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Defend Child LURING Charges

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Our Experience

Child-related sex offences committed through the internet have been on the rise in Ajax, Cobourg, and Peterborough, with the pandemic and the availability of technology. Statistics Canada reported 391 incidents of child luring in Ontario, out of a total of 1,932 incidents in Canada. This means that Ontario comprises of 20.24% of total child luring incidents in Canada.

Human trafficking is one of the ancillary offences that people can commit in relation to child luring. In 2022, the Human Trafficking Unit of the Durham Regional Police conducted 227 investigations, identified and assisted 225 victims (with almost half of them being youth or children) and laid 107 charges. The Durham Regional police also has a dedicated Internet Child Exploitation unit, and there was a 79% increase in 2022 in investigations conducted by them in comparison to 2021.

It’s important to get legal advice quickly if you believe you are under investigation for luring. There are dedicated police teams who canvass the internet looking for child sex predators. In some circumstances, the accused can also be entrapped by the police into committing a criminal offence. The court will review the messages between the officer and accused to determine whether in fact this defence has any merit.

In 2021, the Firm successfully defended an individual accused in the case of R. v. P.E. [2021], facing charges of making sexually explicit material available to a child, child luring and other sex offences. The accusations stemmed from online interactions with an undercover officer, intending to engage in illicit activities with a minor. The Firm launched a Charter challenge, asserting entrapment, which led to the withdrawal of the three child luring charges just one week before the trial. The Firm’s strategy focused on scrutinizing the search warrant and production order. This enabled the Firm to challenge the validity of the search warrant. This is important, because if successful, you can exclude forensic evidence and meta data which can be incriminating.

In a high-profile case in November 2016, the Firm achieved a significant victory in R. v. A.H. [2016]. The defendant, a TTC Driver, faced nine sex offence charges related to child luring. The allegations revolved around the defendant meeting a minor while on duty. The child’s parents discovered the purported relationship during a phone search. The Firm adopted a vigorous defense strategy, collaborating closely with the complainant’s counsel. This united front significantly undermined the Crown’s case, impairing their ability to present evidence during the trial. The substantial damage to the prosecution’s case resulted in the withdrawal of all sex charges. Consequently, the accused was able to resolve the matter without incurring a criminal record.

Online Sex Offence are on the Rise in Canada

The Firm has also defended dangerous offenders. These are delicate cases to defend because although the accused is presumed innocent and entitled to a defence, there is generally strong evidence of sexual deviance. In the Firm’s R. v. T.T. [2022], the accused was charged with 10 child sexual abuse charges. Some of the charges related to acquiring child pornography, trading child pornography and luring underage children. The Firm retained independent medical professionals to help with opinions in relation to the risk and insight the offender had into his conduct. We were able to advance a s.11(b) Charter which significantly weakened the Crown’s case, reducing the jail from double digit penitentiary time and withdrawing most of the charges.

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Frequently Asked Questions

Does an Undercover Officer Need a Warrant to Talk with the Suspect Online?

No, an undercover police officer does not need a warrant to talk with a suspect online. As long as the police have not committed entrapment, that is, inciting a person to commit a crime, the action of talking with a suspect online is entirely legal. It is also not a crime for police officers to lie in their investigations. Typically, after the arrest of a luring suspect, the conversations and text messages of the accused and the complainant are available and become a part of evidence.

In the Supreme Court of Canada Case of R. v. Mills, [2019] SCC 22, the accused was talking with an undercover police officer posing as a 14-year-old girl. They communicated with sexually explicit conversations for over two months before they decided to meet. The messages were instrumental in both the investigations and the criminal proceeding. The defendant argued that by admitting the evidence into court, his section 8 rights would be violated as he had a reasonable expectation of privacy in his private communications. The trial court found that the defendant did have a reasonable expectation of privacy, as he had an username and password, but upheld the conviction in the interest of the public. The Court of Appeals upheld the conviction but found that there was no violation of a section 8 right at all due to the police being a party to the conversation.

The Court unanimously agreed that the conviction should be upheld, giving different reasons on the issue of privacy. The Court found that an adult does not have reasonable expectation of privacy when speaking to a child online if they were strangers. However, if they were in a familial or close relationship, they may have a reasonable expectation of privacy.

What Does “Facilitating” Mean in the Context of This Charge?

In order for the accused to be convicted of child luring, the Crown must prove three elements. That the accused communicated with the complainant via a computer system, that the accused believed the person was underage, and that the accused’s specific purpose was to commit one of the offences enumerated in the Code. The offences may differ for each subsection of s. 172.1(1).

Facilitating means attempting to commit one of the offences enumerated in the Code. It means attempting or preparing to commit the offence. For example, in the case of R. v. Bahamonde, [2022] ONSC 916, the offender was convicted of child luring for the purpose of making child pornography by using the internet to incite children to send him naked pictures. Section 172.1(1) include the ancillary offence of section 163.1, child pornography. The Crown proved that the accused did use telecommunications to facilitate the making of child pornography, and so the offender was convicted.

What Are My Rights on Arrest in Cobourg and Peterborough?

When the police suspect that child luring has occurred, they will most likely obtain a search warrant and search the accused’s property. With enough evidence, they may arrest the accused at the scene. Being placed under arrest means the suspect’s certain rights are suspended and sections 7, 9, 10, and 11 of the suspect’s rights are triggered.

Section 7 of the Charter of Rights and Freedoms guarantees the right to life, liberty, and security of the person and not to be deprived of them except in accordance with the principles of fundamental justice. A person cannot be deprived of their section 7 rights unless government authorities were arresting them for the purposes of protecting the public. Section 7 also guarantees an arrestee’s right to silence. Section 9 of the Charter guarantees the right not to be arbitrarily detained or imprisoned. This means that the detention or imprisonment must be authorized by law and must be reasonable.

Section 10 and 11 of the Charter guarantees the right to counsel and the right to be informed of the offence. These are important rights for the accused, as counsel can greatly aid the accused in a criminal proceeding. Due to the serious nature of the offence of child luring, the police may hold the accused for bail. Bail conditions are often very onerous for child luring charges; if a counsel is retained early, they may be able to come up with a bail plan and vary these conditions so that they are not unreasonable or excessive.

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Recent Cases

R. v. Gould, 2022 ONCJ 187

In the Ontario Court of Justice case of R. v. Gould, the accused pled guilty to three counts of child luring and one count of inviting someone under the age of 16 to touch themselves sexually. The accused was a 24-year-old man who met children on an online video game and proceeded to pursue sexual relationships with them.

In their analysis, the Court found in the statuary that the Criminal Code emphasizes the principles of denunciation and deterrence when considering sexual offences against persons under 18 years of age. In addition, recent changes to the law have imposed a mandatory minimum of one-year incarceration by indictment for child luring.

A Charter application was launched against the mandatory minimum. The Court cited Justice Trotter from R. v. Cowell, 2019 ONCA 972, “’the wide range of conduct embraced by s. 172.1(2)(a) [child luring under 16], including the varied nature of the designated secondary offences, gives rise to situations in which the imposition of the one-year mandatory minimum sentence would be grossly disproportionate.’” [para 10] The offender was sentenced to 18 months incarceration, with a two-year probation order, a DNA order, a SOIRA order, and a s. 161 order.

R. v. Bahamonde, 2022 ONSC 916

In the Ontario Superior Court of Justice case of R. v. Bahamonde, the accused pled guilty to: two counts of criminal harassment, two counts of luring, one count of possession of child pornography, one count of making child pornography, two counts of distribution of child pornography, one count of threatening bodily harm, one count of threatening bodily harm of person unknown, and two counts of failing to comply with a recognizance. He was also found guilty of one count of voyeurism. The offences involved four identified victims. The accused attempted to contact his victims through applications and asked for nude photos. The accused repeatedly harassed and threatened his victims for these images, distributed child pornography to his victims, and encouraged his underage victims to make child sexual exploitative materials.

During sentencing, the Court considered several aggravating and mitigating factors. The aggravating factors included the age differential, the possession, making, and distribution of child pornography with the purpose of threatening or luring his victims. The mitigating factor is that the offender is a youthful offender with chances of rehabilitation. The Court emphasized the primary sentencing principles of denunciation and deterrence enumerated from Friesen. The offender was sentenced to 7.5 years incarceration to protect the public. In addition, a s. 161 order was entered for 20 years, and a DNA order and a SOIRA order was made.

R. v. Sinnappillai, 2022 ONSC 832

In the Ontario Superior Court of Justice case of R. v. Sinnappillai, the offender was convicted of two counts of child luring. Count one is the offence of section 172.1(1)(a) of child luring under 18 for the purpose of committing an offence under s. 286.1(2) of the Criminal Code. Count two is the offence of section 172.1(1)(b) of child luring under 16 for the purpose of committing an offence under s. 152 of the Code. The offender was caught in a sting operation of Project Raphael. An ad was posted online advertising sexual services. The offender texted the number on the ad, and the officer posing as the advertiser revealed that she was 15. The offender proceeded to arrange a meeting with someone who he believed was 15 to have sexual services. He was arrested on the scene at the hotel they arranged to meet at.

During sentencing, the Court considered the offender’s unique circumstances. He grew up in the midst of the Sri Lankan civil war and applied for refugee status in Canada. As a result of his conviction, his refugee claim was put on hold. He has a wife and children dependant on his work as a mechanic in India. However, as child luring is not a victimless crime, it was still important to protect the public from the offender. The offender was sentenced to 16 months’ imprisonment, followed by one year of probation. In addition, a SOIRA order and a DNA order was entered, along with a s. 161 order and further forfeiture orders for the cellphone and cash seized by police during the arrest.

About the Author

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Jordan Donich

Jordan Donich has been a Lawyer for over 10 years and is a trusted legal analyst by Canadian Media. He is as a leader in Canada’s tech sector for lawyers and developer of Law Newbie. Jordan is a Black Belt with the Japan Karate Association and trained in Krav Maga. He won a Gold Medal at 2004 Canadian National Championships and was published in the National Newspaper Awards.

Jordan has been featured in Forbes and is a member of DMZ Angels in Toronto.