R. v. Legare: Erect Fences, Don’t Tear Them Down
The Supreme Court of Canada has recently announced it will hear Craig Bartholomew Legare v. Her Majesty the Queen on October 15, a week from today. The case concerns a 32 year old male who was charged with luring a child by means of a computer system and of an invitation to sexual touching. The complainant was 12 years old. This case is important not only in defining the scope of the relevant legislation, but also in providing a necessary protection to a socially vulnerable group.
We have witnessed an explosion of social activity and networking through the internet over the past ten years. Millions of users have joined social websites such as Facebook and MySpace, while countless others continue to use instant messaging tools such as Microsoft Messenger and AOL Instant Messenger to keep in touch. While such technological advances have many benefits, the dangers that have been created are prevalent and very real. Concerns over privacy, bullying and exploitation are all growing. Yet as technology moves ahead by leaps and bounds, the law stumbles to keep up.
For example, in United States v. Drew, a suburban mom was charged after posing as an adolescent boy on MySpace in order to torment one of her daughter’s peers. Within a hour of Drew breaking off the “relationship” and allegedly stating that “the world would be a better place without you”, the victim hanged herself. Prosecutors were initially at a loss as to how to file charges, for they lacked a framework outlining such an offence. After a grand jury eventually charged Drew with conspiracy and three counts in violation of the Computer Fraud and Abuse Act, the Judge eventually dismissed all charges and granted motion for judgement of acquittal.
The difficulties faced by the prosecution highlight the problems courts are facing in using current legislation to combat “new” offences. The tension between the courts seeking to give efficacy to Parliament’s wishes and giving proper interpretation to the legislation quickly becomes evident. As courts struggle to find their footing, it is important for the legislature to remain attuned to the evolving needs and concerns of society.
In April of 2003, Legare was 32 and living in Edmonton, Alberta. Representing himself to be 17, Legare engaged in two online “chat” conversations with the 12 year old complainant. Their conversations were explicitly sexual in nature. Following the second conversation the complainant provided Legare with her phone number, who then called her twice. The telephone conversations ended when Legare made a sexually suggestive remark. Legare and the complainant neither met nor intended to meet, and no sexual activity ever took place between them. Legare was charged with one count of invitation to touch for a sexual purpose, contrary to s. 152 of the Criminal Code, and one count of facilitating an offence by means of a computer system, contrary to s. 172.1 of the Code. The Trial Judge acquitted the accused of both offences. The Court of Appeal allowed the appeal in part, setting aside the acquittal pursuant to s. 172.1 and ordering a new trial. The accused now appeals that decision.
At issue is the proper scope and interpretation of s. 172.1.
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 14 years, for the purpose of facilitating the commission of an offence under section 281 with respect to that person.
The defence argued that some intention to commit the underlying offence must exist, and there must be some possibility of physical contact between the accused and the complaint. The Crown argued, however, that an intent to commit a secondary offence is not necessary so long as the communication is for the purpose of facilitating sexual exploitation and reduces barriers or inhibitions towards such sexual conduct. The Court of Appeal found the trial judge erred in adding a dimension of intention beyond “facilitation”, and ordered a new trial to make findings on whether the accused possessed the requisite mens rea under the new definition of 172.1.
Protecting Against Sexual Exploitation
A study published in the Journal of the American Medical Association found that nearly one in five of American youths who surfed the web were regularly the targets of unwanted sexual attention. Today’s children are being brought up in an increasingly sophisticated society and are generally avid users of computers and the internet. Accordingly, there is an increase in “risky behaviour” in sharing personal information and photos online, chatting with strangers, and visiting adult-content sites. When combined with parents who may not be as “tech-savvy” as their children and are unable to regulate their children’s access to the internet, the result is a situation ripe for disaster.
Further, society has long recognized the particular vulnerability of children to sexual assault and the far-reaching lifelong ramifications for unfortunate victims. As the court wrote in R. v. Deck, 2006 ABCA 92:
[T]he justice system must take the strongest possible steps to protect children and denounce callous predators who sexually abuse them.
In 2002, Parliament passed Bill C-22 which amended the Criminal Code to include s. 172.1 in its above form. There is hardly any doubt that the provision was meant to be remedial in nature, combating the rising risks of sexual exploitation (particularly through the internet.) Recognizing that parents are to a large extent unable to erect fences around their children to protect them from dangerous interactions, legislation was passed to target those that would lure children for the purpose of committing certain sexual offences. It is important to note, as the Court of Appeal did, that Parliament intended to target conduct that falls short of committing the actual offence; otherwise, as such an offence had already been codified, there would be little point in adding s. 172.1. In short, the purported purpose of such legislation is to “nip in the bud” the actual offence by targeting facilitative behaviour that may lead to the offence. As data shows, the facilitative behaviour is the establishment of a relationship with the victim generally through an assumed identity, in order to earn their trust prior to committing the offence.
Statistics Canada has produced a paper on child luring through the internet. In addition to outlining the factors that are leading to an increasing exposure to the risk of sexual exploitation, the paper examines the results of “luring” charges. Although pointing that the vast majority of sexual solicitation cases go unreported, cases involving a luring charge generally result in a guilty finding. It seems, therefore, that s. 172.1 is at least partially achieving its objectives.
Looking back at the case, it appears that both the trial judge and the Court of Appeal were in agreement with regards to at least one issue. As the trial judge stated in his introduction:
The actions of the Accused, Craig Bartholomew Legare, in engaging in explicit sexual conversation with a 12-year old are both despicable and repugnant.
The proper interpretation, it would seem to me, would be in giving efficacy to Parliament’s reasons for introducing s. 172.1 by not unduly restricting the scope of the offence to be limited to evidence of intention to commit the underlying offence. If the Court were to define it otherwise, s. 172.1 would serve no purpose: the accused would, in any case, only be convictable on the underlying offence. If the rules of statutory interpretation do not allow for such an approach, the recognition of the real and prevalent danger adolescents face and the despicable and repugnant behaviour that is socially undesirably would necessitate Parliament taking immediate action to amend the provision. Governments are responsible for the protection of its citizens, both from external and internal dangers. It would be incumbent on them to provide protection, where a parent’s own will simply not suffice.