R. v. Morrison, 2017 ONCA 582

Her Majesty the Queen v. Morrison

[Indexed as: R. v. Morrison]

Ontario Reports

Court of Appeal for Ontario

Watt, van Rensburg and Pardu JJ.A.

July 10, 2017

136 O.R. (3d) 545 | 2017 ONCA 582

Case Summary

Charter of Rights and Freedoms — Cruel and unusual treatment or punishment — Minimum sentence

Accused convicted of child luring on basis that he failed to take reasonable steps to ascertain his interlocutor's age. Accused having no criminal record and in his late 60s. Sentencing judge finding that appropriate sentence in absence of mandatory minimum one-year sentence in s. 172.1(2) of Code was four months' imprisonment. One-year minimum sentence grossly disproportionate in accused's circumstances and unjustifiably violating s. 12 of Charter. Canadian Charter of Rights and Freedoms, s. 12; Criminal Code, R.S.C. 1985, c. C-46, s. 172.1(2).

Charter of Rights and Freedoms — Fundamental justice — Mens rea

Child luring. Requirement in s. 172.1(4) of Code that accused take reasonable steps to ascertain his interlocutor's age not violating s. 7 of Charter. Canadian Charter of Rights and Freedoms, s. 7; Criminal Code, R.S.C. 1985, c. C-46, s. 172.1(4).

Charter of Rights and Freedoms — Presumption of innocence

Child luring. Rebuttable presumption in s. 172.1(3) of Code that accused believed his interlocutor was underage where interlocutor made representation to him to that effect violating presumption of innocence in s. 11(d) of Charter. Violation not justified under s. 1 of Charter. Section 172.1(3) of no force or effect. Canadian Charter of Rights and Freedoms, ss. 1, 11(d); Criminal Code, R.S.C. 1985, c. C-46, s. 172.1(3).

Facts

The accused was charged with child luring by means of a computer contrary to s. 172.1(1)(b) of the Criminal Code. He posted an advertisement on Craigslist entitled "Daddy looking for his little girl". The advertisement contained no age limitations or indications that it was an invitation to role-playing. A police officer posing as a 14-year-old girl responded, and sexual conversation between the accused and the "girl" ensued. The accused testified that he thought he was participating in a sexual role-playing exchange with an adult female. He also attacked the constitutionality of s. 172.1(3) and (4) of the Code.

Section 172.1(3) provides that evidence that the accused's interlocutor was presented to the accused as being underage is, in the absence of evidence to the contrary, proof that the accused believed that the interlocutor was underage. The trial judge found that s. 172.1(3) unjustifiably violates the presumption of innocence in s. 11(d) of the Canadian Charter of Rights and Freedoms and is of no force or effect.

Section 172.1(4) provides that it is not a defence that the accused believed his interlocutor to be of legal age unless the accused took reasonable steps to ascertain that person's age. The trial judge found that s. 172.1(4) does not violate s. 7 of the Charter.

The trial judge found without relying on s. 172.1(3) that he was satisfied beyond a reasonable doubt that the accused did not take reasonable steps to ascertain his interlocutor's age. The accused was convicted.

The accused also attacked the constitutionality of the mandatory minimum one-year sentence in s. 172.1(2)(a) of the Code. Taking into account the facts that the accused was in his late 60s, had an unblemished character and no criminal record, and that his moral blameworthiness was reduced because he had not deliberately set out to lure a child, the trial judge found that the appropriate sentence in the absence of a mandatory minimum sentence would be four months' imprisonment. The trial judge concluded that the minimum one-year sentence was grossly disproportionate in the accused's circumstances and that it unjustifiably violated s. 12 of the Charter. The accused was sentenced to 75 days' incarceration, to be served intermittently, followed by one year's probation. The accused appealed his conviction, and the Crown appealed the trial judge's conclusion on s. 12 of the Charter and the sentence imposed.

Held

Both appeals should be dismissed.

The trial judge did not err in finding that the presumption of belief in s. 172.1(3) of the Code infringes the presumption of innocence in s. 11(d) of the Charter. It does not follow inexorably from proof that the interlocutor represented that he or she is underage that the accused believed the representation. There is simply no expectation that representations made during Internet conversations about sexual matters will be accurate or that a participant will be honest about his or her personal attributes. Given the reality of representations made over the Internet, the trier of fact could well be left with a reasonable doubt that the recipient of a representation as to age believed the representation, even in the absence of evidence to the contrary. The infringement of s. 11(d) of the Charter is not justified under s. 1 of the Charter. The presumption facilitates the prosecution of child luring offences committed by computer. The prosecution of such offences is integral to protecting children from the specific dangers of sexual predation over the Internet. That protective function is a pressing and substantial state objective, and there is a rational connection between the objective and the limit on the accused's s. 11(d) Charter right. However, the presumption of belief is not a minimally intrusive means for achieving the objective and is not proportionate. Section 172.1(3) is of no force or effect.

The trial judge did not err in rejecting the accused's argument that the "reasonable steps" requirement in s. 172.1(4) violates s. 7 of the Charter because the fault element of the offence is not entirely subjective. Although the social stigma for being convicted of child luring is high, it is not so high that it is one of the rare offences, like murder, for which a purely subjective standard of fault is mandated. The moral culpability associated with failing to take reasonable steps to ensure that one's online communications do not amount to sexual predation of children is proportionate to the degree of stigma attached to the child luring offence. As the trial judge's decision turned on finding that the accused failed to take all reasonable steps in accordance with s. 172.1(4), the accused's conviction for child luring is upheld.

As the trial judge found, the disparity between the one-year mandatory minimum sentence and what would otherwise be a fit sentence to impose upon the accused is sufficient to meet the high bar for gross disproportionality and violates s. 12 of the Charter. The child luring provision covers a wide range of activities from accused who systematically groom young persons for sexual activity and cause great harm to their victims to others who never intend to commit a physical sexual assault, do not believe that their interlocutor is underage (although they have failed to take reasonable steps to ascertain the interlocutor's age) and who have not caused harm to any young person. Imposing a mandatory minimum sentence over such a wide range of behaviour would result in a grossly disproportionate sentence for some individuals.

The Crown did not argue that s. 1 could justify a s. 12 violation. The mandatory minimum one-year sentence in s. 172.1(2)(a) of the Code is of no force or effect.

A. Background

(1) Investigation of Morrison's Advertisement

Morrison posted his advertisement on Craigslist on January 10, 2013. It was entitled "Daddy looking for his little girl -- m4w -- 45 (Brampton)." It read:

Daddy looking for his little girl to meet and have some fun with him during the day next week on Tue. And Wed of this week have the place all to ourselves too, in the Bramalea Rd and Knightsbridge area.

Constable Hutchinson saw the advertisement on February 5, 2014. She testified that it suggested that the author sought to meet with a young girl. The post contained no limitations, such as "18+" or "RP" -- referring to "role-play" -- that would dispel this suspicion.

Posing as "Mia", Cst. Hutchinson began e-mail conversations on February 5 with Morrison. "Mia" stated "im 14" and asked "wut do you mean" in reference to Morrison's advertisement.

Constable Hutchinson deliberately attempted to use teenage-appropriate language, including common abbreviations and misspellings for certain phrases. "Mia" spoke about going to class at school, playing sports, spending time with her friends and listening to music. She mentioned her parents and her grandparents. Her messages were timed to occur before and after school. She indicated that she was "curious bout sex" but had not "done it yet". Morrison asked "Mia" how old she was, to which she again responded that she was 14.

Sexually explicit conversations occurred between Morrison and "Mia" from February 6 to April 21, 2014. During this time, "Mia" reminded Morrison that she was 14 years old. Morrison extended the invitation for "Mia" to touch herself sexually, which formed the basis for the designated offence under s. 152 of the Code. He suggested that "Mia" should skip school without her mother finding out and meet him in Brampton, where he would pick her up for them to engage in sexual touching. This meeting did not occur.

Morrison asked "Mia" to send him a picture twice but she never provided one. He also asked her for her phone number, which Cst. Hutchison did provide. There were missed calls back and forth. On April 21, 2013, Morrison admonished "Mia" for phoning him, saying not to phone "unless I say so". He made no further attempts to communicate with her after a missed call on April 26, 2014. On May 10, 2016, Cst. Hutchinson sent a text message to Morrison's phone saying: "R U Mad at me?" Morrison responded on May 21 asking: "Who are you?"

(2) Morrison's Arrest and Statements to the Police

Constable Hutchison obtained an arrest warrant, which was executed on May 23, 2013. The trial judge accepted that Cst. Hutchinson told Morrison he was being arrested because a complaint against him had been received from a guardian of a 14-year-old child. Morrison told the police: "I was only talking to one girl."

Morrison was taken to the police station where he spoke to duty counsel. Two hours later, he provided a video-recorded statement, during which he indicated that he was unsure of "Mia's" age and that on the Internet "you don't really know" whether you are speaking to a child or an adult. He said that Craigslist has a disclaimer or warning in the personal ads section that you have to be 18 to post an advertisement. He said he had no intention of ever meeting with the person with whom he had conversed.

(3) Morrison's Testimony

At trial, Morrison testified that he did not expect children to be on Craigslist in the classified advertisement section called "personal encounters", as this section required users to be over the age of 18. He did acknowledge in cross-examination that children sometimes lie and represent that they are over 18 despite the "18+" disclaimer.

He said that he used various chat sites for regular conversations with other users about adult sex. He said he got bored with these chat sites and decided to post the advertisement.

He testified that he thought that the conversations he had with "Mia" were a form of adult sexual role-playing. He anticipated a response from an adult woman who wanted to engage in father-figure role-play. He had no interest in sex with underage children and said that his sexually explicit talk was all part of the role-play. When he made the picture requests, he wanted to see what the person he was talking to looked like. He said it never crossed his mind that he was talking to someone underage, despite "Mia's" representation that she was 14. He said he had lied about his age in his advertisement -- representing that he was 45 when he was really 67. He maintained that he never wanted to meet "Mia" and was not sexually aroused when he was speaking to her.

Finally, he said that when he was arrested he used the term "girl" in his statement, "I was only talking to one girl", to refer to females of all ages. He said he did not explain to the police officers when he was arrested that he thought he was speaking with an adult who was interested in role-playing because he was in shock at that time.

B. The Conviction Appeal

(1) Decision of the Trial Judge

The trial judge outlined three constituent elements of the s. 172.1 offence:

1. "making use of a computer system to communicate;"
2. "communicating with a person who is, or who the accused believes is, under the age of 16; and"
3. "communicating for the purpose of facilitating one or more" of the offences designated in s. 172.1(1) -- in this case, invitation to sexual touching contrary to s. 152 of the Code.

The trial judge held that subsection 172.1(3) -- the presumption of belief -- infringed Morrison's s. 11(d) Charter right. He noted that the right to be presumed innocent under s. 11(d) protects an accused against conviction if a reasonable doubt about an element of the offence exists. His reasoning was that an essential element of the offence cannot be established by statutory presumption in a constitutionally acceptable way unless there exists an inexorable connection between the fact that engages the presumption (here, a representation as to age) and the existence of the essential element (the accused's belief as to the interlocutor's age).

The idea that a representation as to age will necessarily be believed by the recipient strikes as tenuous. In the context of the Internet, that notion is rendered even frailer. In the online world, the anonymity furnished by the Internet virtually ensures that much is not as it seems. Rightly or wrongly, pseudonyms and falsehoods are a pervasive part of online communication. Given this, it does not follow that an online representation as to age would necessarily be believed by the person to whom it is made. It is therefore far from certain that even a rational or logical connection is established between the representation and the presumption of belief as to age, much less an inexorable connection.

Thus, the trial judge refused to apply subs. (3) in the prosecution against Morrison.

However, he held that the reasonable steps requirement in s. 172.1(4) is constitutionally valid. He observed that the language of subsection (4) resembles that of s. 273.2(b) of the Code, which provides that an honest belief in consent is not a defence to a charge of sexual assault if "the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting". He noted that this court held that s. 273.2(b) does not violate the Charter in R. v. Darrach.

The trial judge held that, on the whole of the evidence and without applying the unconstitutional presumption of belief, the Crown had not proven beyond a reasonable doubt that Morrison believed that the person with whom he was communicating over the Internet was underage. He stated in his reasons for conviction that Morrison was "at least indifferent to the age of the person he was communicating with" but that "[i]ndifference . . . is not the equivalent of belief". He stated that Morrison's state of mind was "closer to negligence rather than the sort of advertence necessary to sustain a finding of an actual belief in his part that Mia was underage".

The trial judge made the following findings of fact:

Morrison was aware when he posted his ad on Craigslist that people involved in sexual chat on the Internet tend to be dishonest. He admitted that he lied about his age in the ad. Morrison would therefore have been aware that the fact that the personal ad section of Craigslist asks for a simple confirmation of adult status, without requiring proof of age or any other form of screening for adult age, is a meaningless restriction.

The absence of any kind of age- or purpose-related limiters in the text of the posted ad -- such as "legal age," "18+" or "Role-Play" -- suggested that Morrison's interest was broader than adult role-play.

Morrison simply ignored the repeated statements by Mia that she was 14. There was no follow-up. Morrison's stated assumption that he was dealing with an adult determined to remain in character had no supporting foundation. He had no apparent basis to distinguish between an adult staying in character and a child stating her real age. Morrison continued with the conversation in the face of these repeated representations of age. There was no discernable or reasonable basis upon which he could discredit or disbelieve the representation.

The language, diction and grammar used by Mia was consistent with that of a 14-year-old. The content of the communications between Mia and Morrison did not disclose any features from which Morrison could reasonably derive a clue or hint that Mia was an adult pretending to be an underage female. Mia's answers to the sexualized suggestions of Morrison were not sexually responsive. They were primarily inquisitive and yielded no indication of participation in fantasy role-playing. They did not support the contention by Morrison that he was engaged with another adult in the exploration of a role-play fantasy.

The trial judge was not persuaded that the statement made by Morrison upon his arrest using the word "girl" was simply the employment of the default term that Morrison commonly uses to describe all females.

The videotaped statement taken in Brampton contained no reference to role-playing or an adult respondent. It was taken after Morrison had two hours to contemplate his position. The contention that he was too shocked to properly respond to the allegation is not supported by the demeanour he demonstrated in the video. The officer did not pressure him. He had ample opportunity in the course of the interview to introduce the notion that he believed he was talking to an adult.

The trial judge went on to determine whether the Crown had proven beyond a reasonable doubt that Morrison took reasonable steps in the circumstances to ascertain "Mia's" age as mandated by s. 172.1(4) of the Code. He accepted that the surrounding circumstances included the existence of "Daddy/ little girl" role-playing scenarios in the realm of Internet exchanges.

The trial judge rejected Morrison's assertion that he took reasonable steps by posting an ad on an age-restricted Craigslist section that he expected would have only adult interlocutors. This step was not reasonable in light of the fact that a person of any age could easily enter that section despite the restriction. Furthermore, nothing in Morrison's advertisement restricted the age of responders to adults. With respect to Morrison's assertion that he had asked "Mia" her age, the trial judge stated:

It is, in my view, self-evident that asking a question about age and then either ignoring the answer or simply assuming, without further inquiry, that the answer is untrue, is neither a completed step to ascertain age nor a reasonable strategy to ascertain age. It is, at best, a half step. If the question is posed as a step to ascertain age then some meaning must be attached to the answer. A reasonable person confronted with Mia's statements regarding her age in the dialogue that took place would either accept the answer as true, or at least possibly true, and discontinue the conversation (particularly after the representation was repeated) or, make further inquiries to ensure: 1) that the answer was false; and 2) that the person responding was not underage. Proceeding on the assumption, without further inquiry, that the answer is false and upon the further assumption that the person responding was not underage, is not the conduct of a reasonable person in the surrounding circumstances.

According to the trial judge, the same general observations applied to Morrison's request for a photo from "Mia", which she never provided.

The trial judge was satisfied beyond a reasonable doubt that in the circumstances Morrison did not take reasonable steps or "exercise the degree of care . . . that a reasonable person . . . would have exercised" to ascertain the age of the person with whom he was communicating online.

(2) Positions of the Parties

On appeal, Morrison renews his challenge to the constitutionality of the presumption of belief in s. 172.1(3) of the Code, focusing on s. 11(d) of the Charter. He submits that the trial judge was correct to conclude that it does not follow inexorably from the fact that an interlocutor represents to an accused that he or she is underage through Internet communications that the accused believes that the interlocutor is underage, in light of the ubiquity of misrepresentations through the online medium. Hence, he says, the presumption of belief requires a trier of fact to conclude that an essential element of the child-luring offence is proven even if a reasonable doubt exists as to the accused's belief that the interlocutor is underage.

Morrison maintains his challenge to the reasonable steps requirement in subsection (4) of s. 172.1, focusing here on s. 7 of the Charter. He submits that the child-luring offence is one that carries sufficient social stigma that it must be coupled with a requirement for the Crown to prove the accused's subjective mens rea for it to comply with s. 7. The operation of subsection (4) allows the Crown to obtain a conviction on the objective basis of negligence, even when the accused subjectively believes that he or she communicated online with an adult.

In response, the Crown submits that that the trial judge erred in holding that the presumption of belief in subsection (3) is contrary to s. 11(d) of the Charter. Instead of considering the logical link between the basic fact, the representation, and the presumed fact, belief as to age, he should have considered the protective purposes of the offence. Furthermore, the Crown submits that the presumption of belief is only triggered "absent evidence to the contrary" so that, if no such evidence is adduced, the only possible inference to be drawn from an online representation as to age is that the accused believed the representation.

The Crown also submits that the reasonable steps requirement in subsection (4) is not contrary to s. 7 of the Charter. Citing this court's decision in R. v. Alicandro, it says that, properly interpreted, the mens rea for the child-luring offence in s. 172.1 is a subjective standard of fault. It requires the Crown to prove beyond a reasonable doubt that the accused engaged in a prohibited communication for the purpose of facilitating the commission of a sexual offence, with the specific intent of facilitating the commission of that offence. The Crown also supports the trial judge's conclusion that subsection (4) is valid because it is analogous to s. 273.2(b) of the Code, which this court upheld under s. 7 of the Charter in Darrach.

The Crown submits that any limit of s. 11(d) of the Charter is justified under s. 1, but it makes no such submissions with respect to s. 7.

(3) Analysis

(i) The Elements of the Child-Luring Offence and the Operation of s. 172.1 of the Code

For ease of reference, the relevant parts of s. 172.1 of the Code are:

Luring a child

172.1(1) Every person commits an offence who, by a means of telecommunication, communicates with

(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[.]

Punishment

(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.

Presumption re age

(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.

No defence

(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.

The nature of the child luring offence, as well the operation of the presumption of belief and the reasonable steps requirement, were discussed by Doherty J.A. in Alicandro and by Fish J. in R. v. Legare and R. v. Levigne.

Section 172.1 creates an inchoate offence that prohibits conduct preparatory to or facilitative of the designated offences described in s. 172.1(1). It does not criminalize communicating by means of a computer with a person who is, or who the communicator believes to be, below a certain age. Nor does it criminalize sexual communication over the Internet with a person who the accused does not believe is underage. These acts are not in themselves illegal. They are prohibited only if they involve an intention to facilitate a designated offence involving the sexual exploitation of a young person.

In Alicandro, at para. 36, Doherty J.A. described the purpose of s. 172.1:

The language of s. 172.1 leaves no doubt that it was enacted to protect children against the very specific danger posed by certain kinds of communications via computer systems. The Internet is a medium in which adults can engage in anonymous, low visibility and repeated contact with potentially vulnerable children. The Internet can be a fertile breeding ground for the grooming and preparation associated with the sexual exploitation of children by adults. One author has described the danger in these terms:

For those inclined to use computers as a tool for the achievement of criminal ends, the Internet provides a vast, rapid and inexpensive way to commit, attempt to commit, counsel or facilitate the commission of unlawful acts. The Internet's one-too-many broadcast capability allows offenders to cast their nets widely. It also allows these nets to be cast anonymously or through misrepresentation as to the communicator's true identity. Too often, these nets ensnare, as they're designed to, the most vulnerable members of our community -- children and youth.

Cyberspace also provides abuse-intent adults with unprecedented opportunities for interacting with children that would almost certainly be blocked in the physical world. The rapid development and convergence of new technologies will only serve to compound the problem. Children are the front-runners in the use of new technologies and in the exploration of social life within virtual settings.

As the trial judge correctly recognized, the elements of the child luring offence are:

1. "making use of a computer system to communicate;"
2. "communicating with a person who is, or who the accused believes is," underage; and
3. "communicating for the purpose of facilitating" an offence designated in s. 172.1(1).

In Alicandro, Doherty J.A. regarded the first and second of these elements as forming the actus reus for the child luring offence and the third as forming the mens rea. On his interpretation, the mental state of the accused may be a constituent of the actus reus because, "[i]f the person with whom the communication is made is over fourteen, but the accused believes he or she is under fourteen, the accused's belief is the circumstance or condition that the Crown must prove to establish the prohibited act": para. 30. The mens rea or fault component would then also require proof of the state of the mind of the accused, who "must engage in the prohibited communication with the specific intent of facilitating the commission of one of the designated offences": para. 31.

Subsequently, in Legare, at paras. 39-41, Fish J. held that it is unnecessary to categorize the potential mental element implicated in the second component of the offence -- the accused's belief that his or her online interlocutor is underage -- into either the actus reus or mens rea element of the offence.

In Levigne, Fish J. addressed the interaction between the elements of the offence and s. 172.1(3) and (4), although he noted that the constitutionality of the presumption of belief was not in issue in the case before him. He wrote, at para. 32:

Read together and harmoniously with the overarching purpose of s. 172.1, the combined effect of subss. (3) and (4) should be understood and applied this way:

1. Where it has been represented to the accused that the person with whom he or she is communicating by computer (the "interlocutor") is underage, the accused is presumed to have believed that the interlocutor was in fact underage.

2. This presumption is rebuttable: It will be displaced by evidence to the contrary, which must include evidence that the accused took steps to ascertain the real age of the interlocutor. Objectively considered, the steps taken must be reasonable in the circumstances.

3. The prosecution will fail where the accused took reasonable steps to ascertain the age of his or her interlocutor and believed that the interlocutor was not underage. In this regard, the evidential burden is on the accused but the persuasive burden is on the Crown.

4. Such evidence will at once constitute "evidence to the contrary" under s. 172.1(3) and satisfy the "reasonable steps" requirement of s. 172.1(4).

5. Where the evidential burden of the accused has been discharged, he or she must be acquitted if the trier of fact is left with a reasonable doubt whether the accused in fact believed that his or her interlocutor was not underage.

Fish J. added that the requirement for the accused to adduce evidence to the contrary, which must amount to reasonable steps to ascertain the age of the accused's online interlocutor pursuant to s. 172.1(4), does not impose an "ultimate" or "persuasive" burden on the accused. It only requires the accused to adduce evidence that tends to show, but need not prove, that the accused did not believe that the interlocutor was underage; the evidence must "have probative value, but need not be so cogent as to persuade the court": see para. 17. If the accused has raised an evidentiary basis for having taken the requisite reasonable steps, the persuasive burden remains on the Crown to demonstrate beyond a reasonable doubt that the accused did not take those steps. Fish J. also stated that the rebuttable presumption of belief "facilitates the prosecution of child luring offences while leaving intact the burden on the Crown to prove guilt beyond a reasonable doubt"; it "assists the Crown in discharging its evidential burden on the element of culpable belief, but preserves for accused persons the benefit of any reasonable doubt where the record discloses evidence to the contrary": para. 30.

Fish J. stated, at para. 31, that the reasonable steps requirement in s. 172.1(4) was enacted by Parliament to foreclose "exculpatory claims of ignorance or mistake [in relation to the age of the online interlocutor] that are entirely devoid of an objective evidentiary basis". He added that it is unnecessary to characterize claims by accused persons that they were mistaken about the age of the interlocutor as a "mistake of fact" defence or attempts to raise a reasonable doubt as to an element of the child luring offence: para. 36.

(ii) Does the Presumption of Belief Infringe s. 11(d) of the Charter?

(a) Legal Principles

Section 11(d) of the Charter protects the presumption of innocence. It provides:

11. Any person charged with an offence has the right

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

A statutory presumption infringes s. 11(d) if its effect is that an accused can be convicted even though the trier of fact has a reasonable doubt as to the accused's guilt: R. v. St-Onge Lamoureaux and R. v. Vaillancourt.

The presumption of belief in s. 172.1(3) requires a trier of fact to infer that an accused believed an online interlocutor is underage if the Crown proves that it was represented to the accused by the interlocutor that the interlocutor was underage, absent evidence to the contrary. Where the interlocutor was in fact not underage, as in "sting operations" by the police such as the one leading to Morrison's prosecution, the accused's belief that the interlocutor was underage is an element of the child luring offence in s. 172.1. Thus, in prosecutions arising out of sting operations, the presumption of belief requires a trier of fact to conclude that the Crown has proven an element of the offence once the Crown has proven the representation that the interlocutor is underage. This is known as a mandatory "basic fact" presumption, as it substitutes proof of the basic fact of the representation for proof of an element of the offence.

The s. 11(d) Charter concern with a mandatory basic fact presumption is that, in allowing the Crown to prove only the basic fact instead of an element of an offence beyond a reasonable doubt, it may permit the accused to be convicted even though a reasonable doubt about guilt exists. But this concern will be avoided if proving the basic fact would be equivalent to proving the element of the offence beyond a reasonable doubt. That will happen if proof of the element follows inexorably from proof of the basic fact.

As Cory J. wrote in Downey:

Legislation which substitutes proof of one element for proof of an essential element will not infringe the presumption of innocence if as a result of the proof of the substituted element, it would be unreasonable for the trier of fact not to be satisfied beyond a reasonable doubt of the existence of the other element. To put it another way, the statutory presumption will be valid if the proof of the substituted fact leads inexorably to the proof of the other. However, the statutory presumption will infringe s. 11(d) if it requires the trier of fact to convict in spite of a reasonable doubt.

Some examples will serve to illustrate the applicable legal principles.

The first is the Supreme Court's decision Whyte. The accused was charged with having care and control of a motor vehicle while impaired. The Criminal Code contained a mandatory basic fact presumption that, upon proof of an accused's occupancy of the driver's seat in a motor vehicle, the trier of fact must infer that the accused had care or control of the vehicle, an element of the impaired driving offence. The court concluded that the presumption infringed s. 11(d). Proof of the basic fact did not lead inexorably to proof of care and control. Dickson C.J.C. stated that "[o]ther reasonable explanations for sitting in the driver's seat can readily be imagined".

Similarly, Downey concerned a prosecution for living on the avails of prostitution. There was a mandatory presumption in the Code that the basic fact that a person is habitually in the company of a prostitute is proof that the person lives on the avails of prostitution. Cory J. held that the presumption infringed s. 11(d) because it did not follow inexorably from the basic fact that the accused lived on the avails.

A contrasting case is R. v. Audet. The accused was charged under s. 153(1) of the Code with touching a young person for a sexual purpose while in a position of "trust or authority" towards her. He was the complainant's teacher. A majority of the Supreme Court interpreted the terms "authority" and "trust" in s. 153(1) so that teachers are presumed to be in a position of trust in relation to their students, absent evidence to the contrary. It recognized that this interpretation turned s. 153(1) into a mandatory basic fact presumption; from the basic fact that an accused is a teacher the essential element of being in a position of trust in relation to a complainant who is a student must be presumed. However, it held that this interpretation is not contrary to s. 11(d) of the Charter because the presumed fact of a trust relationship follows inexorably from the basic fact of the accused being the complainant's teacher.

(b) Application to s. 172.1(3) of the Code

The Crown submits that, when applying the "inexorable connection" test under s. 11(d) of the Charter, it is crucial to bear in mind that the presumption of belief in s. 172.1(3) is a rebuttable one; it is only triggered if there is no evidence that the accused did not believe that his or her online interlocutor was underage. The Crown says that, when there is no such evidence, it follows inexorably from proof that it was represented to the accused that the interlocutor was underage that the accused believed in the representation.

I agree, however, with the trial judge's conclusion that the presumption of belief in s. 172.1(3) infringes s. 11(d). In circumstances where an accused communicates via computer with a person who represents that he or she is under the age of 14, the presumption of belief permits conviction despite the presence of a reasonable doubt as to whether the accused believed that the online interlocutor was underage.

I accept the Crown's submission about the rebuttable nature of the presumption of belief. It is triggered only if there is no evidence that the accused did not believe that the interlocutor was underage. The reasons of Fish J. in Levigne make this clear. "Evidence to the contrary" in s. 172.1(3) must be evidence that the accused took reasonable steps to ascertain the age of the interlocutor. The accused has an evidentiary burden, but not a persuasive burden, to adduce some evidence tending to support that these steps were taken. Procedurally, the prosecution then shifts to s. 172.1(4), under which the Crown retains the persuasive burden of proving beyond a reasonable doubt that the accused failed to take the required reasonable steps. But if the accused fails to discharge his or her evidentiary burden, the Crown may avail itself of the presumption of belief in subsection (3).

However, in my view, even if there is no evidence of the accused's reasonable steps, or that the accused does not believe that the interlocutor is underage, it still does not follow inexorably from proof that the interlocutor represented that he or she is underage that the accused believed the representation. This is the fact that must be inferred from the representation under s. 172.1(3) and the relevant element of the child luring offence. Even if the presumption of belief is triggered and there is no evidence to the contrary, the trier of fact could still be left with a reasonable doubt that the accused believes that the interlocutor is underage.

The mere fact of a representation is no indication of its reliability or credibility and does not lead inexorably to the conclusion that the recipient believed it. Some representations are inherently doubtful, even in the absence of evidence to the contrary. Representations on the Internet are notoriously unreliable. As put by Dawson J. in R. v. Pengelley, "nothing may be as it appears on the internet where deception is rampant". There is simply no expectation that representations made during Internet conversations about sexual matters will be accurate or that a participant will be honest about his or her personal attributes, including age. Indeed, the expectation is quite the opposite, as true personal identities are often concealed in the course of online communication about sexual matters. In the present case, there is evidence that Morrison himself made a misrepresentation about his age on his Craigslist advertisement.

Given the reality of misrepresentation over the Internet, a trier of fact could well be left with a reasonable doubt that the recipient of a representation as to age believed the representation, even in the absence of evidence to the contrary. Thus, an online representation as to age may occur in such circumstances as to fail to establish an accused's belief that the interlocutor was underage beyond a reasonable doubt, even in the absence of evidence to the contrary. Although the representation may lead to a rational inference that the accused believed the interlocutor was underage, that is not the applicable legal test. Considered in light of the circumstances of online communication and their content, that inference is not inexorable.

I conclude that s. 172.1(3) of the Code infringes s. 11(d) of the Charter.

(c) Is the Infringement of s. 11(d) Justified Under s. 1 of the Charter?

Section 1 of the Charter provides:

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

The Crown did not attempt to justify the s. 11(d) infringement pursuant to s. 1 of the Charter before the trial judge, but it relied heavily on s. 1 in its submissions on appeal.

The test for justification under s. 1, established in Oakes, and more recently restated in Alberta v. Hutterian Brethren of Wilson Colony, is well known. To justify a limit on a Charter right, the Crown has the burden of demonstrating on a balance of probabilities that:

1. the law has a pressing and substantial objective; and
2. the limit is proportionate, in that
   • (a) it is rationally connected to the law's objective;
   • (b) the law limits the Charter right in question as minimally as possible while still actually achieving the law's objective; and
   • (c) the law's salutary effects are proportionate in the strict sense to its deleterious effects on the affected Charter right.

We have no evidence before us about prosecutions under s. 172.1 of the Code or the outcomes of sting operations such as occurred in the present case. We have only the anecdotal evidence illustrated by some decided cases. For instance, we do not have evidence like the facts about the social evils of impaired driving adduced in Whyte or the plight of prostitutes and the difficulties associated with prosecuting pimps adduced in Downey.

The general rule is that evidence is necessary for the Crown to discharge its burden of establishing that a limit on a Charter right is "demonstrably justified" under s. 1. This was explained by Dickson C.J.C. in Oakes:

Having regard to the fact that s. 1 is being invoked for the purpose of justifying a violation of the constitutional rights and freedoms the Charter was designed to protect, a very high degree of probability will be, in the words of Lord Denning "commensurate with the occasion". Where evidence is required in order to prove the constituent elements of a s. 1 inquiry, and this will generally be the case, it should be cogent and persuasive and make clear to the Court the consequences of imposing or not imposing the limit. A court will also need to know what alternative measures for implementing the objective were available to the legislators when they made their decisions.

This court has stated that, "[a]s a general rule, s. 1 should not be raised for the first time on appeal. The Supreme Court has consistently cautioned against deciding constitutional cases without an adequate evidentiary record": R. v. S. (R.).

I recognize evidence is not always necessary to justify a Charter infringement under s. 1. However, I conclude here that the Crown has not satisfied its burden of showing that the breach of s. 11(d) of the Charter is demonstrably justified.

The Charter infringing measure in s. 172.1(3) is the presumption that proof that an online interlocutor represents to the accused that they are underage is proof that the accused believed the interlocutor was underage. The presumption facilitates the prosecution of child luring offences committed by computer. The prosecution of such offences is integral to protecting children from the specific dangers of sexual predation over the Internet. This protective function is a pressing and substantial state objective.

The presumption of belief in s. 172.1(3) facilitates child luring prosecutions by relieving the Crown of having to prove an element of the child luring offence beyond a reasonable doubt and enabling it to prove only the basic fact of the representation as to age made by the interlocutor to the accused. The limit on the accused's s. 11(d) Charter right that it imposes is therefore rationally connected to the state objective of protecting children from sexual predation over the Internet.

However, I am not persuaded that the presumption of belief is a minimally intrusive means for achieving the state's objective or that it is proportionate.

In a sting operation, the investigative authorities will generate a record of the exchange to adduce at trial in the prosecution against the accused. At trial, the Crown can ask the trier of fact to infer that the accused believed the interlocutor was underage based on all the facts in the record, including the content of the communication; whether representations as to age were made; the tone of the communications; the nature of the forum used; the frequency of communications; whether photographs were exchanged; and all of the other infinitely variable circumstances surrounding the exchange. This approach is routinely part of the work of trial courts. It need not involve limiting the accused's right to be presumed innocent by means of the presumption of belief in s. 172.1(3) of the Code. The absence of the presumption would not undermine the prosecution of the child luring offence.

Furthermore, it is important to note that, if the record discloses any evidence suggesting that the accused did not believe that the interlocutor was underage, or if there is some evidence that he or she took reasonable steps to ascertain the interlocutor's age, the Crown cannot rely on the presumption of belief, and it must prove that the accused failed to take those steps beyond a reasonable doubt. I am not persuaded that the presumption actually facilitates the conviction of child luring offences by increasing the number of convictions that would ordinarily occur without resort to the presumption or that there is a problem with unjustified acquittals.

As a result, I am also not persuaded that the salutary effects of limiting s. 11(d) of the Charter by means of the presumption of belief in s. 172.1(3) of the Code outweigh the deleterious effects of this limitation. The presumption of innocence protected by s. 11(d) of the Charter is, after all, "a hallowed principle lying at the very heart of criminal law" that "confirms our faith in humankind" and "reflects our belief that individuals are decent and law-abiding members of the community until proven otherwise".

I conclude that the Crown has not established on a balance of probabilities that the infringement of s. 11(d) of the Charter imposed by s. 172.1(3) of the Code is demonstrably justified under s. 1 of the Charter.

Section 172.1(3) of the Code is therefore of no force or effect pursuant to s. 52(1) of the Constitution Act, 1982.

In the present case, Morrison was not convicted by means of the presumption of belief in s. 172.1(3). Because the trial judge held that the Crown had proven beyond a reasonable doubt that Morrison failed to take reasonable steps to ascertain "Mia's" age, Morrison's conviction stands or falls with the constitutionality of the reasonable steps requirement under s. 172.1(4) of the Code.

(iii) Does the "Reasonable Steps" Requirement Infringe s. 7 of the Charter?

Section 7 of the Charter provides:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

In a prosecution under s. 172.1, if the Crown fails to prove that the accused believed that the other person was underage, the Crown will still obtain a conviction if it proves beyond a reasonable doubt that the accused failed to take reasonable steps to ascertain the other person's age.

Morrison submits that this amounts to an infringement of s. 7 of the Charter. He says that conviction for the offence of child luring carries such stigma that it is necessary for the fault element of the offence to be subjective. He says that s. 174.1(4) permits conviction on the objective standard of negligence, or failing to take reasonable steps to ascertain the interlocutor's age.

(i) Legal Principles

In Vaillancourt, and later in R. v. Martineau, the Supreme Court held that certain of the constructive murder offences in the Code infringed s. 7 of the Charter. In addition to the intention to engage in the unlawful conduct that causes death, conviction for constructive murder requires proof beyond a reasonable doubt of subjective foreseeability of death by the accused. The court reasoned that, under the principles of fundamental justice, the degree of fault required for a conviction for a particular offence must be proportionate to the degree of stigma, punishment and moral blameworthiness that the conviction attracts. With murder being the offence that attracts the highest degree of stigma, a culpable homicide can be treated as murder only if subjective foreseeability of death is part of the mens rea.

In Martineau, at pp. 645-46 S.C.R., Lamer C.J.C. explained the concept of proportionality embodied in the substantive restrictions on Parliament's criminal law power under s. 7 of the Charter:

A conviction for murder carries with it the most severe stigma and punishment of any crime in our society. The principles of fundamental justice require, because of the special nature of the stigma attached to a conviction for murder, and the available penalties, a mens rea reflecting the particular nature of that crime. . . . In my view, in a free and democratic society that values the autonomy and free will of the individual, the stigma and punishment attaching to the most serious of crimes, murder, should be reserved for those who choose to intentionally cause death or who choose to inflict bodily harm that they know is likely to cause death. The essential role of requiring subjective foresight of death in the context of murder is to maintain a proportionality between the stigma and punishment attached to a murder conviction and the moral blameworthiness of the offender. Murder has long been recognized as the "worst" and most heinous of peace time crimes. It is, therefore, essential that to satisfy the principles of fundamental justice, the stigma and punishment attaching to a murder conviction must be reserved for those who either intend to cause death or who intend to cause bodily harm that they know will likely cause death.

In R. v. Logan, the court extended its conclusion on murder to attempted murder, holding that this offence also requires subjective mens rea under s. 7 of the Charter. The stigma for being convicted of attempted murder is the same as being convicted for murder; the only differences between the murderer and the attempted murderer are the consequences of their actions, not their subjective foresight of the likelihood of death as the result of their actions. In his reasons, Lamer C.J.C. clarified that the criteria for identifying a high-stigma offence mandating proportionality with its fault element "are, primarily, the stigma associated with a conviction and, as a secondary consideration, the penalties available".

The rulings in Vaillancourt, Martineau and Logan were limited to the need for a subjective standard of fault for murder and attempted murder. In Vaillancourt, Lamer J. suggested that the fault standard for the offence of theft would also have to be proportionate to the moral blameworthiness of stigma of the thief, requiring proof of subjective dishonesty. But he also stated that there is a constitutional requirement for a minimum fault standard only for certain crimes, because of the "special nature of the stigma attached to a conviction therefor or the available penalties", and that these offences would be "very few in number".

By way of example, in R. v. Creighton, the Supreme Court considered the required level of fault under s. 7 of the Charter for the offence of manslaughter predicated on an unlawful act or criminal negligence that causes death. It held that it was not contrary to the principles of fundamental justice for the mens rea of manslaughter to be objective foreseeability of the risk of bodily harm. In so doing, McLachlin J. (as she then was) reasoned that, although the commission of manslaughter is morally blameworthy and stigmatizing, it is less so than the commission of murder because it is confined to non-intentional homicide. Furthermore, she wrote, the punishment for murder is higher than the punishment for manslaughter, which may vary depending on the seriousness of the underlying unlawful act. She concluded that the fault standard of objective foreseeability of the risk of bodily harm, rather than foreseeability of death, is proportionate to the social stigma attaching to manslaughter, writing:

It would shock the public's conscience to think that a person could be convicted of manslaughter absent any moral fault based on foreseeability of harm. Conversely, it might well shock the public's conscience to convict a person who has killed another only of aggravated assault -- the result of requiring foreseeability of death -- on the sole basis that the risk of death was not reasonably foreseeable. The terrible consequence of death demands more. In short, the mens rea requirement which the common law has adopted -- foreseeability of harm -- is entirely appropriate to the stigma associated with the offence of manslaughter. To change the mens rea requirement would be to risk the very disparity between mens rea and stigma of which the appellant complains.

Creighton illustrates the principle -- recognized previously in cases such as R. v. Hundal and R. v. DeSousa -- that there is no general constitutional requirement of subjective fault for all criminal offences. An objective standard of fault is constitutionally sufficient for a broad range of offences other than those falling within the parameters mentioned in Vaillancourt. The Supreme Court's more recent decision in R. v. Beatty teaches that negligence can support criminal fault. That is, a conviction for dangerous operation of a motor vehicle can be supported where the negligent conduct amounted to a marked departure from the standard of care that a reasonable person would observe. The court wrote:

Therefore, as noted by Cory J., the difficulty of requiring positive proof of a particular subjective state of mind lends further support to the notion that mens rea should be assessed by objectively measuring the driver's conduct against the standard of a reasonably prudent driver. In addition, I would note that the automatic and reflexive nature of driving gives rise to the following consideration. Because driving, in large part, is automatic and reflexive, some departures from the standard expected of a reasonably prudent person will inevitably be the product, as Cory J. states, of "little conscious thought". Even the most able and prudent driver will from time to time suffer from momentary lapses of attention. These lapses may well result in conduct that, when viewed objectively, falls below the standard expected of a reasonably prudent driver. Such automatic and reflexive conduct may even pose a danger to other users of the highway. Indeed, the facts in this case provide a graphic example. The fact that the danger may be the product of little conscious thought becomes of concern because, as McLachlin J. (as she then was) aptly put it in R. v. Creighton: "The law does not lightly brand a person as a criminal." In addition to the largely automatic and reflexive nature of driving, we must also consider the fact that driving, although inherently risky, is a legal activity that has social value. If every departure from the civil norm is to be criminalized, regardless of the degree, we risk casting the net too widely and branding as criminals persons who are in reality not morally blameworthy. Such an approach risks violating the principle of fundamental justice that the morally innocent not be deprived of liberty.

In a civil setting, it does not matter how far the driver fell short of the standard of reasonable care required by law. The extent of the driver's liability depends not on the degree of negligence, but on the amount of damage done. Also, the mental state (or lack thereof) of the tortfeasor is immaterial, except in respect of punitive damages. In a criminal setting, the driver's mental state does matter because the punishment of an innocent person is contrary to fundamental principles of criminal justice. The degree of negligence is the determinative question because criminal fault must be based on conduct that merits punishment.

For that reason, the objective test, as modified to suit the criminal setting, requires proof of a marked departure from the standard of care that a reasonable person would observe in all the circumstances. As stated earlier, it is only when there is a marked departure from the norm that objectively dangerous conduct demonstrates sufficient blameworthiness to support a finding of penal liability. With the marked departure, the act of dangerous driving is accompanied with the presence of sufficient mens rea and the offence is made out. The Court, however, added a second important qualification to the objective test -- the allowance for exculpatory defences.

Beatty established that it is constitutionally permissible for the fault standard for the offence of dangerous driving to be objective. There had previously been similar interpretations of the fault standard for other offences related to highly regulated matters, such as use of firearms (R. v. Finlay), or offences where societal norms require adherence to a standard of conduct, such as providing the necessaries of life to children (R. v. Naglik).

In Darrach, this court considered whether s. 273.2(b) of the Code infringes s. 7 of the Charter. As stated above, s. 273.2(b) provides that a belief in consent is not a defence to a charge of sexual assault if "the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting". Morden A.C.J.O. decided the case under the assumption that sexual assault constitutes a high-stigma offence. However, he held that, "notwithstanding s. 273.2(b), the offence is still largely one based on subjective fault -- at least to a level that would satisfy constitutional requirements". He reasoned as follows:

No doubt, the provision can be regarded as introducing an objective component into the mental element of the offence but it is one which, in itself, is a modified one. It is personalized according to the subjective awareness of the accused at the time. The accused is to "take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting". In other words, the accused is not under an obligation to determine all the relevant circumstances -- the issue is what he actually knew, not what he ought to have known.

In addition, while the provision requires reasonable steps, it does not require that all reasonable steps be taken . . . as does s. 150.1(4) of the Criminal Code, which is referred to in the judgment of the Supreme Court of Canada in R. v. Hess; R. v. Nguyen, 1990 CanLII 89 (SCC). Clearly, "all reasonable steps" imposes a more onerous burden than that in s. 273.2(b). I, of course, do not intend to express any view on the constitutionality of s. 150.1(4).

The subjective mens rea component of the offence remains largely intact. The provision does not require that a mistaken belief in consent must be reasonable in order to exculpate. The provision merely requires that a person about to engage in sexual activity take "reasonable steps . . . to ascertain that the complainant was consenting." Were a person to take reasonable steps, and nonetheless make an unreasonable mistake about the presence of consent, he or she would be entitled to ask the trier of fact to acquit on this basis.

The thrust of Morden A.C.J.O.'s reasoning in Darrach is that, although s. 273.2(b) of the Code introduces an objective dimension to the fault standard for sexual assault, namely, a requirement to take "reasonable steps", there remains a sufficient subjective element to the standard that enables it to withstand constitutional attack. Sexual assault is not an offence resting purely on the accused's subjective belief; physical contact of a sexual nature is ordinarily an essential element of the offence. It also did not then attract a minimum jail sentence. It is therefore not one of those rare offences for which purely subjective fault is necessary. It was Morden A.C.J.O.'s view that this conclusion would not amount to punishing the morally innocent, as "it is difficult to contemplate that a man who has sexual intercourse with a woman who has not consented is morally innocent if he has not taken reasonable steps to ascertain that she was consenting".

(ii) Application to s. 172.1(4) of the Code

I agree with the trial judge that the reasonable steps requirement in s. 172.1(4) does not infringe s. 7 of the Charter.

To begin, I accept the appellant's submission that conviction for the offence of child luring carries a high degree of stigma and moral blameworthiness for the accused. Child luring is an inchoate offence that prohibits conduct preparatory to the commission of a designated offence involving the sexual exploitation of children. Engaging in this preparatory conduct over the Internet involves "luring" or "grooming" young persons to commit or participate in the prohibited conduct; by reducing their inhibitions; or by prurient discourse that exploits a young person's curiosity, immaturity or precocious sexuality. It also often involves cultivating a sense of trust in the young person with a view to taking advantage of that trust for a sexual purpose. This is conduct that rightly invites significant social disapprobation and moral blameworthiness.

This conclusion is bolstered by the fact that conviction for child luring under s. 172.1(1) carries a punishment under s. 172.1(2) of imprisonment of up to 14 years, a mandatory minimum of one year for indictable offences and a mandatory minimum of 90 days for summary conviction offences. The severity of the punishment, including mandatory terms of imprisonment, is an indication by Parliament of the social opprobrium visited upon those convicted of child luring. Similarly, the fact that an offender is subject to registration under SOIRA, as Morrison was in this case, is indicative of the stigma associated with the underlying sexual offence.

The stigma of child luring, however, cannot be said to be as high as the stigma of murder. As Lamer J. C.J.C. wrote in Martineau, murder is "the most serious of crimes" and "has long been recognized as the 'worst' and most heinous of peace time crimes". The high stigma associated with a conviction for child luring does not necessarily put it into the rare category of offences recognized in Vaillancourt as requiring subjective fault under s. 7 of the Charter.

I also accept that an accused's failure to take reasonable steps to ascertain the age of an online interlocutor adds an objective dimension to the fault standard for the child-luring offence. This proposition emerges upon consideration of the elements of the offence under s. 172.1 and the degree of fault that may result in conviction. In some cases, as here, the allegation is that the accused's Internet communication was made to facilitate the commission of the offence of an invitation to sexual touching of a person under 16 years of age. In this context, the child luring offence amounts to communication for the purpose of extending the invitation, counsel or incitation. The same communication may underlie both the actus reus and mens rea elements. Where this occurs in the context of a sting operation, and the sexual purpose is evident from the text of the communication, criminal liability will likely turn on two issues:

1. First, has the Crown proven that the accused subjectively believed his interlocutor was underage? The Crown could not prove this without some evidentiary foundation for such a belief, such as a representation made to the accused. If the Crown establishes beyond a reasonable doubt that the accused believed his interlocutor was underage, conviction will follow.

2. Second, where the Crown is unable to establish this subjective belief, the issue of reasonable steps arises. Even in the absence of proof of a belief that the other person was underage, the accused will be convicted if the Crown proves that he did not take reasonable steps to ascertain the age of the other person. This will occur in a context where there is some evidence that could lead an accused to believe his interlocutor was underage.

I therefore do not agree with the Crown's submission that, because a conviction for child luring requires the accused to have had the specific intention to facilitate a designated offence, the actual level of fault in s. 172.1 of the Code is fully subjective. A failure to take the steps expected of a reasonable person is by definition negligence and may be sufficient to support conviction where, as above, the communication envisaged by s. 172.1 and the invitation proscribed in s. 152 are co-extensive.

On the other hand, s. 172.1(b) contemplates the facilitation of other offences, most involving physical contact:

• (i) section 151: sexual interference, touching a person under 16 years of age for a sexual purpose;
• (ii) section 160(3): bestiality in the presence of a child;
• (iii) section 173(2): exposure of genitals to a person under 16 years of age;
• (iv) section 271: sexual assault;
• (v) section 272: sexual assault with a weapon or causing bodily harm;
• (vi) section 273: aggravated sexual assault, sexual assault which maims, disfigures or endangers the life of the complainant;
• (vii) section 280: abduction of a person under 16 years of age.

I do agree with the Crown that the determination as to whether the Internet communication contemplated by s. 172.1 was made for the purpose of facilitating one of these other offences usually involving physical contact will be determined substantially on a subjective basis.

However, returning to the reasonable steps requirement in s. 172.1(4) of the Code impugned by Morrison, I conclude that properly interpreted, this encompasses more than a purely objective fault standard. Section 172.1(4), analogously to s. 273.2(b) of the Code, has been interpreted as only requiring a person accused of child luring to have taken the reasonable steps in the circumstances known to him or her to ascertain the age of the online interlocutor, rather than "all reasonable steps" from a purely objective perspective. The accused must have taken some steps and they must have been reasonable in light of the known circumstances. The subjective dimension of s. 172.1(4) is analogous to that of s. 273.2(b) of the Code, which was held by Morden A.C.J.O. in Darrach to have diluted what would otherwise be a purely objective standard of fault.

Section 273.2(b) of the Code differs from s. 172.1 in that the former specifically includes the words "in the circumstances known to the accused at the time". However, in light of the presumption that true crimes have a subjective fault component, I would interpret s. 172.1 in the same way. This is particularly important when dealing with an area where there are no well-established norms. Internet communications are quite unlike driving a motor vehicle or operating firearms. To speak of a "marked departure" from the conduct of a reasonable person seems inapt in the context of Internet communications.

No doubt, even if the reasonable steps requirement in s. 172.1(4) is analogous to that in s. 273.2(b), it still has an objective dimension. The fault element for child luring established by subsection (4) is not purely subjective, even if it is not purely objective. However, I am not persuaded that the stigma of being convicted of child luring constitutionally mandates a purely subjective standard of fault, akin to the stigma of murder. As in Darrach, it is difficult to contemplate that a person who continues a sexual conversation where there is reason to believe his or her interlocutor is under age is "morally innocent". The moral culpability associated with failing to take reasonable steps to ensure that one's online communications do not amount to sexual predation of children is proportionate to the degree of stigma attached to the child luring offence, particularly given that the catastrophic consequences for child victims of Internet luring are widely accepted and acknowledged.

For these reasons, I conclude that the reasonable steps requirement in s. 172.1(4) of the Code does not infringe s. 7 of the Charter. This is the central ground Morrison advances for this court to interfere with the trial judge's decision to convict him for failing to take reasonable steps to ascertain the other person's age beyond a reasonable doubt. Therefore, Morrison's appeal from his conviction is dismissed.

I shall turn now to address the Crown's sentence appeal. As discussed below, the possibility that a person accused of child luring may be convicted where it is proven beyond a reasonable doubt that he or she failed to take reasonable steps to support a belief that the other participant was of legal age -- that he or she was negligent -- has consequences for the constitutional validity of the mandatory minimum sentence to which I now turn.

C. The Sentence Appeal

(1) Decision of the Trial Judge

After finding Morrison guilty of child luring, the trial judge addressed Morrison's constitutional challenge to the one-year mandatory minimum sentence in s. 172.1(2) of the Code. He concluded that the minimum was contrary to s. 12 of the Charter because it was grossly disproportionate in relation to Morrison's circumstances, finding it unnecessary to consider hypothetical offenders.

In determining what would be an appropriate sentence for Morrison, he stated that, because Morrison was found to be unreasonably indifferent to the age of the interlocutor with whom he was communicating, his conduct was less blameworthy than an offender who enters into communications with an interlocutor who he knows or actively hopes is underage. Morrison was guilty of continuing a dialogue without taking reasonable steps to ensure the he was not communicating with a child. The fact that Morrison proposed a face-to-face encounter was an aggravating factor, but it had limited weight because there was no indication of what, if any, sexual offence might have been facilitated by the meeting. There was no actual harm, but the sexual communications exchanged by Morrison could have had the effect of damaging the emotional and sexual well-being of a 14-year-old female had he been communicating with her instead of a police officer.

The trial judge found that Morrison had an unblemished character, with no prior criminal convictions, and was a productive member of society who held seasonal employment as a groundskeeper at a local golf course. He had been in a common law relationship for 15 years and was a stepfather and step grandfather to his spouse's offspring. He did not suffer from a mental disability or depression. He was old enough to appreciate the need to take reasonable care to ensure that sexually explicit communications are not conducted with someone who might be underage.

The trial judge held that, in the absence of the mandatory minimum, he would have imposed a sentence of four months' imprisonment, followed by a period of probation, in order to achieve the goals of general and specific deterrence, denunciation and the need to separate the offender from the community. He held that the one-year mandatory minimum was grossly disproportionate to this benchmark, citing Morrison's comparatively lower moral blameworthiness, his previous good character and that fact that, being in his late sixties, a longer term of imprisonment would be harsh.

(2) Positions of the Parties

On appeal, the Crown submits that the trial judge erred in concluding that a four-month sentence would have been appropriate for Morrison in the absence of the mandatory minimum in s. 172.1(2) of the Code.

The Crown says that the trial judge erred in characterizing Morrison's blameworthiness as indifference to the age of his online interlocutor. At trial, the trial judge concluded that there was a reasonable doubt that Morrison believed that his interlocutor was underage. But, contrary to the reasoning of the trial judge, this does not mean that Morrison positively believed that his interlocutor was an adult.

Thus, the Crown says, there is no basis for the trial judge's attribution of diminished culpability to Morrison. Morrison's culpability should have been determined on the basis of his subjective intention to facilitate invitation to sexual touching with his interlocutor. In this respect, Morrison's blameworthiness was high.

The Crown submits that the trial judge erred in holding that a four-month term of imprisonment would have been an appropriate sentence for Morrison because he did not follow this court's suggestion in R. v. Jarvis, that the sentencing range for the offence of child luring should be between 12 to 24 months. He also did not consider this court's subsequent caution that the range should be increased in light of amendments doubling the maximum penalty for this offence from 5 to ten years' imprisonment. The Crown urges this court to at least adopt the range endorsed in Jarvis.

Finally, the Crown submits that this court should not find the mandatory minimum in s. 172.1(2) grossly disproportionate in three reasonable hypothetical cases mentioned by the trial judge, one of which was developed by Griffin J. in R. v. S. (S.).

In response, Morrison submits that the trial judge was correct to hold that the blameworthiness of an offender convicted under s. 172.1(1)(b) may vary based on the nature of the offence. The trial judge properly recognized that the provision can capture those who are unreasonably indifferent to the age of the interlocutor and those who seek out or hope that the interlocutor is underage. The indifferent offender is less culpable than the deliberate offender. Furthermore, the trial judge correctly took into account Morrison's lack of a prior criminal record and his age in concluding that a one-year term of imprisonment would be grossly disproportionate.

Morrison also submits that the one-year mandatory minimum sentence is grossly disproportionate to the sentences which would be imposed for the reasonable hypotheticals advanced in the court below.

(3) Analysis

(i) Legal Principles

Section 12 of the Charter provides:

12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

The test for whether punishment is cruel and unusual under s. 12 asks whether it is grossly disproportionate to what would be appropriate punishment. This is a "high bar"; the punishment must be "more than merely excessive". Punishment is cruel and unusual if it is "so excessive as to outrage standards of decency", such that Canadians would find it "abhorrent or intolerable".

The Supreme Court has developed an analytical framework for assessing the constitutionality of mandatory minimum sentences under s. 12 in R. v. Lloyd and R. v. Nur. Lloyd addressed a one-year minimum sentence under the Controlled Drugs and Substances Act. The following principles are extracted from that decision:

• A sentence will infringe s. 12 if it is "grossly disproportionate" to the punishment that is appropriate, having regard to the nature of the offence and the circumstances of the offender.
• A law will violate s. 12 if it imposes a grossly disproportionate sentence on the individual before the court, or if the law's reasonably foreseeable applications will impose grossly disproportionate sentences on others.
• First, the court must determine what constitutes a proportionate sentence for the offence having regard to the objectives and principles of sentencing in the Criminal Code.
• Second, the court must determine whether, in view of the fit and proportionate sentence, the mandatory minimum sentence is grossly disproportionate to the offence and its circumstances. If so, the provision violates s. 12.
• The wider the range of conduct and circumstances captured by the mandatory minimum, the more likely it is that the mandatory minimum will apply to offenders for whom the sentence would be grossly disproportionate.

Further to this final point, McLachlin C.J.C. emphasized in Lloyd, that mandatory minimum sentences that "apply to offences that can be committed in various ways, under a broad array of circumstances and by a wide range of people are vulnerable to constitutional challenge":

This is because such laws will almost inevitably include an acceptable reasonable hypothetical for which the mandatory minimum will be found unconstitutional. If Parliament hopes to sustain mandatory minimum penalties for offences that cast a wide net, it should consider narrowing their reach so that they only catch offenders that merit the mandatory minimum sentences.

She described the degree of disproportion that the one-year minimum jail sentence in the CDSA would effect:

First, it applies to any amount of Schedule I substances. As such, it applies indiscriminately to professional drug dealers who sell dangerous substances for profit and to drug addicts who possess small quantities of drugs that they intend to share with a friend, a spouse, or other addicts.

Second, the definition of "traffic" in the CDSA captures a very broad range of conduct. It targets not only people selling drugs, but all who "administer, give, transfer, transport, send or deliver the substance" (s. 2(1)), irrespective of the reason for doing so and regardless of the intent to make a profit. As such, it would catch someone who gives a small amount of a drug to a friend, or someone who is only trafficking to support his own habit.

Third, the minimum sentence applies when there is a prior conviction for any "designated substance offence" within the previous 10 years, which captures any of the offences in ss. 4 to 10 of the CDSA, except the offence of simple possession. In addition, the prior conviction can be for any substance, in any amount -- even, for example, a small amount of marihuana.

At one end of the range of conduct caught by the mandatory minimum sentence provision stands a professional drug dealer who engages in the business of dangerous drugs for profit, who is in possession of a large amount of Schedule I substances, and who has been convicted many times for similar offences. At the other end of the range stands the addict who is charged for sharing a small amount of a Schedule I drug with a friend or spouse, and finds herself sentenced to a year in prison because of a single conviction for sharing marihuana in a social occasion nine years before. I agree with the provincial court judge that most Canadians would be shocked to find that such a person could be sent to prison for one year.

Another foreseeable situation caught by the law is the following. A drug addict with a prior conviction for trafficking is convicted of a second offence. In both cases, he was only trafficking in order to support his own addiction. Between conviction and the sentencing he goes to a rehabilitation centre and conquers his addiction. He comes to the sentencing court asking for a short sentence that will allow him to resume a healthy and productive life. Under the law the judge has no choice but to sentence him to a year in prison. Such a sentence would also be grossly disproportionate to what is fit in the circumstances and would shock the conscience of Canadians.

(ii) Does s. 172.1(2) of the Code Infringe s. 12 of the Charter?

I consider first what would have been a fit and appropriate sentence for Morrison in this case, given the nature of his offence of child luring and his circumstances. The trial judge held that a four-month term of imprisonment followed by a probation period would be fit.

The Crown submits that, in determining what sentence would be appropriate without regard to the mandatory minimum, the trial judge erred in concluding that Morrison's moral blameworthiness was diminished. I do not agree. The Crown failed to prove that the accused believed he was communicating with an underage person. It did prove he failed to take reasonable steps to ascertain the age of the other person. This degree of fault, negligence, taking into account what was known to Morrison, is significantly less blameworthy than the conduct of someone who, for example, deliberately sets about to lure a child. It is axiomatic that a person who commits an offence by negligence is less morally blameworthy than someone who intentionally commits a criminal offence. In Creighton, McLachlin J. noted that "those causing harm intentionally must be punished more severely than those causing harm unintentionally". She distinguished between the moral culpability for murder, which attracted a mandatory life sentence, and the moral culpability for manslaughter, for which there was no minimum sentence:

Murder entails a mandatory life sentence; manslaughter carries with it no minimum sentence. This is appropriate. Because manslaughter can occur in a wide variety of circumstances, the penalties must be flexible. An unintentional killing while committing a minor offence, for example, properly attracts a much lighter sentence than an unintentional killing where the circumstances indicate an awareness of risk of death just short of what would be required to infer the intent required for murder. The point is, the sentence can be and is tailored to suit the degree of moral fault of the offender.

The Crown also submits that a four-month sentence this case was manifestly unfit for Morrison. It says that this ruling did not give adequate weight to this court's statement in Jarvis that the sentencing range for the offence of child luring should be between 12 and 24 months or the subsequent statements in Woodward that the range may need to be increased.

I also reject this submission. The trial judge explicitly referred to Jarvis in his reasons for sentence, comparing the circumstances of the offender in that case and Morrison's circumstances, and carefully distinguished its application from this case. He also gave comprehensive consideration to the relevant aggravating and mitigating factors in this case.

The trial judge stated, at para. 80 of his reasons for sentence, that "[t]he case law is clear that the predominant sentencing principles applicable to the child luring offence are general and specific deterrence, denunciation and the need to separate offenders from society". This is consistent with the guidance offered by this court in Woodward. Moldaver J.A. (as he then was) wrote:

. . . I wish to emphasize that when trial judges are sentencing adult sexual predators who have exploited innocent children, the focus of the sentencing hearing should be on the harm caused to the child by the offender's conduct and the life-altering consequences that can and often do flow from it. While the effects of a conviction on the offender and the offender's prospects for rehabilitation will always warrant consideration, the objectives of denunciation, deterrence, and the need to separate sexual predators from society for society's well-being and the well-being of our children must take precedence.

I note that in Alicandro, a case following Jarvis but preceding Woodward, this court upheld a sentence of 90 days' intermittent imprisonment days imposed by the trial judge for the offence of child luring. Like the present case, Alicandro also involved a sting operation where the accused was communicating with an undercover police officer.

I acknowledge that in Woodward, at para. 58, this court expressed the opinion that an upward change to the 12- to 24-month sentencing range for child luring referred to in Jarvis "needs to be revised", and that "much stiffer sentences, in the range of three to five years, might well be warranted to deter, denounce and separate from society adult predators who would commit this insidious crime". The conduct of which the offender in Woodward was convicted was much more serious than Morrison's conduct in this case. It involved offers of exorbitant sums of money for the 12-year-old complainant to have sex with him; gaining the complainant's trust by letting her discuss her personal life; having a face-to-face meeting with the complainant at which sexual acts were performing, including oral and vaginal intercourse; pretending to call a bank in the complainant's presence to transfer millions of dollars to her; and telling the complainant that her age did not matter. This court affirmed the trial judge's global sentence of six and one-half years. The opinion expressed in Woodward has been followed in cases where the child-luring offence at issue was similarly serious.

By contrast, in Dragos, this court likewise acknowledged the opinion expressed in Woodward, but proceeded to affirm a 23-month sentence for child luring, which was within the range referred to in Jarvis. The range was also adhered to as recently as R. v. Rafiq, in which this court imposed a sentence of two years' imprisonment for child luring even though, referencing Woodward, it commented that an upward revision to the Jarvis range would "[a]rguably" be required.

What emerges from this brief review of the case law on the range is that the parameters established in Jarvis are flexible and dependent on the particular facts of the case. The range of seriousness of offences committed under s. 172.1 is evidently very wide.

As with all sentencing decisions, much will depend on the specific facts of the case and the circumstances of the offender and the nature of the offence at issue. Here, the trial judge considered these facts comprehensively and correctly sought the guidance set out in Woodward. I can discern no error in principle that would undermine the trial judge's assessment that a sentence of four months' imprisonment was appropriate for this offence and this offender.

I conclude that this supplies an accurate benchmark against which to measure whether the mandatory minimum in s. 172.1(2) of the Code is grossly disproportionate in relation to Morrison in applying the s. 12 Charter framework.

In my view, the disparity between the one-year mandatory minimum and what would otherwise be a fit and appropriate sentence for Morrison is sufficient to meet the high bar of gross disproportionality under s. 12. Morrison's blameworthiness is diminished in that it cannot be said that he believed his interlocutor was underage when engaging in sexualized conversations. He is culpable only for having acted unreasonably in failing to take steps to ensure that the other person was not underage. Communication online with an adult for a sexual purpose is not in itself a crime. Although his communications persisted for some two months, it cannot be said that he knowingly embarked on a systematic process of grooming a young person for sexual activity or to facilitate commission of a sexual assault that would merit a substantial sentence of imprisonment well above the fourth months he received. In this sense, the facts of this case are distinguishable from those in Woodward. There was never any face-to-face encounter and, as the trial judge found significant, there was no indication Morrison intended to commit a physical sexual offence in relation to an underage child. He eventually ended his communications unilaterally. He is in his late sixties, is a productive member of society and has no criminal record. The child luring offence must be taken seriously given the potential harm it could result in for the most vulnerable members of our society, but in this case no actual harm resulted from Morrison's transgression.

On the other hand, an offender who knowingly embarks on a systematic process of grooming a young person for sexual activity or to facilitate commission of a sexual assault would merit a substantial sentence of imprisonment, in some cases, well above the mandatory minimum.

Application of the mandatory minimum to such a wide range of behaviour would result in sentences that are grossly disproportionate for some individuals. The Supreme Court has held in Nur and Lloyd that mandatory minimum prison sentences having this character are more prone to infringe s. 12 of the Charter.

I conclude that Canadians would find it abhorrent and intolerable to their sense of decency that offenders whose blameworthiness comes close to negligence or whose comparative blameworthiness is similarly less serious would be sentenced to a minimum of one year in jail.

I therefore need not consider the reasonable hypotheticals put to the trial judge as other examples of instances in which a one-year minimum would amount to a grossly disproportionate sentence.

The Crown did not attempt to justify any s. 12 infringement under s. 1 of the Charter.

The mandatory minimum sentence of one year of imprisonment contained in s. 172.1(2)(a) of the Code is therefore of no force or effect pursuant to s. 52(1) of the Constitution Act, 1982.

I would dismiss the Crown's appeal from the trial judge's decision on sentence.

D. Disposition

Accordingly, for these reasons, the appeals by both the accused and the Crown are dismissed.

Appeals dismissed.

End of Document