Supreme Court concludes you don’t necessarily believe what people tell you on the Internet.

The Supreme Court of Canada struck down portions of the child-luring provisions with its decision in R v Morrison. The accused was charged with child luring for the purposes of inviting sexual touching of a person under age 16, contrary to ss 172.1(1)(b) and 152 of the Criminal Code. That section, the Court noted, 

40…creates an essentially inchoate offence — that is, a preparatory crime that captures conduct intended to culminate in the commission of a completed offence: see Legare, at para. 25; R. v. Alicandro, 2009 ONCA 133, 95 O.R. (3d) 173, at para. 20, citing A. Ashworth, Principles of Criminal Law, (5th ed. 2006), at pp. 468-70. There is no requirement that the accused meet or even intend to meet with the other person with a view to committing any of the designated offences: see Legare, at para. 25. The offence reflects Parliament’s desire to “close the cyberspace door before the predator gets in to prey”: para. 25.

The accused had posted an advertisement on Craigslist saying “Daddy looking for his little girl”, which was responded to by a police officer who posed as ‘Mia,’ a 14-year-old. Over the course of more than two months, Morrison invited ‘Mia’ to touch herself sexually and proposed they engage in sexual activity. As a result he was charged with the child luring offence, and defended himself on the basis that he believed he was communicating with an adult female engaged in role play who was determined to stay in character: as he said to the police when arrested, “on the internet, you don’t really know whether you’re speaking to a child or an adult”. However, that statute affected his ability to make that argument. 

The offence in section 172.1(1)(b) requires proof that the communication took place with a person who is or who the accused believes is under the age of 16 years. Section 172.1(3) creates a presumption around that belief: 

(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 … sixteen years … is, in the absence of evidence to the contrary, proof that the accused believed that the person was under that age.

In addition, section 172.1(4) imposes a further burden on the accused in that same regard: 

(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 … sixteen years …unless the accused took reasonable steps to ascertain the age of the person.

Taken in combination, these provisions mean that if the other person is represented as being under 16, then the accused must show evidence to the contrary that he believed that representation, and that evidence to the contrary must include the taking of reasonable steps. As a result

[49]…the combined effect of subss. (3) and (4) is to create two pathways to conviction where the other person is represented as being underage to the accused: the Crown must prove that the accused either (1) believed the other person was underage or(2) failed to take reasonable steps to ascertain the other person’s age. In the context of child luring cases involving police sting operations, such as in Levigne, where it can be assumed that the undercover police officer posing as a child will represent that he or she is underage, these two pathways to conviction would have been available to the trier of fact.

The accused challenged the constitutionality of both sections 172.1(3) and 172.1(4). In addition he challenged the constitutionality of the mandatory minimum sentence in section 172.1(2)(a). 

The Court concluded that the presumption that a person who was told someone was under sixteen therefore believed that that person was under sixteen violated the Charter, specifically the presumption of innocence in section 11(d). It is well-established that the substitution of proof of one thing (the accused was told she was under sixteen) for proof of another thing (the accused believed she was under sixteen) will violate section 11(d) unless the connection from one to the other is “inexorable”: that is, “one that necessarily holds true in all cases” (para 53). That could not be said of a communication on the internet:

[58] Deception and deliberate misrepresentations are commonplace on the Internet: see R. v. Pengelley, 2010 ONSC 5488, 261 C.C.C. (3d) 93, at para. 17. As the Court of Appeal in this case aptly put it:

There is simply no expectation that representations made during internet conversations about sexual matters will be accurate or that a participant will be honest about his or her personal attributes, including age. Indeed, the expectation is quite the opposite, as true personal identities are often concealed in the course of online communication about sexual matters. [para. 60]

Accordingly the Court found that section 172.1(3) violated section 11(d), and they went on to conclude that it could not be saved by section 1. They held that although the goal of protecting children from Internet predators was sufficiently important, the provision was not minimally impairing, because it would be sufficient to “rely on the prosecution’s ability to secure convictions by inviting the trier of fact to find, based on a logical, common sense inference drawn from the evidence, that the accused believed the other person was underage.”

The majority did not, however, strike down the “reasonable steps” requirement in section 172.1(4), holding that as it required proof of “belief”, it set a high mens rea standard (which excluded recklessness) and did not violate section 7. (Justice Abella, in a concurring judgment, would also have concluded that section 172.1(4) was unconstitutional.) The majority also declined to decide whether the mandatory minimum sentence was unconstitutional or not, preferring to have that issue argued at the retrial they ordered. Justice Karakatsanis, writing a concurring judgment, would have struck down the mandatory minimum.