R v. Bogdan Dragos, 2012 ONCA 538

In The Queen v. Bogdan Dragos, the Ontario Court of Appeal upheld convictions for internet luring, sexual interference, invitation to sexual touching, and indecent exposure against a 24 year old man who had sexually explicit online exchanges with a thirteen year old girl (“E.B.”) who claimed to be fourteen.  While E.B. had attempted to act older than she was, the records of their online conversations included statements that could have led the accused to doubt her age.  After seeing his number repeatedly in her phone bills, E.B.’s mother once called the accused, told him her daughter was “way too young,” and warned that she would call the police if she saw his number again.  There was no evidence the accused had made any effort to confirm E.B. was fourteen after this conversation.  In spite of the mother’s warnings, the accused arranged a rendezvous with E.B. in a hotel room, where they engaged in sexual acts but did not have intercourse.  The central issue on appeal was whether the Crown had proved beyond a reasonable doubt that the appellant failed to take sufficient steps in all the circumstances to ascertain E.B.’s age.

The Court held that the “reasonable steps” requirement in Criminal Code provisions concerning sexual offices against children can give rise to positive obligations in some circumstances (Ewanchuk, R v. J.A.).

Broadly, the court holds that the “mistake in age” defense to internet luring in s. 172.1(4) requires the accused to have exercised the same degree of care that a reasonable person would in ascertaining the person’s age.  On the facts of this case, the court holds that the more stringent “due diligence” approach is appropriate.  The court draws a parallel between 172.1(4) and the requirement in 273(2)b that an accused take reasonable steps to ascertain a complainant’s consent before establishing a defense of mistaken belief to sexual assault charges.  The court reasons that the similar language in each provision justifies applying a “due diligence” formulation to both.

Link to Decision

Megan Andrews

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