Online communications are inherently unreliable for two predominant reasons.  First, a computer screen and the power of the internet affords individuals an anonymity so great that they are able to adopt any persona they choose.  Secondly, the internet moves at an incredibly rapid pace, allowing many online interactions to occur undetected.  Together, this has inadvertently provided predators the opportunity to connect with children and groom those children for the purpose of sexual abuse. To provide a glimpse of what occurs in an internet minute, here is a non-exhaustive overview of the transactions that occur every 60 seconds online:

25,000 gifs sent via Messenger;
481,000 tweets sent on Twitter
1.1 million swipes on Tinder;
2.5 million Snapchats created;
18 million iMessages sent;
38 million WhatsApp messages sent; and
187 million emails sent.[1]

Accordingly, Parliament has criminalized electronic communication with children for the purposes of facilitating sexual encounters.  Section 172.1 of the Code criminalizes communication with children for the purposes of facilitating the commission of other sexual offences, including sexual interference.  Parliament added an additional subsection which creates the presumption that an accused person is aware they are speaking with a child if the person they are speaking with has indicated in some form that they are a child (section 172.1(3)).  This presumption is rebuttable with evidence that an accused person took “reasonable steps” to ascertain that the person to whom they were speaking was not a child (section 172.1(4)).

In R v Morrison, 2019 SCC 15 (“Morrison”), the accused was charged with child luring after unknowingly communicating with the police online who were posing as a 14 year old girl named “Mia”.  The accused had posted an online advertisement in the “Casual Encounters” section of Craigslist entitled “Daddy looking for his little girl – m4w – 45 (Brampton)”.  In the advertisement, the accused stated that he was interested in younger girls.  As “Mia”, the police contacted the accused.  The accused initiated sexual conversations with “Mia”, invited her to touch herself sexually, and eventually proposed that they meet to engage in sexual activity. 

As a result, the accused was charged with child luring.  During his trial, the accused testified that he believed he was talking to an adult woman who was pretending to be a 14 year old girl.  The accused brought three Charter challenges with regard to the child luring provisions of the Code before the court:

1)    Section 172.1(3) of the Code presumes that if an individual tells another individual that they are underage, the listener believes that the speaker is underage.  The only exception is if there is evidence disbelief.  The accused argued that this presumption violates an accused’s right to be presumed innocent under section 11(d) of the Charter;

2)    The Code states in section 172.1(4) that an accused will not be found guilty if they honestly believed that the person to whom they were speaking was of legal age, even if that belief was incorrect.  However, this defence can only be advanced if the accused took “reasonable steps” to ascertain the age of the person to whom they were speaking.  The accused argued that this violates basic principles of fundamental justice outlined in section 7 of the Charter; and

3)    Lastly, the accused argued that the mandatory minimum penalties under section 172.1(2)(b) of the Code – which prescribes a mandatory minimum sentence of one year imprisonment where the Crown proceeds by indictment - violates the section 12 Charter protection against cruel and unusual punishment.

Morrison marks the first time that the Supreme Court has reviewed whether or not the child luring provisions in the Code violate the Charter.  Ultimately, the Supreme Court determined that the “presumption of belief” regarding age as outlined in section 172.1(3) of the Code infringed section 11(d) of the Charter and could not be saved by section 1, thereby rendering section 172.1(3) of the Code of no force and effect. 

All of the Supreme Court justices agreed that just because an individual is told something does not mean that they believe what they have been told.  This makes sense in light of the fact that people are not always honest, particularly in the context of electronic communication given the potential for deception that the anonymity of the internet provides.  In Morrison the court held that the mere fact that a representation of age was made to the accused does not lead inexorably to the conclusion that the accused believed that representation, even absent evidence to the contrary.  Despite this, Morrison’s belief that “Mia” was underage would be established by virtue of section 172.1(3) of the Code, given the presumption contained therein.  As such, section 172.1(3) allowed for an accused to be convicted even if the judge or jury had a reasonable doubt regarding the accused’s belief that the person to whom they were speaking was underage.  This of course violates the presumption of innocence.  The Supreme Court affirmed that any law which requires an accused to be found guilty based on unreliable representations made over the internet offends section 11(d) of the Charter.    

The Supreme Court further determined that sections 172.1(2)(a) and 172.1(4) of the Code do not infringe the Charter.  With respect, however, the reasoning that the majority expressed in its analysis, specifically with regard to section 172.1(4), does not seem to align with long established case law respecting the defence of honest but mistaken belief. 

The requirement to take reasonable steps under section 172.1(4) limits the accused’s ability to rely on the defence of mistake of fact as section 172.1(4) prevents the accused from availing themselves of the defence of mistaken belief in age unless the accused has taken all reasonable steps to ascertain the age of the communicant.  However, mistake of fact is not a true “defence” but rather a reasonable doubt as to mens rea.  Subjective mens rea may be negated by an honest mistake, while objective mens rea may only be negated by an honest and reasonable mistake.[2]  Acknowledging that section 172.1(4) affects the mens rea of the offence aligns with the interpretation of analogous limits elsewhere in the Code which also inject objectivity into the fault element of the offence with respect to mistaken belief (see sections 150.1(4) and 273.2(b) of the Code).  The majority’s treatment of “belief” as an essential element of the offence of child luring being distinct from the defence of mistaken belief is perplexing as are the ramifications of this interpretation on other offences with “reasonable steps” defences.

It is undoubtedly timely that the Supreme Court has taken the opportunity to review the child luring provisions of the Code given the ever-increasing utilization of electronic communication.  While the Supreme Court in Morrison has taken a step in the “just” direction by striking down the presumption of belief as outlined in section 172.1(3) of the Code (good riddance), the decision is problematic with regard to the required mens rea to establish the offence of child luring as well as the broader implications on other offences with “reasonable steps” defences.

[1] Note: These numbers are current as of May 14, 2018.  Trends from the past three years indicate that each of these numbers would be higher today.  Jeff Desjardins, What Happens in an Internet Minute in 2018? (14 May 2018).

[2] K. Roach, Criminal Law (7th ed. 2018), at pp. 18-19 and 202-204.

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