Shelley McGuire

The accused was tried on a charge of child luring arising from sexually explicit online communications with an undercover officer posing as a 15-year-old boy who had responded to a Craigslist ad seeking a “young boy”.

Applying the W.(D.) framework, the court rejected the accused’s testimony that he believed he was speaking to an adult posing as a teenager and that he never intended to facilitate an in-person sexual offence.

The court found that the wording of the ads, the accused’s conduct during the communications, his repeated re-initiation of contact, and the explicit discussion of possible meeting locations established beyond a reasonable doubt that he believed the person was under 16 and intended to facilitate a sexual offence.

The court relied on the interpretation of “facilitating” in s. 172.1 from R. v. Legare and entered a finding of guilt.

The appellant appealed a conviction and sentence for sexual assault following a summary conviction trial.

The trial judge had found a reasonable doubt about the complainant’s lack of consent but concluded that any consent was legally vitiated by abuse of a position of trust or authority under ss. 265(3) and 273.1(2)(c) of the Criminal Code and by public policy considerations.

The appeal court held that the statutory provisions require proof of both the existence of the position and evidence that the complainant’s free will was overborne by the abuse of that position.

While a trust relationship between the parties could be found, there was no evidence establishing the subjective impact of that relationship on the complainant’s consent.

The court also held that civil law doctrines such as unconscionability and fairness cannot independently vitiate consent in criminal law where Parliament has already addressed the issue in statute.