The fault standard in luring offences

This morning, the Supreme Court of Canada published a major decision regarding the fault standard for the offence of “luring” a minor under Section 172.1 of the Criminal Code. The offence of “luring” prohibits the act of speaking with someone online who presents themselves as being younger than the age of consent with the goal of the communication being to have some kind of sexual encounter. The Crown needs to prove three things to achieve a conviction:

 

1. an intentional communication by means of telecommunication (phone or Internet);
2. with a person who is, or who the accused believes is, under the requisite age;
3. for the purpose of facilitating the commission of a designated offence with respect to that person.

 

As the offence currently stands, if the Crown provides evidence that the “underage” person 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. This means that if anyone represents to the Accused person that the person they are speaking with is underage, the Accused person is presumed to believe it unless they can provide proof that they did not believe it.

In Mr. Morrison’s case, the trial judge had a reasonable doubt about whether or not Mr. Morrison actually believed that “Mia” was underage. Basically, the Crown was unable to prove that Mr. Morrison believed that she was under the age of 18 years old when he sent the sexual messages to her. However, the trial judge still convicted Mr. Morrison because he had not taken any reasonable steps to ascertain “Mia”’s age.

Presumption of belief is unconstitutional

In Mr. Morrison’s case, the trial judge had a reasonable doubt about whether or not Mr. Morrison actually believed that “Mia” was underage. Basically, the Crown was unable to prove that Mr. Morrison believed that she was under the age of 18 years old when he sent the sexual messages to her. Mr. Morrison himself testified that he believed that she was an adult woman engaged in age-based roleplay. Mr. Morrison also argued that the presumption that he believed “Mia” was underage based on being told that she was 14 years old was unconstitutional.

The SCC agreed with Mr. Morrison, and found that to presume that an Accused person believes the other person is underage unless they can prove that they didn’t violate the Accused’s right to a presumption of innocence. The Court wrote at paragraph 57 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. In other words, just because someone has said that they are underage, does not mean the person they are speaking with can be presumed to have believed the claim. The Court notes that many of the claims people make about each other online are false and rooted in deception and that it is not necessarily a place where people believe each other’s representations, including regarding age. As the saying goes, on the Internet, nobody knows you’re a dog.

With the presumption contained in the Criminal Code being found unconstitutional, the Crown’s burden of proof is raised, and the Crown needs to prove beyond a reasonable doubt that the Accused person believed that the person they were communicating with was underage or was willfully blind as to their age. If the Accused person is taking a risk and does not know whether they are talking to someone underage or not, that will not be enough to ground a conviction. The inclusion of the willful blindness fault standard is important because it means that where the Accused person has a suspicion that the person they are speaking with is underage but deliberately chooses not to try to find out, they are equally at fault as if they knew the person to be underage. However, willful blindness is still difficult to prove. In many cases, it will be much more difficult for the Crown to provide the evidence necessary to ground a conviction than it was prior to Morrison.

The meaning of “reasonable steps” is clarified

Where the Court disagreed with Mr. Morrison was in his argument that the requirement to take reasonable steps to “Mia”’s age was similarly contrary to the principles of fundamental justice. Instead, the Court took the opportunity to clarify the law.

In order to raise the defence, the Accused person needs to provide some evidence that they took reasonable steps and honestly believed that the other person was of legal age. The Crown needs to disprove the defence beyond a reasonable doubt. After those two stages take place, the trial judge still needs to decide whether or not the Crown has proven belief in age beyond a reasonable doubt. The Court offered some examples of reasonable steps that could ground an honest (even if mistaken) belief that the person the Accused person was communicating with was of legal age:

 

• asking for the other person’s age and receiving a response indicating that they are of legal age;
• noting the other person’s representation (after asking or not) that they are of legal age;
• asking for and receiving proof of identification indicating that the other person is of legal age;
• communicating through a website that enforces age restrictions;
• in the case of a personal ad, including language that indicates that the Accused is only looking to speak with adults.

 

It is important to note that in this case, Mr. Morrison did not take any of these above-noted steps and that he was aware that Craigslist’s age restriction was not actually enforced by the website. He did not take reasonable steps. His matter was only sent back for trial because Crown had failed to prove beyond a reasonable doubt that he believed that “Mia” was underage. In order to succeed in this defence, whatever steps the Accused took need to be “reasonable” at a bare minimum.

What does this mean for luring investigations?

Before this ruling came out, courts could ground a conviction based on either the Accused’s subjective belief that the person they were messaging was underage or on the Accused’s failure to take reasonable steps regarding the other person’s age. This was broad enough that all that an investigator needed to do in order to provide evidence to ground a charge or conviction would be to message someone in a sexual manner and at some point indicate that they were under the age of consent. If the Accused person persisted in messaging them for a sexual purpose, then they could be convicted of luring. This is also how Creep Catchers does their investigations, by posing as teenagers or children online and setting up meetings with adults who do not realize that they are under investigation. Creep Catchers then films the encounters and often performs a citizens’ arrest, at which point they call the police.

The Morrison ruling could render many of Creep Catchers’ investigations fruitless, as the Crown will no longer be able to secure a conviction if they cannot prove both subjective belief and lack of reasonable steps taken. Whether a conviction is possible will vary widely based on the Accused person and the interactions they had with the police officer or Creep Catchers. Police departments will be able to consult with Crown Counsel for guidance on how to proceed going forward; Creep Catchers will not be able to obtain such advice and the effectiveness of their investigations will suffer. Under the new Morrison framework, although a conviction for luring will not be impossible to achieve, it will be much more difficult.