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CRIMINAL CODE OFFENCES - Offences tending to corrupt morals - Communication with a child by computer in order to commit an offence (luring)

Friday, March 15, 2019 @ 1:05 PM  


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Appeal and cross-appeal from a judgment of the Court of Appeal for Ontario affirming the conviction entered and the sentence imposed to Morrison for the charge of child luring. Morrison posted an advertisement online, and a police officer, posing as a 14-year-old girl named Mia, responded. In conversations, Morrison invited Mia to touch herself sexually and proposed that they meet to engage in sexual activity. These communications led to Morrison being charged with child luring under s. 172.1(1)(b) of the Criminal Code. Morrison challenged the constitutionality of three subsections of the child luring provisions, namely s. 172.1(2)(a), (3), and (4) which respectfully prescribed a mandatory minimum sentence, created a presumption and barred an accused from raising a defence.  The trial judge found that the presumption under subsection (3) violated the presumption of innocence, found that subsection (4) was constitutionally valid and concluded that Morrison had failed to take reasonable steps to ascertain Mia’s age. He entered a guilty verdict, sentenced Morrison to four months’ imprisonment and probation for a year. He held that the mandatory minimum sentence under subsection (2)(a) was of no force or effect. The Ontario Court of Appeal upheld Morrison’s conviction and sentence and each of the trial judge’s conclusions on the three constitutional questions.

HELD: Appeal and cross-appeal allowed in part. The combined effect of subsections (3) and (4) was to create two pathways to conviction for the offense of child luring. The Crown had to prove that the accused either believed the other person was underage or failed to take reasonable steps to ascertain the other person’s age. The approach to assessing reasonable steps was a highly contextual one, in light of the fact that the communication was taking place on the Internet. The presumption under s. 172.1(3) offended s. 11(d) of the Canadian Charter of Rights and Freedoms (Charter). Where a representation of age was made online, the trier of fact could still be left with a reasonable doubt at the close of the Crown’s case as to whether the accused believed the other person was underage. A proof of a representation as to age did not lead inexorably to the existence of the essential element that the accused believed the other person was underage. The Crown also failed to establish that, absent the presumption, the child luring provision could not operate effectively. There was but one pathway to conviction: proof beyond a reasonable doubt that the accused believed the other person was underage. The main effect of subsection (4) was to impose an evidentiary burden on the accused regarding reasonable steps where the accused asserted he or she believed the other person was of legal age. Because an accused could not be convicted merely for failing to establish a defence, s. 172.1(4) did not infringe s. 7 of the Charter. No situation in which an accused could be convicted on the basis of simple negligence was created. In the context of a police sting where there was no underage person, the Crown had to prove beyond a reasonable doubt that the accused believed the other person was underage or was wilfully blind as to whether the other person was underage. The defence that the accused believed the other person was of legal age had an air of reality only if the trier of fact could find, on the evidence, that the accused took steps capable of amounting to “reasonable steps” in the circumstances to ascertain the other person’s age and that the accused honestly believed the other person was of legal age. Where an accused had failed to take reasonable steps, the trial judge had to instruct the jury that the accused’s evidence that he or she believed the other person was of legal age could not be considered in determining whether the Crown had proven its case beyond a reasonable doubt. To support a conviction, the Crown had to prove beyond a reasonable doubt that Morrison believed Mia was under 16. The trial judge found that it did not. Accordingly, Morrison’s conviction could not stand. Considerations of fairness favored a new trial, one that was conducted using a correct legal framework. The Court declined to rule on whether the mandatory minimum sentence under s. 172.1(2)(a) infringed s. 12 of the Charter.

R. v. Morrison, [2019] S.C.J. No. 15, Supreme Court of Canada, R. Wagner C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, C. Gascon, S. Côté, R. Brown, M. Rowe and S.L. Martin JJ., March 15, 2019. Digest No. TLD-March112019012-SCC