January 7th, 2010
The Supreme Court of Canada’s (“SCC”) recent decision in R v Legare,  3 SCR 551 [Legare] finally gives true efficacy to Parliament’s Bill C-22 and the Criminal Code, RSC, 1985, c C-46 [Criminal Code] amendment to combat child luring. By denying the defense that there had been no intention to commit the underlying offence and by prosecuting any facilitative behaviour, s. 172.1 fortunately and finally regains its teeth. This broad interpretation of s. 172.1 of the Criminal Code places Canada at the forefront of nations attempting to stop the online exploitation of children under 18. While the facts of the case have been discussed before, a brief recap may be helpful.
In 2003, Craig Bartholomew Legare engaged in two sexually explicit online conversations with a 12 year old girl in Ontario. After passing himself off as a 17 year old, he asked the girl whether she was 14, to which she replied she was 13. Following the second conversation, the complainant gave Legare her phone number, and he called her twice for the purpose of “dirty talk.” After Legare made a sexually suggestive comment, the complainant ended the conversation.
At trial, Legare was charged under s. 172.1 of using a computer system for the purpose of facilitating the secondary offence of invitation of sexual touching. Legare’s defense was that he was simply talking dirty to the girl and nothing else. He had made no attempt to meet the girl and indeed never did. While the trial judge found his behaviour “both despicable and repugnant,” it was held that in order to be guilty of “facilitating” the underlying offences, there must be an intention to actually lure the girl in order to commit one of those offences. Since Legare had merely engaged in dirty talk and never intended to commit the underlying offence of invitation to touching, he could not be found to be in violation of s. 172.1.
However the Court of Appeal held that the trial judge erred in adopting an unduly narrow interpretation of s. 172.1, and by requiring a finding of present intention to commit the underlying offence. A new trial would be necessary to make findings of whether the accused had the requisite actus reus and mens rea under a proper interpretation of s. 172.1.
In writing for a unanimous court, Justice Fish first considers s. 172.1(1)(c), which states:
172.1 (1) Every person commits an offence who, by means of a computer system within the meaning of subsection 342.1(2), communicates with;…
(c) a person who is, or who the accused believes is, under the age of fourteen years, for the purpose of facilitating the commission of an offence under section 151 [sexual interference] or 152 [invitation to touching], subsection 160(3) [bestiality] or 173(2) [exposure of genitals] or section 281 [abduction] with respect to that person.
Justice Fish notes that s. 172.1 creates an “inchoate” offence that targets otherwise legal conduct meant to culminate in the commission of the offence. The conduct that precedes the commission of the offence is criminalized, regardless of whether there is an intention to commit an underlying secondary offence. The provision targets behaviour that facilitates by helping bring about, or by making more probable, the commission of an underlying offence. The evidence must establish that the accused communicated by computer with the underage victim for the purpose of facilitating an underlying offence. While sexually explicit conversations may facilitate such offences by reducing a victim’s inhibitions, so too may innocuous conversations for the purpose of gaining the trust of the victim.
Accordingly, s. 172.1(1)(c) is comprised of three elements: (1) an intentional communication by computer (2) with a person the accused knows or believes to be under 14 years of age (3) for the specific purpose of facilitating the commission of the specified secondary offence. Since the trial judge did not make findings of fact with regard to the above elements, the Court ordered a new trial.
By focusing on Parliament’s objective to “close the cyberspace door before the predator gets in to prey,” Legare‘s emphasis is whether the purpose of the impugned communication is to facilitate the commission of a secondary offence regardless of whether that offence actually results. As Justice Fish notes, there need not be physical contact between an accused and a victim, nor must their impugned communication be sexually explicit to trigger the provision. If, however, the communication is for the purpose of making it more likely or probable that a secondary offence may result, that communication will violate s. 172.1(1)(c).
While many may instinctively oppose the creation of inchoate offences which criminalize otherwise legal behaviour, it is difficult to argue that there exists any social utility in the type of conduct Legare is found to have engaged in. Such “despicable and repugnant” actions are morally reprehensible and should attract punitive sanction in order to help prevent serious harm being done to victims.[filed: Legare (2009)]