SELECTED CASE LAW
SUPREME COURT OF CANADA:
In 2019 SCC 15, Mr. M, a 67-year-old man, was convicted of child luring after a police officer posing as a 14-year-old girl, Ms. M, responded to an ad Mr. M had posted on the “casual en-counters” section on “Craigslist” asking for a “daddy/daughter” sexual relationship. They en-gaged in sexual conversations where Mr. M counselled Ms. M to touch herself sexually, watch pornography, and suggested that she skip school so they could meet for sexual activity. At trial, Mr. M claimed he thought the was engaging in role playing with an adult woman, in part, be-cause the rules of the website required people to be over 18 years old to use that section of the website.
Mr. M challenged the constitutionality of three subsections of the luring provision.
First, the luring provision presumes that when the person the accused is communicating with represents him or herself as underage, that the accused actually believes the person he or she is talking to is underage, unless there is evidence to show otherwise. Mr. M argued that this violated his right to be presumed innocent. Both the trial judge and the Court of Appeal found this to be unconstitutional.
Second, the luring provision does not allow for the accused to raise the defence that he or she thought the person was of legal age, unless the accused took reasonable steps to determine that person’s age. Mr. M argued that this violates his rights to be presumed innocent and im-pacted his rights to life, liberty and security of a person. Both the trial judge and the Court of Appeal found this to be constitutional and convicted Mr. M for not taking reasonable steps to ascertain Ms. M’s age.
Third, the luring provision contains a mandatory minimum sentence of one year if the Crown proceeds by way of indictment, which Mr. M argued violated his right not to be subject to cruel and unusual punishment. Both the trial judge and the Court of Appeal found that this was grossly disproportionate and violated Mr. M’s constitutional rights.
At the Supreme Court, the Crown appealed the Court of Appeal’s conclusion on the presumption of belief of age and mandatory minimums. Mr. M cross appealed the Court of Appeal’s decision on the expectation to take reasonable steps to ascertain the complainant’s age.
Discussing the luring offence, the majority stated:
In today’s information age, Canadian life is increasingly playing out in the digital realm. The Internet, social media, and sophisticated mobile devices — now fixtures in our everyday lives — have transformed the way in which we live, work, and interact with one another. This opens up a world of new opportunities and allows us to connect instantly with friends and family across the world, whenever and wherever we want, and at relatively little cost.
But the Internet revolution — and the Internet itself — has a darker side. Increasingly, sexual predators are using electronic means to prey upon one of the most vulnerable groups within Canadian society: our children. Access to the Internet among Canadian children is now almost universal, and many are continuously connected, whether through a computer, a smartphone, or another device. This has led to the new and distressing phenomenon of predators lurking in cyberspace, cloaked in anonymity, using online communications as a tool for meeting and grooming children with a view to sexually exploiting them.
On the first issue, the majority of the Supreme Court held that the presumption of belief of the complainant’s age was unconstitutional and was of no force and effect. It violated the accused’s right to be presumed innocent. The Court stated that even if a complainant represented him or herself as a particular age online, a trial judge could be left with a reasonable doubt about whether the accused actually thought the person was underage, noting that “deception and deliberate misrepresentations are commonplace on the Internet. […] On the Internet, it may simply be expected that true personal identities are concealed, even when there is no evidence suggesting a misrepresentation in the particular case.” It found that the luring provision could operate effectively without this subsection, as a judge could “draw a logical, common sense inference that the accused believed that representation” based on the context and con-tent of the communication without the need for the presumption dictated in this subsection.
On the second issue, the majority of the Supreme Court held that the expectation that the accused take reasonable steps to determine the age of the complainant if he or she wishes to raise the defence that accused thought the complainant was of age was constitutional and did not violate the accused’s right to life, liberty and the security of the person. However, it found that the lower courts did not properly outline what the requirements would determine whether a person had taken reasonable steps. Therefore, a new trial should be ordered for Mr. M.
The defense was outlined as follows:
(1) The trial judge must determine whether there is an “air of reality” that that the accused took reasonable steps to ascertain the other person’s age. This can be done by providing evidence that supports findings that:
(a) the accused took steps to ascertain the other person’s age;
(b) those steps were reasonable; and
(c) the accused honestly believed the other person was of legal age.
(2) if the accused discharges his or her evidentiary burden, the defence is left with the trier of fact, and the Crown then bears the persuasive burden of disproving the defence beyond a reasonable doubt; and
(3) regardless of whether the defence can be considered, the trier of fact must ultimately determine whether the Crown has proven beyond a reasonable doubt that the accused believed the other person was underage.
Thus, whether the accused is convicted or acquitted does not hinge on whether the accused took reasonable steps; it hinges on whether the Crown can prove culpable belief beyond a reasonable doubt. Where an accused has failed to take reasonable steps, the trial judge must instruct the jury that the accused’s evidence that he or she believed the other person was of legal age cannot be considered in determining whether the Crown has proven its case beyond a reasonable doubt. Where reasonable steps have not been taken, an accused’s evidence that he or she believed the other person was of legal age is without any value, and the jury cannot rely on that evidence when assessing the strength of the Crown’s case. In that event, the sole question the jury must consider is whether — on the whole of the evidence, including the evidence relating to the accused’s failure to take reasonable steps — the Crown has established, beyond a reasonable doubt, that the accused believed the other person was underage.
The Crown must prove the accused’s belief in the complainant’s age, or that the accused was wilfully blind to that age. Negligence or recklessness to the persons age will not suffice. The accused cannot raise the defence of believing the person was of legal age unless he or she took reasonable steps to ascertain that age. The reasonable steps will be the steps a reasonable person under the circumstances of the accused would take to ascertain the other person’s age. This is an ongoing expectation but the accused is not expected to exhaust every reasonable step in order to make the defence.
On the third issue, the majority of the Supreme Court held because the conviction was set aside and a new trial was ordered that the constitutionality of the mandatory minimum sentence was to be remitted to the trial judge if Mr. M was convicted a second time.
Justice Karakatsanis agreed with the majority on the first two issues, but stated that the constitutionality of the mandatory minimums should have been addressed by the court and would have found the mandatory minimum for this provision to be a cruel and unusual punishment that violates the accused’s Charter rights.
Justice Abella disagreed with the majority’s finding on the Court’s determination on the constitutionality of the reasonable steps provision and found that subsection should be declared un-constitutional because it “render[s] illusory the accused’s ability to allege an honest but mis-taken belief in age.” She agreed with Justice Karakatsanis’ conclusion on mandatory minimums.
Also see:  SCCA No 290 (Leave to appeal); 2017 ONCA 582 (Appeal); 2015 ONCJ 599 (Tri-al); 2015 ONCJ 598 (Sentence); 2014 ONCJ 774 (Charter s 8); 2014 ONCJ 673 (Charter s 7, s 11(d)).
 2019 SCC 15 paras 1-2.
 2019 SCC 15 at para 58-59.
 2019 SCC 15 at para 69.
 2019 SCC 15 at headnote and paras 118-133.
 At para 223.
Criminal Offence(s): Luring a Child