Canada: Supreme Court tightens Internet luring of children rules
How Appealing reports on the ruling by the Canadian Supreme court in the case of R. v. Legare, 2009 SCC 56.
Excerpts from the opinion’s introduction:
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A 32‑year‑old Alberta man, who had claimed online to be 17, engaged in two private online “chats” with the complainant, a 12‑year‑old Ontario girl. Both private chats were sexual in nature, and the second included words uttered by both parties indicating a desire to engage in explicit sexual activity with one another. During this second chat, the accused asked the complainant to e‑mail her photo to him. She made two attempts, both in vain. Later, the accused inquired about her age — “and u r 14”. The complainant replied that she was 13. The complainant gave the accused her phone number; he, in turn, gave her his postal address. The accused told the complainant that he would call her to “talk dirty”. He called immediately afterward and, in the second of two conversations, told the complainant — in coarse and explicit language — that he “would love” to perform oral sex on her. The complainant hung up and there were no further calls. The accused was subsequently arrested and charged, inter alia, with one count of “luring a child” contrary to s. 172.1(1)(c) of the Criminal Code. At trial, the accused was acquitted, but the Court of Appeal set aside the acquittal and ordered a new trial, finding that the trial judge misdirected himself as to the essential elements of the offence.
Held: The appeal should be dismissed.
The trial judge, in acquitting the accused, adopted an unduly restrictive construction of s. 172.1(1)(c) of the Criminal Code and misapprehended the essential elements of the offence. Section 172.1(1)(c) creates an inchoate offence consisting of three elements: (1) an intentional communication by computer; (2) with a person whom the accused knows or believes to be under 14 years of age; (3) for the specific purpose of facilitating the commission of a specified secondary offence with respect to the underage person. The focus of s. 172.1 is on the accused’s intention at the time of communication by computer and that intention must be determined subjectively. While sexually explicit comments may suffice to establish the criminal purpose of the accused, the content of the communication is not necessarily determinative. The offender need not meet or intend to meet the victim with a view to committing any of the specified secondary offences. “Facilitating”, in this context, includes helping to bring about and making easier or more probable. Finally, it is neither necessary nor particularly helpful to recast the elements of the offence in terms of the actus reus or mens rea components. In this unusual context, determining whether each of the essential elements of the offence constitutes all or part of the actus reus or mens rea of s. 172.1(1)(c) is of no assistance in reaching the appropriate verdict. More particularly, forcibly compartmentalizing the underage requirement of s. 172.1(1)(c) — “a person who is, or who the accused believes is, under the age of 14 years. . .” — as either part of the actus reus or part of the mens rea, may well introduce an element of confusion in respect of both concepts. [3] [6] [25] [28‑29] [31‑32] [36] [38‑39]] [42] [44]