Last modified on 20 January 2013, at 16:39

Canadian Criminal Sentencing/Offences/Child Luring

Child Luring
s. 172.1 of the Crim. Code
Election / Plea
Crown Election Hybrid
Jurisdiction Prov. Court
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum 90 days jail
Maximum 18 months jail or $5,000 fine
Indictable Dispositions
Avail. Disp. same as summary
Minimum 1 year jail
Maximum 10 years jail
References
Offence Elements
Sentence Principles
Sentence Digests
Comments
DNA Primary designated offence
SOIRA designated offence

LegislationEdit

Luring a child
172.1 (1) Every person commits an offence who, by means of a computer system within the meaning of subsection 342.1(2), communicates with

(a) a person who is, or who the accused believes is, under the age of eighteen years, for the purpose of facilitating the commission of an offence under subsection 153(1), section 155 or 163.1, subsection 212(1) or (4) or section 271, 272 or 273 with respect to that person;
(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 280 with respect to that person; or
(c) a person who is, or who the accused believes is, under the age of 14 years, for the purpose of facilitating the commission of an offence under section 281 with respect to that person.


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 10 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 18 months and to a minimum punishment of imprisonment for a term of 90 days.


...
2002, c. 13, s. 8; 2007, c. 20, s. 1; 2008, c. 6, s. 14; 2012, c. 1, s. 22.


CCC

ApplicationEdit

For general principles on sentence for sexual offences, see Sexual Offences

PrinciplesEdit

The purpose of the enactment of s. 172.1 was "to shut [the] door on predatory adults who, generally for a sexual purpose, troll the Internet for vulnerable children and adolescents. Shielded by the anonymity of an assumed online name and profile, they aspire to gain the trust of their targeted victims through computer "chats" -- and then to tempt or entice them into sexual activity, over the Internet or, still worse, in person.”[1]

The focus should be on denunciation and deterrence resulting in some institutional time.[2]

The starting point for luring with no record is 12 months[3] and typically runs as high as 24 months.[4] Where there is a record the range is between 15 to 24 months. Two years or more is usually where the offence includes another related sexual offence.[5]

  1. R. v. Legare, 2009 SCC 56
  2. R. v. Folino, 2005 CanLII 40543 (ON CA) at 25
    R. v. Jepson, [2004] O.J. No. 5521 (Sup. Ct.) at para. 19
  3. R v Daniels 2008 ABPC 252
  4. R. v. Jarvis (2006), 211 C.C.C. (3d) 20 (ONCA) at para. 31
    R v Folino at para. 25
    R. v. Alicandro, 2009 ONCA 133 at para. 49
  5. R v Daniels, ibid

FactorsEdit

AggravatingEdit

  • Age or simulated age of complainant
  • the offender sending explicit images to victim
  • amount of grooming done by offender (amount of sex talk, encouragement to perform sex acts)
  • communications over a long duration
  • offender attempted to arrange a meeting
  • meeting resulted in sexual assault or attempt
  • offence included the creation of child pornography

MitigatingEdit

  • youthful offender
  • offender close in age to complainant
  • complainant was simulated by undercover officer

Conditional SentencesEdit

Conditional sentences have been said to be available in the "rarest of cases".[1] Other courts have commented that this "rareness" standard is too strict.[2] It was suggested that at the least, exceptional circumstances are expected:[3]

  1. a negligible risk of recidivism
  2. acceptance of responsibility
  3. Participation and progress in an appropriate treatment program
  4. a devastating impact on the offender and his family
  5. assaults by other inmates while in custody awaiting release
  6. medical evidence suggesting encarceration would put him at “risk of fatal dissociation culminating in possible suicide..." and being in a "very fragile mental and physical state”.
  1. R v Folino at para. 25
  2. R v El-Jamel, 2010 ONCA 575 at para 17
  3. R v El-Jamel, 2010 ONCA 575 at para 36 Watt J.A. in dissent

Recommended Probationary TermsEdit

  • No contact with victim or victim's family (if facts involve actual child)
  • No contact with persons under age of 16 or 18
  • No access or possession of devices capable of accessing the internet
  • Treatment/Counselling
  • No alcohol or drugs (if facts involve them)

Ancillary OrdersEdit


See AlsoEdit