By Lavinia Inbar
Online Sexual Role-Playing
You’re socially isolating because of the pandemic and getting lonelier by the day. So, you decide to indulge in a little internet sex talk. You connect with someone online and pretty soon the two of you are talking dirty and expressing all sorts of sexual ideas. You exaggerate your sexual exploits and interests and present yourself in a sexy persona that isn’t really like you. After all, this is fantasy and being a regular person who just had a regular job and life in Kingston sounds just too dull. At one point the person you’re talking to suggests that he or she is maybe pretty young, even underage. That’s not what you were looking for but you figure it’s harmless because you’re just talking and you figure that the person is probably adopting a fantasy persona just like you are and is just role-playing. You get drawn in and say all kinds of things to keep the sex talk going and ratchet up the excitement.
Then one day the police are at your door and you are being arrested for a sex crime – child luring. How could you be arrested for what you took to be some harmless online fun? And how do the police even know? Well they know because the person you were sharing sex talk with and who said all those titillating things, was actually an undercover cop. You have been arrested for luring a child but you can’t help but think that you’re the one who was lured. Obviously, this can be risky behaviour. This situation is commonly recounted by clients facing this charge.
The Criminal Code of Canada defines child luring as follows:
Luring a child
172.1 (1) Every person commits an offence who, by a means of telecommunication, communicates with
(a) a person who is, or who the accused believes is, under the age of 18 years, for the purpose of facilitating the commission of an offence with respect to that person under subsection 153(1), section 155, 163.1, 170, 171 or 279.011 or subsection 279.02(2), 279.03(2), 286.1(2), 286.2(2) or 286.3(2);
(b) a person who is, or who the accused believes is, under the age of 16 years, for the purpose of facilitating the commission of an offence under section 151 or 152, subsection 160(3) or 173(2) or section 271, 272, 273 or 280 with respect to that person; or
(c) a person who is, or who the accused believes is, under the age of 14 years, for the purpose of facilitating the commission of an offence under section 281 with respect to that person.
(2) Every person who commits an offence under subsection (1)
(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or
(b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.
Presumption re: age
(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 eighteen years, sixteen years or fourteen years, as the case may be, is, in the absence of evidence to the contrary, proof that the accused believed that the person was under that age.
(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 eighteen years of age, sixteen years or fourteen years of age, as the case may be, unless the accused took reasonable steps to ascertain the age of the person.
2002, c. 13, s. 8 2007, c. 20, s. 1 2008, c. 6, s. 14 2012, c. 1, s. 22 2014, c. 25, s. 9 2015, c. 23, s. 11
Are you Innocent or Guilty?
You protest that you’re innocent; that you didn’t do anything! But if you read this provision in the Criminal Code what you did does fall within the definition of child luring. By means of telecommunication you communicated with a person who you believed was a minor, for the purposes of facilitating one of the offences listed (which are sex offences). But you say that you didn’t actually believe the person to be a minor, that you assumed the person was just assuming a persona for the sake of the sex fantasy role-playing. And you argue that your intention was never to facilitate a sex offence with a child, it was all just pretend and you wouldn’t have gone through with anything like that with an actual minor. That doesn’t help you. Notice that in ss. 172.1(3) and(4) it says that if the person said that he or she was underage you are presumed to have believed it (subsection 3), and that it is no defence that you believed the person to be at least 18 unless you “took reasonable steps to ascertain the age of the person” (subsection 4). Did you take such reasonable steps?
If you cannot successfully defend against this charge, you are going to jail. A non-custodial sentence is not an option for this offence. Even if the Crown finds your case to be at the low end of the spectrum for this kind of offence in terms of seriousness, and chooses to proceed by summary conviction instead of by indictment, the minimum sentence that the judge is permitted by law to give, is six months in jail (s. 172.1 (2)(b)). If the Crown feels that yours is a more serious case of child luring, then the Crown will proceed by indictment and the minimum sentence that the judge is permitted by law to give in that case, is one year in jail. (s. 172.1 (2)(a)). The maximum possible penalty for the offence is 14 years in jail.
No matter how you slice it, child luring charges are serious charges with serious consequences. If convicted you will not only face jail, you will be subject to the requirement to register with and report to both the national and the provincial sex offender registries. (Failing to report, for example if you move, is a criminal offence in itself.) You will have a criminal record that comes with a great deal of social stigma. You will be barred from certain jobs and volunteer work, and will not be able to enter or transit through the U.S.
Important Caselaw: the Morrison Case
If the whole thing strikes you are unfair, it looks like the Supreme Court of Canada (SCC) may agree with you, at least to some extent. A little over a year ago, the SCC decided the case of R. v. Morrison, 2019 SCC 15. Morrison had posted an advertisement online in the “Casual Encounters” section on Craigslist, with the title “Daddy looking for his little girl — m4w — 45 (Brampton).” A police officer, posing as a 14-year-old girl, responded to the ad. In conversations taking place over the span of more than two months, Morrison invited the “girl” to touch herself sexually and proposed that they meet to engage in sexual activity. These communications led to Morrison being charged with child luring.
He lost at trial and was convicted, but on the issue of the mandatory minimum sentence of one year in jail (when the Crown proceeds by indictment) he argued that such a mandatory minimum violated his right not to be subjected to cruel and unusual punishment under s. 12 of the Charter. The trial judge accepted Morrison’s argument with respect to the mandatory minimum and held that provision to be contrary to the Charter (and therefore unconstitutional) and sentenced Morrison to four months in jail plus one year of probation, rather than a year in jail. Keep in mind that this judge is in the lower court and so the finding that the mandatory minimum penalty is unconstitutional is not a decision that is binding across the land. The trial judge disagreed with Morrison that the other provisions were also unfair and violated his rights and freedoms under the Charter.
Morrison appealed to the Court of Appeal of Ontario, but that court mostly agreed with the trial judge. Then the Crown appealed the Court of Appeal’s decision to the SCC and Morrison cross-appealed.
What the SCC Decided
The SCC found that the trial judge had erred in convicting Morrison because the part of the child luring legislation that contains the presumption of age-that when the other person says he or she is underage, in the absence of evidence to the contrary, that is enough proof that the accused believed that the person was a minor–is contrary to the Charter, that is to say is unconstitutional and is a piece of law that should not be followed. The SCC ruled that this subsection of the legislation violated the Charter right to be presumed innocent, in that, by the operation of the subsection, a person could be convicted even if the judge (or jury) had a reasonable doubt about the person’s guilt.
However, the SCC did not find that the “reasonable steps” requirement violated the Charter. But the SCC did find that the lower courts misinterpreted how this requirement should be applied. For the Crown to simply prove that the accused didn’t take reasonable steps wasn’t, on its own, enough to find the individual guilty. The Crown still had to prove beyond a reasonable doubt that the accused believed that the other person was underage.
On the issue of the mandatory minimum sentence, the SCC didn’t decide either way whether or not this part of the legislation violated the Charter and so how a given lower court issue will deal with this part of the law remains uncertain.
The majority of the SCC agreed that Morrison should get a new trial.
What Does All This Mean to You?
How does the Morrison case affect you if you have been charged with child luring in the Kingston area? Each case to a great extent turns on its own facts so your case will not be decided exactly as Morrison’s was. The issue of the reasonable steps requirement in light of how the court decided on the issue of the presumption of age, will be tricky. And whether the judge deciding your case would also find the minimum mandatory sentence to be unconstitutional, remains uncertain. How the local Crowns and judges interpret the Morrison case is going to matter a great deal too.
To mount a defence against such charges you need a lawyer who knows this area of the law and who also knows the local court and its practices.
The criminal law firm of Aitken Robertson has an established presence in Kingston and knows the local courts – the people, the procedures – and the law. The team of lawyers at Aitken Robertson shares a wealth of experience in several areas of criminal law, including child sex offences.
Aitken Robertson’s lawyers offer free half-hour initial consultations, both in person (after the Covid-19 restrictions are lifted) and by telephone. Aitken Robertson’s fees are reasonable and monthly interest-free payment plans are available. You can contact Aitken Robertson through this website or by calling the Kingston office at (613) 531-9099 or by calling toll-free at 1-800-668-1657.