R v Morrison: Child Luring Provisions are Tested by the Supreme Court of Canada
Online communication platforms give people the tools to engage in meaningful and productive ways. They have also given predators the opportunity to connect with children without supervision, and the ability to groom those children for the purpose of sexual abuse. Accordingly, Parliament has criminalized telecommunications with children for the purposes of facilitating sexualized discussions or the commission of certain offences targeting children. Section 172.1 of the Criminal Code, R.S.C. 1985, c. C-46, or the child luring provision, criminalizes communication with children for the purposes of facilitating the commission of other criminal offences, including sexual interference.
Alongside this provision, Parliament added additional sections. These subprovisions create the presumption that an accused person is aware they are speaking with someone under the age of 16. These presumptions were rebuttable with evidence that an accused person took “reasonable steps” to determine that they were not speaking to a child online. In R v Morrison, 2019 SCC 15, the Supreme Court of Canada (“the Court”) considered the constitutionality of the offence of child luring, including the minimum penalties for the offence and the statutory presumptions created by Parliament.
The Criminal Code Provisions
The full text of Criminal Code s 172.1 reads as follows:
172.1 (1) Every person commits an offence who, by a means of telecommunication, communicates with
(a) a person who is, or who the accused believes is, under the age of 18 years, for the purpose of facilitating the commission of an offence with respect to that person under subsection 153(1), section 155, 163.1, 170, 171 or 279.011 or subsection 279.02(2), 279.03(2), 286.1(2), 286.2(2) or 286.3(2);
(b) a person who is, or who the accused believes is, under the age of 16 years, for the purpose of facilitating the commission of an offence under section 151 or 152, subsection 160(3) or 173(2) or section 271, 272, 273 or 280 with respect to that person; or
(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.
(2) Every person who commits an offence under subsection (1)
(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or
(b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.
(3) Evidence 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.
(4) It 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.
S. 172.1(3) creates a presumption that the accused knew they were speaking with a child if the person they were speaking to indicated in some way that they were a child. The presumption is rebuttable if the accused is able to provide evidence to the contrary. Section 172.1(4) stipulates that the accused cannot rely on the defence of reasonable belief in age (the defence that they believed the person they were speaking to was an adult) unless the accused took “reasonable steps to ascertain the age of the person.”
Taken together, s 172.1 indicates the following: If the accused communicates with someone they believe to be a child for the purposes of facilitating one of the offences listed in s. 172.1, then the accused is guilty of an offence unless they can show that there was evidence that the accused did not believe they were talking to a child, or they were mistaken about the age of the other person despite taking reasonable steps to ascertain their age.
Mr. Morrison was charged with child luring under s. 172.1. He posted an online ad on Craigslist seeking sexual conversations and stated that he was interested in younger girls. When police contacted Mr. Morrison online, posing as a 14 year old girl named “Mia,” Mr. Morrison facilitated sexual discussions with Mia, asked for photographs, and eventually arranged to pick Mia up from school. Mr. Morrison was subsequently charged with child luring. In his defence, he argued that he believed that he was speaking to an adult online and was engaged in role play with someone playing the character of a 14 year old girl.
Mr. Morrison brought three Charter challenges before the court (Canadian Charter of Rights and Freedoms) [Charter] pertaining to Criminal Code s. 172.1. First, he argued that s. 172.1(3) violated his right to be presumed innocent under Charter s 11(d). Second, he argued that the presumptions in s. 172.1(4) were not in accordance with the principles of fundamental justice and violated Charter s. 7. Third, he argued that the mandatory minimum penalties under s. 172.1(2)(b) violated the Charter s. 12 guarantee against cruel and unusual punishment.
At the Supreme Court, the Court examined each of the Charter arguments in turn. The majority decision, written by Justice Moldaver, addressed the first two issues but left aside the s. 12 considerations. A concurring decision, written by Justice Karakatsanis, addressed the s. 12 issues. Justice Abella, dissenting in part, found that s. 172.1(4) was also in violation of ss. 7 and 11(d) and was therefore unconstitutional.
The Presumption of Innocence and Presumptions in S. 172.1(3)
S. 11(d) of the Charter protects the right of an accused person to be presumed innocent. The presumption of innocence means that someone can only be convicted if the Crown proves its case against the accused beyond a reasonable doubt. The right to be presumed innocent will be violated by “any provision whose effect is to allow for a conviction despite the existence of reasonable doubt” (Morrison, para 51). In order for a statutory presumption that one has committed an offence to comply with s. 11(d) of the Charter, the link between the conduct giving rise to the presumption and the conduct that actually constitutes the offence must be “inexorable” (Morrison, para 53).
Under s. 172.1(3) of the Criminal Code, an accused person is presumed to believe that they are speaking to a child online if the person they are communicating with is presented as a child unless they are able to bring evidence that they did not believe they were communicating with a child. Even though the accused has an opportunity to rebut the presumption, Justice Moldaver still found that the presumption violated s. 11(d). In Justice Moldaver’s view, the relationship between someone presenting themselves as a child online and that person actually being a child is not “inexorable.” Because online communications are inherently unreliable, a trier of fact may be left with reasonable doubt as to whether the accused believed that they were communicating with a minor, but would still have to convict them of an offence unless the accused was able to rebut the presumption in s. 172.1(3). Justice Moldaver concluded that the presumption could not be saved under s. 1 of the Charter because it was not minimally impairing: it would still be possible for an accused to be convicted if the trier of fact was satisfied beyond a reasonable doubt that the accused believed they were contacting a child, a conclusion they could come to by drawing inferences about the circumstances of the case (Morrison, para 71).
The Principles of Fundamental Justice
Some criminal offences require a “purely subjective” mens rea, meaning that the accused subjectively knew that they were committing an offence. Other offences, by contrast, require subjective or objective mental elements. For offences that carry a high penalty and significant social stigma, the principles of fundamental justice require that the crime contain a purely subjective mens rea element. Although child luring has a high level of social stigma and carries with it substantial penalties, Justice Moldaver was not satisfied that the crime rose to the level of requiring a purely subjective mens rea, though he did not come to a firm conclusion on this point (Morrison para 79).
Notably, s. 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 other person. Justice Moldaver held that this section did not create a separate path to conviction – it simply limited a defence, and therefore did not violate s. 7 of the Charter (Morrison, para 80). Instead, the Crown has to either prove that the accused believed they were speaking to a minor or that they were willfully blind as to whether the other person was underage.
In Mr. Morrison’s case, Justice Moldaver found that the trial judge convicted Mr. Morrison on the erroneous understanding that the accused could be convicted on the basis that he failed to take reasonable steps. Nevertheless, Justice Moldaver held that the Crown’s case was substantial despite the errors the trial judge made. Consequently, Justice Moldaver concluded that Mr. Morrison should be granted a new trial as opposed to an acquittal (Morrison, para 141).
The Mandatory Minimum Sentence
Under s. 172.1, if the Crown proceeds by way of indictment in a child luring case, there is a mandatory one year minimum sentence. Although Justice Moldaver did not address the constitutionality of the mandatory minimum, Justice Karakatsanis in concurrence held that the mandatory minimum violated s. 12 of the Charter because of the wide range of behaviours that constitute an offence under s. 172.1 of the Criminal Code. The majority decision remitted the issue of the mandatory minimum penalty back to the trial judge.
Justice Abella’s Decision on the Constitutionality of s. 172.1(4)
Although Justice Abella concurred in part with the result, she took a very different approach to s. 172.1(4) and disagreed with Justice Moldaver that there is only one path to conviction for child luring. In Justice Abella’s view, s. 172.1(4) provided a second path to conviction because it imported an objective element into the mens rea requirement separate from the subjective mens rea. For Justice Abella, as for Justice Karakatsanis, this objective element was concerning because of the wide range of behaviours that are criminalized by the child luring provisions.
Per the Code, child luring becomes an offence only when the accused is contacting a child for the purposes of facilitating one of the other offences listed in s. 172.1. However, online predators often begin communications with children through “ostensibly innocuous conversations,” which could include discussions about the child’s interests and personal life. Consequently, it is only the intent of the accused that grounds the offence of child luring (Morrison, para 200). For Justice Abella, it was the accused’s belief that he was communicating with a child that constituted the “sole difference between innocent online discourse and criminal child luring” (Morrison, para 203). Because the only mental element of this offence was subjective, Justice Abella held s. 172.1(3) was unconstitutional because it created an objective component to the mens rea requirement.
Under s. 172.1(4), an accused person could show that they took reasonable steps to ascertain the age of the person they were communicating with and demonstrate that they had a mistaken belief that they were not communicating with a child. In the majority decision, Justice Moldaver included some examples of how someone may have taken reasonable steps to ascertain someone else’s age online, including asking for a photo of the other person (Morrison para 112). However, Justice Abella held that the “reasonable steps” outlined by Justice Moldaver in the majority opinion are in many cases evidence of child luring in themselves. According to Justice Abella, there are few reliable ways to ascertain an individual’s age online, especially when communicating with children who may not have access to government-issued identification. Consequently, many of the potential steps the majority said an accused person could have taken are, in and of themselves, potential evidence of child luring. Asking for photographs or asking about one’s family or schooling is exactly what someone luring a child might do in order to groom and facilitate a relationship that could lead to offences committed against the child.
Both Justice Moldaver and Justice Abella’s decisions highlight the inherent difficulty of prosecuting offences where the only difference between potentially innocuous conduct and criminal conduct is subjective intent (or objective reasonableness of belief) of the accused. S. 172.1 is an incredibly broad provision, which is in keeping with the reality that child predators may take a multitude of different approaches to grooming and luring children for the commission of offences against them. However, the broadness of the offence provision also creates a risk that innocuous online contact, whether it be with adults who are role playing or by those attempting to take reasonable steps to ascertain the age of a child online, may be criminalized.
Parliament or the courts may wish to create additional restrictions to the scope on the offence, for example by providing that that the discussions should have a sexual element of them. Then again, this raises the issue that online predators will spend less time grooming children online and attempt to move the discussion offline more quickly, leaving children more vulnerable to predatory behaviour in real life. It is clear that Parliament created the offence of child luring to ensure that predators are caught before any other offences are physically committed against children. Clearly, there are good public policy reasons why one would want to make it easier to catch potential predators by casting the net broadly. Nevertheless, this also raises concerns about the type of innocent conduct that could be caught and the difficulty in establishing subjective intent given the context of online conversations, which can be hard for a court to understand. If Parliament or the courts decided to require that online discussions become sexual in nature before an offence is deemed to have been committed, this could expose children to harm even before physical contact is made by way of exposing them to explicit conversations online with adults. Consequently, there is a tension between having the offence defined broadly enough to protect children from any potentially harmful contact with adults online and having it so broad that innocent conduct is criminalized.
In proving the offence of child luring, the context almost entirely defines whether behaviour is innocent or not. This reliance on context creates evidentiary hurdles that are difficult to overcome for both the Crown and the accused, which in turn makes the offence itself difficult to define and prove beyond a reasonable doubt. Where there is such a wide variety of conduct criminalized by s. 172.1, there is a risk that innocent people may be convicted, which is unacceptable. On the other hand, defining the offence too narrowly risks leaving children exposed to harm by adults they meet online, which is also an unacceptable risk for the criminal justice system to assume. Either way, it is clear that either Parliament or the courts should provide additional clarification to figure out just where the line should be drawn between protecting the innocent from criminalization and protecting children from online predators.