In a decision released last week, R v Morrison, 2019 SCC 15, the Supreme Court considered various aspects of the Criminal Code that deal with the offence of child luring. The Court was asked to consider the constitutionality of three parts of the offence, and ultimately found one section to be unconstitutional and the other two as being valid.
Section 172.1(1) of the Criminal Code prohibits communication with a person who is, or who the accused believes is, under the age of 16 for the purposes of facilitating the commission of curtained designated offences against that person. The sections that were challenged were: s. 172.1(3), which states that if the person whom the accused is communicating with was represented as being underage, the accused is presumed to have believed that communication; s. 172.1(4) which bars the accuse from raising as a defence that he believed the other person was of legal age unless the accused took reasonable steps to ascertain the person’s age; and s. 172.1(2) which provides a mandatory minimum sentence of one year’s imprisonment.
The Court found that only s. 172.1(3) was unconstitutional and is now of no force and effect, as this presumption violates the accused’s section 11 Charter right’s right to be presumed innocent. This infringement of section 11 cannot be saved by section 1 of the Charter.
In light of section 172.1(3) being found to be of no force and effect, it impacts cases where the police are conducted a sting operation and where there is no actual underage victim. Instead of being able to rely on the presumption, the Crown must prove beyond a reasonable doubt that the accused believed the other person was underage. Ultimately this will likely not be too difficult for the Crown to prove, and likely won’t significantly impact the Crown’s ability to prosecute these offences.