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Canadian Criminal Law/Offences/Child Luring

< Canadian Criminal Law | Offences
Child Luring
s. 172.1 of the Crim. Code
Election / Plea
Crown ElectionHybrid
JurisdictionProv. 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)
Minimum90 days jail
Maximum18 months jail or $5,000 fine
Indictable Dispositions
Avail. Disp.same as summary
Minimum1 year jail
Maximum10 years jail
References
Offence Elements
Sentence Principles
Sentence Digests
Comments
DNA Primary designated offence
SOIRA designated offence
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Legislation

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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.

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.

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


– CCC

Proof of Offence

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172.1(1)(a)
The crown should prove the following elements:

  1. accused communicated by means of a computer system (see s. 342.1(2))
  2. the accused communicated to a person who
    1. is under the age of 18 or
    2. is believed to be under the age of 18
  3. accused’s “specific purpose” in communicating is to facilitate the commission of a specified secondary offence with respect to the under-aged person. (specifically section 153(1), 155 or 163.1, 212(1) or (4), 271, 272 or 273)

172.1(1)(b)
The crown should prove the following elements:

  1. accused communicated by means of a computer system (see s. 342.1(2))
  2. the accused communicated to a person who
    1. is under the age of 16 or
    2. is believed to be under the age of 16
  3. accused’s “specific purpose” in communicating is to facilitate the commission of a specified secondary offence with respect to the under-aged person. (specifically section 151, 152, 160(3) or 173(2) or 280)

172.1(1)(c)
The crown should prove the following elements:[1]

  1. accused communicated by means of a computer system (see s. 342.1(2))
  2. the accused communicated to a person who
    1. is under the age of 14 or
    2. is believed to be under the age of 14
  3. accused’s “specific purpose” in communicating is to facilitate the commission of a specified secondary offence with respect to the under-aged person. (specifically s. 281)


  1. ↑ R. v. Alicandro 2009 ONCA 133, R. v. Quinones, 2012 BCCA 94 at 5
    R. v. Legare, 2009 SCC 56 at 9

Interpretation

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The purpose of s.172.1 is to “shut that 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]

This is an “inchoate” offence that is separate and apart from the sexual offence that it precedes. It does not require the sexual offence to have happened. This includes not requiring that the accused actually go to meet the victim in person.[2] Nor is it necessary for the accused to be “objectively capable” to commit the secondary offence.[3]

  1. ↑ Legare at 2
  2. ↑ R. v. Legare, at 25
  3. ↑ Legare at 42

Purpose of Facilitating an Offence

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It is not criminal to engage in sexually explicit chats with an underage person unless the prohibited purpose is established beyond a reasonable doubt.[1]

The intent must be specific to the objective and must be determined subjectively.[2]

Facilitating can include actions that help “bring about or [make] easier or more probable the commission of such an offence, by grooming or reducing the inhibitions of a young person or by exploiting their curiosity, immaturity or precocious sexuality”.[3]

The contents of the messages can be used but are not determinative of a sexual purpose.[4] The issue must be determined on the evidence as a whole. [5]

  1. ↑ R v Pengelley
  2. ↑ Legare at 32
  3. ↑ Legare at 28
  4. ↑ R. v. Legare, 2009 SCC 56 at 31
  5. ↑ ibid.

Reasonable steps to ascertain age

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Under s. 172.1, the accused can only claim to have believed the alleged victim was not of a prohibited age where he took reasonable steps to ascertain the age of the victim. This is to foreclose any any defence based on claims of the accused without any objective evidential basis.[1]


  1. ↑ R. v. Levigne, 2010 SCC 25 at 31, 35

Typical Defences

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  • s.486 - the judge may order the exclusion of members of the public

Cases

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  • R v Pengelley, -- acquitted based on the evidence that the child’s account showed a picture of someone in their 20s.

History

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On August 9, 2012, the section was amended to include a mandatory minimum of 90 days on summary conviction and 1 year on indictable election.

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