SCC strikes down 'reasonable belief' requirement in Criminal Code for child-luring cases

The Supreme Court of Canada today set aside the conviction of a man charged with child luring on the internet and ordered a new trial. The case marked the first time the Supreme Court looked at whether the child-luring provisions of the Criminal Code violated the Charter; the high court decided that it did in declaring the “presumption of belief” regarding age contained in the provisions to be of no force and effect.

“The Supreme Court of Canada affirmed that any law that requires an accused to be found guilty based on unreliable representations over the internet offends the constitution, particularly the presumption of innocence enshrined in s. 11(d)” of the Charter, said Mark Halfyard of Rusonik O'Connor Robbins Ross Gorham & Angelini LLP in Toronto, who acted for the respondent in the case.

“It is not enough that a person was acting reckless or negligent when they did not actually believe they were communicating with an underage child,” Halfyard told Legal Feeds by email. “In those cases, an accused would be entitled to an acquittal.”

The respondent in the case, Douglas Morrison, had posted an ad in the “Casual Encounters” section of Craigslist, entitled “Daddy looking for his little girl — m4w — 45 (Brampton).” A police constable posing as a 14-year-old girl, “Mia,” engaged in conversations with the respondent over a period of two months. 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, which prohibits communicating, by means of telecommunication, with a person who is or who the accused believes is under the age of 16 for the purposes of facilitating the commission of certain designated offences against that person.

At trial, Morrison defended himself in two ways: by testifying that he believed he was communicating with an adult who was role playing and by challenging the constitutionality of three subsections of the child-luring provisions of the Criminal Code. He was convicted at trial on the basis that Morrison did not take reasonable steps to ascertain “Mia’s” age; the conviction was upheld by the Court of Appeal for Ontario. However, both courts concluded that the mandatory minimum sentencing provisions for child-luring crimes were unconstitutional.

So, in R. v. Morrison, the Supreme Court was tasked with answering three questions:

1. does the presumption of belief regarding age, contained in s. 172.1(3) of the Criminal Code, violate the presumption of innocence contained in s. 11(d) of Charter?
2. does s. 172.1(4) of the Criminal Code — which requires that a person take “reasonable steps” to ascertain the age of a person they’re contacting to ensure they are not underage — violate s. 7 of the Charter, which protects the right to life, liberty and security of a person?
3. does the mandatory minimum sentence provision of one year in prison if the Crown proceeds by indictment in a child-luring case, under s. 172.1(2) of the Criminal Code, violate s. 12 of Charter, which protects an individual from cruel and unusual punishment?

In an 8-1 decision, the majority of the Supreme Court answered yes to the first question, striking down this provision of the Criminal Code. But the majority answered no to the second and to the third questions, leaving the question of mandatory minimum sentencing to the trial judge for when the case is retried.

". . . I would dismiss the Crown’s appeal on the s. 172.1(3) issue and Mr. Morrison’s cross-appeal on the s.172.1(4) issue,” wrote Justice Michael Moldaver for the majority. “In my view, the presumption under subs. (3) infringes s. 11(d) of the Charter and cannot be saved under s. 1. Further, I agree with the courts below that subs. (4) does not violate s. 7 of the Charter.”

“However, unlike the courts below, I do not read the reasonable steps requirement under subs. (4), in the absence of the presumption under subs. (3), as providing an independent pathway to conviction. Instead, it simply bars accused persons from raising, as a defence, that they believed the other person was of legal age when they did not take reasonable steps to ascertain the other person’s age.”

Justice Andromache Karakatsanis, in concurring reasons (with Justice Rosalie Abella agreeing), believed that the mandatory minimum sentence should be declared unconstitutional. Section 171.1(2) requires that: “Every person who commits a [child luring] offence . . .  is guilty of (a) an indictable offence and liable to imprisonment for a term of not more than ten years; or (b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.”

The decision is “what we were hoping for, but it didn’t go quite as far as the CLA [Criminal Lawyers’ Association] would have liked,” Daniel Brown, a criminal defence lawyer in Toronto who was co-counsel for the Criminal Lawyers’ Association (Ontario), an intervener in the case, told Legal Feeds.

“We would have liked to have seen the mandatory minimum sentence stuck down,” which the majority “hinted’ might be unconstitutional in its judgment today, he said. “We hoped that this would be the case that put to rest” the mandatory minimum sentence issue, “but that will have to be decided another day,” and likely the Supreme Court, he said.

The case represents “the on-going reams of litigation around the issue of mandatory minimum sentences and the costs to the courts and the litigants,” Halfyard said. There will now have to be further litigation on whether the one-year sentence is constitutional, unless the government acts to pass legislation to repeal these draconian, one-size-fits all measures.”

The Crown was not available to give comment on the decision at press time.