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Defend Child LURING Charges

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Our Experience

Child luring offences have become more common with the expansion of the internet. As a result of this change, police departments in jurisdictions across Canada have implemented special task forces whose sole aim is to track down and arrest alleged online predators or those engaging with sexually explicit material involving children. These task forces are common called Child Internet Exploitation (ICE) units. Officers from these units spend their time searching the net, looking for users who are engaging with certain types of content. They employ sophisticated software to track down child exploitation material online, including flagging individuals for further investigation.

In some cases, those charged with child luring or other online sexual offences involving children were actually speaking with an undercover police officer posing as a young person. If done correctly, this type of investigative technique is perfectly legal and can result in the accused being charged and ultimately convicted of an offence. For example, to be convicted of child luring, it is not necessary that the “young person” was actually underage. To gain a conviction, the Crown must only prove that the accused genuinely believed the individual was a minor. In some cases, an accused may raise the defence of entrapment, though this defence will only be successful in a narrow set of circumstances.

In 2021, the Waterloo Regional Police Service’s Cybercrime unit reported 154 internet child exploitation charges. The Waterloo Police Service also has a dedicated Internet Child Exploitation unit, specifically designed to catch child-related sexual offences committed online.

In 2021, the Firm represented an individual accused of communicating with a 14 year old girl online in R. v. P.E. [2021]. In reality, the accused had been communicating with an adult undercover officer posing as the girl in an attempt to catch predators online. After speaking for some time, the accused was alleged to have sent a photo of his genitals to the officer and eventually arranged to meet the girl at her home. Upon arriving at the scene, the accused was arrested by police who were waiting on site. The Firm completed a detailed analysis of the police investigation and determined that there was a possible entrapment defence. The Firm launched the defence, leading to the withdrawal of the three luring charges.

In 2022, the Firm successfully defended an individual charged with more than ten child exploitation offences in R. v. T.T. [2022]. The accused’s online activity was flagged by law enforcement after he was alleged to have engaged with child pornography online including downloading child pornography material. The police investigated the individual for some time before securing a warrant to search his residence. They seized a number of electronic devices which contained child pornography material. Upon further review of the material, police discovered that the individual had been posing as a young person online in an attempt to lure other children. Police alleged that the individual had been engaging with this type of behaviour for decades, prompting the Crown to treat the accused as a dangerous offender. The Firm launched an 11(b) Charter challenge arguing excessive Crown delay, leading to the withdrawal of nearly all the charges, and avoiding a significant term of imprisonment.

Online Sex Offence are on the Rise in Canada

In 2016, the Firm represented a TTC driver alleged to have engaged in child luring behaviour online in R. v. A.H. [2016]. The accused came to the attention of police after the parents of the young person discovered the messages between the accused and their child. The accused was arrested and charged with nine sex related offences. The complainant hired counsel of their own, who worked alongside the Firm to present a united defence to the Crown and to the court. This strategy proved affective, significantly weakening the Crown’s case by reducing the amount of evidence they were able to call. The Firm resolved the case with all the sexual offences withdrawn, ultimately protecting the accused’s reputation in the community.

Child luring cases can be difficult to defend. The best strategy for any case will depend on the facts as well as the evidence in the possession of the Crown. If you have been charged with a child exploitation offence it is important to consult with legal counsel to have a thorough understanding of the law.

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Frequently Asked Questions

Will I be a Sex Offender if I am Convicted in Kitchener?

Once convicted, a Court will issue a SOIRA order to the offender. The Sex Offender Information Registration Act aids the police in investigations of sexual offences by providing them with information of convicted sex offenders. This information may aid in the elimination or catching suspects. Child luring is one of the primary designated offences enumerated in section 490.011(1) of the Criminal Code, meaning that a SOIRA order must be ordered upon conviction for child luring.

SOIRA orders may last from 10 years to life, depending on the circumstances and the offence. If the offence is a summary conviction offence or one with a maximum penalty of two or five years, the SOIRA order will last 10 years. If the offence has a maximum penalty of 10 or 14 years, the SOIRA order will last for 20 years. If the offender has either (1) been previously convicted of a designated offence, (2) been subject to a SOIRA order in the past, or (3) the offence’s maximum penalty is life imprisonment, the SOIRA order may last for a lifetime.

What Does it Mean to be a Sex Offender? How Does it Affect Me?

The sex offender registry list is kept private, so regular citizens do not have access. Only other government agencies and authorities may be able to access the SOIRA database. This means, however, that the status of being a sex offender may appear on any kind of background check, which may exclude the offender from many occupations. There is also possibility that the offender will be denied entry when traveling to other countries as a result of the order.

In addition, the offender must report to a registration centre every year. They must report any changes in their name or residence within seven days. They also must inform the registration centre of the address of their place of employment, and anywhere they volunteer or go to school. The offender must also report their telephone number, or any method at which they may be reached, as well as their height, weight, and a physical description. If they have a car, they are also required to register the car.

What is a Risk Assessment?

Risk assessments are psychological assessments that the defence or Crown may sometimes utilize in cases involving sexual offences. It is more common with child-related sexual offences. The accused would attend a medical facility and speak with a licensed medical professional. The medical professional will talk to the accused about the offence, focusing on their life and trauma, and assessing how dangerous they may be to the community. A standardized report will then be submitted to the defence or Crown (depending on who requested it). The report may then be filed with the court for sentencing.

The process is often long and arduous and may take up to eight hours. The accused will be asked to fill out a detailed questionnaire and interviewed extensively. The licensed professional will gain insight to the offence and offer their expert opinion to the court. The licensed professional will also rate the accused on the chances of recidivism and the possibility of committing a similar offence. This report will form part of a pre-sentence report, which may either aggravate or mitigate the final sentence. Where the report was requested by the defence, they may choose not to disclose it to the court.

What are the Aggravating and Mitigating Factors of Child Luring?

Aggravating and mitigating factors are factors considered by the court during sentencing that may positively or negatively impact the duration and harshness of the sentence. Some aggravating factors may be the age or simulated age of the complainant, the presence of explicit communication or images, the amount of grooming done by the offender, the duration of communication, any attempts at arranging meetings, any meetings resulting in sexual assault or attempt, or the presence of child pornography. Graphic text messages and explicit communication may be a large aggravating factor.

Some mitigating factors include: a youthful offender, a first time offence, or a small age differential. It is neither a mitigating nor an aggravating factor if there was an undercover officer. To be convicted of child luring, there does not need to be a “real” victim.

What Are the Primary Sentencing Principles for Child Luring?

Section 718 of the Criminal Code catalogues the primary sentencing principles for all offences. They are: denunciation, deterrence, separation, rehabilitation, reparations, and promoting a sense of responsibility in the offenders. In the Supreme Court of Canada case of  R. v. Friesen, [2020] 1 SCR 424, the Court determined that there should be harsher punishments on average for all child-related sexual offences. The gravitas of child-related sexual offences is severe and serious, and the harm done to victims immeasurable. In their decision, the Court prioritized denunciation and deterrence as the primary sentencing principles for child luring and other sexual offences involving children.

That is not to say other sentencing principles do not play a factor. Often, the Court may order a pre-sentencing report, detailing the offender’s life circumstances. The pre-sentence report may aid the Court in deciding the best suitable sentence for an offender’s particular circumstances. A good pre-sentencing report, with high chances of rehabilitation, may result in a lesser sentence.

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Recent Cases

R. v. Kavanagh, 2023 ONSC 283

In the Ontario Superior Court of Justice case of R. v. Kavanagh, the accused was convicted of one count of child luring and one count of making sexually explicit material available to a child. The offender communicated with who he believed to be a 15-year-old girl and her father, who was offering her for sexual services. The father and the girl both turned out to be undercover law enforcement from the United States. It was noted that no concrete plans for meeting were ever finalized. The jury found that the sexually explicit conversations the offender had with the complainant constitutes using telecommunications to facilitate a secondary offence.

During sentencing, the Court considered several aggravating and mitigating factors, as well as a pre-sentencing report. The offender was 44-years-old and a first-time offender. The offender was in the Canadian Armed Forces before being suspended from active duty due to his arrest and charges. An expert witness reported that the offender only had “rudimentary insight” to the offence. The number and duration of the communications over several months was deemed to be an aggravating factor. The messages were deemed to be “grooming” messages, which was an aggravating factor. The encouragement of sharing sexually explicit material was deemed to be an aggravating factor. The offender was sentenced to 16 months in a penitentiary, in addition to a SOIRA order and a DNA order.

R. v. Battieste, 2022 ONCJ 573

In the Ontario Court of Justice case of R. v. Battieste, the accused pled guilty to child luring under 16 for the purpose of committing a sexual offence. The offender was communicating with a girl who he thought was 14-years-old through a messaging platform. The offender repeatedly sent the girl adult pornography, asked for pictures in return, and intended to arrange to meet for sex. The girl was actually an undercover police officer, and the offender was arrested.

The offender had no criminal record and complied with a risk assessment as well as a pre-sentencing report. The offensive behaviour was alleged to be founded in alcoholism as well as sexual risk-taking behaviour. To decide the proper sentence, the judge considered the fundamental principles of sentencing that is denunciation and deterrence. The Court also noted that there is no difference between an offender who attempted to lure a real child in comparison to an offender who attempted to lure someone who he believed was a child—the act and intention remains the same. The offender was sentenced to eight months in prison and sixteen months of probation. In addition, ancillary orders for a DNA sample and a SOIRA order were entered.

R. v. Bowers, 2022 ONCA 852

In the Ontario Court of Appeals case of R. v. Bowers, the appellant sought to appeal two convictions: one count of child luring and one count of making child pornography. The appellant, in his early 30s, engaged in sexually explicit conversations with a 13-year-old girl. The complainant received from the appellant images of his genitals. The appellant also received explicit material from the underage complainant, constituting making child pornography. After the complainant’s mother found sexually explicit images on her cellphone, she contacted the police. The police then pretended to be a complainant, making it clear that the complainant was 13 years old in and grade 8. This did not deter the appellant, and he was still interested in meeting.

The appellant submitted that he thought he was communicating with an adult woman and that they were only engaging in roleplay, which the trial judge did not believe. The appellant also did not take any steps, reasonable or not, to determine the complainant’s age. The trial judge was satisfied that the appellant did have an intention to meet the complainant to facilitate an offence and did commit the communication to constitute child luring. In addition, the appellant was also found guilty of making child pornography, as he directed the complainant to make sexual images and videos of herself. The appeal is dismissed, and the sentence restored.

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.