Luring Defence Lawyer in Toronto

What is Child Luring?

Luring a child is defined in section 172.1(1) of the Criminal Code. The Code says that any person who, by means of telecommunication (e.g. social media or text), attempts to commit an enumerated offence is guilty of child luring. Section 172.1(a) of the Code provides the list of enumerated offences that are applicable when the complainant is 18 years old. These offences include: section 153(1), sexual exploitation; section 155, incest; section 163.1, child pornography; section 170, parent or guardian procuring sexual activity; section 171, householder permitting prohibited sexual activity; sections 279.011, 179.02(2), 279.03(2), which are human trafficking offences; section 286.2(2) and 286.3(2) are related to commodification of sex.

Section 172.1(1)(b) of the Code lists offences that are applicable when the complainant is under the age of 16. These offences include: section 151, sexual interference; section 152, invitation to sexual touching; section 160(3) bestiality in presence of or by child; 173(2) exposure to person under 16; 271, 272, 273 are all sexual assault; and section 280 criminalizes kidnapping of a person under 16.

Section 172.1(1)(c) specifically enumerates that if an accused believes a person is under 14 years and lures the child for the offence of section 281, abduction of a person under 14, they have committed an indictable offence.

What if I Never Intended to meet the Child?

In many cases of child luring in Toronto, the accused may be having a conversation with someone who they believe to be a minor but is actually undercover law enforcement. It is not illegal to communicate with minors, but to communicate with them to incite criminal activity is an offence. Once the act is committed, and the suggestion of criminal activity is present, the offender could be charged. The intention of the offender does not matter. Any communication with a minor for the purpose of facilitating an enumerated offence is illegal.

In the Supreme Court of Canada case of R. v. Legare, [2009] SCC 56, the defendant argued that he had no intention to meet the child. The defendant had engaged in sexually explicit online conversations with a 12-year-old girl, but only engaged in dirty talk. The trial judge, though finding the defendant’s conduct deplorable, acquitted the defendant on the grounds. The Crown appealed, and the Court of Appeal ruled the trial judge erred. The case went all the way to the Supreme Court of Canada, and Justice Fish, writing for the majority, rejected the defence’s position that he had no intention to meet the child. A new trial was ordered.

What is Entrapment?

Entrapment is a defence for child luring. Entrapment occurs when an opportunity for a crime is presented by law enforcement, without the law enforcement having first reasonable suspicion that the person attempted or was engaged in criminal activity already. It is when authorities incite a person to commit a crime. The court cannot convict a person if they were entrapped by law enforcement.

The doctrine of entrapment helps mitigate unprofessional police or prosecutorial misconduct. Certain police tactics may not give the accused an opportunity to form independent criminal intent, which is a requirement for a conviction. The defence is allowed not only because of the injustice a conviction might cause, but so that the administration of justice remains credible and reliable.

Child luring offences are often caught in undercover sting operations, with officers posing as children. If the “child” reaches out first, and there is no reason to believe that the accused would commit a crime, then that is entrapment. The accused must reach out first for the indictable offence of child luring. The police must have bona fide proof that the accused was already engaging in criminal activity.

What Are Some Common Types of Disclosure?

Disclosure is a process where the Crown gives the defence all materials and information in its possession or control that is relevant to the case. This is based on the principles of fundamental justice that the defence deserves the right to know the case to meet and have the right to make a full answer. There are procedural documents associated with typical disclosure such as background checks.

Cases of child luring may have additional disclosure including text messages from the complainant’s or accused’s device. These messages are vital evidence and may be included in trial. Any gaps between communications would be provided by disclosure of further evidence or the complainant’s statement.

Why Does Disclosure Take So Long?

Disclosure is a long and arduous process that can take a long time. First, the police will collect the evidence and open up a case file. As the crime involved misuse of internet and technology, a computer forensic expert will look through the device for conversations the accused believed he was having with underage girls. This process may take longer, as the police will have to get production orders or search warrants for data or go through the complainant’s phone and extract the data. The accused may sometimes have a device that is password protected, which requires further expertise from the police.

The police will then deliver the information to the Crown. The Crown will undertake two processes: screening and vetting. They first screen the file to determine the current position on sentence if the accused were to plead guilty. Afterwards, they will vet the files, redacting any personal information that may be sensitive. This process is important to both protect the accused and victims. The process often takes up to several months for the Crown to complete.