Internet Sex Crimes: Further Development on the Interpretation on s. 172.1 of the Criminal Code
In R. v. Levigne, 2010 SCC 25, the SCC further developed the interpretation of s. 172.1 of the Criminal Code, which is the inchoate offence of luring a child over the internet. At issue was the interpretation of ss. 172.1(3) and (4). Subsection (3) creates a rebuttable presumption that the person represented to the accused as being underage is underage, while subsection (4) provides the accused with the defence that he or she thought the person was not underage as long as the accused took reasonable steps to ascertain the person’s age. Writing for the unanimous SCC, Fish J. upheld Levigne’s conviction on the basis that the trial judge erred in his interpretation of the combined effect of subsections (3) and (4) on the elements of the offence.
This uncontroversial decision is a worthwhile read based on the precedent that it sets in regards to the nature of the accused’s evidentiary burden in rebutting the presumption in subsection (3).
Illegal Internet Chat
Michell Ryall Levigne, a 46 year old man, engaged in a series of internet chats with “Jessy G” (JG), a person whom he allegedly thought was a 13 year old boy. In fact, a police officer was posing as JG. During these chats with the officer, Levigne expressed his desire to perform oral sex on JG. Levigne was arrested and charged with internet luring pursuant to s. 172.1(1)(a) and (c) after he attempted to meet JG at a restaurant. Although JG informed Levigne on numerous occasions that he was 13 years old, Levigne testified that he did not believe that JG was 13 years old because JG’s online profile stated that he was 18 years old. Levigne admitted that he did not take any steps to ascertain the real age of JG, and thus did not rely on the defence in subsection (4). Clackson J. acquitted Levigne on both counts based on his interpretation of subsections (3) and (4).
Fish J. wrote the decision in R. v. Legare, 2009 SCC 56, which is the leading precedent on s. 172.1. My colleague Benjy Radcliffe provided an analysis of that case here. Writing for the unanimous SCC, Fish J. held that there are three elements to the offence in s. 172.1: (i) an intentional communication by computer; (ii) with a person whom the accused knows or believes to be underage; and (iii) for the specific purpose of facilitating the commission of a specified secondary offence with respect to the underage person. Fish J. built upon this foundation to find that Clackson J. erred in two respects.
First, Clackson J. erred by allowing the presumption in subsection (3) to be rebutted on the basis that it was possible Levigne believed he was chatting with an adult who was representing himself as a 13 year old. He came to this conclusion based on his interpretation of the phrase “evidence to the contrary” in the provision. According to subsection (3),
[e]vidence that the person referred to in paragraph (1)(a), (b) or (c) 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.
Clackson J. relied upon case law that interpreted “evidence to the contrary” to mean that exculpatory evidence “must tend to show, but… need not prove” that Levigne actually believed that JG was at least 18 years old. The fact that the online profile stated that JG was 18 was of enough “probative value” to rebut the presumption. Clackson J. also added that Levigne was not reckless or wilfully blind as to the truth.
Second, Clackson J. erred by holding that subsection (4) did not apply because Levigne’s belief that JG was 18 years old was not put forward as a defence. Pursuant to (4),
[i]t is not a defence to a charge under paragraph (1)(a), (b) or (c) that the accused believed that the person referred to in that paragraph was at least eighteen years of age, sixteen years or fourteen years of age, as the case may be, unless the accused took reasonable steps to ascertain the age of the person.
Clackson determined that because Levigne’s belief was not put forth as a defence, it is “an essential element of the offence…which must be proved by the Crown beyond a reasonable doubt”. In other words, Clackson recast Levigne’s belief as another element of the actus reus that had to be proved.
The Correct Interpretation
Having set out Clackson’s errors, Fish J. determined that subsections (3) and (4) have a combined effect. The two subsections have a mutual influence on the interpretation of each other. In regards to Clackson’s first error, the presumption can only be rebutted the where the “evidence to the contrary” as required in subsection (3), includes evidence the accused took reasonable steps to ascertain the real age of the other person. Note how the requirement of “reasonable steps” comes from subsection (4). By including a “reasonable steps” requirement, Clackson J.’s liberal expansion of subsection (4) to include mistaken belief, is foreclosed as a defence.
In regards to Clackson’s second error, Fish J. held that judges should not recast the components in the offence’s three elements so to increase the mens rea and actus reus requirements. The prosecution does not have to prove the other person was actually underage, otherwise the purpose of s. 172.1 as a inchoate offence that captures otherwise legal conduct meant to culminate in the commission of an actual crime, would be undermined.