certificate of counsel (attesting to record), (Letter Form), 24B, (Printed version filed on 2025-08-08) | His Majesty the King |
| 2025-08-06 | Certificate (on limitations to public access), (Letter Form), 23B, (Printed version filed on 2025-08-08) | His Majesty the King |
| 2025-08-06 | Certificate (on limitations to public access), (Letter Form), 23A, (Printed version filed on 2025-08-08) | His Majesty the King |
| 2025-08-06 |
Respondent's record, (Book Form), (2 volumes), Redacted Version of Vol II of II (Rec'd 2025-08-18) Missing Proof of service- Intervener (Rec'd 2025-08-27), Completed on: 2025-08-07, (Printed version filed on 2025-08-08) |
His Majesty the King |
| 2025-08-06 |
Respondent's factum, (Book Form), Missing Proof of service- Intervener , Completed on: 2025-08-07, (Printed version filed on 2025-08-08) |
His Majesty the King |
| 2025-07-31 | Order on motion for leave to intervene, by JUSTICE MARTIN | |
| 2025-07-31 |
Decision on the motion for leave to intervene, Mar, UPON APPLICATION by the Attorney General of Alberta for leave to intervene in the above appeal; AND THE MATERIAL FILED having been read; IT IS HEREBY ORDERED THAT: The motion for leave to intervene is granted and the intervener shall be entitled to serve and file a factum, not to exceed ten (10) pages in length, and a book of authorities, if any, on or before September 11, 2025. The intervener is granted permission to present oral argument not exceeding five (5) minutes at the hearing of the appeal. The intervener is not entitled to raise new issues or to adduce further evidence or otherwise to supplement the record of the parties. Pursuant to Rule 59(1)(a) of the Rules of the Supreme Court of Canada, the intervener shall pay to the appellant and the respondent any additional disbursements resulting from its intervention. Granted |
|
| 2025-07-31 | Submission of motion for leave to intervene, Mar | |
| 2025-07-10 | Notice of hearing sent to parties | |
| 2025-07-10 |
Appeal hearing scheduled, 2025-11-14 Decision rendered |
|
| 2025-07-08 | Motion for leave to intervene, (Book Form), Completed on: 2025-07-11, (Printed version filed on 2025-07-08) | Attorney General of Alberta |
| 2025-06-11 | Certificate (on limitations to public access), (Letter Form), 24A, (Printed version filed on 2025-06-11) | W.W. |
| 2025-06-11 | Certificate (on limitations to public access), (Letter Form), 23B, (Printed version filed on 2025-06-11) | W.W. |
| 2025-06-11 |
Appellant's record, (Book Form), Volume 2 of 2 Part 3 & 4, Completed on: 2025-06-11, (Printed version filed on 2025-06-11) |
W.W. |
| 2025-06-11 |
Appellant's record, (Book Form), Volume 1 of 2 Part 1 & 2, Completed on: 2025-06-12, (Printed version filed on 2025-06-11) |
W.W. |
| 2025-06-11 | Appellant's factum, (Book Form), Amended version (Rec'd 2025-06-19), Completed on: 2025-06-11, (Printed version filed on 2025-06-11) | W.W. |
| 2025-05-22 | Letter advising the parties of tentative hearing date and filing deadlines (Notice of appeal – As of right) | |
| 2025-05-13 | Order on motion to extend time, by THE REGISTRAR | |
| 2025-05-13 |
Decision on motion to extend time, Reg, UPON APPLICATION by the appellant, W.W., for an order extending the time to serve and file his factum, record and book of authorities, if any, to June 16, 2025; AND THE MATERIAL FILED having been read; IT IS HEREBY ORDERED THAT: The motion is granted. Granted |
|
| 2025-05-13 | Submission of motion to extend time, Reg | |
| 2025-05-08 | Correspondence received from, re: motion to extend time | His Majesty the King |
| 2025-04-14 | Motion to extend time, (Letter Form), to serve and file factum & Record, Completed on: 2025-04-22, (Printed version filed on 2025-04-17) | W.W. |
| 2025-03-28 | Letter acknowledging receipt of a notice of appeal, FILE OPENED | |
| 2025-03-21 | Certificate (on limitations to public access), (Letter Form), 23A & B, (Printed version filed on 2025-03-24) | W.W. |
| 2025-03-21 |
Notice of appeal, (Letter Form), Missing Amended Style of Cause (Rec'd 2025-03-31), Completed on: 2025-03-21, (Printed version filed on 2025-03-24) |
W.W. |
Parties
Please note that in the case of closed files, the “Status” column reflects the status of the parties at the time of the proceedings. For more information about the proceedings and about the dates when the file was open, please consult the docket of the case in question.
Main parties
| Name | Role | Status |
|---|---|---|
| W.W. | Appellant | Active |
v.
| Name | Role | Status |
|---|---|---|
| His Majesty the King | Respondent | Active |
Other parties
| Name | Role | Status |
|---|---|---|
| Attorney General of Alberta | Intervener | Active |
Counsel
Party: W.W.
Counsel
102 Atlantic Avenue, Suite 100
Toronto, Ontario
M6K 1X9
Telephone: (416) 613-0416
FAX: (416) 613-8746
Email: jcouse@lzzdefence.ca
Agent
2600 – 160 Elgin Street
Ottawa, Ontario
K1P 1C3
Telephone: (613) 786-0211
FAX: (613) 563-9869
Email: matthew.estabrooks@gowlingwlg.com
Party: His Majesty the King
Counsel
Crown Law Office - Criminal
10th Floor, 720 Bay Street
Toronto, Ontario
M7A 2S9
Telephone: (416) 326-5922
FAX: (416) 326-4656
Email: vallery.bayly@ontario.ca
Party: Attorney General of Alberta
Counsel
Alberta Crown Prosecution Services
3rd Floor, Bowker Bldg., 9833 - 109 Street
Edmonton, Alberta
T5K 2E8
Telephone: (780) 422-5402
FAX: (780) 422-1106
Email: joanne.dartana@gov.ab.ca
Agent
160 Elgin Street
Suite 2600
Ottawa, Ontario
K1P 1C3
Telephone: (613) 786-8695
FAX: (613) 788-3509
Email: lynne.watt@gowlingwlg.com
Summary
Keywords
Criminal Law —Transmit sexually explicit material to a person under age of 16 for purpose of facilitating commission of sexual assault or indecent act — Elements of offence — Powers of Court of Appeal — Whether Court of Appeal exceeded jurisdiction by allowing appeal and quashing acquittal under Criminal Code, R.S.C. 1985, c. C-46, s. 171.1(1)(b), because alleged errors were errors of fact — Whether Court of Appeal exceeded jurisdiction by substituting conviction for acquittal under s. 171.1(1)(b) based on its own findings of fact.
Summary
Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.
(PUBLICATION BAN IN CASE)
The appellant was acquitted at trial of transmitting sexually explicit material to a person under the age of 16 for the purpose of facilitating the commission of either a sexual assault or the indecent act of exposing his genital organs to a person under 16 years of age for a sexual purpose. The trial judge accepted that the appellant sent sexually explicit material to a minor, but he was left with a reasonable doubt on two elements : the identity of the appellant in a sexually explicit video and the specific intent to transmit the material for the purpose of facilitating the commission of an enumerated offence. The trial judge concluded that the transmission of the material could have been “flirtation” and was left with a doubt as to whether the appellant personally intended to commit one of the enumerated offences.
The Court of Appeal held that the trial judge erred in acquitting the appellant. The Crown was not required to prove the identity of the appellant in the transmitted video, nor was it required to prove that the appellant personally intended to commit one of the enumerated offences. The conduct referred to by the trial judge as “flirtation” is a tool used to facilitate the commission of sexual offences against children. In its view, but for the trial judge’s errors, the appellant would have been convicted. The Court of Appeal set aside the acquittal and entered a conviction.
Lower court rulings
Acquittal entered for the charge of transmitting sexually explicit material to a person under the age of 16.
Appeal allowed; acquittal set aside; conviction entered.
Filed documents
The memorandums of argument on an application for leave to appeal will be posted here 30 days after leave to appeal has been granted unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of the memorandum by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a memorandum of argument or want to use a memorandum of argument, please contact the author of the memorandum of argument directly. Their name appears at the end of the memorandum of argument. The contact information for counsel is found in the “Counsel” tab of this page.
Downloadable PDFs
Not available
Related links
The factums of the appellant, the respondent and the intervener will be posted here at least 2 weeks before the hearing unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of factums by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a factum or want permission to use a factum, please contact the author of the factum directly. Their contact information appears on the first page of each factum.
Downloadable PDFs
Not available
Related links
The condensed books of the appellant, the respondent and the intervener will be posted here upon receipt of the electronic version, 2 days prior to the scheduled appeal hearing. You may also obtain copies of condensed books by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a condensed book or want permission to use a condensed book, please contact the author of the condensed book directly. Their contact information appears on the first page of each condensed book.
Downloadable PDFs
Not available