Background
W.W., a 52-year-old man, was charged under s. 171.1(1)(b) of the Criminal Code, R.S.C. 1985, c. C-46, with transmitting sexually explicit material to a 15-year-old child for the purpose of facilitating the commission of a sexual assault or indecent exposure. He sent the child sexual messages and videos along with expressing a desire to sexually assault her.
At trial, the Ontario Superior Court acquitted W.W. The trial judge was left with a reasonable doubt on the mens rea element of the offence, characterizing the appellant’s sexualized conduct as “flirtatious” and concluding that the Crown had not proved W.W. held the specific intention required to commit one of the enumerated facilitated offences.
The Ontario Court of Appeal set aside the acquittal and entered a conviction (2025 ONCA 115). Writing for a unanimous panel, Fairburn A.C.J.O. held that the trial judge had erred in law both by mislabelling the conduct as flirtatious and by conflating the mens rea of the charged offence with the mens rea of the enumerated offence of indecent exposure. W.W. appealed to the Supreme Court of Canada as of right.
The Court’s Holding
A unanimous Supreme Court of Canada dismissed the appeal and upheld the conviction. Speaking through Kasirer J., the Court confirmed that to obtain a conviction under s. 171.1(1)(b), the Crown need only prove that the accused transmitted sexually explicit material “for the purpose of facilitating” one of the listed offences — it is not necessary to prove the accused intended to actually commit that enumerated offence. Relying on R. v. Legare, 2009 SCC 56, the Court reiterated that “facilitating” means helping to bring about the child’s participation in prohibited conduct by making it easier or more probable, and expressly includes grooming a child by reducing inhibitions or exploiting immaturity.
On the specific facts, the Court agreed with the Court of Appeal that based on the trial judge’s own findings — the explicit sexual messages and materials sent, combined with W.W.’s expressed desire to sexually assault the child — the only reasonable inference was that the conduct the trial judge labelled “flirting” constituted clear evidence of an intention to groom the child. All elements of the offence were made out beyond a reasonable doubt on those findings, making the substitution of a conviction appropriate.
The Court went further to condemn the use of the word “flirtatious” to describe an adult’s sexualized conduct directed at a child. Citing R. v. Friesen, 2020 SCC 9, the Court stated that such language normalizes inherently criminal and abusive behaviour as merely playful or affectionate, and has no place in criminal proceedings involving sexual violence against children. The Court emphasized that a child can never consent to sexual acts committed by an adult, and that an adult’s conduct in this context is not playful but inherently abusive and exploitative and must be described accordingly.
Key Takeaways
- The mens rea for the s. 171.1(1)(b) offence requires only that the accused transmitted sexually explicit material for the purpose of facilitating a listed offence — proof of an intention to actually commit the enumerated offence is not required.
- “Facilitating” under s. 171.1 includes grooming — conduct that reduces a child’s inhibitions or exploits their immaturity to make prohibited sexual conduct easier or more probable.
- Describing an adult’s sexualized conduct toward a child as “flirtatious” is a legal error: it mischaracterizes inherently abusive and exploitative behaviour and has no place in judgments involving child sexual exploitation.
- Where a trial judge’s acquittal rests on an error of law but the factual findings fully support conviction, an appellate court may substitute a conviction rather than order a new trial.
Why It Matters
This decision reinforces the broad protective scope Parliament intended for s. 171.1 of the Criminal Code. By confirming that the Crown need not prove an intent to commit the facilitated offence — only an intent to facilitate it — the Court closes a potential gap that could otherwise allow accused persons to escape liability by claiming they had no firm plan to carry out the underlying sexual offence. The ruling makes clear that grooming behaviour, even at early or incremental stages, satisfies the mental element of the offence.
Equally significant is the Court’s categorical rejection of minimizing language in child sexual exploitation cases. The direction that conduct by adults toward children in a sexual context must be called what it is — abusive and exploitative, never “flirtatious” — sends a strong signal to trial judges across Canada about the framing obligations that accompany Friesen‘s broader mandate to treat sexual violence against children with appropriate gravity.