What are my defences against child luring charges?
Internet chat rooms allow strangers to talk and to arrange meetings in real life. Sometimes people in these chats lie about their age, perhaps pretending to be a youth when in fact they are an adult. A law enforcement officer may also assume another identity during an investigation.
Charges of child luring can be laid if an adult arranges to meet someone they believe is under 18 years for sexual purposes. This charge can also be laid if the Crown is able to show an adult communicated with someone they believed to be under the age of 16 for the purposes of sexual exploitation, invitation to sexual touching, indecent exposure or abduction, or if someone under 14 is being enticed to leave their home.
If you are charged with child luring, seek out the assistance of an experienced defence lawyer. Not only could you face incarceration if you are convicted, but there is a heavy social stigma associated with this allegation. Legal counsel can review your case and lay out your best defence, which is always dependent on the circumstances.
What does the Crown have to prove?
Section 172.1 (1) of the Criminal Code makes it an offence to communicate with someone “who the accused believes is under the age of 18 years” for the purposes of sexual exploitation, incest, child pornography or sexual assault.
In order to win a conviction, the Crown has to prove you:
- intentionally communicated with the complainant via a computer;
- knew, or at least believed, that the person you were communicating with was a youth; and
- you were communicating with the other party for reasons of a sexual nature.
Can the Crown prove you sent the messages?
Sometimes people charged with child luring deny that they sent the messages a youth allegedly received. Tracking online communications can be technically difficult, and your defence lawyer may be able to argue that there is no sure way to show the messages came from a computer or device you owned or used. For example, if the messages to the youth came from an internet café by someone using a fake name and an anonymous account, the Crown may have trouble proving you sent those messages.
Some internet service providers will supply information to police if they have a warrant. Others, especially those located in foreign countries, may not recognize the authority and jurisdiction of Canadian law and may not grant requests for assistance, which will further weaken the Crown’s case.
Not a defence to say you thought the person was not a youth
According to s. 172.1 (4) of the Code, “it is not a defence … that the accused believed that the person referred … was at least 18, 16 or 14 years of age, as the case may be, unless the accused took reasonable steps to ascertain the age of the person.”
The court will have to decide what steps were reasonable in your situation to determine the age of the person involved. That could include asking for government-issued identification or some other form of proof of age. If there is a phone recording or a transcription of an online conversation, and there was a discussion about ages, that can be used as evidence in court.
Did the police overstep their powers?
One of the most effective ways of defending against child luring charges is to challenge the conduct of the police during their investigation. When they seized your computer or phone to look for evidence, did they have a search warrant? Even if they did, it may be possible to demonstrate that they overstepped the powers of that warrant in the way the search was conducted. If I can show the police exceeded the scope of the warrant or carried out the search in an unreasonable way, I will argue that any evidence they collected should not be admitted at trial.
What is the penalty for child luring?
The Crown has the option of prosecuting a charge of child luring as either an indictable offence or as a summary conviction, the latter having less-severe penalties. Those convicted of an indictable offence face up to 14 years in prison. If the charge is treated as a summary conviction, the maximum penalty is imprisonment for a term of not more than two years less a day.
Upon conviction, your name, fingerprints, and other details will be added to provincial and federal sex offender registries. A conviction can also bring serious personal consequences, such as the loss of friends and the trust and support of family members.
What factors can reduce my sentence?
If you decide to plead guilty to the charge of child luring there are circumstances that can reduce the sentence imposed. According to a 2019 judgment from the Provincial Court of British Columbia, mitigating factors include:
- lack of a criminal record;
- an early guilty plea;
- cooperation, including a confession;
- willingness to attend sex offender treatment;
- mental illness or another disability;
- family support;
- steps taken toward rehabilitation pending conviction or sentencing; and
- compliance with a lengthy period of bail.
Child luring conviction thrown out
In 2019 the Supreme Court of Canada (SCC) overturned a child luring conviction. The majority of the court found that the way the law is written violated the Charter rights of the accused as it shifts the burden of proof onto the accused to prove they are innocent.
The judgment notes that a man had posted on Craigslist that he was a "Daddy looking for his little girl” and a police officer "posing as a 14-year-old girl named Mia" responded.
The two had sexual conversations online but never met, court documents state, with his lawyers arguing that he had been “role-playing” and didn't believe Mia was actually underage.
In their decision, SCC justices wrote that "prosecutorial convenience and expediency cannot justify the risk of convicting the innocent," adding that "the Crown must prove beyond a reasonable doubt that the accused believed the other person was underage."
Justice Rosalie Silberman Abella noted that “the reasonable steps requirement in s. 172.1(4) constitutes an infringement of the right to make full answer and defence and the presumption of innocence under ss. 7 and 11(d) of the Charter, eroding these rights in a way that risks convicting the innocent. It is therefore unconstitutional … given the anonymous and unverifiable nature of online identities, the requirement to take ‘reasonable steps’ to ascertain age in may impose a nearly insurmountable barrier to the accused’s ability to raise and defend his or her own innocent belief. Moreover, additional communications made in an effort to ascertain age can put the accused at a heightened risk of being inculpated in the offence of child luring because of the inherent similarity between evidence going to reasonable steps and evidence of child luring in the Internet context.”
Man acquitted of child luring
A Newfoundland man was acquitted of child luring in 2020 after being accused by police of pretending to be a woman to lure a child online. According to a news report, the man had “engaged in conversations online and through texts with an officer posing as a teenage girl. Police said they had “a five-month chat log hundreds of pages long that included requests from Fowler for nude photos, the exchange of pictures and talk of school, curfews and sneaking out of the house,” the story states, though “none of those documents were presented at trial.”
The story states the judge said to prosecutors: “There were written messages. Where are they? You haven’t given me any of them. I’ve nothing. Tell me, what do I do with that?” The story added that it was not “clear why the documents were not submitted as evidence.”
In acquitting the man, the judge said there was nothing to suggest the accused had been aware he was conversing with a child. “[It is] not possible to determine if the communications were of such a nature as to permit a finding that the communications were for the purpose of committing (a child luring offence),” the story reads, quoting the judge. “I find that the Crown has not proven the essential elements of the offences charged beyond a reasonable doubt and the charges are dismissed.”
Why you need my assistance
Child luring is an extremely serious offence that carries a maximum penalty of 14 years in prison and prohibitions on going to parks, pools, etc. for up to life. A conviction may also ruin your reputation and standing in the community and strain your family relationships. If you have been charged with this offence, contact me for a free consultation. After listening to your explanation about the circumstances that led to the charges, we can start to build the best defence possible.