The offence of luring a child (section 172.1 of the Criminal Code) punishes those who communicate with a person believed to be under the age of 16 years for the purpose of facilitating a sexual offence, such as sexual interference. 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).
The Criminal Code also creates a presumption about age for this offence. Evidence that the person was represented to the accused as being under the age of eighteen years, sixteen years or fourteen years (depending on the offence being facilitated) is, in the absence of evidence to the contrary, proof that the accused believed that the person was under that age. Furthermore, it is not a defence to a charge 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.
Parts of this offence were recently struck down by the Ontario Court of Appeal in the decision of R. v. Morrsion. In particular, the Court found that the section presuming the accused’s belief in the age of the person based on an online representation was unconstitutional. The Court noted that 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.
As a result, this aspect of the offence is no longer operative and it is up to the prosecutor to prove beyond a reasonable doubt that the accused believed the person he or she was communicating with was under age.
