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Defend Child LURING Charges

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Our Experience

Luring charges have become more common in Ontario and throughout the country due to the ease at which individuals can privately communicate over the internet. With virtually everyone having access to the internet at anytime, anywhere, the number of luring offences has begun to increase. As a result, many law enforcement agencies have implemented Internet Child Exploitation (ICE) units to combat the sexual exploitation of young people online.

Donich Law has experience defending individuals accused on engaging in online conversations with underage individuals for the purposes of facilitating certain sexual offences. We regularly obtain favourable results for our clients by combining risk management and litigation strategy. We have experience conducting thorough analysis of the data seized from accused’s electronic devices to uncover any potential defences or errors with the police investigation.

In 2022, the Firm represented an individual charged with ten child sexual exploitation charges including various child pornography offences and child luring in R. v. T.T. [2022]. Police secured a search warrant for the accused’s residence after his online activity was flagged. Upon searching, police found multiple electronic devices containing child pornography material. It was also determined that the accused had been posing as a young person online for decades in an attempt to get other young people to engage with him. Many of the conversations were sexual in nature. Due to the length of time the accused had been engaging with this type of material online, the Crown treated him as a dangerous offender, further complicating matters. The Firm launched a section 11(b) Charter challenge after significant, unreasonable Crown delay in the case, leading to the majority of charges being dropped, and the accused avoiding a significant period of time in prison.

In 2021, Statistics Canada reported there were 26 incidents of child luring in London, Ontario. This accounts for 6.64% of all child luring cases in Ontario in 2021. The London Police Service participated in Joint Forces Operations in 2022, one of which was the Provincial Strategy to Protect Children from Sexual Abuse and Online Exploitation on the Internet. The Provincial Strategy was funded by the Ministry of the Solicitor General, and 3 officers from the London Police Service was assigned to the program.

In addition to representing individuals accused of communicating with a minor online to facilitate certain sexual offences, the Firm also has experience defending individuals who believed they were speaking with a child online but were in fact speaking with an adult undercover officer posing as a child. This is a legitimate investigative technique often used by officers to catch those seeking out sexual contact with minors online. To gain a conviction for child luring, the Crown need not prove that the accused was in fact speaking with a minor. Instead, they must only prove that the accused genuinely believed they were speaking with a minor. This distinction can lead to a conviction in cases where no real young person was involved.

Online Sex Offence are on the Rise in Canada

In 2021, the Firm represented an accused individual alleged to have been communicating with a young girl online in R. v. P.E. [2021]. The accused was charged with making sexually explicit material available to a child and three counts of child luring. In fact, the accused had been speaking with an adult undercover officer who had been posing as a young girl online. After communicating for some time, the conversations became sexual in nature and the accused sent a photo of himself naked to the officer. Later, the paid made plans to meet at the girl’s apartment. Upon arriving at the agreed upon location, the accused was placed under arrest by officers waiting on the scene to apprehend him. After receiving disclosure from the Crown, the Firm engaged in a thorough analysis of the evidence, uncovering a possible entrapment defence. The Firm successfully launched the defence, leading to the withdrawal of the three luring charges, and avoiding a lengthy period of custody for the accused.

In 2016, the Firm successfully defended a client accused of communicating with a child online for the purposes of facilitating a sexual offence, leading to nine charges including child luring in R. v. A.H. [2021]. The case garnered media attention because the accused was a TTC driver who was alleged to have attempted to meet with a young person while on the job. The parents of the young person subsequently found out about the alleged meeting and reported it to police. The Firm worked alongside counsel for the complainant who did not agree with the charges. Counsel for the complainant and for the accused presented a unified defence strategy, securing the withdrawal of all sexual offences against the accused. The matter was resolved without a criminal record.

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Frequently Asked Questions

What Are the Ancillary Orders Associated with Child Luring?

When convicted of the offence of child luring, a Court may subject the offender to ancillary orders in addition to a sentence to ensure public safety.

The DNA Identification Act created Canada’s national DNA database to help law enforcement identify individuals who have been convicted of a primary designated offence. The database was designed to assist officers in investigations by using DNA to track down or eliminate suspects. Luring is a primary designated offence. If a person is convicted of one of the primary designated offences as outlined in section 487.04(a), the Court must make an order for the acquisition of their bodily fluids to be entered into a database.

The Court may also subject the offender to a SOIRA order. The Sex Offender Information Registration Act (SOIRA) established Canada’s national sex offender registry and assists law enforcement by helping them identify and prosecute suspects. When an offender is sentenced for a primary designated offence enumerated in s. 490.011(a), it is mandatory to be registered with SOIRA.

A section 161 order is an order restricting the offender’s access to children. This provision is mandatory when an offender commits a child-related sexual offence. Different subsections of the section specifically prohibit the accused from engaging in certain activities and/or attending certain locations.

The Friesen Case?

The Supreme Court of Canada case of R. v. Friesen, [2020] SCC 9, is a landmark case that enumerated sentencing principles for child-related sexual offences. The defendant had met the 4-year-old victim’s mother on an online dating website, and after having consensual sex with her, asked her to invite her daughter into the room. The defendant then sexually assaulted the child. After a confrontation, the defendant fled the scene. The defendant pled guilty to sexual interference and attempted extortion.

The trial judge gave the defendant six years in prison, basing his decision on the decision by the Manitoba Court of Appeals in R. v. Sidwell, [2015] MBCA 56, for offences committed against children. The Ontario Court of Appeal overturned the sentence for a lower sentence of four years and six months. The Supreme Court of Canada then overturned the appeal, restoring the original trial judge’s sentence of six years. Understanding that the purpose of legislating child-related sexual offences was to protect society in the interest of the public, the Court emphasized denunciation and deterrence as primary sentencing principles for any child-related sexual offences. The Court also indicated that the average penalties for sexual offences against children should be on the increase. The court noted that upper single digit to lower double digit prison sentences for these offences should be the average.

Will a Luring Conviction Affect My Ability to Participate in my Kid’s Programs?

Yes, this charge will almost certainly affect the accused’s ability to participate in any children’s programs. When an accused is charged with a sexual offence involving a child they will almost certainly have bail conditions restricting their access to children. Such conditions would prohibit the accused to working or volunteering with children.

Additionally, when an individual is convicted of a sexual offence involving a child, like child luring, section 161 of the Criminal Code is applicable. Section 161 of the Criminal Code limits an offender’s access to children. This would prohibit the offender from accessing communal spaces where children may be and bars them from any employment or volunteer opportunities involving children. A severe section 161 order may even prohibit the accused from interacting with their own children.

If the person is convicted of child luring, section 161 is also an ancillary order that may last for a lifetime. In addition, the accused must comply with the Sex Offender Information Registration Act and register with a registration centre. This conviction will show up on any background check and may affect prospective travel or employment opportunities.

What if I Work or Volunteer Around Children in London?

If an accused works or volunteers with children, they must halt those activities as soon as they get the order restricting their access to children. The Court is more concerned with public interest and the protection of children. The accused must quit and find another line of work. Breaking a bail condition or ancillary order is a crime and an accused who breaches their conditions is likely to be charged.

Will I be Able to be Around my Own Children?

Whether or not an individual can have access to their own children after being charged with luring will be determined on a case-by-case basis. The age of the victims as well as the age of the children of the accused may play a large factor. For example, if an offender was convicted of attempting to lure a 16 year old child and their child is a toddler, it may be unreasonable to limit the accused’s access to their own child. However, it is not uncommon for the Court to put certain conditions and restrictions on the accused’s access to their own child(ren). An offender may need supervision to be around their own child(ren).

In the Ontario Court of Appeals case of R. v. Folino, [2005] ONCA 40543, the accused pled guilty to one count of child luring. He was sentenced to nine months’ incarceration followed by three years’ probation. There was a lifetime order under s. 161 of the Criminal Code, and a SOIRA order imposed. The accused appealed and sought to vary his ancillary orders. The Court of Appeals ruled that the sentencing judge did not consider mitigating factors and the offender’s risk of recidivism. Evidence showed that the incarceration of the offender would be detrimental to him and his three young children. A conditional sentence was imposed, and a section 161 order was varied so that the appellant may be around his children in public areas with adult supervision.

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Recent Cases

R. v. Mootoo, 2022 ONSC 384

In the Ontario Superior Court of Justice case of R. v. Mootoo, the offender was found guilty of attempting to procure a child under the age of 18 to provide sexual services for money, possessing child pornography, making sexually explicit material to children, luring a child under the age of 16, and inviting a child to touch herself in a sexual manner. He was acquitted of sexual assault and sexual interference. The offender was found to attempt to procure the underage child into prostitution. This constitutes as luring.

In the sentencing decision, the judge considered the Friesen case. It was found that the judge adhered with the principles of deterrence and denunciation enumerated in Friesen, and that they felt it appropriately reflected the inherent gravity and harmfulness of the offences. The judge noted that many trial courts struck down the mandatory minimum sentencing enumerated in Friesen based on unconstitutionality. The offender was sentenced to three and a half years in custody, with additional ancillary orders of a DNA order, a SOIRA order for life, and a section 161(1)(b) order. The Crown submitted that the offender should not be allowed near children unless under supervision by a person approved by the Court. The judge found this unreasonable, as the offender has his own child, and restricting access to his family restricts his liberty in unnecessary and impractical ways.

R. v. Jarrar, 2023 ONCA 67

In the Ontario Court of Appeals case of R. v. Jarrar, the appellant was found guilty of sexual assault, sexual interference, child luring, making child pornography, accessing child pornography, and possessing child pornography. The appellant appealed on the grounds that the trial judge exhibited bias; unfair proceedings (particularly concerning the tampering of a jury); ineffective counsel; and an unreasonable verdict. He also appealed the dangerous offender designation and the indeterminate sentence.

The Court of Appeal rejected the appellant’s appeal on all grounds. The Court found that the trial judge was correct in determining that the offender had a pattern of behaviour and was a designated dangerous offender. Evidence suggests that the offender’s behaviour cannot be restrained, and that he exhibited hatred towards women. His past assaults as well contributed to his history of repetitive behaviour. The appeal was rejected, and the indeterminate sentence as well as the dangerous offender designation was restored.

R. v. S.R., 2023 ONCA 35

In the Ontario Court of Appeals case of R. v. S. R., the appellant was convicted of child luring. He appealed, arguing for an honest but mistaken belief of age. The appellant had sexual communications with the complainant when she was 14-years-old over a period of two years. Communications included sexual messages, photos, videos, and video-chats.

The Court ruled that the trial judge correctly applied the R. v. W. D. principles of accepting evidence by the accused. The trial judge found that the Crown did prove beyond a reasonable doubt that the complainant told the appellant she was 14 years of age. There was no air of reality to the appellant’s arguments. The appeal was dismissed, and the judge’s credibility findings were fully explained and proper.

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.