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CONSTITUTIONAL ISSUES - Canadian Charter of Rights and Freedoms - Legal rights - Life, liberty and security of person - Presumption of innocence - Protection against cruel and unusual punishment

Friday, September 01, 2017 @ 8:38 AM  

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Appeal by Morrison from his conviction for child luring by means of a computer pursuant to s. 172.1(1)(b) of the Criminal Code and from the trial judge’s decision regarding the constitutionality of ss. 172.1(3) and (4) of the Criminal Code. Appeal by the Crown from the sentence imposed on Morrison and from the trial judge’s finding that the mandatory minimum sentence under s. 172.1(2)(a) of the Criminal Code was unconstitutional. Morrison posted a personal ad online and had conversations with a person, who was in fact a police officer, but who claimed to be a 14-year-old girl, during which Morrison suggested the “girl” should touch herself. Morrison argued he thought he was participating in sexual role-play with an adult female, as the website required participants to be 18 years of age or older, but he was convicted of child luring by means of a computer. At trial, Morrison brought two applications contending that s. 172.1(3) (presumption of belief) and s. 172.1(4) (reasonable steps requirement) infringed ss. 11(d) and 7 of the Canadian Charter of Rights and Freedoms (Charter). Morrison also argued the mandatory minimum punishment of one year’s imprisonment in s. 172.1(2)(a) infringed s. 12 of the Charter. The trial judge held that the reasonable steps requirement was constitutionally valid, but that the presumption of belief infringed the right to be presumed innocent under s. 11(d) of the Charter. He found that the infringement was not justified under s. 1 of the Charter and refused to apply s. 172.1(3) of the Code. However, the trial judge concluded the Crown had proven the elements of the child luring offence even without the benefit of the impugned provision. He was satisfied beyond a reasonable doubt that Morrison did not take reasonable steps to ascertain the person’s age during the communications over the internet. The trial judge also held that the mandatory minimum sentence was grossly disproportionate, contrary to s. 12 of the Charter, and refused to apply it. He sentenced Morrison to 75 days’ intermittent imprisonment, one year’s probation, a 20-year Sex Offender Information Registration Act (SOIRA) order and an order excluding Morrison for three years from attending public parks and other places children would be present. Morrison appealed, submitting that the presumption of belief and reasonable steps requirement in s. 172.1 of the Criminal Code unjustifiably infringed ss. 11(d) and 7 of the Charter and that the verdict was unreasonable. The Crown appealed the trial judge’s conclusion on s. 12 of the Charter and the sentence imposed. The Crown argued that the mandatory minimum one-year sentence in s. 172.1(2) was constitutional and that the trial judge should have imposed a greater sentence.

HELD: Appeals dismissed. The trial judge’s conclusions regarding the constitutionality of the impugned Criminal Code provisions were correct. The Court was not persuaded that the presumption of belief was a minimally intrusive means for achieving the state’s objective or that it was proportionate. The absence of the presumption would not have undermined the prosecution of the child luring offence. The Court was not persuaded that the salutary effects of limiting s. 11(d) of the Charter by means of the presumption of belief in the provision outweighed the deleterious effects of the limitation. The reasonable steps requirement in s. 172.1(4) did not infringe s. 7 of the Charter. The moral culpability associated with failing to take reasonable steps to ensure that one’s online communications did not amount to sexual predation of children was proportionate to the degree of stigma attached to the child luring offence. This was the central ground Morrison advanced to interfere with the trial judge’s decision to convict him for failing to take reasonable steps to ascertain the other person’s age beyond a reasonable doubt. Therefore, Morrison’s appeal from his conviction was dismissed. The disparity between the one-year mandatory minimum and what would have been otherwise a fit and appropriate sentence for Morrison was sufficient to meet the high bar of gross disproportionality under s. 12 of the Charter. Morrison was culpable only for having acted unreasonably in failing to take steps to ensure that the other person was not underage. Communication online with an adult for a sexual purpose was not in itself a crime. Although his communications persisted for some two months, it could not be said that he knowingly embarked on a systematic process of grooming a young person for sexual activity or to facilitate commission of a sexual assault that would merit a substantial sentence of imprisonment well above the four months he received. There was never any face-to-face encounter and, as the trial judge found significant, there was no indication Morrison intended to commit a physical sexual offence in relation to an underage child. He eventually ended his communications unilaterally. Morrison was in his late sixties, a productive member of society and had no criminal record. No actual harm resulted from Morrison’s transgression. Canadians would have found it abhorrent and intolerable to their sense of decency that offenders whose blameworthiness came close to negligence or whose comparative blameworthiness was similarly less serious would be sentenced to a minimum of one year in jail. The Crown did not attempt to justify any s. 12 infringement under s. 1 of the Charter. The mandatory minimum sentence of one year of imprisonment was therefore of no force or effect. Sentence: 75 days’ intermittent imprisonment; one year’s probation; 20-year SOIRA order; 3-year prohibition from attending public parks and other places children would be present; Criminal Code, s. 172.1.

R. v. Morrison, [2017] O.J. No. 3600, Ontario Court of Appeal, D. Watt, K.M. van Rensburg and G.I. Pardu JJ.A., July 10, 2017. Digest No. TLD-August282017012