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Criminal - Child Luring
Part 2
. R. v. Bertrand Marchand
In R. v. Bertrand Marchand (SCC, 2023) the Supreme Court of Canada strikes down the mandatory minimum sentencing 'child luring' provisions of CCC 172.1(2)(a-b) under Charter s.12 ['cruel and unusual treatment or punishment'].
In these provisions the court reviews the s.172.1 child luring provisions:[1] Modern means of communication, including the internet, permit unprecedented and unsupervised access to children[1] in many places once thought to be safe havens, such as their homes. Children, who now spend significant amounts of time online, are increasingly susceptible to online exploitation and abuse. The dangers of sexualizing children are increasingly well‑documented and the harms that result from their victimization are now more fully understood. As a result, Parliament has taken several steps to prevent and punish the various forms that abuse of children may take, including enacting a separate offence of child luring, which is set out at s. 172.1(1) of the Criminal Code, R.S.C. 1985, c. C-46. This offence is committed when an adult uses technology to communicate with a child, or a person believed to be a child, for the purposes of facilitating a designated secondary sexual offence against that child.[2] Luring is a hybrid offence that carries two different mandatory minimum periods of incarceration depending on whether the Crown elects to proceed summarily or by indictment.
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II. The Luring Offence
[6] Since 1987, Parliament has taken a “child‑centred” approach to sexual offences against children, emphasized the inherently exploitative nature of adult/child sexual contact, and focussed on the profound harms these crimes produce (see Bill C‑15, An Act to amend the Criminal Code and the Canada Evidence Act, R.S.C. 1985, c. 19 (3rd Supp.); Friesen, at para. 53).
[7] To protect a range of social interests, Parliament enacted the offence of “luring a child”, at s. 172.1 of the Criminal Code, in 2002 (Criminal Law Amendment Act, 2001, S.C. 2002, c. 13, s. 8), and introduced the mandatory minimum sentences in s. 172.1(2)(a) and (b) of that provision, in 2012 (Safe Streets and Communities Act, S.C. 2012, c. 1, s. 22). The online world and digital communications between adults and children warrant special regulation because children are particularly vulnerable to manipulation in online settings (R. v. Rayo, 2018 QCCA 824, at para. 141 (CanLII), per Kasirer J.A.). The internet has infinitely expanded the opportunity for offenders to attract or ensnare children and the enactment of a distinct crime protects them from the possibility of sexual exploitation facilitated by the internet (R. v. Reynard, 2015 BCCA 455, 378 B.C.A.C. 293, at para. 19). The luring offence helps keep children safe in a virtual environment and was intended to meet “the very specific danger posed by certain kinds of communications via computer systems” (R. v. Alicandro, 2009 ONCA 133, 95 O.R. (3d) 173, at para. 36, per Doherty J.A.).
[8] Parliament thus created this inchoate preparatory offence to criminalize sexualized communications with children that precede or pave the way for the perpetration of other offences set out in the Criminal Code (Rayo, at para. 9; R. v. Legare, 2009 SCC 56, [2009] 3 S.C.R. 551, at para. 25; Alicandro, at para. 20, citing A. Ashworth, Principles of Criminal Law (5th ed. 2006), at pp. 468‑70). The purpose of s. 172.1 is both remedial and preventative. It was enacted “to combat the very real threat posed by adult predators who attempt to groom or lure children by electronic means” (Morrison, at para. 39). The provision seeks to safeguard children from sexual abuse by identifying and apprehending offenders before they commit a designated offence (Legare, at paras. 25-27, citing Alicandro).
[9] Section 172.1(1) and (2) reads:172.1 (1) Every person commits an offence who, by a means of telecommunication, communicates with
(a) a person who is, or who the accused believes is, under the age of 18 years, for the purpose of facilitating the commission of an offence with respect to that person under subsection 153(1), section 155, 163.1, 170, 171 or 279.011 or subsection 279.02(2), 279.03(2), 286.1(2), 286.2(2) or 286.3(2);
(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 271, 272, 273 or 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.
(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 14 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 two years less a day and to a minimum punishment of imprisonment for a term of six months. [10] The text, context and purpose of s. 172.1(1) demonstrates that it casts, and was intended to cast, a wide net of potential liability for those who lure children in a virtual environment. This provision is triggered by communicating by a means of telecommunication, which is defined broadly in s. 35(1) of the Interpretation Act, R.S.C. 1985, c. I-21. While the communication must be for the purpose of facilitating any one of the designated secondary offences against children found in s. 172.1, there are 20 such secondary offences listed. The scope of these secondary offences is extensive and covers a wide range of conduct, including sexual exploitation, sexual assault, incest and child pornography.
[11] Section 172.1(1) proscribes communicating by telecommunication with an underage person or a person the accused believes to be underage for the purpose of facilitating the commission of the designated secondary offences with respect to that person (R. v. Levigne, 2010 SCC 25, [2010] 2 S.C.R. 3, at para. 23; Morrison, at para. 4). While a specific intention to facilitate a designated secondary offence forms part of the requisite mens rea, criminal liability will “crystallize” before any actions are taken on the part of the accused to engage in a designated offence (R. v. Collins, 2013 ONCA 392). The offence of luring does not require that the parties ever meet or touch.
[12] Though luring requires that an offender intend to facilitate the commission of a listed secondary offence, the offence of luring is separate and independent from that secondary offence. The preparatory conduct of luring, meant to “culminate in the commission of a completed crime” (Legare, at para. 25), produces its own distinct form of wrongfulness and harms. By making luring a discrete offence, Parliament indicated that these illegal communications generate harms that are different from those caught in the secondary offences in s. 172.1(1), and they are sufficiently wrongful and harmful to ground criminal liability.
[13] Many cases of luring involve multiple communications over a period of time, or what is sometimes described as “grooming”. However, luring does not require sustained contact. When the other elements of the offence are satisfied, the offence can be committed even by sending one message.
[14] The luring offence captures communications sent to an actual child, which means a person under 18 years of age (or 16 or 14, depending on the applicable paragraph). It also applies whenever the adult believes the recipient of the communication is a child, even if that is not in fact the case. As a result, criminal liability may arise when the adult’s internet interlocutor is really a police officer pretending to be a child during a “sting operation”.
[15] Child luring is a hybrid offence, meaning that the Crown can choose, based on factors such as the seriousness of the accused’s actions and the harm caused, to proceed either by indictment or summarily. Parliament has set two mandatory minimum penalties for luring, in s. 172.1(2)(a) and (b), depending on how the charge is laid. The indictable offence of luring for which Mr. Bertrand Marchand was charged carries a mandatory minimum punishment of one year’s imprisonment and a maximum of 14 years. The summary conviction offence for which H.V. was charged carries a mandatory minimum punishment of six months’ imprisonment and a maximum of two years less a day. Both offenders pleaded guilty to child luring and challenged the constitutionality of these mandatory minimum punishments as applied to themselves or other reasonably foreseeable offenders. Mr. Bertrand Marchand’s sentence for one of the designated secondary offences, sexual interference, is not at issue in this appeal.
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(1) The Wrongfulness of Luring
[34] Sexual offences against children are crimes that wrongfully exploit children’s vulnerability (Friesen, at para. 5). In committing the offence of luring, the adult takes advantage of the child’s weaker position and lack of experience and by doing so repudiates the fundamental value of protecting children (para. 65; R. v. Melrose, 2021 ABQB 73, [2021] 8 W.W.R. 467, at para. 54). Children are particularly exposed and helpless online: the internet allows offenders direct, sometimes anonymous, and often secret or unsupervised access to children, frequently in the privacy and safety of their own homes (R. v. Folino (2005), 2005 CanLII 40543 (ON CA), 77 O.R. (3d) 641 (C.A.), at para. 25; R. v. Symes, [2005] O.J. No. 6041 (QL), at para. 29; R. v. Paradee, 2013 ABCA 41, 542 A.R. 222, at para. 12; R. v. Hajar, 2016 ABCA 222, [2016] 12 W.W.R. 435, at paras. 279-80). In these online fora, there is often very little that can be done to shield children from the inherent power imbalance present in luring (R. v. Sutherland, 2019 NWTSC 48, [2020] 3 W.W.R. 771, at para. 50; Hajar, at para. 279). Luring wrongfully takes advantage of this unsupervised access to children and “wrongfully exploits children’s vulnerabilities” (R. v. Wall, 2023 ABPC 3, at para. 42 (CanLII)).
[35] The sexualization of children is itself morally blameworthy conduct. Luring invades a child’s personal autonomy, sexual integrity, and gravely wounds their dignity (Friesen, at para. 51). Using any person as a means to an end is unethical, but an adult’s manipulation of a child to satisfy their sexual urges is highly blameworthy conduct. It is for these reasons that luring is recognized as “manifestly harmful and wrongful” (R. v. Misay, 2021 ABQB 485, [2022] 1 W.W.R. 145, at para. 52). Even when the only interactions with the child occur online, the offender’s conduct is inherently wrong because it still constitutes a form of sexual abuse (R. v. R.S.F., 2021 MBQB 261, at para. 91 (CanLII)). While the degree of exploitation may vary from case to case, the wrongfulness of the exploitation of children is always relevant to the gravity of the offence (Friesen, at para. 78).
(2) The Separate Harm of Luring
[36] It is now well established that sexual offences against children cause significant harm. The adverse impacts of sexual violence against children hinder normal social growth, and can cause several lasting psychosocial problems. When children are young, inexperienced and still developing, the harms caused by even a single instance of sexual violence can permanently alter the course of their lives. Many survivors carry childhood sexual abuse with them throughout their adulthood, and it can permeate every aspect of their lives.
[37] This Court has noted that “[e]ven in child luring cases where all interactions occur online, the offender’s conduct can constitute a form of psychological sexual violence that has the potential to cause serious harm” (Friesen, at para. 82, citing R. v. Rafiq, 2015 ONCA 768, 342 O.A.C. 193). With sexual abuse comes serious emotional and psychological harm that “may often be more pervasive and permanent in its effect than any physical harm” (Friesen, at para. 56, citing R. v. McCraw, 1991 CanLII 29 (SCC), [1991] 3 S.C.R. 72, at p. 81). Victims of luring often suffer a range of negative impacts including negative sexual development, subsequent substance misuse and depressive symptomology (G. N. Say et al., “Abuse Characteristics and Psychiatric Consequences Associated with Online Sexual Abuse” (2015), 18 Cyberpsychol., Behav., and Soc. Netw. 333).
[38] Child luring can also cause distinct psychological and developmental harms to young victims that differ in two main ways from harms arising from sexual contact initiated in person. First, online communication allows “for abusers to get into the victim’s head and abuse remotely” and for “manipulation and control over time” which can lead to serious and lasting psychological consequences (Rafiq, at para. 44). Because the communications in luring often intentionally emulate positive relationships, it can be difficult for victims to trust anyone intimately following this experience (E. Hanson, “The Impact of Online Sexual Abuse on Children and Young People”, in J. Brown, ed., Online Risk to Children: Impact, Protection and Prevention (1st ed. 2017), 97, at p. 115).
[39] Second, since offenders cannot physically touch their victims when communicating with them online, their power and the effectiveness of their strategies often lie in the degree to which they can control the victim and manipulate them into engaging with the abuse. Victims of luring often feel that they actively participated in their own abuse, which may increase self-blame, internalization and shame. This worsens the psychological harm (J. Steel et al., “Psychological sequelae of childhood sexual abuse: abuse-related characteristics, coping strategies, and attributional style” (2004), 28 Child Abuse & Negl. 785, at pp. 795-96; P. Gilbert, “What Is Shame? Some Core Issues and Controversies”, in P. Gilbert and B. Andrews, eds., Shame: Interpersonal Behavior, Psychopathology and Culture (1998), 3, at p. 27).
[40] Prior jurisprudence has shed light on this distinct harm. In R. v. J.R., 2021 ONCJ 14, at para. 16 (CanLII), the victim described the confusion, shame and emotional harm that accompanied the luring and extortion she faced. In Rayo, the victim experienced feelings of guilt, shame and anxiety, and reported that [translation] “she had lost confidence in herself and that the events had led her to self-mutilation and suicidal thoughts” (para. 174). In R. v. Roy, 2020 QCCQ 4546, the victim had difficulty sleeping for several weeks following the offence, lost confidence in herself and still struggled to trust others (para. 51 (CanLII)). In R.S.F., although the victim was not physically touched, “her mind was manipulated”, she had “nightmares about being hurt again” and she suffered from “overwhelming and significant anxiety, depression and post-traumatic disorder” (paras. 34-35).
[41] Friesen recognized that sexual violence against children also affects other people in the victims’ lives (para. 76). The Court highlighted the harmful ripple effects on families, community and society (para. 63). Child luring can similarly destroy trust in friends, families and social institutions and cause children to shut parents out of their lives. In Rayo, the luring prompted a severe conflict between the child and her mother (para. 174). In Rafiq, the luring led the victim to close herself off from her family (paras. 40-41).
[42] Identifying the distinct harms of luring in each case may prove more or less difficult, depending on the circumstances. In cases where luring is the standalone offence, identifying the distinct harm may be more straightforward. However, in cases where the luring actually manifests in the commission of a secondary offence, identifying the distinct harm of luring may be more challenging.
[43] One way to identify the distinct harms at play is for courts to differentiate between contact‑driven luring, where the offender’s goal is to facilitate in-person sexual abuse, and luring that leads to sexual abuse occurring entirely online (see R. v. M.B., 2020 ONSC 7605, at para. 78 (CanLII), for an example in relation to child pornography). In the latter context, the online medium is the primary setting where the abuse takes place and the offender may have no intention to take the abuse offline. In the context of contact‑driven luring, the online environment can, but need not, play a significant role in the sexual abuse. The technology may sometimes function solely as a medium to gain physical access to a victim. Where the luring is contact‑driven, sentencing judges should consider whether the online communication caused psychological harm that stands separate and apart from the harm of any secondary offence that may have been committed. Victims of contact sexual abuse can be sexually exploited and psychologically manipulated online by their offenders both before and after they were abused offline. It is an error to presume that luring cannot engender independent harm.
[44] Other times, the aim of luring will be to commit a designated secondary offence set out in s. 172.1(1) that occurs entirely online. This might encompass a range of behaviours including sexual chat, the sharing of sexualized photos or videos, or viewing or performing sexual acts by video, all of which may be encapsulated within the secondary offences of invitation to sexual touching or the child pornography offences (J. A. Kloess et al., “A Qualitative Analysis of Offenders’ Modus Operandi in Sexually Exploitative Interactions With Children Online” (2017), 29 Sex. Abuse 563, at pp. 584‑87). In such circumstances, the offender uses technology to build a relationship, assert control and psychologically manipulate young persons, and may also use that same technology to then carry out sexual acts. In such circumstances, it might be difficult to decipher whether the luring caused distinct psychological harm, as the harm caused by the luring might resemble the harm caused by the underlying offence which also occurred online.
[45] Contact‑driven luring is not necessarily more or less harmful than luring that leads to sexual abuse that occurs entirely online. The severity of the harm caused by the online communication will depend on the individual offender and his or her offending goals, the individual characteristics of the victim, and the unique dynamic between the offender and the victim.
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(4) Summary
[48] Friesen’s analytical approach necessitates an understanding of the inherent wrongfulness and distinct harms of luring and Parliament’s sentencing goals. Understanding the wrongfulness and harmfulness of the luring offence is integral to properly assessing the gravity of the offence and the degree of responsibility of the offender, as well as to avoiding stereotypical reasoning and the misidentification of aggravating and mitigating factors (para. 50). ...
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[170] This Court’s decision in Friesen demands a more robust understanding of the wrongfulness and harms of luring, which will often yield greater penalties. However, given the enormous breadth of the luring offences, there will still be cases in which the mandatory minimum will be so out of sync with the realities of the gravity of the offence and the moral blameworthiness of the offender so as to shock the conscience of an informed public.
[171] Indeed, despite strong statements in Friesen about the inherent wrongfulness and harmfulness of sexual violence against children, the Court expressly cautioned that their comments should not be taken as a direction to disregard relevant factors that may reduce the offender’s moral culpability. The proportionality principle still governs to require that “the punishment imposed be ‘just and appropriate . . . and nothing more’” (para. 91, quoting M. (C.A.), at para. 80 (emphasis deleted)). . R. v. Fox
In R. v. Fox (Ont CA, 2023) the Court of Appeal considered a Crown appeal from acquittals for 'child luring' [under CCC 172.1(1)(a)], with the central issue being mens rea as to age (here 'recklessness'):[2] The trial judge acquitted the respondent because he was not persuaded that the respondent had the requisite mens rea for the offences. He concluded that although the respondent was reckless in not ascertaining the ages of the complainants before asking them for nude pictures, recklessness was insufficient mens rea to make out the offences under s. 172.1(1)(a). The Crown appeals on that issue and asks this court to substitute convictions under s. 686(4)(b)(ii) [SS: 'Appeal from Acquittal'] of the Criminal Code.
[3] As explained below, the trial judge erred in finding that recklessness as to age was insufficient mens rea for the offences. Recklessness as to age is sufficient where the Crown can prove the person with whom the accused was communicating was an actual child. However, as the trial judge did not make findings concerning whether the respondent subjectively intended to communicate with each victim for the purpose of facilitating a specified secondary offence under s. 163.1 (a child pornography offence), I would allow the appeal, set aside the acquittals, and remit the matter for a new trial.
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Section 172.1 and the Elements of the Offence
[11] The relevant portions of s. 172.1 read as follows:Luring a child
172.1 (1) Every person commits an offence who, by a means of telecommunication, communicates with
(a) a person who is, or who the accused believes is, under the age of 18 years, for the purpose of facilitating the commission of an offence with respect to that person under subsection 153(1), section 155, 163.1, 170, 171 or 279.011 or subsection 279.02(2), 279.03(2), 286.1(2), 286.2(2) or 286.3(2);
(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 271, 272, 273 or 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
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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. [12] Section 172.1(2) details the punishment available for child luring and is not relevant to this analysis.
[13] The presumption as to age set out in s. 172.1(3) was struck down as unconstitutional in Morrison.
[14] At para. 43 of Morrison, the Supreme Court of Canada confirmed the three essential elements of child luring as previously set out at para. 23 of R. v. Levigne, 2010 SCC 25, [2010] 2 S.C.R. 3: (1) an intentional communication by means of telecommunication; (2) with a person who is, or who the accused believes is, under the requisite age; (3) for the purpose of facilitating the commission of a designated offence with respect to that person.
Analysis
(1) Morrison does not address mens rea as to age in the circumstances of an actual child complainant
[15] First, I will address the impact of Morrison on the mens rea applicable to the first mode of offence under s. 172.1(1)(a). In my view, Morrison does not rule out recklessness as to age as sufficient mens rea where the Crown can prove the complainant is an actual child and the trial judge erred in his interpretation of Morrison.
[16] Section 172.1(1)(a) is drafted in such a way that the second element of the offence of child luring can be established by proving either: (1) the accused communicated with a person who is under the age of 18 for the purpose of facilitating the commission of a specified offence; or (2) the accused communicated with a person the accused believes to be under the age of 18 years for the purpose of facilitating the commission of a specified offence: R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 93. The Crown typically proceeds under the latter specification where an accused has been engaged in a sting operation. In such an operation, the accused mistakenly believes himself to be communicating with a child but is actually communicating with an undercover police officer adopting a persona. However, a conviction under the “believes” mode of commission is also available in circumstances where the Crown is unable to prove the age of the victims – often because the identity is unknown and circumstantial evidence inadequate for that purpose – but can nevertheless prove that the accused believed the person to be under the age of 18: R. v. D.N., 2023 ONCA 561, at footnote 3. In this case, the Crown proved that the respondent communicated with actual children.
[17] In applying s. 172.1(1)(a), and in reading the case law interpreting it, it is important to keep these two modes of commission analytically distinct. Failure to do so can result in wrongly importing the mens rea requirement of the second mode into the first. For the second mode – typified by the police sting – Morrison makes it clear, at paras. 95-102, that the requisite mens rea is limited to belief or wilful blindness that the accused is communicating with a child. Recklessness in this scenario is insufficient mens rea.
[18] The trial judge generalized from this proposition to the conclusion that Morrison “ruled out recklessness and negligence as sufficient to ground a conviction dealing with [s.] 172.1.” But the holding from Morrison is narrower than that. The court in Morrison did not address whether recklessness could be sufficient mens rea where the Crown can prove that the accused communicated with an actual child. It specifically confined its holding to the context of a police sting, for example, at para. 55: “In the context of a sting operation where there is no underage person – which to be clear, is the specific context to which these reasons are restricted … the Crown must prove beyond a reasonable doubt that, among other things, the accused believed the other person was under the age of 16” (emphasis in original). See also paras. 81, 84, 85, 95, 101, 102. Mens rea as to age where the Crown can prove an accused to have communicated with an actual child is an open question this court is required to answer.
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[21] R. v. Buzzanga and Durocher (1979), 1979 CanLII 1927 (ON CA), 25 O.R. (2d) 705 (C.A.), at p. 717, provides that “[t]he general mens rea which is required and which suffices for most crimes where no mental element is mentioned in the definition of the crime, is either the intentional or reckless bringing about of the result which the law, in creating the offence, seeks to prevent”. While that is most often the case, determining the level of mens rea intended for a particular offence always requires attention to the text of the particular provision, its context, and purpose.
[22] As explained below, consideration of the text, context, and purpose of s. 172.1(1)(a) establishes that recklessness as to age is sufficient mens rea for a conviction under the provision’s first mode of offence where the Crown can prove the accused communicated with an actual child. I would therefore allow the appeal. However, because the trial judge did not make the necessary findings as to whether the respondent subjectively intended to communicate with the complainants for the purpose of facilitating the commission of the secondary offences alleged, I would order a new trial.
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[34] To establish the offence of child luring, the Crown must prove a subjective intention to facilitate the commission of a secondary offence, for example, to access nude photos of children. That is the ultimate purpose for which the accused is said to be acting. The communication is the means by which the accused carries out that ultimate purpose. Obviously, if the accused knows the identities of the persons with whom they are communicating, and knows those persons’ ages, that is evidence – as the respondent suggests – that the accused is communicating for the purpose of facilitating the commission of the secondary offence. But it does not follow that just because an accused does not know the ages and identities of some members of a group of persons with whom they are communicating more or less at random and sees the risk that some might be children, that the inference is unavailable that one purpose of the communication is to facilitate the commission of an age-based offence. Reckless conduct can be a means chosen to achieve some further intended end, such as facilitating the commission of a child pornography offence.
[35] As the Supreme Court explained in R. v. Legare, 2009 SCC 56, [2009] 3 S.C.R. 551, child luring criminalizes conduct that precedes the commission of the secondary offences. For this reason, it is possible to do something for the purpose of facilitating a secondary offence without specifically intending each element of that offence. For example, an offender does not need to “meet or intend to meet the victim with a view to committing any of the specified offences” in order to commit the child luring offence, even though some of the specified secondary offences, such as sexual assault, would require meeting: Legare, at para. 25. In coming to this interpretation, the Supreme Court emphasizes the term “facilitating”, at para. 28:Section 172.1(1) makes it a crime to communicate by computer with underage children or adolescents for the purpose of facilitating the commission of the offences mentioned in its constituent paragraphs. In this context, “facilitating” includes helping to bring about and making easier or more probable — for example, by “luring” or “grooming” young persons to commit or participate in the prohibited conduct; by reducing their inhibitions; or by prurient discourse that exploits a young person’s curiosity, immaturity or precocious sexuality. [Emphasis in original.] [36] So there would be no inconsistency, for example, if an accused’s purpose in communicating was to facilitate accessing pornographic images from a broad class of persons that included, but was not restricted to, children. An accused may be reckless as to the ages of individual members of the group and, at the same time, one purpose of their communications may be to facilitate the commission of a child pornography offence.
[37] In sum, when the Crown can prove the accused was communicating with an actual child, the text of s. 172.1(1)(a) indicates that mens rea as to age includes recklessness.
ii. The statutory context
[38] To interpret the mens rea under s. 172.1(1)(a) where the Crown can prove the accused is communicating with an actual child as being satisfied by recklessness is also consistent with the provision’s statutory scheme. Typically, “recklessness will suffice to establish the mens rea with respect to age in offences involving sexual activity with underage persons”: Carbone, at para. 124. In particular, this court has held that recklessness as to age satisfies the mens rea requirement for certain secondary offences listed under s. 172.1, such as ss. 151 (sexual interference) and 152 (invitation to sexual touching): see Carbone, at para. 131; R. v. W.G., 2021 ONCA 578, 405 C.C.C. (3d) 162, leave to appeal refused, [2021] S.C.C.A. No. 381, at paras. 69-70. Like child luring, these offences involve children and are also silent on the required mens rea as to age.
iii. The legislative purpose
[39] The rationale for s. 172.1(1) was summarized by this court in Carbone, at paras. 95-96:Sections 172.1 and 152 are among a group of Criminal Code offences designed to protect young persons from sexual exploitation and abuse. Section 172.1 aims specifically at exploitation and abuse via the Internet, a pernicious and notoriously difficult to detect form of that exploitation and abuse: see [R. v. Legare, 2009 SCC 56, [2009] 3 S.C.R. 551], at para. 26; R. v. Alicandro, 2009 ONCA 133, 95 O.R. (3d) 173, at para. 36; R. v. Levigne, 2010 SCC 25, [2010] 2 S.C.R. 3, at paras. 25-26; Morrison, at para. 39.
The apprehension of persons who take to the Internet to exploit and abuse children presents difficult and unique problems. Sexual predators have easy, anonymous, and repeated access to a very deep pool of potential victims. The abuse and exploitation of children over the internet is often a process rather than a single event. Children are groomed to be victimized over a period of time through many contacts. In the initial stages of this grooming process, the contacts intended to ultimately facilitate sexual abuse of the person being communicated with may seem benign. [40] This legislative purpose supports the inclusion of recklessness as to age where the Crown can prove there is an actual child complainant in the interpretation of s. 172.1(1)(a). Where an offender communicates with a child for a child luring purpose, the offender intends to facilitate the commission of some further offence and that offender’s conduct could lead to the commission of that offence. This type of communication has been characterized as an “inchoate” or “preparatory” offence because it criminalizes conduct that well precedes the underlying offence, regardless of whether the accused ultimately acts to carry it out: Morrison, at para. 40; R. v. Legare, at para. 25.
[41] However, even where the initial communications to an actual child for a child luring purpose are seemingly benign, they create a risk of harm to the child because they are aimed at gaining the child’s trust and ultimately at reducing the child’s inhibitions or exploiting the child’s curiosity, immaturity or precocious sexuality to facilitate commission of a secondary offence. See Legare, at paras. 28-30. Patently, the risk and degree of potential harm increase as the communications become more prurient.
[42] Moreover as Carbone explains, at paras. 95‑96, 105, where there is an invitation or incitement to an actual child to engage in sexual activity, the communication is inherently harmful. Its prohibition is not merely a means of preventing the commission of further offences, such as sexual interference or the making of child pornography, but of proscribing communications which are themselves a form of harmful abuse.
[43] Where, as here, a child in an internet chatroom suddenly receives an invitation to send nude photographs of herself to an unknown party, the child is confronted with options that the child must process and either accept or reject. Reasoning through these options takes the child into the mental world of another person who is indifferent to their best interests. It is an invitation to see themselves the way some stranger sees them – as objects to be instrumentalized in the service of that person’s sexual appetites. This invitation to step into a world of instrumentalized and depersonalized sexuality, regardless of whether it culminates in the commission of other offences, is itself an assault on the child’s self‑understanding and an impediment to a developmental understanding of sexuality as premised in mutuality and dignity. These are among the harms that s. 172.1(1) seeks to prevent.
[44] In other words, it is not just the accused’s state of mind that makes the conduct blameworthy. This harm further distinguishes the luring of actual children from the situation in Morrison. Under s. 172.1(1)(a)’s second mode of offence, the justification for criminalization rested solely with the accused’s belief that they were communicating with a child, which in some cases is mistaken and in those cases could not actually give rise to the underlying offence involving a minor: see the discussion in Carbone, at paras. 99‑100. Here, in contrast, in all cases, the conduct itself causes harm or, at least, a significant risk of harm.
[45] The rationale for the recklessness standard provided by Doherty J.A. in Carbone, at para. 125, although dealing with invitation to sexual touching, applies with equal force to s. 172.1(1)(a):Recklessness is subjective. It entails the appreciation of some level of risk and the decision to take that risk. In the context of sexual activity with young persons, an accused who chooses to proceed with that activity, having adverted to the possibility the complainant was underage, will inevitably be found to have been reckless with respect to the complainant’s age, even if the risk the complainant was underage is low. The potential harm associated with proceeding in the face of a risk is significant. There is no social value to offset the taking of any risk. It is therefore appropriate to characterize that risk taking, even if the risk is seen as low, as blameworthy for the purposes of imposing criminal liability. [Emphasis added.] [46] Put simply, belief is appropriate for the second mode of offence under s. 172.1(1)(a) where there may be no actual child or the identity of a child cannot be proven, because the accused’s criminal intent is itself the primary subject of proscription. In these circumstances, the criminal law principles of fault and restraint favour a stringent subjective standard of mens rea that excludes recklessness: Carbone, at para. 100. But under the first mode of offence, where there is a significant risk of, or actual, harm to a child a lesser threshold of culpability in the form of recklessness is justified.
iv. Conclusion: recklessness as to age suffices where there is an actual child complainant
[47] In summary, to establish the mens rea as to age for the first mode of offence under s. 172.1(1)(a) involving an actual child, the Crown must prove beyond a reasonable doubt that the accused either knew, was wilfully blind, or was reckless to the fact that the person was under the prescribed age. Accordingly, the trial judge erred in concluding that recklessness as to age was insufficient mens rea for luring an actual child.
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