“The Internet is an open door to knowledge, entertainment, communication — and exploitation.” This is the opening sentence in the Supreme Court’s opinion finding a 32 year old Alberta man guilty of child luring in R. v. Legare 2009 SCC 56
The Alberta man, who had claimed online to be 17, engaged inprivate online “chats” with the complainant, a 12‑year‑old Ontario girl. Both private chats were sexual in nature, and the second included words uttered indicating a desire to engage in explicit sexual activity. The accused was arrested and charged with luring a child contrary to s.172.1(1)(c) of the Criminal Code.
Pursuant to 172.1 (1) of the criminal code “Every person commits an offence who, by means of a computer system within the meaning of subsection 342.1(2), communicates with… (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.
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. The Court affirmed the decision stating the following:
“We are concerned on this appeal with legislation adopted by Parliament 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.”
The main issue in the case was the actus reus. The Court’s holding on this is summarized in the headnote as follows:
“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…
Finally, it is neither necessary nor necessarily sufficient for the impugned acts of the accused to be objectively capable of facilitating the commission of the specified secondary offence with respect to the underage person concerned. What matters is whether the evidence as a whole establishes beyond a reasonable doubt that the accused communicated by computer with an underage person for the purpose of facilitating the commission of a specified secondary offence in respect of that person.”
